A. V. Dicey - Introduction To The Study of The Law of Constitution

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INTRODUCTION
TO THE STUDY OP THE
LAW OF THE CONSTITUTION

A.
V.
DICEY
MACMILLAN AND
LONDON

CO., Limited
BOMBAY CALOOTTA MELBOOENE
MADRAS
THE MACMILLAN COMPANY

NEW YORK BOSTON
DALLAS
CUICAGO SAN FRANCISCO
XHB MACMILLAN
CO.
OF CANADA,
Ltd.
TORONTO
INTEODUCTION
TO THE STUDY OF THE
LAW OF THE CONSTITUTION
A. V.
DICEY,
;
K.O., Hon. D.C.L.
POBMEELT VINERIAN PROFESSOR OP ENGLISH LAW FELLOW OP ALL SOITLS COLLEGE, OXFORD HON. LL.D. CAMBRIDGE, GLASGOW, AND EDINBURGH AUTHOR OF 'lectures ON THE RELATION BETWEEN LAW AND PUBLIC OPINION IN ENGLAND DURING THE NINETEENTH CENTURY'
OP THE INNER TEMPLE
SaGHTH EDITION
MACMILLAN AND
ST.
CO.,
LIMITED
MAETIN'S STEEET LONDON

1927.
COPYRIGHT
Fii-si
Edition 1885.
1889.
Second Edition 1880
Third Edition
Fourth Edition
Sixth Edition
1893.
Fifth Edition 1897.
1902. 1915.
1924, 1926, 1927.
Seventh Edition
1908.
Eighth Edition
Reprinted 1923,
Reprinted 1920 {twice).
BY
S.
&
PRINTED IN GREAT BRITAIN E. CLARK, LIMITED, EDINBURGH
'PEEFACE TO THE FIRST ^DITION

This book
is (as
its title-
imports) an introduction to
it
the study of the Law of the constitution -
does not
pretend to be even a summary, nluch

account of constitutional law.
It
less a
complete
deals only with
two or three guiding principles which pervade the
modern constitution of England.

lishing the
My
object in pub-
work
is
to provide students with a
manual
which
may
in
impress these leading principles on tkeir
minds, and thus

benefit
may
enable
them
to study with
Blackstone's
Commentaries
and
other
treatises of the like nature those legal topics which,
taken together, make up the constitutional law of

England.
In furtherance of this design I have not
only emphasised the doctrines (such, for example, as

the sovereignty of Parliament) which are the foundation
of
the
existing
constitution,
but
have also
constantly illustrated English
constitutionalism
by
comparisons between
it
and the constitutionalism on
the one hand of the United States, and on the other

of the French Eepublic.
Whether
have in any
LA W OF THE CONSTITUTION
measure attained
my
them
object
It
must be
left
to
the
judgment of
able
to
my
readers.
may
a
perhaps be allow-
remind
that
book consisting of
actually delivered lectures must, even though revised

for publication, exhibit the characteristics inseparable
from
oral
exposition,
and that a
treatise
on the
principles of the law of the constitution differs in its
scope
and purpose, as well from a constitutional
history of
England
as
from works
Constitution,
like
Bagehot's
incomparable English
which analyse
the practical working of our complicated system of
modern Parliamentary government.

If,
however,
I insist
its
on the fact that

is
my
book has
a special aim of
own, nothing
underrate
further from
my
owe
intention than to
to the
the debt which I
labours
of the
lawyers and historians
who
have composed works on the English constitution.
Not
a page of
my
lectures could
have been written
without constant reference to writers such as Blackstone, Hallam, Hearn, Gardiner, or
Freeman, whose
books are in the hands of every student.

of these authors in particular I
To three
am
so deeply indebted
that
it is
a duty no less than a pleasure to
make
special
acknowledgment of the extent of
my
obligations.
Professor Hearn's Government of England has taught
me more
in
than any other single work of the
way
which the labours of lawyers established in early
times the elementary principles which form the basis
PREFACE
of the constitution.
Mr. Gardiner's History of Eng-
land has suggested to

confirmed as I found
it
me
the conclusion on which,
to be
by
all
the information
could collect about French administrative law, stress

is
frequently laid in the course of the following pages,
that
the views of the prerogative
maintained by
Stuarts
Crown lawyers under the Tudors and the
bear a marked resemblance to the legal and administrative ideas
which at the present day under the

still
Third Eepublic
of France.
I
support the droit administratif
To
my
friend
and colleague Mr. Freeman

different nature.
owe a debt
of a
somewhat
His
Growth of
a
the English
Constitution has been to
me
model
in
(far easier to
admire than to imitate) of the
mode
The
which dry and even abstruse topics may be

subject of effective and popular exposition.
made the
difference
clear statement
which that work contains of the

"
between our so-called " written law
and
to
" our conventional constitution," originally led seek for an answer to the inquiry, what
true
me
may
be the
source
whence constitutional understandings,
which are not laws, derive their binding power, whilst

the
equally vigorous
statements contained in the
same book of the aspect in which the growth of the

constitution
presents
itself
to
an historian forced
upon
my
attention the essential difference between
the historical and the legal

institutions,
way
of regarding our
and compelled me
to consider
whether
LAW OF THE
CONSTITUTION
by
the habit of looking too exclusively at the steps
which the constitution has been developed does not

prevent students from paying sufficient attention to
the law of the constitution as
it
now
actually exists.
The
possible weakness at
as applied to the
any
rate of the historical

institutions, is
method
that
it
growth of
to think so
may
induce
men
much
of the
it
way
is,
in which
an institution has come to be what
that they cease to consider with sufficient care

it is
what
that an institution has become.

A. V.
DICEY.
All Souls College,

Oxford, 1885.
PKEFACE TO THE EIGHTH EDITION

The body of tliis work is the eighth edition, or rather a reprint of the seventh edition, of the Law of the Constitution first
published in 1885.
Introduction.
It
is,
however, accompanied by a new

is
This Introduction
is
written with two objects.

in
The
first
object
to trace
and comment upon the way
which the main principles of our constitution as expoimded by me may have been affected either by changes of law or by
changes of the working of the constitution which have occurred
during the last thirty years (1884-1914).
of this Introduction is to state
stitutional ideas
The second object
and analyse the main con-
which may fairly be called new, either because
they have come into existence during the last thirty years,
or because (what
in
is
much more frequently
the case) they have
England during that period begun to exert a new and

It has been
noticeable influence.
my good fortune to
receive in the composition
of this Introduction, as in the writing of every book which I
have pubUshed, untold aid from suggestions made to
me
by a large number both of English and "of foreign friends. To all these helpers I return my most sincere thanks. It is at once a duty and a pleasure to mention my special obUgation to. two friends, who can both be numbered as high authorities
among
writers,
who have
investigated the
constitution of friendship of
England from
different points of view.
To the
the late Sir William Anson I owe a debt the amount of which
it is
impossible to exaggerate.
He was
better acquainted, as
LAW
his
OF THE CONSTITUTION
books show, with the details and the working of the whole
constitution of
England than any contemporary authority.

at the basis of our constitution,
Since I
first
endeavoured to lay down the few general priaciples
which in
my
judgment
lie
I have, whilst engaged in that attempt, always enjoyed his
sympathy and encouragement, and,

editions of
especially in the later
my work, I
have received from him corrections and

minute rules of our constitutional
Berriedale Keith
suggestions given
by one who had explored not only the

To
principles but also all the
law and practice.

I
my friend Professor A.
am
imder obligations of a somewhat different kind.
He
has become already, by the publication of his Responsible
Government in the Dominions, an acknowledged authority on

all
matters connected with the relation between England and

I have enjoyed the great advantage of his
her Colonies.
having read over the parts of

to our Colonial Empire.
my
Introduction which refer
His knowledge of and experience in
Colonial afEairs has certainly saved
me from many
errors into
which I might otherwise have

It
is fair
fallen.
to all the friends
who have aided me that
I should
state exphcitly that for
any opinions expressed in
this Intro-
duction no one
is
responsible except myself.
The care with

information was
which
many
persons have given
me sound
the more valued by
me
because I have
known that with

facts
some
I
of the inferences
drawn by me from the
on which
commented
my
informants probably did not agree.

A. V.
DICEY.
Oxford,
1914.
CONTENTS
Introduction to Eighth Edition
....
I
PAGE
xvii
OUTLINE OF SUBJECT
The Tbue Nature of Constitutional Law
PART
THE SOVEREIGNTY OF PARLIAMENT

>
CHAPTER
I
,
The Nature ov Parliamentary Sovereignty
37
CHAPTER n
Parliament and non-Sovereign Law-Making Bodies
,
83
CHAPTER
--^
m
.
Parliamentary Sovereignty and Federalism
.134
PART n
THE RULE OF LAW
CHAPTER
^^
The Rule of Law
tions
.
:
IV
its
.
Nature and General Applica.
.179
CHAPTEE V
PAGE
The Eight to Personal Freedom
202
CHAPTEE
The Eight
to
VI
.
Freedom of Discussion
234
CHAPTEE
The Eight of Public Meeting
.
VII
,
266
-Martial
Law
..
CHAPTEE
=
VIII
.,.
280
The Armt
...,.,
IX
CHAPTEE
291
The Eevbnub
..,,-,
CHAPTEE
XI
,
.
CHAPTEE X
308
The Eesponsibility op Ministers
.321
CHAPTEE
XII
.
V
,
EuLB OF Law compared with Droit Administratif
324
CHAPTEE
EuLE of Law
XIII
Eelation between Parliamentary Sovereignty and the
......
402

CONTENTS
PART
III
THE CONNECTION BETWEEN THE LAW OF THE CONSTITUTION AND THE CONVENTIONS OP THE CONSTITUTION
CHAPTER XIV
PAGE
.
Natuke or Conventions of Constitution
.413
CHAPTER XV
The Sanction bt which the Conventions of the Constitution ARE Enforced
. . .
.435
APPENDIX
NOTE
I.
EiGiDiTY
of French Constitutions
.469
.
II.
Division of Powers in Federal States
476
III.
Distinction between a Parliamentary Executive AND A non-Parliamentary Executive

.
480
489
IV.
The Eight op Sele-Defence
V.
Questions connected with the Eight op Public
Meeting
VI.
.497
,^
Duty op Soldiers called upon to disperse an Unlawful Assembly

. .
.
.512
516
517
^ VII.
The Meaning op an "Unconstitutional" Law

Swiss Federalism
.
.
.
^^YIII.
,,
IX.
Australian Federalism
^29

LAW OF THE
NOTE X.
CONSTITUTION
Martial Law in England during Time of

OR Insurrection
....
.
PAGE
War
538
555
XI.
Constitution of the Tribunal bes Conflits
XII.
Proceedings against the Crown
556
XIII.
Parliament Act, 1911
.557
.561
INDEX
ANALYSIS OF INTEODUOTION
Aim
(A)
Possible changes
I.
The Sovebeignty of Pakliambnt

Possible
change
sovereign (Parliament Act, 1911) State of things before passing of Act Direct effects of Parliament Act
(1) (2)
Money
Bill
.... ...... ....

in
PAGE
xvii
xviii
xix
xix
constitution
of
parliamentary
. .
xx
xxi
House
Bills
Other public
House
of Lords
II.
xxi has unlimited legislative power xxiii Practical change in area of parliamentary sovereignty (Relation of the Imperial Parliament to Dominions) xxiv Krst question What is the difference between such relation in 1884 and 1914 ? xxv Second question ^What changes of opinion caused the
(3)
suspensive veto
of
House
Commons
.....
.
of
no veto Lords has only

.
xxi
change of relation
(B)
The Rule or Law

I.
II.
Decline in reverence for rule of law xxxviii Comparison between present official law of England and present droit administratif ot Prance xliii
.
?..... .....
. . .
.
xxxii xxxvii
(C)
Conventions oe the Constitution
What the ventions Third question Does experience

Second question
?
.
First question
-What changes
is
.
.
....
.
xlviii
xlviii
tendency of new con. . .
Iv
of last thirty years con-
firm principles laid
down
as to connection between con?
ventions and rule of law
(D)
Development dueing the last Thirty Ybabs of New

Constitutional Ideas general observations on new constitutional ideas Mrst observation Slow growth of poHtical or constituIviii
Two
.....
.
. .
Ivii
Iviii
tional inventiveness
Second observation These new ideas take no account of one of the ends which good legislation ought to
attain
. .
Ux
......
lix
Criticism of the
I.
Four New
Suffrage
Constitutional Ideas
Woman
The causes of demand The two main lines of argument and answers Every citizen entitled to vote. First argument Second argument Difference of sex no ground
.
...... ...
. . . .
PAQK
Ixii
Ixii
Ixiii
Ixiv
Ixiv
difference of political rights

II.
Proportional representation The three propositions on which argument in favour of proportional representation is based The truth of two first propositions admitted
.
. . .
Objections to third proposition

First objection
Comphcation system increases power of wire-pullers Second objectionHouse Commons not mere House for Debate, Third objection^Proportional representation increases
of of
is
number and evil of parliamentary groups ni. Federalism Leading characteristics of federal government
Characteristics
of
Imperial Federalism
First objection
Attempt to form federal constitution for Empire full of difficulty and peril .Ixxxii Second objection No real necessity for formation of any new federal constitution for Empire .Ixxxv Characteristics of federal government in relation to Home Rule all round {i.e. federalisation of United Kingdom) Ixxxvii Vagueness of the ideas which support the policy of federalisation of United Kangdom (Home Rule all
...... ...... ....... .....

. . .
.
.... ....
.
. .
for
Ixv
Ixvi
Ixvi
Ixvi Ixix
Ixix Ixix
Ixx
Ixiii
Ixxv
Ixxx
federal
government in relation to
round)
Specific objections to
Ixxxvii
First objection
of
Ixxxvui ^No desire for Federalism in any part
United Kingdom Ixxxviii Second objection Federalisation of United Kingdom does not promote Imperial FederaKsm . xc Third objection Such federalisation opposed to whole
history of English constitutionalism
The Referendum Meaning of referendum Causes for demand for referendum The main argument against the referendum The main argument in favour of the referendum Conclusions
IV.
.
. . .
.... ....
.
. .
Home
Rule
all
round
xo
xoi xcj
^cij
......
xciv
xcvii
INTRODUCTION
AIM OF INTRODUCTION
The Law
of the Constitution was first published in 1885. The book was based on lectures delivered by me as Vinerian Professor of Enghsh Law. The lectures were given and the book written with the sole object of explaining and illustrating three leading characteristics in the existing constitution
of England ; they are now generally designated as the Sovereignty of ParHament, the Eule of Law, and the Conventions of the Constitution. The book, therefore, dealt
with the main features of our constitution as it stood in 1884r-85, that is thirty years ago. The work has already gone through seven editions ; each successive edition, including the seventh, has been brought up to date, as the expression
goes,
by amending
it so as
to
embody any change
in or affect-
ing the constitution which
may have
occurred since the last
On pubhshing the eighth and final edition have thought it expedient to pursue a different course. The constant amendment of a book republished in successive editions during thirty years is apt to take from it any such literary merits as it may originally have possessed. Recurring alterations destroy the original tone and spirit of
preceding edition.
of this treatise I
any treatise which has the least claim to belong to the hterature The present edition, therefore, of the Law of the of England.
Constitution is in substance a reprint of the seventh edition
it is
;
however accompanied by this new Introduction whereof the aim is to compare our constitution as it stood and worked in 1884 with the constitution as it now stands in 1914. It is thus possible to take a general view of the development of the constitution during a period filled with many changes
xvii

INTRODUCTION
both of law and of opinion.^
to see
My
readers are thus enabled
how
far either legislation or constitutional conventions
have
diiring the last thirty years
extended or
(it
may
be)
limited the appUcation of the principles which
in 1884 lay
at the foundation of our whole constitutional system. Introduction therefore

retrospection.
it
is
This
in the
It
is
impossible,
main a work however (nor perhaps would

of historical
be desirable were it possible), to prevent a writer's survey of the past from exhibiting or betraying his anticipations of
the future.
The topics here dealt with may be thus summed up The Sovereignty of Parhament,^ the Eule of Law,^ the Law and the Conventions of the Constitution,* New Constitutional
:
Ideas,^ General Conclusions.^
(A)
Sovereignty of Parliament
'
The sovereignty of Parliament is, from a legal point of view,

the
dominant
characteristic
of
our
pohtical
institutions.
And my
remember that Parhament consists of the King, the House of Lords, and the House of Commons The principle, therefore, of parliamentary acting together. sovereignty means neither more nor less than this, namely that " Parhament " has " the right to make or unmake any law whatever and further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parhament," ^ and further that this
readers will
;
1 Compare the Introduction to the aeoond edition of Law and Public Opinion in England during the Nineteenth Century. a See Part I. Chaps. I.-III., post. 8 See Part II. Chaps. IV.-XIIL, post. * See Part III. Chaps. XIV., XV., post. ^ See p. Iviii, post. * A student who wishes to understand the statements in the Introduction should read with care that part of the book on which they are a comment ; thus the portions of the Introduction referring to the Sovereignty of Parliament ought to be read in connection with Part I Chapters I.-III., post. ' See Chaps. I.-III., post. * See Chap. I. p. 38, post. Parliament may itseU by Act of Parliament either expressly or imphedly give to some subordinate legislature or other body the power to modify or add to a given Act of Parliament. Thus under the Commonwealth Act, 63 & 64 Vict. c. 12, the Imperial Parliament has given to the Parliament of the Australian Commonwealth power to modify many

SOVEREIGNTY OF PARLIAMENT
right or
power of Parliament extends to every part

dominions.^
of the
appear in the first edition of this work, published in 1885 they have been repeated in each successive edition pubUshed up to the present day. Their truth has never been denied. We must now,
King's
doctrines
;
These
however, consider whether they are an accurate description
parUamentary sovereignty as it now exists in 1914. And it should be remarked that parhamentary sovereignty may possibly at least have been modified in two different directions, which ought to be distinguished. It is possible, in
of
here
the
first place,
that the constitution or nature of the sovereign
power may have undergone a change. If, for example, the King and the Houses of ParUament had passed a law aboUshing the House of Lords and leaving supreme legislative power in the hands of the King and of the House of Commons, any one would feel that the sovereign to which parhamentary sovereignty had been transferred was an essentially different sovereign from the King and the two Houses which in 1884 possessed supreme power. It is possible, in the second place, that since 1884 the Imperial Parhament may, if not in theory yet in fact, have ceased as a rule to exercise supreme legislative power in certain countries subject to the authority Let us consider carefully each of these two of the King.
possibiUties.
I.
Possible change in constitution or character of the farlior
mentary sovereign {Effect of the ParUament Act, 1911). The matter tmder consideration is in substance whether the Parhament Act,^ has transferred legislative authority from
^ and the two Houses and the House of Commons 1
the King
of
Parhament
to the
King
provisions of the Commonwealth Act, and the Imperial Parliament, under the National Insurance Act, 1911, has given power to the Insurance Commissioners and to the Board of Trade to modify some provisions of the Insurance Act. 1 See pp. 98-116, post. " See especially the Parliament Act, 1911, ss. 1-3, and Appendix, Note Xm., the Parliament Act. ' The Parliament Act in no way diminishes the prerogatives of the King as they eidsted immediately before the passing of that Act, and it is enacted (Parliament Act. s. 6) that " nothing in this Act shall diminish or qualify " the existing rights and privileges of the House of Commons."
INTRODUCTION
The best mode
to state broadly
of giving
an answer to
this question is first
what were the
legislative
powers of the
House of Lords immediately before the passing of the Parhament Act, 18th August 1911, and next to state the main direct and indubitable effects of that Act on the legislative power of the House of Lords and of the House of Commons
respectively.
Tlw state of things immediately before the passing of the Parliament Act. No Act of ParUament of any kind could
be passed without the consent thereto both of the House of Lords and of the House of Commons. No doubt the House of
Lords did very rarely either alter or reject any Money Bill, and though the Lords have always claimed the right to alter or reject such a Bill, they have only on very special occasions
exercised this power.
No doubt
again their lordships have,
any rate since 1832, acknowledged that they ought to pass any Bill deliberately desired by the nation, and also have admitted the existence of a more or less strong presumption that the House of Commons in general represents the wiU of the nation, and that the Lords ought, therefore, in general to consent to a Bill passed by the House of Commons, even though their lordships did not approve of the measure. But this presumption may, they have always maintained, be rebutted if any strong ground can be shown for holding that the electors did not really wish such a Bill to become an Act of Parliament. Hence Bill after Bill has been passed by their lordships of which the House of Lords did not in reaUty approve. It was however absolutely indubitable up to the passing of the Parliament Act that no Act could be passed by ParUament without obtaining the consent of the House of Lords. Nor could any one dispute the legal right or power of the House, by refusing such assent, to veto the passing of any Act of which the House might disapprove. Two considerations, however, must be taken into account. This veto, in the first place, has, at any rate since 1832, been as a rule used by the Lords as a merely suspensive veto. The passing of the Great Reform Act itself was delayed by their lordships for somewhat less than two years, and it may well be doubted whether they have, since 1832, ever by their legislative veto, delayed legislation
at
xxi
reaUy desired by the electors for as much as two years. It must again be remembered that the Lords, of recent years at least, have at times rejected Bills supported by the majority of the House of Commons which, as has been
proved by the event, had not received the support of the electors. Hence it cannot be denied that the action of the House of Lords has sometimes protected the authority of
the nation.
Tine dvrect effects of the Parliament Act.^ 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
power from the House of Lords. The House may discuss such a Bill for a calendar month, but cannot otherwise prevent, beyond a month, the Bill becoming an Act of Parhalegislative
ment.^
(2)
Bill),^
In respect of any pubHc Bill (which is not a Money the Act takes away from the House of Lords any
final veto,
but leaves or gives to the House a suspensive

is
veto.*
This suspensive veto
secured to the House of Lords
because under the ParUament Act, s. 2, no such Bill can be passed without the consent of the House which has not fulfilled
(i.)
the following four conditions
That the Bill shall, before it is presented to the King for his assent, be passed by the House of Commons and be rejected by the House of Lords in each of three successive
sessions.^
(ii.)
That the BiU
at least
shall be sent up to the House of Lords one calendar month before the end of each of these
sessions.
(iii.) That in respect of such Bill at least two years shall have elapsed between the date of the second reading of the
Bill in
1
the House of
Commons
during the
first
of those sessions
See as to " iudireot effects," p. Ii, post. See Parliament Act, ss. 1 and 3. ' Except a BiU for extending the maximum duration of Parliament beyond five years. See Parliament Act, s. 2, subs. 1. 4 See s. 2. Ibid. See s. 2 (1).
'
INTROD UCTION
and the date on which
third of such sessions.^
(iv.)
it
passes the
House
of
Commons
in the
That the
Bill
presented to the King for his assent shall
be in every material respect identical with the Bill sent up to the House of Lords in the first of the three successive sessions except in so far as it may .have been amended by or with the
consent of the House of Lords.
larly,
The history of the Government of Ireland Act, 1914, popuand throughout this Introduction generally, called the
affords
Home Rule Bill or Act,
good illustrations of the peculiar
procedure instituted by the Parhament Act. The Home Rule Bill was introduced into the House of Commons during the first of the three successive sessions on April 11, 1912
:
it
passed
its
second reading in the House of

;
Commons
during
May 9, 1912 it was rejected by the House of Lords either actually or constructively ^ in each of the three successive sessions. It could not then possibly have been presented to the King for his assent till June 9, 1914 it was not so presented to the King till September 18, 1914. On
that session on
;
that day, just before the actual prorogation of Parhament in
the third session,
it
received the royal assent without the

;
it thereby became the Government of Ireland Act, 1914. The Act as assented to by the Bang was in substance identical with the Bill sent up to the House of Lords in the first of the three sessions on January 16, 1913. But here we come across the difficulty of amending a Bill under the Parliament Act after it had once been sent up in the third session to the House of Lords. By Jime 1914 it was felt to be desirable to amend the Home Rule BiU in respect of the position of Ulster. On June 23 the Government brought into the House of Lords a Bill which should amend
consent of the House of Lords
Proviso. Under this enactment the House of Lords may of at least two years and one calendar month, and a powerful opposition in the House of Commons may lengthen this delay. ^ Constructive rejection arises under the Parliament Act, s. 2, sub-s. 3, which runs as follows : " Bill shall be deemed to be rejected by the " House of Lords if it is not passed by the House of Lords either without " amendment or with such amendments only as may be agreed to by both
*
S.
(1)
insist
upon a delay
" Houses."
House
of
Lords in
in the third
The Home Rule BUI was actually rejected by the vote of the its first and second session. It was constructively rejected session by the House of Lords simply by the House not passing
the Bill during such session.
Bill, and it is difficult an Act for amending a Bill not yet on the statute-book. The attempt to carry out the Government's proposal came to nothing. On September 18, 1914, the Home Rule Bill became the Home Rule Act (or technically the Government of Ireland Act, 1914) unamended, but on the very day on which the Home Rule Act was finally passed it was in efiect amended by a Suspensory Act under which the Government of Ireland Act, 1914, cannot come into force until at any rate twelve months from September 18, and possibly will not come into force until the present war has ended. The Suspensory Act evades or avoids the effect of the Parliament Act, but such escape from the effect of a recently passed statute suggests the necessity for some amend-
the
Home
Rule Act which was
still
to find a precedent for thus passing
by the Parhament Act. The House of Commons can without the consent of the House of Lords present to the King for his assent any Bill whatever which has comphed with the provisions of the Parliament Act, section 2, or rather which is certified by the Speaker of the House of Commons in the way provided by the Act to have compUed with the conditions of the Parhament
in the procedure created
(3)
ment
Act, section
2.
The simple truth is that the Parliament Act has given to the House of Commons, or, in plain language, to the majority thereof, the power of passing any Bill whatever, provided always that the conditions of the Parhament Act, section 2, are complied with. But these provisions do leave to the House
of Lords a suspensive veto which may prevent a Bill from becoming an Act of Parhament for a period of certainly more, and possibly a good deal more, than two years.
1 The Parliament Act leaves the existing rights and privileges of the House of Commons untouched (iiid. sect. 6). No reference whatever is
made to the so-called " veto " of the King. Its existence is undoubted, but the veto has not been exercised for at least two centuries. The well-known words of Burke, however, should always be borne in mind : The king's negative to bills," he says, " is one of the most indisputed of the " royal prerogatives ; and it extends to all cases whatsoever. I am far from certain, that if several laws which I know had fallen under the stroke " of that sceptre, the public would have had a very heavy loss. But it The exercise is not the propriety of the exercise which is in question. Its repose may be the preservation of its existitself is wisely forborne. enoe ; and its existence may be the means of saving the constitution
therein
'
'
'
'
INTRODUCTION
111
these circumstances
it is
arguable that the Parliament
Act has transformed the sovereignty of Parhament into the sovereignty of the King and the House of Commons. But the better opinion on the whole is that sovereignty still resides The grounds in the King and the two Houses of Parliament. for this opinion are, firstly, that the King and the two Houses acting together can most certainly enact or repeal any law
whatever without in any way contravening the Parhament Act and, secondly, that the House of Lords, while it cannot
;
prevent the House of
Commons from, in effect, passing imder the Parhament Act any change of the constitution, provided always that the requirements of the Parhament Act are
comphed
with, nevertheless can, as long as that
Act remains
in force, prohibit the passing of
any Act the
effectiveness of
which depends upon its being passed without delay. Hence, on the whole, the correct legal statement of the
actual condition of things
is
that sovereignty
still
resides
in Parhament, i.e. in the King and the two Houses acting together, but that the Parhament Act has greatly increased
the share of sovereignty possessed
by the House of Commons and has greatly diminished the share thereof belonging to the House of Lords.
II. Practical
change in the area of parliamentary sovereignty.
{Relation of the Imperial Parliament to the Dominions.'^)

"
itself,
tJie
on an occasion worthy of bringing

iii.,
it
forth."
Burke,
Letter to
Sheriffs of Bristol, vol.
Experience
has
ed. 1808, pp. 180, 181 ; ed. 1872, vol. ii. p. 28. confirmed the soundness of Burke's doctrine. The
existence of this " negative " has greatly facilitated the development of the present happy relation between England and her self-governing
that
It has enabled English and colonial statesmanship to create combination of Imperial unity with something coming near to colonial independence which may ultimately turn out to be the salvation of the British Empire. ^ For this use of the term Dominions see British Nationality & Status of Aliens Act, 1914, 4 & 5 Geo. V. o. 17, 1st Schedule. Compare especially as to British colonies with representative and responsible government pp. 98 to 116, post. The Dominions for the most part consist either of a country which was a self-governing colony, or of countries which were self-governing colonies in 1884. But this statement does not apply with perfect accuracy to every one of the Dominions. Western Australia, for instance, which is now one of the states of the Commonwealth of Australia, did not obtain responsible government till 1890, and Natal, now a state of the Union of South Africa, did not obtain such government till 1893. The Union of South Africa itself
colonies.
xxv
The term " Dominions " means and includes the Dominion of Canada, Newfomi.dland, the Commonwealth of AustraUa, New Zealand, and the Union of South Africa. Each of the
Dominions is a self-governing colony, i.e. a colony possessed both of a colonial Parliament, or representative legislature, and a responsible government, or in other words, of a govern-
ment responsible to such legislature. Our subject raises two questions

First question.
of the Imperial
^What
is
the difference between the relation
Parhament to a self-governing colony, such, Zealand, in 1884, and the relation of the same Parliament to the Dominion, e.g. of New Zealand, in 1914 1
e.g.,
as
New
Before attempting a direct answer to this inquiry

well to point out that in
it is
two respects of considerable importance the relation of the Imperial Parhament ^ to the selfgoverning colonies, whether called Dominions or not, has in no respect changed since 1884. In the first place, the Imperial Parhament still claims
in 1914, as it claimed in 1884, the possession of absolute
and which certainly extends to every Dominion, would be admitted as sound legal doctrine by any court throughout the Empire which purported to act under the authority
sovereignty throughout every part of the British Empire
this claim,
;
consists to a great extent of states which in 1884, though subject to the suzerainty of the King, were (under the government of the Boers) all but
independent countries.
Throughout this Introduction, unless the contrary is expressly stated, or appears from the context, no reference is made to the position either of (i.) the Crown colonies, or (ii.) the three colonies, viz. the Bahamas, Barbadoes, and Bermuda, which possess representative but not responsible This Introduction, in short, in so government, or (iii.) British India. far as it deals with the relation of the Imperial Parliament to the colonies, refers exclusively, or all but exclusively, to the relation between the Imperial
Parliament and the five Dominions. 1 This term means what an English writer on our constitution would generally call simply " Parliament," that is the Parliament of the United Kingdom. The term " Imperial Parliament " is, however, a convenient one when we have to deal, as in this Introduction, with the relation between the Parliament of the United Kingdom and the Dominions, every one of which has representative legislatures of their own which are always popularly, and sometimes in Acts of Parliament, termed Parliaments. The term " Imperial Parliament " is used in colonial statutes, e.g., in the Interpretation Act of the Commonwealth of Australia, No. 2
of 1901.
INTRODUCTION
of the King.
The
constitution indeed of a
Dominion
in
general originates in
of
the
Imperial
Parliament
and depends upon and these

;
an Act, or Acts,
constitutional
statutes are assuredly hable to be changed
by the Imperial
Parhament. Parhament, in the second place, had long before 1884 practically admitted the truth of the doctrine in vain pressed
upon
his contemporaries
folly of the
to exert as Middlesex, that a real limit to the exercise of sovereignty,
by Burke,^ when insisting upon the attempt made by the Parhament of England much absolute power in Massachusetts as in
is
imposed not by the laws of man but by the nature of things, and that it was vain for a parhamentary or any other sovereign to try to exert equal power throughout the whole of an immense Empire. The completeness of this admission is shown by one noteworthy fact: the Imperial Parhament in 1884, and long before 1884, had ceased to impose of its own authority and for the benefit of England any tax upon any British colony.^ The omnipotence, in short, of Parhament,
^ " Who are you," to quote his words, " that should fret and rage, and " bite the chains of nature ? Nothing worse happens to you, than does to " all nations who have extensive empire ; and it happens in all the forms into which empire can be thrown. In large bodies, the circulation of power must be less vigorous at the extremities. Nature has said it. The Turk cannot govern Egypt, and Arabia, and Curdistan, as he governs Thrace nor has he the same dominion in the Crimea and in Algiers which he has at Brusa and Smyrna. Despotism itself is obliged to truck and huckster. The Sultan gets such obedience as he can. He governs with a loose rein, that he may govern at all ; and the whole of the force and vigour of his authority in the centre is derived from a prudent relaxation in all his borders. Spain, in her provinces, is, perhaps, not so well- obeyed as you are in yours. She complies too ; she submits ; she watches times. This is the immutable condition, the eternal law, of extensive and detached empire." Burke, GoticiKation with America, vol. iii. (ed. 1808),
;
pp. 56, 57.

^ This renunciation by the Imperial Parliament of the right to impose taxes upon a colony, whether a self-governing colony or not, has passed through two stages. Since 1783 taxation imposed by an Imperial Act has always been, even in the case of a Crown colony, imposed for the benefit of the colony, and the proceeds thereof have been paid to the colony. But until the repeal of the Navigation Laws in 1849 Parliament, in support of our whole navigation system, retained the practice of imposing duties on goods imported into the colonies, though the proceeds thereof were paid to the colonies so taxed. Since 1849 no Imperial Act has been passed for the taxation of any colony, and no colony is compelled by the Imperial Parliament to contribute anything in the way of taxation towards the cost of the
though theoretically admitted, has been applied in its full effect only to the United Kingdom. A student may ask what is the good of insisting upon the absolute sovereignty of Parhament in relation to the Dominions when it is admitted that Parliament never gives, outside the United Kingdom, and probably never will give, full effect to this asserted and more or less fictitious omnipotence. The answer to this suggestion is that students who do not bear in
mind the claim
of Parliament to absolute sovereignty throughout the whole of the British Empire, will never imderstand the extent to which this sovereign power is on some occasions
Kingdom, though this statement sounds paradoxical, will they understand the limits which, with the full assent, no less of EngUsh than of colonial statesmen, are in fact, as regards at any rate the Dominions, imposed upon the actual exercise
actually exerted outside the hmits of the United
nor,
of
the theoretically hmitless authority of Parliament.

at times
It
will
be found further that even to the Dominions themselves

is
some advantage in the admitted authority Parhament to legislate for the whole Empire. In the eyes, at any rate, of thinkers who share the moral convictions prevalent in most civihsed states, it must seem a gain that the Imperial Parhament should have been able in 1834 to prohibit the existence of slavery in any country subject to the British Crown, and should be able to-day to forbid throughout the whole Empire the revival of the Slave
there
of the Imperial
Trade, or of judicial torture.
Let us now turn to the points wherein the relation of the Imperial Parhament to the self-governing colonies- in 1884 differed from the existing relation of the Imperial Parhament
to the
Dominions in 1914. The relation of the Imperial Parliament

e.g.
in 1884 to a self-
governing colony,
New
Zealand.
The Imperial Parhament, under the guidance of Enghsh statesmen, certainly admitted in practice thirty years ago that a self-governing colony, such as New Zealand, ought to
government Empire.
of
of the
United Kingdom or towards the defence
of the British
Isle
The Imperial Parliament does stUl impose customs duties upon the Man. See 3 & 4 Geo. V. o. 18.
INTRODUCTION
be allowed in local matters to legislate for
did, however, occasionally legislate for
other
self -
governing
colony.
Parliament Zealand or any Thus the existing English

itself.
New
Bankruptcy Act, 1883, as a matter of fact transferred, as it still transfers, to the trustee in bankruptcy the bankrupt's property, and even his immovable property situate in any part of the British Empire, ^ and a discharge under the EngUsh Bankruptcy Act, 1883, was, and stiH is, a discharge as regards the debts of the bankrupt contracted in any part of the British Empire,^ e.g. in New Zealand or in the Commonwealth of Australia. So again the veto of the Crown was, in one form or another * in 1884, and even later, used occasionally to prevent colonial legislation which, though approved of by the people of the colony and by the legislature thereof, might be opposed to the moral feeling or convictions of Enghshmen. Thus colonial Bills for legahsing the marriages between a man and his deceased wife's sister, or between a woman and her deceased husband's brother, were sometimes vetoed by the Crown, or in efEect on the advice of ministers supported by the Imperial Parhament. No doubt as time went on the unwilhngness of Enghsh statesmen to interfere, by means of the royal veto or otherwise, with colonial legislation which affected only the internal government of a self-governing colony, increased. But such interference was not unknown. There was further, in 1884, an appeal in every colony from the judgments of the Supreme Court thereof to the Enghsh Privy Council. And a British Government would in 1884 have felt itself at hberty to interfere with the executive
action of a colonial Cabinet when such action was inconsistent with Enghsh ideas of justice. It was also in 1884 a clear
principle of Enghsh administration that Enghsh colonists should neither directly nor indirectly take part in negotiating treaties with foreign powers. Nor had either England or the
self-governing colonies, thirty years ago, reahsed the general advantage of those conferences now becoming a regular part
1 "
See Dioey, Oonfiict of Laws {2nd

Ibid., p. 441,
;
ed.), pp.
329-333.
and
Ellis v.
M'Henry
etc.
236
'
but contrast
New
Zealand Loan,
(1871), L. R. 6, C. P. 228, 234Co. v. Morrison [1898], A. C. 349
cited Conflict of Laws, p. 342.
See pp. 111-116, post.
of English public
life,
at which English ministers
and
colonial
ministers could confer
upon questions
of colonial poHcy,
and
could thus practically acknowledge the interest of the colonies

in everjrfching which concerned the welfare of the whole Empire.
Neither certainly did Enghsh statesmen in 1884 contemplate the possibility 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.^ This relation may now, it is submitted, be roughly summed
up
in the following rules

RviXe
1.
În
regard to any matter which directly affects
Imperial interests the Imperial Parhament will (though with

constantly increasing caution) pass laws which apply to a
Dominion and otherwise

Dominion.
exercise sovereign
power in such a
which
But
directly
this rule applies almost exclusively to matters
and indubitably
iJwZe 2.
^Parhament
affect Imperial interests.^
does not concede to any Dominion
or to the legislature thereof the right

(a) to
repeal [except
by
virtue of an
Parhament] any Act to a Dominion

(6)
of the Imperial
Act of the Imperial Parhament applying
to
make
of its
own
authority a treaty with any foreign
power
(c)
to stand neutral in the event of a war between the

foreign power, or, in general, to receive
and any from a foreign power which
is not offered whole of the British Empire.^ the It must be noted that under these two rules the Imperial Parliament does retain, and sometimes exerts the right to legislate in regard to matters which may greatly concern the
King any benefit by such power to
prosperity of a Dominion, and also does in some respects seriously curtail both the legislative power of a Dominion
Parliament and the executive power of a Dominion Cabinet. As long, in short, as the present state of things continues,
" See as to meaning of Dominion, p. xxiv, note 1, aint. See Keith, Besponsible Government in the Dominions, p. 1316.
'
Ibid. pp. 1119-1122.
INTROD UCTION
the Imperial Parliament, to the extent I have laid down, still treats any Dominion as on matters of Imperial concern
subordinate to the sovereignty of the Imperial Parliament.
Parliament now admits and acts any one of the Dominions has moral right to as much independence, at any rate acquired a in regard to matters occurring within the territory of such Dominion, as can from the nature of things be conceded to
i?Mfe 3.
The Imperial
upon the admission, that
any country which still forms part of the British Empire. Take the following illustration of the extent of such internal
independence
legislate
ParKament does not (except at the wish of a Dominion) with respect to matters which merely concern the
internal interests of such Dominion, e.g.
New
Zealand.^
any Dominion has within the territorial hmits of such Dominion power to legislate in regard to any matter which solely concerns the internal interests of such The
legislature of
Dominion. The power of the Crown,

veto or disallow in any
of a
i.e.
of the British ministry, to

Bill
way ^ any
passed by the legislature
is now most sparingly hardly be used unless the Bill directly interferes with Imperial interests or is as regards the colonial legislature ultra vires. Thus the Crown, or in other words a
Dominion,
e.g.
New
Zealand,
exercised,
and
will
British ministry, will
by the
is
legislature of a
indirectly
veto or disallow any Bill passed Dominion on the ground that such Bill opposed to the interests of the United Kingdom,
now not
or contradicts legal principles generally upheld in England, e.g. the principle of free trade.
action of the
The British Government will not interfere with the executive Government {e.g. of New Zealand) in the giving or
the withholding of pardon for crime, in regard to transactions taking place wholly within the territory of New Zealand.^ Any Dominion has now a full and admitted right to raise
mihtary or naval forces for

of
England
'
is
in the
its own defence. And the pohcy main to withdraw the English Army from
^ '
See Keith, Responsible Oovernment in the Dominions, pp. 1316-1328. See p. Ill, post. See Keith, Responsible Oovernm^ni in the Dominions, p. 1583.
the DoEoinions and to encourage any Dominion to provide
for its
own
defence and to raise for
itself
a Navy, and thereby
contribute to the defensive power of the British Empire.
The Imperial Government is now ready at the wish of a Dominion to exclude from its constitution, either partially or wholly, the right of appeal from the decision of the Supreme Court of such Dominion to the Privy Council.^ The Imperial Government also is now ready at the wish of a Dominion to grant to such Dominion the power to amend by law the constitution thereof though created under an Act
Parhament.^ habit has now grown up that conferences should be held from time to time in England, at which shall be present the Premier of England and the Premier of each Dominion, for consultation and discussion on all matters concerning the interest and the poUcy of the Empire, and that such conferences should be from time to time held may now, it is submitted, be considered a moral right of each Dominion. These conferences, which were quite unthought of thirty years ago, and which did not receive their present form imtil the year 1907, mark in a very striking manner a gradual and therefore the more important change in the relations between
of the Imperial
iJwfe 4.
The
England and the self-governing colonies. The answer then to the question before us ^ as to the difierence between the relation of England (or in strictness of the Imperial ParUament) to the self-governing colonies * in 1884 and her relation to the Dominions in 1914 can thus be summed up At the former period England conceded to the self-governing colonies as much of independence as was necessary to give to such colonies the real management But EngHsh statesmen in their internal or local affairs.
:
at that date did intend to retain for the Imperial Parliament, and the Imperial Government as representing such
'
See Commonwealth of Australia Constitution,

s.
s.
74
South Africa Act.
1909,
2
106.
See especially South Africa Act, 1909, b. 106. See first question, p. xxv, ante,. * The difference between the expression " self-governing colonies " and " Dominions " is worth noticing. The first is appropriate to 1884, the second is appropriate to 1914.
INTROD UCTIOJV
Parliament, a real and efiective control over the action of
the ministry and the legislature
of
each
self-governing
colony in so far as that control was not palpably inconsistent with independence as regards the management of
strictly local afiairs.
is
to grant to every
In 1914 the colonial poHcy of England Dominion absolute, unfettered, complete,
local
autonomy,^ in so far as such perfect self-government
by a Dominion does not clearly interfere with loyalty of the Dominion to the Empire. The two relations of England to the self-governing colonies now called Dominions are, it may be objected, simply one and the same relation described in somewhat different language. The objection is plausible, but not soimd. My effort has been to describe two different ways of looking at one and the same relation, and the results
of this difference of
view are of practical consequence. In was admitted, as it is to-day, that the self-governing colonies must have rights of self-government. But in 1884 the exercise of self-government on the part of any colony was
1884
it
regarded as subordinate to real control by the Enghsh Parlia-
ment and Crown of colonial legislation which might be opposed to Enghsh interests or to Enghsh ideals of poHtical prudence. In 1914 the self-government, e.g., of New Zealand means
autonomy, without considting Enghsh ideas of expediency or even of moral duty. The one hmit to this complete independence in regard to local government is that it is confined to reaUy local matters and does not trench upon loyalty to the Empire. The independence of the Dominion, in short, means nowadays as much of independence as is compatible with each Dominion remainabsolute, imfettered, complete
ing part of the Empire.

Second, question.
^What are the
changes of opinion which
have led
up to the
?
altered relation between
England and the
Dominions
" In the early Victorian era [and even in the naidVictorian " era] there were two rough-and-ready solutions for what
" was regarded, with some impatience, by the British

*
states-
See Minutes of Proceedings of Imperial Conference, 1911 rCd. 57461 ' "' See
p. 22.
^
Law and
Opinion, pp. 450-457.
'
men
of that
day
'
centralisation
as the
'
Colonial problem.'
is,
The one was
^the
government, that
except in relatively
'
trivial matters,
of all the outlying parts of the
'
from an
of,
office in
'
integration
Downing
'
Street.
Empire The other was dis'
^the
acquiescence in, perhaps the encouragement

hivings off
'
a process of successive
by which, without
'
the hazards or embitterments of coercion, each community,

as
of the
'
'
'
'
grew to pohtical manhood, would follow the example American Colonies, and start an independent and sovereign existence of its own. After 70 years' experience of Imperial eivolution, it may be said with confidence that
it
neither of these theories

to-day, either at
commands the
faintest support
home
or in any part of our self-governing
'
'
'
'
'
'
We were saved from their adoption some people would say by the favour of Providence or (to adopt a more flattering hypothesis) by the poHtical instinct of our race. And just in proportion as centraUsation was seen to be increasingly absurd, so has disintegration been felt to be increasingly impossible. Whether in the United Kingdom, or in any one of the great communities which you represent, we each of us are, and we each of us intend to
Empire.
'
remain, master in our
own
household.
This
is,
here at
home and throughout the Dominions, the hfe-blood of our ^ ' It is the a/rticulus stantis aut cadentis Imperii." polity. are a true statement of patent facts, but it These words will on examination be found that the change during recent years in EngUsh opinion, and also in colonial opinion, with
'
regard to the relation between England and the Dominions presents rather more complexity than at first sight may be apparent^ to a casual reader of Mr. Asquith's address. Up
to the last quarter of the nineteenth century, and even as late as 1884, many EngHshmen, including a considerable number of our older statesmen, held that the solution of the colonial problem was to be found wholly in the wilUngness of England to permit
1
and even to promote the separation from the Empire
Minutes of Proceedings of the Imperial Conference, 1911 [Cd. 5745]. Opening address of the President (Mr. Asquith), p. 22. Compare " Message of King to Governments and Peoples of the Self-governing Dominions,"
Times, Sept.
"
1-0,
1914.
Compare Dicey, Law and Opinion,
pp. 450-457.
INTROD UCTION
of any self-governing colony which desired independence, provided that this separation should take place without engendering any bad feeUng between England and her socalled dependencies. No doubt there existed, at any rate
<
till
of experienced officials
the middle of the nineteenth century, a limited body who held that our colonial system,
it
was maintained, imphed the active control But such men in many cases doubted whether the maintenance of the Colonial Empire was of real benefit to England, and thought that on the whole, with respect at any rate to any self-governing colony, the course of prudence was to leave things alone until it should have become manifest to every one that the hour for friendly separation had struck. The self-governing colonies, on the other hand, up at any rate till 1884, just because they were more and more left alone and free to manage their own affairs, though they occasionally resented the interference of the Enghsh Government with colonial legislation, were on the whole contented with things as they stood. They certainly did not display any marked desire to secede from the Empire. Still less, however, did they show any active wish to take part in controlKng the poKcy of the Empire, or to share the cost of Imperial defence. Honest behef in the principle of laissezfaire produced its natural and, as far as it went, beneficial result. It removed causes of discontent it prevented the rise of ill-will between England and her self-governing colonies. But it did not of itself produce any kind of Imperial patriotism. The change which a student has to note is an alteration of feeling, which did not become
as long as
by England
of colonial affairs.
very obvious
till near the close of the nineteenth century. This was the growth (to use a current expression) of Imperialism.
But
this term,
Hke
all
popular phrases,
is
from
its
very vague-
ness certain to mislead those
who
use
it,
unless its
meaning
In regard to the British Empire it ought to be used as a term neither of praise nor of blame, but as the name for an idea which, in so far as it is true, is
of considerable importance.
be defined with some care.
This idea
is
that the British
Empire is an institution well worth maintaining, and this not on mere grounds of sentiment but for definite and assign-
able reasons.
to the
Upon England and upon

of
:
every country subject
King
two
benefits
England the British Empire confers at least It secures permanent peace among the in;
habitants of the largest of existing states

or ought to secure, to the whole of this vast
protection against foreign attack.
are, it is felt, practically inexhaustible
fleet
it
again secures,
community absolute The resources of the Empire
the creation of a ; supported by revenues and also by armies drawn from every country subject to the King of England should, provided
England herself stands properly armed, render invasion of the British Empire by any of the great military powers of Europe an impossibility. But then the hugeness of the Empire and the strength of the Empire, if it remains united, are enough to show that the different countries which are parts of the Imperial system would, if they each stood alone, be easily assailable by any state or combination of states which had the command of large military and naval armaments. Neither England, in short, nor any of her self-governing Dominions can fail to see that the dissolution of the Empire might take from both the mother country and the most powerful of the Dominions the means necessary for maintaining liberty and independence.
short a sentiment developed
Loyalty to the Empire, typified by loyalty to the King, is in by the whole course of recent
history. It is a feehng or conviction which places the relation of
England and the Dominions in a new light. It amply accovmts poHcy accepted both by England and by the self-governing colonies in 1850, and even (to a great extent) in 1884, and the colonial pohcy acceptable both to England and to her all but independent Dominions in 1914. English statesmen on the one hand now proffer to, and almost force upon, each Dominion every Uberty compatible with the maintenance of the Empire but then Enghsh statesmen no longer regard with philosophie calm the dawn of the day when any one of the Dominions may The Dominions, on th^ desire to secede from the Empire. Qther hand, have no longer any reason to fear and do not desire any interference with colonial affairs either by the Jegislation of the Imperial Parliament or by the administrative
for the extraordinary difference" between the colonial
gjCtipn of officia,ls
a,t
Downing Street whp are the servants of tb^
INTRODUCTION
Imperial Parliament.
But then statesmen
of the
Dominions
show a
vidlhngness to share the cost of the defence of the
Conferences, with
Empire, and at the same time express at each of the great more and more plainness, the desire that
the Dominions should take a
more active part

It is not
in the deter-
mination of Imperial pohcy.
my
object, at
any
rate at this part of this Introduction, to consider
how
far it
be possible to give satisfaction to the desires of rational and still less ought any man of sense to express any confident opinion as to how far the sentiment of ImperiaHsm may in the course of time increase in force or suffer
Imperiahsts,
may
diminution.
My
is
immediate aim
is
to
show that
this
new
Imperialism
It
is well,
the natural result of historical circumstances.
however, to bear in mind several considerations
which Enghshmen of to-day are apt to overlook. The friendly Imperiahsm which finds expression in the Imperial
Conferences
laissezfaire.
first
is itself
the admirable fruit of the old policy of
of leaving the self-governing colonies appeased discontent, and next allowed the growth of friendhness which has made it possible for the English inhabitants, and even in some cases the foreign inhabitants,
The system
alone
Dominions to recognise the benefits which the Empire upon the Dominions, and for Enghshmen at home to see that the Dominions may contribute to the safety of England and to the prosperity of the whole Empire.^ But we must at the same time recognise that the pohcy of friendly indifference to secession from the Empire, which nominally, at any rate, was favoured by many Enghsh statesmen during
of the
confers
the nineteenth century, has come to an end. The war iu South Africa was in reahty a war waged not only by England but also by the Dominions to prevent secession; the concession
Union of the full rights of a Dominion is no more inconsistent with resistance to secession than was the restoration to the Southern States of the American
further to the South African
Commonwealth
of their full right to existence as States of
the United States.
It must, lastly, be noted, that while the
inhabitants of England
and of the Dominions express at each Conference their honest pleasure in Imperial unity, the growth
1
Aa they now [1914] are contributing.
RULE OF LAW
many patriotic men one Events suggest that it may turn out difficult, or even impossible, to establish throughout the Empire that equal citizenship of all British subjects which exists in the United Kingdom and which Enghshmen in the middle of the nineteenth century hoped to see estabUshed throughout the length and breadth of the Empire.^
of Imperialism already causes to
disappointment.
(B)
The Eule of Law^
The rule of law, as described in this treatise, remains to day a distinctive characteristic of the Enghsh constitution. In England no man can be made to suffer punishment or to pay damages for any conduct not definitely forbidden by law every man's legal rights or habihties are almost invariably determined by the ordinary Courts of the realm, and each man's individual rights are far less the result of our constitution than the basis on which that constitution is
this
;
founded.
The
rule of
principles laid
down
in this treatise with regard to the

droit administrabif
is
law and to the nature of
change.
My
object in this Introduction
first
need Httle to note a
^ The kind of equality among British subjects which Englishmen, whether wisely or not, hoped to establish throughout the whole Empire is best seen by considering the sort of equality which actually exists and has for many years existed in England. Speaking broadly, every British subject has in England at the present day the same political rights as every naturalborn Englishman, e.g. an Englishman bom in England and the son of English parents settled in England. Thus a British subject, whatever be the place of his birth, or the race to which he belongs, or I may now add the religion which he professes, has, with the rarest possible exceptions, the same right to settle or to trade in England which is possessed by a natural-born Englishman. He has further exactly the same political rights. He can, if ho satisfies the requirements of the Enghsh electoral law, vote for a member of Parliament ; he can, if he commends himself to an English constituency, take his seat as a member of Parliament. There is no law which forbids any British subject, wherever he be born, or to whatever race he belongs, Of course to become a member of the English Cabinet or a Prime Minister. it will be said that it is^xtremely improbable that the offices I have mentioned will, in fact, be filled by men who are not in reahty Englishmen by race. This remark to a certain extent is true, though it is not wholly true. But the possession of theoretically equal political rights does certainly give in England, or rather to be strictly accurate in the United Kingdom, to every British subject an equality which some British subjects do not possess
in
some
2
of the Dominions. See Part II., and especially Chap. IV., post
INTRODUCTION'
singular decline
among modern Englishmen
in their respect or
reverence for the rule of law, and secondly, to call attention to certain changes in the droit administratif of France.^
The ancient I. Decline in reverence for rule of law. veneration for the rule of law has in England suffered during the last thirty years a marked decline. The truth of this
assertion is proved
by
actual legislation,
by the
existence
both of the law and of the judges, and by a marked tendency towards the use of lawless methods for the attainment of social or political
among some
classes of a certain distrust
ends.
Legislation.
Recent
Acts have given judicial or quasi-
judicial authority to officials ^
who stand more
or less in
connection with, and therefore
may
be influenced by, the
government of the day, and hence have in some cases excluded, and in others indirectly diminished, the authority of the law Courts. This tendency to diminish the sphere of the ride of law is shown, for instance, in the judicial powers conferred upon the Education Commissioners by the Education Act, 1902,^ on various officials by the National Insurance Acts, 1911 and 1913,* and on the Commissioners of Inland Revenue and other officials by the Mnance Act, 1910.^
It
is
also
shown by the Parhament Act, 1911,

certificate of the
s.
3,
Speaker of the " House of Commons given imder this Act shall be con" elusive for all purposes and shall not be questioned in any " Court of law." This enactment, if strictly construed, would protect any Speaker who, either from partisanship or to promote some personal interest of his own, signed a certificate which was notoriously false from being hable to punishment
which enacts that " any
by any Court
1
of
law whatever.^
No doubt
the House of
See Chap. XII. post. See generally on this point Muir, Peers and Bureaucrats, especially ' pp 1-94. ^ See sect. 7, and R. v. Board of Education (Swansea Case) [1910], \6T ; Board of Educaiiomr. Rice [19U], A. C.17Q. * See National Insurance Act, 1911, ss. 66, 67, 88 (1), and generally Law and Opinion (2nd ed.), pp. 41-43. See especially sect. 2, sub-s. 3, ss. 33 and 96. " Would this enactment protect the Speaker against an impeachment for giving a certificate which he knew to be false ?
2
2KB
RULE OF LA W
Commons
has been historically jealous of any judicial inter-
ference with persons actiag under the authority of the House,
and has on more than one occasion claimed
ia a sense to be above the law of the land. All that can be said is that such claims have rarely been of advantage or credit to the House, and that the present time is hardly the proper season for the
curtailment
rule of
by the House
of legitimate judicial power.
It
must, however, in fairness be noted that the invasion of the

in part, to the
law by imposing judicial functions upon officials is due, whole current of legislative opinion in favour
of extending the sphere of the State's authority.
The
in-
evitable result of thus
immensely increasing the duties of the Government is that State officials must more and more undertake to manage a mass of public business, e.g., to give one example only, the pubhc education of the majority of the citizens. But Courts are from the nature of things imsuited for the transaction of business. The primary duty of a judge is to act in accordance with the strict rules of law. He must shun,
The well-worn all things, any injustice to individuals. and often absurdly misapplied adage that "it is better that
above
" ten criminals should escape conviction than that one innocent " man should without cause be found guilty of crime " does
remind us that the first duty of a judge is not to punish crime but to punish it without doing injustice. A man of business, whether employed by a private firm or working in a public office, must make it his main object to see that the business in which he is concerned is efficiently carried out. He could not do this if tied down by the rules which rightly check the action of a judge. The official must act on evidence which, though strong, may not be at all conclusive. The
after all
must often act with severity towards subordinates whose stupidity, and not their voluntary wrong-doing, gives cause for dismissal. A judge, on the other hand, is far more concerned with seeing that the law is strictly carried out than in showing consideration to individuals. " That hard cases make
official
is
the transaction of business, in short, is proverbial a very different thing from the giving of judgments The more multifarious therefore become the affairs handed over to
; :
bad law "
the
management
of civil servants the greater will be always
xl
INTRODUCTION
the temptation, and often the necessity, extending to the discretionary powers given to officials, and thus preventing
law Coiirts from intervening in matters not suited for legal

decision.
and of Courts.li the House of Commons deliberately excludes the intervention of any law Court in matters which the House may deem (with very dubious truth) to concern the House alone, we can scarcely wonder that In plain artisans should have no love for judicial decisions.
Distrust of Judges
truth, while every
man
of at all respectable instincts desires
what he
and for the class to which something more than, and he belongs, almost all men desire different from, justice for themselves and against their neighbours. This is inevitably the case with persons such as the
considers justice for himself
members
of trade
unions,
who
are
trying, with
a good
deal of success, to enforce trade rules which often arouse
the censuje of the pubhc, and sometimes

conffict
come
into absolute
with the law of the land. The blackleg may be, and one may suspect often is, a mean fellow who, to put money into his own pocket, breaks rules which his fellow-workers hold to be just and beneficial to the trade generally. He, for example, has no objection, if properly paid for it, to work with men who are not members of any union. The blackleg, however, all but invariably keeps within the law of the land, and proposes to do nothing which violates any principle established by common law or any enactment to be found in the
Statute Book.
The trade
;
unionists
whom
he offends know
perfectly well that the blackleg is in the eye of the
law no wrong-doer they therefore feel that the Courts are his protectors, and that, somehow or other, trade unions must be protected against the intervention of the judges. Hence
the invention of that self-contradictory idea of " peaceful
is no more capable of real existence than would be " peaceful war " or " unoppressive oppression"; hence, too, that triumph of legahsed wrong-doing sanctioned by the fouucth section of the Trade Disputes Act,^ 1906. It is however by no means to be supposed that artisans are the
picketing," which
See
Law and
Opinion, pp. xliv-xlvi, and compare the Trade Union

xlviii.
Act, 1913, ibid. p.
RULE OF LAW
xli
only class accustomed to decry a judge or the legislature when the one gives a judgment or the other passes a law opposed
to the moral convictions of a particular part of the community.
Lawlessness. Till a time well within the memory of persons now living, it would have been very difficult to find any body of men or women who did not admit that, broadly speaking,
a breach of the law of the land was also an act of immorahty. No doubt at all times there have existed, as at the present day, a large number of habitual law-breakers, but though a cheat, a pickpocket, or a burglar does constantly break the law, there no reason to surmise that cheats, pickpockets, or burglars maintain the doctrine that law-breaking is itself a praiseis
worthy or a moral act. Within the last thirty years, however, grown up in England, and indeed in many other civiHsed countries, a new doctrine as to lawlessness. This novel phenomenon, which perplexes morahsts and statesmen,
there has
is
that large classes of otherwise respectable persons
now
hold
the belief and act on the conviction that it is not only allowable,
but even highly praiseworthy, to break the law of the land if the law-breaker is pursuing some end which to him or to her seems to be just and desirable. This view is not confined to
any one
class.
Many
of the
EngHsh
clergy (a class of
men
well entitled to respect) have themselves shown no great hesitation in thwarting and breaking laws which they held
Passive resisters do not scruple to resist taxes imposed for some object which they Conscientious objectors are doing a good deal condemn. The mihtant to render ineffective the vaccination laws.
to be opposed to the law of the Church.
suffragettes glorify lawlessness
justifies
;
the nobleness of their aim

to obtain votes for
?
in their eyes
the hopeless and perverse illegahty
of the
means by which they hope
Whence
arises this zeal for lawlessness
women. The following
reflections afford
an answer, though only a

:
partial answer,
to this perplexing inquiry
In England democratic government has already given votes, not precisely supreme power, to citizens who, partly because of the fairness and the regularity with which the law has been enforced for generations in Great Britain, hardly perceive the
if
risk
and ruin involved in a departure from the
rule of law.
xlii
INTRODUCTION
Democratic sentiment, fuither, if not democratic principle, demands that law should on the whole correspond with public opinion but when a large body of citizens not only are opposed to some law but question the moral right of the state to impose or maintain a given law, our honest democrat feels deeply perplexed how to act. He does not know in effect how to deal with lawlessness which is based upon a funda;
mental difference of pubhc opinion.^
For such difference
makes
it
impossible that on a given topic the law should
be in reahty in accordance with pubhc opinion. Thus many Englishmen have long felt a moral difficulty in resisting the claim of a nationahty to become an independent nation, even though the concession of such a demand may threaten the ruin of a powerful state and be opposed to the wishes of the majority of the citizens thereof. So the undoubted fact that a large number of Enghshwomen desire parhamentary
votes seems, in the eyes of
many excellent
persons, to give to
Englishwomen a natural right to vote for members of Parhament. In each instance, and in many other cases which will occur to any intelHgent reader, Enghsh democrats entertain a considerable difficulty in opposing claims with which they might possibly on groimds of expediency or of common sense have no particular sympathy. The perplexity of such men arises from the idea that, at any rate under a democratic government, any law is unjust which is opposed to the real or dehberate conviction of a large number of citizens. But such a conviction is almost certain to beget, on the part of persons suffering under what they deem to be an unjust law, the beUef delusive though it often is, that any kind of injustice may under a democratic government be rightly opposed by the use of force. The time has come when the fact ought to be generally admitted that the amountof government, that is of coercion, of individuals or classes by the state, which is necessary to the
welfare or even to the existence of a civiUsed communitv,
cannot permanently co-exist with the effective behef that deference to pubhc opinion is in all cases the sole or the necessary basis of a democracy. The justification of lawlessness is also,
in
England at any
1
rate, suggested
if
not caused by the misdeiii.
See especially Lowell, Public Opinion and Popular Government, chap.
RULE OF LAW
xliii
velopment of party government. The rule of a party cannot be permanently identified with the authority of the nation or with the dictates of patriotism. This fact has in recent days become so patent that eminent thinkers are to be found who certainly use language which implies that the authority or the sovereignty of the nation, or even the conception of the national will, is a sort of pohtical or metaphysical fiction which wise men will do weU to discard. Happily, crises arise from time to time in the history of any great state when, because national existence or national independence is at stake, the mass of a whole people feel that the authority of the nation To these is the one patent and the one certain poUtical fact. causes of lawlessness honesty compels the addition of one cause which loyal citizens are most anxious not to bring into prominence. No sensible man can refuse to admit that crises occasionally, though very rarely, arise when armed rebellion against unjust and oppressive laws may be morally justifiable. This admission must certainly be made by any reasoner who sympathises with the principles inherited by modern Liberals from the "Whigs of 1688. But this concession is often misconstrued it is taken sometimes to mean that no man ought to be blamed or punished for rebellion if only he believes that he suffers from injustice and is not pursuing any private interest of his own. II. Gomfarison between the present official law of England
;
and
thirty years,
The last which have elapsed since the beginning of the twentieth century, show a very noticeable though comparatively shght approximation towards one another of what may be called the
the present droit
administratif of France.^
and
especially the fourteen years
law of England and the droit administratif of France. The extension given in the England of to-day to the duties and to the authority of state officials, or the growth,
official
an able writer, one would naturally expect, produced in the law governing our bureaucrats some features which faintly recall
of our bureaucracy,^ to use the expression of has, as
1
See Chap. XII., especially pp. 364-401, post

Muir, Peers and Bureaucrats.
Law and
Opinion, pp.
xxxii-liii.
^
xliv
INTRODUCTION
of tte characteristics
the droit administratif of France. Our civil servants, indeed, are as yet not in any serious degree put beyond the control of the law Courts,
some
wHch mark
but in certain instances, and notably vsdth regard to
many
questions arising under the National Insurance Act, 1911,
something very hke judicial powers have been given to officials closely connected with the Government.^ And it may not be an exaggeration to say that in some directions the law of England is being " officialised," if the expression may be
allowed,
ideas.
by
is
statutes passed under the influence of socialistic
It
is
France
even more certain that the droit administratif of year by year becoming more and more judicialised.
d'Etat, or, as
The Conseil
we might term
it,
the Council,
is
seventh edition of this work will know) the great administrative Court of France, and the whole
(as all readers of
my
between the judicial Courts and the Council still it has depended now for many years, upon the constitution of the Conflict Court,^ which contains members drawn in equal numbers from the Council of State and from the Court of Cassation. It would be idle to suppose that the decisions of the Council itself when deahng with questions of administrative law do not now very nearly approach to, if indeed they are not in strictness, judicial decisions. The Council, at any rate when acting in a judicial character, cannot now be presided over by the Minister of Justice who is a member of the Cabinet.* StiU it would be a grave mistake if the recognition of the growth of official law in England and the gradual judiciahsation of the Council as an administrative tribunal led any Enghshman to suppose that there exists in England as yet any true administrative tribunals or any real administrative law. No doubt the utmost care has been taken in France * to give high authority to the Council as an administrative tribunal and also to the Conffict Court. Still
relation
depends, as
^ 2
See
As
Law and Opinion, pp. xxxix-xliii. to the constitution of this Court see p. 360
and Appendix, Note XI.
p. 555, post.
"
See Poinoar^,
How
France
is
Governed, Trans. B. Miall. (T. Fisher

e.g.
Unwin, 1913),
*
p. 272.
Germany, been
Administrative law has in some other continental countries, far less judicialised tlian in France.
in
RULE OF LAW
the
xlv
members of the Coimcil do not hold their position by anything hke as certain a tenure as do the judges of the High Court in England, or as do the judges (if we may use Enghsh expressions) of the French common law Courts. A member of the Council is very rarely dismissed, but he still is dismissible.
It
must be noted further that the Minister
of
Justice
is still
the legal President of the Conflict Court, though
he does not generally preside over it. When, however, the members of the Conflict Court are equally divided as to the decision of any case, the Minister of Justice does preside and
It is indeed said that such a case, which must almost necessarily be a diflicult and probably an important one, is in truth again heard before the Minister A foreigner without of Justice and in effect is decided by him. practical acquaintance with the French legal system would be rash indeed were he to form or express an assured opinion as to the extent to which the decisions of the Council or the Conflict Court are practically independent of the wishes
give his casting vote.
and the opinions of the Ministry of the day. Hesitation by a foreign critic is the more becomings because it is certain, that Frenchmen equally competent to form an opinion would differ in their answer to the inquiry, whether the Council and the Conflict Court ought to be still more completely judicialised. The constitution of the Council of State and of the Consuggest to a foreign critic that while neither of these bodies may be greatly influenced by the Ministry of the day, they are more hkely to represent official or governmental opinion than are any of our English tribunals. It
flict
Coiirt
may
must further always be remembered that under the French

Eepubhc, as under every French government, a kind of authority attaches to the Government and to the whole
body
of officials in the service of the state (fonctionTMvres)
such as is hardly possessed by the servants of the Crown in England,^ and especially that proceedings for the enforcement of the criminal law are in France wholly under the control
Note, for instance, the absence of any law like the Habeas Corpus Act still left to the police under the head of the regime, de police ; Duguit, Traile de Droit Oonstitutionnel, ii. pp. 24-26, 33-45, and also the protection still extended in some instances to officials
^
and the wide and arbitrary powers
acting under the orders of their superior.
xlvi
INTRODUCTION
Government.
of the
it
The high repute
of the Council and, as
seems to a foreigner, the popularity of administrative law, is apparently shown by the success with which the Council has of recent years extended the doctrine that the state ought to compensate persons who suffer damage not only from the
errors or faults, e.g. neghgence, of officials, in
but also for cases
which the law is so carried out that

iadividuals, that is
it inflicts special
is
damage
is
upon
damage beyond what
borne by
seen
their neighbours.^
The authority again
of the Council
any which is not justified by law will, on its illegality being proved, be declared a nullity by the Council. It ought to be noted that this extension of the hability of the state must, it would seem, in practice be a new protection
in the wide extension it has given to the principle that
act done
by an
official
for if the state admits its own liability to pay ; compensation for damage suffered by individuals through the conduct of the state's servants, this admission must induce persons who have suffered wrong to forego any remedy which they may have possessed against, say, a postman or a poHceman, for officials
and enfotce their claim not against the immediate wrong-doer but against the state itself.
personally,
One singular fact closely connected with the influence in France of diiroil ctdministratif deseTves the notice of EngHshmen. In the treatises on the constitutional law of France produced by writers entitled to high respect will be found the advocacy of a new form of decentralisation termed decentralisation par service,^ which seems to mean the giving to diSerent departments of civil servants a certain kind of independence, e.g.
leaving the administration of the Post Office to the body of pubhc servants responsible for the management of
the
postal
system.
to supervision
by the
This body would, subject of course state, manage the office in accordas
ance with their
own knowledge and judgment; would,
far as I understand the proposal,
be allowed to share in the gains affected by good management; and would, out of the revenue of the Post Office, make good the compensation due to persons who suffered by the neghgence or
* ^ See pp. 393-396, post. Duguit, Traite de Droit Constitutionnel,
..
pp. 460-467^
RULE OF LAW
xlvii
misconduct of the officials. On the other hand, the officials would, because they were servants of the state who had undertaken certain duties to the state, be forbidden either
to organise a strike or in
any way to interrupt the working

difficult to see
of
the Post Office.
It
is
a Uttle
why this
proposal
should be called " decentraUsation," for that term has hitherto
borne a very different meaning. To an Englishman the course of proceeding proposed is extremely perplexing it however is from one or two points of view instructive. This
;
so-called decentralisation looks as
if it were a revival under a new shape of the traditional French belief in the merit This reappearance of an ancient creed of administration. possibly shows that French thinkers who have lost all enthusiasm for parhamentary government look for great benefits to France from opening there a new sphere for administrative
capacity.
It certainly
shows that Frenchmen of intelKgence

is it
are turning their thoughts towards a question which perplexes
the thinkers or legislators of other countries. How far possible for officials, e.g. railway servants and others
who
rmdertake duties
on the due performance of which the prosperity of a country depends, to be allowed to cease working whenever by so doing they see the possibiHty of obtaining a My readers may think that rise in the wages paid them ? this examination into the recent development of French iroit administratif digresses too far from the subject which
we have
gests
in hand.
This criticism
6/roit
is, it is
submitted, unsound,
for the present condition of
administratif in France sugstrictly
more than one
reflection
which is
germane to our
subject.
It shows that the shghtly increasing likeness bedroit administratif

droit administratif
tween the official law of England and the of France must not conceal the fact that
stiU contains ideas foreign to
to the rule of law,
Enghsh convictions with regard and especially with regard to the supremacy
It shows also the possible appearance in France of new ideas, such as the conception of the so-called decentralisation par service which are hardly reconcilable with the rule of law as understood in England. It shows
of the ordinary law Courts.
further that the circumstances of the day have already forced upon France, as they are forcing upon England, a question
xlviii
INTRODUCTION
to which. Englishmen have not yet found a satisfactory reply,
who have undertaken on the due fulfilment of which the prosperity of the whole country depends, can be allowed to use the position which they occupy for the purpose of obtaining by a strike or by active political agitation concessions from and at the expense of the state. Nor when once this sort of
namely,
how
far civil servants or others
to perform services
'
question
is
raised
is it
possible absolutely to reject the idea
that England might gain something

the experience of France.
by way
of
example from
Is it certain that the increasing
power
official
of civil servants, or, to use Mr. Muir's expression, of
" bureaucrats,"
law
may not be properly met by the extension of France has with undoubted wisdom more or
her highest administrative tribunal, and
less judicialised
it
made
Government of the day. It is at least conceivable that modern England would be benefited by the extension of official law. Nor is it quite
to a great extent independent of the
certain that the ordinary law Courts are in all cases the best
body
for adjudicating
upon the
ofEences or the errors of civil
servants.
It
may require consideration whether some body of
men who combined official experience with legal knowledge and who were entirely independent of the Government of the
day, might not enforce official law with more effectiveness than any Division of the High Court.
(C)
The Conventions of the Constitution
be
Three different points deserve consideration. They may summed up under the following questions and the answers
:
thereto
there been during the last thirty years notable changes in the conventions of the constitution ?
lirst question.
^Have
Answer.
place
;
Important alterations have most certainly taken these may, for the most part, be brought under two
different heads
which for the sake of clearness should be

first,
distinguished from each other, namely,
new
rules or
customs which
still
^
^
continue
to
be
mere
constitutional
Consider the Official Secrets Acts. See Chaps. XIV. and XV. post.
CONVENTIONS OF CONSTITUTION
xlix
ings
understandings or conventions, and, secondly, understandor conventions which have since 1884 either been
converted into laws or are closely connected with changes of law.^ These may appropriately be termed " enacted
conventions."
As to mere conventions. These have arisen, without any change in the law of the land, because they meet the wants Examples of such acknowledged underof a new time. standings are not hard to discover. In 1868 a Conservative
Ministry in office sujEEered an undoubted defeat at a general
election.
for
Mr. DisraeU at once resigned office without waiting even the meeting of ParUament. The same course was pursued by Mr. Gladstone, then Prime Minister, in 1874, and
again, in his turn,
by DisraeH (then Lord Beaconsfield) in and by Gladstone in 1886. These resignations, following as they each did on the result of a general election, distinctly reversed the leading precedent set by Peel in 1834. The Conservative Ministry of which he was the head, though
1880,
admittedly defeated in the general election, did not resign
they suffered actual defeat in the newly-elected House of It may be added, that on the particular occasion the Conservatives gained both influence and prestige by the ability with which Peel, though in a minority, resisted in ParHament the attempt to compel his resignation from office
until
Commons.
parHamentary battle he was able to bring home to the electors the knowledge that the Conservative minority, though defeated at the election, had gained thereby a great Peel also was able to show that accession of strength. while he and his followers were prepared to resist any further
for during this
changes in the constitution, they fully accepted the Eeform Act of 1832, and, while utterly rejecting a poHcy of reaction, were ready to give the country the benefits of enhghtened
administration.
The new convention, which

it,
all
but compels
is,
a Ministry defeated at a general election to resign office,
on the face of
^
an acknowledgment that the electorate

It also
p.
li,
constitutes pohtically the true sovereign power.^

See especially the indirect effects of
the
post.
Parliament Act,
2 See as to the possible distinction between "legal" and "political" sovereignty, pp. 70-73, post.
INTROD UCTION
a general election into a decision that a particular party shall hold office for the duration of the newly-elected Parhament and, in some instances, into the
tends to convert
a particular statesman as Prime Minister for that period.^ This new convention is the sign of many minor poUtical or constitutional changes, such, for example, as the introduction of the habit, quite unknown not only to statesmen
election of
removed from us as Pitt, but to Peel, to Lord John Russell, or to Lord Palmerston, of constantly addressing,
as far
not only when out of office but also when in office, speeches to some body of electors and hence to the whole
country.
Another change in poUtical habits or conventions unconnected with any legal innovation or alteration has received
little
attention because of its gradual growth
and
its
of its
vagueness, but yet deserves notice on account of
inherent
It is now the estabhshed habit of any reigning king or queen to share and give expression to the moral feehngs of British subjects. This expression of the desire
importance.
on the part of EngUsh royalty to be in sympathy with the humane, the generous, and the patriotic feelings of the British people is a matter of recent growth. It may fairly be attributed to Queen Victoria as an original and a noble contribution towards national and Imperial statesmanship. This royal expression of sympathetic feehng, though not unknown to, was rarely practised by George III. or the sons who succeeded him on the throne.^ It belongs to, but has
survived, the Victorian age.
It has indeed received since the death of Victoria a wider extension than was possible during a great part of her long reign. On such a matter vagueness of statement is the best mode of enforcing a poUtical fact of immense weight but incapable of precise definition. At the moment when the United Kingdom' is conducting its
1880 the Liberal electors a victory meant that Lord Beaconsfield should resign office and that Mr. Gladstone should be appointed Prime Minister. As the King's speech when addressing the Houses of Parliament became more and more, and was known to have become, the utterance rather of ministerial than of royal opinion, the necessity inevitably arose of the monarch's finding some means for expressing his personal sympathy with the joy, and, above all, with the sorrow, of his people.
'
It is certain that at the general election of
who gained
'i
first
It
on many gromids of importis the typical and the only recognised representative of the whole Empire.^ Another example of new pohtical conventions is found in the rules of procedure adopted by the House of Commons since 1881 with a view to checking obstruction, and generally of lessening the means possessed by a minority for delaying These rules increase the debates in the House of Commons. possibiUty of carrying through the House in a comparatively short time BUls opposed by a considerable number of members. That the various devices popularly known as the Closure, the GuUlotine, and the Kangaroo have enabled one Government after another, when supported by a disciphned majority, to accompHsh an amount of legislation which, but for these devices could not have been passed through the House of Commons, is indisputable. Whether the price paid for this result, in the way of curtailment and discussion, has been too high, is a question which we are not called upon to consider. All that need here be said is that such rules of procedure are not in strictness laws but in reaUty are customs or agreements assented to by the House of Commons.^ As to enacted conventions. By this term is meant a political understanding or convention which has by Act of Parliament received the force of law ^ or may arise from a change of law. The best examples of such enacted conventions* are to be iound in some of the more or less indirect effects ^ of the Parhament Act, 1911. (1) The Parhament Act in regard to the relation in legislative matters between the House of Lords and the House of Commons goes some way towards estabhshing in England a written or, more accurately speaking, an enacted constitution,
great Imperial
war
it is
ance to remember that the King
^
^
See
p. xci,
note
1,
post.
to the essential difierence between the laws and the conventions of the constitution, see pp. 23-30, post. = See Provisional Collection of Taxes Act, 1913. * critic may indeed say, and with truth, that a convention converted by statute into a law is in strictness not a convention at all but a part of the law of the constitution. This I will not deny ; but such an enacted con-
As
may indirectly so affect the working of conventional understandings or arrangements that its indirect effects are conveniently considered when dealing with the conventions of the constitution. ^ For the direct effects of the Act see p. xxi, amU.
vention
Hi
INTRODUCTION
more accurately speaking, an
not absolutely
instead of an unwritten or,
unenacted constitution.^
(2)
The Act greatly
restrains, if it does
abolish, the use of the royal prerogative to create peers for the purpose of " swamping the House of Lords " in order to force through the House a Bill rejected by the majority of the
Such exercise of the prerogative has never but once, namely under Queen Anne in 1712, actually taken place. The certainty, however, that Wilham IV. would use his prerogative to overcome the resistance of the House of Lords The certainty that in 1832, carried the great Reform Act. George V. would use the same prerogative carried the Parliament Act, 1911. In each case the argument which told with the King in favour of an imhrnited creation of peers was that the constitution suppUed no other means than this exceptional use or abuse of the royal prerogative for compelling the Lords to obey the will of the country. The ParHament Act deprives this argument of its force. Any king who should in future be urged by ministers to swamp the House of Lords will be
peers.
able to answer
" If the people really desire the passing of a " Bill rejected by the House of Lords, you can certainly in
:
" about two years turn
it
into an Act of
^
" the consent of the Lords."
Parhament without The Parliament Act cuts
away then the

justify or
sole ground which in 1832 or in 1911 could even suggest the swamping of the House of Lords.
(3) Under the Parhament Act it may probably become the custom that each Parhament shall endure for its full legal duration, i.e. for nearly the whole of five years. For a student of the Act must bear in mind two or three known
facts.
House
of
Commons
is
the majority whereof perceive

will for
that
their
popularity
on the wane
;
that very
dissolution
unoflB.cial
reason be opposed to a dissolution
for until it occurs such
majority can carry any legislation
it desires,
and a
to
all
may
'
destroy this
power.
The payment
and note
especially ParUament Act, s. 1, 3ub-s3. 2, 3, -which give a statutable definition of a Money BUI, and also contain a special provision as to the mode of determining whether a
p. 27, post,
See aa to this distinction,
a Money Bill. See the Parliament Act, s. 7, " Five years shall be substituted for seven " years as the time fixed for the maximum duration of Parliament under " the Septennial Act. 1715."
Bill is
'
liij
M.P.s of a salary of 400 a year may induce many M.P.s who belong to a ParKamentary minority to acquiesce easily enough in the duration of a ParHament which secures to each
them a comfortable income. Between the Revolution of 1688 and the year 1784 few, if any, dissolutions took place from any other cause than either the death of a Mng, which does not now dissolve a Parhament, or the lapse of time under the Septennial Act, and during that period the Whigs, and notably Burke, denied the constitutional right of the King to dissolve Parhament at his pleasure the dissolution of 1784 was denounced as a " penal dissolution." The Parhament of the
of
;
at
French Republic sits for four years, but it can be dissolved any time by the President with the consent of the Senate. This power has been employed but once during the last thirty-
seven years, and this single use of the presidential prerogative gives a precedent which no French statesman is tempted to
follow.
It
is
highly probable, therefore, that the direct appeal
from the House of Commons to the electorate by a sudden dissolution may henceforward become in England almost obsolete. Yet this power of a Premier conscious of his own popularity, to destroy the House of Conmions which put him in office, and to appeal from the House to the nation, has been treated by Bagehot as one of the features in which the constitution of England excels the constitution of the United States. (4) The Parhament Act enables a majority of the House
of
Commons
to resist or overrule the will of the electors
or, in
other words, of the nation.
That
this
may
actual effect of the Act does not admit of dispute.
be the That the
Home Rule BiU was

ful
strenuously opposed by a large number
of the electorate is certaia.
That this BiU was hated by a power-
minority of Irishmen is also certain. That the rejection of a Home Rule Bill has twice within thirty years met with the approval of the electors is an admitted historical fact. But that the widespread demand for an appeal to the people has
received no attention from the majority of the House of Commons is also certain. No impartial observer can therefore
deny the
nation.
possibility
that a
fiindamental
change in our
will
constitution
may
be carried out against the
of
the
liv
INTRODUCTION
(5)
The Act may deeply afEect the position and the character It has hitherto of the Speaker of the House of Commons. the House of Commons that the been the special glory of Speaker who presides over the debates of the House, though elected by a party, has for at least a century and more tried, and generally tried with success, to be the representative and
guide of the whole House and not to be either the leader or
the servant of a party.
The most eminent
of Speakers
have
always been
men who aimed
at maintaining something like
a judicial and therefore impartial character. In this effort they have obtained a success unattained, it is beUeved, in any other country except England. The recognition of this
moral triumph is seen in the constitutional practice, almost, one may now say, the constitutional rule, that a member once placed in the Speaker's chair shall continue to be re-elected at the commencement of each successive Parliament irrespective of the poUtical character of each successive
House of Thus Speakers elected by a Liberal majority have continued to occupy their office though the House of Commons be elected in which a Conservative majority predominates, whilst, on the other hand, a Speaker elected by a Conservative House of Commons has held the Speakership with public approval when the House of Commons exhibits a Liberal majority and is guided by a Cabinet of Liberals. The Parliament Act greatly increases the authority of the Speaker with respect to Bills to be passed under that Act. No Bill can be so passed unless he shall have time after time certified in writing under his hand, and signed by him that the provisions of the Parliament Act have been strictly followed. This is a matter referred to his own knowledge and conscience. There may clearly arise cases in which a fair difference of opinion may exist on the question whether the Speaker can
Commons.
honestly give the required certificate.
Is it not certain that a party which has a majority in the House of Commons will henceforth desire to have a Speaker who may share the opinions of such party
gentlemen
does
will
is
mean
This does not mean that a body of EngUsh wish to be presided over by a rogue what it that they will come to desire a Speaker who is
?
;
not a judge but
is
an honest partisan.
The Parhament Act
is
Iv
a menace to the judicial character of the Speaker. In the Congress of the United States the Speaker of the House of Eepresentatives is a man of character and of vigour, but he is
an avowed partisan and may abnost be called the parliamentary leader of the party which is supported by a majority in the
House
of Eepresentatives.
Second question. ^What is the general tendency of these new conventions ? Answer. Ît assuredly is to increase the power of any party which possesses a parhamentary majority, i.e. a majority, how-
ever got together, of the House of Commons, and, finally, to place
the control of legislation, and indeed the whole government

of the country, in
the hands of the Cabinet which is in England
at once the only instrument through which a dominant party
can exercise its power, and the only body in the state which can lead and control the parhamentary majority of which the
Cabinet
is
the organ.
That the
rigidity
and the strength
of
the party system, or (to use an American expression) of the
Machine, has continued with every successive generation to

is the conviction of the men who have most thoroughly analysed Bnghsh poUtical institutions as they now exist and work.^ Almost everything tends in one and the same direction. The leaders in ParUament each now control their own party mechanism. At any given moment the actual Cabinet consists The leading of the men who lead the party which holds ofl&ce. members of the Opposition lead the party which wishes to obtain office. Party warfare, in England is, in short, conducted by leading parhamentarians who constitute the actual Cabinet or the expected Cabinet. The electors, indeed, are nominally supreme they can at a general election transfer the government of the country from one party to another. It may be maintained with much plausibihty that under the quinquennial ParKament created by the Parhament Act the British electorate
increase in England,
See Lowell, Oovernment of England, part ii. chaps, xxiv.-xxxvii. ; Low, The Governance of England, chaps, i. to vii. Ramaay Muir, in his essay on Bureaucracy (see Peers and Bureaucrats, pp. 1-94), would apparently agree with Mr. Lowell and Mr. Low, though he maintains that power tends at present under the English constitution to fall from the hands of the parliamentary Cabinet into the hands of the permanent civil servants.
Ivi
TNTRODUCTIOM
will each five years do little else than elect the party or the Premier by whom the coimtry shall be governed for five years. In Parhament a Cabinet which can command a steadfast, even though not a very large majority, finds httle check upon its powers. A greater number of M.P.s than fifty years ago dehver speeches in the House of Commons. But in spite of or perhaps because of this facile eloquence, the authority of
individual M.P.s
who
neither sit in the Cabinet nor lead the
Opposition, has suffered diminution.
During the Palmer-
stonian era, at any rate, a few of such
men each
possessed
an authority inside and outside the House which is hardly claimed by any member now-a-days who neither has nor is expected to obtain a seat in any Cabinet. Ajuj observer whose pohtical recollections stretch back to the time of the Crimean War, that is sixty years ago, wiU remember occasions on which the words of Koebuck, of Eoundell Palmer, of Cobden, and above all, at certain crises of Bright, might be, and indeed were, of a weight which no Government, or for that matter no
Opposition, could treat as a trifle. Legislation again is now the business, one might almost say the exclusive business,
of the Cabinet.
Few
if
any, as far as an outsider can judge,
member not supported by the Ministry of the day, can carry any Bill through Parhament. Any M.P. may address the House, but the Prime Minister
are the occasions on which a private
can greatly curtail the opportunity for discussing legislation when he deems discussion inopportune. The spectacle of the
House
of Commons^ which neither claims nor practices real freedom of discussion, and has no assured means of obtaining from a Ministry in power answers to questions which vitally concern the interest of the nation, is not precisely from a constitutional point of view, edifying or reassuring.
plain truth
But the that the power which has fallen into the hands of the Cabinet may be all but necessary for the conduct of
is
popular government in England under our existing constitution. There exists cause for uneasiness. It is at least arguable that important changes in the conventions, if not in the law, of the constitution may be urgently needed but the reason for alarm is not that the EngUsh
;
executive
is
too strong, for
weak government generally means
Ivii
bad administration, but that our English executive is, as a general rule, becoming more and more the representative of
No fair-minded man will, especially at this moment, dispute that the passion for national independence may transform a government of partisans
a party rather than the guide of the country.
into a
of the nation.
government bent on securing the honour and the safety But this fact, though it is of immense moment, ought not to conceal from us the inherent tendency of the party system to confer upon partisanship authority which ought to be the exclusive property of the nation.^
TTmdi, question.
^Does
the experience of the last thirty
years confirm the doctrine laid

constitution
down
in this treatise that the
sanction which enforces obedience to the conventions of the

is
to be found in the close connection between
these conventions
may be thus at Answer. once illustrated and explained. The reason why every Parliament keeps in force the Mutiny Act or why a year never elapses without a Parliament being summoned to Westminster,
is
law ? ^ The doctrine I have maintained
and the
rule of
simply that any neglect of these conventional rules wotild upon every person in office the risk, we might say the necessity, of breaking the law of the land. If the law
entail
Several recent occurrences show the occasional appearance of ideas which may mitigate rather than increase the rigidity of In re Sir Stuart Samuel [1913], A. C. 514, shows the party system. that under the Judicial Committee Act, 1833, s. 4, a question of law on which depends the right of a Memljer of ParBament to sit in Parliament may be referred to the Privy Council and be adequately and impartially dealt with by a body of eminent lawyers. The thought suggests character of M.P.s itself that other questions affecting the conduct and the which cannot be impartially investigated by any Committee of the House The public of Commons might be referred to the same high tribunal. statement, again, of Lord Kitchener that he took office in no way as a the carrypartisan, but simply as a general whose duty it was to provide for concerned ing on of a war in which the welfare and honour of the nation is of military set a precedent which might be followed in other spheres than that genius might affairs. Is it of itself incredible that a Foreign Secretary of without any loss of character retain office for years both in Liberal and in that a Conservative Cabinets 1 Is there any thing absurd in supposing Lord Chancellor respected for his legal eminence and for his judgment might knowledge serve the country as the highest of our judges and give his legal agree ? The to Cabinets constituted of men with whose politics he did not on the English people would gain rather than lose by a check being placed constantly increasing power of the party system. * See pp. 441-450, 'post.
1
or
practices
Iviii
INTRODUCTION
governing the army which is in effect an annual Act, were not passed annually, the discipUne of the army would without constant breaches of law become impossible. If a year were
to elapse without a
Parhament being summoned to West-
minster a good number of taxes would cease to be paid, and

it
would be impossible legally to deal with such parts of the revenue as were paid into the Imperial exchequer. Now it
so happens that recent experience fully
shows the incon-
venience and danger of either violating a constitutional
convention or of breaking the law because custom had authorised a course of action
House
v^hat
of Lords, in order to
which rested on no legal basis. The compel a dissolution of Parhament

Their Lordships acted within
in 1909, rejected the Budget.
was then
their legal right, yet
they caused thereby great
was remedied by the election of a new Parliament. For years the income tax had been collected in virtue not of an Act but of a resolution of the House of Commons passed long before the iacome tax for the coming year came into existence. An ingenious person wishing to place difficulties in the way of the Government's proceedings claimed repayment of the sum already deducted by the Bank of England from such part of his income as was paid to him through the Bank. The bold plaintiff at once recovered the amount of a tax levied without legal authority. No better demonstration of the power of the rule of law could be found than is given by the triumph of Mr. Gibson
Bowles.^
inconvenience, which, however,
(D)
Development during the last Thirty Years of
New
These ideas are
Representation,
(3)
(1)
"Woman
Suffrage,
(2)
Proportional
Federahsm,
(4)
The Eeferendum.
'
Two
The
in this Introduction
1
General Observations
brief criticism of
it is
V.
each of these new ideas which alone

possible to give, will be facihtated
of England [1913],
1
by
Bowles
Bank
Ch. 57.
NEW
less to
CONSTITUTIONAL IDEAS
lix
attending to two general observations which apply more or each of the four proposed reforms or innovations.
First observation.
fallen far short of
Political inventiveness has in general the originality displayed in other fields than
by the citizens of progressive or civilised States. The immense importance attached by modern thinkers to representative government is partly accounted for by its being
poUtics
almost the sole constitutional discovery or invention unknown

to the citizens of Athens or of ism, nor indeed
Rome.^
It is well also to note
that neither representative government nor
Roman
Imperial-
important constitutional changes which the world has witnessed, can be strictly described as an invention or a discovery. When they did not result from imitation they have generally grown rather than been made ; each was the production of men who were not aiming at giving
of the
most
but were trying to meet in of their time. In no part of English history is the tardy development of new constitutional ideas more noteworthy or more paradoxical than during the whole Victorian era (1837 to 1901). It was an age full of intellectual activity and achievement it was an age rich in works of imagination and of science it was an
effect to
any novel
political ideal,
practice the difficulties
and wants
age which extended in every direction the
field of historical
knowledge
but it was an age which added
little
to the world's
scanty store of political or constitutional ideas. The same remark in one sense applies to the years which have passed
since the opening of the twentieth century.
What
new come
ventured to term new

part not original
;
constitutional ideas are for the
have most
their novelty consists in the
interest
which during the last fourteen years they have
to com-
mand.
Second observation.These, new ideas take very Httle, one might almost say no accoimt, of one of the ends which good
legislation ought,
if
possible, to attain.
But
this observation
requires explanatory
'
comment.
exist very
It is hardly
an exaggeration to say that there
few other
modern
which
political conceptions (except the idea of representative government) were not criticised by the genius of Aristotle. Note however that
the immense administrative system known as the Roman Empire lay beyond, or at any rate outside, the conceptions of any Greek philosopher.
Ix
INTRODUCTION
Under every form of popular government, and certainly under the more or less democratic constitution now existing in England, legislation must always aim at the attainment of at least two different ends, which, though both of importance, One of these ends are entirely distinct from one another. good or wise laws, that is is the passing or the maintaining of laws which, if carried out, would really promote the happiness or welfare of a given country, and therefore which are desirable in themselves and are in conformity with the nature of things. That such legislation is a thing to be desired, no sane man can
dispute.
If,
for example,
the freedom of trade facihtates
the acquisition of good and cheap food
by the people
of
England, and does not produce any grave counterbalancing evil, no man of ordinary sense would deny that the repeal of the corn laws was an act of wise legislation. If vaccination
banishes small-pox from the country and does not produce
any tremendous coimterbalancing evil, the pubhc opinion even of Leicester would hold that a law enforcing vaccination is a wise law. The second of these two difierent ends is to
no law should be passed or maintained in a given in England, which is condemned by the public opinion of the Enghsh people. That this where possible is desirable will be admitted by every thoughtful man. A law utterly opposed to the wishes and feelings entertained by the inhabitants of a coimtry, a rule which every one dislikes and no one will obey, is a nullity, or in truth no law at all and, even in cases where, owing to the power of the monarch who enacts a law opposed to the wishes of his subjects, such a law can to a certain extent be enforced, the evils
ensure
tlia.t
country,
e.g.
of the
enforcement
in
itself
may
far overbalance the
good
effects of
legislation
wise.
This thought fully justifies an
tions,
English Government in tolerating throughout India institusuch as caste, supported by Indian opinion though
condemned by the pubhc opinion and probably by the wise opinion of England. The same line of thought explained, palhated, and may even have justified the hesitation of English statesmen to prohibit suttee. Most persons, then, will acknowledge that sound legislation shoidd be in conformity
with the nature of things,
or, to
express the matter shortly, be
NEW
CONSTITUTIONAL IDEAS
Ixi
" wise," and also be in conformity with the demands of pubKc opinion, or, in other words, be " popular," or at any rate not
unpopular.
realise
But there
are few Englishmen
who
sufficiently
that both of these two ends cannot always be attained,

it
and that
very rarely happens that they are each equally
attainable.
Yet the history
of
Enghsh
legislation
it is
abounds
with illustrations of the

to insist.
difficulty
on which
necessary here
Thus the Reform Act, 1832,^ is in the judgment of most EngHsh historians and thinkers a wise law it also was at the time of its enactment a popular law. The Whigs probably underrated the amount and the strength of the opposition to the Act raised by Tories, but that the passing of the Reform Act was hailed with general favour is one of the best attested facts of modem history. The Act of Union passed in 1707 was proved by its results to be one of the wisest Acts ever placed on the statute-book. It conferred great benefits upon the inhabitants both of England and of Scotland. It created Great Britain and gave to the united country the power to resist in one age the threatened predominance of Louis XIV., and in another age to withstand and overthrow the tremendous power of Napoleon. The complete success of the Act is sufficiently proved by the absence in 1832 of any
;
demand by either Whigs, Tories, or Radicals for its repeal. But the Act of Union, when passed, was unpopular in Scotland, and did not command any decided popularity among the
The New Poor Law of 1834 saved the its passing was the wisest and from ruin country districts patriotic achievement of the Whigs, but the Act the most itself was unpopular and hated by the country labourers on whom it conferred the most real benefit. Within two years from the passing of the Reform Act it robbed reformers of a popiilarity which they had hoped might be Indeed the wisdom of legislation has little to do lasting. Now all the ideas which are most with its popularity.
electors of England.
;
to schemes of
dear to constitutional reformers or innovators in 1914 lead more or less merit for giving full expression
1 See J. R. M. Butler, The Passing of the Great Reform Bill (Lpngmans. Greeu & Co., 19141. This is, an excellent piece of historical narrative and
inquiry.
Ixii
INTRODUCTION
i.e.
in the matter of legislation to public opinion,
for ensuring
by ParUament shall be popular, or at lowest not unpopular. But these schemes make in general
that any Jaw passed
little
also
be wise, or in other words that
provision for increasing the chance that legislation shall it shall increase the real
welfare of the country.

in the
The singular
superstition
embodied
vox pojmli vox Dei has experienced in this misThis renewed called scientific age an unexpected revival.
maxim
faith in the pre-eminent
wisdom
its
of the people has
probably
congeniahty with democratic sentiment. May we not conjecture that the new Ufe given to a popular error is in part and indirectly due to the dechne in the influence of utiUtarianism ? Faith in the voice of the people is closely connected with the doctrine of " natural
acquired
force
new
from
rights."
This dogma of natural rights was in England contemned and confuted by Bentham and his disciples.^ The dechning influence of the utilitarian school appears
forget that the
therefore to give
new dogma
of
strength to
this
doctrine.
People
of
of natural rights
was confuted not

thinkers
only
by Benthamites but by powerful

and
utilitarianism.
the
eighteenth
the nineteenth century
who had no
sympathy with
Gritioism of each of the

I.
Four
New
Woman
Suffrage.
The claim
for
vote for members of Parhament,
or, as
women of the right to now urged, to be placed
in a position of absolute political equality with
men, is no was made in England before the end of the eighteenth century,^ but no systematic, or at any rate
new demand.
noticeable,
It
to vote for
' ^
movement to obtain for Enghshwomen the right members of Parliament can be carried back much
Law and Opinion, pp. 309, 171, 172. It woxild be impossible, and it is not aim in this Introduction, to state or even summarise all the arguments for or against each of these ideas ; sole object is to bring into light the leading thoughts or feelings which
See
my
my
underlie the advocacy of, or the opposition to, each of these
new
ideas.
See
p. Iviii, ante.
' See the Vindication of the Bights of Women, by Mary WoUstonecraft, published 1792. Little was heard about such rights during the great French Revolution. There is no reason to suppose that Madame Roland ever claimed parliamentary votes for herself or for her sex.
WOMAN SUFFRAGE
earlier
Ixiii
than 1866-67, when

J. S. Mill.
it
was supported in the House
of
Commons by
Let my readers consider for a moment first the causes which have added strength to a movement which in 1866 attracted comparatively httle pubHc attention, and next the main lines
of a/rgument or of feeling which really
tell on the one hand with the advocates and on the other with the opponents of the claim to votes for women.'-
The Causes.
These
may
be thus summarised.
Since the
beginning of the nineteenth century the number in the United
Kingdom
has
of self-supporting
greatly
increased
in literature, as well as
and also of unmarried women and this class has by success in other fields, acquired year by
In the
year
exists
greater
influence.
United Kingdom there
among
the actual population an excess of
women
over
men, and this excess is increased by the emigration of Englishmen to our colonies and elsewhere. The low rate of payment received by women as compared with men, for services of any kind in which men and women enter into competition, has excited much notice. The spreading behef, or, as it used to be considered, the delusion, that wages can be raised by legislation, has naturally suggested the inference that want of a parHamentary vote inflicts severe pecuniary loss upon women. The extension of the power of the state and the enormous outgrowth of social legislation results in the dailj enactment of laws which affect the very matters in which every woman ha;s a personal interest. In an era of peace and
of social reform the electors themselves constantly claim the
sympathy and the
active co-operation of
women on
behalf of
by partisans, as raising Hence the agitation in favour of Woman Suffrage often commends itself to ministers of rehgion and notably to the Enghsh clergy, who beheve,
whether rightly or not, that the poHtical power of women would practically add to the authority in the pohtical world These circumstances, and others of the Church of England. which may be suggested by the memory or the ingenuity of
^ For an examination of all the main arguments alleged on either side see Dicey, Letters to a Friend on Votes for Women.
causes which are treated, at any rate grave moral or reUgious controversy.
Ixiv
INTRODUCTION
readers, are
my
enough to explain the prominence and weight
acquired for the
movement
in favoiir of giving the parha-
mentary franchise to women. The Main Lines of Argument. These may be brought under two heads they are most clearly and briefly exhibited if under each head is stated the argument of the Suffragist and the answer or reasoning in reply of the Anti-Suffragist. First a/rgument. Every citizen, or, as the point is generally put, every person who pays taxes under the law of the United Kingdom, is entitled as a matter of right to a vote for a member of ParUament. Hence the obvious conclusion that as every EngUshwoman pays taxes under the law of the United Kingdom, every Enghshwoman is at any rate 'prima
facie entitled to a vote.
Answer.
This
hue
of
reasoning proves too much.
It
inevitably leads to the conclusion that
any form
of popular
government ought to be based on the existence of strictly universal suffrage. An extreme suffragette wUl say that this result is not a reductio ad absurdum. But there are thousands of sensible Enghshmen and Enghshwomen who, while they doubt the advisabihty of introducing into England even manhood suffrage, refuse to admit the cogency of reasoning which leads to the result that every Enghshman and Enghshwoman of full age must have a right to vote for a member of ParUament. But the full strength of an antisuffragist's reply
cannot be shown by any
man who
does not
go a
little
further into the nature of things.
fair-minded
man prepared to do this will, in the first place, admit that many democratic formulas, e.g. the dictum that " habihty
to taxation involves the right to representation," do verbally cover a woman's claim to a parhamentary vote. His true
answer
so-called democratic principles, as also conservative principles, are in reahty not principles at all but war-cries, or shibboleths which may
is
that
many
many
so-called
contain a good deal of temporary or relative truth but are mixed up with a vast amount of error. The idea, he will ultimately say, that the possession of a vote is a personal right is a delusion. It is in truth the obh'gation to discharge
a pubUc duty, and whether this miscalled right should be
WOMAN SUFFRAGE
conferred
Ixv
upon or withheld from Englishwomen can
be
decided only by determining whether their possession of the
parliamentary vote wiU conduce to the welfare of England.

Second,
argument.
The
difference
of
sex
presents
no
apparent or necessary reason for denying to Enghshwomen

political rights as are conferred upon EngUshmen. found by experience, as suffragists will add, that some women have in many ways even greater capacity for the This arguexercise of government than have some men. ment may best be put in its full strength if it be placed, as Was it reasonable it often is, in the form of a question that Florence Nightingale should not have possessed the right to vote for a member of ParHament when even in her day her footman or her coachman, if he had happened to be a ten-pound householder, or a forty-shilling freeholder, might have exercised a right denied to a lady who, as appears
the
same
It is
from her biography, possessed many statesmanlike qualities, who did in fact in some Knes of action exert more political power than most M.P.s, and who always exercised power disinterestedly, and generally exercised it with admitted benefit There is not the remotest doubt that the to the country ? argument involved in this inquiry (in whatever form it is
stated) seems to
many women,
and
also
to a great
mentary
electors,
to
a considerable
number of parUanumber of
and conclusive reason in parHamentary votes to women. favour of giving Answer. The claim of parHamentary votes for women as now put forward in England is in reality a claim for the absolute poUtical equality of the two sexes. Whether its
M.P.S, to afford an unanswerable
advocates are conscious of the fact or not,
it is
demand
on behalf of women for seats in ParUament and in the Cabinet. It means that Englishwomen should^hare the jury
box and should sit on the judicial bench. It treats as insignificant for most piurposes that difference of sex which, after all, disguise the matter as you will, is one of the most fundamental and far-reaching differences which can distinguish one body of human beings from another. It is idle
to repeat again and again reasoning which, for the last thirty years and more, has been pressed upon the attention of every
Ixvi
INTRODUCTION
and
elector.
English, reader
One thing
is
certain
the real
strength (and it is great) of the whole conservative argument against the demand of votes for women lies in the fact that this line of reasoning, on the face thereof,
The anti - suffragists conforms to the nature of things. whilst adapting them to can re-echo the words of Burke
a controversy unknown to him and practically unknown " The principles that guide us, in public and to his age
:
" in private, as they are not of our devising, but moulded " into the nature and the essence of things, will endure with
" the sun and moon ^long, very long after whig and tory, " Stuart and Brunswick [suffragist, sufiragette, and anti" suffragist], and all such miserable bubbles and playthings
" of the hour, are vanished from existence and from memory." ^ II. Proportional Representation/^ The case in favour of
the introduction of proportional representation into England

rests
on the truth of three propositions.
First proposition.
The
House
of
Commons
often fails to
represent with precision or accuracy the state of opinion,

e.g.
as to
woman
England.
to be, as
it
suffrage, existing among the electorate of In other words, the House of Comnaons often fails is sometimes expressed, " the mirror of the national
mind," or to exactly reflect the will of the electors. Second proposition. Ît is quite possible by some system of proportional representation to frame a House of Conunons which would reflect much more nearly than at present the
opinion of the nation, or, in other words, of the electorate.
Third proposition.
It
is
pre-eminently desirable that every
among the electors should be represented in the House of Commons in as nearly as possible the same proportion in which it exists among the electors, or, to use popular language, among the nation.
opinion hondfde existing
Now
the
first
of these three propositions the substantial truth of
No
and second must, in my judgment, be admitted. one can doubt the possibihty, and even the high probability, that, for example, the cause of woman suffrage
Burke, Correspondence, i. pp. 332, 333. See Humplireys, Proportional Bepresentation ; Fischer Williams, Proportional Representation and British Politics; Lowell, Public Opinion and Popular Oovernment, pp. 122-124.
*
'
PROPORTIONAL REPRESENTATION
Ixvii
may, at the present moment, obtain more than half the votes of the House of Commons while it would not obtain as many as half the votes of the electorate. Nor again is it at all inconceivable that at some other period the cause of
woman
suffrage should, while receiving the support of half

fail
the electorate,
to obtain the votes of half the
House
of
Commons.
reason
No
one, in the second place, can, I think, with
dispute that,
among the numerous
plans for pro-
upon the attention of. the pubUc, some one, and probably several, would tend to make the House of Commons a more complete mirror of what is called the mind of the nation than the House is at present and this concession, it may with advantage be noted, does not involve the belief that under any system of popular government whatever, a representative body can be created which at every moment will absolutely and with complete accuracy reflect the opinions held by various classes of the
portional representation thrust
.
people of England.
of the first
Now my
behef in the substantial truth
and the second of our three propositions makes it needless for me, at any rate for the purpose of this Introduction, to consider the reservations with which their absolute
accuracy ought to be assumed.

at
For the sake
of
argument,
any
rate, I treat
them
as true.
My
essential objection to
the system of proportional representation consists in my grave doubt as to the truth of the third of the above three
propositions, namely, that it
is
desirable that
any opinion
be repre-
existing
among any
in
large
body
of electors should
sented in the House of
Commons
as nearly as possible in the
which it exists among such electors. any attempt is made to state the specific objections which in my judgment lie against the introduction of proportional representation into the parHamentary constitution of England, it is essential to discriminate between two different ideas which are confused together under the one demand for proportional representation. The one of these
same proportion
Before, however,
ideas
is
substantial
the desirability that every opinion entertained by a body of Enghshmen should obtain utterance in
House of Commons, or, to use a vulgar but efiective piece " some member or members of political slang, " be voiced by
the
ixviii
INTRODUCTION
Thus
it
down by the leader of was infinitely to the advantage the Liberal party that "it " of the House of Commons, if it was to be a real reflection " and mirror of the national mind, that there should be no " strain of opinion honestly entertained by any substantial " body of the King's subjects which should not j&nd there " representation and speech." ^ To this doctrine any person who has been influenced by the teaching of Locke, Bentham,
of that House.
has been laid
in
and Mill wiU find it easy to assent, for it is weU known that any country, and especially in any country where popular government exists, the thoughts, even the bad or the foolish
thoughts, of the people should be
legislature.
known
to the national
extreme example will best show my meaning. If among the people of any land the hatred of the Jews or of Judaism should exist, it would certainly be desirable that this odious prejudice should find some exponent or advocate in
An
the Parhament of such country, for the knowledge of popular

errors or delusions
of just
may well be essential to the carrying out government or wise administration. Ignorance is
never in truth the source of wisdom or of justice. The other idea or meaning attached by Proportionahsts to proportional
representation
is
that every influential opinion should not
only find utterance in the House of Commons, but, further,
and above all, be represented in the House of Commons by the same proportionate number of votes which it obtains from the voters at an election. Thus the eminent man who
advocated the desirabiUty of every opinion obtaining a hearing in the House of Commons, used on another occasion the " It is an essential and integral feature of following words " our pohcy that we shall go forward with the task of making " the House of Commons not only the mouthpiece but the " mirror of the national mind." ^ Now the doctrine of pro:
portional representation thus interpreted
is
a dogma to which
a fair-minded
man may
;
well refuse his assent.

it is
means obviously true

other) objections that
1
It is by no open to the following (among
admit
of clear statement.
J.
See Mr. Asquith's speech at St. Andrews, Feb. 19, 1906, cited by Fischer Williams, Propartiomal Eepresenlation, p. 17. ^ Mr. Asquith at Burnley, Deo. 5, 1910, cited by J. Fischer Williams
Proportional Representation, p. 17.
Objections to the Thvrd Proposition.
First
objection.
Ixix
The
popular election
creases the
is
more compKcated any system of made, the more power is thrown into the
This of
itself in-
hands of election agents or wire-puUers.
machine ; England is now threatened is the inordinate influence of party mechanism. This objection was long ago insisted upon
power and lowers the character of the party but the greatest political danger with which
by Bagehot.^
Second
It explains,
if it
does not
whoUy
justify,
John
Bright's denunciation of fancy franchises.
House of Commons is no mere an assembly entrusted with great though indirect executive authority it is, or ought to be, concerned with the appointment and the criticism of the Cabinet.
direction.
The
It
is
debating society.
Grant, for the

result
sake
of
argument, that every influential
opinion should in the House of
Commons
gain a hearing.
This
would be obtained if two men, or only one man, were to be found in the House who could ensure a hearing whenever he spoke in favour of some peculiar opinion. The argument for woman suSrage was never stated with more force in Parliament than when John Mill represented Westminster. The reasons in its favour would not, as far as argument went, have commanded more attention if a hundred members had been present who shared Mill's opinions but were not endowed with his logical power and his lucidity of expression. But where a body of men such as constitute the House of Commons
aU concerned with government, unity of action is of more consequence than variety of opinion. The idea, indeed, of representation may be, and often is, carried much too far. A Cabinet which represented all shades of opinion would be a Ministry which could not act at all. No one really supposes that a Government could in ordinary circumstances be formed Nor can in which two opposite parties balanced one another. it often be desirable that an opinion held by, say, a third of a ministerial party should necessarily be represented by a third It may well be doubted whether even on of the Cabinet.
are at
commissions appointed partly, at any
rate, for the
purpose
Bagehot, English Constitution, pp. 148-159.
Ixx
INTRODUCTION
it
is
of inquiry,
at
all
desirable
that
distinctly opposite
views should obtain recognition.

laid
down
the leading lines of
The Commission which Poor Law Eeform in 1834
Would there an immense service to England. have been any real advantage in placing on that Commission men who condemned any change in the existing
rendered
poor law
it
TMrdi, objection.
^Proportional representation, just because
aims at the representation of opinions rather than of persons, tends to promote the existence in the House of Commons of numerous party groups and also fosters the admitted evil of log-rolUng. The working of EngUsh parhamentary govern-
ment has owed half of its success to the existence of two leading and opposed parties, and of two such parties only. Using somewhat antiquated but still intelUgible terms, let me call them by the name of Tories and Whigs. ^ These two
parties have,
it
one
may
speak in very broad terms, tended,
the one to uphold the rule of the well-born, the weU-to-do,
on the whole, of the more educated members community; the other has promoted the power of numbers, and has therefore aimed at increasing the pohtical authority of the comparatively poor, that is, of the comparatively ignorant. Each tendency has obviously some good and some bad effects. If, for a moment, one may adopt modern expressions while divesting them of any impHed blame or praise, one may say that Conservatism and LiberaUsm each play their part in promoting the weMare of any country where popular government exists. Now, that the existence of two leading parties, and of two such parties only, in England has favoured the development of Enghsh constitutionalism
and
therefore,
of the
is
past denial. It is also certain that during the nineteenth century there has been a notable tendency in Enghsh pubHc
to produce in the
life
House
of
Commons
separate groups or
parties
which stood more or less apart from Tories and Whigs, and were all but wholly devoted to the attainment of some one definite change or reform. The Eepealers, as led by O'ConneU,
^ I choose these old expressions which have been in use, at any rate from 1689 till the present day, because they make it easier to keep somewhat apart from the burning controversies of 1914.
and
Ixxi
still more the Free Traders, as led by Cobdeii,^ are early examples of such groups. These groups avowedly held the
success of the cause for which they fought of greater conse-
quence than the maintenance in

Whigs.
office either of Tories or of
had perplexed the working of our constitution they had gone far to Umit the operation of the very valuable rule that a party, which persuades ParHament
in 1845 they
;
Even
to adopt the party's poUcy, should be prepared to take office
and carry that poUcy into

give the best,
if
effect.
not the
earliest,
The Free Traders, in fact, example of an EngUsh group
organised to enforce the adoption

of
an opinion,
doctrine, or theory to
by the Enghsh ParUament which that group was number
devoted.
Now
an observer of the course of events during
the last sixty years wiU at once note the increasing

of
such groups in the House of Commons. To-day we have Ministeriahsts and Unionists (corresponding roughly with
Whigs and Tories), we have also Irish Nationalists and the Labour Party. These parties have each separate organisations. But one can easily observe the existence qf
the old
smaller bodies each devoted to its
such,
for
own movement
or cause, as
example, as the temperance reformers,
the
advocates of Church.
woman
sufirage, or as the
is
members who hold
that the question of the day

stitutional customs.
the disestablishment of the
This state of things already invalidates our con-
Nor is it easy to doubt that any fair system of proportional representation must increase the number of groups existing in ParHament, for the very object of ProportionaUsts is to ensure that every opinion which
among an appreciable number of British electors shall have an amount of votes in ParHament proportionate to the
exists
number of votes it obtains among the electors. If, for example, a tenth of the electors should be anti-vaccinators, the anti-vaccinators ought, imder a perfect scheme of representation, to
command
sixty-seven votes in the
House of
1 Cobden would have supported any Premier, whether a Tory or a Whig, who undertook to repeal the Com Laws. O'Connell would have supported any Premier who had pledged himself to repeal the Act of Union with Ireland ; but O'ConneU's position was peculiar. He took an active interest in English politics, he was a Benthamite Liberal, and during a part of his career acted in alliance with the Whigs.
Ixxii
INTRODUCTION
Sixty-seven anti- vaccinators
Commons.
who might
e.g.
accidentas Con-
ally obtain seats in the
House
of
it
Commons,
servatives or Liberals, would, be

different
noted, constitute a very
body from sixty-seven members sent to the House of The to represent the cause of anti-vaccination. In the first case each anti- vaccinator would difierence is this often perceive that there were matters of more pressing import-
Commons
but the sixty-seven men elected under a system of proportional representation to obtain the total repeal of the vaccination laws would, one may almost
ance than anti- vaccination
;
parliamentary action.
say must, make that repeal the one dominant object of their That the multiplication of groups might weaken the whole system of our parUamentary govern-
ment
all
is
a probable conjecture.
That proportional representais
tion might tend to extend the vicious system of log-rolling
but demonstrable. Let me suppose the sixty-seven antivaccinators to be already in existence let me suppose, as would probably be the case, that they are elected because of
;
their firm faith in anti-vaccination,
and
that,
both from their
position
and from
is
their creed, they feel that to destroy the
vaccination laws
the supreme object at which every good
man
will soon find that their sixty-seven though of high importance, are not enough to save the country. The course which these patriots must follow is
should aim.
They
votes,
They are comparatively indifferent about Home about Disestablishment, about the objects of the Labour Party. Let them promise their support to each of the groups advocating each of these objects in return for
obvious.
Rule,
the help in repealing legislation which originates,

anti-vaccinators,
say our
pohtical
in
the
delusions of
Jenner.
miracle will have been performed.

of
anti -vaccination
will
of fanatics
nation.
recall
Let
will have been have defeated the common sense of the me, as an illustration of my contention,
majority in favour obtained ; the voice
years ago the Claimant,
pubhc attention a forgotten fact. Some forty now barely remembered as Arthur Orton, was a popular hero. His condemnation to imto
prisonment for fourteen or fifteen years excited much indignation. He obtained one representative, and one repre-
FEDERALISM
sentative only, of his grievances in the Hoiise of
Ixxiii
Commons. Under a properly organised system of proportional representation, combined with our present household suSrage, he might well have obtained twenty. Does any one doubt that these twenty votes would have weighed with the Whips of any party in power ? Is it at all certain that the Claimant
might not, thus supported, have obtained a mitigation of his punishment, if not a re-trial of his case ? This is an extreme illustration of popular folly. For this very reason it is a good test of a logical theory. I do not contend that proportional representation cannot be defended by weighty considerations my contention is that it is open to some grave objections which have not received an adequate answer.^ III. Federalism? In 1884 the peculiarities and the merits of federal government had not attracted the attention of the English public. Here and there a statesman whose mind was turned towards the relation of England and her colonies had perceived that some of the self-governing colonies might with advantage adopt federal constitutions. In 1867 Parhament had readily assented to the creation of the Canadian Dominion and thereby transformed the colonies possessed by England In truth on the continent of America into a federal state. .the Northern States of the it may be said that the success of
American Commonwealth in the War of Secession had, for the first time, impressed upon Englishmen the belief that a democratic and a federal state might come with success through a civil war, carried on against states which asserted their right Still to secede from the Republic of which they were a part. hardly a statesman whose name carried weight with in 1884 Englishmen advocated the formation of a federal system as a remedy for the defects, whatever they were, of the EngUsh
1
Proportional representation was in Mill's day
known
as minority
The change of name is not without significance. In 1870 representation. mainly as the the demand for minority representation was put forward means for obtaining a hearing for intelligent minorities whose whisper might majority. In 1914 easfly be drowned by the shouts of an unintelhgent ensuring minority representation is recommended mainly as the means of considered a that the true voice of the nation shall be heard. It was once gmng check upon democracy ; it is now supported as the best method for
effect to
Compare
the true will of the democracy. especially as to federal government. Chap. III. p. 134,
'post.
Ixxiv
INTRODUCTION
means
for uniting the widely scattered
constitution, or as the
countries which
make up the British Empire.

he
still is,
Walter Bagehot
was in
his day, as
the most eminent of modern
EngUsh constitutionalists. He compared the constitution of But England with the constitution of the United States.
the result of such comparison was, in almost every case, to
some hitherto unnoted merit of the Enghsh conwhich was not to be found in the constitution of the great American EepubUc. Sir Henry Maine was in his time the most brilHant of the writers who had incidentally turned their thoughts towards constitutional problems. Maine's Popular Government, published in 1885, expressed his admiration for the rigidity or the conservatism of American federahsm. But he never hinted at the conviction, which he probably never entertained, that either the United Kingdom or the British Empire would gain by transformation into a federal state. Thirty years ago the nature of federaUsm had received in England very inadequate investigation.^ In this, as in other matters, 1914 strangely contrasts with 1884. The notion is now current that f ederahsm contains the solution of every constitutional problem which perplexes British statesmanship. Why not, we are told, draw closer the bonds which maintain peace and goodwill between the United Kingdom- and all her colonies, by constructing a new and grand Imperial federation governed by a truly Imperial Parhament, which shall represent every state, including England, which is subject to the government of the King ? Why not, we are asked, estabhsh a permanent reconcihation between England and Ireland by the conversion of the United Kingdom into a federahsed kingdom whereof England, Scotland, Ireland, and Wales, and, for aught I know, the Channel Islands and the Isle of Man, shall form separate states ? This new constituillustrate
stitution
tional idea of the inherent excellence of federahsm is a new faith or delusion which deserves examination. purpose, therefore, is to consider two different mattersnamely, first,
My
the
general
characteristics
of
federahsm
secondly,
the
' In Chap, in., post, federalism was analysed (1885) as illustrating by way of contrast, that sovereignty of the English ParUament which makes England one of the best examples of a unitary state.
FEDERALISM
Ixxv
known
bearing of these characteristics on the proposal popularly as Imperial federalism, for including England ^ and
the five seK-goveming colonies in a federal constitution,

also the proposal (popularly
and
known
as
Home
Eule
all
round)
for federahsing the
United Kingdom.
Leading Characteristics of Federal Government
Federalism is a natural constitution for a body of states which desire union and do not desire unity. Take as countries which exhibit this state of feehng the United States, the
English federated colonies, the Swiss Confederation, and the German Empire, and contrast with this special condition of opinion the dehberate rejection bv all Itahan patriots of
which in the case of Italy presented many apparent advantages, and the failure of union between Sweden and
federalism,
Norway to produce any desire for unity or even for a continued pohtical connection, though these Scandinavian lands difier
httle in
from each other in
race, in rehgion,
in language,
or
their
common
interest to maintain their independence
against neighbouring
to
and powerful countries. The physical contiguity, further, of countries which are form a confederated state is certainly a favourable, and
possibly a necessary, condition for the success of federal
government.
of federal government is greatly favoured by, does not absolutely require, approximate equality in the wealth, in the population, and in the historical position of
if it
The success
the different countries which
make up a
confederation.
lies
The
at the
reason for this
is
pretty obvious.
The idea which
bottom of federahsm is that each of the separate states should have approximately equal poUtical rights and should thereby be able to maintain the " hmited independence " (if the term may be used) meant to be secured by the terms of
^ In treating of Imperial federalism, as often in other parts of this book, I purposely and frequently, in accordance with popular language, use
" England " as equivalent to the United Kingdom. ' See especially Chap. III. p. 134, post. It is worth observing that the substance of this chapter was published before the production by Gladstone
of his first
Home
Rule
Bill for Ireland.
Ixxvi
INTRODUCTION
Hence the provision contained in the constituunder which two Senators, and no
federal union.
tion of the United States
large,
more, are given to each state, though one be as populous, as and as wealthy as is New York, and another be as
small in area and contain as few citizens as

of a small state
Rhode
Island.
Bagehot, indeed, points out that the equal power in the Senate
from some points of an arrangement obviously view an evil. It is, however, congenial to federal sentiment. If one state of a federation greatly exceed in its numbers and in its resources the power of each of the other states, and still more if such " dominant
and
of a large state is
partner," to use a current expression, greatly exceed the
whole of the other Confederated States in population and in
two dangers. an authority almost inconsistent with federal equality. But, on the other hand, the other states, if they should possess under the constitution rights equal to the rights or the poHtical power left to the dominant partner, may easily combine to increase unduly the bujrdens, in the way of taxation or otherwise, imposed upon the one most powerful state. Federalism, when successful, has generally been a stage towards unitary government. In other words, federalism
wealth, the confederacy will be threatened with
The dominant partner may
exercise
tends to pass
into
nationahsm.
This has certainly been
most successful of federal experiments. The United States, at any rate as they now exist, have been well described as a nation concealed under the form of a federation. The same expression might with considerable truth be appHed to Switzerland. Never was there a country in which it seemed more difficult to produce national unity. The Swiss cantons are divided by difference
of race,
the result of
the two
by
difference of language,
by
difference of religion.
These distinctions till nearly the middle of the nineteenth century produced a kind of disunion among the Swiss people which in 1914 seems almost incredible. They forbade the
existence of a
common
coinage
they allowed any one canton
to protect the financial interest of its citizens against competition by the inhabitants of every other canton. In 1847
the Sonderbimd
threatened to destroy the very
idea of
FEDERALISM
'
Ixxvii
r
and Swiss independence.
Swiss
unity,
Swiss
nationality,
Patriots
had indeed for generations perceived that the federal union of Switzerland afforded the one possible guarantee for the continued existence of their country. But attempt after
attempt to secure the unity of Switzerland had ended in
failure.
The victory
of the Swiss federalists in the

:
Sonderbund war
gave new Ufe to Switzerland this was the one indubitable success directly due to the movement^ of 1847-48. It is indeed happy that the A^ctory of the federal armies took place before the fall of the French Monarchy, and that the Revolution of February, combined with other movements which distracted
own affairs in their met with their reward. Switzerland became master of her own fate. Each step in the subsequent progress of the new federal state has
Europe,
left
the Swiss free to manage their
own way.
Swiss patriotism and moderation
been a step along the path leading from confederate union

to national unity.
compared with a unitary government. Few were the thinkers who in 1884 would have denied the truth of this proposition. In 1914 language is constantly used which imphes that a federal government is in itself superior to a imitary constitution such as that of France or of England. Yet
federal
constitution
is,
as
constitution, a
weak form
of
is no accident. A based on the division of powers. It means the constant effort of statesmanship to balance one No one can rate state of the confederacy against another.
the comparative weakness of federahsm

true federal government
is
more highly than myself the success with which a complicated is worked by the members of the Swiss Council or, to use expressions famihar to Enghshmen, by the Swiss Cabinet. Yet everywhere throughout Swiss arrangements you may observe the desire to keep up a sort of balance of advantages between different states. The members of the Council are
system
seven in number
;
a different canton.
the federal Court
each member must, of necessity, belong to The federal Parhament meets at Bern
sits
at Lausanne in the canton of

is
Vaud;
namely
the federal university

Zurich.
allotted to a third canton,
Now
rules or practices of this kind
must inevitably
restrict the
power
of bringing into a Swiss Cabinet all the best
Ixxviii
INTRODUCTION
found in Switzerland.
political talent to be
Such a system
applied to an English or to a French Cabinet would be found
almost unworkable. Federalism again would mean, in any country where English ideas prevail, the predominance of
legaUsm
or, in
other words, a general willingness to yield to
Nothing is more remarkable, any impartial critic more praiseworthy, than the reverence paid on the whole by American opinion to the Supreme Court of the United States. Nor must one
the authority of the law courts.
and
in the eyes of
forget that the respect paid to the opinion of their owna judges, even when deciding questions on which pohtical feeling runs
on the whole, characteristic of the citizens of each The Supreme Court, e.g., of Massachusetts may be called upon to determine in effect whether a law passed
high,
is,
particular state.
by the legislature of Massachusetts is, or is not, constitutional and the decision of the Court will certainly meet with obedience. Now, what it is necessary to insist upon is that this legalism which fosters and supports the rule of law is not equally
No French court has ever pronounced a law passed by the French legislature invahd, nor, it is said, has any Belgian court ever pronounced invalid a law passed by the Belgian Parliament. Whether
displayed in every country.
definitely
EngUsh
electors are
decision of judges
is
feehng doubtful. Yet and no ûnder every federal system there must insignificant matter almost of necessity
this is
now strongly disposed to confide to the questions which excite strong pohtical
some body of persons who can decide whether the terms compact have been observed. But if this power be placed in the hands of the Executive, the law will, it may be feared, be made subservient to the will of any political
exist
of the federal
party which
is
for the
the hands of judges,

general respect for
moment supreme. If it be who profess and probably

decision
placed in
desire to
practise judicial impartiahty, it
may be very difficult to
ensure
any
and the
principles of
which contradicts the interests a dominant party. Pederahsm, lastly,
creates divided allegiance.
This is the most serious and the most inevitable of the weaknesses attaching to a form of government under which loyalty to a citizen's native state
may
conflict
with his loyalty to the whole federated nation.
FEDERALISM
lxxr;>
Englishmen, Scotsmen, and Irishmen have always, as soldiers, been true to the common flag. The whole history of the
Sonderbund in Switzerland and of Secession in the United

States bears witness to the agonised perplexity of the noblest
upon to choose between loyalty One example of this diflGlculty is amply sufficient for my purpose. General Scott and General Lee ahke had been trained as officers of the American Army each was a Virginian each of them was determined from the outbreak of the Civil War to follow the dictates of his own conscience each was placed in a position as painful as could be occupied by a soldier of bravery and honour each was a victim of that double allegiance which is all but inherent in federahsm. General Scott followed the impulse of loyalty to the Union. General Lee felt that as a matter of duty he must obey the sentiment of
soldiers
among
to their country
when and
called
loyalty to their canton or state.
loyalty to Virginia.
In any estimate of the strength or the weakness of federal government it is absolutely necessary not to confound, though the confusion is a very common one, federalism with nationalism. A truly federal government is the denial of national
independence to every state of the federation. No single state of the American Commonwealth is a separate nation no state, it may be added, e.g. the State of New York, has anything Uke as much of local independence as is possessed by New Zealand or by any other of the five Dominions.^ There is of course a sense, and a very real sense, in which
national tradition
and national feehng may be cultivated
in
a state which forms part of a confederacy. The French inhabitants of Quebec are Frenchmen to the core. But their
One indisputable loyalty to the British Empire is certain. source of their Imperial loyalty is that the break-up of the Empire might, as things now stand, result to Canada in union
with the United States.
difficulty
But Frenchmen would with more
maintain their French character if Quebec became a state of the Union and ceased to be a province of the Dominion. In truth national character in one sense of that term has less necessary connection than Enghshmen generally
1
As
to
meaning
of
" Dominions " see
p. xxiv, note 1 ante..
Ixxx
INTRODUCTION
folly to assert that Sir
suppose with political arrangements. It wotdd be simple Walter Scott did not share the sentiment of Scottish nationalism ; yet the influence of Scott's genius
throughout Europe was favoured by, and in a sense was the But the aspiration and the fruit of, the union with England. effort towards actual national independence is at least as inconsistent with the conditions of a federal as with the conditions
of
who
a unitary government. Any one wiU see that this is so considers how patent would have been the folly of the attempt to establish a confederacy which should have left
Italy a state of the Austrian Empire.
Nor does
historical
experience countenance the idea that federahsm, which

as a
may
certainly be a step towards closer national imity, can be used
method
for gradually bringing political unity to
an end.
Tim
Characteristics of Federal
to
Government in Relation
Imperial Federalism.
Many Enghshmen of to-day advpcate the building up oi some grand federal constitution which would include the United Kingdom (or, to use popidar language, England) and at any
rate the five Dominions.
This splendid vision of the advan-
of action between England and her self-governing colonies is suggested by obviorus and important facts. The wisdom of every step which may
tages to be obtained
by increased unity
increase the reciprocal goodwill, strong as
it
now is,
and
of
England
and her Dominions

Conference.
It
is
is
proved by the success of each Imperial

will
perfectly plain already,
become
every day plainer both to Englishmen and to the inhabitants of the British Empire outside England, that the existence of
the Empire ought to secure both England and her colonies against even the possibihty of attack by any foreign power.
It to-day in reahty secures the
maintenance of internal peace
and order
It
is
in every country inhabited

it
by
British subjects.
probably become in no long time an absolute necessity, that every country throughout the Empire should contribute in due measure to the cost of Imperial defence. To this it should be added that the material advantages accruing to millions of British subjects from the
further most desirable,
may

FEDERALISM
Ixxxi
Imperial power of England may more and more tend to produce that growth of loyalty and goodwill towards the Empire which in 1914 is a characteristic and splendid feature both of England and of her colonies. Any man may feel
an Imperial patriotism grounded on the legitimate up by England furthers the prosperity and the happiness of the whole body of British subjects.^ But, when every admission which the most ardent
pride in
belief
that the Empire built
of Imperialists
can ask
for, is
made
of the benefits conferred in
every quarter of the world upon the inhabitants of difierent countries, by the existence of England's Imperial power, it is
quite possible for a calm observer to doubt whether the socalled federaUsation of the British Empire is an object which ought to be aimed at by the statesmen either of England or of the Dominions. The objections to the creed of federaUsm, in so far as it means the building up of a federal constitution for the Empire, or rather for Dngland and her Dominions, may be summed up in the statement that this beUef in a new-
But this Empire of ours is distinguished from [other Empires] by and dominating characteristics. From the external point of view "it is made up of countries which are not geographically conterminous or " even contiguous, which present every variety of climate, soU, people, and
^
"
" special
" religion, and, even in those communities which have attained to complete " self-government, and which are representedin this room to-day, does not " draw its unifying and cohesive force solely from identity of race or of " language. Yet you have here a poUtioal organisation which, by its mere " existence, rules out the possibility of war between populations numbering " something like a third of the human race. There is, as there must be " among communities so differently situated and circumstanced, a vast " variety of constitutional methods, and of social and pohtical institutions " and ideals. But to speak for a moment for that part of the Empire which " is represented here to-day, what is it that we have in common, which " amidst every diversity of external and material conditions, makes us and " keeps us one ? There are two things in the self-governing British Empire " which are unique in the history of great poUtical aggregations. The first " is the reign of Law : wherever the King's writ runs, it is the symbol and " messenger not of an arbitrary authority, but of rights shared by every " citizen, and capable of being asserted and made effective by the tribunals
" of the land. The second is the combination of local autonomy absolute, " unfettered, complete ^with loyalty to a common head, co-operation, "spontaneous and unforced, for common interests and purposes, and, I " may add, a common trusteeship, whether it be in India or in the Crown " Colonies, or in the Protectorates, or within oiir own borders, of the interests " and fortunes of fellow-subjects who have not yet attained, or perhaps in " some cases may never attain, to the full stature of self-government." See speech of the Right Hon. H. H.-Asquith (President of the Conference), Minutes of Proceedings of the Imperial Conference, 1911 [Cd. 6746], p. 22.
Ixxxii
INTRODUCTION
is
fangled federalism
perilous not only to
at bottom a delusion, and a delusion England but to the whole British Empire.
But
this general statement

criticisms.
may
be best
justified
by the
working out of two

First.
is
The. attemjpt to at
this
Empire
form a federal nwment full of peril
constitution for the

to
England,
to
the
Dominions, and, it may well he, to the maintenance of the British Empire. The task imposed upon British and upon colonial statesmanship is one of infinite difficidty. As we aU know, the creation of the United States was for the thirteen independent But the highest colonies a matter of absolute necessity. statesmanship of the ablest leaders whom a country ever
possessed was hardly sufficient for the transformation of
thirteen different states into one confederated nation.
Even
of
among
it
countries differing Httle in race, rehgion,

all
and
history,
was found
If
but impossible ô reconcile the existence
state rights with the creation of a strong central
and national
power.
any one considers the
infinite diversity of the
countries which
that they are

histories,
make up the British Empire, if he reflects occupied by different races whose customs and
of
whose civiUsation are the product
absolutely different
that the different countries of the Empire are in no case contiguous, and in many instances are separated from
England and from each other by seas extending over thousands of miles, he will rather wonder at the boldness of the dreams
entertained by the votaries of federal ImperiaHsm, than beUeve that the hopes of federaUsing the Empire are likely to meet with fulfilment. I shall be reminded, however, and with truth, that Imperial federahsm, as planned by even its
most sanguine advocates, means something very different from the attempt to frame a constitution of which the United Kingdom, the Dominions, the Crown colonies, and British
India
really aim,
states. Our ImperiaUsts must be constantly borne in mind, at federahsing the relation not between England and the rest of the Empire, but between England and the five self-governing Dominions. But then this admission, while it does away with some of the difficulties besetting the
shall
constitute
different
and the
fact
FEDERALISM
policy
Ixxxin
which is miscalled Imperial federalism, raises a whole body of difficult and all but unanswerable questions. Take a few of the inquiries to which sanguine reformers, who talk with easy confidence of federaUsm being the solution of
all
the most pressing constitutional problems, must find a reply.

is
What
India
to be the relation between the
new
federated state
(consisting of
?
Dominions) and British Will the millions who inhabit India readily obey a
five
England and the
new and
strange sovereign, or will the states of the
new
confederacy agree that the rest of the Empire shall be ruled
by the Parhament and Government
of England alone ? Is whole expense of Imperial defence to be borne by the the federated states, or wiU the new federation of its own authority
impose taxes upon India and the Crown colonies for the advantage of the federated state ? Is it certain, after all, that the mutual goodwill entertained between England and the Dominions really points towards federalism ? No doubt
England and the states represented at the Imperial Conferences entertain a genuine and ardent wish that the British Empire should be strong and be able, as against foreigners, and even in resistance to secession, to use all the resources of the whole Empire for its defence and maintenance. But then each one of the Dominions desires rather the increase than the
lessening of its
own independence.
Is there the
remotest sign
that, for example.
New
Zealand, though thoroughly loyal to
by any Imperial Parhament or Congress with the internal affairs of New Zealand which even faintly resembled the authority exerted by Congress in New York, or the authority exerted by the Parhament of the Canadian Dominion in Quebec ? But if the Dominions would not tolerate the interference with their own affairs by any Parhament, whatever its title, sitting at Westminster,
the Empire, would tolerate interference
is
there the remotest reason to suppose that the existing Imperial Parhament will consent to become a Parhament
the Empire in which England, or rather the United Kingdom, and each of the five Dominions shall be fairly
of
But here we come to a further inquiry, to which our new federahsts hardly seem to have given a
represented?
thought
What
are they going to do with the old Imperial

Ixxxiv
INTRODUCTION
which has, throughout the whole history of
often
Parliament
England, inherited the traditions and

reality of sovereign
exerted
the
is power ? become a Federal Congress wherein the Imperial Parliament to Is this Federal every state is to have due representation ? Congress to be for Englishmen the English ParKament, or is
Under our new
federation
there to be in addition to or instead of the ancient Parliament
new local BngUsh Parliament controlling theafEairs England alone ? This question itself is one of unbounded difficulty. It embraces two or three inquiries the answers whereto may trouble the thoughts of theorists, and these repKes, if they are ever discovered, may give rise throughout England and the British Empire to infinite discord. Is it not one example of the perplexities involved in any plan of Imperial federaUsm, and of the intellectual levity with which they are met, that our FederaHsts never have given a clear and, so to speak, intelligible idea of what is to be under a federal government the real position not of the United Kingdom but of that small country Umited in size, but still of immense power, which is specifi.cally known by the august name of England ? The traditional feuds of Ireland and the ecclesiastical grievances of Wales, the demand of some further recognition of that Scottish nationality, for which no sensible Englishman shows or is tempted to show the least disrespect, all deserve and receive exaggerated attention. But England and English interests, just because Englishmen have identified the greatness of England with the prosperity of the United Kingdom and the greatness and good government of the Empire, are for the
of England a of
moment
overlooked.
I venture to assiire all
my readers
I here
that
this forgetfulness of
Englandand by England
mean
the country known, and famous, as England before the legal creation either of Great Britain or of the United Kingdom
is
justice,
a fashion opposed both to common sense and to common and, hke all opposition to the nature of things,
ultimately
Sir
will
1
come to nothing.i
is
The questions
;
have
an eminent colonial statesman he is also an ardent Imperialist of the colonial type. In his plan for an Imperial Council, or in other words for an Imperial Parliament representing the United Kingdom, or rather the countries which now make it up, and also the Dominions, he calmly assumes that Englishmen will without difficulty aUow the United
Joseph Ward
FEDERALISM
mentioned are numerous and
time,
full of
Ixxxv
complexity.
The present
we must add, is intensely unfavourable to the creation of a new federaUsed and Imperial constitution. The Parhament and the Government of the United Kingdom may be
chargeable with grave errors
blunders.
But they have never forgotten
one trusts, forget " whether it be in India or in the Crown Colonies, or in the " Protectorates, or within our own borders, of the interests " and fortunes of fellow-subjects who have not yet attained,
" or perhaps in some cases may never attain, to the full stature " of self-government." ^ Is it credible that, for instance,
they have fallen into many they will never, that they hold " a common trusteeship,
:
the peoples of India will see with indifference this trusteeship

pass from the hands of an Imperial Parliament (which has
more or
less learned to
think imperially, and in England has
maintained the equal pohtical rights of all British subjects) into the hands of a new-made Imperial Congress which will consist in part of representatives of Dominions which, it may
be of necessity, cannot give

of British citizenship
?
effect to this enlarged conception
Secondly.
tion of
The unity of
the
Empire does not require theformch

constitution.
a federal or of any other brand-new
Î
no man in my passion for the greatness, the strength, I am the glory, and the moral unity of the British Empire.^ one of the thousands of EngHshmen who approved, and still approve, of the war in South Africa because it forbade
yield to
secession.
But
am
my
unhesitating conviction
a student of the British constitution is that the constitution of the

it is
Empire ought to develop, as
actually developing, in the
Kingdom to be broken up into four countries ruled by four local Parliaments. He supposes, that is to say, as a matter of course, that Englishmen will
agree to a radical change in the government of England which no sane English Premier would have thought of pressing upon the Parliaments of the self-governing colonies which now constitute the Dominion of Canada or which now constitute the Commonwealth of Australia. See Minutes of Proceedings of the Imperial Conference, 1911 [Cd. 5745], pp.
59-61.
"
' '
See Mr. Asquith's address, cited See p. xxxvii, and note 1, ante. See A Fool's Paradise, p. 24.
p. Ixxxi,
note
1,
ante.
Ixxxvi
tMTRODUCTtON
same way in which grew up the constitution of England.^ The relation between England and the Dominions, and, as far as possible, between England and the colonies which are not as yet self-governing countries, need not be developed by arduous feats of legislation. It should grow under the influence of reasonable understandings and of fair customs. There are, as I have intimated,^ two objects on which every Imperiahst should fix his eyes. The one is the contribution by every coimtry within the Empire towards the cost of defending the Empire. The second object is the constant consultation between England and the Dominions. The Enghsh taxpayer will not, and ought not to, continue for ever paying the whole cost of Imperial defence. The Dominions cannot for an indefinite period bear the risks of Imperial
wars without having a voice in determining if such wars should begin, and when and on what terms they should be brought to an end. Imperial statesmanship is rapidly advancing in the right direction. The system of Imperial Conferences ^ and other modes of inter-communication between England and the Dominions will, we may hope, result in regulating both the contribution which the Dominions ought to make towards
the defence of the Empire, and the best
colonial opinion
method
for collecting
on the poUcy of any war which
may
assimie
an Imperial character. My full beHef is that an Imperial constitution based on goodwill and fairness may within a few years come into real existence, before most Englishmen have
reaUsed that the essential foundations of Imperial unity have already been firmly laid. The ground of my assurance is that the constitution of the Empire may, hke the constitution of England, be found to rest far less on parhamentary statutes
than on the growth of gradual and often unnoted customs.

1 This conviction is strengthened by the facts now daily passing before our eyes (Sept. 1914). See pp. Ixxx, bcxxi, ante, ; and see A Fool's Paradise, p. 25. ' Consider the gradual, the most hopeful, and the most successful development of these conferences from 1887 to the last conference in 1911. A sort of conference was held in 1887, and the conferences of 1897 and 1902 were held in connection with some other celebration. The first regular conference for no other purpose than consultation was held in 1907, in which the Imperial Conference received by resolution a definite constitution. The conference of 1911 was held uncier the scheme thus agreed upon in 1907.
'^
FEDERALISM
Gha/racteristics of Federal
Ixxxvii
Government in Relation
all
to
Home
Rule
Round
Advocates of the so-called " federal solution " apparently believe that the United Kingdom as a whole will gain by exchanging our present unitary constitution for some unspecified form of federal government. To an Englishman who still holds, as was universally held by every English statesman tiU at the very earUest 1880, that the union between England
and Scotland was the wisest and most fortunate among the
achievements of British statesmanship, there
in imderstanding the
is
great difficulty
new behef
that the federahsation of the
United Kingdom will confer benefit upon any of the inhabitants of Great Britain.^ A candid critic may be able to account for
the existence of a political creed which he does not affect to
share.
The
if
faith in
Home
Rule
all
round has been stimulated,
not mainly created, by the controversy, lasting for thirty years and more, over the pohcy of Home Rule for Ireland. British Home Rulers have always been anxious to conceal
from themselves that the creation of a separate Irish Parhament, and a separate Irish Cabinet depending for its existence on such ParUament, is a real repeal of the Act of Union between Great Britain and Ireland. This refusal to look an obvious fact in the face is facihtated by the use of that most amFederahsm biguous phrase, "Home Rule all round." has, no doubt, during the last thirty, or one may say
fifty,
^
years
acquired
a good deal of new prestige.
The
The omission of reference to the policy of Home Rule for Ireland as embodied in the Government of Ireland Act, 1914, is intentional. The true character and effect of that Act cannot become apparent until some years have passed. The Act itself stands in a position never before occupied by any statute of immense and far-reaching importance. It may not come Its very authors contemplate its into operation for an indefinite period. amendment before it shall begin to operate. The Act is at the moment detested by the Protestants of Ulster, and a binding though ambiguous pledge has been given that the Act will not be forced upon Ulster against her wiU. The people of Great Britain will insist on this pledge being held sacred. To a constitutionalist the Act at present affords better ground for wonder than for criticism. If any reader should be curious to know my views on Home Eule he will find them in a general form in England's Case against Home Rule, published in 1887 ; and as applied to the last Home Eule BilL
in
FooVs Paradise, published in 1913.
Ixxxviii
INTRODUCTION
prosperity of the United States, the miUtary authority of

federaKsts be put down to the government, though in matter of fact no two credit of federal
the
German Empire, may by
constitutions can, either in their details or in their spirit, bear
resemblance than the democratic and, on the whole, unmihtary constitution of the United States and the autocratic Imperial and, above all, military government of Germany. Federal government has also turned out to be the form of government suitable for some of the British Dominions. It has been an undoubted success in the Canadian Dominion. It has not been long tried but has not been a failure in the AustraUan Commonwealth. It may become, EngHshmen are inclined to think it is, the best form of government for the states included in the Union of South Africa. Little reflection, however, is required in order to see that none of these federations resemble the constitution of England either in their historical development or in their actual circumstances. Then, too, it is thought that whereas Enghsh statesmen find it difficult to regulate the relation between Great Britain and Ireland, the task will become easier if the same statesmen undertake to transform, by some hocus-pocus of political legerdemain, the whole United Kingdom into a federal governless real
ment consisting of at least four different states. It is supposed, lastly, though the grounds for the supposition are not very evident, that the federahsation of the United Kingdom
is
necessary
for,
or conducive to, the development of Imperial
federaUsm.
FederaUsm, in short, has at present the vague, and therefore the strong and imaginative, charm which has been possessed
at one time throughout
Europe by the parliamentary constitutionahsm of England and at another by the revolutionary repubhcanism of France. It may be well, therefore, to state
with some precision why, to one who has studied the characteristics of federal government, it must seem in the highest degree improbable that Home Eule all round, or the federal solution,
will
be of any benefit whatever to any part of the United

There
is no trace whatever of the existence of the federal throughout the United Kingdom. In England, which
Kingdom.
(1)
spirit
FEDERALISM
is
Ixxxix
after all
by
far the
most important part

it
of the
kingdom, the
Poli-
idea of federalism has hitherto been totally unknown.

ticians
may have
talked of
when
it
happened to
suit their
party interest, but to the mass of the people the idea of

federation has always been,
and
I venture to assert at this
moment
but incomprehensible. Scotsmen sometimes complain that Great Britain is often called England. They sometimes talk as though they were in some mysterious manner precluded from a fair share in the benefits accruing from the unity of Great Britain. To any one who investigates
is,
unknown and
all
the actual course of British poKtics, and
still
more
of British
social life since the beginning of the nineteenth century, these
complaints appear to be utterly groimdless.
The
prejudices
which, say, in the time of Dr. Johnson, kept Scotsmen and
Englishmen apart, have in reaUty vanished. To take one example of disappearing differences, we may note that while many leading Englishmen fill in Parhament Scottish seats many Scotsmen fill EngUsh seats. What is true is that the course of events, and the way in which the steam-engine and the telegraph bring the world everywhere closer together, are unfavourable to that prominence in any coimtry which at one
time was attainable by particular locaUties, or by small bodies of persons hving somewhat apart from the general course of national fife. This change has, like all other alterations, its weak side. It is quite possible honestly to regret the time when Edinburgh possessed the most intellectual society to be found
in Great Britain or Ireland.
It
is
also possible honestly to

still
wish
that Lichfield and Norwich might
have, as they had at the
beginning of the nineteenth century, a httle and not unfamous There is a sense in which the literary coterie of their own.
growth of large states
is injurious to the individual Ufe of communities. The Eoman Kepubhc and the Eoman smaller Empire did not produce thinkers or writers who did as rnuch for the progress of mankind as was done by the philosophers,
the historians, and the poets of Greece, and the fruits of Greek genius were mainly due to the intellectual achievements of Athens during not much more than a century. Ireland is,
as regards
Union.
most But it is
of its inhabitants,
idle to
discontented with the
pretend that Ireland has ever desired
xe
iNTRODlJCTlON
it
federalism in the sense in which
was desired by the
colonies
which originally formed the United States, or by the inhabitants of what are now the provinces of the Canadian Dominion. O'Connell for a very short time exhibited a tendency to substitute federahsm for repeal. He discovered his mistake and reverted to repeal, which with his more revolutionary followers meant nationalism. No one who reads the last and the strangest of the biographies of ParneU can doubt that " Ireland a Nation " was the cry which met his own instinctive feehng no less than the wishes of his followers, except in so far as their desires pointed towards a revolutionary change in the tenure of land rather than towards
the claim for national independence.
(2) There is good reason to fear that the federahsation of the United Kingdom, stimidating as it would the disruptive
force of local nationahsm, might well arouse a feeling of divided
This topic is one on which I have no wish to dwell, but it cannot be forgotten by any sensible observer who reflects
allegiance.
upon the history of secession in the United States, or of the Sonderbund in Switzerland, or who refuses to forget the preeminently uneasy connection between the different parts of the Austrian Empire and the deUberate determination of Norway to sever at all costs the union with Sweden. Nor
is it
possible to see
how
the federahsation of the United
Kingdom should
(3)
is
growth of Imperial federahsm. Federahsm, as the dissolution of the United Kingdom,

faciUtate the
absolutely foreign to the historical and, so to speak, in-
poUcy of Enghsh constitutionahsts. Each successive Edward I. onwards has laboured to produce that complete pohtical imity which is represented by the absolute sovereignty of the Parhament now sitting at Westminster. Let it be remembered that no constitutional arrangements or fictions could get rid
stinctive
generation from the reign of
of
the
fact
that
estabhshment of
Home
England would, after as before the Rule all round, continue, in virtue of
her resources and her population, the predominant partner throughout the United Kingdom, and the partner on whom sovereignty had been conferred, not by the language of any statute or other document, but by the nature of things. It
THE kMFERENDVM
would be hard indeed to prevent the EngUsh Parliament Westminster from not only claiming but exercising sovereign authority and to all these difficulties must be added one ominous and significant reflection. To every foreign country, whether it were numbered among our allies or among our rivals, the federaUsation of Great Britain would be treated as a proof of the dechning power ahke of England and of the British Empire.^ IV. The Beferendum.^ The word Keferendum is a foreign expression derived from Switzerland. Thirty years ago it was almost unknown to Englishmen, even though they were interested in poUtical theories. Twenty years ago it was The word has now quite unknown to British electors. obtained popular currency but is often misunderstood. It
sitting at
;
may
be well, therefore, to define, or
rather
describe, the
meaning of the " referendum " as used in this Introduction and as appHed to England. The referendum is used by me as meaning the principle that Bills, even when passed both by the House of Conamons and by the House of Lords,^ should not become Acts of Parliament imtil they have been submitted to the vote of the electors and have received the sanction or approval of the majority of the electors voting on the matter.
1 Any great change in the form of the constitution of England, e.g. the substitution of an English republic for a limited monarchy, might deeply Can any one be certain that affect the loyalty of aU the British colonies. New Zealand or Canada would, at the bidding of the Parliament of the United Kingdom, transfer their loyalty from George V. to a President chosen by the electorate of the United Kingdom, and this even though the revolution were carried out with every legal formality including the assent of the King
himself,
and even though the King were elected the

?
first
President of the
new Commonwealth
Ireland, Scotland, and paid to the present United Kingdom ? These questions may well seem strange : they are not unimportant. The King is what the Imperial Parliament has never been, the typical representative of Imperial unity throughout every part of the Empire. ^ Lowell, PvMic Opinion and Popular Government, part iii. chaps, xi.-xv., especially chaps, xii. and xiii. (best thing on the subject) ; Lowell, Governrmnl of England,!, p. 411 ; "The Referendum audits Critics," by A. V. Dicey, Quarterly Review, No. 423, April 1910 ; The Crisis of Liberalism, by J. A. Hobson ; Low, The Governance of England, Intro, p. xvii ; " Ought the Pveferendum to be introduced into England ? " by A. V. Dicey, GonUmporary
Is it certain that a federated union of England, Wales would command in our colonies the respect
Review, 1890, and National Review, 1894.

^ And a fortiori when passed under the Parliament Act, without the consent of the House of Lords.
INTRODUCTION
The referendum
a good one
;
is
sometimes described, and for general pur-
poses well described, as " the people's veto."

it
This name is reminds us that the main use of the referendum is to prevent the passing of any important Act which does not command the sanction of the electors. The expression " veto " reminds us also that those who advocate the
introduction of the referendum into England in fact demand that the electors, who are now admittedly the pohtical
sovereign of England, should be allowed to play the part in legislation which was really played, and with popular approval, by e.g. Queen Ehzabeth at a time when the
King or Queen
part of
reign of the country, but
England was not indeed the absolute sovewas certainly the most important the sovereign power, namely ParUament.^ In this
of
Introduction the referendum, or the people's veto, is considered simply with reference to Bills passed by the Houses of ParKa-
ment but which have not received the royal assent. The subject is dealt with by no means exhaustively, but with a view in the first place to bring out the causes of the demand and in the next place to conin England for the referendum carefully and examine in turn first by far the strongest sider argument against, and secondly the strongest argument in
;
favour of introducing the referendum into the constitution of
England.
Tlie causes. During forty years faith in parliamentary government has suffered an extraordinary dechne or, as some would say, a temporary echpse.^ This change is visible in every civilised country. Depreciation of, or contempt for, representative legislatures clearly exists imder the parha-
should be noted, can be applied to legislation in different ways. It may, for instance, be applied only to a Bill affecting fundamental changes in the constitution, e.g. to a Bill affecting the existence of the monarchy, or to any BiU which would in popular language be called a Reform Bill, and to such BiU after it has been passed by the two Houses. In this case the object of the referendum would be to ensure that no Act of transcendent importance shall be passed without the undoubted assent of the electors. The referendum may again be applied, as it is applied in the Commonwealth of Australia, for preventing " deadlocks," as they are called, arising from the fact of one House of Parliament having carried repeatedly, and the other having repeatedly rejected, a given BUI. ' Compare Law and Opinion (2nd ed.), pp. 440-443.
1
The referendum,
it
for different purposes
and
THE REFERENDUM
mentary and republican government of France, under the and republican constitution of the Swiss Confederacy, or of the United States, under the essential mihtarism and the superficial parliamentarism of the German Empire, and even imder the monarchical and historical constitutionaliflm of the British Empire. This condition, whether temporary
or permanent, of public opinion greatly puzzles the
federal
now
small
body
enough to remember the sentiment of the mid- Victorian era, with its prevalent belief that to imitate the forms, or at any rate to adopt the spirit of the EngUsh constitution, was the best method whereby to confer upon the people of any civilised country the combined blessings of order and of progress. To explain in any substantial degree the alteration in popular opinion it would be necessary to produce a treatise probably longer and certainly of more profound thought than the book for which I am writing a new Introduction. Yet one or two facts may be noted which, though they do not solve the problem before us, do to some slight extent suggest the Kne in which its solution must be sought for. Parliamentary government may under favourable circumstances go a great way towards
of surviving constitutionaHsts old
securing such blessings as the prevalence of personal hberty
and the free expression of opinion. But neither parliamentary government nor any form of constitution, either which has been invented or may be discovered, wOl ever of itself remove all or half the sufferings of human beings.
Utopias lead to disappointment just because they are Utopias. The very extension of constitutional government has itself led to the frustration of high hopes ; for constitutions have by force of imitation been set up ia states unsuited to popular
government.
defects
What
is
government has by
its
even more important, parhamentary contiaued existence betrayed two
hardly suspected by the Liberals or reformers of Europe, or at any rate of England, between 1832 and 1880. We now know for certain that while popular government may be under wise leadership a good machine for simply destroying
existing evils, it
may turn
out a very poor instrument for the
construction of
ideals.
We
new know further
institutions or the realisation of
new
that party government, which to
INTRODUCTION
many among
the wisest of modern constitutionalists appears
to be the essence of England's far-famed constitution, in-
evitably gives rise to partisanship,
and at
last
produces a
machine which
may well
lead to poKtical corruption
when
this evil is escaped, lead to the strange
and may, but acknowledged
result that
a not unfairly elected legislature
may
misrepre-
sent the permanent will of the electors.
This fact has
made
much
and
impression on the pohtical opinion both of England
The above considerations taken some explanation of a demand for that referendum which, though it originates in Switzerland, flourishes in reaUty, though not in name, in almost every state of the American Commonwealth. The main argument against the referendum. To almost all
of the United States.
as a whole afford
EngUshmen the chief objection to the referendum is so obvious, and seems to many fair-minded men so conclusive, that it ought to be put forward in its full strength and to be carefully examined before the reader is called upon to consider the
possible advantages of a great change in our constitution.
may be thus stated In England the introduction of the referendum means, it is urged, the transfer of political power from knowledge to ignorance. Let us put this point in a concrete form. The 670 members of the House of Commons together with the 600 and odd members of the House of Lords ^ contain a far greater proportion of educated men endowed with marked intellectual power and trained in the exercise of some high pohtical virtues than would generally be found among, say, 1270 electors collected merely by chance from an electorate of more than 8,000,000. The truth of this allegation can hardly be disputed the inference is drawn therefrom that to
This objection
;
substitute the authority of the electorate for the authority of the House of Commons and the House of Lords is to transfer
the government of the country from the rule of inteUigence to the rule of ignorance. This line of argument can be put in
various shapes. It is, in whatever form it appears, the reasoning on which the most capable censors of the referendum rely. Oddly enough (though the matter admits of explanation)
1 Strictly,
638 members.
See WhitaUr's Almanack, 1914,
p. 124.
THE REFERENDUM
this line of reasoning is
servative, such as Maine,
adopted at once by a thoughtful conand by revolutionists who wish to force upon England, through the use of authoritative legislaMaine saw in the referendum tion, the ideals of socialism.
a bar to
all
reasonable reforms.
is
He impresses upon his readers
that democracy
a progressive form of government, and expresses this view in words which deserve quota" The delusion that democracy," he tion and attention writes, " when it has once had all things put under its feet, is " a progressive form of govemmentj lies deep in the connot in
itself
:
" victions of a particular political school
but there can be
"no
delusion
grosser.
all
" famous, and
... All that has made England that has made England wealthy, has been
" the work of minorities, sometimes very small ones. It " seems to me quite certain that, if for four centuries there " had been a very widely extended franchise and a very large "electoral body in this country, there would have been no " reformation of reUgion, no change of dynasty, no toleration
" of Dissent, not even an accurate Calendar. The threshing" machine, the power-loom, the spinning- jenny, and possibly
"the steam-engine, would have been
prohibited.
Even
in
" our day, vaccination is in the utmost danger, and we may " say generally that the gradual estabhshment of the masses " in power is of the blackest omen for all legislation founded " on scientific opinion, which requires tension of mind to
thence practically infers that
submit to it." ^ And he democracy as it now exists in England would, combined with the referendum, be probably
" -understand
it,
and
self-denial to
a death-blow to all reasonable reform.^ To Maine, in short, the referendum is the last step in the development of democracy, and his censure of the referendum is part of a powerful attack by an intellectual conservative on democratic government
which he distrusted and abhorred. Now revolutionists who probably think themselves democrats have of recent years attacked the referendum on grounds which might have been suggested by Maine's pages. The referendum, we are told by
sociahstic writers, will
1
work
steadily to the disadvantage of thtj
Maine, Popular Oovernment, pp. 97-98. 2 See ibid. pp. 96-97.
; ;
INTROD UCTION
Liberal Party.^
Would
?
ing press exhaust deceive the people
itself in
we are asked, the anti-reformmalignant falsehoods calculated to Such suggestions and others of the same
not,
be summed up in an argument which from a quality sociaUstic point of view has considerable force. The people, it is said, are too stupid to be entrusted with the referendum the questions on which the electors are nominally called upon to decide must never be put before them with such clearness that they may understand the true issues submitted to their arbitrament. The party machine, think our new democrats,
may
may be made
the instrument for foisting upon the people of
England changes which revolutionary radicals or enthusiasts know to be reforms, but which the majority of the electorate, if they understood what was being done, might condemn as revolution or confiscation. The attacks of conservatives and
the attacks of sociaUstic democrats to a certain extent balance
one another, but they contain a common element of truth. The referendum is a mere veto. It may indeed often stand in the way of salutary reforms, but it may on the other hand delay or forbid innovations condemned by the weight both of the uneducated and of the educated opinion of England. Thus it is, to say the least, highly probable that, if the demand of votes for women were submitted to the present electorate by means of a referendimi, a negative answer would be returned, and an answer of such decision as to check for years the progress or success of the movement in favour of woman suffrage. It must, in short, be admitted that a veto on legislation, whether placed in the hands of the King, or in the hands of the House of Lords, or of the House of Commons, or of the 8,000,000 electors, would necessarily work sometimes well and sometimes ill. It might, for example, in England forbid the enforcement or extension of the vaccination laws it might forbid the grant of parhamentary votes to EngUshwomen it might have forbidden the passing of the Government of Ireland Act, 1914 it might certainly have forbidden the putting of any tax whatever on the importation of corn into the United Kingdom. Now observe that if you take
;
* See Against Oie Referendum and Quarterly Beview, April 1910, No. 423, pp. 651, 652.
THE REFERENDUM
any person, whether an Englishman or Englishwoman, he some one or more of these instances the referendum would have worked ill, and that in some one or more of these instances it would have worked well. All, therefore, that can be conclusively inferred from the argument against the referendum is that the people's veto, like any other veto, may sometimes be ill, and sometimes be well employed. Still it certainly would be urged by a fairminded opponent of the referendum that there exists a presumption that the Houses of Parliament acting together wiU exhibit something more of legislative intelligence than would the mass of the electorate when returning their answer to a question put to them by the referendum. But a reasonor she will probably hold that in
able supporter of the referendum, while admitting that such
a presumption may exist, wiU however maintain that it is The Parliament Act gives unUmited of very slight weight. authority to a parliamentary or rather House of Commons majority. The wisdom or experience of the House of Lords
is
in matters of
influence.
permanent legislation thereby deprived of all House of Commons majority acts more and
more exclusively under the influence of party interests. It is more than possible that the referendum might, if introduced
into England, increase the authority of voters not deeply
pledged to the dogmas of any party. The referendum, as I have dealt with it, cannot, be it always borne in mind, enforce any law to which at any rate the House of Commons has not
consented.
veto.
It has the merits as also the weaknesses of a
recommendation is that it may keep in check the inordinate power now bestowed on the party
Its strongest
machine.
The main argument in favour of the referendum.Tlha referendum is an institution which, if introduced into England, would be strong enough to curb the absolutism of a party possessed of a parhamentary majority. The referendum is also an institution which in England promises some condiminution in the most patent defects of party government. Consider first the strength of the referendum. once a demoIt lies in the fact that the people's veto is at
siderable
cratic institution, and,
owing to
its
merely negative character,
INTRODUCTION
may be
a strictly conservative institution.
It
is
democratic,
to
for it is in reality, as also
on the face
it
thereof,
an appeal
the people. It is conservative since

of
ensures the maintenance
which the majority of the electors Nor can any one who studies the present condition of EngUsh society seriously beHeve that, under any system whatever, an institution deUberately condemned by the voice of the people can for a long time be kept in existence. The referendum is, in short, merely the clear recognition in its negative form of that sovereignty of the nation of which under a system of popular government
any law or
institution
efiectively
wish to preserve.
every leading statesman admits the existence. But the mere consonance of a given arrangement with some received doctrine, siich as " the sovereignty of the people," must with
a thoughtfid man carry little weight, except in so far as this harmony with prevalent ideas promises permanence to some suggested reform or beneficial institution. Let us then consider next the tendency of the referendum to lessen the evils of the party system. An elected legislature may well misrepresent the
This is proved by the constant experience and of each of the States which make up the American Commonwealth. This danger of misrepresenting the will of the nation may exist even in the case of an honest and a fairly-elected legislative body. This misrepresentation
will of the nation.
of Switzerland
is
general election comes
Ukely or even certain to arise where, as in England, a more and more to resemble the election of a given man or a given party to hold office for five years. Partisanship must, under such a system, have more weight than patriotism. The issues further to be deter-
mined by the
of the
electors will year by year become, in the absence referendum, more compHcated and confused. But in the world of poHtics confusion naturally begets intrigue,
sometimes coming near to fraud.

bodies
is,
Trust in elected legislative
under every form of The party machine is regarded with suspicion, and often with detestation, by public-spirited citizens of the United States. Coahtions, log-rolHng, and parhamentary intrigue are in England diminishing the moral and poHtical faith in the House of Commons. Some means
popular government.
as already noted, dying out
THE REFERENDUM
must,
believe, be found for the diminution which are under a large electorate the natural, if not the necessary, outcome of our party system. The obvious corrective is to confer upon the people a veto which may restrict the unbounded power of a parHamentary majority. No doubt the referendum must be used with vigilance and with sagacity. Perpetual watchfulness on the part of all
many Englishmen
of evils
honest citizens is the unavoidable price to be paid for the maintenance of sound popular government. The referendum further will promote or tend to promote among the electors
a kind of intellectual honesty which, as our constitution now works, is being rapidly destroyed. For the referendimi will
make
law,
it
e.g.
possible to detach the question, whether a particular
a law introducing some system of so-called
tariff
reform, shall be passed, from the totally different question,
whether Mr. A or Mr. B shall be elected for five years Prime Minister of England. Under the referendum an elector may begin to find it possible to vote for or against a given law in accordance with his real view as to its merits or demerits, without being harassed through the knowledge that if he votes against a law which his conscience and his judgment condemns,
whom he deems the fittest man England to be Prime Minister, shall cease to hold office, and that B, whom the elector happens to distrust, shall at once become Prime Minister. And no doubt the referendum, if ever established in England, may have the effect, which it already has in Switzerland, of making it possible that a minister or a Cabinet, supported on the whole by the electorate, shall retain oflB.ce honestly and openly, though some proposal made by the Prime Minister and his colleagues and assented to by both Houses of Parliament is, through the referendum, condemned by the electorate. These possible results are imdoubtedly
he will also be voting that A,
in
repulsive to
men who
see nothing to censure in our party
system. But, as I have throughout insisted, the great recommendation of the referendum is that it tends to correct, or at lowest greatly to diminish, the worst and the most patent
party government. No effort has been made by me to exhaust the argimaents against or in favour of the referendum. My aim in this Introevils of
INTRODUCTION
duction has been to place before
my
readers the strongest
argument against and
also the strongest
argument
in favour
of the introduction of the referendum into the constitution of England. It is certain that no man, who is really satisfied with the working of our party system, will ever look with favour on an institution which aims at correcting the vices of party government. It is probable, if not certain, that any one, who realises the extent to which parliamentary government itself is losing credit from its too close connection with the increasing power of the party machine, will hold with myself that the referendum judiciously used may, at any rate in the case of England, by checking the omnipotence of partisanship, revive faith in that parUamentary government which has been the
glory of English constitutional history.
Conclusions
(1)
The sovereignty
of Parliament is
still
the fundamental
doctrine of English constitutionalists.

of the
But the authority
authority of the House of

increased.
Lords has been gravely diminished, whilst the Commons, or rather of the majority thereof during any one Parhament, has been immensely
of
House
Now this increased portion of sovereignty can be efEectively exercised only by the Cabinet which holds in its hands the guidance of the party machine. And of the party which the parhamentary majority supports, the Premier has become at once the legal head and, if he is a man of abihty,
the real leader.^
This gradual development of the power of the Cabinet and of the Premier is a change in the working of the
It is due to at least two interconnected the advance towards democracy resulting from the estabHshment, 1867 to 1884, of Household Suffrage the other is the increasing rigidity of the party system. The
causes.
English constitution.
The one
is
result of a state of things
or outside
has fully
1
i.
which is not yet fully recognised inside Parhament is that the Cabinet, under a leader who studied and mastered the arts of modern parliamentchaps, xxiv.-xxvii.,
Piiblic
Lowell, Government of England,

;
pp. 441-447 67-110.
Opinion and Popular Oovernment,
and especiaUy part ii dd. ^'^ ^
CONCLUSIONS
ci
ary warfare, can defy, on matters of the highest importance, the possible or certain will of the nation. This growth of the authority obtained by the men who can control the party
machine is the more formidable if we adopt the view propounded by the ablest of the critics of the Government of England, and hold with Lowell that party government has been for generations not the accident or the corruption but,
so to speak, the very foundation of our constitutional system.^
The best way to measure the extent of a hardly recognised alteration in the working of parHamentary government in England is to note the way in which a system nominally unchanged worked in the days of Palmerston, i.e. from 1855 He became to 1865, that is rather less than sixty years ago. was in 1857 the most popular of Premier in 1855. He After a contest with a coalition of all Prime Ministers. dissolution of ParHament gave to the his opponents, a old parhamentary hand a large and decisive majority. For once he lost his head. He became for the minute A cry in which unpopular in the House of Commons. there was Httle of real substance was raised against him
In 1858 he resigned office; in 1859 electors. another dissolution restored to office the favourite of the He remained Premier with the support of the vast people.
amongst the
majority of the electors till his death in 1865. These transthey actions were natural enough in the Palmerstonian era could hardly recur in 1914. Palmerston, as also Gladstone,
;
did not hold power in virtue of the machine. The ParUament Act is the last and greatest triumph of party government.
^
The increasing influence of the party system has in England, and still more throughout the British Empire, influence singularly coincided with the growth of the moral
(2)
by the Crown. From the accession of Victoria to the present day the moral force at the disposal of the Crown England has increased. The plain truth is that the King of of moral authority of which has at the present day two sources account in writers on the constitution hardly take enough King, whoever he be, is the only regard to the future. The man throughout the British Empire who stands outside, if not
exercisable
1
See note on preceding page.
INTRO b vetION
above, the party system.
The King
is,
in lands outside the

sole,
United Kingdom, the acknowledged, and indeed the representative and centre of the Empire. ^
(3)
The last quarter of the nineteenth and, still more clearly,

fourteen years of the twentieth century are, as already
the
first
pointed out, marked by decHning faith in that rule of law which in 1884 was one of the two leading principles of con-
government as understood in England. ideas for the improvement of the con(4) stitution which now occupy the minds of reformers or innovators are intended, at any rate, to provide against the unpopularity of legislation, but for the most part are hardly framed with the object of promoting the wisdom of legislation. No doubt some of these schemes may indirectly
stitutional
The various
increase the chance that injudicious legislation
may
receive a
sometimes secure a hearing in the House of Commons for opinions which, though containing a good deal of truth, command httle or comparacheck.
Proportional representation
may
tively Uttle popularity. The referendum, it is hoped, may diminish the admitted and increasing evil of our party system.
Still,
as I have insisted, the
advocates of poUtical change
is
main object aimed at by the for the most part to ensure
that legislation shall be in conformity with popular opinion.^ The conclusions I have enumerated are certainly calculated
to excite anxiety in the minds of sensible
and patriotic EngKshput to himself
men.
Every
citizen of
:
pubhc
spirit is forced to
What will be the outcome of the democratic constitutionahsm now estabUshed and flourishing in England ? He is bound to remember that pessimism is as hkely to mislead a contemporary critic as optimism. He wiU find the nearest
this question
approach to the answer which his inquiry requires ia a sermon or prophecy dehvered in 1872 by a constitutionahst who even then perceived possibihties and perils to which forty-two
years ago our leading statesmen were for the most part bhnd. Listen to the words of Walter Bagehot " In the meantime," wrote Walter Bagehot, " our statesmen
" have the greatest opportunities they have had for many " years, and Ukewise the greatest duty. They have to guide
1
See
p.
1,
ante..
See pp.
lix-lxjj, ante.
CONCLUSIONS
;
ciii
" the new voters in the exercise of the franchise to guide " them quietly, and without sajdng what they are doing, but
"
still to guide them. The leading statesmen in a free country " have great momentary power. They settle the conversation " of mankind. It is they who, by a great speech or two,
" determine
what
" long after. ' settle the

' the
shall be said and what shall be written for They, in conjunction with their counsellors, programme of their party the ' platform,' as
Americans call it, on which they and those associated " with them are to take their stand for the pohtical campaign. " It is by that programme, by a comparison of the programmes " of different statesmen, that the world forms its judgment.
"
''
"
"
' " "

" " "
The common ordinary mind is quite unfit to fix for itself what pohtical question it shall attend to it is as much as it can do to judge decently of the questions which drift down to it, and are brought before it it almost never settles its topics it can only decide upon the issues of these topics. And in settling what these questions shall be, statesmen have now especially a great responsibihty if they raise questions which will excite the lower orders of mankind if they raise questions on which those orders are if they raise questions on which the Hkely to be wrong
; ;
" interest of those orders is not identical with, or is antagon" istic to, the whole interest of the State, they will have done " the greatest harm they can do. The future of this country " depends on the happy working of a dehcate experiment, " and they will have done aU they could to vitiate that experi" ment. Just when it is desirable that ignorant men, new to
"
politics, should have good issues, and only good issues, put " before them, these statesmen will have suggested bad issues. " They will have suggested topics which will biad the poor as
" a class together topics which will excite them against the " rich topics the discussion of which in the only form in
; ;
" which that discussion reaches their ear will be to make them " think that some new law can make them comfortablethat " it is the present law which makes them uncomfortable " that Government has at its disposal an inexhaustible fund
" out of which it can give to those who now want without also " creating elsewhere other and greater wants. If the first
INTROD UCTION
'
work
of the poor voters is to try to create
'
poor man's
'
paradise,' as poor
men
are apt to fancy that Paradise, and

it,
'
as they are apt to think they can create

trial
the great political

gift of
'
now
beginning will simply
fail.
The wide
the
a great calamity to the whole nation, and to those who gain it as great a calamity as to 'any."i
'
elective franchise will be
'
man of genius, who being dead yet Whether the warning which his words certainly contain was unnecessary, or whether his imphed prophecy
This
is
the language of a
speaketh.
of evil has not already
been partially
fulfilled or
may
not
some not distant date obtain more complete fulfilment, are inquiries which must be answered by the candour and the thoughtfulness of my readers. The complete reply must be left to the well-informed and more or less impartial historian, who in 1950 or in 2000 shall sum up the final outcome of democratic government in England. StiU it may be allowable to an author writing in 1914, though more than half blinded, as must be every critic of the age in which he Hves, by the ignorance and the partiahties of his own day, to remember that the present has its teaching no less than the past or the future.
at
War has be more impressive than the lessons, valuable as they always are, of peace. The whole of a kingdom, or rather of an Empire, united for once in spirit, has entered with enthusiasm upon an arduous conflict with a
National danger
its
is
the test of national greatness.
lessons
which
may
nation possessed of the largest and the most highly trained army which the modern world can produce. This is in itself a matter of grave significance. England and the whole
Empire with her have taken up the sword and thereby have risked the loss of wealth, of prosperity, and even of political existence. And England, with the fervent consent of the people of every land subject to the rule of our King, has thus exchanged the prosperity of peace for the dangers and labours of war, not for the sake of acquiring new territory or
British
of gaining additional
mihtary glory, for of these things she
has enough and more than enough already, but for the sake of enforcing the plainest rules of international justice and
*
Bagehot, English Constitution (2nd ed.) pp. xvii-xix.
CONCLUSIONS
the plainest dictates of
of
common humanity. This is a matter good omen for the happy development of popular government and for the progress, slow though it be, of mankind along the path of true fortitude and of real righteousness. These facts may rekindle among the youth of England as of France the sense that to be yoimg is very heaven these facts may console old men whom poKtical disillusion and disappointment which they deem undeserved may have tempted towards despair, and enable them to rejoice with calmness and gravity that they have lived long enough to see the day when the solemn call to the performance of a grave national duty has united every man and every class of our common country in the determination to defy the strength, the delusions, and
;
the arrogance of a miUtarised nation, and at all costs to secure for the civilised world the triumph of freedom, of humanityj
and
of justice.
OUTLINE OF SUBJECT
OUTLINE OP SUBJECT
THE TRUE NATURE OF CONSTITUTIONAL LAW
"
Great critics," writes Burke in 1791,

. . .
" have taught us
optimistic
" one essential rule.
It is this, that if ever
we should
"^lî^l
" find ourselves disposed not to admire those writers " or artists, Livy and Virgil for instance, Eaphael or
" Michael Angelo, whom all the learned had admired, " not to follow our own fancies, but to study them until " we know how and what we ought to admire and if " we cannot arrive at this combination of admiration
;
l^f'^'
" with knowledge, rather to believe that we are dull, " than that the rest of the world has been imposed on. " It is as good a rule, at least, with regard to this ad-
"We ought to under" stand it according to our measure and to venerate " where we are not able presently to comprehend." *
;
" mired constitution (of England).
"No
"who
" can
unbiassed observer," writes Hallam in 1818,
derives pleasure from the welfare of his species,

fail
to consider the long and uninterruptedly in" creasing prosperity of England as the most beautiful
"pheenomenon in the history of mankind. Climates " more propitious may impart more largely the mere " enjoyments of existence but in no other region have
;
Burke, Works,
iii.
(1872
ed.), p.
114.
3E
OUTLINE OF SUBJECT
" the benefits that political institutions can confer been " diffused over so extended a population nor have any " people so well reconciled the discordant elements of
;
''
wealth, order, and liberty. These advantages are " surely not owing to the soil of this island, nor to the
"latitude in which it is placed but to the spirit of its " laws, from which, through various means, the char;
"acteristic independence
" nation have been derived.
and industriousness of our The constitution, there-
fore, of England must be to inquisitive men of all " countries, far more to ourselves, an object of superior " interest distinguished, especially, as it is from all " free governments of powerful nations, which history
;
"
by its manifesting, after the lapse of " several centuries, not merely no symptom of irre" trievable decay, but a more expansive energy." ^
These two quotations from authors of equal though celebrity, recall with singular fidelity the spirit with which our grandfathers and our fathers looked upon the institutions of their
of utterly different
country. The constitution was to them, in the quaint language of George the Third, " the most perfect of human formations";^ it was to them not a mere
" has recorded,
our youth up) not been made but had grown " it was the fruit not of abstract theory but of that instinct which (it
;
compared with the government of any other state, but so to speak a sacred mystery of statesmanship it " had (as we have all heard from
polity to be
;
is
supposed) has enabled Englishmen, and especially unAges (12th ed.), ii. p. 267, Nothing gives a more vivid idea of English sentiment with regard to the constitution towards the end of the eighteenth century thaii the satirical picture of national pride to be found in Goldsmith's Citizen of the World, Letter IV. 2 See Stanhope, Life of Pitt, i. App. p. 10.
1
Hallam, Middle
THE TRUE NATURE OF CONSTITUTIONAL

civilised Englishmen, to
LAW
buildup sound and lasting insti-
tutions,
much
as bees construct a honeycomb, without
undergoing the degradation of understanding the prin-
on which they raise a fabric more subtlely wrought than any work of conscious art. The constitution was marked by more than one transcendent quality which in
ciples
it far above the imitations, which have been set up during the last hundred years throughout the civilised world no precise date could be named as the day of its birth
the eyes of our fathers raised

counterfeits, or parodies,
no definite body of persons could claim to be its creators, no one could point to the document which contained it was in short a thing by itself, which its clauses Englishmen and foreigners alike should " venerate,
;
where they are not able presently to comprehend."
The present generation must of ment

either of 1T91 or of 1818.
necessity look on' Modem

conTtitu*"'-
the constitution in a spirit different from the senti-
We cannot share the

just hatred of those
religious
enthusiasm of Burke,
raised, as it was, to the
temper
of fanatical adoration
by
" doctors of the
modem
school," who,
when he
wrote,
were renewing the rule of barbarism in the form of the reign of terror we cannot exactly echo the fervent
;
was to an Englishman who saw the institutions of England standing and flourishing, at a time when the attempts of foreign reformers to combine freedom with order had ended in ruin. At the present day students of
self-complacency of
HaUam,
natural as
it
the constitution wish neither to criticise, nor to venerate, but to understand; and a professor whose duty
it is
is
to lecture
on constitutional
law,
must
feel
that he
called
upon
to perform the part neither of a critic
nor of an apologist, nor of an eulogist, but simply of
OUTLINE OF SUBJECT
an expounder;
to defend
its laws.
his
duty
is'
neither to
attack nor
explain
the
constitution, but simply to

also feel that,
He must
however
attractive
be the mysteries of the constitution, he has good

reason to envy professors
who belong
to countries,
such as France, Belgium, or the United States, endowed with constitutions of which the terms are to be
found in printed documents, known to all citizens and Whataccessible to every man who is able to read. " ever may be the advantages of a so-called " unwritten
constitution, its existence imposes special difficulties
on teachers bound to expound its provisions. Any one will see that this is so who compares for a moment
the position of writers, such as
situation of any person
Kent
or Story,
who
commented on the Constitution of America, with the who undertakes to give instruc-
tion in the constitutional law of England.

Special
When
form of
these distinguished jurists delivered, in the
comment-"
Iccturcs,
Commentaries upon the Constitution
Engiuh
constitution.
^f ^^ United States, they
knew
precisely
what was
the subject of their teaching and what was the proper
mode
was a
of dealing with
it.
The theme of
their teaching
law of their was recorded in a given document to which all the world had access, namely, " the Constitution of the United States established and ordained by the People of the United States." The articles of
definite assignable part of the
;
country
it
this constitution fall indeed far short of perfect logical
arrangement, and lack absolute lucidity of expression but they contain, in a clear and intelligible form,
,
the fundamental law of the Union.

it
This law (be
noted)
in a
made and can only be altered or repealed way different from the method by which other
is

enactments are made or altered
;
it
stands forth,
;
therefore, as a separate subject for study
it
deals
with the legislature, the executive, and the judiciary,

and, by
its
provisions for its
own amendment,
States.
in-
directly defines the
body
in
which resides the
legisla-
tive sovereignty of the
United
Story and
Kent
therefore
knew with
;
precision the nature
and
limits of the
department of law on which they intended to comment they knew also what was the
method required
in
for
the treatment of their topic.
Their task as commentators on the constitution was
kind exactly similar to the task of commenting on
any other branch of Arherican jurisprudence. The American lawyer has to ascertain the meaning of the Articles of the Constitution in the same way in which
he
tries to elicit
the meaning of any other enactment.
He
must be guided by the rules of grammar, by his
knowledge of the common law, by the light (occasionally) thrown on American legislation by American history, and by the conclusions to be deduced from a,
The task, in short, which lay before the great American commentators was the explanation of a definite legal document in
careful
study of judicial decisions.
accordance with the received canons of legal interpretation.
Their work,
difficult as it
might prove, was
work of the kind to which lawyers are accustomed, and could be achieved by the use of ordinary legal Story and Kent indeed were men of extramethods.
ordinary capacity
stone,
is
;
so,
however, were our
own
BlackIf,
and at
least
one of Blackstone's
editors.
as
undoubtedly the case, the American jurists have produced commentaries on the constitution of the United States utterly unlike, and, one must in truth
OUTLINE OF SUBJECT
add, vastly superior
;Stitutipnal
to,
any commentaries on the conis
law of England, their success
partly due
to the possession of advantages denied to the English
commentator or lecturer. His position is entirely .different from that of his American rivals. He m&y search the statute-book from beginning to' end, but he will find no enactment which purports to contain the articles of the' constitution he will not possess any ,test by which to discriminate laws which are constitutional or fundamental from ordinary enactments he will discover that the very term " constitutional law," which is not (unless my memory deceives me) ever eraployed by Blackstone, is of comparatively modern origin and in short, that before commenting on the law of the constitution he must make up his mind what is the nature and the extent of English constitu; ;
;.
tional law.^
Commenhelp
His natural, his inevitable resource

practice of the constitution.
is
to recur to
fToV -Writers of authority
on the law, the history, or the
wf""
ioSitutionai his-
He
will find (it
must
^^ admitted) no lack of distinguished guides ; he may avail himself of the works of lawyers such as Blackstone,
constitutheorists.
of the
investigations
of
historians
such as
Hallam or Freeman, and of the speculations of philosophical theorists such as Bagehot or Hearn. From each class he may learn much, but for reasons which
1
Boutmy,^te&s
lation, p.
8.
See this point brought out with great clearness by Monsieur de Droit Comtitutionnel (2nd ed.), p. 8, English trans-
English constitutional law

Treaties or Qiiasi-Treaties,
Monsieur Boutmy well points out that the sources of may be considered fourfold, nainely^(J)
i.e.
the Acts of
(pacts),
e.g.
Union
the Bill of Eights; (4) Statutes. This mode of division is not exactly that which would be naturally adopted by an English writer, but it calls attention to distinctions often overlooked between the different sources of English
(3)
Law;
(2)
The Common
Solemn Agreements
constitutional law.

I
am
about to lay before you for consideration, he
is
liable to
be led by each
class of authors
somewhat
will
find,
astray in his attempt to ascertain the field of his
labours and the
mode
of working
it
he
unless he can obtiain
some
clue to guide his steps,
that the whole province of so-called " constitutional
law"
is
a sort of
maze
in which the
wanderer
is
perplexed by unreality, by antiquarianism, and by

conventionalism.
Let us turn
first
to the lawyers,
and
as in duty
i.
Law-
word The matters which appear to belong to it are dealt with by him in the main under the head Rights of Persons. The Book
as such there is not a
bound to Blackstone. Of constitutional law
of
con^
its'un""'
to be found in his Commentaries.
g,^^^;
stone.
which
is
thus entitled treats
(inter
alia)
of
the
King and his title, of master and servant, of husband and wife, of parent and child. The arrangement is curious and certainly does not
Parliament, of the-
bring into view the true scope or character of constitutional law.

This, however,
real
is
trifle.
The Book
contains
much
learning about
our system of
government.
Its true defect is the hopeless confusion
both of language and of thought, introduced into the whole subject of constitutional law by Blackstone's
habit
common
to
all
the lawyers of his time
of
applying old and inapplicable terms to new institutions, and especially of ascribing in words to a modern
and constitutional King the whole, and perhaps more than the whole, of the powers actually possessed and
exercised by William the Conqueror. " are next," writes Blackstone, " to consider " those branches of the royal prerogative, which invest
We
OUTLINE OF SUBJECT
" thus our sovereign lord, thus all-perfect and immortal " in his kingly capacity, with a number of authorities " and powers in the exertion whereof consists
;
" the executive part of government. This is wisely " placed in a single hand by the British constitution,
and dispatch. Were it placed in many hands, it would be subject " to many wills many wills, if disunited and drawing " different ways, create weakness in a government and " to unite those several wills, and neduce them to one, is " a work of more time and delay than the exigencies of " state will afford. The King of England is, therefore,
"
:
" for the sake of unanimity, strength,
" not only the chief, but properly the sole, magistrate " of the nation all others acting by commission from,
;
" and in due subordination to
him
in like
manner
as,
" upon the great revolution of the Koman state, all the " powers of the ancient magistracy of the common" wealth were concentrated in the new Emperor so
:
" that, as Gravina expresses it, in ejus unius persona " veteris reipublicae vis atque majestas per cumulatas " magistratuum potestates exprimebatur."
^
The language of
stands
curtailed
this passage
is
impressive
unaltered
;
it
but
in
substance
It has
in
Stephen's Commentaries.
but one fault
the
statements
truth.
in the
it
contains are the direct opposite of the

is
The executive of England
in fact placed
there be
hands of a committee called the Cabinet. If any one person in whose single hand the
power of the State is placed, that one person is not the King but the chairman of the committee, known as the Prime Minister. Nor can it be urged that
Blackstone's description of the royal authority was a
1
Blackstone, Commentaries,
i.
p.
260.

true account of the powers of the
LAW
Blackstone wrote.
real authority his descendants.
King at the time when George the Third enjoyed far more
than has fallen to the share of any of But it would be absurd to maintain that the language I have cited painted his true posi-
The terms used by the commentator were, when he used them, unreal, and known ^ to be so. They have become only a little more unreal during the cention.
tury and more which has since elapsed.
"
The King,"
affairs
.
.
he writes again, "
is
considered in domestic
justice,
and general conservator " of the peace of the kingdom. ... He therefore
" has alone the right of erecting courts of judicature
"as the fountain of
" for, though the constitution of the kingdom hath en" trusted him with the whole executive power of the
^
The following passage from
Paley's Moral Philosophy, published
the British, and possibly in all " other constitutions, there exists a wide difference between the actual " state of the government and the theory. The one results from the " other ; but still they are different. When we contemplate the theory " of the British government, we see the King invested with the most " absolute personal impunity ; with a power of rejecting laws, which " have been resolved upon by both Houses of Parliament ; of conferring
in 1785, is full of instruction.
"In
"by his charter, upon any set or succession of men he pleases, the " privilege of sending representatives into one House of Parliament, as by
"his immediate appointment he can place whom he will in the other. " What is this, a foreigner might ask, but a more circuitous despotism 1 " Yet, when we turn our attention from the legal existence to the actual " exercise of royal authority in England, we see these formidable pre" rogatives dwindled into mere ceremonies ; and in their stead, a sure " and commanding influence, of which the constitution, it Eeem.s,is totally
"ignorant, growing out of that enormous patronage, which the increased " extent and opulence of the Empire has placed in the disposal of the " executive magistrate." Paley, Moral Philosophy, Book vi. cap. vii.
The whole chapter whence this passage is taken repays study. Paley sees far more clearly into the true nature of the then existing constitution than did Blackstone. It is further noticeable that in 1785 the power to create Parliamentary boroughs was still looked upon as in theory an The power of the Crown was still e:tisting prerogative of the Crown. large, and rested in fact upon the possession of enormous patronage.
OUTLINE OF SUBJECT
" laws, it is impossible, as well as improper, that he " should personally carry into execution this great and
" extensive trust it is consequently necessary, that " courts should be erected to assist him in executing this
:
" power and equally necessary, that if erected, they " should be erected by his authority. And hence it is, " that all jurisdictions of courts are either mediately
;
" or immediately derived from the Crown, their pro" ceedings run generally in the King's name, they pass
'"'under his seal,
and are executed by
his officers."'
fictions.
Here we are
in the
midst of unrealities or
Neither the King nor the Executive has anything to
do with erecting courts of justice.
We should rightly
mad
if
conclude that the whole Cabinet had gone

authorised by statute erecting a
It is
to-morrow's Gazette contained an order in council not
new Court
is
of Appeal.
worth while here to note what
the true injury

of
to
the study of law produced
by the tendency
The
evil
is
Blackstone, and other less famous constitutionalists,

to
adhere to unreal expressions.
not
merely or mainly that these expressions exaggerate the power of the Crown. For such conventional
exaggeration a reader could
as
make
allowance, as easily
we do
for ceremonious terms of respect or of social
The harm wrought is, that unreal language obscures or conceals the true extent of the powers, both of the King and of the Government. No one,
courtesy.
but a child, fancies that the King crowned on his throne at Westminster, and in
indeed,
sits
his
own
person administers justice to his subjects. But the idea entertained by many educated men that an
English King or Queen reigns without taking any
1
Blackstone, Commentaries,
i.
p.
267.

part in the government of the country,
LAW
ii
is not less far from the truth than the notion that Edward VII.
ever exercises judicial powers in what are called his

Courts.
The oddity
of the thing
is
that to most
Englishmen the extent of the authority actually exercised by the Crownând the same remark applies
(in a
great measure) to the authority exercised
Prime Minister, and other high officials is a matter of conjecture. We have all learnt from Blackstone, and writers of the same class, to make such constant use .of expressions which we know not to be strictly true to fact, that we cannot say for certain what is the exact relation between the facts of constitutional government and the more or less artificial phraiseology under which they are concealed. Thus to say that
the
by
the
King appoints the Ministry

;
is
untrue
it is also,
of course, untrue to say that

justice
he
creates courts of
but these two untrue statements each bear a

Moreover, of
very
diff"erent relation to actual facts.
the powers ascribed to the Crown, some are in reality
by the Government, whilst Others do not in King or to the Ministry,. The general result is that the true position of the Crown as
exercised
truth belong either to the
also the true
powers of the Govex'nment are concealed
political
under the fictitious ascription to the sovereign of omnipotence, and the reader of, say, the first Book of Blackstone, can hardly discern the; facts of law with which it is filled under the unrealities of the
msto-
language in which these facts find expression. Let us turn from the formalism of lawyers to the
truthfulness of our constitutional historians.
ii.
ofônstiiu'^tl'
">"'
Here a student or professor troubled about the nature of constitutional law finds himself surrounded
"!

OUTLINE OF SUBJECT
by
a crowd of eminent instructors.
; :
himself of the impartiality of Hallam
He may avail he may dive
into the exhaustless erudition of the Bishop of Oxford
he
will discover infinite
parliamentary experience in
the pages of Sir

sense,
Thomas May, and vigorous common combined with polemical research, in Mr. Freeman's Growth of the English Constitution. Let us take this book as an excellent type of historical constitutionalism. The Growth of the, English Constitution
is
known
to every one.
Of its recognised
merits,
it
of
its clearness,
of
its
accuracy, of its force,
were
and impertinent to say much to students who know, or ought to know, every line of the book from
useless
beginning, to
especial notice.
end.
One
point,
however, deserves
is
Mr. Freeman's highest merit
his
unrivalled faculty for bringing every matter under

discussion to a clear issue.
to assent or deny. If
He
challenges his readers
cause for
you deny you must show good your denial, and hence may learn fully as
much from rational disagreement with our author as from unhesitating assent to his views. Take, then,
the Growth of the English Constitution as a first-rate specimen of the mode in which an historian looks at the constitution.
object
is
What
is
it
that a lawyer, whose
to acquire the
from
its
pages
knowledge of law, will learn few citations from the ample and
excellent head notes to the first
two chapters of the work answer the inquiry. They run thus The Landesgemeinden of Uri and Appenzell; their bearing on English Constitutional History;
:
political elements
monarchic, aristocratic,
common to the whole Teutonic race and democratic elements to

;
13
he found from the beginning

the nohle, the
the three classes of men, the slave

;
common freeman, and

;
uni-
versal prevalence of slavery
the Teutonic institutions
common Homer;
to
the
whole
description
Aryan family; witness of of the German Assemblies by
Tacitus ; continuity of English institutions ; English nationality assumed; Teutonic institutions brought
of the settlement on the conquerors; probable increase of slavery; Earls and Churls; growth of the kingly power ; nature of kingship ; special sanctity of the King; immemorial distinction between Kings and Ealdormen. Gradual growth of the English constitution ; new laws seldom called for ; importance
;
into Britain by the English conquerors
effects
of precedent ; return
legislation;
to
early principles in
the
modern
shrinking
up of
ancient national
Assemblies; constitution of the Witenagemdt ; the Witenagemot continued in the House of Lords;
Gemdts after the
Norman
Conquest
the King's right
of summons ; Life Peerages ; origin of the House of Commons; comparison of English and French national Assemblies ; .of English and French history
generally ; course of events influenced by particular Edward the First ; men ; Simon of Montfort
. . .
the constitution finally completed under him; nature of later changes; difference between English and
continental legislatures.
All this
is
interesting, erudite, full of historical
importance, and thoroughly in its place in a book concerned solely with the " growth " of the constitution
;
but in regard to English law and the law of the
constitution, the
Landesgemeinden
ealdormen, the
of Uri, the witness
of
Homer, the
constitution
of the
14
OUTLINE OF SUBJECT
lot
more of fascinating matter are mere antiquarianism. Let no one suppose that to say this is to deny the relation between history and law.
Witenagemdt, and a
It
were
far better, as things

fall
now
stand, to be charged
suspicion
of
with heresy, than to
under the
lacking historical-mindedness, or of questioning the

universal validity of the historical method.
What
one
may
assert without incurring the risk of such

is,
crushing imputations
tional history
antiquities
that the kind of constitu-
which consists in researches into the English institutions, has no direct bearing on the rules of constitutional law in the sense in which these rules can become the subject of legal comment. Let us eagerly learn all that is known, and still more eagerly all that is not known, about the Witenagemot. But let us remember that
of
antiquarianism
is
a trained lawyer
not law, and that the function of is not to know what the law of
England was yesterday, still less what it was centuries what it ought to be to-morrow, but to know and be able to state what are the principles of law which actually and at the present day exist in
ago, or
England.
For
this
purpose
it
boots nothing to
know
the nature of the Landesgemeinden of Uri, or to understand, if it be understandable, the constitution

of
the Witenagemdt.
All
this
is
for
a lawyer's
purposes simple antiquarianism.

light
It
throws as much
on the constitution of the United States as upon the constitution of England that is, it throws from a legal point of view no light upon either the One or the other.
;
The name
of
the United
States serves well to
remind us of the true relation between constitutional
THE TRUE NATURE OF CONSTITUTIONAL LAIV

historians
1$
and
legal constitutionalists.

They
are each
Contrast
legai
concerned with the constitution, but from a different

,
and
aspect.
An
to
j_
'1
historian
is
primarily
occupied with
"ii
liistoriual
view of con^*''"''-
ascertaining the steps
by which a
constitution has
grown
He is deeply, sometimes it is. concerned with the question of " origins." excessively,
be what
He
is
but indirectly concerned in ascertaining what

object
are the rules of the constitution in the year 1908.
To a lawyer, on the other hand, the primary

of study
is
the law
as it
now
stands;
he
is it
only
secondarily occupied with ascertaining

into existence.
how
if
came
This
is
absolutely clear
we com-
pare the position of an American historian with the
American jurist. The historian of the American Union would not commence his researches he would have a good deal to say at the year 1789 about Colonial history and about the institutions of England; he might, for aught I know, find himself impelled to go back to the Witenagemdt he would,
position of an
;
;
one may suspect, pause in his researches considerably A lawyer lecturing on the constitution short of Uri.
of the United States would, on the other hand, necessarily start
from the constitution itself.
But he would
soon see that the articles of the constitution required that the a knowledge of the Articles of Confederation
;
opinions of Washington, of Hamilton, and generally of the " Fathers," as one sometimes hears them called in
America, threw light on the meaning of various conand further, that the meaning of stitutional articles
;
the constitution could not be adequately understood by any one who did not take into account the situation of the colonies before the separation from England and the rules of common law, as well as the general
OUTLINE OF SUBJECT
conceptions of law and justice inherited by English

colonists
from their English forefathers.
As
it is
with
the American lawyer compared with the American

historian, so it is
with the English lawyer as compared
with the English historian.
Hence, even where lawyers
are concerned, as they frequently
must
be,
with the
development of our
the constitution.
earliest
institutions, arises a further dif-
ference between the historical
and the
legal
view of
Historians in their devotion to the
phases of ascertainable history are infected
with a love which, in the eyes of a lawyer, appears

inordinate, for the
germs of our
institutions,
and seem
Mr.
to care little about their later developments.
Freeman gives but one-third of his book to anything as modern as the days of the Stuarts. The period of now more than two centuries which has elapsed since what used to be called the " Glorious Revolution," filled as those two centuries are with change and with growth,
seems hardly to have attracted the attention of a writer whom lack, not of knowledge, but of will has alone prevented from sketching out the annals of
lawyer must look at from the later annals of England he derives most help in the study of existing law. What we might have obtained from Dr. Stubbs had he not surrendered to the Episcopate gifts which
the matter differently.
It is
our modern constitution.
we hoped were dedicated to the University alone, is now left to conjecture. But, things being as they are, the historian who most nearly meets the wants of lawyers is Mr. Gardiner. The struggles of the seventeenth century, the conflict between James and Coke,
Bacon's theory of the prerogative, Charles's effort to substitute the personal will of Charles Stuart for the
17
legal will of the King of England, are all matters which touch not remotely upon the problems of actual law. A knowledge of these things guards us, at any rate, from the illusion, for illusion it must be termed,
that
lished
modern constitutional freedom has been estabby an astounding method of retrogressive pro;
gress
that every step towards civilisation has been
step
backwards
towards
our uncultured ancestors.
the simple wisdom of The assumption which
underlies this view, namely, that there existed
among
our Saxon forefathers a more or less perfect polity,

conceals the truth both of law
how
.
history. To ask "would have looked " in the eyes of a man who had borne his part "in the elections of Eadward and of Harold, and
and of
a mass of legal subtleties

.
and clashed his arms in Assembly which restored Godwine to his " lands," ^ is to put an inquiry which involves an untenable assumption it is like asking what a Cherokee Indian would have thought of the claim of George the Third to separate taxation from representation. In
raised his voice
" the great
;
"who had
each case the question implies that the simplicity of a
savage enables him to solve with fairness a problem of
which he cannot understand the terms. Civilisation may rise above, but barbarism sinks below the level of legal fictions, and our respectable Saxon ancestors were, as compared, not with ourselves only, but with men so like ourselves as Coke and Hale, respectable barbarians. The supposition, moreover, that the cunning of lawyers
has by the invention of legal fictions corrupted the fair simplicity of our original constitution, underrates
the statesmanship of lawyers as
^
much
as
it
overrates
125.
See Freeman, Growth of
the
English Constitution (1st
ed.), p.
OUTLINE OF SUBJECT
The
fictions of the Courts
the merits of early society.
have in the hands of lawyers such as Coke served

the cause both of justice and of freedom, and served
it
when
it
could have been defended by no other
weapons.
For
there
are
social
conditions under
which legal
is
fictions or subtleties afi"ord the sole
means
of establishing that rule of equal
and
settled
the true basis of English civilisation.
law which Nothing can
be more pedantic, nothing more artificial, nothing more unhistorical, than the reasoning by which Coke induced or compelled James to forego the attempt to withdraw cases from the Courts for his Majesty's personal determination.^ But no achievement of sound
argument, or stroke of enlightened statesmanship, ever

established a rule
more
essential to the
very existence
of the constitution than the principle enforced by the obstinacy and the fallacies of the great Chief-Justice.
Oddly enough, the notion of an

a delusion of the legal
retrogressive
ideal
constitution
is
corrupted by the technicalities of lawyers

imagination.
at
bottom
idea of
The
progress
is
appeal
to
precedent.
merely one form of the This appeal has made its

the history of England,
appearance at every
crisis in
and indeed no one has stated so forcibly as my friend Mr. Freeman himself the peculiarity of all English
extend the liberties of the country, namely, that these attempts at innovation have always assumed the form of an appeal to pre-existing rights. But
efforts to
the appeal to precedent
is
in the
law courts merely
a useful fiction by which judicial decision conceals its transformation into judicial legislation and a fiction
;
is
1
none the
less a fiction
;
because
it
has emerged from

ed.),
See 12 Ref. 64
Hearn, Government of England (2nd
chap,
iii
19
the Courts into the field of politics or of history.
Here, then, the astuteness of lawyers has imposed
upon the simplicity of
Formalism and they have united to mislead students in search for the law
historians.
antiquarianism have, so to speak, joined hands

of the constitution.
Let us turn now to the
political theorists.
in. view
theorists!^
'
No
better types of such thinkers can be taken
than Bagehot and Professor Hearn.
No
author of
modern times
done so much
stitution IS
be confidently asserted) has Jhauf to elucidate the intricate workings of "'^fi^ ^^^'y o with con(it
may
English srovernment as Bagehot.
...
PTPi-1 so full of brightness,

how
His Enqlish Conoriginality,
ventions of
constitution.
that few students notice

ledge, of
full it is also
and wit, of know-
for example,
The slight touches, insight. by which Bagehot paints the reality of Cabinet government, are so amusing as to make a reader forget that Bagehot was the first author who
wisdom, and of
explained in accordance with actual fact the true
nature of the Cabinet
and
its real
relation to tie in short, one of

intricate
Crown and
those
rare
to Parliament.
He
is,
teachers
who have
explained
matters with such complete clearness, as to make the public forget that what is now so clear ever
needed explanation. Professor Hearn may perhaps In any case be counted an anticipator of Bagehot. he too has approached English institutions from a
point of view, and has looked at them in a fresh he would be universally recognised among us light
new
as one of the most distinguished and ingenious exponents of the mysteries of the English constitution,
had
it
not been for the fact that he made his fame
as a professor, not in
any of the
seats of learning in
OUTLINE OF SUBJECT
the
United
Kingdom, but
in
the
University
of
to
Melbourne.
learn,
From both
these writers
we expect
and do learn much, but, as in the case of Mr. Freeman, though we learn much from our teacher which is of value, we do not learn precisely what as lawyers we are in search of The truth is that both Bagehot and Professor Hearn deal and mean to deal mainly with political understandings or conventions and not with rules of law. What is the precise moral influence which might be exerted by a wise constitutional monarch what are the circumstances under which a Minister is entitled to dissolve Parliament
;
whether the simultaneous creation of a large number of Peers for a special purpose is constitutionally
justifiable
;
what
is
the principle on which a Cabinet
may
allow of open questions;
these
are the kind of inquiries raised
and the like and solved by writers
whom,
as being occupied with the conventional under-
standings
of
the constitution,
we may term
con-
ventionalists.
great and weighty

will
ever be
are, many of them, but they are not inquiries which debated in the law courts. If the
These inquiries
;
Premier should advise the creation of five hundred Peers, the Chancery Division would not, we may be sure, grant an injunction to restrain their creation. If he should on a vote of censure decline to resign
Division would certainly not issue a quo warranto calling upon him to show cause why he continues to be Prime Minister. As a
office,
the
King's Bench
lawyer, I find these matters too high for me.

practical solution
Their
must be
left to
;
the profound wisdom
Members of Parliament their speculative solution belongs to the province of political theorists.
of

One suggestion
a mere legist
21
may
be allowed to And
con-
make, namely, that the authors who

ings which
insist
upon and
viewToei
not ex"j"
ain
explain the conventional character of the understand-
how
make up
a great part of the constitution,
J?''^
enforced.
leave unexplained the one matter which needs explanation.
inquiry
politics
satisfactory answer to the happens that the understandings of are sometimes at least obeyed as rigorously
They give no
it
how
as the
commands
of law/
To
refer to public opinion
and to considerations of expediency
is to offer but a very inadequate solution of a really curious problem.
Public opinion approves and public expediency requires the observance of contracts, yet contracts are
not always
observed,
and would (presumably) be
broken more often than they are did not the law
punish their breach, or compel their performance.
Meanwhile it is certain that understandings are not laws, and that no system of conventionalism will explain the whole nature of constitutional law, if indeed " constitutional law " be in strictness law at all. For at this point a doubt occurs to one's mind is oonwhich must more than once have haunted students uw reaiiy
of the
constitution.
Is
is
it
possible
reality a
that
cross
so-called
^^^
**
" constitutional law "
in
between
history and custom which does not properly deserve
and certainly does not belong to the province of a professor called upon to learn or to teach nothing but the true indubitable law Can it be that a dark saying of of England ? Tocqueville's, "the English constitution has no real
the
name
of law at
all,
existence " {elle n'existe point

1
^),
contains the truth of
See further on this point, Part III. post Tocqueville, CEuvres Complies, i. 166, 167.
OUTLINE OF SUBJECT
the whole matter
?
In this case lawyers would gladly

should, as belonging
surrender a domain to which they can establish no

valid
title.
The one half of
it
to history, go over to our historical professors.
The
other half should, as belonging to conventions which

illustrate the
my
growth of law, be transferred either to friend the Corpus Professor of Jurisprudence,

it is
because
his vocation to deal with the oddities or
the outlying portions of legal science, or to
my
friend
the Chichele Professor of International Law, because
he being a teacher of law which is not law, and being accustomed to expound those rules of public ethics which are miscalled international law, will find
home in expounding political ethics which, on the hypothesis under consideration, are miscalled
himself at
constitutional law.
Before, however, admitting the truth of the sup-
position that "constitutional

at
all, it
will be well to
law" is in no sense law examine a little further into
the precise meaning which

stitutional law,
we
attach to the term confar it is a

fit
and then consider how
subject for legal exposition.

It consists
Constitutional law, as the term
different
appears to include
afi"ect
all
rules
is used in England, which directly or indirectly
rules.
the distribution or the exercise of the sovereign power in the state. ^ Hence it includes (among other
things)
1
all
rules
which define the members of the
ed.), pp. 138, 139, and 359the constitution of a country is meant so much of its law as " relates to the designation and form of the legislature the rights and ; " functions of the several parts of the legislative body ; the construction,
Compare Holland, Jurisprudence (lOth

"
363.
By
" office, and jurisdiction of courts of justice. The constitution is one "principal division, section, or title of the code of public laws, dis" tinguished from the rest only by the superior importance of the subject of whicfi it treats." Paley, Moral Philosophy, Book vi. chap. vii.
'

sovereign power,
of such
all
23
rules
which regulate the relation
members to each other, or which determine the mode in which the sovereign power, or the members thereof, exercise their authority.
Its rules pre-
scribe the order of succession to the throne, regulate
the prerogatives of the chief magistrate, determine

the form of the legislature and
its
mode
of election.
These rules also

territory over
deal
with Ministers, with their

state
responsibility, with their spheres of action, define the
which the sovereignty of the
extends and settle

citizens.
who
are to be
deemed
is
subjects or
Observe the use of the word "rules," not

This employment of terms
intentional.
"laws."
Its object is to call attention to the fact that
the
rules
is
which make up
constitutional law, as the term
used in England, include two sets of principles or

sense " laws,"
maxims of a totally distinct character. The one set of rules are in the strictest
1 1
(i) Rules
which (whether written or unwritten, whether enacted by statute or derived from the mass of custom, tradition, or judge-made maxims known these as the Common Law) are enforced by the Courts rules constitute " constitutional law " in the proper sense of that term, and may for the sake of distinction be called collectively " the law of the constitution."
Since they are rules
;
which are
true laws
thecon-
^t''"*'-
The other
set of rules consist of conventions, under-
(u.) Rules
standings, habits, or practices which, though they
may
not
laws
regulate the conduct of the several
members of the
officials,
tionrof the
tk)nf''"'
sovereign power, of the Ministry, or of other

are not in reality laws at
all
since they are not enforced
by the Courts.
This portion of constitutional law may,
for the sake of distinction, be
termed the " conven-
tions of the constitution," or constitutional morality.
24
OUTLINE OF SUBJECT
To put the same thing
in a somewhat different " constitutional law," as the expression is used shape,
by the public and by authoritative writers, consists of two elements. The one element, here called the " law of the constitution," is a body
in England, both
of undoubted law
the
the
other element, here called
"conventions of the constitution," consists of

or
practices
maxims
which,
though they regulate
the ordinary conduct of the Crown, of Ministers, and

of other persons under the constitution, are not in
strictness laws at
all.
The contrast between the law
of the constitution and the conventions of the constitution

Examples
of rules belonging to
stitutioi^"'
.
may
be most easily seen from examples.

constitution belong the followins: o o
To the law of the

rules
:
"The King can do no wrong." This maxim, as now interpreted by the Courts, means, in the first place, that by no proceeding known to the law can the King be made personally responsible for any act
done by him
;
if
(to give
an absurd example) the
King were himself
to shoot the Premier through the
head, no court in England could take cognisance of the act. The maxim means, in the second place, that
no one can plead the orders of the Crown or indeed of any superior officer in defence of any act not otherwise justifiable by law;. this principle in both
applications
is
its
(be
it
constitution, but it
noted) a law and a law of the " There is is not a written law.
no power in the Crown to dispense with the obligation to obey a law " this negation or abolition of the dis;
pensing power
it is
now depends upon

is
the Bill of Rights

law.
a law of the Constitution
and a written
for
"Some
person
legally responsible
every act

done by the Crown."
constitution
in
25
This responsibility of Ministers
appears in foreign countries as a formal part of the

;
England
it
results
from the combined

first,
action of several legal principles, namely,
the
maxim
that the
King can do no wrong

is
secondly, the
refusal of the Courts to recognise
any act as done by
the Crown, which
not done in a particular form, a

or
form in general involving the affixing of a particular

seal
by a
;
Minister,
the
countersignature
or
something equivalent to the counter-signature of a

Minister
thirdly, the
principle
seal,
that the Minister

or
who
affixes
particular
countersigns his
signature, is responsible for the act
which
he, so to
speak, endorses
tion
this again is part of the constituit is
and a law, but

to
not a written law.
So again
the right
personal liberty, the right of public
meeting, and
many
other rights, are part of the law
of the constitution, though
most of these
rights are
consequences of the more general law or principle

that no
man
can
{i.e.
be
punished
except for direct
breaches of law
crimes) proved in the
way
pro-
vided 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 Examples } of rules any bill passed by the two wUchbeexpressed) cannot 'veto Houses of Parliament " " the House of Lords does ventionsof "" when the House of t^yo^""'" not originate any money bill Lords acts as a Court of Appeal, no peer who is not a
:
law lord takes part in the decisions of the House

1
"
Compare Hearn, Government of England (2nd ed.), chap. iv. As to the meaning of "veto," see Hearn, Government of England
ed.), pp. 51, 60, 61, 63, 548, and the article on the word Veto in the last edition of the Encyclopcedia Britannica, hy Professor Orelli.
(2nd
" :
26
OUTLINE OF SUBJECT
office
when they have ceased to House of Commons command "a bill must be read a certain number of times before passing through the House of Commons." These maxims are distinguished from each other by under a new or written constitumany differences tion some of them probably would and some of them would not take the form of actual laws. Under the
"Ministers resign
;
the confidence of the
English constitution they have one point in common they are none of them " laws " in the true sense of
that word, for
if
any or
all
of
them were broken, no
court would take notice of their violation.

1 Some of these maxims are never violated, and are universally Others, on the other hand, have nothing admitted to be inviolable. but a slight amount of custom in their favour, and are of disputable validity. The main distinction between different classes of convenSome of these rules tional rules may, it is conceived, be thus stated could not be violated without bringing to a stop the course of orderly and pacific government ; others might be violated without any other consequence than that of exposing the Minister or other person by
:
they were broken to blame or unpopularity. This difference will at bottom be found to depend upon the degree of directness with which the violation of a given constitutional maxim Thus a brings the wrongdoer into conflict with the law of the land. Ministry under whose advice Parliament were not summoned to meet for more than a year would, owing to the lapse of the Mutiny Act, etc., become through their agents engaged in a conflict with the Courts. The violation of a convention of the constitution would in this case
lead to revolutionary or reactionary violence.
whom
The
rule,
on the other
hand, that a Bill must be read a given number of times before it is passed is, though a well-established constitutional principle, a convention which might be disregarded without bringing the Government into conflict with the ordinary law. Ministry who induced the House of Commons to pass an Act, e.g. suspending the Habeas Corpus Act, after one reading, or who induced the House to alter their rules as to the liumber of times a Bill should be read, would in no way be exposed to a contest with the ordinary tribunals. Ministers who, after Supplies were voted and the Mutiny Act passed, should prorogue the House and keep office for months after the Government had ceased to
retain the confidence of the
Commons, might or might not incur grave unpopularity, but would not necessarily commit a breach of law. See further Part III. fost.

It is to
LAW
27
be regretted that these maxims must be
called " conventional," for the
word suggests a notion

This, however,
is
of insignificance or unreality.
last idea
the
which any teacher would wish to convey to
his hearers.
tices
Of
constitutional conventions or pracas
some are as impqrtant some may be trivial, as may

a genuine law.
any laws, though

with
also be the case
My
object, however, is to contrast,
not shams with
realities,
but the legal element with
the conventional element of so-called " constitutional

law."
This distinction differs essentially,

.
noted, from the distinction between

statute law)
" written 1))/ law (or

.
it
should be
Distinction
between laws and

"v^lTôt.
difference*'
and "unwritten law"
(or
common
law).
There are laws of the constitution,

Bill of Eights,
'
as, for
example, the
the Act of Settlement, the Habeas
^;^t.^
Corpus Acts, which are " written law," found in the

statute-books
ad unwritten law.
in
other words, are statutory enact-
There are other most important laws of the constitution (several of which have already been menments.
,
tioned) which are " unwritten " laws, that
is,
not statu-
tory enactments.
-Some further of the laws of the
constitution, such, for example, as the law regulating
the descent of the Crown, which were at one time unwritten or common law, have now become written
or statute law.
The conventions
of the constitution,
on the other hand, cannot be recorded in the statutebook, though they may be formally reduced to Thus the whole of our parliamentary prowriting. cedure is nothing but a mass of conventional law
it
is,
however, recorded in written or printed
rules.
The distinction, in short, between written and unwritten law does not in any sense square with the
28
OUTLINE OF SUBJECT
between the law of the constitution (constitutional law properly so called) and the convendistinction
tions of the constitution.
This latter
is
the distinction
on which we should
of vital
fix our whole attention, for it is and elucidates the whole subject importance,
of constitutional law.
It is further a difference
which
may exist in countries which have a written or statuIn the United States the legal tory constitution.^
powers of the President, the Senate, the mode of
electing the President,
and the
like, are, as far as the
law
is
concerned, regulated wholly
by the law of
the
constitution.
But
side
by
side with
the law have
grown up
certain stringent conventional rules, which,

court,
though they would not be noticed by any
have in practice nearly the force of law. No President has ever been re-elected more than once the popular approval of this conventional limit (of which
:
the
constitution
knows nothing) on a
fatal bar to
President's
re-eligibility
proved a
General Grant's
understandings
third
candidature.
Constitutional
have entirely changed the position of the PresidenThey were by the founders of the contial electors.
1
The conventional element

is
in
the
constitution
of
the United
States
far larger
than most Englishmen

It
suppose.
See
ed.),
subject Wilson, Gongressional Government,
and Bryce (3rd
on this American
may be asserted without element in the constitution of the United States is now as large as in the English conUnder the American system, however, the line between stitution. " conventional rules " and " laws " is drawn with a precision hardly possible in England.
Commonwealth, chaps, xxxiv. and xxxv.
exaggeration
much
that the conventional
Under the
influence.
constitution of the existing
tional conventions or understandings exert a considerable
French Republic, constituamount of
They considerably
limit, for instance, the actual exercise
of the large powers the

President.
conferred by
the letter of the constitution on

de
la
See Chardon, Fonctionnaires,"^]}. 79-105.
L' Administration
France
Les

stitution intended
LAW
39
to be
what
their
name
denotes,
;
the persons
who
chose or selected the President
the
chief officer, in short, of the Eepublic was, according

to the law, to be appointed
election.
under a system of double

;
This intention has failed
" the " electors
have become a mere means of voting for a particular

candidate
;
they are no more than so
many
ballots
cast for the Republican or for the.Democratic nominee.
The understanding that an elector is not really to elect, has now become so firmly established, that for him to exercise his legal power of choice is considered a breach of political honour too gross to be committed by the most unscrupulous of politicians. Public difficulties, not to say dangers, might have been averted if, in the contest between Mr. Hayes and Mr. Tilden, a few Republican electors had felt themselves
at liberty to vote for the Democratic candidate.
Not
The
is
a single
man among them
changed his
side.
power of an elector to
elect is as completely abolished
by
constitutional understandings in America as
the
royal
right of dissent from bills passed by both Under a Houses by the same force in England. written, therefore, as under an unwritten constitution,
we
find
in
full
existence
the
distinction
between the law and the conventions of the constitution.
Upon
this difierence I
have insisted at possibly
constituas subject
^
needless length, because it lies at the very root of the
matter under discussion.

latent in
Once grasp the ambiguity 4df the expression "constitutional law," and ^'^J^^j^^
falls
evervthinff connected with the subject J o

>
so
1
com-
of oonstitution stitutio;
pletely into its right place that a lawyer, called
upon
to teach or to study constitutional law as a branch of
30
OUTLINE OF SUBJECT
fail
the law of England, can hardly
to see clearly the
character and scope of his subject.
With conventions or understandings he has no They vary from generation to generadirect concern. Whether a Ministry tion, almost from year to year.
defeated
at
the polling booths ought to retire

result of the election is
office until after
on
or
the day
when the
is
known,
may more
portance.
properly retain
or
a defeat in
Parliament,
may
be a question of practical imthis point
The opinions on
(it is said)
which prevail
from the opinions or understandings which prevailed thirty years back, and are possibly different from the opinions or understandings
to-day differ
which
this
may
prevail ten years hence.
Weighty
pre-
cedents and high authority are cited on either side of
knotty question
the dicta or practice of Eussell
and Peel may be balanced off against the dicta or practice of Beaconsfield and Gladstone. The subject, however, is not one of law but of politics, and need trouble no lawyer or the class of any professor of
law.
If
he
is
concerned with
it
at
all,
he
is
so only
in so far as he
is
may
(if
be called upon to show what
the
connection
any there be) between the
conventions of the constitution and the law of the

constitution.
This the true constitutional law

concern.
legal rules
is
his only real
His proper function

{i.e.
is
to
show what
are the
rules recognised
by the Courts) which
are to be found in the several parts of the constitution.
Of such
enough.
rules or laws he will easily discover
more than
The
rules determining the legal position of
the Crown, the legal rights of the Crown's Ministers, the constitution of the House of Lords, the constitu-

tion of the
31
House of Commons, the laws which govern

laws
the established Church, the laws which determine the

position of the non-established Churches, the
which regulate the army, these and a hundred other laws form part of the law of the constitution, and are as truly part of the law of the land as the articles of
the Constitution of the United States form part of the
law of the Union. The duty, in short, of an English professor of law is to state what are the laws which form part of the
constitution, to arrange
their
Law
of
tion can be
iik^âny*"^
them
in their order, to explain
meaning, and to exhibit where possible their
^'^^^,^0^
English
logical connection.
ought to expound the unwritten or partly unwritten constitution of England,
He
same manner in which Story and Kent have expounded the written law of the American constitution. The task has its special perplexities, but the difficulties which beset the topic are the same in kind, though not in degree, as those which are to be found in every branch of the law of England. You are called upon to deal partly with statute law, you are forced to rely partly with judge-made law on Parliamentary enactments and also on judicial decisions, on authoritative dicta, and in many cases on mere inferences drawn from judicial doctrines it is often difficult to discriminate between prevalent custom and acknowledged right. This is true of the endeavour to expound the law of the constitution all this is true also in a measure of any attempt to
in the
; ;
explain our law of contract, our law of torts, or our
law of real property.

Moreover, teachers of constitutional law enjoy at
this
moment one
invaluable advantage.
Their topic
32
OUTLINE OF SUBJECT
become of immediate interest and These years have brought of pressing importance. into the foreground new constitutional questions, and
has, of recent years/
have afforded in
many
instances the answers thereto.
The
Mr. Bradlaugh
name of much to clear away the obscurity which envelops many parts of our public law as was done in the eighteenth century by the series of actions connected with the name of John Wilkes.
series of actions
^
connected with the
has done as
The law of maintenance has been rediscovered

law of blasphemy has
It is
the
received
new
elucidation.
action.
Everybody now knows the character of a penal
now possible
;
to define with precision the relation
between the House of

the land
Commons and
the Courts of
the legal character and solemnity of an
oath has been
made patent
to all the world, or at
any
the
rate to
all
those persons
who
choose to read
Law Reports. Meanwhile circumstances with which Mr. Bradlaugh had no connection have forced
upon public attention

right
all the various problems connected with the right of public meeting. Is such a
known
to
it
the
law?
What
are
the limits
is
within which
true
far
may
be exercised?
What
the
definition
of an "unlawful
assembly"?
How
may
citizens lawfully
assembled assert their right
force ? What are the limits within which the English constitution recognises the right of self-defence ? These are questions some of
1
of meeting
by the use of
legal decisions
This treatise was originally published in 1885. Since that date and public discussion have thrown light upon several
matters of constitutional law, such, for example, as the limits to the right of public meeting and the nature of martial law. 2 Written 1885. See for Bradlaugh's political career, Did. Nat.
Biog.,
Supplement,
vol.
i.
p.
248.

whicli kave been raised
LAW
33
and
all
of which
may any day
be raised before the Courts. They are inquiries which To find the touch the very root of our public law.
true reply to
citizen.
them
is
a matter of importance to every
While these inquiries require an answer the study of the law of the constitution must remain a, matter of pressing interest. The fact, however, that the provisions of this law are often embodied in cases which have gained notoriety and excite keen feelings
of political partisanship
ception.
may
foster a serious miscon-
Unintelligent students
may
infer that the
law of the constitution is to be gathered only from famous judgments which embalm the results of grand This is not so. constitutional or political conflicts.
Scores of unnoticed cases, such as the Parlement Belge^ or Thomas v. The Queen,^ touch "upon or
decide principles of constitutional law.
Indeed every
action against a constable or collector of revenue enforces the greatest of all such principles, namely, that
obedience to administrative orders
is
no defence to an
action or prosecution for acts done in excess of legal The true law of the constitution is in authority.
short to be gathered from the sources whence we collect the law of England in respect to any other
topic,
and forms
as interesting
and
as distinct,
though
not as well explored, a
field for legal
study or legal
exposition as any which can be found.

is
one which has not yet been fully
The subject mapped out.
Teachers and pupils alike therefore suflFer from the inconvenience as they enjoy the interest of exploring
1 4 P. D. 129; 5 P. D. 197. A. C. 491, 497. 2
Compare Walker
v.
Baird [1892],
L. B.,
10 Q. B. 31.
34
..
OUTLINE OF SUBJECT
a province of law which has not yet been entirely
reduced to order. ^
This inconYenience has one great compensation.
We
are compelled to search for the guidance of first
principles,
and
as
we
look for a clue through the
mazes of a perplexed topic, three such guiding prinThey are, first, ciples gradually become apparent. the legislative sovereignty of Parliament ^ secondly,
;
the universal rule or supremacy throughout the constitution of ordinary
we
tread on
and thirdly (though here more doubtful and speculative ground),

law
^
;
the dependence in the last resort of the conventions
upon the law of the
constitution.*
To examine,
to
elucidate, to test these three principles, forms, at any
rate (whatever be the result of the investigation), a
suitable introduction to the study of the

constitution.
law of the
Since these words were written, Sir William Anson's admirable Custom of the Constitution has gone far to provide a complete scheme of English constitutional law.
1
haw and
2
See Part I. post. See Part III. post.
ggg
p^pj; jj_ ^gjj_
PART
THE SOVEEBIGNTY OF PARLIAMENT
35
CHAPTER
THE NATURE OF PARLIAMENTARY SOVEREIGNTY
The
sovereignty of Parliament
is
(from a legal point Chapter

^
of view) the dominant characteristic of our political

institutions.
My
to
aim in
this chapter
is,
in the first place, to Aim

"^
of
^'''
explain the nature of Parliamentary sovereignty and
^^
show that its existence is a nised by the law of England
legal fact, fully recog-
in the next place, to prove that none of the alleged legal limitations on the sovereignty of Parliament have any existence;
;
and, lastly, to
difficulties
state
and meet certain speculative
doctrine that Parliament

stitution,
which hinder the ready admission of the is, under the British conan absolutely sovereign legislature.
Nature of Parliamentary Sovereignty. Parliament means, in the mouth of a lawyer (though the word has often a different sense in ordinary conversation), the King, the House of Lords, and the House
A.
these three bodies acting together may be aptly described as the " King in Parliament," and
Nature of
mtntary
re'imty.
of
Commons
constitute Parliament.^
The
principle of Parliamentary sovereignty

1
means
Conf. Blackatone, Convmentaries.
i.
p.
153.
37
: ;
38
Part
I.
more nor less than this, namely, that Parliament thus defined has, under the English constitution, the right to make or unmake any law whatever and, further, that no person or body is recognised by the law of England as having a right to override or
neither
set aside the legislation of Parliament.
A law may, for our present purpose, be defined as any rule which will be enforced by the Courts." The principle then of Parliamentary sovereignty may, looked at from its positive side, be thus described Any Act of Parliament, or any part of an Act of Parliament, which makes a new law, or repeals or modifies an existing law, will be obeyed by the Courts. The same principle, looked at from its negative side, may be thus stated There is no person or body of persons who can, under the English constitution, make rules which override or derogate from an Act of Parliament, or which (to express the same thing in other words) will be enforced by the Courts in contravention of an Act of Parliament. Some apparent exceptions to this rule no doubt suggest themselves. But these apparent exceptions, as where, for example, the Judges of the High Court of Justice make rules
"
:
of court repealing Parliamentary enactments, are resolvable into cases in which Parliament either directly
or indirectly sanctions subordinate legislation.
is
This not the place for entering into any details as to the nature of judicial legislation;'^ the matter is men^
tioned
here
difficulty
remove an obvious which might present itself to some students!

in
only
order to
1 The reader wlio wishes for fuller information on the nature of judge-made law will find what he wants in Dicey's Law and Public Opinion in England, App. Note iv. p. 481, and in Sir Frederick Pollock's Essays in Jurisprudence and Ethics, p. 237.
NATURE OF PARLIAMENTARY SOVEREIGNTY
39
It will be necessary in the course of these lectures to
chapter
^-
say a good deal more about Parliamentary sovereignty, but for the present the above rough description of its
nature
may
suffice.
The important thing

and on
its
is to
make
clear that the doctrine of Parliamentary sovereigntyis,
both on
its
positive
tlie
negative
side, fully
recognised by
law of England.
I.
The
" " " that
TJnliniited legislative authority

classical
of Pcwliament.
is
unlimited
authority
passage on this subject
the following
:
extract from Blackstone's
Commentaries
ulment
The power and jurisdiction of Parliament, says Sir Edward Coke,^ is so transcendent and absolute,
it
" sons, within

' adds, it
cannot be confined, either for causes or perany bounds. And of this high court, he
may be
truly said,
;
'
Si antiquitatem spectes,
"
est
vetustissima
si dignitatem,, est
honoratissimd ;
si
" jurisdictionem,
est capacissima.' It hath sovereign " and uncontrollable authority in the making, confirm " ing, enlarging, restraining, abrogating, repealing, re" viving, and expounding of laws, concerning matters
" of all possible denominations, ecclesiastical or tem-
"poral,
civil,
military, maritime, or criminal: this
"being the place where that absolute despotic power, " which must in all governments reside somewhere, is " entrusted by the constitution of these kingdoms. All
"mischiefs and grievances, operations and remedies,
"that transcend the ordinary course of the laws,

" within the reach of this extraordinary tribunal.
aire
It
"
"can regulate or new-model Crown as was done in the reign of Henry VIII. and
the succession to the
;
" William III.
It
1
can alter the established religion

Fourth
Institute,
j).
36.
40

;
P^'^ti
" of the land as was done in a variety of instances, " in the reigns of king Henry VIII. and his three
" children. It
can change and create afresh even the
" constitution of the

;
kingdom and of parliaments them-
" selves as was done by the act of union, and the " several statutes for triennial and septennial elections.
" It can, in short, do evejrything that is not naturally " impossible and therefore some have not scrupled
;
by a figure rather too bold, the " omnipotence of Parliament. True it is, that what the " Parliament doth, no authority upon earth can undo.
it is a matter most essential to the liberties of " this kingdom, that such members be delegated to this " important trust, as are most eminent for their probity,
" to call its power,
" So that
"their fortitude, and their knowledge; for it was a " known apophthegm of the great lord treasurer Bur-
England could never be ruined but by and, as Sir Matthew Hale observes, " this being the highest and greatest court over which " none other can have jurisdiction in the kingdom, if " by any means a misgovernment should any way fall " upon it, the subjects of this kingdom are left without "all manner of remedy. To the same purpose the
"leigh, 'that
" a Parliament
'
"president Montesquieu, though I trust too hastily, " presages ; that as Rome, Sparta, and Carthage have " lost their liberty and perished, so the constitution of
" England will in time lose its liberty, will perish " it will perish whenever the legislative power shall
" become
more corrupt than the executive." ^

Compare
;
1 Blackstone, Gomrmntaries, i. pp. 160, 161. sovereignty of Parliament, De Republica Aitglorum
as
to
Discourse on
the
Commonwealth
Alston,
Book
ii.
of England, chap. i. p. 148.
by Sir Thomas Smith, edited by L. The book was originally published
in 1583.
NA TURE OF PARLIAMENTAR V SO VEREIGNTY

De Lolme
Jias
41
summed up
the matter in a gro- Chapter

^'
tesque expression which has become almost proverbial. " It is a fundamental principle with English lawyers,
" that Parliament can
do everything but make a
"
woman
a man, and a
man
a woman."
Historical
This supreme legislative authority of Parliament

is
shown historically in a large number of instances, The descent of the Crown was varied and finally fixed underthe Act of Settlement, 12 & 13 William III., c. 2 the King occupies the throne under a Parliamentary title his claim to reign depends upon and is the result
';
of Parii?-
ve-"^
"-^'S"*?-
seMie'*
of a statute.
day, no one
This
is
is
a proposition which, at the present
inclined either to maintain or to dis-
but a glance at the statute-book shows that not much more than two hundred years ago Parliapute
;
ment had
upon the principle of The first section of 6 its own lawful supremacy. alia), " That if any person or Anne, c. 7, enacts {inter " persons shall maliciously, advisedly, and directly by " writing or printing maintain and afiirm that our " sovereign lady the Queen that now is, is not the " lawful and rightful Queen of these realms, or that the
to insist strenuously
who now styles himself King of England, by the King " name of James the Third, or King of Scotland, by the " name of James the Eighth, hath any right or title to " the Crown of these realms, or that any other person
" pretended Prince of Wales,
"
of Great Britain, or
" or persons hath or have any right or title to the same, " otherwise than according to an Act of Parliament
England in the first year of the reign of their " late Majesties King William and Queen Mary, of " ever blessed and glorious memory, intituled, An Act " declaring the rights and liberties of the subject, and
"
made
in
42

Crown
;
Parti.
" settling the succession of the " Act
and one other
made
in
England
in the twelfth year of the reign
"of
his said late
Majesty King William the Third,
"intituled, An Act for the further limitation of the " Crown, and better securing the rights and liberties of
" the subject
;
and the Acts
lately
made
in
England
"and Scotland mutually

;
for the
union of the two
" kingdoms or that the Kings or Queens of this realm, " with and by the authority of Parliament, are not able
"to make laws and statutes of sufficient force and " validity to limit and bind the Crown, and the descent,
"limitation,
" treason,
inheritance,
and government thereof;
" every such person or persons shall be guilty of high
and being thereof lawfully convicted, shall be " adjudged traitors, and shall suiFer pains of death, and " all losses and forfeitures as in cases of high treason." ^
Acts of Union.
The Acts of Union

calls attention)
(to
one of which Blackstone
afford a remarkable
example of the
exertion of Parliamentary authority.

single statute
But there
is
no
which
is
more
significant either as to
the theory or as to
the practical working of the
constitution than the Septennial Aet.^
The circum-
stances of
itself
Septennial Act.
its
enactment and the nature of the Act
merit therefore special attention.
In 1716 the duration of Parliament was under an Act of 1694 limited to three years, and a general
election could not be deferred
beyond 17 17. The King and the Ministry were convinced (and with
reason) that an appeal to the electors,
many
of
whom
were Jacobites, might be perilous not only to the Ministry but to the tranquillity of the state. The
^
6 Anne,
c.
41 (otherwise 6 Anne,
c.
V), sec.
^
1.
This enactment
I. st.
is still
in force.
George
2, c.
38.
'
"

Parliament then
sitting, therefore,
43
was induced by the Ministry to pass the Septennial Act by which the legal duration of Parliament was extended from three to seven years, and the powers of the then existing House of Commons were in effect prolonged for four years beyond the time for which the House was elected. This was a much stronger proceeding than passing say an Act which enabled future Parliaments
to continue in existence
Chapter
^-
without the necessity for a

justified
general election during seven instead of during three

years.
The
statute
was
by considerations
of statesmanship
and expediency. This justification Act must seem to every sensible man so ample that it is with some surprise that one reads in writers so fair and judicious as Hallam or Lord Stanhope attempts to minimise the importance of this supreme display of legislative authority. " Nothing," writes Hallam, " can be more extravagant "than what is sometimes confidently pretended by
of the Septennial
" the ignorant, that the legislature exceeded its rights " by this enactment or, if that cannot legally be
;
"advanced, that it at least violated the trust of the " people, and broke in upon the ancient constitution and this remark he bases on the ground that " the " law for triennial Parliaments was of little more than
;
" twenty years' continuance. It was an experiment, " which, as was argued, had proved unsuccessful it
;
"was
subject, like every other law, to be repealed
" entirely, or to be modified at discretion." ^ " We may," says Lord Stanhope, "... cast aside " the foolish idea that the Parliament overstepped its
" legitimate authority in prolonging
1
its
existence
ed.), p.
an
Hallam, Constitutioml History of England,
iii.
(1872
236.
44

which was indeed urged by party-spirit at the
Part
I.
'
" idea
" time, and which may still sometimes pass current in " harangues to heated multitudes, but which has been
"treated with utter contempt by the best constitu" tional writers." ^

constitu-
These remarks miss the real point of the attack on

the Septennial Act, and also conceal the constitutional
i^poj-tance
portance of Heptenniai
The thirty-one peers (among other grounds) "it is agreed, that the House of Commons " must be chosen by the people, and when so chosen,
of the
statute.
who
protested against the Bill because
" they are truly the representatives of the people,
" which they cannot be so properly said to be, when " continued for a longer time than that for which they
" were chosen
by and not the people, who are thereby " deprived of the only remedy which they have against " those, who either do not understand, or through " corruption, do wilfully betray the trust reposed in " them which remedy is, to choose better men in their
;
for after that time they are chosen
" the Parliament,
" places,"
hit exactly the theoretical objection to
it.
The
peculiarity of the
Act was not that

or
it
changed
the legal duration

Triennial Act
in 1716
;
of Parliament
repealed the
the mere passing of a Septennial Act
to be anything
was not and would never have been thought more startling or open to graver censtartling
sure than the passing of a Triennial
What was
of
Act in 1694. was that an existing Parliament
its own authority prolonged its own legal existence. Nor can the argument used by Priestley,* and in effect
1 Lord Mahon, History of England, i. Thorold Rogers, Protests of the Lords,
p.
i.
302.
p.
218.
Wm. &
M.
c.
2.
See Priestley on Government (1771),
p. 20.
NA TURE OF PAR7JAMENTAR V SO VEREIGNTY

by the
45
protesting Peers, " that Septennial Parliaments Chapter " were at first a direct usurpation of the rights of the 1^ " people for by the same authority that one Parlia;
"
ment prolonged their own power to seven years, they " might have continued it to twice seven, or like the
it
"Parliament of 1641 have made
perpetual," be
treated as a blunder grounded simply on the "ignorant
assuniption" that the Septennial Act prolonged the

original duration of Parliament.^
Priestley
and others was
in
The contention of substance that members
elected to serve for three years were constitutionally

so, far at least
the delegates or agents of their con-
stituents that they could not, without an inroad on
the constitution, extend their
the period for which

their principals,
i.e.
it
own authority beyond was conferred upon them by

There are countries,
the electors.
and notably the United States, where an Act like the no Septennial Act would be held legally invalid modern English Parliament would for the sake of keeping a government or party in oflfice venture to pass say a Decennial Act and thus prolong its own duration the contention therefore that Walpole and his followers in passing the Septennial Act violated
; ;
the understandings of the

face of it nothing absurd.
constitution has on the
Parliament made a legal
though unprecedented use of its powers. To underrate this exertion of authority is to deprive the
Septennial Act of
its
true constitutional importance.
That Act proves to demonstration that in a legal point of view Parliament is neither the agent of the electors nor in any sense a trustee for its constituents. It is legally the sovereign legislative power in the state,
1
Hallam, Constitutional
Histor.y,
iii.
(1872
ed.), p.
236
(n.).
46

is
Part
.
I.
and the Septennial Act

Hitherto
at once the result
and the
standing proof of such Parliamentary sovereignty.
Inter-
we have looked
at Parliament as legally
rights.
Pariiatnent
private
rights.
Omnipotent in regard to public
Let us now
consider the position of Parliament in regard to those

private rights which are in civilised states justly held
specially secure or sacred.
Coke
(it
should be noted)
particularly chooses interference with private rights as specimens of Parliamentary authority.
" Yet some examples are desired.
Daughters and
" heirs apparent of a man or woman, may by Act of " Parliament inherit during the life of the ancestor.
" It " "
may
adjudge an infant, or minor, of
full age.
To To
attaint a
man
It
of treason after his death.
naturalise a
mere
alien,
and make him a
" subject born.
may
bastard a child that
by law
"is legitimate, viz. begotten
by an
adulterer, the
"husband being within the four seas. " To legitimate one that is illegitimate, and born
"before
marriage
absolutely.
And
choice
is
to
^
legitimate
"secundum quid, but not simpKciter."

Coke
is
judicious
in
his
of
instances.
bottom a less striking exhibition of absolute power than is the interference with the far more important rights of individuals; a ruler who might think nothing of
rights
at
Interference with public
overthrowing the constitution of his country, would in all probability hesitate a long time before he touched the property or interfered with the contracts
of private persons.
interferes,
rights.
for
Parliament, however, habitually the public advantage, with private
Indeed such interference has

1
now
(greatly to
Coke, Fourth
Institute, p, 36.

the benefit of the
47
community) become so much a

is
Chapter
-
matter of course as hardly to excite remark, and few

persons reflect what a sign this interference
of the
supremacy of Parliament. The statute-book teems with Acts under which Parliament gives privileges or
rights
to particular
persons
or
imposes particular
This
is
duties or liabilities
upon other persons.
of
course the case with every railway Act, but no one

will realise the full action, generally the
ficial
very bene-
action of Parliamentary sovereignty,
who
does
'-
not look through a volume or two of what are called
Local and Private Acts. These Acts are just as much Acts of Parliament as any Statute of the Eealm. They deal with every kind of topic, as with railways, harbours, docks, the settlement of private estates, and
the
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
like.
To
these
now rarely passed, for the divorce of married persons. One further class of statutes deserve in this connection more notice than they have received
are Acts of Indemnity.
these
Acts of
An Act
which
of Indemnity
is
a statute, the object of
is to make legal place were illegal, or to free individuals to took
transactions which when they
whom
the statute applies from

the
liability for
having broken
enactments .of this kind were annually passed with almost unbroken regularity for more than a century (1727-1828) to free Dissenters from penal-
law;
ties,
for
having accepted municipal
offices
without
duly qualifying themselves by taking the sacrament To according to the rites of the Church of England.
48

subject of Acts of Indemnity, however,
PartL
tli6
we
shall
return in a later chapter/
The point
to be
it
now
and
its
noted
is
that such enactments being as
were the
legalisation of illegality are the highest exertion
crowning proof of sovereign power. So far of the sovereignty of Parliament from

positive side
:
let us
now
look at the same doctrine
from
No
other
its
negative aspect.
II.
legisMvf
authority.
power.
The
The abseuce of any
competing
legislative
King, each House of Parliament, the
and the Law Courts, either have at one time claimed, or might appear to claim, indeConstituencies,
pendent legislative power.

cases be
It will
be found, however,
on examination that the claim can in none of these
made
good.
The King.
(i.)
The King.
Legislative
authority originally
King in Council,^ and even after the commencement of Parliamentary legislation there existed side by side with it a system of royal legisresided in the
lation under the
form of Ordinances,^ and (at a
later
period) of Proclamations.
statute of
Prociama-
These had much the force of law, and in the year jggg ^j^^ ^^j. g^ g^^j.^ yjjj_^ ^_ g^ formally empowcred
the Crown to legislate by means of proclamations.
This statute
is
so short
and
so
noteworthy that
it
it
may
well be quoted in extenso.
"
The King,"
runs, " for
" the time being, with the advice of his Council, or the " more part of them, may set forth proclamations under
See Chap. V. post. See Stubbs, OonstituUonal History, 245-247.
1 ^
i.
pp. 126-128,
and
ii.
pp.
Stubbs, ibid.
ii.
chap. xv.

" such penalties
49
and pains as to him and them shall "seem necessary, which shall be observed as though " they were made by Act of Parliament but this shall " not be prejudicial to any person's inheritance, ofl&ces, " liberties, goods, chattels, or life and whosoever shall " willingly offend any article contained in the said pro" clamations, shall pay such forfeitures, or be so long
;
;
Chapter
'
"imprisoned, as shall be expressed in the said pro" clamations and if any offending will depart the
;
" realm, to the intent he will not answer his said " offence, he shall be adjudged a traitor." ^
This enactment marks the highest point of legal

authority ever reached
by the Crown, and, probably
because of
its
inconsistency with the whole tenor of
English law, was repealed in the reign of Edward the

Sixth.
It
is
curious
to
notice
how
revolutionary
would have been the results of the statute had it remained in force. It must have been followed by An English king would have two consequences. despotic as a French monarch. The become nearly as statute would further have established a distinction between " laws " properly so called as being made by
the legislature and " ordinances " having the force of law, though not in strictness laws as being rather
decrees of the executive power than Acts of the legisThis distinction exists in one form or another lature.
in
most continental
states,
and
is
not without great
practical utility.
In foreign countries the legislature
generally confines itself to laying
down
general prin-
ciples of legislation, and leaves them with great advantage to the public to be supplemented by decrees or regulations which are the work of the executive.
I
31 Henry VIII.,
c.
8.
50
Part
I.
The cumbersomeness and prolixity of Englisli statute law is due in no small measure to futile endeavours of Parliament to work out the details of large legislative This evil has become so apparent that in changes.
modern times Acts of Parliament constantly contain provisions empowering the Privy Council, the judges, or some other body, to make rules under the Act for the determination of details which cannot be settled
by Parliament.
gation
less
-^
But
this is only
of an acknowledged evil, than the form of the law would,

if
an awkward mitiand the substance no

it is
probable, be
a good deal improved
the executive government of
England could,
like that of France,
by means
of decrees,
ordinances, or proclamations having the force of law,
work out the detailed application of the general embodied in the Acts of the legislature.^ In this, as in some other instances, restrictions wisely placed by our forefathers on the growth of royal power, are at the present day the cause of unnecessary
principles
restraints
on the action of the executive government. For the repeal of 31 Henry VIIL, c. 8, rendered
1 A critic has objected to the words "awkward mitigation of an acknowledged evil " on the ground that they condemn in England a system which as it exists abroad is referred to as being not without
great
practical
justifiable.
are passed, order in council or otherwise, is introduced only in cases where it is obvious that to embody the rules in the statute is either highly in-
utility. The expression objected to is, however, Under the English system elaborate and detailed statutes and the power to make rules under the statute, e.g. by
expedient or practically impossible. Under the foreign, and especially the French system, the form of laws, or in other words, of statutes, is permanently affected by the knowledge of legislators and draftsmen
that
any law
will be supplemented
attempt, and with very
little success, to
tion of the laws enacted therein.
decrees. English statutes provide for the detailed execuForeign laws are, what every law
by
ought to be, statements of general principles. 2 See Duguit, Manuel de Droit Publio Frangais
tionnd,
ss.
Droit Constitu-
140, 141.
NA TURE OF PARLIAMENTA RY SO VEREIGN TY

governmental
legislation,
51
with
all
its
defects
and
Chapter
'.
merits, impossible,
and left to proclamations only such weight as they might possess at common law. The exact extent of this authority was indeed for In 1610, however, a solemn some time doubtful.
opinion
or
protest
of the judges^ established the

in
modern doctrine that royal proclamations have

sense the force of law
;
no
they serve to
call
the attention
of the public to the law, but they cannot of themselves
impose upon any man any legal obligation or duty not
imposed by common law or by Act of Parliament. In 1766 Lord Chatham attempted to prohibit by force of proclamation the exportation of wheat, and the Act of
Indemnity (7 George
of this attempt,
disposal of
III., c. 7),
passed in consequence
may
be considered the final legislative
any claim on the part of the Crown to make law by force of proclamation. The main instances ^ where, in modern times, pro1 See Coke, 12 Rep. p. 74; and Gardiner, History of England, ii. pp. 104, 105. 2 In rare instances, which are survivals from the time when the King of England was the true " sovereign " in the technical sense of
that term, the

prerogative.
in council,
Crown
exercises legislative functions in virtue of the
Thus the Crown can legislate, by proclamations or orders for a newly conquered country {Campbell v. Hall, Cowp.
204), and has claimed the right, though the validity thereof is doubtIn the the Channel Islands by orders in council. See Matter of the States of Jersey, 9 Moore P. C, n. s. 184, 262. Stephen, Gommentaries (8th ed.), i. pp. 100-102. " The Channel Islands
ful, to legislate for
indeed claim to have conquered England, and are the sole fragments of the dukedom of Normandy which still continue attached to the
For this reason, in these islands alone of all British any doubt arise as to whether an Act of the imperial In practice, when an Act Parliament is of its own force binding law. the King is intended to apply to them, a section is inserted authorising in Council to issue an Order for the application of the Act to these islands, and requiring the registration of that Order in the islands, and the Order in Council is made by the King and registered by the States Sir II> Jenkyns, British Jiule and Jwi-isditition leyond the accordingly,"
British Crown.
possessions does
52
Part
I.
clamations or orders in council are of any effect are cases either where, at common law, a proclamation is
the regular mode, not of legislation, but of announcing
the executive will of the King, as
when Parliament
where orders
is
summoned by
Parliament.
proclamation,
or, else
in
council have authority given
to
them by Act
of
Houses of
ment^
Resolutions of either House of Parliament. The Housc of Commous, at any rate, has from time to
(ii-)
time appeared to claim for resolutions of the House, something like legal authority. That this pretension
cannot be supported
difficulty in defining
is
certain,
but there exists some

efiect
with precision the exact
which the Courts concede to a resolution of either

House.
Two
Resoiuei^her"^
points are, however, well established.
First,
The resolution of neither House
is
a law.
This
(ûfîg
is
the Substantial result of the case of Stock-
House.
The gist of the decision in that case is that a libellous document did not cease to be a libel because it was published by the order of the House of Commons, or because the House subsequently resolved that the power of publishing the report which contained it, was an essential incident to the constitutional functions of Parliament.
y Hansard}
Secondly, Each House of Parliament has complete

Seas, p. 37.
But whatever doubt may arise in the Channel Islands, every English lawyer knows that any English court will hold that an Act of Parliament clearly intended to apply to the Channel Islands is in force there proprio vigore, whether registered by the States or not. As to the legislative power of the Crown in Colonies which are not self-governing, see further British Ride and Jurisdiction beyond the Seas,
p. 95.
1
9 A.
&
E.
1.

control over its
53
own
proceedings, and also has the
Chapter
'__
right to protect itself
by committing for contempt any person who commits any injury against, or oflFers any affront to the House, and no Court of law will inquire into the mode in which either House exercises the powers which it by law possesses. The practical difficulty lies in the reconciliation of
the
first
with the second of these propositions, and
is
best
met by following out the analogy suggested by
Mr. Justice Stephen, between a resolution of the
House of Commons, and the decision of a Court from which there is no appeal. " I do not say," runs his judgment, " that the resolution of the House is the judgment of a Court
' '
not subject to our revision
but
it
has
much
in
'common with such a judgment.

'
The House
;
of
Commons
is
not a Court of Justice
but the
effect
'
of its privilege to regulate its

practically invests
it
it
own
internal concerns,
'
with a judicial character when
'
has to apply to particular cases the provisions of
'
Acts of Parliament.
charges this
to the laws,
'
'
must presume that it disfunction properly, and with due regard in the making of which it has so great
is
We
'
a share.
If its determination
not in accordance
'
with
law, this resembles the case of an error

is
by a
'judge whose decision

'that such an error
not subject to appeal.
There
'is nothing startling in the recognition of the fact

is
possible.
If,
for instance, a
'jury in a criminal case give a perverse verdict, the

'
law has provided no remedy.
The maxim that there
1 See StocMale\. Hansard, 9 A. & E.l ; Case of Sheriff of Middlesex, 11 A. & E. 273 ; Burdett v. Abbot, 14 East, 1, 111, 131 ; Bradlaugh V. Gossett, 12 Q. B. D. 272.
54
Part
I.
"is no wrong without a remedy, does not mean, as it " is sometimes supposed, that there is a legal remedy
" for every moral or political wrong.
If this
were
its
" meaning, it would be manifestly untrue. There is " no legal remedy for the breach of a solemn promise
"not under seal, and made without consideration; "nor for many kinds of verbal slander^ though each
"
may
involve utter ruin
nor for oppressive

reduce
legisla-
" tion,
though
it
may
men
practically
to
"slavery; nor for the worst damage to person and " property inflicted by the most unjust and cruel war. " The maxim means only that legal wrong and legal
" remedy are correlative terms and " intelligibly and correctly stated, if
;
it
it
would be more were reversed,
Law
as to
resoMons
of either
House.
Where there is no legal remedy, no legal wrong.' " ^ The law therefore stands thus. Either House of Parliament has the fullest power over its own proceedings, and can, like a Court, commit for contempt any person who, in the judgment of the House, is
"so
as to stand,
is
'
" there
guilty of insult or affront to the House.

the Sheriff of Middlesex
farthest point.
^
The Case of
carries this right to the very
was imprisoned for contempt under a warrant issued by the Speaker. Every one knew that the alleged contempt was nothing else than obedience by the Sheriff to the judgment of the Court of Queen's Bench in the case of Stockdale v. Hansard, and that the Sheriff was imprisoned by the House because under such judgment he took the goods of the defendant Hansard in execution. Yet when the Sherifi" was brought by Habeas Corpus before the Queen's Bench the Judges held that they could
Sheriff
1
The
Bradlaugh
v. Gossett,
12 Q. B. D. 271, 285.
j^
,jj
273.
NA TURE OF PARLIAMENTAR Y SO VEREIGNTY
5J
not inquire what were the contempts for which the
Chapter
"
was committed by the House, The Courts, in other words, do not claim any right to protect their own officials from being imprisoned by the House of Commons for alleged contempt of the House, even though the so-called contempt is nothing else than an
SheriflF
act of obedience
to
the
Courts,
A A
declaration or
is
resolution of either House, on the other hand,
not in
of
any sense a law.

the House of
irrespective of
Suppose that
to assault
X were
by order
Commons
out of the House,
any act done in the House, and not under a warrant committing A for contempt; or suppose that were to commit some offence by which he incurred a fine under some Act of Parliament, and that such fine were recoverable by ^ as a
common informer. No resolution of the House of Commons ordering or approving of Xs act could be
pleaded by
X as a legal defence to proceedings, either

If proof of this
civil or criminal, against him.^
were
wanted it would be afforded by the Act 3 & 4 Vict, The object of this Act, passed in consequence of c. 9,
the controversy connected with the case of Stochdale
V.
Hansard,
are, it
is
to give
summary protection
to persons
employed
which
in the publication of Parliamentary papers,
should be noted, papers published by the

for such
order of one or other of the Houses of Parliament.
The necessity
an Act
is
is
the clearest proof

itself a legal
that an order of the
House
not of
defence for the publication of matters
which would
The House of Commons, " by otherwise be libellous. " invoking the authority of the whole Legislature to
" give validity to the plea they, had vainly set up
1
Conf. Attorney-General
v.
Bradlaugh, 14 Q. B. D. (C. A.), 667.
56
Part
I.
"in the action [of Stockdalc v. Hansard], and by "not appealing against the judgment of the Court " of Queen's Bench, had, in ejffect, admitted the
" correctness of that judgment and affirmed the great " principle on which it was founded, viz. that no single " branch of the Legislature can, by any assertion of its
" alleged privileges, alter, suspend, or supersede
any
"known law
of the land, or bar the resort of any
"Englishman to any remedy, or his exercise and "enjoyment of any right, by that law established." ^
1 Arnould, Memoir of Lord Denman, ii. p. VO. Nothing is harder to define than the extent of the indefinite powers or rights possessed
either House of Parliament under the head of privilege or law and custom of Parliament. The powers exercised by the Houses, and especially in practice by the House of Commons, make a near approach to an authority above that of the ordinary law of the land. Parliamentary privilege has from the nature of things never been the subject of precise legal definition. One or two points are worth notice as
by
being clearly established. 1. Either House of Parliament may commit for contempt, and the Courts will not go behind the committal and inquire into the facts constituting the alleged contempt. Hence either House may commit to prison for contempt any person whom the House think guilty of contempt.
2.
The House
of Lords have
power
to
commit an offender
to prison
even beyond the duration of the session (Itfay, Parliamentary Practice (11th ed.), pp. 91, 92). But the House of Commons do not commit for a definite period, and prisoners committed by the House are, if not sooner discharged, released from their confinement on a prorogation. If they were held longer in custody they would be discharged by the Courts upon a writ of Habeas Corpus (May, Parliamentary Practice, chap. iii.). 3. A libel upon either House of Parliament or upon a member thereof, in his character of a member, has been often treated as a contempt. (Ibid.) 4. The Houses and all the members thereof have all the privileges as to freedom of speech, etc., necessary for the performance of their (See generally May's Parliamentary Practice, chap, iii.) duties. Compare as to Parliamentary privilege Shaftesbury's Case, 6 St. Tr. 1269 Flower's Case, 8 T.-R. 314 Ashby v. White, 1 Sm. L. Cas. (9th Wilkes's Case, 19 St. Tr. 1153 Burdett v. Colman, 14 East, ed.), 268 163 Eex v. Creevy, 1 M. & S. 273 Clarke v. Bradlauyh, 7 Q. B. D.
for a specified term,
; ; ; ; ; ;

(iii.)
57
The Vote of
the
Parliamentary Electors.
tlie
of
chapter
Expressions are constantly used in

political discussions
course
which imply that the body of
'^^<' <^"-
persons entitled to choose members of Parliament

possess under the English constitution
legislative authority.
see,
some kind of
is,
as we shall Such language not without a real meaning;^ it points to the
important consideration that the wishes of the constituencies influence the action of Parliament.
But
any expressions -which attribute
to
Parliamentary
electors a legal part in the process of
law-making are
quite inconsistent with the view taken by the law of
the position of an elector.
The
sole legal right of

is
electors under the English constitution
to elect
members of Parliament. Electors have no legal means of initiating, of sanctioning, or of repealing the
legislation of Parliament.
No
Court will consider for
a moment the argument that a law is invalid as being opposed to the opinion of the electorate; their opinion can be legally expressed through Parliament, and
through Parliament alone.
This
is
not a necessary
In Switzer^
incident of representative government.
land no change can be introduced in the constitution which has not been submitted for approval or disapproval to
all
male
citizens
who have
attained their
and even an ordinary law which does not involve a change in the constitution may, after it has been passed by the Federal Assembly, be submitted on the demand of a certain number of citizens to a
majority
;
38,
1 2
8.
App. Caa.
354';
The Attorn^ -General
v.
Bradlaugh,
14
Q. B. D. 667.
See pp. 70-74,
post.
Constitution F^derale de la Gonfideration Suisse, Arts. see Adams, The Swiss Gonfederation, chap. vi.
118-121;
58

is
Part
I.
popular vote, and

in its favour.-'
annulled
if
a vote
is
not obtained
The Courts.
(iv.)
The Laiv Courts.

is
large
proportion
of
English law
in reality
made by
the judges, and
whoever wishes to understand the nature and the extent of judicial legislation in England, should read
Pollock's admirable essay on
the Science of Case
Law.^ The topic is too wide a one to be considered All that we need at any length in these lectures.
note
is
that
the adhesion
is,
by our judges
to
pre-
cedent, that
their habit of deciding one case in
accordance with the principle, or supposed principle,
which governed a former

decision,
case, leads inevitably to the
gradual formation by the Courts of fixed rules for
which are in effect laws. This judicial legislation might appear, at first sight, inconsistent with the supremacy of Parliament. But this is not so. English judges do not claim or exercise any power to repeal a Statute, whilst Acts of Parliament may override and constantly do override the law of the judges.
Judicial legislation
carried
is,
in short, subordinate legislation,
on with the assent and subject to the super-
vision of Parliament.
Alleged
limitations.
Alleged legal limitations on the legislative gQ^g^gigîy qJ Parliament. All that can be urged
B.
as to the speculative difficulties of placing
any
limits
whatever on sovereignty has been admirably stated by Austin and by Professor Holland.' With these
1
Gonstitution Federate de la OonfMeration Suisse, Art. 89.
and Ethics, p. 237, and see Opinion in England (2nd ed.), pp. 361, 483. ^ See Austin, Jurisprudence, i. (4th ed.), pp. 270-274, and Holland, Jurisprudence (10th ed.), pp. 47-52 and 359-363. The nature of
2
Pollock,
Essays in Jurisprudence
Dicey,
Law and
NA TURE OF PARUAMENTAR Y SO VEREIGNTY

difficulties
is it
59
we have,
at this
moment, no concern.
it
Nor
Chapter
necessary to examine whether
be or be not
1_
true, that there
must
necessarily be found in every
state
some person, or combination of persons, which,

its
according to the constitution, whatever be

tutes the legally supreme
form,
can legally change every law, and therefore consti-
power in the
state.
Our
whole business is now to carry a step further the proof that, under the English constitution. Parliament does constitute such a supreme legislative authority or sovereign power as, according to Austin and other jurists, must exist in every civilised state, and for
that purpose to
examine into the validity of the various suggestions, which have from time to time been made, as to the possible limitations on Parliamentary authority, and to show that none of them
are countenanced
by English
law.
are three in number.^
it
The suggested limitations

are invalid if they
First, Acts of Parliament,
has been asserted,
Moral law.
are opposed to the principles of
morality or to the doctrines of international law. Parliament, it is in effect asserted, cannot make a law
opposed to the dictates of private or public morality. Thus Blackstone lays down in so many words that
sovereignty
is also
stated with brevity
and Ahuse
of Political Terms, pp. 37-53.
and clearness in Lewis, Use Compare, for a different view,

;
Bryce, Studies in History and Jurisprudence, ii., Essay ix., Obedience and Essay x., The Nature of Sovereignty. 1 Another limitation has been suggested more or less distinctly by and Hearn, Government of England judges such as Coke (12 Rep. 76 an Act of Parliament cannot (it has been inti(2nd ed.), pp. 48, 49)
; ;
doctrine mated) overrule the principles of the common law. This a real meaning (see Maine, Early History of Institutions, once had systematic judicial sanction pp 381, 382), but it has never received 29 and is now obsolete. See Colonial Laws Validity Act, 1865, 28 &
Vict.
c.
63.
6o
Part
I.
the " law of nature being coeval with, mankind, and
by God himself, is of course superior in any other. It is binding over all the "globe, in all countries, and at all times no human " laws are of any validity if contrary to this and such " of them as are valid derive all their force and all
" obligation to
:
" dictated
" their authority, mediately or immediately, from this
and expressions are sometimes used by modern judges which imply that the Courts might refuse to enforce statutes going beyond the proper
"
^
" original
limits
(internationally
speaking)
of Parliamentary
But to words such as those of Blackand to the obiter dicta of the Bench, wê must give a very qualified interpretation. There is no
authority.^
stone,
legal basis for the theory that judges, as exponents
may overrule Acts of Parliament. Language which might seem to imply this amounts in reality to nothing more than the assertion that the
of morality,
judges,
when attempting
to ascertain
what
is
the
meaning to be afl&xed to an Act of Parliament, will presume that Parliament did not intend to violate'
the ordinary rules of morality, or the principles of international law, and will therefore, whenever pos-
an interpretation to a statutory enactment as may be consistent with the doctrines both of private and of international morality. A
sible,
give such
modern judge would never listen to a barrister who argued that an Act of Parliament was invalid because
1 Blackstone, Gommentaries, i. p. 40 ; and see Heam, Government of England (2n(l ed.), pp. 48, 49. 2 See Ex parte Slain, 12 Ch. D. (C. A.), 522, 531, judgment of
Cotton, L. J.
3 See Golquhoun v. Brooks, 21 Q. B. D. (C. A.), 52 and compare the language of Lord Esher, pp. 57, 58, with the iudcrment of Fry L. J., ibid. pp. 61, 62.
;
NA TURK OF PARLIAMENTAR Y SO VEREIGNTY

it
was immoral, or because
it
went beyond the
limits
is
Chapter
'.
of Parliamentary authority.
The
is
plain truth
that
our tribunals uniformly act on the principle that a
law alleged to be a bad law

Secondly,
ex hypothesi a law, and
therefore entitled to obedience
by the
Courts.
^
Doctrines have at times
been main-
pre-
^* tained which went very near to denying the right of
'*
Parliament to touch the Prerogative.

In the time of the Stuarts
tained, not only
^
the doctrine was main-
by the King, but by lawyers and
statesmen who, like Bacon, favoured the increase of

royal authority, that the
Crown possessed under the
name
of the " prerogative " a reserve, so to speak, of
wide and indefinite rights and powers, and that this prerogative or residue of sovereign power was superior
to the ordinary law of the land.
This doctrine comit
bined with the deduction from
that the
could suspend the operation of statutes, or
Crown at any rate
grant dispensation from obedience to them, certainly suggested the notion that the high powers of the prerogative were to a certain extent beyond the reach
of Parliamentary enactment.
We
is
need not, however,
now
age.
enter into the political controversies of another
All that need be noticed
that though certain
powers
as, for
are
now
left
example, the right of making treaties by law in the hands of the Crown, and
by the executive government, no modern lawyer would maintain that these powers or any other branch of royal authority could not be regulated or abolished by Act of Parliament, or, what is
are exercised in fact
See Stubbs, Gonstitutional History, ii. pp. 239, 486, 513-515. Gardiner, History, iii. pp. 1-5 ; compare, as to Bacon's view of the prei'ogative, Francis Bacon, by Edwin A. Abbott, pp. 140, 260, 279.
1 2
62
Parti,
'
the same thing, that the judges might legally treat as invalid a statute, say, regulating the mode in which
be made, or making the assent of the Houses of Parliament necessary to the validity
treaties
are to
of a treaty.^
Preceding
Pariia"-^
Thirdly, Language has occasionally been used in
"'*-
Acts of Parliament which implies that one Parliament can make laws which cannot be touched by any subsequent Parliament, and that therefore the legislative authority of an existing Parliament may be limited
by the enactments
The Acts
of Union.
of its predecessors.^
That Parliaments have more than once intended and endeavoured to pass Acts which should tie the hands of their successors is certain, but the endeavour
1 Compare tbe parliamentary practice in accordance with which the consent or recommendation of the Crown is reqiaired to the introduction of bills touching the prerogative or the interests of the Crown. 2 This "The doctrine was known to be erroneous by Bacon. " principal law that was made this Parliament was a law of a strange
" nature, rather just than legal, and more magnanimous than jsrovident. " This law did ordain, That no person that did assist in arms or " otherwise the King for the time being, should after be impeached " therefor, or attainted either by the course of law or by Act of " Parliament ; for if any such act of attainder did hap to be made, it " should be void and of none effect. But the force and obligation " of this law was in itself illusory, as to the latter part of it ; (by a "precedent Act of Parliament to bind or frustrate a future). For a " supreme and absolute power cannot conclude itself, neither can that " which is in nature revocable be made fixed no more than if a man " should appoint or declare by his will that if he made any later will And for the case of the Act of Parliament, there "it should be void. "is a notable precedent of it in King Henry the Eighth's time, who " doubting he might die in the minority of his son, provided an Act to " pass. That no statute made during the minority of a king should " bind him or his successors, except it were confirmed by the king " under his great seal at his full age. But the first Act that passed in " King Edward the Sixth's time was an Act of repeal of that former " Act at which time nevertheless the King was minor. But things " that do not bind may satisfy for the time." Works of Francis Bacon, vi., by Spedding, Ellis, and Heath (1861), pp. 159, 160,
. . . ; ;

has always ended in
failure.
63
Of
statutes intended to
Chapter
^'
arrest the possible course of future legislation,
the
most noteworthy are the Acts which embody the treaties of Union with Scotland and Ireland.^ The
-^
legislators
who passed
these Acts assuredly intended
to give to certain portions of
ordinary effect of statutes.
them more than the Yet the history of legisla-
tion in respect of these very Acts affords the strongest
proof of the futility inherent in every attempt of one

sovereign legislature to restrain the action of another
equally sovereign body.
Thus the Act of Union with
Scotland enacts in effect that every professor of a
Scotch University shall acknowledge and profess and

subscribe the Confession of Faith as his profession of
and in substance enacts that this provision shall be a fundamental and essential condition of the treaty But this very provision of union in all time coming.^ has been in its main part repealed by the Universities (Scotland) Act, 1853,* which relieves most professors in the Scotch universities from the necessity of subNor is this by any scribing the Confession of Faith. means the only inroad made upon the terms of the Act of Union from one point of view at any rate the Act 10 Anne, c. 12,* restoring the exercise of lay patronage, was a direct infringement upon the Treaty The intended unchangeableness, and the of Union. real liability of these Acts or treaties to be changed by Parliament, comes out even more strikingly in the The fifth history of the Act of Union with Ireland.
faith,
;
1 The Union with Scotland Act, 1706, 6 Anne, The Union with Ireland Act, 1800, ,39 & 40 Geo.
c.
11.
III., c.
67.
3 *
See 6 Anne, c. 11, art. 25. 16 & 17 Vict. c. 89, s. 1.

of Creeds in Scotland, pp. 118-121.
Compare Innes, Law
64

:
Part
I.
" That it be the Article of that Act runs as follows " fifth article of Union, that the Churches of England
"
and Ireland as now by law
established, be united into
episcopal Church, to be called the " United Church of England and Ireland and that " the doctrine, worship, discipline, and government of
;
"one Protestant
" the said United Church shall be and shall remain " in full force for ever, as the same are now by law
"established for the Church of England; and that " the continuance and preservation of the said United
" Church, as the established Church of England and " Ireland, shall be deemed and be taken to be an " essential and fundamental part of the Union."
Article
is
That the statesmen who drew and passed this meant to bind the action of future Parliaments apparent from its language. That the attempt has
failed of success is apparent to every one
who knows
the contents of the Irish Church Act, 1869.

Act limit-
One
A.ct,
indeed, of the British Parliament might,
M?ament looêd at in the light of history, claim a peculiar sanctity. It is certainly an enactment of which the colonies.
to tax
'' '
terms,
we may
safely predict, will never be repealed
and the
spirit will
never be violated.
This Act
is
the
Taxation of Colonies Act, 1778.^
It provides that Par-
liament "will not impose any dnty, tax, or assessment " whatever, payable in any of his Majesty's colonies,
" provinces, and plantations in North America or the " West Indies ; except only such duties as it may be " expedient to impose for the regulation of commerce
" the net produce of such duties to be always paid and " applied to and for the use of the colony, province, or " plantation, in which the same shall be respectively
1
18 Geo. Ill, c 12.
NA TURE OF PARLIAMENTAR Y SO VEREIGNTY

" levied, in such
65
manner as other duties collected by " the authority of the respective general courts, or
" general assemblies, of such colonies, provinces, or
Chapter
L_
" plantations, are ordinarily paid
and applied."^
This language becomes the more impressive
when
contrasted with the American Colonies Act, 1776,^
which, being passed in that year to repeal the Acts
imposing
the
Stamp
Duties,
carefully
avoids
any
surrender of Parliament's right to tax the colonies.
There
is no need to dwell on the course of events of which these two Acts are a statutory record. The point calling for attention is that though policy and
prudence condemn the repeal of the Taxation of

Colonies Act,
1778, or the enactment of any law

is
inconsistent with its spirit, there

stitution
under our con-
no
legal difficulty in
the
way
of repeal-
ing or overriding this Act.
If Parliament
were
it
to-
morrow
to impose a tax, say
on
New
Zealand or on
the Canadian Dominion, the statute imposing
be a legally valid enactment.
very judicious writer " It is certain that a Parliament " cannot so bind its successors by the terms of any
" statute, as to limit the discretion of a future Parlia-
As
stated in short
would by a
"ment, and thereby

"
it
disable
the
Legislature
from
"entire freedom of action at any future time

" Parliament to legislate for the public welfare."
1 8
"^
when
*
might be needful to invoke the interposition of
& Geo. Ill, c. 12. 18 Geo. III., c. 12, s. 1. Todd, Parliamentary Government in the British Colonies, p. 192. It is a matter of curious, though not uninstructive, speculation to consider why it is that Parliament, though on several occasions passing Acts which were intended to be immutable, has never in reality
succeeded in restricting its own legislative authority. This question may be considered either logically or historically. The logical reason why Parliament has failed in its endeavours to
66

Parliamentary sovereignty
is
Parti.
therefore
an units
doubted legal fact. It is complete both on
its
positive
and on
enact unchangeable enactments is that a sovereign power cannot, while retaining its sovereign character, restrict its own powers by anyAn Act, whatever its terms, passed by Parliaparticular enactment.
ment might be repealed in a subsequent, or indeed in the same, session, and there would be nothing to make the authority of the repealing Parliament less than the authority of the Parliament by which the statute, intended to be immutable, was enacted. "Limited Sovereignty,"
in short, is in the case of a Parliamentary as of every other sovereign, Its frequent and convenient use arises from a contradiction in terms. its in reality signifying, and being by any one who uses words with any accuracy understood to signify, that some person, e.g. a king, who was at one time a real sovereign or despot, and who is in name treated as an actual sovereign, has become only a part of the power which is legally supreme or sovereign in a particular state. This, it may be added, is the true position of the king in most constitutional
.
monarchies. Let the reader, however, note that the impossibility of placing a limit on the exercise of sovereignty does not in any way prohibit either logically, or in matter of fact, the abdication of sovereignty. This is worth observation, because a strange dogma is sometimes put forward that a sovereign power, such as the Parliament of the United Kingdom, can never by its own act divest itself of sovereignty. This An autocrat, such as the position is, however, clearly untenable. Russian Czar, can undoubtedly abdicate ; but sovereignty or the possession of supreme power in a state, whether it be in the hands of If a Czar or of a Parliament, is always one and the. same quality. the Czar can abdicate, so can a Parliament. To argue or imply that because sovereignty is not limitable (which is true) it cannot be surrendered (which is palpably untrue) involves the confusion of two distinct ideas. It is like arguing that because no man can, while he lives, give up, do what he will, his freedom of volition, so no man can commit suicide. sovereign power can divest itself of authority in two ways, and (it is submitted) in two ways only. It may
simply put an end to its own existence. Parliament could extinguish itself by legally dissolving itself and leaving no means whereby a subsequent Parliament could be legally summoned. (See Bryce, AtMiican Gommonwealth, i. (.Srd ed.), p. 242, note 1.) A step nearly approaching to this was taken by the Barebones Parliament when, in 1653, it resigned its power into the hands of Cromwell. A sovereign again may transfer sovereign authority to another person or body of persons. The Parliament of England went very near doing this when, in 1539, the Crown was empowered to legislate by proclamation and though the fact is often overlooked, the Parliaments
;
NA TURE OF PAR LIAMENTA RY SO VEREIGNTY

negative
side.
67
Parliament can legally legislate on any topic whatever which, in the judgment of Parliaboth of England and of Scotland did, at the time of the Union, each transfer sovereign power to a new sovereign body, namely, the Parliament of Great Britain. This Parliament, however, just because it acquired the full authority of the two legislatures by which it was constituted, became in its turn a legally supreme or sovereign legis-
Chapter
I.
though contrary perhaps to the intention modify or abrogate the Act of Union by which it was constituted. If indeed the Act of Union had left alive the Parliaments of England and of Scotland, though for one purpose only, namely, to modify when necessary the Act of Union, and had conferred upon the Parliament of Great Britain authority to pass any law whatever which did not infringe upon or repeal the Act of Union, then the Act of Union would have been a fundamental law unchangeable legally by the British Parliament but in this case the Parliament of Great Britain would have been, not a sovereign, but a subordinate, legislature, and the ultimate sovereign body, in the technical sense of that term, would have been the two Parliaments of England and of Scotland respectively. The statesmen of these two countries saw fit to constitute a new sovereign Parliament, and every attempt to tie the hands of such a body necessarily breaks down, on the logical and practical impossibility of combining absolute legislative authority with restrictions on that authority which, if valid, would make it cease to be absolute.
lature, authorised therefore,
of
its
creators, to
The historical reason why Parliament has never succeeded in passing immutable laws, or in other words, has always retained its character of a supreme legislature, lies deep in the history of the English people and in the peculiar development of the English constitution.
Norman Conquest, been always This lawgiver was originally the Crown, and the peculiarity of the process by which the English constitution has been developed lies in the fact that the legislative authority of the Crown has never been curtailed, but has been transferred from
England
has, at
any
rate since the

legislator.
governed by an absolute
acting alone (or rather in Council) to the Crown acting together with, and then in subordination to, the Houses of ParHence Parliament, or in technical terms the King in liament. it would perhaps be better to say has always Parliament, has become remained a supreme legislature. It is well worth notice that on the
the
Crown
first
one occasion when English reformers broke from the regular course of English historical development, they framed a written constitution, anticipating in many respects the constitutionalism of the United States, and placed the constitution beyond the control of the ordinary It is quite clear that, under the Instrument of Governlegislature. ment of 1653, Cromwell intended certain fundamentals to be beyond
the reach of Parliament.
It
may
be worth observing that the con-
68
Parti,
There is no ment, is a fit subject for legislation. power which, under the English constitution, can come into rivalry with the legislative sovereignty of
Parliament.
No one of the limitations alleged to be imposed bylaw on the absolute authority of Parliament has any real existence, or receives any countenance, either
from the statute-book or from the practice of the
Courts.
This doctrine of the legislative supremacy of Par-
liament
tution.
is
the very keystone of the law of the constiit is,
But
we must
admit, a
dogma which
does not always find ready acceptance, and it is well worth while to note and examine the difficulties which impede the admission of its truth.
C. Difficulties as to the doctrine
Difficulties
as to Par-
liamentary
reigiity.
^ sovereignty.
.
of Parliamentary
persons find
of
,_,
ilie
reasons
why many
it
hard
to
accept the
doctrine
Parliamentary
sovereignty are twofold.

Difficulty
from
Austin's
^^'^'
The dogma sounds like a mere application -n-'i p
to the
British constitution of Austin's theory of sovereignty,
and yet
noticed
intelligent
that
students of Austin must have Austin's own conclusion as to the
persons invested with sovereign
power under the
British constitution does not agree with the view put forward, on the authority of English lawyers, in
stitutiou
legislature.
1653 placed the Executive beyond the control of the Protector under it occupied a position which may well be compared either with that of the American President or of the German Emperor. See Harrison, Cromwell, pp. 194-203. For a view of sovereignty which, though differing to a certain extent from the view put forward in this work, is full of interest and instruction,
of
The
my
ch. xxxi. " Sovereignty
readers are referred to Professor Sidgwick's Elements of Politics, and Order."
NA TURE OF PARUAMENTAR Y SO VEREIGNTY

these
lectures.
69
For while lawyers maintain that sovereignty resides in " Parliament," i.e. in the body constituted by the King, the House of Lords, and the House of Commons, Austin holds ^ that the sovereign power is vested in the King, the House of Lords, and the Commons or the electors. Every one, again, knows as a matter of common sense that, whatever lawyers may say, the sovereign power of Parliament is not unlimited, and that King, Lords, and Commons united do not possess anything like that "restricted omnipotence" if the term may be excused which is the utmost authority ascribable to any human institution. There are many enactments, and these laws not in themselves obviously unwise or tyrannical, which Parliament never would and (to speak plainly) never could pass.
Chapter
^-
Difficulty
[[mUatfon^'
f ^"^^7.
'-
If the doctrine of
Parliamentary sovereignty involves
the attribution of unrestricted power to Parliament,
no better than a legal fiction, and certainly is not worth the stress here laid upon it. Both these difficulties are real and reasonable
the
is
dogma
difficulties.
They
are, it will
be found,
to a certain
extent connected together, and well repay careful

consideration.
As
to Austin's theory of sovereignty in relation Cimoism
...
to the British constitution.
Sovereignty,
TT like
many
in
<"i Austin's theory.
of Austin's conceptions,
is
a generalisation
drawn
the main from English law, just as the ideas of the economists of Austin's generation are (to a great'
extent)
generalisations
suggested
by the circum-
251-255. Compare 1 See Austin, Jurisprudence, i. (4th ed.), pp. Austin's language as to the sovereign body under the constitution of (Austin, Jurisprudence, i. (4th ed.), p. 268.) the United States.
70

In England we are
Parti,
stances of English commerce.
accustomed to the existence of a supreme legislative body, i.e. a body which can make or unmake every law and which, therefore, cannot be bound by any
;
law.
from a legal point of view, the true conception of a sovereign, and the ease with which the theory of absolute sovereignty has been accepted
This
is,
by English
its
due to the peculiar history of So far, therefore, from English constitutional law.
jurists is
being true that the sovereignty of Parliament
is
a deduction from a
critic
abstract theories of jurisprudence,
would come nearer the truth who asserted

theory of
sovereignty
is
that Austin's
suggested
by the
,
position of the English Parliament, just as Austin's analysis of the term " law " is at bottom an
analysis of a typical law, namely, an English criminal

statute.
It
should, however, be carefully noted that the
term " sovereignty," as long as it is accurately employed in the sense in which Austin sometimes ^ uses it, is a merely legal conception, and means simply the power of law-making unrestricted by any legal limit. If the term " sovereignty " be thus used, the sovereign power under the English constitution is clearly " Parliament." But the word " sovereignty " is some-
legal
times employed in a political rather than in a strictly sense. That body is " politically " sovereign
or supreme in a state the will of
which is ultimately obeyed by the citizens of the state. In this sense of the word the electors of Great Britain may be said
to be,
together with the
Crown and the Lords,

i.
or
perhaps, in strict accuracy, independently of the King

1
Compare Austin, Jwriiprvdtnct,
(4th
ed.), p.
268.
NA TUR-E OF PARLIAMENTAR Y SO VEREIGNTY

and the Peers, the body
vested.
in
which sovereign power
is
chapter
For, as things
now
stand, the will of the
_^
and certainly of the electorate in combination with the Lords and the Crown, is sure ultimately to prevail on all subjects to be determined by the British government. The matter indeed may be carried a little further, and we may assert that
electorate,
the arrangements of the constitution are

as
now
such
to ensure that the will of the electors shall
by
regular and constitutional

assert
itself
as
the
means always in the end predominant influence in the

a political, not a legal fact.
country.
But
this is
The
will.
electors can in the long
run ^ always enforce their
But the Courts
will take
no notice of the
will
1 The working of a constitution is greatly affected by the rate at which the will of the political sovereign can make itself felt. In this matter we may compare the constitutions of the United States, of the Swiss Confederacy, and of the United Kingdom respectively. In each case the people of the country, or to speak more accurately
the electorate, are politically sovereign. The action of the people of the United States in changing the Federal Constitution is impeded by
many
difficulties,
and
is
practically slow
the Federal Constitution
has, except after the civil war, not
been materially changed during the
century which has elapsed since its formation. The Articles of the Swiss Confederation admit of more easy change than the Articles of the
able modification.
United States Constitution, and since 1 848 have undergone considerBut though in one point of view the present con-
1874, may be considered a new constitution, it As things now does not differ fundamentally from that of 1848. stand, the people of England can change any part of the law of the Theoretically there is no check constitution with extreme rapidity. on the action of Parliament whatever, and it may be conjectured that
stitution, revised in
in practice any change however fundamental would be at once carried through, which was approved of by one House of Commons, and, after a dissolution of Parliament, was supported by the newly elected House.
The paradoxical and inaccurate assertion, therefore, that England is more democratically governed than either the United States or Switzerland, contains a certain element of truth
the immediate wishes of a decided majority of the electorate of the United Kingdom can be more rapidly carried into legal effect than can the immediate wishes of a majority among the people either of America or of Switzerland.
;
72

The judges know nothing about any
far as that will is
Part
I.
of the electors.
will of the people except in so
expressed by an Act of Parliament, and would never

suffer the validity of a statute to be questioned
the ground of
alive
its
on having been passed or being kept
in
The
is
political sense of the
opposition to the wishes of the electors. word " sovereignty " is, it
as
true,
so.
fully
important as the legal sense or

significations,
more and
"
in
But the two

his
though
inti-
mately connected together, are essentially
different,
some part of
work Austin has apparently
confused the one sense with the other.

" the writers "tion, I
Adopting the language," he writes, " of some of who have treated of the British constitu-
commonly suppose that the present parlia" ment, or theparliament for the time being, is possessed
" of the sovereignty
"
"
or I commonly suppose that the King and the Lords, with the members of the Commons' house, form a tripartite body which is sove:
" reign or supreme. "
But, speaking accurately, the
members
the
of the
"for
Commons' house are merely trustees body by which they are elected and
:
" appointed
and,
consequently,
the
sovereignty
" always resides in the
"electoral
"'
King and the Peers, with the body of the Commons. That a trust is imposed by the party delegating, and that the party
by the
correlative expressions delega-
" representing engages to discharge the trust, seems
" to be imported
''
It were absurd to suppose "that the delegating empowers the representative
tion
and representation.
" party to defeat or abandon

" which
any of the purposes

:
for
for
the
latter
is
appointed
to
suppose,
" example, that the
Commons empower
their repre-
"
73
" sentatives in parliament to relinquish their share in Chapter " the sovereignty to the King and the Lords." ^ L_
Austin owns that the doctrine here laid down by him is inconsistent with the language used by writers
who have
treated of the British constitution.
It is
further absolutely inconsistent with the validity of the
Septennial Act.
Nothing
is
more
certain than that
no English judge ever conceded, or, under the present constitution, can concede, that Parliament is in any
legal sense a " trustee"
^
for the electors.
feigned " trust " the Courts
know nothing.
Of such a The plain
truth is that as ,a matter of law Parliament is the sovereign power in the state, and that the " supposition " treated
by Austin
as inaccurate
is
the correct
statement of a legal fact which forms the basis of our whole legislative and judicial system. It is, however,
equally true that in a political sense the electors are
the most important part

constitution
of,
we may even say

is
are
actually, the sovereign power, since their will
under
as
the
present,
sure
to
obtain ultimate
is
obediejice.
The language
therefore of Austin
correct in regard to " political " sovereignty as it is
erroneous in regard to what

sovereignty.
we may term
" legal
pre-
The
electors are a part of

politically
and the
dominant part of the
sovereign power.
is
But the
legally
all
sovereign
power
assuredly,
as
maintained by
the best writers on the constitution,
nothing but Parliament.

It
may
be conjectured that the error of which
i. (4th ed.), p. 253. This Austin concedes, but the admission is fatal to the con(See Austin, tention that Parliament is not in strictness a sovereign. Jurisprudence, i. (4th ed.), pp. 252, 253.)
Austin^ Jurisprudence,
74
Part
I.
(from a lawyer's point of view) Austin has been

guilty arises from his feeling, as every person
must
who ment is
feel
is
not the slave to mere words, that Parliaalready pointed out^) nothing like an
its
(as
omnipotent body, but that
powers are practically
limited in more ways than one.
And
this limitation
Austin expresses, not very happily, by saying that

the
to
members of the House of Commons are a trust imposed upon them by the electors.
difficulty,
subject
This,
however, leads us to our second

coexistence
fact of actual limitations on the
Existence
limitations
not^^JIoii-
namely, the
of parliamentary sovereignty
with the
sistentwith sovereignty
power of Parliament. As to the actual limitations on the sovereign powcr of Parliament. The actual exercise of authority ^y ^"^y sovereign whatever, and notably by Parliament, is bounded or controlled by two limitations. ' Of these the one is an external, the other is an internal
'
limitation.
External
The external
or a large
laws.
limit to the real
power of a sovereign
consists in the possibility or certainty that his subjects,
number
of them, will disobey or resist his
This limitation exists even under the most despotic
Emperor, or a French King during the middle of the eighteenth century, was (as
monarchies.
is
A Roman
the Russian Czar at the present day) in strictness a " sovereign " in the legal sense of that term. He had
absolute legislative authority.
Any law made by him
was binding, and there was no power in the empire or kingdom which could annul such law. It may also be true, though here we are passing from the legal to
the political sense of sovereignty,

^
that the
will of an
See
p.
69, ante.

absolute monarch
his subjects.
is
75
in general
it
But
obeyed by the bulk of would be an error to suppose
chapter
1_
that the most absolute ruler

in reality
who
ever existed could
make or change every law at his pleasure. That this must be so results from considerations which were long ago pointed out by Hume. Force, he teaches, is in one sense always on the side of the governed, and government therefore in -a sense always depends upon opinion. "Nothing," he writes, "appears " more surprising to those, who consider human affairs " with a philosophical eye, than the easiness with which " the many are governed by the few and the implicit "submission, with which men resign their own senti" ments and passions to those of their rulers. When " we inquire by what means this wonder is effected, we
;
" shall find, that, as force
is
always on the side of the
" governed, the governors have nothing to support " them but opinion. It is, therefore, on opinion only " that government is founded and this maxim extends " to the most despotic and most military governments,
;
" as well as to the most free and most popular. The " Soldan of Egypt, or the Emperor of Rome, might " drive his harmless subjects, like brute beasts, against
" their sentiments and inclination But he must, at " least, have led his mamalukes or praetorian hands,
:
"like men,
by
their opinion."^
is
The
authority, that
to say, even of a despot,

his subjects or of
iiiustra
depends upon the readiness of

readiness to obey
some
eXraai
exerdseof
^^wer.'^"
portion of his subjects to obey his behests; and this
This
is
must always be in reality shown by the most notorious facts of

1
limited,
history.
None
of the early Caesars could at their pleasure have
Hume,
Essays,
i.
(1875
ed.),
pp. 109, 110.
76
Parti,
subverted the worship or fundamental institutions

of the
Eoman
world, and
when Constantine
carried
through a religious revolution his success was due to

the sympathy of a large part of his subjects.
The
Sultan could not abolish
Mahommedanism.
Louis the
impos-
Fourteenth at the height of his power could revoke

the Edict of Nantes, but he would have found
sible to establish the
it
supremacy of Protestantism, and for the same reason which prevented James the Second from establishing the supremacy of Roman Catholicism. The one king was in the strict sense despotic
the other was as powerful as any English monarch.
But the might
of each was limited
popular disobedience or opposition.

ness of subjects to obey
by the certainty of The unwillingreference not only
may have
to great changes, but even to small matters.
The
its
French National Assembly of 1871 was emphatically

the sovereign power in France.
The majority of
members were
white flag
:
(it is
said) prepared for a monarchical
restoration, but they
were not prepared to restore the the army which would have acquiesced in
(it
the return of the Bourbons, would not
was
antici-
pated)
tolerate
:
symbol
the sight of an anti-revolutionary " the chassepots would go off of themselves."
Here we see the precise limit to the exercise of legal sovereignty and what is true of the power of a
;
despot or of the authority of a constituent assembly

specially true of the sovereignty of Parliament
;
is
it is
limited on every side

resistance.
by the
possibility of popular
Parliament might
legally
;
establish
an
Episcopal
Church in Scotland
;
legally tax the Colonies
Parliament might Parliament might without

to the throne
any breach of law change the succession
NA TURE OF PARLIAMENTA RY SO VEREIGNTY.

or abolisli the
77
monarchy
but every one knows that

In
Chapter
in the present state of the world the British Parlia-
ment
will
do none of these things.

is
each case
widespread resistance would result from legislation

which, though legally valid,
stretch of Parliamentary power.
in fact beyond the Nay, more than this, there are things which Parliament has done in other times, and done successfully, which a modern Parliament would not venture to repeat. Parliament would
not at the present day prolong by law the duration of
an existing House of Commons.
Parliament would
not without great hesitation deprive of their votes and, speaking large classes of Parliamentary electors
;
generally. Parliament
would not embark on a course of reactionary legislation persons who honestly blame Catholic, Emancipation and lament the disestablishment of the Irish Church do not dream that Parliament could repeal the statutes of 1829 or of 1869. These examples from among a score are enough to
;
show the extent
to
which the theoretically boundless

is
sovereignty of Parliament
limit to its exercise.
curtailed
by the external
internal nhistia*'"^-
The
arises
internal limit to the exercise of sovereignty
from the nature of the sovereign power itself, Even a despot exercises his powers in accordance with his character, which is itself moulded by the circumstances under which he lives, including under
that head the moral feelings of the time and the The Sultan could not society to which he belongs.
he would change 'the religion of the Mahommedan world, but if he coUld do so it is in the very highest degree improbable that the head of Mahommedahism
if
should wish to overthrow the religion of Mahomet;
78
Parti,
the internal check on the exercise of the Sultan's
power
is
at least as strong as the external limitation.
People sometimes ask the idle question why the Pope does not introduce this or that reform ? The
true answer
is
that a revolutionist
is
not the kind
of
man who becomes a Pope, and that the man who becomes a Pope has no wish to be a revolutionist. Louis the Fourteenth could not in all probability have
established Protestantism as the national religion of
France
but to imagine
Louis the Fourteenth as

is
wishing to carry out a Protestant reformation

quite unlike the
internal check
nothing short of imagining him to have been a being
Grand Monarque.
Here again the

is
works together with the external check,

as great
and the
influence of the internal limitation
in the case of a Parliamentary sovereign as of any
other; perhaps
it
is
greater.
;
Parliament could not
prudently tax the Colonies

ceivable that a
but
it
is
hardly conshould wish
modern Parliament, with the history

its eyes,
of the eighteenth century before

to tax the Colonies.
The combined influence both of the external and of the internal limitation on legislative
is
sovereignty
admirably stated in Leslie Stephen's
Science of Ethics, whose chapter
on"Law and Custom "

met with
contains one of the best statements to be
of the limits placed by the nature of things on the

theoretical omnipotence of sovereign legislatures.
" Lawyers are apt to speak as though the legisla" ture were omnipotent, as they do not require to go " beyond its decisions. It is, of course, omnipotent " in the sense that it can make whatever laws it pleases, " inasmuch as a law means any rule which has been
"
made by
the legislature.
But from the
scientific.
NA TURK OF PARLIAMENTAR Y SO VEREIGNTY
79
" point of view, the power of the legislature is of course " strictly limited. It is limited, so to speak, both from
chapter
^"
"within and from without; from within, because the

" legislature is the product of a certain social condition, " and determined by whatever determines the society
"and from
" laws
is
without, because the power of imposing dependent upon the instinct of subordination,
" which is itself limited. If a legislature decided that " all blue-eyed babies should be murdered, the preserva" tion of blue-eyed babies would be illegal but legis" lators must go mad before they could pass such a
;
"law, and subjects be "toit."i
idiotic before
they could submit
bounded by an external Limits boundary is very de- Side. and an finitely marked, nor need the two precisely coincide. A sovereign may wish to do many things which he either cannot do at all or can do only at great risk of serious resistance, and it is on many accounts worth observation that the exact point at which the external limitation begins to operate, that is, the point at which
Though sovereign power
is
internal limit, neither
subjects will offer serious or insuperable resistance to
the
is
commands
of a ruler
whom
they generally obey,
never fixed with precision. It would be rash of the Imperial Parliament to abolish the Scotch law Courts, and assimilate the law of Scotland to that of
England.
what point Scotch resistance to such a change w:ould become
But no one can
feel sure at
serious.
Before the
War
of Secession the sovereign
power of the United States could not have abolished slavery without provoking a civil war after the War
;
of Secession the sovereign

1
power abolished slavery

o/<Wm,
p.
Leslie Stephen, /Samce
143.
8o

electoral franchise
Part
I.
and conferred the
upon the Blacks
without exciting actual resistance.

Represeuta-
In reference to the relation between the external
government ^^^^
produces
coincidence
^^
internal limit to sovereignty, representative
between
external and internal
orovemment presents a noteworthy peculiarity. It is r J i: J o this. Theaimandcffectof suchgovemmcnt is toproducc
any rate dimmish the divergence, between the external and the internal limitations on the
a Coincidence, or at
exercise of sovereign power.
^.
.,,,-,
Frederick the Great
may
have wished to introduce, and

subjects.
may
in fact have intro-
duced, changes or reforms opposed to the wishes of his
Louis Napoleon certainly began a policy of
free trade which would not be tolerated by an assembly which truly represented French opinion. In these
monarch reached the external limit it might very well have happened that he might have reached it, and have thereby provoked serious resistance on the part of his
instances neither
to his sovereign power, but
subjects. There might, in short, have arisen a divergence between the internal and the external check. The existence of such a divergence, or (in other words)
of a difference between the permanent wishes of the

sovereign, or rather of the
King who then
constituted
a predominant part of the sovereign power, and the permanent wishes of the nation, is traceable in England
throughout the whole period beginning with the accession of James the First and ending with the Eevolu-
was found in a transference of power from the Crown to the Houses of Parliament and in placing on the throne rulers who from their position were induced to
for this divergence
;
tion of 1688.
The remedy
make
their wishes coincide with the will of the nation
expressed through the House of
Commons
the
differ-
NA TURE OF PARLIAMENTAR Y. SO VEREIGNTY
8i
ence between the will of the sovereign and the will of chapter ^' the nation was terminated by the foundation of a
system of real representative government. Where a Parliament truly represents the people, the divergence between the external and the internal limit to the
exercise of sovereign
arises,
power can hardly arise, or if it must soon disappear. Speaking roughly, the permanent wishes of the representative portion of
Parliament can hardly in the long run
electors
differ
from the
wishes of the English people, or at any rate of the

;
that which the majority of the
House of
Commons command,
people usually desire.
the
majority of the English
To prevent the divergence
between the wishes of the sovereign and the wishes
and the only certain effect, of boni, fide representative government. For our present purpose there is no need to determine whether this result be good or bad. An enlightened sovereign has more than once carried out reforms in
of subjects
is
in short the effect,
advance of the wishes of his subjects.
This
is
true
both of sovereign kings and, though more rarely, of But the sovereign who has sovereign Parliaments.
done
this,
whether King or Parliament, does not in

subjects.-'
is
reality represent his
All that
it
is
here
necessary to insist upon

of representative
that the essential property

is
government
to produce coincidence
between the wishes of the sovereign and the wishes to make, in short, the two limitations of the subjects
;
on the exercise of sovereignty absolutely coincident.
which is true in its measure of all real representative government, applies with special truth to
This,
the English House of

1
Commons.
pp. 4,
5.
Compare Law and Opinion in England,
82

"
Part
I.
The House of Commons, " writes Burke, " was sup"posed originally to be no 'part of the standing govern" ment of this country. It was considered as a control, issuing immediately from the people, and speedily to " be resolved into the mass from whence it arose. In " this respect it was in the higher part of government " what juries are in the lower. The capacity of a magis" trate being transitory, and that of a citizen permanent, " the latter capacity it was hoped would of course pre'
between the " people and the standing authority of the Crown, but " between the people and the fleeting authority of the " House of Commons itself. Itwas hoped that, being of a " middle nature between subject and government, they
" would feel with a more tender and a nearer interest " everything that concerned the people, than the other " remoter
" ponderate in all discussions, not only
and more permanent parts of legislature. " Whatever alterations time and the necessary ac-
" commodation of business may have introduced, this " character can never be sustained, unless the House of " Commons shall be made to bear some stamp of the
" actual disposition of the people at large. "
It would (among public misfortunes) be an evil more natural and " tolerable, that the House of Commons should be in" fected with every epidemical phrensy of the people, " as this would indicate some consanguinity, some sym-
" pathy of nature with their constituents, than that they
" should in
"
'
'
cases be wholly untouched by the opinions and feelings of the people out of doors. By this want of ^ sy mpathy th ey would cease to be a House of Commons."
all
1 Burke, Works, ii. (1808 ed.), See further in referpp. 28V, 288. ence to Parliamentary sovereignty, App. Note III., Distinction between a Parliamentary Executive and a Non-Parliamentary Executive.
CHAPTER
II
PARLIAMENT AND NON- SOVEREIGN LAW-MAKING BODIES

In
my
last chapter I
dwelt upon the nature of Par;
iiamentary sovereignty
is
my
object in this chapter
Chapter "
of
to illustrate the characteristics of such sovereignty Aim

essential features
by comparing the
of a sovereign
traits
"
^^^^'^'
England with the which mark non-sovereign law-making bodies.

Parliament like that of
A. Characteristics of Sovereign Parliament. The characteristics of Parliamentary sovereignty may But these traits be deduced from the term itself.
are apt to escape the attention of Englishmen,
Pariia-
^ve-"^^
'^*y-
who
have been so accustomed to

a supreme
legislature,
live
under the rule of

are
that
all
they almost, without

legislative bodies
knowing
it,
assume that
supreme, and hardly therefore keep clear before their minds the properties of a supreme as contrasted with
a non-sovereign law-making body.
foreign observers are,
as
is
In this matter
natural, clearer-sighted
than Englishmen. De Lolme, Gneist, and Tocqueville seize at once upon the sovereignty of Parliament as a salient feature of the English constitution, and
recognise
the far-reaching effects of this

83
marked
peculiarity in our institutions.
84
Parti.
"In England," writes Tocqueville, "the Parlia"ment has an acknowledged right to modify the
"constitution; as, therefore, the constitution may " undergo perpetual changes, it does not in reality
"exist; the Parliament is at once a legislative and " a constituent assembly." ^
wanting in accuracy, and might provoke some criticism, but the description of
His
expressions
are
the English Parliament as
at
"
once " a legislative
formula for
and a constituent assembly summing up the change any law whatever.

assembly
it
supplies a convenient
fact that Parliament can
Being a "legislative" can make ordinary laws, being a " conit
stituent " assembly
can make laws which shift the
basis of the constitution.
The
results
which ensue
from
No law
cannot
change.
this fact
may
is
First, There
be brought under three heads. no law which Parliament cannot

difFer-
change, or (to put the same thing somewhat

ently),
fundamental or so-called constitutional laws
under our constitution changed by the same body and in the same manner as other laws, namely,
are
by Parliament
character.
acting in
its
ordinary
legislative
Bill
for reforming the
House
of
Commons,
Bill for abolishing the
House
of Lords, a Bill to give
London a municipality, a Bill to make valid marriages celebrated by a pretended clergyman, who is found
after their celebration not to
be in orders, are each
equally within the competence of Parliament, they
each
may be
passed in substantially the same manner,
they none of them when passed will be, legally

1
Tocqueville,
i.
(translation), p. 96, CEuvres GomplMes,
i.
pp. 166,
167.
NON-SOVEREIGN LAW-MAKING BODIES
85
speaking, a whit more sacred or immutable than the

others,
for they each will be neither
Chaptier
more nor
less
^-
than an Act of Parliament, which can be repealed as it has been passed by Parliament, and cannot be annulled by any other power.
Secondly, There is under the English constitution No diano marked or clear distinction between laws which Iween co^* are not fundamental or constitutional and laws which ^*''"*'<'".*i ana oruiare fundamental or constitutional. The very language "^'y '^"s.
between a " legislative " assembly which can change ordinary laws and a " constituent " assembly which can change not only ordinary but also constitutional and fundamental laws, has to be borrowed from the political phraseology of
therefore, expressing the difference
foreign countries.
This absence of any distinction between constitutional
Eeiation
pariia-
and ordinary laws has a
close connection
with
the non-existence in England of any written or enacted

constitutional statute or charter.
in
"overe^ty
^"j^\t''p"""
Tocqueville indeed,
constitu-
common with
other writers, apparently holds the
be of
unwritten character of the British constitution to " L'Angleterre n'ayant point de its essence
:
constitution
constitution
error,
?
^crite,
"
^
qui peut dire qu'on change sa

falls into
But here Tocqueville
characteristic both of his nation
an and of the
weaker side of his own rare genius. He has treated the form of the constitution as the cause of its substantial qualities, and has inverted the relation of cause and effect. The constitution, he seems to have
thought, was changeable because
to a
it
was not reduced

It
is
written
or statutory form.
far
nearer
the truth to assert that the constitution has never

1
Tocqueville, CEuvres Completes,
i.
p.
312.

86
THE Sovereignty of parliament
Part
I.
been reduced to a written or statutory form because each and every part of it is changeable at the will of
Parliament.
"When a country
is
is
governed under a
constitution which
intended either to be unchange-
able or at any rate to be changeable only with special

difficulty,
the constitution, which
is
nothing else than
the laws which are intended to have a character of
permanence or immutability,
as a statute.
is
necessarily expressed
is
in writing, or, to use English phraseology,
enacted
Where, on the other hand, every law can be legally changed with equal ease or with equal difficulty, there arises no absolute need for reducing the constitution to a written form, or even for looking
upon a
definite set of laws as specially
making up
the
constitution.
tional laws
One main reason then why
constitu-
have not in England been recognised
under that name, and in

one law, whatever
law.
many
cases have not been

is
reduced to the form of a statutory enactment,
that
its importance, can be passed and changed by exactly the same method as every other
But
it is
a mistake to think that the whole law
of the English constitution might not be reduced to
writing and be enacted in the form of a constitutional

code.
The Belgian constitution indeed comes very

and the constitution of England might
easily be
near to a written reproduction of the English constitution,
turned into an Act of Parliament without sufiering
any material transformation of character, provided only that the English Parliament retained what the Belgian Parliament, by the way, does not possess the unrestricted power of repealing or amending the
constitutional code.
Thirdly, There does not exist in any part of the
NON-SO VEREIGN LA W-MAKING BODIES

British
%^
Empire any person
or
body of persons, execucan pronounce void
Chapter
tive, legislative or judicial, wliich
any enactment passed by the British Parliament on the ground of such enactment being opposed to the constitution, or on any ground whatever, except, of
course, its being repealed
^"itied to
^f p^.
liament
by Parliament.
traits of
:
These then are the three

sovereignty as it exists in
Parliamentary
England first, the power of the legislature to alter any law, fundamental or otherwise, as freely and in the same manner as other laws secondly, the absence of any legal distinction between constitutional and other laws thirdly, the non-existence of any judicial or other authority having the right to nullify an Act of Parliament, or to treat
; ;
it
as void or unconstitutional.
Fiexiwuty
stituUon.
These -traits are all exemplifications of the quality which my friend Mr. Bryce has happily denommated Every the " flexibility " ^ of the British constitution.
part of
it
can be expanded, curtailed, amended, or

It is the
abolished, with equal ease.
most
flexible
polity in existence, and
is
therefore utterly different
in character from the "rigid" constitutions (to use another expression of Mr. Bryce's) the whole or some
part of which can be changed only
by some
extra-
ordinary method of legislation.

Characteristics of non-sovereign law-making From the attributes of a sovereign legislature bodies.
B.
character-
nonla^.
^^^''^^^f
it is
possible to infer negatively
what
are the charac-
of a teristics all (or some) of which are the marks which therefore non-sovereign law-making body, and
See Bryce, Studies in History and Jurisprudence, Flexible and Rigid Constitutions.
1
.
i.
Essay III,
88

be called the marks or notes of legislative sub-
Part
I.
may
ordination.
These signs by which you

existence
may
recognise
first,
the
subordination of a law-making body are,

of laws
affecting
its
the
constitution
;
which
hence,
such body must obey and cannot change

secondly, the formation of a
marked
distinction be;
and tween ordinary laws and fundamental laws lastly, the existence of some person or persons, judicial or otherwise, having authority to pronounce upon the
validity or constitutionality of laws passed
by such
law-making body. Wherever any of these marks of subordination exist with regard to a given law-making body, they
prove that
Meaning of term "lawmaking
^'
it is
not a sovereign legislature.

here employed as an expression which
^
Obscrve the use of the words "law-making body."

This term
is
may
1
include under one head
both municipal bodies,
This inclusion has been made the subject of criticism. objections taken to it are apparently threefold. in,t. There is, it is said, a certain absurdity in bringing into one class things so different in importance and in dignity as, for example, the Belgian Parliament and an English School-board. This objection rests on a misconception. It would be ridiculous to overlook the profound differences between a powerful legislature and a petty corporaBut there is nothing ridiculous in calling attention to the points tion. which they have in common. The sole matter for consideration is whether the alleged similarity be real. No doubt when features of likeness between things which differ from one another both in appearance and in dignity are pointed out, the immediate result is to produce a sense of amusement, but the apparent absurdity is no proof that the likeness is unreal or undeserving of notice. man differs from a rat. But this does not make it the less true or the less worth noting that they are both vertebrate animals. Secondly, The powers, of an English corporation, it is urged, can in general only be exercised reasonably, and any exercise of them is invalid which is not reasonable, and this is not true of the laws made, e.g., by the Parliament of a British colony. This objection admits of more than one reply. It is not univer-
The
89
such as railway companies, school-boards, town councils, and the like, which possess a limited power of
Chapter "'
making laws, but and bodies such
are not ordinarily called legislatures,

as the Parliaments
of the British
Colonies, of Belgium, or of France, which are ordi-
narily called "legislatures," but are not in reality
sovereign bodies.
The reason
for grouping together
under one name
sally true that the bye-laws
made by a
corporation are invalid unless
they are reasonable.

that this restriction
be assumed for the sake of argument it certainly is often, imposed on the making of bye-laws. This concession does not involve the consequence that bye-lawH do not partake of the nature of laws. All that follows from it is a conclusion which nobody questions, namely, that the powers of a non-sovereign law-making body may be restricted in very
let it
is
But
always, as
different degrees.
Thirdly, The bye-laws of a corporation are, it is urged, not laws, because they affect only certain persons, e.g. in the case of a railway company the passengers on the railway, and do not, like the laws of a
colonial legislature, affect all persons
coming under the jurisdiction of
the legislature
or to put the same objection in another shape, the bye-
laws of a railway company apply, it is urged, only to persons using the railway, in addition to the general law of the land by which such persons are also bound, whereas the laws, e.g., of the New Zealand Parliament constitute the general law of the colony.
The
objection
is plausible,
but does not really show that the simiposition of a corporation and,
e.g.,
larity insisted
upon between the
In either case the laws made, whether by the corporation or by the legislature, apply only to a limited class of persons, and are liable to be overridden by the laws of a superior legislature. Even in the case of a colony so nearly independent as New
colonial legislature is unreal.
Zealand, the inhabitants are bound first by the statutes of the Imperial Parliament, and in addition thereto by the Acts of the New Zealand The very rules which are bye-laws when made by a corParliament. poration would admittedly be laws if made directly by Parliament.
Their character cannot be changed by the fact that they are made by the permission of Parliament through a subordinate legislative body. The Council of a borough, which for the present purpose is a better example of my meaning than a railway company, passes in accordance with the powers conferred upon it by Parliament a bye-law prohibiting
processions with music on Sunday.
in an
less
The same prohibition if contained Act of Parliament would be admittedly a law. It is none the a law because made by a body which is permitted by Parliament
to legislate.
90

"
Part
I.
such very different kinds of " law-making

that
bodies
is,
by
far the best
way
of clearing
up our
ideas as
to the nature of assemblies which, to use the foreign
formula,^ are
tuent,"
" legislative " without being " constilegis-
and which therefore are not sovereign
latures, is to analyse the characteristics of societies,
such as English railway companies, which possess a

certain legislative authority,
clearly delegated
though the authority is and subject to the obvious control

if
of a superior legislature.
It will
conduce to clearness of thought
we
divide
non-sovereign law-making bodies into the two great

classes of obviously subordinate bodies such as cor-
porations, the Council of India, etc.,

latures
and such
legis-
of independent
countries as are legislative

i.e.
without
being
constituent,
are
non-sovereign
legislative bodies.
The consideration of the

sovereign legislatures which
plicated
position
exist
of the
non-
under the com-
form of constitution known as a federal government is best reserved for a separate chapter.^
I.
Subordinate Law-making Bodies.
sutordinate bodies.
(i.)
Corporations.
t
t
An
English railway company

i /.
Corpora-
good an example as can be lound oi a subordmate law-making body. Such a company is in the strictest
IS
as
sense
a law-making
its
society,
for it
can under the
powers of
Act make laws
(called bye-laws) for the
regulation (inter alia) of travelling

1
upon the
railway,^
'
(8
&
2 gee Chap. III. fost. See p. 84, ante. See especially the Companies Clauses Consolidation Act, 1845 9 Vict. c. 20), sees. 103, 108-111. This Act is always embodied
JVOJV-SO VEREIGN
LA W- MAKING BODIES
91
and can impose a penalty for the breach of such laws, which can be enforced by proceedings in the Courts. The rules therefore or bye-laws made by a company within the powers of its Act are "laws" in the strictest sense of the term, as any person will discover to his own cost who, when he travels by rail from Oxford to Paddington, deliberately violates a bye-law duly made by the Great Western Eailway
Chapter
L.
Company. But though an English railway company is clearly a law-making body, it is clearly a non- sovereign law-making body. Its legislative power bears all the marks of subordination. First, The company is bound to obey laws and (amongst others) the Act of Parliament creating the company, which it cannot change. This is obvious,
and need not be insisted upon. Secondly, There is the most marked distinction between the Act constituting the company, not a line of which can be changed by the company, and the
bye-laws which, within the powers of its Act, the company can both make and change. Here we have on a very small scale the exact difference between constitutional laws which cannot, and ordinary laws
which can, be changed by a subordinate legislature, by the company. The company, if we may i.e.
the terms of constitutional law, is not legislative a constituent, but is within certain limits a are fixed by the constituassembly and these limits
apply to
it
tion of the company.
Thirdly, The Courts have the right to pronounce,

company. Its enactments therefore in the special Act constituting the constitution of a railway company. form part of the
92
Part
I.
and indeed are bound to pronounce, on the validity of the company's bye-laws that is, upon the validity, or to use political terms, on the constitutionality of the laws made by the company as a law-making body.
;
Note particularly that
it is
not the function of any
Court or judge to declare void or directly annul a

bye-law made by a railway company.
of the Court
The function
is simply, upon any particular case coming before it which depends upon a bye-law made by a railway company, to decide for the purposes of that particular case whether the bye- law is or is not within the powers conferred by Act of Parliament upon the company that is to say, whether the byelaw is or is not valid, and to give judgment in the particular case according to the Court's view of the validity of the bye-law. It is worth while to examine with some care the mode in which English judges deal
;
with the inquiry whether a particular bye-law
is
or
is
not within the powers given to the company by Act

of Parliament, for to understand this point goes a good way towards understanding the exact way in which English or American Courts determine the constitutionality of Acts passed by a non-sovereign
legislature.
The London and North-Western Railway Company made a bye-law by which " any person travelling with" out the special permission of some duly authorised " servant of the company in a carriage or by a train of " a superior class to that for which his ticket was issued
"
is
hereby subject to a penalty not exceeding forty
and shall, in addition, be liable to pay his " fare according to the class of carriage in which he is " travelling from, the station where the train originally
"shillings,
NON-SOVEREIGN LA W-MAKING BODIES
93
" started, unless he shows that he had no intention to Chapter "" " defraud." X, with the intention of defrauding the
company, travelled in a
first-class carriage instead of
a second-class carriage for which his ticket was issued,
and having been charged under the bye-law was convicted in the, penalty of ten shillings, and costs. On appeal by X, the Court determined that the bye-law was illegal and void as being repugnant to 8 Vict.
c.
20,
s.
103, or in effect to the terms of the Act
incorporating the
company,^ and that therefore
could not be convicted of the offence charged against
him.
A bye-law of the
to a servant of the
South-Eastern Eailway
Company
required that a passenger should deliver up his ticket
company when required to do so, and that any person travelling without a ticket or
failing or refusing to deliver
up
his ticket should be
required to pay the fare from the station whence the

train originally started to the end of his journey. had a railway ticket enabling him to travel on Having to change the South-Eastern Eailway. trains and pass out of the company's station he was asked to show his ticket, and refused to do so, but without any fraudulent intention. He was
summoned for a breach of the bye-law, and convicted in the amount of the fare from the station whence the
train started.
The Queen's Bench Division held the wrong on the ground that the bye-law was conviction
not being authorised
made.''
for several reasons invalid, as
by the Act under which it purported to be 1 Bysm V. L. & N.-W. Ry. Co., 7 Q. B. D. 32.
V.
Compare Bentham 2 Saunders v. S.-E. By. Co., 5 Q. B. D. 456. Hm)le, 3 Q. B. D. 289, and L. B. & S. G. By. Co. v. fTatson, 3 C. P. D. 429 ; 4 0. P. D. (C. A.), 118.
94
Part
I.
Now
in these instances,
and in other cases where
the Courts pronounce upon the validity of a bye-law
made by a body
by
penalties, it
{e.g.
a railway
company
or a schoolenforceable
board) having powers to

is
make bye-laws
natural to say that the Courts
pronounce the bye-laws valid or invalid.

not strictly the
case.
But
this
is
What
the judges determine

is
is
not that a particular bye-law

bye-laws
invalid, for it is not
the function of the Courts to
repeal or annul the that in a
made by railway companies, but
proceeding to recover a penalty from

of a bye-law judgment
X for the breach

basis of
must be given on the
the particular bye-law being beyond the powers of the company, and therefore invalid. It may indeed
be thought that the distinction between annulling a bye-law and determining a case upon the assumption of such bye-law being void is a distinction without a
diiference.
But
this is not
so.
not without importance even

question whether
The distinction is when dealing with the

is liable
X, who
is
alleged to have broken a

to
bye-law made by a railway company,

a fine
;
pay
it is
of first-rate importance
is
when the
question
one involving considerations of constitutional law, as for example when the Privy
before the Courts
upon, as constantly happens, to determine cases which involve the validity or conis
Council
called
stitutionality of laws
made by the Dominion
Parlia-
ment
will
Canada.
by one of the provincial Parliaments of The significance, however, of the distinction become more apparent as we proceed with our
or
;
subject
the matter of consequence
now
is
to notice
the nature of the distinction, and to realise that when a Court in deciding a given case considers whether
NON-SO VE REIGN LA W-MAKING BODIES

a bye-law
is,
95
or
is
not, valid,
the
Court
does
a Chapter
different thing
from affirming or annulling the bye-
^
couucUof
india.
law
are
itself.
(ii.)
Legislative Council of British India}

for British India
Laws
made
is
by
a Legislative Council
having very wide powers of

or,as it
legislation.
This Council,
technically expressed, the "Governor-General
in Council," can pass laws as important as
passed by the British Parliament.

of the Council in the
way
and
of
as
any Acts But the authority law-making is as com-
pletely subordinate to,
much dependent
upon.
is the power of the London and North-Western Railway Company to make bye-laws.
Acts of Parliament as
The legislative powers of the Governor-General and his Council arise from definite Parliamentary These Acts cons titute what may be enactments.^
termed as
r egards
the Legislative Council the con-
stitution of India.
Now
is
observe, that under these

in the strictest sense a non-
Acts the Indian Council
sovereign legislative body, and this independently of
the fact that the laws or regulations made by the Governor-General in Council can be annulled or dis-
allowed by the Crown

the Council exhibits
lative subordination.
all
and note that the position of the marks or notes of legis-
First,
The Council
is
bound by
a large
number of
legis-
rules which cannot be changed by the Indian
1 See Ilbert, Gfovernment of India, pp. 199-216, Digest of Statutory Enactments, ss. 60-69. 2 The Government of India Act, 1833 (3 & 4 Will. IV. c. 85), ss. 45-48, 51, 52 ; The Indian Councils Act, 1861 (24 & 25 Vict. c. 67), 1865 (28 & 29 Vict. c. 17). ss. 16-25 ; The Government of India Act, The Indian Council is in some instances under Acts of Parliament,
24 & 25 Vict. c. 67 28 & 29 Vict. c. 17 32 & 33 empowered to legislate for persons outside India.
e.g.
;
Vict.
c.
98,
96
Part
I.
body itself, and which can be changed by the superior power of the Imperial Parliament. Secondly, The Acts themselves from which the Council derives its authority cannot be changed by the Council, and hence in regard to the Indian legislative body form a set of constitutional or funlative
damental laws, which, since they cannot be changed by the Council, stand in marked contrast with the
laws or regulations which the Council
empowered These fundamental rules contain, it must to make. be added, a number of specific restrictions on the
is
subjects with regard to which the Council

late.
may
legis-
Thus the Governor-General in Council has no power of making laws which may affect the authority of Parliament, or any part of the unwritten laws or constitution of the United Kingdom, whereon may depend in any degree the allegiance of any person to the Crown of the United Kingdom, or the sovereignty or dominion of the Crown over any part of
India.^
Thirdly, The Courts in India (or in any other

part of the British Empire) may,
arises,
when
the occasion
pronounce upon the validity or constitutionality -^ of laws made by the Indian Council.
The Courts
treat Acts passed
precisely in the
same way
in
by the Indian Council which the King's Bench
Division treats the bye-laws of a railway company.
No judge
in India or elsewhere ever issues a decree
which declares invalid, annuls, or makes void a law or regulation made by the Governor-General in Council. But when any particular case comes before the Courts, whether civil or criminal, in which the
1
See 24
& 25 Vict
c.
67,
s.
22.

rights or liabilities of
97
any party are
affected
by the
Chapt
legislation of the Indian Council, the Court
may have
to consider
case whether such legislation
the legal
and determine with a view to the particular was or was not within powers of the Council, which is of course the
same thing as adjudicating as regards the particular case in hand upon the validity or constitutionality" Thus suppose that of the legislation in question.
is
prosecuted for the breach of a law or regula-
tion passed by the Council, and suppose the fact to has broken this be established past a doubt that
The Court before which the proceedings take law. place, which must obviously in the ordinary course of things be an Indian Court, may be called upon to
consider whether the regulation which
X has broken
is within the powers given to the Indian Council by the Acts of Parliament making up the Indian conIf the law is within such powers, or, in stitution.
other words,
is
constitutional, the Court will
by giving
judgment against
X give
full effect to
the law, just
as effect is given to the bye-law of a railway company by the tribunal before whom an offender is sued pronouncing judgment against him for the penalty.
on the other hand, the Indian Court deem that the regulation is ultra vires or unconstitutional, they
If,
and treat it as void by basis of giving judgment for the defendant on the no legal the regulation being invalid or having
will refuse to give effect to
it,
point the Empress v. Burah^ The details of the case are is most instructive. High immaterial ; the noticeable thing is that the
existence.
On
this
3 Ind. L. R. (Calcutta Series), p. 63.
98
Part
I.
Court held a particular legislative enactment of the

Governor-General in Council to be in excess of the
authority given to
him by the Imperial Parliament

and on
this
and therefore
invalid,
ground entertained
an appeal from two prisoners which, if the enactment had been valid, the Court would admittedly have been incompetent to entertain.
it is true,
The Privy
Council,
held on appeal
that the particular enact-
ment was within the
legal
powers of the Council and
therefore valid, but the duty of the
High Court
of
Calcutta to consider whether the legislation of the
Governor-General was or was not constitutional, was

not questioned by the Privy Council.
the same
To look
at
thing from another point of view, the
Courts in India treat the legislation of the Governor-
General in Council in a
of the
way
utterly different from
that in which any English Court can treat the Acts
Imperial
Parliament.
An
Indian tribunal
may
is
be called upon to say that an Act passed by

it
the Governor-General need not be obeyed because

unconstitutional or void.
No
British Court can
give judgment, or ever does give judgment, that an
Act of Parliament need not be obeyed, because

is
it
unconstitutional.
Here, in
short,
we have
the
essential difference
legislative power.
English
colonies.
^
between subordinate and sovereign
English Colonies with Representative and Responsible Governments. Many English colonies,
(iii.)
and notably the Dominion of New Zealand (to which country our attention had best for the sake of
1 2
Reg. V. Burah, 3
App. Cas. 889.

v.
See especially Empress
(Calcutta Series, 1878), 63, 86-89, for the
Burah and Book Singh, 3 Ind. L. judgment of Markby J.
99
clearness be specially directed), possess representative chapter
assemblies which occupy a somewhat peculiar position.
The Parliament of the Dominion

exercises
of
^
New
many
It
Zealand
of the
Powers
byôoioniai
Parlia-
throughout
that
country
ordinary powers of a sovereign assembly such as the
ments.
Parliament of the United Kingdom.

repeals laws,
it
makes and puts Ministries in power and dismisses

controls the general policy of the
its
them from
office, it
New
Zealand Government, and generally makes
will felt in the transaction of affairs after the
manner
of the
Parliament at Westminster.
if
An
ordinary
observer would,
he looked merely at the everyday
proceedings of the
reason to pronounce
New
it
Zealand legislature, find no

its
a whit less powerful within
sphere than the Parliament of the United Kingdom.
No doubt
the assent of the Governor

:
is
order to turn colonial Bills into laws

investigation would
validity of
needed in and further
any
colonial
show our inquirer that for the Act there is required, in

But these
not with
addition to the assent of the Governor, the sanction,

either express or implied, of the Crown.
assents are constantly given almost as a matter of

course,
and may be compared (though

colonial legislature has as such
No
any authority beyond the
This forms a considerable restriction on the powers of a colonial Parliament, and a great part of the imperial legislation for the colonies arises from the Act of a colonial legislature having, unless given extended operation by some imperial statute, no effect beyond the limits of the colony. In various instances, however, imperial Acts have given extended
territorial limits of the colony.
power of legislation to colonial legislatures. Sometimes the imperial Act authorises a colonial legislature to make laws on a specified Act, subject with extra-territorial operation \e.g. the Merchant Shipping Sometimes an Act of the colonial legislature 1894, ss. 478, 735, 736]. (Compare dominions. is given the force of law throughout British
Jenkyns, British Rule and Jurisdiction beyond
the Seas, p. 70.)
loo

"
Part
I.
'
absolute correctness) to the Crown's so-called " veto
or right of refusing assent to Bills which have passed
Limit to
powers.
through the Houses of Parliament. Yet for all this, when the matter
into,
is
further looked
the Dominion Parliament (together with other

legislatures)
colonial
sovereign legislative
of
legislative
be found to be a nonand bears decisive marks body,

will
subordination.
is
The
action
of
the
Dominion Parliament
it
restrained
cannot change, and are

;
by laws which changeable only by the
and further, New Zealand Acts, even when assented to by the Crown, are liable to be treated by the Courts in New Zealand and elsewhere
Imperial Parliament
throughout the British dominions as void or unconstitutional,

flict
on the ground of their coming into conwith laws of the Imperial Parliament, which the
colonial legislature has
no authority to touch.^ That this is so becomes apparent the moment we realise the exact relation between colonial and
Imperial laws.
The matter
its
it
is
examination,
both for
own
sake
worth some little and for the
sake of the light

Parliament.
throws on the sovereignty of
As also upon the ground of their being in strictness ultra, vires, beyond the powers conferred upon the Dominion legislature. This is the ground why a colonial Act is in general void, in so far as it is " In 1879, the intended to operate beyond the territory of the colony. Supreme Court of New Zealand held that the Foreign Offenders Apprehension Act, 1863, of that colony, which authorises the deportation of persons charged with indictable misdemeanours in other colonies, was beyond the competence of the New Zealand legislature, for it involved detention on the high seas, which the legislature could not authorise, as it could legislate only for peace, order, and good government within the limits of the colony." Jenkyns, British Rule and Jurisdiction beyond the Seas, p. 70, citing In re Gleich. Ollivier Bell and Fitzgerald's N. Z. Rep., S. 0. p. 39.
1
i.e.

The charter of colonial legislative independence the Colonial Laws Validity Act, 1865.^
through Parliament without discussion
;
loi
is
Chapter
'
colonial
This statute seems (oddly enough) to have passed
but
it
per- vaMity
'^*'
manently defines and extends the authority of colonial legislatures, and its main provisions are of such importance as to deserve verbal citation
" Sec. "
2.
:
^^^'
Any
colonial law
which
is
or shall be. in
any respect repugnant
to the provisions of
" of Parliament extending to the colony to
any Act which
" such law may relate, or repugnant to any order or " regulation made under authority of such Act of " Parliament, or having in the colony the force and
" effect of such Act, shall be read subject to such " Act, order, or regulation, and shall, to the extent of " such repugnancy, but not otherwise, be
and remain
" absolutely void
and inoperative.
"
3.
No
colonial law shall be or be
deemed
to
"have been void or inoperative on the ground of '' repugnancy to the law of England, unless the same
" shall be repugnant to the provisions of some such
"Act of Parliament,
" said. " 4.
order,
or regulation as afore-
No colonial law, passed with the concurrence " of or assented to by the Governor of any colony, or
" to be hereafter so passed or assented
to, shall
be or
"be deemed to have been void or inoperative, by "reason only of any instructions with reference to
"such law or the subject thereof which may have "been given to such Governor by or on behalf of "Her Majesty, by any instrument other than the
1 28 & 29 Viet. c. 63. See on this enactment, Jeukyns, British Rule and Jurisdiction beyond the Seas, pp. 71, 72.
I02

-
Parti.
" letters
patent
to
or
instrument
in
authorising
or
to
such
to
" Governor
concur
passing
assent
"laws
" of "
"
for the peace,
order,
such colony,
even
and good government though such instructions

last-
may
be referred to in such letters-patent or
shall have, and be " deeined at all times to have had, full power within " its jurisdiction to establish courts of judicature, and " to abolish and reconstitute the same, and to alter the
mentioned instrument. " 5. Every colonial legislature
" constitution thereof, and to
make
;
provision for the
and every repre" sentative legislature shall, in respect to the colony " under its jurisdiction, have, and be deemed at all " times to have had, full power to make laws re" specting
" administration of justice therein
the
constitution,
;
powers, and procedure
" of such legislature
provided that such laws shall
" have been passed in such manner and form as

" from
may
time to time be required by
any Act of
" Parliament,
letters -patent, order in council, or " colonial law for the time being in force in the
" said colony."
The importance,
Validity Act, 1865,
it
is
true, of the Colonial
Laws
may
well be either exaggerated
or quite possibly underrated.
The
statute
is
in one
sense less important than
it
at first sight appears,
because the principles laid

its
down
to
therein were, before
passing,
more
or less assumed,
though with some

point of view
it
hesitation, to be
good law and
govern the validity
of colonial legislation.
From another
the Act
is
of the
highest importance, because
determines, and gives legislative authority

ciples
to, prin-
which had never before been accurately defined,
103
and were liable to be treated as open to doubt/ In any case the terms of the enactment make it now possible to state with precision the limits which bound
the legislative authority of a colonial Parliament.
to the English
Chapter
'
The Domimon Parliament may make laws opposed common law, and such laws (on reThus a
ceiving the required assents) are perfectly valid.
New
Zealand
as to
common law rules

ings,
Act which changed the the descent of property, which

trial
gave the Governor authority to forbid public meetor
which abolished
by
jury,
might be
inexpedient or unjust, but would be a perfectly valid
and would be recognised as such by every Empire/ The Dominion Parliament, on the other hand, cannot make any laws inconsistent with any Act of Parliament, or with any part of an Act of Parlialaw,
tribunal throughout the British
ment, intended by the Imperial Parliament to apply

to
New
Zealand. Suppose, for example, that the Imperial Parliament
were to pass an Act providing a special mode of trial in New Zealand for particular classes of offences
committed there, no enactment of the colonial Parliament, which provided that such offences should be tried otherwise than as directed by the imperial So again, no statute, would be of any legal effect. New Zealand Act would be valid that legalised the
1 Up to 1865 the prevalent opinion in England seems to have been that any law seriously opposed to the principles of English law was repugnant to the law of England, and colonial laws were from time to time disallowed solely on the ground of such supposed repugnancy and invalidity. 2 Assuming, of course, that such Acts are not inconsistent with RoUnson v. any imperial statute applying to the colony. (Compare Reynolds, Macassey's N. Z. Eep. p. 562.)
104
Parti,
slave trade in the face of the Slave Trade Act, 1824,
throughout the British dominions

repealed,
which prohibits slave trading nor would Acts passed by the Dominion Parliament be valid which
5
Geo.
IV.
c.
113,
or
invalidated,
several
provisions
of the
Merchant Shipping Act 1894 meant to apply to

the colonies, or which deprived a discharge under the
English Bankruptcy Act of the effect which, in virtue

of the
imperial statute,
it
has as
a release from
debts contracted in any part whatever of the British
dominions.
No
colonial
legislature,
in
is
short,
can
be
override imperial legislation which
intended to
intention
apply to the colonies.

expressed in so
Whether the
many
words, or be apparent only
from the general scope and nature of the enactment, is immaterial. Once establish that an imperial law is intended to apply to a given colony, and the consequence follows that any colonial enactment which
Acts of
legislature
noYn^ced
courtf
and unconstitutional.^ Hence the Courts in the Dominion of New Zealand, as also iu the rest of the British Empire, may be Called upou to adjudicate upon the validity or constitutionality of any Act of the Dominion Parliament. For if a New Zealand law really contradicts the provisions of an Act of Parliament extending to New Zealand, no Court throughout the British dominions could legally, it is clear, give effect to the enactment This is an inevitable of the Dominion Parliament.
contravenes that law
is
invalid
result of the legislative sovereignty exercised
by
the
Imperial
^
Parliament.
In
to the
the
supposed
(2nd
ed.),
case
the
See Tarring,
Law
Relating
Colonies
pp. 232-247,
for a list of imperial statutes
which
relate to the colonies in general,
and which therefore no colonial legislation can, except under powers given by some Act of the Imperial Parliament, contravene.
"
105
Dominion Parliament commands the judges to act in a particular manner, and the Imperial Parliament commands them to act in another manner. Of these two commands the order of the Imperial Parliament is the one which must be obeyed. This is the yery meaning of Parliamentary sovereignty. Whenever, therefore, it is alleged that any enactment of the Dominion Parliament is repugnant to the provisions of any Act of the Imperial Parliament extending to
the colony, the tribunal before which the objection
is
Chapter
raised
must pronounce upon the
validity or con-
stitutionality of the colonial law.^
The constitution of New Zealand is created by and depends upon the New Zealand Constitution Act, 1852, 15 & 16 Vict. c. 72, and the Acts amending One might therefore expect that the the same. Parliament of the Dominion of New Zealand, which
conveniently be called the New Zealand Parliament, would exhibit that " mark of subordination
colonial
ment may
stltuent
^l^jayye
^"<*y-
may
which consists in the inability of a legislative body to change fundamental or constitutional laws, or (what is the same thing) in the clearly drawn distinction between ordinary laws which the legislature can change and laws of the constitution which it cannot
change,
at
any
rate
legislative character.
when acting in its ordinary But this anticipation is hardly
borne out by an examination into the Acts creating A comparison of the constitution of New Zealand,
the
Colonial
Laws
Validity Act,
1865,
s.
5,
with
Zealand Constitution Act, as subsequently amended, shows that the New Zealand Parliament
the
1 See Powell v. Afollo Candle The Queen, 9 App. Cas. 117.
New
Go.,
10 App. Cas. 282
Hodge
v.
"
io6

This
Parti,
can change the articles of the constitution.

power, derived from imperial statutes,
Imperial
is
of course in
no way inconsistent with the legal sovereignty of the

Parliament.-'
One
may
fairly
therefore
assert that the
New
Zealand Parliament, in
common
is,
with
a
many
other colonial legislative assemblies,

legislative
though a " subordinate," at once a

constituent
and
assembly.
its
It
is
" subordinate
assembly^ because
powers are limited by the
constitutions of some self-governing colonies, e.g. Victoria, show that a Victorian law altering the constitution must in some instances be passed in a manner different from the mode in which other laws are passed. This is a faint recognition of the difference between fundamental and other laws. Compare 18 & 19 but there appears to have been considerable Vict. c. 55, Sched. I. s. 60
1
The
certainly
laxity in regard
to observing these constitutional provisions.
See
Jenks, Government of Victoria, pp. 247-249. 2 It is usually the case that a self-governing colony, such as
New
Zealand, has the power in one form or another to change the colonial constitution. The extent, "however, of this power, and the mode in which it
can be exercised, depends upon the terms of the Act of Parliament, or of

the charter creating or amending the colonial constitution, and differs in different cases. Thus the Parliament of New Zealand can change almost
though not quite all, of the articles of the constitution, and can change them in the same manner in which it can change an ordinary colonial law. The Parliament of the Canadian Dominion cannot change the constitution of the Dominion. The Parliament of the Australian Commonwealth, on the other hand, occupies a peculiar position. It can by virtue of the terms of the constitution itself alter,
all,
by way of ordinary
(see,
e.g..
legislation, certain of the articles of the constitution Constitution of Commonwealth, ss. 65, 67), whilst it cannot, by
way
of ordinary legislation, change other articles of the constitution. All the articles, however, of the constitution which cannot be changed by ordinary Parliamentary legislation can subject, of course, to the sanction of the Crown be altered or abrogated by the Houses of the Parliament, and a vote of the people of the Commonwealth, as provided by the Constitution of the Commonwealth, s. 128. The point to be
specially noted
is, that the Imperial Parliament, as a rule, enables a self-governing colony to change the colonial constitution. The exception in the case of Canada is more apparent than real ; the Imperial
Parliament would no doubt give effect to any change clearly desired by the inhabitants of the Canadian Dominion.
NON-SO VEREtGN LA W-MAKING BODIES

legislation of the Imperial Parliameat
;
107
it
is
a con- Chapter
^^'
stituent assembly since
it
can change the
articles of
the constitution of
New
Zealand.
The authority
is
of
of
the
New
Zealand Parliament to change the
articles Reason
of the constitution of
New
Zealand
from several
points of view worth notice.
have here a decisive proof that there is no necessary connection between the written character and the immutability of a constitution. The New
Zealand constitution
is
We
to be found in a written docu-
ment
Yet the articles of this constitutional statute can be changed by the Parliament which it creates, and changed in the same manner as any other law. This may seem an
;
it is
a statutory enactment.
obvious matter enough, but writers of eminence so

often use language which implies or suggests that
the
character
of
a law
is
changed by
its
being
expressed in the form of a statute as to make it worth while noting that a statutory constitution need not be in any sense an immutable constitution.
The readiness again with which the English Parliament has conceded constituent powers to colonial
legislatures
shows how
little
hold
is
exercised over
Englishmen by that distinction between fundamental and non-fundamental laws which runs through almost
all
the constitutions not only of the Continent but
also of America.
The explanation appears
to be that
to consider
in
England we have long been accustomed
Parliament as capable of changing one kind of law with as much ease as another. Hence when English
statesmen gave Parliamentary government to the colonies, they almost as a matter of course bestowed
upon
colonial
legislatures
authority
to
deal
with
io8

whether
constitutional
Part I
every law,
or
not,
which
affected the colony, subject of course to the proviso,
rather implied than expressed, that this power should
not be used in a
way
inconsistent with the supremacy
of the British Parliament.

in short, are within their
The
colonial legislatures,
sphere sovereign bodies
is
;
own sphere copies of the They are within their own

but their freedom of action
to the Parliament
by their subordination of the United Kingdom.

controlled
How
con-
between
The question may naturally be asked how the large amount of colonial liberty conceded to countries
1^^6
IndTOiontion^^'^^*
N^
Zealand has been legally reconciled with

%
Imperial sovereignty
avoided.
The inquiry
is
lies
a little outside our subject, but

it,
not really foreign to
and well deserves an

if
answer.
Nor
is
the reply hard to find
we keep
in
mind the
true nature of the difficulty which needs
explanation.
The problem is not to determine what are the means by which the English Government keeps the
colonies
in
subjection,
or
maintains
the
political
sovereignty
of the
United
matter of politics with

concern.
Kingdom. This is a which this book has no

is
The question
to be
answered
how (assuming
is
the law to be obeyed throughout the whole of the

British Empire) colonial legislative freedom
made
compatible with the legislative sovereignty of Parlia-
ment
How
are the Imperial Parliament
colonial legislatures prevented
and the from encroaching on
each other's spheres
109
No one will think this inquiry needless who remarks that in confederations, such as the United States, or the Canadian Dominion, the Courts are
constantly occupied in determining the boundaries
Chapter
^^'
which divide the legislative authority of the Central Government from that of the State Legislatures.
The
legal
assertion
may sound
paradoxical,
but
is Conflicts
nevertheless
true, that the acknowledged (Tûpremsupremacy of .Parliament is one main cause of BritlfhParthe wide power of legislation allowed to colonial "e"';
strictly
assemblies.
The
or
constitutions of the colonies depend directly
indirectly
upon imperial
statutes.
No
lawyer
questions that Parliament could legally abolish any

colonial constitution, or that Parliament can at
any
moment
ride
legislate for the colonies
and repeal or over-
any colonial law whatever. Parliament moreover does from time to time pass Acts affecting the colonies, and the colonial,^ no less than the English,
Courts completely admit the principle that a statute of the Imperial Parliament binds any part of the
British dominions to
which the statute

this is
apply.
But when once
meant to admitted, it becomes

is
obvious that there

the
is little
necessity for defining or

If an
limiting the sphere of colonial legislation.
Act
an
if
of
New
Zealand
Parliament
contravenes
;
imperial statute,
it is for legal
purposes void
and
an Act of the New Zealand Parliament, though not infringing upon any statute, is so opposed to the
interests
of the
Empire that
it
ought not to be
render the Act
passed, the British Parliament
may
of no effect
1
by means
of an imperial statute.
See Todd, Parliamentary Governmeni, p^. 16^-192.

Part
I.
This course, however,
is
rarely, if ever, necessary
(iiOri^t
of veto.
for Parliament exerts authority over colonial legisla-
tion
by
in effect regulating the use of the Crown's
" veto " in regard to colonial Acts.
This
is
a matter
which
itself
needs a
little
explanation.
The Crown's have passed through the Houses of Parliament is The power of the Crown to practically obsolete.^
rio-ht
to refuse assent to bills which
negative
or
veto the
bills
of colonial
legislatures
stands on a different footing.
It is virtually,
though
not in name, the right of the Imperial Parliament to limit colonial legislative independence, and is
frequently exercised.
see Hearn (2nd ed.), p. 63 This statement has been questioned The so-called " veto " has never is, it is submitted, correct. been employed as regards any public bill since the accession of the House of Hanover. When George the Third wished to stop the passing of Fox!s India Bill, he abstained from using the Crown's right to dissent from proposed legislation, but availed himself of his
1
but
influence in the
House
of Lords to procure the rejection of the measure.
stronger proof could be given that the right of veto was more than But the statement that a power is a century ago already obsolete. practically obsolete does not involve the assertion that it could under On the whole subject of the no conceivable circumstances be revived.
No
and the different senses in which the expression is used, the reader should consult an excellent article by Professor Orelli of Zuricli, to be found under the word " Veto " in Encyclopcedia Britanrdca (9th
veto,
ed.), xxiv. p.
208.
The
history of the Royal Veto curiously illustrates the advantage
which sometimes arises from keeping alive in theory prerogatives which " may seem to be practically obsolete. The Crown's legislative " veto it has turned out a has certainly long been unused in England, but convenient method of regulating the relation between the United Kingdom and the Colonies. If the right of the King to refuse his assent to a bill which had passed the two Houses of Parliament had been abolished by statute, it would have been difficult, if not impossible, for the King to veto, or disallow, Acts passed by the Parliament
of a self-governing colony,
e.g. New Zealand. It would, in other words, have been hard to create a parliamentary veto of colonial legislation. Yet the existence of such a veto, which ought to be, and is, sparingly used, helps to hold together the federation known as the British Empire.

NOJV-SO VEREIGN
LA W-MAKING BODIES
1 1
This check on colonial legislation is exerted in Chapter ^^ two diflferent manners.-' The Governor of a colony, say New Zealand, may How rigit directly refuse his assent to a bill passed by both eLrcLtd.' Houses of the New Zealand Parliament. In this case
the
bill which had been rejected by the colonial council, or as would be a bill passed by the English Houses of Parliament
if
bill is finally lost,
just as
would be a
the
Crown were
to exert the obsolete prerogative of
The Governor, again, may, without refusing his assent, reserve the bill for the
refusing the royal assent.
consideration of the Crown.
In such case the

it
bill
does not come into force until

royal assent,
has received the

of the
which
is
in effect the assent
English Ministry,
and therefore indirectly of the
1
The mode
in which the power to veto colonial legislation
is
be best understood from the following extract from the Rules and Regulations printed some years ago by the Colonial Office
exercised
:
may
"
EULES AND REGULATIONS CHAPTER III 1. Legislative Councils and, A sse'nMies
In every colony the Governor has authority either to give or to withhold his assent to laws passed by the other branches or members of the Legislature, and until that assent is given no such law is valid or binding. 49. Laws are in some cases passed with suspending clauses ; that is, although assented to by the Governor they do not come into operation or take effect in the colony until they shall have been specially confirmed by Her Majesty, and in other cases Parliament has for the same purpose empowered the Governor to reserve laws for the Crown's assent, instead of himself assenting or refusing his assent to them. 50. Every law which has received the Governor's assent (unless it contains a suspending clause) comes into operation immediately, or at the time specified in the law itself. But the Crown retains power to disallow the law and if such power be exercised . the law ceases to have operation from the date at which such disallowance is published in the colony. 51. In colonies having representative assemblies the disallowance of any law, The or the Crown's assent to a reserved bill, is signified by order in council. confirmation of an Act passed with a suspending clause, is not signified by order in council unless this mode of confirmation is required by the terms of the suspending clause itself, or by some special provision in the constitution of the
48.
; . .
colony.

112

The Governor, on the other hand, may,
as repre-
Part
I.
senting the Crown, give his assent to a

bill.
New
Zealand
The
bill
New
since
Zealand.
is
thereupon comes into force throughout But such a bill, though for a time a
valid Act,
not finally
made law even
in
New Zealand,
the Crown may,
after the Governor's assent has
been given, disallow the colonial Act. The case is thus " Although a governor as repreput by Mr. Todd
:
52.
In Crown colonies the allowance or disallowance of any law
is
generally
signified
is limited, after the expiration of which local 53. enactments, though not actually disallowed, cease to have the authority of law in the colony, unless before the lapse of that time Her Majesty's coutirmation of them shall have been signified there but the general rule is otherwise. 54. In colonies possessing represeutative assemblies, laws purport to he made by the Queen or by the Governor on Her Majesty's behalf or sometimes by the Governor alone, omitting any express reference to Her Majesty, with the advice and consent of the council and assembly. They are almost invariably designated In colonies not having such assemblies, laws are designated as ordinas Acts. ances, and purport to be made by the Governor, with the advice and consent of the Legislative Council (or in British Guiana of the Court of Policy).
;
ty despatch. In some cases a period
The
assent
;
" veto,'' it will
essentially different
be perceived, may be exercised by one of two methods first, by the refusal of the Governor's
:
by the exercise of the royal power to disallow laws even when assented to by the Governor. As further, the Governor may reserve bills for the royal consideration, and as colonial laws are sometimes passed containing a clause which suspends their operation until the signification of the royal assent, the check on colonial
secondly,
legislation
(1)
may
be exercised in four different forms
refusal of the Governor's assent to a bill. Reservation of a bill for the consideration of the Crown, and the subsequent lapse of the bill owing to the royal assent being refused, or not being given within the statutory time. (3) The insertion in a bill of a clause preventing it from coming into operation until the signification of the royal assent thereto, and the want of such royal assent.
(2)
(4)
The
The disallowance by the Crown
of a law passed Parliament with the assent of the Governor.
bj'
the Colonial
the three
The reader should note, however, the essential difference between first modes and the fourth mode of checking colonial legislation. Under the three first a proposed law passed by the colonial legislature never comes into operation in the colony. Under the fourth a colonial law which has come into operation in the colony is annulled or disIn the allowed by the Crown from the date of such disallowance.
JVOJV-SO VEREIGN
LA W-MA KING BODIES

empowered
is
senting the
assent to
Crown
is
to give the royal Chapter
'
bills, this
act
not
final
and conclusive
"'
;
'the
'
Crown
veto.
itself having, in point of fact, a second All statutes assented to by the governor of
'
'
colony go into force immediately, unless they contain a clause suspending their operation until the
a
'issue of a proclamation of approval

'
by the queen
in council, or
some other
specific provision to the

is
'contrary;
'
but the governor
required to trans-
mit a copy thereof to the secretary of state for the colonies and the queen in council may, within 'two years after the receipt of the same, disallow
'
'
any such Act." * The result therefore of
this state of things
is,
that
colonial legislation is
subject to a real veto on the
.part of the imperial government,
and no
bill
which
the English Ministry think ought for the sake of imperial interests to be negatived can,
though passed by
the
New
Zealand or other colonial
finally into force.
to negative or
legislature, come The home government is certain disallow any colonial law which, either
is
in letter or in spirit,
legislation,
repugnant to Parliamentary
and a large number of Acts can be given
which on one ground or another have been either not assented to or disallowed by the Crown. In
more than one colony, sucli disallowance must, under tlie ConAct or letters-patent, be signified within two years. See the Compare the Australian British North America Act, 1867, sec. 56. the Australian Constitutions Act, 1842 (5 & 6 Vict. c. 76), sees. 32, 33 and the Victoria ConConstitutions Act, 1850, 13 & 14 Vict. c. 59 stitution Act, 1855 (18 & 19 Vict. c. 55), sec. 3. Under the Australian Commonwealth Act the King may disallow an Act assented to by the Governor-General within one year after the (Commonwealth of Australia Constitution Governor-General's assent.
case of
stitution
Act,
1
sec. 59.)
Todd, Parliamentary Government in
the British Colonies, p.

I
137.
114
Parti.
1868 the Crown refused assent to a Canadian Act reducing the salary of the Governor-General.^ In 1872
the Crown refused assent to a Canadian Copyright
legislation.
Act because certain parts of it conflicted with imperial In 1873 a Canadian Act was disallowed
as being contrary to the express terms of the British
North America Act, 1868 and on similar grounds in 1878 a Canadian Shipping Act was disallowed.^ So
;
again the
Crown has
at times in efiect passed a veto

for checking Chinese immigra-
upon Australian Acts

tion.^
And
Acts passed by a colonial legislature,
allowing divorce on the ground solely of the husband's adultery or (before the passing of the Deceased Wife's
Sister's
Marriage Act, 1907, 7 Edw. VII.
ising marriage
c. 47) legalwith a deceased wife's sister or with a
deceased husband's brother, have (though not consistently with the general tenor of our colonial policy)
been sometimes disallowed by the Crown, that

efiiect
is,
in
by the home government. The general answer therefore

with imperial sovereignty,
to the inquiry,
how
colonial liberty of legislation is

cilable
made
is
legally recon-
that the complete
recognition of the supremacy of Parliament obviates
the necessity for carefully limiting the authority of

colonial legislatures,
and that the home government, who in effect represent Parliament, retain by the use of the Crown's veto the power of preventing the occurrence of conflicts between colonial and imperial
1
the British Colonies, p. 144. 147, 150. ^ As regards the Australian colonies such legislation has, I am informed, been heretofore checked in the following manner. Immigration bills have been reserved for the consideration of the Crown, and the assent of the Crown not having been given, have never come into
2
Todd, Parliamentary Government in
Ibid., pp.
force.
A'ON-SO VEREIGN LA
laws.
W-MAKING BODIES
1 1
legally bind the colonies,
must be added that imperial treaties and that the " treaty-making power," to use an American expression, resides in the Crown, and is therefore exercised by the home government in accordance with the wishes of the Houses of Parliament, or more strictly of the House of Commons
this it
;
To
Chapter
'_
whilst the authority to
make
treaties
is,
except where
expressly allowed
by Act of Parliament, not possessed

legisla-
by any
colonial government.^
It should,
however, be observed that the

is
ture of a self-governing colony
free to
determine
whether or not to pass laws necessary

to a treaty entered into
for giving effect
ment and a
might
e.g.
foreign
between the imperial governpower and further, that there

;
in
practice
be great difficulty in enforcing

of criminals, to
within the limits of a colony the terms of a treaty,

as
to
the
extradition
which
But this does not colonial sentiment was opposed. affect the principle of law that a colony is bound by
the imperial government, and does not, unless under some special provision of an Act of
treaties
made by
Parliament, possess authority to
make
treaties
with
Policy of
any foreign power.

one who wishes justly to appreciate the nature and the extent of the control exerted by Great Britain over colonial legislation should keep two
Any
govemtoTnterfere
points carefully in mind.

place, of the imperial
The tendency,
is
in the first ^^^Zt^.
government
as a matter of
policy to interfere less and less with the action of the ^ colonies, whether in the way of law-making or other1 See Todd, Parliamentary Government in the British Colonies, pp. 92-218. ] 2 Thus the New Zealand Deceased Husband's Brother Act, 1900, brother, the No. 72, legalising marriage with a deceased husband's
Ii6

Colonial Acts, in the second place, even
Part
I.
wise.^
finally
when
assented to
by the Crown,
if
are,
as
already
pointed out, invalid
repugnant to an Act of Parlia-
ment applying
British
to the colony.
The imperial
with
the
policy
therefore of non-intervention in the local affairs of
dependencies
combines
supreme
legislative
authority of the Imperial Parliament to
encroachments by the Parliament of the United Kingdom on the sphere of colonial legislation, or by colonial Parliaments on the domain of
render
imperial
rence.^
Immigration Restriction Act, 1901, passed by the Commonwealth Parliament, the Immigrants' Restriction Act, 1907, No. 15, passed by the Transvaal Legislature, have all received the sanction of the Crown. The last enactment illu^rates the immensely wide legislative authority which the home government will under some circumstances
legislation,
of
comparatively
rare
occur-
The Secretary of State for India concede to a colonial Parliament. (Mr. Morley) "regrets that he cannot agree that the Act in question " can be regarded as similar to the legislation already sanctioned in
" other self-governing colonies. . " Act introduces a principle to
. .
Section 2 (4) of the Transvaal
which no parallel can be found in This clause "previous legislation. will debar from entry into " the Transvaal British subjects who would be free to enter into any
.
.
"other colony by proving themselves capable of passing the educa" tional tests laid down for immigrants. It will, for instance, per" manently exclude from the Transvaal members of learned professions " and graduates of European Universities of Asiatic origin who may " in future wish to enter the colony." See Pari. Paper [Cd. 3887],
Correspondence relating
pp. 52, 53,
1
to
Legislation affecting Asiatics in the Transvaal,

32.
and compare pp. 31,
See
p.
xxxvii, ante.
Except in the case of political treaties, such as the Hague Conventions, the imperial government does not nowadays bind the colonies by treaties, but secures the insertion in treaties of clauses allowing colonies to adhere to a treaty if they desire to do so. 2 The right of appeal to the Privy Council from the decision of the Courts of the colonies is another link strengthening the connection between the colonies and England. There have been, however, of recent years a good number of conflicts between imperial and colonial legislation as to matters affecting merchant shipping.

Foreign Non-sovereign Legislatures.
difficulty
II.
^^
We
perceive without
that the Parlia- Nonlegislatures
ments of even those

of Canada, or
Dominion the Australian Commonwealth, which

colonies, such as the
pendent
"**'^-
are most nearly independent states, are not in reality
sovereign legislatures.
This
the
is
easily seen, because
the sovereign Parliament of the United Kingdom,
which
legislates
for
whole British Empire,
is
visible in the background,
and because the
colonies,
however large
states
their practical freedom of action,
do
not act as independent powers in relation to foreign

;
the Parliament of a dependency cannot itself

It is harder for
be a sovereign body.
ent nation
Englishmen to
realise that the legislative
assembly of an independ-
may
not be a sovereign assembly.
political habits of
thought indeed are
Our upon so based
the assumption of Parliamentary omnipotence, that the position of a Parliament which represents an independent nation and yet is not itself a sovereign
power is apt to appear to us exceptional or anomalous. Yet whoever examines the constitutions of civilised
countries will find that the legislative assemblies of
great nations are, or have been, in
many
cases legisla-
tive without being constituent bodies.

in
To determine
any given case whether a foreign legislature be a sovereign power or not we must examine the constitution of the state to which it belongs, and ascertain whether the legislature whose position is in question Such an bears any of the marks of subordination. investigation will in many or in most instances phow
that an apparently sovereign assembly non-sovereign law-making body.
is
in reality a
la
TftE SO VEREIGNTY
OF PARLIAMENT
last
Parti.
France.
France has within the

jcars
hundred and thirty
made
trial
of at least twelve constitutions.^
These various forms of government have, amidst

all their differences,
possessed in general one

of
common
feature.
They have most
them been based upon

to
the recognition of an essential distinction between

constitutional or " fundamental " laws intended
be either immutable or changeable only with great

*
and " ordinary " laws which could be changed by the ordinary legislature in the common course of legislation. Hence under the constitutions which France has from time to time adopted the common Parliament or legislative body has not been
diflficulty,
a sovereign legislature.
Oonstitu-
monarchy
Phi^ppe.
monarchy of Louis Philippe, in outward appearance at least, was modelled on the constitutional monarchy of England. In the Charter not a word could be found which expressly limits the legislative authority possessed by the Crown and the two Chambers, and to an Englishman it would seem certainly arguable that under the Orleans dynasty the Parliament was possessed of sovereignty. This, however, was not the view accepted among French lawyers. The "immutability of the Constitution of
constitutional
''
The
France," writes Tocqueville, " is a necessary con" sequence of the laws of that country. ... As the
" King, the Peers, and the Deputies all derive their " authority from the Constitution, these three powers " united cannot alter a law by virtue of which alone " they govern. Out of the pale of the Constitution " they are nothing
1
;
where, then, could they take their
1-5.
Demorabynes, Les Constitutions Europênnes, ii. (2nd ed.), pp. See Appendix, Note I., Rigidity of Frencli Constitutions.

" Stand to effect a change in
its
provisions
The
alter-
Chapter^
II.
"native
is
clear:
either their efforts are powerless
which continues to exist in spite " of them, in which case they only reign in the name
" against the Charter,
"of the Charter; or they succeed in changing the " Charter, and then the law by which they existed
" being annulled, they themselves cease to exist.
By
"destroying the Charter, they destroy themselves. " This is much more evident in the laws of 1830 than
"in those of 1814.

"
In 1814 the royal prerogative
" took its stand above
but in 1830
it
and beyond the Constitution was avowedly created by, and de-
" pendent on, the Constitution. part, therefore, of " the French Constitution is immutable, because
it is
" united to the destiny of a family and the body of " the Constitution is equally immutable, because there
;
" appear to be no legal means of changing it. These " remarks are not applicable to England. That country " having no written Constitution, who can assert when " its Constitution
is
changed
"^
"
Tocqueville's
reasoning
may
not
carry
con-
viction to an Englishman, but the weakness of his
argument
it is
is
of itself strong evidence of the influenca
of the hold on French opinion of the doctrine which
intended to support, namely, that Parliamentary
sovereignty was not a recognised part of French constitutionalism.

1
The dogma which
is
so
naturally
A. de Tocqueville, Democracy in America, ii. (translation), App. CEwiires CompUtes, i. p. 311. ^ His view is certainly paradoxical. (See Duguit, Manuel de droit Oonstitutionnel Frangais, a. 149, p. 1090.) As a matter of fact one provision of the Charter, namely, art. 23, regulating the appointment See of Peers, was changed by the ordinary process of legislation. Law of 29 th December 1831, H^lie, Les Gomtitutions de la France,
pp. 322, 323.
p.
1006.

I20
Parti,
assented to by Englishmen contradicts that idea of

the essential difference
between constitutional and other laws which appears to have a firm hold on most
foreign statesmen
and
legislators.
Republic
The Eepublic of 1848 expressly recognised

distinction
;
this
no single
as
article of the constitution pro-
claimed on 4th November 1848 could be changed in

the same
way
an ordinary law.
The
legislative
its
assembly sat for three years.

existence,
In the last year of
and then only, it could by a majority of three-fourths, and not otherwise, convoke a constituent body with authority to modify the constitution. This constituent and sovereign assembly differed in numbers, and otherwise, from the ordinary non-sovereign
legislature.
Present Eepublic.
The National Assembly of the French Eepublic

exerts at least as
much
direct authority as the English
Houses of Parliament.
The French Chamber
of
much influence on the appointment of Ministers, and controls the action of the government, at least as strictly as does our House
Deputies exercises at least as
of
Commons.
.possess
this,
The President, moreover, does not even a theoretical right of veto. For all
is
however, the French Parliament

is
not a sove-
reign assembly, but

constitution
in
bound by the laws of the

in "which
way
no law binds our

constitution,
or
Parliament.
The
articles
of the
"fundamental
laws,"
stand in a totally different
position from the ordinary law of the land.

article 8 of the constitution,
Under
no one of these fundamental enactments can be legally changed otherwise

:
than subject to the following provisions " 8. Les Chambres auront le droit, par delihdra-
NON-SOVEREIGN LA W-MAKJNG BODIES

" tions sdparees, prises dans chacune h la majorite " absolue des voix, 'soit spontandment, soil sur la
Chapter ^^
demande du President de la Republique, de declarer y a lieu de reviser les his constitutionnelles. " Apres que chacune des deux Chambres aura pris
"
" qu'il
"cette resolution, elles se reuniront en AssemhUe "nationale pour proceder d, la revision. Les dS" liberations portant revision des his constitution-
.en partie, devront etre prises absolue des membres composant " I'Assemblee nationale." ^
" nelles, en tout
ou
"d
la
majority
therefore under the Republic vested not in the ordinary Parliament of two Chambers, but in a " national assembly," or conis
Supreme
legislative
power
gress,
composed of the Chamber of Deputies and the

constitutions,
in short,
Senate sitting together.
The various
1
of France,
Distinction
Monnier, Les Constitutions de la France depuis 1789, flexTblT A striking example of the difference between English and rigid pp. 320, 321. and French constitutionalism is to be found in the division of opinion constituwhich exists between French writers of authority on the answer to the tions. inquiry whether the French Chambers, when sitting together, have constitutionally the right to change the constitution. To an Englishman the question seems hardly to admit of discussion, for Art. 8 of the constitutional laws enacts in so many words that these laws may be
et
Duguit
revised, in the
manner therein
as
set forth,
by the Chambers when
sitting
together as a National Assembly.

fore lay
Many French
constitutionalists there-
down,
constituent as well as a legislative body,
would any English lawyer, that the Assembly is a and is endowed with the right
s.
to change the constitution (Duguit, Manuel,
151
Moreau, Precis
el^mentaire de droit constitutionnel (Paris, 1892), p. 149). eminent authorities maintain that this view is erroneous,
spite of the
But some and that in
words of the constitution the ultimate right of constituexercised directly by the French people, and that therefore any alteration in the constitutional laws by the Assembly lacks, at any rate, moral validity unless it is ratified by the direct vote of the electors. Bard et (See, on the one side, Duguit, Manuel, s. 151 Eobiquet, La Constitution frangaise de 1876 (2nd ed.), pp. 374-390, and on the other side, Esmein, Droit Constitutionnel (4th ed.), p. 907 Borgeaud, Eiablissement et Revision des Constitutions, pp. 303-307.)
tional
amendment must be
'
122

this respect fair types of continental
Parti,
which are in
polities/ exhibit, as
compared with the expansiveness

be conveniently described as
or " flexibility " of English institutions, that characteristic
which
it is
may
" rigidity."
And
here
worth while, with a view to under-
standing the constitution of our

perfectly
clear to
own
country, to
make
ourselves the distinction already referred to between a "flexible" and a " rigid" constitution.
Flexible
tions.'
A " flexible " constitution

l^'W
is
one under which every
"
of every description can legally be changed with
the same ease and in the same manner by one and the same body. The " flexibility " of our constitu-
Crown and the two Houses to modify or repeal any law whatever they
tion consists in the right of the
;
can alter the succession to the Crown or repeal the
Acts of Union in the same manner in which they

can pass an Act enabling a company to
railway from Oxford to London.
subjects supposed to
tions of the state,
make
new
With
us, laws there-
fore are called constitutional, because

aff'ect
they refer to
the fundamental institu-
more sacred or
difl&cult to
and not because they are legally change than other laws.
1 No constitution better merits study in this as in other respects than the constitution of Belgium. Though formed after the English model, it rejects or omits the principle of Parliamentary sovereignty. The ordinary Parliament cannot change anything in the constitution it is a legislative, not a constituent body ; it can declare that there is reason for changing a particular constitutional provision, and having
;
deux chambres thereupon elected has a right to change the constitutional article which has been declared subject to change (Constitution de La Belgique, Arts.
is
done
so
if so facto dissolved {aprh de
cette
declaration
les
sent
dissoutes
plein
droit).
The new Parliament
131,71). 2 See Appendix, Note
I.,
Rigidity of French Constitutions.
123
And
as a matter of fact, the

is
"constitutional"
in
meaning of the word England so vague that the
Chapter
term " a constitutional law or enactment " is rarely applied to any English statute as giving a definite
description of its character. " rigid " constitution is one under which certain
Rigid con-
laws generally
known
as constitutional or
fundamental
laws cannot be changed in the same manner as

ordinary laws.
The "rigidity"
of the constitution,
say of Belgium or of France, consists in the absence

of any right on the part of the Belgian or French
Parliament,
when
acting in
its
ordinary capacity, to
modify or repeal certain definite laws termed consti-
Under a rigid constitution tutional or fundamental. " constitutional " as applied to a law has a the term
perfectly definite sense.
It
means that a
particular
enactment belongs to the articles of the constitution,
and cannot be legally changed with the same ease and The articles of in the same manner as ordinary laws. the constitution will no doubt generally, though by no means invariably, be found to include all the most important and fundamental laws of the state. But it
certainly cannot be asserted that where a constitution matters of supreme is rigid all its articles refer to
importance.
The
rule that the French Parliament
must meet
at Versailles
was
at one time one of the
Such constitutional laws of the French Republic. would an enactment, however practically important,
never in virtue of
constitutional
it
;
its
own
character have been termed
it
was constitutional simply because

articles of the constitution.'
(originally suggested
was included in the

i
The terms "flexible" and "rigid"

it
by
my
friend Mr. Bryce) are,
should be remarked, used throughout this
124
Part
I.
Whether
coMtitU
perma-"'^''^
The contrast between the flexibility of the English and the rigidity of almost every foreign constitution suggessts two interesting inquiries. Fivst, Docs the rigidity of a constitution secure its permanence and invest the fundamental institutious of the statc with practical immutability
ijiq
nenoe?
^j^jg
inquiry
historical
experience
gives
an
indecisive answer.
In some instances the fact that certain laws or

institutions of a state
have been marked
off as placed
beyond the sphere of

which in England
political controversy, has, appar-
ently, prevented that process of gradual innovation

has, within not
much more than

The
constitution
sixty years, transformed our polity.
of Belgium stood for more than half a century with-
any material change whatever. The constitution of the United States has lasted for more than a hundred years, but has not undergone anything like the amount of change which has been experienced by the constitution of England since the death of G-eorge the Third. ^ But if the
out undergoing, in form at
least,
work without any connotation

flexibility
either of praise or of blame.
The
and expansiveness of the English
constitution, or the rigidity
and immutability of, e.jf., the constitution of the United States, may each be qualities which according to the judgment of different critics deserve either admiration or censure. With such judgments this treatise has no concern. My whole aim is to make clear to my readers the exact difference between a flexible and a rigid constitution. It is not my object to pronounce any opinion on the question whether the flexibility or rigidity of a given polity be a merit or a
defect.
,
doubt the constitution of the United States has in reality; though not in form, changed a good deal since the beginning of last century ; but the change has been effected far less by formally enacted constitutional amendments than by the growth of customs or institutions which have modified the working without altering the articles of
1
No
the constitution.

inflexibility
25
of
constitutional
laws has in certain
Chapter
instances
checked
the
process of innovation
gradual and unconscious by which the foundations of a
commonwealth
are undermined, the rigidity of consti-
tutional forms has in other cases provoked revolution.
The twelve unchangeable
constitutions of France have
each lasted on an average for less than ten years,
and have frequently perished by violence. Louis Philippe's monarchy was destroyed within seven years of the time when Tocqueville pointed out that no power existed legally capable of altering the articles In one notorious instance at least' of the Charter. and other examples of the same phenomenon might be produced from the annals of revolutionary the immutability of the constitution was France
the ground or
excuse for
for
its
violent of
subversion.
The best plea

that while the
election
stitution
the Coti'p d'etat
1851
for
was,
French people wished

President, the
article
the re-
of the
of the con-
a, majority of three -fourths of the legislative assembly in order to alter the law
requiring
which made the President's re-election impossible,

thwarted the will of the sovereign people. Had the Republican Assembly been a sovereign Parliament, Louis Napoleon would have lacked the plea, which
seemed to justify, as well as some of the motives which tempted him to commit, the crime of the 2nd
of JDecember.
Nor ought the
perils in
which France was involved
by the immutability with which the statesmen of 1848 invested the constitution to be looked upon as
exceptional;
herent in
they arose from a defect which is inThe endeavour to every rigid constitution.
126

which cannot be changed is an attempt to exercise of sovereign power it therefore
;
Part
I.
create laws
hamper the
tends to bring the letter of the law into conflict with

the will of the really supreme power in the state.
tion the true sovereign of France
The
majority of French electors were under the constitu;
but the rule which
prevented the legal re-election of the President in

effect
brought the law of the land into conflict with
the will of the majority of the electors, and produced,

therefore, as a rigid constitution has a natural tend-
ency to produce, an opposition between the

of the
letter
law and the wishes of the sovereign.
If
the inflexibility of French constitutions has provoked

revolution, the flexibility of English institutions has,
once at
least,
saved them from violent overthrow.
To a
student,
who
at this distance of time calmly

first
studies
the
history of the
Eeform
nation
Bill,
it
is
apparent, that in 1832 the supreme legislative authority
of
Parliament enabled
political revolution
the
to
carry
through a
.under the guise of a
legal reform.
The
rigidity, in short, of a constitution tends to

;
check gradual innovation
but, just because
it
impedes
change, may, under unfavourable circumstances, occasion or provoke revolution.

What
are
Secondly,
What
?
are the safeguards
which under
guardl""
a rigid constitution can be taken against unconstitui^Q^gX legislation c>
agaimt nnconstitu-
fff
'^^^
general
answer to
course can have
our inquiry (which of no application to a country like

is
England, ruled by a sovereign Parliament)
that
two methods may be, and have been, adopted by the makers of constitutions, with a view to render-
27
ing unconstitutional legislation, either impossible, or

inoperative.
Chapter
Reliance
may
be placed upon the force of public
opinion and upon the ingenious balancing of political
powers for restraining the legislature from passing This system opposes unconstitutional enactments.
unconstitutional legislation
tions,
by means of moral
sanc-
which resolve themselves into the influence of
public sentiment.
may be given to some person body of persons, and preferably to the Courts, to adjudicate upon the constitutionality of legislative acts, and treat them as void if they are inconsistent
Authority, again,
or
with the letter or the
spirit of the constitution.
This
system attempts not so much to prevent unconstitutional legislation as to render it harmless through the
intervention of the tribunals, and rests at bottom on
the authority of the judges. the
This general account
of
two methods by
*
be attempted to secure the rigidity of a constitution is hardly intelligible without further Its meaning may be best understood illustration.
which
it
may
by a comparison between the

regard to the
legislature
classes of constitutionalists.
different
policies in
pursued by two different

safeguards
byciiiti.
French constitution-makers and their continental followers have, as we have seen, always attached vital importance to the distinction between fundamental and other laws, and therefore have constantly
" legiscreated legislative assemblies which possessed lative" without possessing "constituent" powers.
comtitu"""''lists-
French statesmen
devise
have
therefore
been forced to
means
for
keeping
the
ordinary legislature
128

its
Parti,
within
appropriate
sphere.
Their
mode
of pro-
marked by a certain uniformity they have declared on the face of the constitution the exact limits imposed upon the authority of the
cedure has been
legislature
;
they have laid
constitution
whole bodies
down as articles of the of maxims intended to

;
guide and control the course of legislation
they
have provided for the creation, by special methods and under special conditions, of a constituent body which alone should be entitled to revise the constitution. They have, in short, directed their
attention to restraining the ordinary legislature from
attempting any inroad upon the fundamental laws

of the state
;
but they have in general trusted to

or at
public sentiment,^
siderations,
for
any
rate to political con-
inducing the legislature to respect
imposed on its authority, and have usually omitted to provide machinery for annulling
the restraints
1 "Aucun des pouvoirs institues par la constitution n'a le droit " Je la changer dans son ensemble ni dans ses parties, sauf les r^formes " qui pourront y etre faites par la voie de la revision, conformement
" aux dispositions du titre VII. ci-dessus. "L'Assemblde nationale constituante en remet le dep6t k, la " fid^litd du Corps l^gislatif, du Roi et des juges, k la vigilance des " pferes de famille, aux Spouses et aux nitres, & I'affection des jeunes " citoyens, au courage de tous les Frangais." Constitution de 1791, Tit. vii. Art. 8 Duguit et Monnier, Les Constitutions de la France depuis 17H9, p. 34. These are the terms in which the National Assembly entrusts the Constitution of 1791 to the guardianship of the nation. It is just possible, though not likely, that the reference to the judges is intended to contain a hint that the Courts should annul or treat as void un-
constitutional laws.
senate
Under the Constitution of the Year VIII. the had authority to annul unconstitutional laws. But this was rather a veto on what in England we should call Bills than a power to make void laws duly enacted. See Constitution of Year VIII., Tit. ii. Arts. 26, 28, Hdlie, Les Constitutions de la
France, p. 579.

unconstitutional enactments, or for rendering
of no effect,
129
them
are
Chapter
"
These
traits
of
French
constitutionalism
French
tionary
specially noticeable in the three earliest of

political experiments.
French
The Monarchical
constitution
constitution
yont''"
of 1791, the Democratic

Directorial constitution
their
diversities,
of 1793, the
of 1795 exhibit, under all two features in common/ They each, on the one hand, confine the power of the legislature within very narrow limits indeed under the Directory, for instance, the legislative body could not itself change any one of the 377 articles of the constitution, and the provisions for creating a constituent assembly were so framed that not the very least alteration in any of these articles could have been
;
carried out within a period of less than nine years.
None
to
of these
constitutions,
on
in
the
other hand,
is
contain a hint as to the
mode
which a law
be treated which
Their
is
alleged
to violate the conto
stitution.
framers indeed hardly seem

fact
have recognised the
that
enactments of the
legislature might, without being in so
many words
opposed to the constitution, yet be of dubious conand that some means would be needed for determining whether a given law was
stitutionality,
or
was not in opposition to the principles of the

Existing
oonstitu-
constitution.
These characteristics of the revolutionary constitutions have been repeated in the works of later French constitutionalists. Under the present French
See Appendix, Note I., Rigidity of French Constitutions. See Constitution of 1795, Tit. xiii. Art. 338, Hdlie, Les Constitutions de la France, p. 463.
1 2
I30
Part
I.
Republic there exist a certain number of laws (not

it is
true a very large number), which the Parlia;
ment cannot change
and what
is
perhaps of more
consequence, the so-called Congress^ could at any
time increase the number of fundamental laws, and

thereby greatly decrease
Parliaments.
the
authority
of
future
The
constitution,
however, contains
no
article
providing against the possibility of an
ordinary
Parliament
carrying
through
legislation
greatly in excess of
its
constitutional powers.
Any
one in fact who bears in mind the respect paid in France from the time of the Revolution on-
wards to the legislation of de facto governments and the traditions of the French judicature, will
assume with confidence that jan enactment passed through the Chambers, proinulgated by the Presi-
and published iu the Bulletin des Lois, will be held valid by every tribunal throughout the
dent,
Republic.
Are the
continentai
tbas'*'^
This curious rcsult therefore ensues.

tions placcd
The
restric-
ou the actiou of the legislature under

j.yjgg yf]^{Q\
the French constitution are not in reality laws, since

îjgy.
a^pg
jjqi-
"laws"?
in
-tlig
last resort will

is
be
enforced by the Courts.

of
Their true character
that
maxims
of political morality, which derive what-
ever strength they possess

scribed in the constitution
from being formally inand from the resulting
support of public opinion.

other polities
What
is
true of the con-
stitution of France applies with
more or less force to which have been formed under the
1 The term is used by French writers, but does not appear in the Lois Gonstitutionnelles, and one would rather gather that the proper title for a so-called Congress is L'AssembUe Nationale.

influence of
for
French
ideas.
The Belgian
constitution,
example, restricts the action of the Parliament

less
Chapter ^'
no
than does the Eepublican constitution of
at least doubtful whether Belgian have provided any means whatever for invalidating laws which diminish or do away with the rights {e.g. the right of freedom of speech) "guaranteed" to Belgian citizens. The jurists of
France.
But
it
is
constitutionalists
Belgium maintain, in theory at least, that an Act of Parliament opposed to any article of the constitution ought to be treated by the Courts as void. But during the whole period of Belgian independence, no tribunal, it is said, has ever pronounced judgment upon the constitutionality of an Act of Parliament.
This shows,
it
may
be
said, that the
Parliament has
respected the constitution, and certainly affords some
evidence that, under favourable circumstances, formal

declarations of rights may, from their influence on
popular feeling, possess greater weight than is generally attributed to them in England ; but it also
suggests the notion that in Belgium, as in France,
the restrictions on Parliamentary authority are supported mainly by moral or political sentiment, and
are at bottom rather constitutional understandings
than laws. To an English

tinental
critic,
indeed, the attitude of conof revolutionary
and
especially
statesmen
towards the
paradox.
ordinary legislature
to
bears
an
air
of
They seem
be almost equally afraid
of leaving the authority of the ordinary legislature unfettered, and of taking the steps by which the
legislature
may be
prevented from breaking through

its
the bonds imposed upon
power.
The explanation
132

is
Part I
of this apparent inconsistency
to be found in
two
sentiments which have influenced French constitution-makers from the very outbreak of the Kevolution
an over-estimate
of any intervention
politics.^
of the effect to be produced
by
general declarations of rights,
and a
settled jealousy
by the judges
is
in the sphere of
We
shall see, in a later chapter, that the

still
public law of France
radically influenced
by
the belief, even
now almost
universal
among French-
men, that the law Courts must not be allowed to interfere in any way whatever with matters of state, or indeed with anything affecting the machinery of
government.^
Safeguards
The authors of the American constitution have,

for rcasous that will appear in
byfound-
my
next chapter, been
United
states.
Gvcu morc auxlous than French statesmen to limit

^jjg
authority of every legislative body throughout
the Eepublic.
They have
further shared the faith
of continental politicians in the value possessed
by
But they have, unlike French constitution-makers, directed their attention, not so much to preventing Congress and other legislatures from making laws in excess of their powers,
general declarations of rights.
as to the invention of
means by which the
effect of
and this have achieved by making it the duty of every judge throughout the Union to treat as void any enactment which violates the constitution, and
unconstitutional
laws
may
be
nullified
result they
thus have given to the restrictions contained in the

constitution
on the
legislative
authority either of
Congress or the State legislatures the character of

1
A. de Tocqueville, CEuvres Computes, 2 See Chap. XII.
i.
pp. 167, 168.

real laws, that
is,
133
of rules enforced by the Courts,
This system, which makes the judges the guardians

of the constitution, provides the only adequate safe-
chapter ^'
guard which
has hitherto
been
invented against
unconstitutional legislation.
CHAPTER
III
PARLIAMENTARY SOVEREIGNTY AND FEDERALISM

'
^^^^
I-
My present
aim
is
to illustrate the nature of Parlia-
subjeot.
mentary sovereignty as it exists in England, by a comparison with the system of government known as
Federalism as
it
exists in several parts of the civilised
world, and especially in the United States of America.^

Federalism
stoo/by*"^'
oonstitu^ tion of
There are indeed to be found at the present time

three other noteworthy examples of federal govern-
ment
tie
Swiss
Confederation,
the Dominion
of
United
States.
Canada, and the G-erman Empire.^
study of the institutions of each of these states one
...
But while from a
may draw
illustrations
subject, it will
which throw light on our be best to keep our attention througbRepublic.

in
out this chapter fixed mainly on the institutions of

the great American
reasons.
And
first
this
for
two
The Union,
the
place,
presents
the most completely developed type of federalism.

All the features which
mark that scheme of government, and above all the control of the legislature by the Courts, are there exhibited in their most salient
1 On the whole subject of American Federalism the reader should consult Mr. Bryce's American Commonwealth, and with a view to matters treated of in this chapter should read with special care vol. i. part L
" To these we must now (1908) add the Commonwealth of Australia. (See Appendix, Note IX., Australian Federalism), [and see further the South Africa Act, 1909, 9 Ed. VII. c. 9].
134
PARLIAMENTARY SOVEREIGNTY ^ FEDERALISM

;
135
and perfect form the Swiss Confederation/ moreover, and the Dominion of Canada, are more or less copied from the American model, whilst the constitution of the German Empire is too full of anomalies, springing both from historical and from temporary causes, to be taken as a fair representative of any known form of
government.
Chapter
L_
The Constitution
a
of the United States,

peculiar relation
in the second place, holds
verj'-
towards the institutions of England.
In the principle
the
of the distribution of powers which determines its
form, the Constitution of the United States
is
exact opposite of the English constitution, the very

essence of which
is,
as I
hope
have now made
clear,
the unlimited authority of Parliament.
But while
the formal differences between the constitution of the
American Republic and the constitution of the English monarchy are, looked at from one point of view, immense, the institutions of America are in their spirit little else than a gigantic development of the ideas which lie at the basis of the political and legal The principle, in short, institutions of England. which gives its form to our system of government is
(to use a foreign
but convenient expression) " unicentral power,
tarianism," or the habitual exercise of supreme legislative authority
by one
which in the
particular case
ciple which,
is
the British Parliament,
The
prin-
on the other hand, shapes every part of
1 Swiss federalism deserves an amount of attention which it has The essential feature of the only of recent years begun to receive. Swiss Commonwealth is that it is a genuine and natural democracy, but a democracy based on Continental, and not on Anglo-Saxon, ideas of freedom and of government.
The
least
constitution of the
Commonwealth
of Australia contains at
one feature apparently suggested by Swiss federalism. Appendix, Note IX., Australian Federalism.
See
136

is
Part
I.
the American polity,

executive, legislative,
that distribution of limited,

judicial authority
and
among
bodies each co-ordinate with and independent of the

other which,
we
shall in a
moment
see, is essential to
the federal form of government.

fore
The
contrast there-
between the two
polities is seen in its
most
salient
all
form, and the results of this difference are
made
the more visible because in every other respect the

institutions of the English people
on each side the
Atlantic rest upon the same notions of law, of justice,
and of the relation between the rights of individuals and the rights of the government, or the state.
We
shall best
understand the nature of federalism

of
and the points in which a federal constitution stands

in contrast with the Parliamentary constitution
England
if
we
note,
first,
the conditions essential to
the existence of a federal state and the aim with
which such a state

features
is
formed
secondly, the essential

;
and lastly, certain characteristics of federalism which result from its very nature, and form points of comparison, or contrast, between a federal polity and a system of
of
federal
union
Parliamentary sovereignty.
Conditions
A
j
1
federal
state
requires
for
its
formation two
and aim of
federalism.
COndltlOUS.
For United States see Story, Commentaries on the Constitution of United States (4th ed.), and Bryce, Ammcan Commonwealth. For Canada see the British North America Act, 1867, 30 Vict. c. 3 Bourinot, Parliamentary Procedure and Practice in the Dominion of Canada. For Switzerland see Constitution FMerale de la GonfMdration Suisse du
the
;
2 9 Mai 1874; Blumer, Handhwch des Schweizerischen Bundesstaatsrechtes Lowell, Governments and Parties in Continental Europe, ii. chaps. xi.-xiii.
Sir F. 0.
Adams's Swiss Confederation; and Appendix, Note VIII.,

of
Swiss Federalism.
For the Commonwealth
Australia, the
Constitution whereof
PARLIAMENTARY SOVEREIGNTY &- FEDERALISM

There must
exist,
137
in the first place, a
body of
Chapter
countries such as the Cantons of Switzerland, the
Colonies of America, or the Provinces of Canada, so c^paWerf

closely connected
by
locality,
by
history,
by
race, or
'-
the
like, as to
be capable of bearing,'in the eyes of
their inhabitants,
It
an impress of common nationality.

(if
will
also
be generally found
we
appeal to
now form part of a some stage of their existence bound together by close alliance or by subjection to a common sovereign. It were going further than
experience) that lands which
federal state were at
facts
warrant to assert that this
earlier
connection
is it
essential to the formation of a federal state.

is
But
it
certain that where federalism flourishes
is
in
general the slowly-matured fruit of some earlier and

looser connection.
second condition absolutely essential to the

is
Existence
founding of a federal system

ants of the countries which
the existence of a
sentiment
very peculiar state of sentiment among the inhabitit is
proposed to unite.
desire unity.
They must
If there
desire
union, and must not
be no desire to unite, there is clearly no basis the wild scheme entertained (it is for federalism said) under the Commonwealth of forming a union
;
between the English Republic and the United Provinces was one of those dreams which may haunt
the imagination of politicians but can never be transformed into fact. If, on the other hand, there be a
desire
for
unity, the
wish will naturally find
its
deserves careful examination, the reader should consult Quick and Garran, Annotated Constitution of the Australian Commonwealth ; Moore,
Jurisprudence,
The Commonwealth of Australia and Bryce, Studies in History and " The Constitution of the Commonwealth i. Essay VIII. of Australia." See further, Appendix, Note IX., Australian Federalism.
;
,

138

not under a federal, but under a uni;
Parti,
satisfaction,
tarian constitution
the experience of England and of the

states
Scotland in the eighteenth and

Italy in the nineteenth century
of
shows that the sense

national feeling,
common may be too

of
interests,
or
common
is
strong to allow of that combination of

separation
union and
federalism.
which
the foundation
short,
of
The phase of sentiment, in

is
which
forms a necessary condition for the formation of a

federal state
that the people of the proposed state
should wish to form for

nation, yet should
many
purposes a single
in-
not wish to surrender the
dividual existence of each man's State or Canton.
We may
many
perhaps go a
little
a federal government will
and say, that hardly be formed unless

farther,
of the inhabitants of the separate States feel
stronger allegiance to their

federal state represented
own State than to the by the common government.

,
This was certainly the case in America towards the
end of the eighteenth century and in Switzerland at the middle of the nineteenth century. In 1 7 8 7 a Virginian
or a
citizen
of Massachusetts felt
a far stronger In 1848 the
attachment to Virginia or to Massachusetts than to

the body of the confederated States.
citizens of
Lucerne
felt far keener loyalty to their
Canton than to the confederacy, and the same thing, no doubt, held true in a less degree of the men of
Berne or of Zurich.
creates a federal state
The sentiment
is'
therefore which
the prevalence throughout
the citizens of more or less allied countries of two
which are to a certain extent inconsistent the desire for national unity and the determination to maintain the independence of each man's separate
feelings
PARLIAMENTARY SOVEREIGNTY
State.
<Sr-
FEDERALISM
139
The aim
of federalism
is
to give effect as far Chapter
as possible to both these sentiments.
A federal
state
is
a political contrivance intended
federaSm*
and power with the maintenance of " state rights." The end aimed at fixes the essential character of federalism. For the method by which Federalism attempts to reconcile the apto reconcile national unity
parently inconsistent claims of national sovereignty
and of
state sovereignty consists of the formation

^
of a constitution under which the ordinary powers
of sovereignty are elaborately divided between the
common
states.
or
national government and

details of this division
the separate
The
vary under every
different federal constitution,

ciple
but the general prinis
on which
it
should rest
obvious.
Whatever
All matters
concerns the nation as a whole should be placed under

the control of the national government.
whiph are not primarily of common interest should remain in the hands of the several States. The preamble to the Constitution of the United States recites
that " "We, the people of the United States, in order " to form a more perfect union, establish justice, " ensure domestic tranquillity, provide for the common " defence, promote the general welfare, and secure the
"blessings of liberty to ourselves and our posterity,
"do
ordain and establish this Constitution for the
" United States of America."
The tenth amendment
enacts that " the powers not delegated to the United " States by the Constitution nor prohibited by it to
" the States are reserved to the States respectively or "to the people." These two statements, which are
reproduced with slight alteration in the constitution

1
See Appendix, Note
II.,
Division of Powera in Federal States.
I40

aim and
recon-
Parti,
of the Swiss Confederation/ point out the
lay
Essential
down the fundamental idea of federalism. From the notion that national unity can be
iste
o^
unued'^'
states.
with state independence by a division of powers under a common constitution between the nation on ^jjQ QQg hand and the individual States on the other,
ciled
flow the three leading characteristics of completely
developed federalism,
tion
the distribution among bodies with limited and

authority
the supremacy
of
of the constitu-
co-ordinate
the
different
powers
of
government
Supremacy
tution!
'
the
authority of the Courts to act as
interpreters of the constitution.
federal
state
derives
its
existence from
the
coastitution, just as a corporation derives its exist-
ence from the grant by which
it is
created.
j
Hence,
every power, executive,

it
legislative, or
udicial,
whether
is
belong to the nation or to the individual States,
subordinate to and controlled by the constitution.
Neither the President of the United States nor the
Houses of Congress, nor the Governor of Massachusetts,

nor the Legislature or General Court of Massachusetts, can legally exercise a single power which
sistent with the articles
is
incon-
of the Constitution.
This
is
doctrine
of
the supremacy of the
constitution
familiar to
every American, but in England even

it
trained lawyers find a difiiculty in following

its
out to
legitimate consequences.
The
difficulty arises
from
the fact that under the English constitution no principle is recognised
which bears any
real resemblance to
the doctrine (essential to federalism) that the Constitution constitutes the " supreme law of the land." ^
1 2
Constitution F^^rale, Preamble, and art. 3. See Constitution of United States, art. 6, cl.
2.

In
141
England we have laws which may be

or
constitutional
principles
(as,
called
Chapter
!_
fundamental^
with
descent of the
because
for
they deal
the
important
example,
Crown
is
or the terms of union with
Scotland) lying at the basis of our institutions, but
law which
no such thing as a supreme law, or There are indeed important statutes, such as the Act emwith us there
tests the validity of other laws.
bodying the Treaty of Union with Scotland, with which it would be political madness to tamper
gratuitously
;
there are utterly unimportant statutes,
such, for example, as the Dentists Act, 1878, which
may
be repealed
or modified at
;
the pleasure or
caprice of Parliament
but neither the Act of Union
with Scotland nor the Dentists Act, 1878, has more claim than the other to be considered a supreme law.
Each embodies the will of the sovereign legislative power; each can be legally altered or repealed by
Parliament
;
neither tests the validity of the other.
Should the Dentists Act, 1878, unfortunately contravene the terms of the Act of Union,, the Act of Union would be 'pro tanto repealed, but no judge would
dream of maintaining that the Dentists Act, 1878, was thereby rendered invalid or unconstitutional. The one fundamental dogma of English constitutional
law
is
the absolute legislative sovereignty or despotism
of the
King
in
Parliament.
But
this
dogma
is
incompatible with the existence of a fundamental compact, the provisions of which control every
authority existing under the constitution.^
1
The
during See Gardiner, History of England, viii. pp. 84, 85. 2 Compare especially Kent, Commentaries, i. pp. 447-449.
expression " fundamental laws of England " becariie current the controversy as to the payment of ship-money (1635).

142

In the supremacy of the constitution are involved
Part
Conse-
I.
three consequences
c<
^jJJt^^'
oonstitution.
The constitution must almost necessarily written " constitution.

The foundations of a
be a
federal state are a compli-
cated contract.
This compact contains a variety of

to,
terms which have been agreed
mature
deliberation,
by the
States which
and generally after make up the

of this kind
confederacy.
To base an arrangement
upon understandings or conventions would be certain to generate misunderstandings and disagreements.
The
articles
of the treaty, or in other words of the
must therefore be reduced to writing. must be a written document, and, if The possible, a written document of which the terms are open to no misapprehension. The founders of the American Union left at least one great question
constitution,
constitution
unsettled.
This gap in the Constitution gave an

if
opening to the dispute which was the plea,

justification, for the
Kigidcon-
not the
War
of Secession.-'
I
The
" rigid "
constituti(jn
^
must be what
have termed a
either legally
or " inexpansive " constitution.
The law of the constitution must be

immutable, or
else capable of
being changed only by

legis-
some authority above and beyond the ordinary
1 No doubt it is conceivable tliat a federation might grow up by the force of custom, and under agreements between different States which were not reduced into writing, and it appears to be questionablehow far the Achsean League was bound together by anything equiva-
It is, however, in the highest degree improbable, even if it be not practically impossible, that in modern times a federal state could be formed without the framing of some document which, whatever the name by which it is called, would be in reality a written constitution, regulating the rights and duties of the federal government and the States composing the Federation. 2 See pp. 87, 121-124, ate.
lent to a written constitution.
PARLIAMENTARY SOVEREIGNTY &> FEDERALISM

lative
143
bodies,
whether federal or state
legislatures,
existing under the constitution.
Chapter "^-
In spite of the doctrine enunciated by some jurists that in every country there must be found some
person or body legally capable of changing every institution thereof, it is hard to see why it should be held inconceivable ^ that the founders of a polity should have deliberately omitted to
provide
means
for
lawfully changing
its
bases.
any Such an
would not be unnatural on the part of the authors of a federal union, since one main object of the States entering into the compact is to prevent further encroachments upon their several state rights and in the fifth article of the United States Constituondission
;
tion
may
still
give to some of
be read the record of an attempt to its provisions temporary immutability.
The
question, however, whether a federal constitu-
tion necessarily involves the existence of
some
ulti-
mate sovereign power authorised

its teirms is
to
amend
or alter
of merely speculative interest, for under
existing federaV governments the constitution will be
found to provide the means for its own improvement.^ It is, at any rate, certain that whenever the founders
1 Eminent American kwyers, whose opinion is entitled to the highest respect, maintain that under, the Constitution there exists no person, or body of persons, possessed of legal sovereignty, in the sense
given by Austin to that term, and

involves
5.
it is difficult
to see that this opinion
of United States, art. would appear further that certain rights reserved under the Constitution of the German Empire to particular States cannot under (See the Constitution be taken away from a State without its assent.
any
absurdity.
Compare Constitution
It
The truth is that a Federal Constitution Bdchsverfasswng, art. 78.) partakes of the nature of a treaty, and it is quite conceivable that the authors of the Constitution may intend to provide no constitutional means of changing' its terms except the assent of all the parties to
;
>
'
'
the treaty.
[2
'
'
See
e.g.
South Africa Act, 1909,
s.
152.]
144
Part
I.
of a federal government hold the maintenance of a
legislative
primary importance, supreme power cannot be safely vested in any ordinary legislature acting under the constitution.^ For so to vest legislative sovereignty would be inconsistent with the aim of federalism, namely, the permanent division between the spheres of the national government and of the several States. If Congress could legally change the Constitution, New York and Massachusetts would have no legal guarantee for the
federal system to be of
amount
of independence reserved to
them under
the
Constitution,
and would be
as subject to the sovereign
power of Congress
of Parliament
state,
;
as is Scotland to the sovereignty
the Union would cease to be a federal

republic.
If,
and would become a unitarian

its
on
the other hand, the legislature of South Carolina
could of
own
will
amend the
;
Constitution, the
authority of the central government would (from a
the United States would sink from a nation into a collection of independent countries united by the bond of a more or Hence the power of amendless permanent alliance.
legal point of view) be illusory
ing the Constitution has been placed, so to speak,

outside
the
Constitution,
and one may
say,
with
sufficient accuracy for

1
our present purpose, that the
legislative
the Constitution of the German Empire the Imperial body can amend the Constitution. But the character of the Federal Council (Bundegrath) gives ample security for the protection of State rights. No change in the Constitution can be effected which is opposed by fourteen votes in the Federal Council. This gives a veto on change to Prussia and to various combinations of some among the other States. The extent to which national sentiment and State patriotism respectively predominate under a federal system may be conjectured from the nature of the authority which has the right to modify the Constitution. See Appendix, Note II., Division of Powers in Federal States.
Under
legal sovereignty of the
States'
(Sr-
FEDERALISM
143
United States resides in the
Chapter
governments as forming one aggregate body

three-fourths of the several States at
represented by
any time belonging to the Union.^
Now
from the
necessity for placing ultimate legislative authority in
some body outside the Constitution a remarkable consequence ensues. Under a federal as under a unitarian
system there exists a sovereign power, but the sovereign
is
in a federal state a despot hard to rouse.
He is
not,
like the
lator,
English Parliament, an ever-wakeful
legis-
but a monarch
who slumbers and
sleeps.
The
sovereign of the United States has been roused to

serious
action but once during the course of

It
more
needed the thunder of the Civil War to break his repose, and it may be doubted whether anything short of impending revolution will ever again arouse him to activity. But a monarch who
than a century.
slumbers for years
is
like a
is
monarch who does not

is
exist.
all
A federal
1
constitution
capable of change, but for
that a federal constitution

"
apt to be unchangeable.^
The Congress, whenever two-thirds of both houses shall deem " it necessary, shall propose amendments to this Constitution, or, on the " application of the legislatures of two-thirds of the several States, shall ' call a convention for proposing amendments, which, in either case, " shall be valid to aU intents and purposes, as part of this Constitution, " when ratified by the legislatures of three-fourths of the several States, " or by conventions in three-fourths thereof, as the one or the other " mode of ratification may be proposed by the Congress ; provided that " no amendments which may be made prior to the year one thousand " eight hundred and eight shall in any manner affect the first and fourth
" clauses in the ninth section of the first article and that no State, " without its consent, shall be deprived of its equal suffrage in the " Senate." Compare Austin, i. Constitution of United States, art. 5.
;
278, and see Bryce, AiMrican Gommonwealth, i. (3rd ed.), chap, xxxii., on the Amendment of the Constitution. [2 Note, however, the ease with which the provisions of the Constitution of the U.S., with regard to the election of Senators by the Legislature and the transference of such election to the people of each State, have been carried through by Amendment ivii., passed in 1913.]
p.
146

Every
legislative
is
Part
Every
I.
assembly existing under a federal
Constitution
merely^ a subordinate law-making
nfder'"'*
federal
constitii-
ôdy, whose laws are of the nature of bye-laws, valid

whilst within the authority conferred
'
upon
it
.
by
the
tionisa
subordi-
constitution, but invalid or unconstitutional if they
nateiaw-
bod^
go bcyond the limits of such authority. There is an apparent absurdity ^ in comparing the legislature of the United States to an English railway
tit-pi
i-
company or a municipal corporation, but the comparison

is just.
Congress can, within the limits of
its legal
powers, pass laws which bind every
man
throughout
the United States.
pany
can, in like
The Great Eastern Eailway Commanner, pass laws which bind every
man
throughout the British dominions.

is
A law passed
;
by Congress which
in excess of its legal powers, as

is
contravening the Constitution,

the powers given
invalid
a law passed
by the Great Eastern Eailway Company in excess of by Act of Parliament, or, in other words, by the legal constitution of the company, is also invalid ; a law passed by Congress is called an "Act" of Congress, and if ultra vires is described as " unconstitutional " a law passed by the Great
;
Eastern Railway
Company
is
is
called
a " bye-law,"
and
if
ultra vires
called,
not "unconstitutional,"
but " invalid."
Differences, however, of words must not conceal from us essential similarity in things.
Acts of Congress, or of the Legislative Assembly

of
New York
1
or
of Massachusetts, are at bottom
simply
This
"bye-laws,"
is
depending
States,
for
their
validity
but it need not necessarily be be a sovereign power but may be so constituted that the rights of the States under the Constitution are practically protected. This condition of things exists in the German 2 gee p. 88, note 1, ante. Empire.
so.
so in the
United
The Federal
Legislature
may
PARLIAMENTARY SOVEREIGNTY &* FEDERALISM 147

upon
gress
their being within the
powers given to Con-
Chapter
tution.
to the state legislatures by the ConstiThe bye-laws of the Great Eastern Eailway Company, imposing fines upon passengers who travel
or
over their line without a ticket, are laws, but they

are
laws depending for their validity upon

of Parliament,
their
being within the powers conferred upon the Com-
pany by Act
constitution.
i.e.
by the Company's
Congress and the Great Eastern Eail-
way Company
are in truth each of them nothing Their more than subordinate law-making bodies. power differs not in degree, but in kind, from the
authority of the sovereign Parliament of the United
Kingdom.^
The
is
distribution of powers
is
an essential feature
Distribu.
of federalism.
The
object for which a federal state
powers.
formed involves a division of authority between
the national government and the separate States. The powers given to the nation form in effect so many
limitations
upon the authority
of the separate States,
government should have the opportunity of encroaching upon the
and
as it is not intended that the central
rights retained
by the
States, its
sphere of action
necessarily becomes the object of rigorous definition.
The
Constitution, for instance, of the United States
delegates special and closely defined powers to the executive, to the legislature, and to the judiciary of
the Union, or in effect to the Union itself, whilst it provides that the powers " not delegated to the United
1 See as to bye-laws made by municipal corporations, and the dependence of their validity upon the powers conferred upon the corporation : Johrmn v. Mayor of Groydon, 16 Q. B. D. 708; Beg. v. See Bryce, Powell, 51 L. T. 92; Munro v. TTaUon, 57 L. T. 366. American Gomrrumwecdth, i. (3rd ed.), pp. 244, 245.
148

by the Constitution nor prohibited by
^
Parti.
States
it
to
the States are reserved to the States respectively or

to the people."
Division
This
tial to
is all
the
amount of
division which
is
essen-
cLriedTn factbeyond
necessary
limit.
a federal constitution.
'^
But the
it
principle of
definition
-w-ith
and limitation of powers harmonises so well

spirit
the federal
that
is
generally carried
much farther than

constitution.
is dictated by the mere logic of the Thus the authority assigned to the is
trated in
United States under the Constitution any single official or body of

President has
definite
rights,
not concen-
officials.
The
upon which neither
Congress nor the judicial department can encroach.
Congress has but a limited, indeed a very limited,
power of legislation,
for it can
topics only; yet within its
make laws upon eighteen own sphere it is inde-
pendent both of the President and of the Federal Courts. So, lastly, the judiciary have their own
powers.
They stand on
a level both with the Presi-
1 Constitution of United States, Amendments, art. 10. See provisions of a similar character in the Swiss Constitution, Constit'ution
Compare the Constitution of the Canadian Dominion, North America Act, 1867, sees. 91, 92. There exists, however, one marked distinction in principle between the Constitution of the United States and the Constitution of the Canadian Dominion. The Constitution of the United States in substance reserves to the separate States all powers not expressly conferred upon the national government. The Canadian Constitution in substance confers upon the Dominion government all powers not assigned exclusively to the Provinces. In this matter the Swiss Constitution follows that of the United States.
Federals, art. 3.
British
The Constitution of the Australian Commonwealth follows in effect the example of the Constitution of the United States. The powers conferred upon the Commonwealth Parliament are, though very large,
the Parliaments of the States are See Commonwealth Act, ss. 51, 52, and 107, and Appendix, Note II., Division of Powers in Federal States, and Note IX., Australian Federalism.
indefinite.
definite; the powers reserved to
PARLIAMENTARY SOVEREIGNTY 6- FEDERALISM
149
dent and with Congress, and their authority (being

directly derived
Chapter
from the constitution) cannot, without
a distinct violation of law, be trenched
the executive or
by the
legislature.
upon either by Where, further,
States are federally united, certain principles of policy

or of justice
must be enforced upon the whole confederated body as well as upon the separate parts thereof, and the very inflexibility of the constitu-
tion tempts legislators to place

articles
among
constitutional
maxims which (though not

have
special claims
in their nature
constitutional)
upon
respect
observance.
Hence
spring additional restrictions
and on
the power both of the federation and of the separate

states.
to
The United States Constitution prohibits both Congress and to the separate States ^ the passing
-^
of a
bill
of attainder or an ex post facto law, the granttitle
ing of any
of nobility, or in effect the laying of
any tax on
articles
exported from any State,^ enjoins
that full faith shall be given to the public acts and judicial proceedings of every other State, hinders any
State from passing any law impairing the obligation of contracts,* and prevents every State from entering
into
any
treaty, alliance, or confederation
thus
it
provides that the elementary principles of justice, freedom of trade, and the rights of individual pro-
perty shall be absolutely respected throughout the It further ensures length and breadth of the Union. of the people to keep and bear arms that the right shall not be infringed, while it also provides that no
member can be
1
expelled from either

2 Hid,., art.
House of Con-
Constitution of United States,

1, sec.
art. 1, sec. 9.
10.
JUd.,
art. 1, sec. 9.
But
conf. art. 1, sec 10.
* iSii., art. 1, sec. 10.
50
The sovereignty of parliament
Parti,
gress without the concurrence of two-thirds of the Other federal constitutions go far beyond House.
that of the United States

stitutional articles
in ascribing
among
con-
either
principles
or
petty rules
which are supposed to have a claim of legal sanc" the Swiss Constitution is full of " guaranteed tity
;
rights.
Nothing, however, would appear to an English critic to afford so striking an example of the connection between federalism and the "limitation of
powers " as the
way
in which the principles of the
America the constituIn no case does the tions of the separate States. legislature of any one State possess all the powers of " state sovereignty " left to the States by the Constitution of the Eepublic, and every state legislature is subordinated to the constitution of the State. ^ The
federal Constitution pervade in
ordinary legislature of
New York
of the
or Massachusetts
it
can no more change the state constitution than

alter the Constitution
can
United States
itself;
and, though the topic cannot be worked out here in

detail, it
may
safely be asserted that state govern-
ment throughout the Union

federal model,
and
constitutions have
Constitution of the
with constitutional
strike
^
formed upon the (what is noteworthy) that state carried much further than the Eepublic the tendency to clothe immutability any rules which
is
the people as important.
Illinois
has em-
Contrast with, this the indefinite powers left to State Parliaments under the Commonwealth of Australia Constitution Act, ss. 106, 107.
The
Constitutionalists of Australia
who
created the
Commonwealth
have been as much influenced by the traditions of English Parliamentary sovereignty as American legislators have in their dealings with the State Constitutions been influenced by the spirit of
federalism.
PARLIAMENTARY SOVEREIGNTY S^ FEDERALISM 151

bodied,
among fundamental
here, as in other
laws, regulations
as to
chapter
elevators.-'
^^
cases, there is great diffieflfect.
But
culty in distinguishing cause and
If a federal
form of government has
affected, as it
probably has,
it is
the constitutions of the separate States,
certain
that features originally existing in the State constitu-
have been reproduced in the Constitution of the and, as we shall see in a moment, the most characteristic institution of the United States, the Federal Court, appears to have been suggested at
tions
Union
least to the founders of the Kepublic,
by the
relation
which before 1789 already existed between the state tribunals and the state legislatures.^ The tendency of federalism to limit on every side the action of government and to split up the strength of the state among co-ordinate and independent
authorities
is
Division of
tinguisiies
from
uui.
specially noticeable, because ' E J
it
forms
,
*"".*"
system of
government.
the essential distinction between a federal system
such as that of America or Switzerland, and a unitarian

1
2
system of government such
as
that which
See
Munn
v. Illinois,
4 Otto, 113.
European critics of American federalism have, as has been well remarked by an eminent French writer, paid in general too little attention to the working and effect of the state constitutions, and have overlooked the great importance of the action of the state legislatures. See Boutmy, Mtvdes de Droit Constitutionnel (2nd ed.), pp. 103-111. " It has been truly said that nearly every provision of the Federal " Constitution that has worked well is one borrowed from or suggested " by some State Constitution ; nearly every provision that has worked " badly is one which the Convention, for want of a precedent, was " obliged to devise for itself." Bryce, American Commonwealth, i. (3rd One capital merit of Mr. Bryce's hook is that it for the ed.), p. 35. first time reveals, even to those who had already studied American institutions, the extent to which the main features of the Constitution of the United States were suggested to its authors by the characteristics of the State governments.
153

England
or
Parti,
exists in
Eussia,
We
talk
indeed of
the English constitution as resting on a balance of

powers, and as maintaining a division between the
executive, the
legislative,
and the
judicial
bodies.
These expressions have a real meaning.
But they
have quite a different significance as applied to England from the sense which they bear as applied to the United States. All the power of the English
state is concentrated in the Imperial Parliament,
all
and
departments of government are legally subject
to Parliamentary despotism.
Our judges
are inde-
pendent, in the sense of holding their
office
by
permanent tenure, and of being raised above the

direct influence of the
judicial
Crown
;
or the Ministry
but the
department does not pretend to stand on a

its
level with Parliament

fied at
functions might be modi;
any time by an Act of Parliament
a statute would be no violation of the law.
and such The
Federal Judiciary, on the other hand, are co-ordinate
with the President and with Congress, and cannot

without a revolution be deprived of a single right by
President or Congress.
So, again, the executive
and
the legislature are with us distinct bodies, but they

are not distinct in the sense in which the President
is
distinct
from and independent of the Houses of
The House of Commons interferes with administrative matters, and the Ministry are in truth placed and kept in office by the House. A modern Cabinet would not hold power for a week if censured by a newly elected House of Commons. An American President may retain his post and exercise his very
Congress.
important functions even though his bitterest opponents command majorities both in the Senate and
PARLIAMENTARY SOVEREIGNTY S^ FEDERALISM 1^2,

in the
short,
House of Representatives. Unitarianism, in means the concentration of the strength of the
Chapter
state in the
hands of one visible sovereign power, be that power Parliament or Czar. Federalism means
of the state
the distribution of the force
among a
number of co-ordinate bodies each originating in and controlled by the constitution. Whenever there exists, as in Belgium or in France,
a more or less rigid constitution, the articles of which
Authority
cannot be amended by the ordinary legislature, the has to be met of guarding against legislaAs Belgian tion inconsistent with the constitution.
difficulty
and French statesmen have created no machinery

for the attainment of this object,
we may conclude
political sanctions,
that they considered respect for the constitution to
be sufficiently secured by moral or
and treated the limitations placed on the power of Parliament rather as maxims of policy than as true During a period, at any rate of more than laws.
sixty years, no Belgian judge
has
(it
is
said) ever
pronounced a Parliamentary enactment unconstituNo French tribunal, as has been already tional. pointed out, would hold itself at liberty to disregard an enactment, however unconstitutional, passed by
the National Assembly, inserted in the Bulletin des Lois, and supported by the force of the government
and French statesmen may well have thought,

Tocqueville
certainly
as
did
think,
that
in
France
possible Parliamentary invasions of the constitution
were a
less evil
than the participation of the judges

France, in short, and Belgium
unitarian
constitutions, the
is
in political conflicts.
being governed under
non-sovereign character of the legislature
in each
154

an accident, not an
essential property of their
Part
I.
case
polity.
Under a
federal system it is otherwise.

is
The
legal
supremacy of the constitution

;
essential to the
existence of the state
the glory of the founders of

to
the United States
is
have devised or adopted
arrangements under which the Constitution became
name the supreme law of the This end they attained by adherence to a very obvious principle, and by the invention of
in reality as well as
land.
appropriate machinery for

into
eflPect.
carrying this principle
How
ofthe
9xerted!^
The
principle is clearly expressed in the Constitu-
tion of the United States.

article 6, "
"The
Constitution," runs
and the laws of the United States which
"shall be
made
in pursuance
thereof
shall be
"the supreme law of the land, and the judges in " every State shall be bound thereby, anything in " the constitution or laws of any State to the con"trary notwithstanding."^
The
import
of
these
expressions is unmistakable. "Every Act of Con" gress," writes Chancellor Kent, " and every Act of
and every part of the "constitution of any State, which are repugnant to "the Constitution of the United States, are neces"sarily void. This is a clear and settled principle
" the legislatures of the States,
The legal duty therefore of every judge, whether he act as a judge of the State of New York or as a judge of the Supreme Court of the United States, is clear. He is
^
" of [our] constitutional jurisprudence."
bound
to treat as void every legislative act,
whether
legis-
proceeding from Congress or from the state

1 Constitution of United States, art. 6. Kent, Oonn/mmXarut, i. (12th ed.), p. 314, and conf.
/W(f., p.
449.
latures,
&
FEDERALISM 155
Chapter
which
is
inconsistent with the Constitution
of the United States.
His duty
is
as clear as that
of an English judge called upon to determine the
made by the Great Eastern or any other Eailway Company. The American judge must in giving judgment obey the terms of the Constitution, just as his English brother must in giving judgment obey every Act of Parliament bearing on
validity of a bye-law
the case.
is
To have laid down the principle with distinctness Supremacy much, but the great problem was how to ensure tution that the principle should be obeyed for there existed cre^fon of a danger that judges depending on the federal ^^1^^ government should wrest the Constitution in favour of the central power, and that judges created by the
;
.States should wrest it in favour of State rights or
problem has been solved by the creation of the Supreme Court and of the Federal
interests.
This
Judiciary.
Of the nature and

itself
position of the
Supreme Court
Nature and
suprenê
thus
much
alone need for our present purpose

derives its existence from the
be noted.
The Court
^"^
Constitution, and stands therefore
on an equality
;
with the President and with Congress the members common with every judge of the Federal Judiciary) hold their places during good behaviour, at
thereof (in
salaries
which cannot be diminished during a judge's tenure of office.^ The Supreme Court stands at the head of the whole federal judicial department, which, extending by its subordinate Courts throughout the
its
Union,, can execute

oflficers
judgments through
its
own
without requiring the aid of state

1
officials.
Constitution of United
States, art. 3, sees. 1, 2.
156

it
Part
I.
The Supreme Court, though

appellate character
;
has a certain amount

its
of original jurisdiction, derives

it is
importance from
its
on every matter which concerns the interpretation of the Constitution a supreme and iinal Court of Appeal from the decision of every Court (whether a Federal Court or a State Court)
throughout the Union.
It is in fact the final inter-
preter of the Constitution,
to pronounce finally as a Court of
and therefore has authority Appeal whether a

or
is
law passed either by Congress or by the legislature of

a State,
e.g.
New
York,
is
not constitutional.
To understand the position of the Supreme Court we must bear in mind that there exist throughout the Union two classes of Courts in which proceedings can
be commenced, namely, the subordinate federal Courts
deriving their authority from the Constitution, and
the state Courts,

created
e.g.
of
New York
or Massachusetts,
by and existing under the state constitutions and that the jurisdiction of the federal judiciary and
the state judiciary
is
in
many
cases concurrent, for
though the jurisdiction of the federal Courts is mainly confined to cases arising under the Constitution and laws of the United States, it is also frequently dependent upon the character of the parties, and though there are cases with which no state Court can
Court may often entertain cases which might be brought in a federal Court, and constantly has to consider the effect of the Constitution on the validity either of a law passed by Congress or of state legislation. That the Supreme Court should be a Court of Appeal from the decision of the subordinate
deal, such a
federal tribunals
is
a matter which excites no surprise.

is
The point
to be noted
that
it is also
a Court of
'
157
Appeal from decisions of the Supreme Court of any State, e.g. New York, which turn upon or interpret the articles of the Constitution or Acts of Congress. The particular cases in which a party aggrieved by
the decision of a state Court has a right of appeal to the Supreme Court of the United States are regulated
chapter
by an Act
of Congress of 24th September 1789, the twenty-fifth section of which provides that " a final
"judgment
or decree, in
any
suit in the highest court
" of law or equity of a State, " error in point of law, to the
may be brought up on Supreme Court of the
" United States, provided the validity of a treaty, or "statute of, or authority exercised under the United " Sta,tes, was drawn in question in the state court, and
"the decision was against that validity; or provided " the validity of any state authority was drawn in " question, on the ground of its being repugnant to the " Constitution, treaties, or laws of the United States,
" and the decision was in favour of its validity ; or pro" vided the construction of any clause of the Constitu" tion or of a treaty, or statute of, or commission held
" under the United States, was drawn in question, and "the decision was against the title, right, privilege,
" or exemption, specially claimed under the authority " of the Union." ^ Strip this enactment of its technicalities
and
it
comes to
this.
party to a case in
the highest Court, say of
New
York,
who
bases his
claim or defence upon an article in the Constitution If or law made under it, stands in this position
:
judgment be in his favour there is no further appeal if judgment goes against him, he has a right of appeal Any to the Supreme Court of the United States.
1
Kent, Commentaries,
i.
(12th
ed.), pp.
299, 300.
158
THE SOVEREIGNTY OF PARLIAMENT how

well devised
is
Part
I.
lawyer can see at a glance
the
arrangement to encourage state Courts in the performance of their duty as guardians of the Constitu-
and further that the Supreme Court thereby becomes the ultimate arbiter of all matters affecting
tion,
the Constitution.
Let no one for a moment fancy that the right of every Court, and ultimately of the Supreme Court, to pronounce on the constitutionality of legislation
and on the
is
rights possessed
by
different authorities
is one rarely exercised, for it which is constantly exerted without exciting any more surprise on the part of the citizens of the Union than does in England a judg-
under the Constitution

in fact a right
ment
of
the
King's
Bench Division treating
as
bye -law of a railway company. The American tribunals have dealt with matters of supreme consequence; they have determined that Congress has the right to give priority to debts due
invalid the
to
the
United
States,^ can
lawfully incorporate a
bank,^ has a general power to, levy or collect taxes
without any restraint, but subject to definite principles of uniformity prescribed by the Constitution the tribunals have settled what is the power of
Congress over the militia,
a right to
who
is
the person
who has
command
it,^
and that the power exercised
by Congress during the War of Secession of issuing paper money was valid.* The Courts again have controlled the power of the separate States fully as
i. (12tli ed.), pp. 244-248. 3 Ibid., 248-254. pp. 262-266. * Story, Gommentaries on the Constitution (4th ed.), ii. sees. 1116, 111 v. See Hepburn v. Oriswold, 8 Wallace, 603, Dec. 1869, and Knox V. Lee, 12 Wallace, 467.
Kent, Gommentaries,
Ibid., pp.
PARLIAMENTARY SOVEREIGNTY &' FEDERALISM 159

vigorously as they have defined the authority of the Chapter
United States.
constitutional
The
judiciary have pronounced un-
every ex post facto law, every law

effect
taxing even in the slightest degree articles exported
from any State, and have again deprived of

state
laws impairing the
obligation
of
contracts.
To
the judiciary in short are due the maintenance of
justice, the existence of internal free trade,
and the
whilst a
general respect for the rights of property
recent decision shows that the Courts are prepared

to
uphold as consistent with the Constitution any
laws which prohibit modes of using private property, which seem to the judges inconsistent with public
interest.^
The power moreover

articles
of the Courts which
maintains the
of the
Constitution as the
law of the land, and thereby keeps each authority within its proper sphere, is exerted with an ease and regularity which has astounded and perplexed continental critics.
'
The explanation
is
that while the
judges of the United States control the action of the Constitution, they nevertheless perform purely judicial
functions, since they never decide anything but the It is natural to say that the cases before them.
Supreme Court pronounces Acts of Congress but in fact this is not so. The Court never
invalid,
directly
pronounces any opinion whatever jipon an Act of What the Court does do is simply to Congress.
determine that in a given case
to recover
A
;
is
or
is
not entitled
judgment against
Court
but in determining
that case the

1
may
decide that an Act of

See especially the Judgof John Marshall
Munn
V.
Illinois,
4 Otto, Kep. 113.
ments of Marshall, C. J., collected in The Writings upon the Federal Constitution (1839).
i6o

is
Part
I.
Congress
not to be taken into account, since

this is a distinction
it is
an
The true
the"found-
Act beyond If any one thinks

difference
the constitutional powers of Congress.^
without a
he shows some ignorance of
politics,
and
United''^
states.
does not understand
how much
confining
the authority of a
its
Court
is
increased
judicial business.
ville,
have
fully
action to purely by But persons who, like Tocqueappreciated the wisdom of the
statesmen
who
created the Union, have formed per-
haps an exaggerated estimate of their originality.

Their true merit was that they applied with extraordinary
skill
the notions which they had inTierited
from English law to the novel circumstances of the new republic. To any one imbued with the traditions of English procedure it must have seemed impossible to let a Court decide upon anything but the case before it. To any one who had inhabited a colony governed under a charter the effect of which on the validity of a colonial law was certainly liable to be considered by the Privy Council, there was nothing startling in empowering the judiciary to pronounce
upon the constitutionality of Acts passed by assemblies whose powers were limited by the Constitution, just as the authority of the colonial legislatures was limited by charter or by Act of Parliament. To a French jurist, indeed, filled with the traditions of the French Parliaments, all this might well be incomprehensible, but an English
in given cases
lawyer can easily see that the fathers of the republic treated Acts of Congress as English Courts treat
bye-laws, and in forming the Supreme Court
may
probably have had in mind the functions of the Privy

1
See Chap.
II. pp.
91-95, Ante.

PARLIAMENTARY SOVEREIGNTY & FEDERALISM i6l
more certain that they had before their eyes cases in which the tribunals of particular States had treated as unconstitutional, and therefore pronounced void, Acts of the state legislature which contravened the state constitution. The earliest case of
Couacil.
It is still
Chapter
declaring a law unconstitutional dates
(it is
said)
from
1786, and took place in Rhode Island, which was then, 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 North Carolina in 1787 and by the Courts of Virginia in
"^
1788,^ whilst the Constitution of the United States was
Madison, the first case in which the Supreme Court dealt with the question of constitutionality, was decided in 1803.^ But if their notions were conceptions derived from English law, the great statesmen of America gave to
not adopted
till
1789, and
Marhury
v.
old ideas a perfectly
new
expansion, and for the
first
time in the history of the world formed a constitution which should in strictness be " the law of the land,"
and
in so doing created
modern
federalism.
For the
essential characteristics of
of the
constitution
the
federalism the supremacy distribution of powers
the
authority
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 British North America Act, 1867,
asserts
1 8
The
flftl
Afi 1 ATI
Dominion,
with diplomatic inaccuracy that the Provinces
Martin, 421. 1 Cranch, 137.
Va, Cas. 198.
For the
facts as to the early action of tie State
Courts in declaring legislative enactments unconstitutional I am indebted, aa for much other useful criticism, to that eminent constitutionalist my friend the late Professor Thayer of Harvard University.
62

Dominion have expressed their desire Dominion " with a constitution principle to that of the United Kingdom."
Part
I.
of the present
to be united into one

similar in
If
preambles were intended to express anything like the whole truth, for the word " Kingdom " ought to
have been substituted " States

features modelled on that
"
:
since
is
it is clear
that
the Constitution of the Dominion
in its essential
of the Union.
This
is
indeed denied, but in
grounds, by competent Canadian
judgment without adequate The differcritics.^ institutions of the United States ences between the and of the Dominion are of course both considerable and noteworthy. But no one can study the provisions of the British North America Act, 1867, without seeing that its authors had the American Constitution constantly before their eyes, and that if Canada were an independent country it would be a Confederacy
governed under a Constitution very similar to that of
the United States.
my
The Constitution
is
the law of
' The difference between the judgment as to the character of the Canadian Constitution formed by myself, and the judgment of competent and friendly Canadian critics, may easily be summarised and
explained.
If
the Dominion,
we look at the federal character of the Constitution of we must inevitably regard it as a copy, though by no
United States. Now work the Canadian Constitution is regarded exclusively as a federal government. Hence ray assertion, which I still hold to be correct, that the government of the Dominion is modelled on that of If, on the other hand, we compare the Canadian Executive the Union. with the American Executive, we perceive at once that Canadian government is modelled on the system of Parliamentary cabinet government as it exists in England, and does not in any wise imitate the Presidential government of America. This, it has been suggested to me by a friend well acquainted with Canadian institutions, is the point of view from which they are looked upon by my Canadian critics, and is the justification for the description of the Constitution of the Dominion given in the preamble to the British North America Act, 1867. The suggestion is a just and valuable one in deference to it some of the expressions used in the earlier editions of this book have undergone aslight modification.
means a
servile copy, of the Constitution of the
in the present
the land
;
<&-
FEDERALISM
163
cannot be changed (except within narrow limits allowed by the British North America Act,
it
Chapter ^"'
1867) either by the Dominion Parliament^ or by the Provincial Parliaments ^ it can be altered only by the
;
sovereign power of the British Parliament.^

this arise
Nor does
pendency.
the
the
New
from the Canadian Dominion being a deNew Zealand is, like Canada, a colony, but Zealand Parliament can with the assent of
the Canadian Parliament cannot
Crown do what
do
change
the colonial constitution.
Throughout
is
the Dominion, therefore, the Constitution

strictest sense the
in the
this
immutable law of the land. Under law again, you have, as you would expect, the
distribution of powers
among
bodies of co-ordinate
though undoubtedly the powers bestowed on the Dominion Government and Parliament are greater when compared with the powers reserved to the Provinces than are the powers which the Constitution of the United States gives to the federal government. In nothing is this more noticeable than in the authority given to the Dominion Governauthority
;
ment
1 s.
to disallow Provincial Acts.^

North America Act, 1867 (30
Vict.
c.
See, however, British
3),
94, which gives the Dominion Parliament a limited power (when acting in conjunction with a Provincial legislature) of changing to a certain extent the provisions of the British North America Act, 1867.
to
2 The legislatures of each Province have, nevertheless, authority make laws for " the amendment from time to time, notwithstanding
[in the British North America Act, 1867] "of the " Constitution of the Province, except as regards the office of Lieutenant "Governor." See British North America Act, 1867, s. 92. ^ See for an example of an amendment of the Dominion Constitution by an Imperial statute, the Parliament of Canada Act, 1875.
"anything"
*
5 ^
British
North America Act, 1867,
sees.
91, 92.
IbH,., sees. 56, 90.
Bourinot, Parliamentary Procedure and Practice in the Dominion
of Canada, p. 76.
64

This right was possibly given with a view to
Parti.
obviate altogether the necessity for invoking the law
Courts
as
interpreters
of
the
Constitution
the
founders of the Confederation, appear in fact to have believed that " the care taken to define the respective
"powers of the several legislative bodies in the " Dominion would Jirevent any troublesome or danger" ons conflict of authority arising between the central " and local governments." ^ The futility, however, of a hope grounded on a misconception of the nature of federalism is proved by the existence of two thick volumes of reports filled with cases on the constitutionality of legislative enactments, and by a long list of decisions as to the respective powers possessed, by the Dominion and by the Provincial Parliaments judgments given by the true Supreme Court of the Dominion, namely, the Judicial Committee of the
Privy Council.
Constitution.
The Swiss
era-
In Canada, as in the United States,
the Courts inevitably become the interpreters of the
Swiss federalism repeats, though with noteworthy

ya^j,ja_|;JQjjg^
tion.^
^jjg csscutial traits
of the federal polity as
it exists
across the Atlantic.
The Constitution
is
the
law of the land, and cannot be changed either by the federal or by the cantonal legislative bodies the
;
Constitution enforces
distribution of powers be-
tween the national government and the Cantons, and directly or indirectly defines and limits the power of every authority existing under it. The
Common Government
America,
1
has
in
Switzerland,
three
organs
as
in a
Federal
Legislature,
Bourinot, Parliamentary Procedure and Practice in the Dominion
of Canada, p. 694.
PARLIAMENTARY SOVEREIGNTY &' FEDERALISM 165

Federal Executive {Bundesrath), and a Federal Court Chapter
(Bundesgericht)
m.
Of the many
arities
interesting and instructive peculiwhich give to Swiss federalism an individual

ti)
character, this is not the occasion

It lies,
write in detail.
however, within the scope of this chapter to note
that the Constitution of the Confederation differs in
two most important respects from that of the United

States.
It does not, in the first place, establish any-
thing like the accurate division between the executive
and the
exercises,
judicial departments of
exists both in
many
America and in under the head of " administrative law," functions ^ of a judicial character, and thus, for
;
government which Canada the Executive
example,
till
1893 dealt in
effect
with questions ^ having
reference to the rights of religious bodies.
The Federal
Assembly
is
the final arbiter on
all
questions as to the
respective jurisdiction of the Executive and of the
Federal Court.
The j udges of that Court are elected by
the Federal Assembly, they are occupied greatly with questions of public law (Staatsrecht), and so experi-
enced a statesman as Dr. Dubs laments that the Federal Court should possess jurisdiction in matters of private When to this it is added that the judgments of law.*
the Federal Court are executed by the government,
at once
it
becomes
clear that, according to
any English
standard, Swiss statesmanship has failed as distinctly

1 Gonstitution FM^rale, art. 113, Loi ; 27 June 1874, art. 59 ; and Dubs, Das offentliche Eecht der schweizerischen Eidgenossenschaft, iL (2nd ed.), p. 90. 2 The decision thereof belonged till 1 893 to the Assembly, guided by the Federal Council ; it now belongs to the Federal Court. See Dubs, ii. pp. 92-95; Lowell, Governments and Parties, ii. pp. 217,
218.
3
Gonstitution FMerale, art.
113
and Dubs,
ii.
(2nd
ed.), pp.
92-95.
i66

American statesmanship
lias
Part
I.
as
succeeded in keeping
the judicial apart from the executive department of
government, and that this failure constitutes a serious flaw in the Swiss Constitution. That Constitution,
in the second place,
does not in reality place the
Federal Court on an absolute level with the Federal
Assembly.
Parliament.''
That tribunal cannot question the con-
stitutionality of laws or decrees passed
by the Federal
might suppose
a
From
this
fact
is
one
not
that the Federal Assembly
(unlike Congress)
so.
sovereign body,
but this
is
The reason
Acts of the Assembly must be treated as constitutional by the Federal Tribunal is that the
all
why
Constitution itself almost precludes the possibility of
encroachment upon
tive body.
its articles
by the
federal legisla-
No
legal revision can take place without
the assent both of a majority of Swiss citizens and of a majority of the Cantons, and an ordinary law
duly passed by the Federal Assembly

annulled by a popular veto.
may
be legally
of the
The authority
Swiss Assembly nominally exceeds the authority of

Congress, because in reality the Swiss legislative body
is
weaker than Congress.

of controlling
For while in each case

action
is
there lies in the background a legislative sovereign
capable
the
of the
far
ordinary
easily
legislature,
the sovereign power
more
brought into play in Switzerland than in America. When the sovereign power can easily enforce its will,
it
may
;
trust to its
own
action for maintaining
its
when, as in America, the same power acts but rarely and with difficulty, the Courts naturally become
rights
1 GonsHtution FMerale, 92-95.
art.
113; and
Dubs,
ii
(2nd ed
)
'
pu ^''
the'
S-
FEDERALISM 167
Chapter "^'
articles of
guardians of the sovereign's will expressed in the the Constitution.
Our survey from

characteristics
'_
a legal point of view of the comto all federal

between ^yftem of
lederalism
^'^^ ^ p*''-
governments forcibly suggests conclusions of more than merely J

"=*='
common
as
to
legal
interest,
T-, lederal
the
-,
comparative
(-n
merits
of
government, and the system of Parliamentary
lianieutary sovereignty.
sovereignty.
Federal government means weak government.^
weakness
"sm!
The
distribution of all the powers of the state
among
of
co-ordinate authorities necessarily leads to the
result that
no one authority can wield the same amount
power as under a unitarian constitution is possessed by the sovereign. A scheme again of checks and balances in which the strength of the common government is so to speak pitted against that of the state
governments
leads,
on the face of
it,
to a certain
waste of energy.
1
federation therefore will always

from two different causes
:
This weakness
springs
first,
the
division of powers between the central government and the States
secondly, the distribution of powers between the different members The (e.g. the President and the Senate) of the national government.
is inherent in the federal system ; the second not (logically at least) inherent in federalism. Under a federal constitution the whole authority of the national government might conceivably be lodged in one person or body, but we may feel almost certain that in practice the fears entertained by the separate States of encroachments by the central government on their State rights will prohibit such a concentration
first
cause of weakness
is
cause of weakness
of authority.
The statement
that federal government
means weak government
.should be qualified or balanced by the consideration that a federal system sometimes makes it possible for different communities to be
when they otherwise could not be united at all. The bond of federal union may be weak, but it may be the strongest bond which circumstances allow. The failure and the calamities of the Helvetic Republic are a warning against the attempt to force upon more or less independent
united as one state
states a greater degree of political unity
than they will
tolerate.
i68
Parti,
be at a disadvantage in a contest with unitarian

states of equal resources.
Nor does
tlie
experience
either of the
United States or of the Swiss con-
federation invalidate this conclusion.
The Union
is
threatened by no powerful neighbours and needs no

foreign
policy.^
Circumstances
unconnected
with
constitutional
arrangements
enable
Switzerland to
preserve her separate existence, though surrounded by
powerful and at times hostile nations.

jealousies
The mutual
moreover incident to federalism do visibly weaken the Swiss Eepublic. Thus, to take one example only, each member of the Executive must belong to a different canton." But this rule may exclude from the government statesmen of high merit, and therefore diminish the resources of the state. A
rule that each
member
of the Cabinet should be the
native of a different county would appear to English-
men
Yet this absurdity is forced upon Swiss politicians, and affords one among numerous instances in which the efficiency of the public
palpably absurd.
service
is
sacrificed to
the requirements of federal

is
sentiment.
Switzerland, moreover,
governed under
a form of democratic federalism which tends towards

unitarianism.
Each
revision increases the authority
of the nation at the expense of cantonal independence.
This
is
no doubt in part due to the desire to strengthen
It is perhaps also due to another circumstance. Federalism, as it defines, and therefore limits, the powers of each depart-
the nation against foreign attack.
ment
^
of the administration,
latter
is
unfavourable to the
perhaps
less true
The
it
part
of
statement
is
in
1908
than
^
was in 1885.
Constitution Fdd&ale, art. 96.
6-
FEDERALISM 169
Hence
Chapter
interference or to the activity of government.
a federal
government can hardly render
services to the
nation
tions
by undertaking
for the national benefit func-
which
may
be performed by individuals.
;
This
may
be a merit of the federal system
it is,
however,
a merit which does not
commend
itself to
modern
democrats, and no more curious instance can be found

of the inconsistent currents of popular opinion which
may
same time pervade a nation or a generaEngland of a vague admiration for federalism alongside with a far more
at the tion than the coincidence in
decided
feeling
against the
doctrines
of so-called
laissez faire.
quo in
politics is incompatible with
system meant to maintain the status schemes for wide

-
social innovation.
Federalism tends to produce conservatism.

This tendency
is
conseirafederalism,
due to several
causes.
The conseen,
stitution of a Federal state must, as
we have
generally be not only a written but a rigid constitution, that is,
a constitution which cannot be changed

of legislation.
by any ordinary process

essential
Now
is
this
rigidity
of federal institutions
almost
im-
certain to impress on the
minds of
citizens the idea

is
that any
provision included in the constitution
mutable and, so to speak, sacred. The least observation of American politics shows how deeply the notion
that the Constitution
is
something placed beyond the
reach of
tion.
amendment has impressed popular imaginaThe difficulty of altering the Constitution
produces conservative sentiment, and national conservatism doubles the difficulty of altering the
Constitution.
centuries
The House of Lords has lasted the American Senate has now existed
for
for
170
Part
I.
more than one hundred years, yet to abolish or alter the House of Lords might turn out to be an easier matter than to modify the constitution of the Senate.^ To this one must add that a federal constitution always lays down general principles which, from being placed in the constitution, gradually come to command a superstitious reverence, and thus are in fact, though not in theory, protected from change or criticism. The principle that legislation ought not to impair obligation of contracts has governed the whole course of American opinion. Of the conservative effect of
such a
tion
maxim when forming an article of the constituwe may form some measure by the following reIf
flection.
any principle of the
like
kind had been

unconstitutional
recognised in England as legally binding on the Courts,
the Irish
Land Act would have been

;
and void
the Irish Church Act, 1869, would, in great

paper, and there
legislating
part at least, have been from a legal point of view so
much waste
difficulty
in
in
would have been great the way in which the

those
English Parliament has legislated for the reform of

the
Universities.
in
is
One maxim only among
embodied
in
the Constitution of the United States

to say, have been sufficient if adopted
would, that
England
to have arrested the
most vigorous
efforts
of recent Parliamentary legislation.

Legal
spirit of
Federalism, lastly, means legalism
.,.
federalism,
nauce of the judiciary in the

valence of a spirit of legality
the predomiconstitution the

.
pre-
among the
people.
That
in a confederation like the
United States the

obvious.
Courts become the pivot on which the constitutional
arrangements of the country turn

reignty
is
is
Soveits
lodged in a body which rarely exerts

[1
See, however, note
^,
p.
145, anie.]
authority and has
existence
;
6r-
FEDERALISM
171
(so
to
speak) only a potential
no legislature throughout the land is more than a subordinate law-making body capable in strictness of enacting nothing but bye-laws
;
Chapter ^^'
the powers of
the executive are again limited
by the constitution the interpreters of the constitution are the judges.

The Bench
therefore can
limits to the authority both of the
and must determine the government and

;
of the legislature
its decision is without appeal the consequence follows that the Bench of judges is not only the guardian but also at a given moment the master of the constitution.^ Nothing puts in a
;
1 The expression " master of the constitution " has been criticised on the ground of exaggeration (Sidgwick, Elements of Politics, p. 616). The expression, however, though undoubtedly strong, is, it is sub-
mitted, justifiable, if properly understood.
It is true, as
my
friend
Mr. Sidgwick well pointed
out, that the action of the
is restrained, first, by the liability of the judges to misconduct, and, secondly, by the fear of provoking disorder. And to The these restraints a third and more efficient check must be added. numbers of the Court may be increased by Congress, and its decision
Supreme Court impeachment for
in a given case has not even in theory that force as a decisive precedent
House of Lords ; hence if the pronounce judgments which ran permanently counter to the opinion of the party which controlled the government of the Union, its action could be altered by adding to the Court (See Davis, lawyers who shared the convictions of the ruling party. American Constitutions; the Relations of the Three Departments as It would be idle therefore to adjusted by a Century, pp. 52-54.) maintain, what certainly cannot be asserted with truth, that the Supreme Court is the sovereign of the United States. It is. Lowever, I conceive, true that at any given moment the Court may, on a case coming before it, pronounce a judgment which determines The decision in the Bred Scott the working of the Constitution.
which is attributable Supreme Court were
to a decision of the
to
Case for example, and still more the judicial opinions delivered in deciding the case, had a distinct influence on the interpretation of In termthe Constitution both by slave-owners and by Abolitionists. ing the Court the "master of the constitution" it was not my intention to suggest the exercise by it of irregular or revolutionary powers.
doubt, again, the Supreme Court may be influenced in delivering judgments by fear of provoking violence. This apprehension is admittedly a limit to the full exercise of its theoretical powers by
No
its
172

light
Parti,
stronger
the
inevitable
connection
between
federalism and the prominent position of the judicial
body than the history of modern Switzerland.

a far less authoritative position than
The
statesmen of 1848 desired to give the Bundesgericht

is possessed by They in effect made the Federal Assembly for most, what it still is for some, purposes, a final Court of Appeal. But the
the American Supreme Court.
were too strong for Swiss statesmanship; the revision of 1874 greatly increased the power of the Federal Tribunal.
necessities of the case
Dangers
from
posi-
From
the fact that the judicial
Bench supports
stress of the con-
under federal institutions the whole

stitutiou, a spccial
juSdary.
danger
arises
lest
the judiciary
should be unequal to the burden laid upon them.
In
no country has greater skill been expended on constituting an august and impressive national tribunal than in the United States. Moreover, as already
pointed out, the guardianship of the Constitution
in
is
America confided not only to the Supreme Court but to every judge throughout the land. Still it is
manifest that even the Supreme Court can hardly
it. No one can doubt that the varying decisions given in the legal-
support the duties imposed upon
the most absolute of despots. It was never my intention to assert that the Supreme Court, which is certainly not the sovereign of the United States, was in the exercise of its functions free from restraints which limit the authority of even a sovereign power. It must further
be noted, in considering how far the Supreme 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, the constitutional limits to the authority of Congress should not be shared by a large
number of American citizens. Whenever in short the Court differed in its view of the Constitution from that adopted by the President or the Congress, the Court, it is probable, could rely on a large amount of popular support.
PARLIAMENTARY SOVEREIGNTY 6- FEDERALISM 173

tender cases, or in the line of recent judgments of
Chapter
show that the men, and when set to determine matters of policy and statesmanship will necessarily be swayed by political feeling and by reasons of state. But the moment that this bias becomes obvious a Court loses its moral authority, and decisions which might be justified on grounds of policy excite natural indignation and suspicion when they are seen not to be fully justified on grounds of American critics indeed are to be found who law. allege that the Supreme Court not only is proving but always has proved too weak for the burden it is called upon to bear, and that it has from the first been powerless whenever it came into conflict with a State, or could not count upon the support of the
which
v. Illinois is
Munn
a specimen,
most honest judges
are after all only honest
Federal Executive.
hit a
These allegations undoubtedly

constitution
of the
force, at
weak spot
Its
in the
great
tribunal.
judgments are without
any
rate as against a State if the President refuses the
means
of
putting
them
into
execution.
"John
;
Marshall," said President Jackson, according to a let current story,^ " has delivered his judgment
him now
was
criticisms
enforce
it,
if
he can
force.
"
never
put
into
and the judgment But the weight of

;
repeated from the earliest days

easily be exaggerated.^
of
the
Union may
1
Laymen
are apt
to mistake the
See
growth of
judicial caution for a sign
W.
G. Sumner, Andrew Jackson, American Statesmen Series,
p. 182. 2 See Davis, American Constitutions; the Relations of the Three DeMr. Davis is distinctly of opinion paHments as adjusted by a Century. power of the Courts both of the United states and of the that the separate States has increased steadily since the foundation of tie
Union.
See Davis, American Constitutions, pp. 56-57^
174

Foreign observers, moreover,
Parti,
of judicial weakness.
should notice that in a federation the causes which

bring a body such as the Supreme Court into existence,
also supply it with a source of ultimate power.
The
Supreme Court and

tectors
institutions like
it
are the pro-
of the federal compact,

is,
and the validity of

It is the interest
that compact
in the long run, the guarantee for
the rights of the separate States.

of every
man who
wishes the federal constitution

the judgments of the federal
It is therefore
to be observed, that
tribunals should be respected.
no bold
assumption that, as long as the people of the United

States
wish to keep
up
the
balanced system of
federalism, they will ultimately compel the central
government to support the authority of the federal

Court.
Critics
of the
Court are almost driven to
American people, are indifferent to The assertion may or may not be true it is a matter on which no English critic should speak with confidence. But censures on the working
assert that the
State Rights.
of a federal Court
tell
very
little
against such an
more than the almost self-evident proposition that a federal tribunal

institution if they establish nothing
will
be ineffective and superfluous when the United Court has no proper place in a unitarian
further,
is
States shall have ceased to be in reality a federation.
A federal
Republic.
Judges,
must
be
appointed
by
some
authority which
not judicial, and where decisions
of a Court control the action of

exists trates
government there
be) with the views
an
irresistible
temptation to appoint magisit
who
agree (honestly
may
of the executive.
strong argument pressed against
PARLIAMENTARY SOVEREIGNTY &- FEDERALISM 175

Mr. Blaine's election was, that tie would have the opportunity as President of nominating four judges,
Chapter
and that a was likely

porations.
companies to pack the Supreme Court with men certain to wrest the law in favour of mercantile cor-
politician allied with railway
The accusation may have been
baseless
the fact that it should have been made, and that even " Republicans " should declare that the time had come when " Democrats " should no longer be excluded
from the Bench of the United States,
tells
plainly
enough of the special against the undoubted

tution.
evils
which must be weighed
benefits of
making the Courts
rather than the legislature the arbiters of the consti-
That a federal system again can flourish only Federalism '^ among communities imbued with a legal spirit and êrfl trained to reverence the law is as certain as can be ôj"*
'^^^^^
any
conclusion of political speculation.
Federalism
regard the
prevail,
substitutes litigation for legislation,
and none but a

to
law-fearing people will
be
inclined
decision of a suit as equivalent to the enactment of

a law.
The main reason why the United States has
carried out the federal system with unequalled success

is
that the people of the Union are more thoroughly

legal
imbued with
nation.
ideas
than any other existing
Constitutional questions arising out of either
the constitutions of the separate States or the articles of the federal Constitution are of daily occurrence
and
constantly
occupy
the
Courts.
citizens
become a people
of constitutionalists,
Hence the and
matters which excite the strongest popular feeling, as, for instance, the right of Chinese to settle in the
country, are determined
by the
judicial Bench,
and
176

is
Parti
the decision of the Bench

people.
acquiesced in
is
by
the
This acquiescence or submission
due to the
Americans inheriting the

law,
i.e.
legal notions of the
common
(if
of the
"most
legal
system of law"
fell
the
expression
ville
may
be allowed) in the world.
Tocquefar short
justice.''
long ago remarked that the Swiss
of the Americans in reverence for law
and
The events
of the last sixty years suggest that he
perhaps underrated Swiss submission to law.

the law to which Switzerland
is
But
accustomed recognises
wide discretionary power on the part of the executive,
and has never

fails,
fully severed the functions of the
judge from those of the government.

federalism
just where one
Hence Swiss
it
would expect
to
fail,
in maintaining that complete authority of the Courts
which
is
necessary to the perfect federal system.
But
the Swiss, though they
may
not equal the Americans
in reverence for judicial decisions, are a law-respecting

nation.
One may
well doubt whether there are
many
states to be
found where the mass of the people would leave so much political influence to the Courts. Yet any nation who cannot acquiesce in the finality of possibly mistaken judgments is hardly fit to form
part of a federal state.^
1 See passage cited, pp. 180-182 fosi. See Appendix, Note VIII., Swiss Federalism.
PAET
II
THE RULE OF LAW
177
CHAPTER
THE RULE OF LAW
:
IV
AND GENERAL
ITS NA.TUEE
APPLICATIONS
Two
features have at
all
times since the
Norman
Chapter
Conquest characterised the

England.
political institutions of
L
lil^^!^
The
first
of these features
is
the omnipotence or
undisputed supremacy throughout the whole country of the central government. This authority of the
was during the earlier periods of our history represented by the power of the Crown. The King was the source of law and the maintainer The maxim of the Courts, toutfuit in luy of order. et vient de lui al commencement,^ was originally the expression of an actual and undoubted fact. This royal supremacy has now passed into that sovereignty of Parliament which has formed the main subject of
state or the nation
the foregoing chapters.^
The second
of these features, which

first, is
is
closely con-
nected with the
the rule or supremacy of law.

is
This peculiarity of our polity

old saw of the Courts,
1
well expressed in the

ley est le plus haute
"La
III.
;
Year Books,
i.
xxiv.
Edward
cited
Gneist,
^
Englische
I.
Ver-
waltungsrecht,
p.
454.
179
See Part
i8o
THE RULE OF LA IV
Part
II.
"inheritance, que le roy ad; car par la ley il mime " et toutes ses sujets sont rulds, et si la ley ne fuit. " nul roi, et nul inheritance sera." ^
This supremacy of the law, or the security given
under the English constitution to the rights of individuals looked at from various points of view, forms
the subject of this part of this treatise.
The
rule
Forcigu obscrvcrs of English manners, such for
Engân'd
example as Voltaire,
far
De
Lolme, Tocqueville, or
Grneist,
fOTdm^^ have been

observers,
Tooque-
more struck than have Englishmen themselvcs with the fact that England is a country governed, as is scarcely any other part of Europe, under the rule of law and admiration or astonishment at the legality of English habits and feeling is nowhere better expressed than in a curious passage from Tocqueville's writings, which compares the Switzerland and the England of 1836 in respect of the spirit which pervades their laws and manners. " I am uot about," he writes, " to compare Switzer;
wintrf*''*
^^
" land "
'
with the United States, but with Great Britain.

the two countries, or even
Uw'in'
Switzer-
contrast
land.
"
if you you perceive, in my judg" mcnt, the most astonishing differences between them, " Take it all in all, England seems to be much more re" publican than the Helvetic Republic. The principal " differences are found in the institutions of the two " countries, and especially in their customs (mceurs).
When you examine
" only pass through them,
"
1.
In almost
is
all
the Swiss Cantons liberty of the
" press
^
a very recent thing.

xix.
Year Books,
i.
Henry
VI., cited
Gneist,
Englische
Verwal-
tungsrecht,
p.
455.
^ Many of Tocqueville's remarks are not applicable to the Switzerland of 1902 ; they refer to a period before the creation in 1848 of the Swiss Federal Constitution.
ITS
NATURE AND GENERAL APPLICATIONS
i8i
" 2. In almost all of them individual liberty is by Chapter '_ " no means completely guaranteed, and a man may " be arrested administratively and detained in prison " without much formality.
3. The Courts have not, generally speaking, a " perfectly independent position.
"
"4. In
"
5.
all
the Cantons trial by jury
is
unknown.
In several Cantons the people were thirty-
" eight years ago entirely without political rights.
"Aargau, Thurgau, Tessin, Vaud, and parts of the " Cantons of Zurich and Berne were in this condition, " The preceding observations apply even more
" strongly to customs than to institutions. " i. In many of the Swiss Cantons the majority of " the citizens are quite without taste or desire for self-
" government, and have not acquired the 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 to take part in "public
affairs
which seem to torment Englishmen
" throughout their lives. " ii. The Swiss abuse the liberty of the press on
"account of its being a recent form of liberty, and " Swiss newspapers are much more revolutionary and " much less practical than English newspapers.
"iii.
The Swiss seem
still
to look
upon
associa-
"tions from
much
is
the same
point of view as the
"French, that
to
say, they consider
them
The
as a
"means
"
of revolution,
and not
as
a slow and sure

art of
method
for obtaining redress of wrongs.
" associating and of making use of the right of asso" ciation is but little understood in Switzerland.
"
iv.
The Swiss do not show the
love of justice
i82
THE RULE OF LA W
is such,
Part
II.
" whicli
a strong characteristic of the English.
have no place in the political arrange"ments of the country, and exert no influence on
" Their Courts
The love of justice, the peaceful "public opinion. " and legal introduction of the judge into the domain " of politics, are perhaps the most standing character" istics of a free people.
" V. Finally,
" the Swiss
and
this really
embraces
all
the rest,
do not show at bottom that respect for
"justice, that love of law, that dislike of using force,
" without which no free nation can exist, which strikes
" strangers so forcibly in England. " I sum up these impressions in a few words. " Whoever travels in the United States is involun" tarily and instinctively so impressed with the fact
and the taste for it have " pervaded all the habits of the American people, that " he cannot conceive of them under any but a Repub" lican government. In the same way it is impossible " to think of the English as living under any but a " free government. But if violence were to destroy the
" Republican institutions in most of the Swiss Cantons, " it would be by no means certain that after rather a
" that the spirit of liberty
" short state of transition the people would not grow
"accustomed to the loss of liberty. In the United " States and in England there seems to be more liberty " in the customs than in the laws of the people. In
" Switzerland there seems to be more liberty in the " laws than in the customs of the country." ^
Bfaringof
viiieTre-
TocqueviUc's language has a twofold bearing on
our prcscnt topic.
His words point in the clearest
meIningof
rule of law.
manner
1
to the rule, predominance, or

ggg Tocqueville, CEuvres Oomplkes,
viii.
supremacy of
455-457
pp.
ITS
183
law as the distinguishing characteristic of English

institutions.
Chapter
^
'
They
further direct attention to the
extreme vagueness of a trait of national character which is as noticeable as it is hard to portray.

Tocqueville,
we
see, is clearly
perplexed
how
to define
a feature of English manners of which he at once recognises the existence

;
he mingles or confuses together

All
the habit of self-government, the love of order, the

respect for justice and a legal turn of mind.
these sentiments are intimately allied, but they cannot
without confusion be identified with each other.

however, a
critic
If,
as
acute
as Tocqueville found a
difficulty in describing
liarities
one of the most marked pecu-
of English
life,
we may
safely conclude that
whenever we talk of Englishmen as loving the government of law, or of the supremacy of

ourselves,
we
law as being a characteristic of the English constitution, are
using words which, though they possess a
real significance, are nevertheless to
employ them
therefore
full
most persons who If of vagueness and ambiguity.
we
are ever to appreciate the full import of
the idea denoted by the term " rule, supremacy, or
predominance of law," we must
first
determine pre-
what we mean by apply them to the British

cisely
such expressions
constitution.
when we
Three
of rule of
When we
law
is
say that the supremacy or the rule of
a characteristic of the English constitution,
we
generally include under

distinct
one expression at least three
We
though kindred conceptions. mean, in the first place, that no
man
is
punish-
Absence of
povveôn
ôvern'-""^
able or can be lawfully
made
to suffer in
body or
goods except for a distinct breach of law established in the ordinary legal manner before the ordinary Courts
^*-
"
84
THE RULE OF LA W
In this sense the rule of law
is
Part
II.
of the land.
contrasted
with every system of government based on the exercise
by persons
in authority of wide, arbitrary, or
discretionary powers of constraint.

Contrast
Modcm
Englishmen may at
first feel
some
surprise
England
Continent
at present
that the " rulc of law " (in the sense in which
we
are
'low using the term) should be considered as in
any
^^j
^ peculiarity of English institutions, since, at the

it
present day,
may seem
to be not so
perty of any one nation as

civilised
and orderly
state.
much the proa trait common to every Yet, even if we confine
our observation to the existing condition of Europe,
we
shall soon be
convinced that the " rule of law

is
even in this narrow sense
peculiar to England, or
to those countries which, like the United States of
America, have inherited English traditions.

far wider
arrest, of
its
In almost matter of
every continental community the executive exercises

discretionary authority in the
temporary imprisonment, of expulsion from territory, and the like, than is either legally
claimed or in fact exerted by the government in
England
and a study of European

is
politics
now and
is
again reminds English readers that wherever there

discretion there
room
republic no less than under a
authority on
the
and that in a monarchy discretionary part of the government must

for arbitrariness,
mean
Contrast
insecurity for legal freedom
on the part of
its
subjects.
If,
howcver, wecoufincdour observation to theEurope
England
nentdun*ng
eighteenth century.
of the twentieth century,

iiiost
we might
'
well say that in
Europcan countrics the rule of law is now nearly ^s wcU established as in England, and that private o ... individuals at any rate who do not meddle in politics
...

ITS
185
have little to fear, as long as they keep the law, either from the Government or from any one else and we might therefore feel some difficulty in understanding
;
Chapter
how
it
ever happened that to foreigners the absence
power on the part of the Crown, of the executive, and of every other authority in England, has always seemed a striking feature, we might almost say
of arbitrary
the essential characteristic, of the English constitution.'
Our perplexity
is
entirely
removed by carrying
back our minds to the time when the English constitution began to be criticised and admired by foreign
thinkers.
During the eighteenth century many of the continental governments wêre far from oppressive, but there was no continental country where men were secure from arbitrary power. The singularity of England was not so much the goodness or the leniency as the legality of the English system of government. When Voltaire came to England and Voltaire represented the feeling of his age his predominant sentiment clearly was that he had passed 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.^
He had good
reason to
know
the difference.
1 " La liberty est le droit de faire tout ce que les loia permettent " et si un citoyen pouvoit faire ce qu'elles d^fendent, il n'auroit plus de " liberty, parce que les autres auroient tout de mSme ce pouvoir." Montesquieu, De I'Esprit des Lois, Livre XL chap. iii. " II y a aussi une nation dans le monde qui a pour objet direct de " sa constitution la liberty politique." The English Ibid. chap. v.
are this nation.

2 " Les circonstances qui contraignaient Voltaire k chercher un " refuge chez nos voisins devaient lui inspirer une grande sympathie ' La " pour des institutions 011 il n'y avait nulle place k I'arbitraire. " raison est libre ici et n'y connalt point de contrainte.' On y respire " un air plus g^n^reux, Ton se sent au milieu de citoyens qui n'ont pas " tort de porter le front haut, de marcher fierement, stirs qu'on n'efit pu
86
THE RULE OF LA W
poem not know
Part
11.
In 1717 Voltaire was sent to the Bastille for a
which he had not written, of which he did the author, and with the sentiment of which he did
not agree.
What
adds to the oddity, in English eyes,

is
that the Regent treated the affair as a sort of joke, and, so to speak, " chaffed " the
of the whole transaction
supposed author of the

about to pay a
seen."^
his country,
satire
"/
Jiave seen" on being
visit to a prison
which he " had not
In 1725 Voltaire, then the literary hero of
was lured off from the table of 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 he complained of this
;
outrage, paid a second
visit
to
the Bastille.
This
indeed was the last time in which he was lodged within

the walls of a French gaol, but his whole
series of contests
life
was a
with arbitrary power, and nothing
but his fame, his deftness, his infinite resource, and

ultimately his wealth, saved
him from
penalties far
more severe than temporary imprisonment.

over, the price at
and
his life
Morewhich Voltaire saved his property was after all exile from France. Whoever
wants to see how exceptional a phenomenon was that supremacy of law which existed in England during
the eighteenth century should read such a book as
Morley's Life
of Diderot.
The
effort
lasting for
twenty-two years to get the Encyclopedie published was a struggle on the part of all the distinguished
literary
men
in France to obtain utterance for their
thoughts.
It is
hard to say whether the
difficulties
" toucher k uii seul oheveu de leur tete,et n'ayant a redoubter nilettres de "cachet, ni captivite immotivê." Desnoiresterres, Voltaire, i. p. 365.
Desnoiresterres,
i.
pp. 344-364.
JTS
or

success of
187
the
the contest
bear
the strongest Chapter
witness to the
wayward
arbitrariness of the
French
Government. Royal lawlessness was not peculiar
to specially
:
detestable naonarchs such as Louis the Fifteenth
it
was
inherent in the French system of administration.

that Louis the Sixteenth at least was
ruler.
An idea prevails
But
it is
not an arbitrary, as he assuredly was not a cruel
an error to suppose that up to 1789 anything like the supremacy of law existed under the French monarchy. The folly, the grievances, and the mystery
of the Chevalier
D'Eon made
as
much noise
little
more
than a century ago as the imposture of the Claimant The memory of these things is not in our own day.
in itself
worth reviving. What does deserve to be kept in remembrance is that in 1778, in the days of Johnson, of Adam Smith, of Gibbon, of Cowper, of
Burke, and of Mansfield, during the continuance of the American war and within eleven years t)f the assembling of the States General, a brave
oflficer
and a
dis-
tinguished diplomatist could for some offence still unknown, without trial and without conviction, be
condemned
torments
to undergo a penance
and disgrace which
could hardly be rivalled by

inflicted
the fanciful caprice of the
by
Oriental despotism.^
be imagined that during the latter part of the eighteenth century the government of France was more arbitrary than that of other countries. To entertain such a supposition is to misconceive utterly
Nor
let it
the condition of the continent.
In France, law and
1 It is worth notice that even after the meeting of the States General the King was apparently reluctant to give up altogether the powers exercised by lettres de cachet. See " Declaration des intentions
du Roi,"
art.
15, Plouard, Les Gonstitutions Franâises, p. 10.
88
THE RULE OF LA W
more than
in
Part n.
public opinion counted for a great deal
Spain, in the petty States of Italy, or in the Principalities of
Germany.
All the evils of despotism which
attracted the notice of the world in a great
kingdom
it
such as France existed under worse forms in countries

where, just because the evil was so
attracted the less attention.
much
greater,
monarch was
criticised
The power of the French more severely than the lawdespotically
lessness of a score of petty tyrants, not because the
French King ruled
more
than other
crowned heads, but because the French people appeared from the eminence of the nation to have a
special claim to freedom, and because the ancient kingdom of France was the typical representative of
despotism.
This explains the

all
thrill of
enthusiasm
Europe greeted the fall of the Bastille. When the fortress was taken, there were not ten prisoners within its walls at that very moment hundreds of debtors languished in English gaols. Yet all England hailed the triumph of the French populace with a fervour which to Englishmen of the
with which
;
twentieth century
hensible.
is
at
first
sight hardly compre-
Reflection
makes
clear
enough the cause
of a feeling which spread through the length and
breadth of the civilised world.
The
Bastille
was
Its
the outward and visible sign of lawless power.

fall
was felt, and felt truly, to herald in for the rest of Europe that rule of law which already existed in
England.^
1 For English sentiment with French, see GoUsmith, Citizen of
reference to the servitude of the World, iii. Letter iv. ; and see Ibid., Letter xxxvii. p. 143, for a contrast between the execution of Lord Ferrers and the impunity with which a French nobleman was
the
allowed to commit murder because of his relationship to the Royal
ITS
189
We mean in the second place/ when we speak of Chapter ' the " rule of law " as a characteristic of our country,
not only that with us no
(what
is
above the law, but a different thing) that here every man,
is
is
man
î^'ecttr
whatever be his rank or condition,

diction of the ordinary tribunals.
subieet to the
laâdSni^^^^^ ^^
ordinary
tribunals,
ordinary law of the realm and amenable to the juris-
In England the idea of legal equality, or of the

universal subjection of
stered
all classes to
one law admini-
utmost
is
by the ordinary Courts, has been pushed to its limit. With us every official, from the Prime
Minister
down
to a constable or a collector of taxes,
under the same responsibility for every act done without legal justification as any other citizen. The Eeports abound with cases in which officials have been brought before the Courts, and made, in their personal capacity, liable to punishment, or to the payment of damages, for acts done in their official
character but in excess of their lawful authority.
colonial governor,^ a secretary of state,^ a military

officer,*
and
act
all
subordinates, though carrying out the
commands
for
of their official superiors, are as responsible
which the law does not authorise as is any private and unofficial person. Officials, such for
any
family
and
for
the
general
state
of
feeling throughout Europe,
Tocqueville, (Euvres OomplHes,
viii.
law in
this sense implies, or is
The idea of the rule of pp. 57-72. at any rate closely connected with, the
absence of any dispensing power on the part either of the Crown or See Bill of Rights, Preamble 1, Stubbs, Select Charters its servants. (2nd ed.), p. 523. Compare Miller v. Knox, 6 Scott, 1 AttorneyGeneral V. Kissane, 32 L.E. Ir. 220.
;
For first meaning see p. 183, ante. Musgrave Mostyn V. Fahregas, Cowp. 161 Governor Wall's Case, 28 St. Tr. 51. Cas. 102 3 Enticlc V. Garrington, 19 St. Tr. 1030.
1
v.
Pulido, 5 App.
Phillips V. Eyre, L. R., 4 Q. B. 225.

190
THE RULE OF LA W
soldiers
it is
^
Part
II.
example as
or clergymen of the Established

true,
Church, are,
nation,
in
England
as
elsewhere,
subject to laws which do not affect the rest of the
and are in some instances amenable to
tri-
bunals which have no jurisdiction over their fellow-
countrymen ofl&cials, that is to say, are to a certain extent governed under what may be termed official But this fact is in no way inconsistent with the law. 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 liabilities from
;
;
which other men are exempt, he does not (speaking generally) escape thereby from the duties of an
ordinary citizen.
Contrast in this respect
between
andFrance.
pi/-,i oi law (in the

term)
is
An Englishman
a trait
naturally imagines that the rule
scuse in which
we
are
now
using the
common
to
all civilised societies.
But
is erroneous. Most European nations had indeed, by the end of the eighteenth century, passed through that stage of development (from which England emerged before the end of the sixteenth century) when nobles, priests, and others could defy But it is even now far from universally the law.
this supposition
true that
in
continental
countries
all
persons
are
subject to one and the

are
same law, or that the Courts

the
state.
supreme
with
throughout
substantial
If
state,
France as the type of a continental

assert,
we take we may
persons
accuracy,
that
officials
all
under which
word should be included
employed in the 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 the
1
As
to the legal position of soldiers, see Chaps.
VIII. and IX.
'posi.
ITS

of the
191
jurisdiction
ordinary tribunals, and subject Chapter
in certain respects only to official law administered
by
official bodies.^
Srd
^J^**fj^ are result of ordinary law of the
There remains yet a third and a different sense in
which the " rule of law" or the predominance of the legal spirit may be described as a special attribute of
English institutions.
tion is
We may
say that the constitu-
pervaded by the rule of law on the ground

liberty,
that the general principles of the constitution (as for
example the right to personal
or the right
of public meeting) are with us the result of judicial

decisions determining the rights of private persons in
whereas under many foreign constitutions the security (such

particular cases brought before the Courts
^
;
as
it is)
given to the rights of individuals
results, or
appears to result, from the general principles of the

constitution.
This
is
one portion at least of the fact vaguely
hinted at in the current but misguiding statement

that " the constitution has not been
made but has
"grown."
This dictum,
if
taken
literally, is absurd.
" Political institutions (however the proposition may " be at times ignored) are the work of men, owe their
" origin and their whole existence to human will. " Men did not wake up on a summer morning and
"find them sprung up.
Neither do they resemble

'
'
" trees, which, once planted, are aye growing while " men 'are sleeping.' In every stage of their existence
^
See Chapter XII. as to the contrast between the rule of law and
foreign administrative law.

2
Compare
;
Calvin's Case, 7 Coke, Rep. 1
Campbell
v.
v.
Hall, Cowp.
204
Wilkes
v.
Wood, 19
St. Tr.
1153
Mostyn
Fahregas, Cowp. 161.
and the
Parliamentary declarations of the law such as the Petition of Right Bill of Rights have a certain affinity to judicial decisions.
192
THE RULE OF LA W
Part
II.
"they are made what they are by human voluntary

" agency."
^
Yet, though this

of a government
closely
is
is
so,
the
dogma
that the form
a sort of spontaneous
life
growth
will
so
bound up with the

it
of a people that
we
and
can hardly treat
as a product of
human
energy, does, though in a loose and inaccurate fashion,
bring into view the fact that some polities, and
among
them the English
constitution,
have not been created

of that term, are the
at one stroke, and, far from being the result of legislation, in the ordinary sense
fruit of contests carried
on in the Courts on behalf of
the rights of individuals.
Contrast
theEngiish
constitu-
Our constitution, in short, is a judge-made constitution, and it bears on its face all the features, good and bad, of judge-made law. Heuce flow notcworthy distinctions between the Constitution of England and the constitutions of most
There
is
tion
and
foreign countries. o
in the English constitution "
_
Foreign
constitutions.
an absence of
those declarations or definitions of rights so dear to

foreign constitutionalists.
Such
principles, moreover,
as you can discover in the English constitution are,

all maxims established by judicial legislation, mere generalisations drawn either from the decisions or dicta of judges, or from statutes which, being passed to meet special grievances, bear a close resemblance to judicial decisions, and are in effect judgments pronounced by the High Court of Parliament. To put what is really the same thing in a somewhat
like
different shape, the relation of the rights of individuals
to the principles of the constitution
is
not quite the
same
in countries like Belgium,

^
where the constitution
Mill, Representative Oovernment, p. 4.
ITS
is

it
193
the result of a legislative act, as

itself
is
is
in England,
Chapter
where the constitution

decisions.
based
upon
legal
In Belgium, which
may be
taken as a type
of countries possessing a constitution formed by a

deliberate act of legislation,
you may say with truth

In England
that the rights of individuals to personal liberty flow
from or are secured by the constitution.

the right to individual liberty
tion,
is
part of the constitu-
because
it
is
secured by the decisions of the
Courts, extended or confirmed as they are
by the
Habeas Corpus
this
Acts.
If it be allowable to
apply the
formulas of logic to questions of law, the difference in
matter between the constitution of Belgium and
the English constitution
may
be described by the
statement that in Belgium individual rights are de-
drawn from the principles of the constitution, whilst in England the so-called principles of the constitution are inductions or generalisations based upon particular decisions pronounced by the Courts as to
ductions
the rights of given individuals.
This
Liberty
is
is
of
course
a merely formal
difference.
Belgium as in England, and as long as this is so it matters nothing whether we say that individuals are free from all risk of arbias well secured in
trary arrest, because liberty of person
is
guaranteed
by the
constitution,
or that the right to personal
freedom, or in other words to protection from arbitrary arrest, forms part of the constitution because
is
it
secured
this
by the ordinary law of the
land.
But
merely formal distinction is in itself of no though moment, provided always that the rights of individuals are really secure, the question whether the right to
personal freedom or the right to freedom of worship
is
194
THE RULE OF LA W
depend a good deal upon the
Part II
likely to be secure does
answer to the inquiry whether the persons who consciously or unconsciously build
up the constitution of
their country begin with definitions or declarations of

rights, or
with the contrivance of remedies by which

or secured.
rights
may be enforced
For
this
Now, most
foreign
constitution-makers have begun with declarations of

rights.
they have often been in nowise
to
blame.
Their course of action has more often
than not been forced upon them by the stress of
by the consideration that to lay is the proper and natural function of legislators. But any knowledge of history sufl&ces to show that foreign constitutionalists have,
circumstances, and
down
general principles of law
while occupied in defining rights, given insufficient

attention to the absolute necessity for the provision
of adequate remedies
claimed might be
enforced.
by which the rights they proThe Constitution of
1791 proclaimed liberty of conscience, liberty of the

press, the right of public meeting, the responsibility
of government
officials.-'
period in the recorded annals of
But there never was a mankind when each
and
all
of these rights were so insecure, one might
almost say so completely non-existent, as at the

height of the French Eevolution.
And
an observer
these
may
well doubt whether a good

or rights are even
number of
so well
liberties
now
protected
under the French Eepublic as under the English Monarchy. On the other hand, there runs through
tlie
English constitution that inseparable connection
between the means of enforcing a right and the right

1 See Plouard, ies Constitutions Frangaues, pp. 14-16 ; Duguit and Monnier, Les Constitutions de la France (2nd ed.), pp. 4, 5.
ITS
195
which is the strength of judicial legislation. The saw, uhijus ihi remedium, becomes from this point of view something much more important than a mere tautologous proposition. In its bearing upon constitutional law, it means that the Englishto be enforced
chapter
^^'
men whose
set of laws
labours gradually framed the complicated
which we call the Constitution, fixed their minds far more intently o;i providing remedies for the enforcement of particular rights or (what is merely the same thing looked at from the
and
institutions
other side) for averting definite wrongs, than upon
any declaration of the Eights of Man or of Englishmen. The Habeas Corpus Acts declare no principle and define no rights, but they are for practical purposes worth a hundred constitutional articles guaran-
Nor let it be supposed that between rights and remedies which depends upon the spirit of law pervading English
teeing individual liberty.
this connection
institutions is inconsistent with the existence of a
written constitution, or even with the existence of

constitutional declarations of rights.
The Constitu-
tion of the United States and the constitutions of the
separate States are embodied in written or printed
documents, and contain declarations of
rights.-'
But
1 The Petition of Right, and the Bill of Eights, as also the American Declarations of Rights, contain, it may be said, proclamations of general principles which resemble the declarations of rights known to foreign constitutionalists, and especially the celebrated Declaration of the Rights
Man (Becla/ration des Droits de VHomme et du Citoyen) of 1789. But the English and American Declarations on the one hand, and foreign declarations of rights on the other, though bearing an apparent resemblance to each other, are at bottom remarkable rather by way
of
The Petition of Right and the Bill of of contrast than of similarity. Rights are not so much " declarations of rights " in the foreign sense
of the term, as judicial condemnations of claims or practices on the It will be part of the Crown, which are thereby pronounced illegal.
196
THE RULE OF LA W
Part
II.
the statesmen of America have shown unrivalled skill

in providing
means for giving legal security to the The rule rights declared by American constitutions. of law is as marked a feature of the United States as
of England.
The
fact, again,
that in
many
foreign countries the
rights of individuals, e.g. to personal freedom,
depend upon the constitution, whilst in England the law of

is little
the constitution
else
than a generalisation of
the rights which the Courts secure to individuals, has
The general rights guaranteed by the constitution may be, and in foreign countries constantly are, suspended. They are something exthis
important
result.
traneous to and independent of the ordinary course of the law.
The declaration of the Belgian

is
constitution,
that individual liberty
" guaranteed," betrays a
way
of looking at the rights of individuals very different
from the way in which such rights are regarded by English lawyers. We can hardly say that one right is more guaranteed than another. Freedom from
arbitrary arrest, the right to express one's opinion on
all
matters subject to the liability to pay compensa-
punishment for seditious or blasphemous statements, and the right to enjoy one's own property, seem to Englishmen all to rest upon the same basis, namely, on the law of the land. To
tion for libellous or to suffer
say that the " constitution guaranteed
"
one
class of
found that every, or nearly every, clause in the two celebrated documents negatives some distinct claim made and put into force on behalf of the prerogative. No doubt the Declarations contained in the American Constitutions have a real similarity to the continental declarations of rights. They are the product of eighteenth-century ideas; they have, however, it is submitted, the distinct purpose of
legally controlling the action of the legislature
by the
Articles of the
Constitution.
ITS
rights

to
197
an Englishman an unnatural or a senseless form of speech. In the Belgian constitution the words have a definite
meaning.
more than the other would be
Chapter
L.
They imply that no law invading personal freedom can be passed without a modification of the constitution made in the special way in which alone
the constitution can be legally changed or amended.
This, however, is not the point to
which our immediate

is
attention should be directed.

is,
The matter to be noted

a
that where the right to individual freedom
result
deduced from the principles of the constitution,

is
the idea readily occurs that the right
capable of
being suspended or taken away. Where, on the other hand, the right to individual freedom is part of the
constitution because
it is
inherent in the ordinary law
of the land, the right is one which can hardly be destroyed without a thorough revolution in the in-
and manners of the nation. The so-called "suspension of the Habeas Corpus Act" bears, it is true, a certain similarity to what is called in foreign
stitutions
countries " suspending the constitutional guarantees."
But, after
all,
a statute suspending the
Act falls very far short of and though a serious measure seems to imply enough, is not, in reality, more than a suspension
;
Habeas Corpus what its popular name
remedy for the protection of The Habeas Corpus Act may personal freedom. yet Englishmen may enjoy almost be suspended and The constitution being all the rights of citizens.
of
one particular
based on the rule of law, the suspension of the constitution, as far as such a thing can be conceived possible, would mean with us nothing less than a
revolution.
THE RULE OF LA W
Part
II.
summary
tagTof" Rule of
That "rule of law," then, which forms a fundamental principle of the constitution, has three meanii^gS) o'^ ^y ^6 regarded from three diflFerent points
of ^-g^^
It
Law
means, in the
first place,
the absolute suprem-
acy or predominance of regular law as opposed to the

influence of arbitrary power,
and excludes the
exist-
ence of arbitrariness, of prerogative, or even of wide

discretionary authority on the part of the
govern-
Englishmen are ruled by the law, and by the a man may with us be punished for a breach of law, but he can be punished -for nothing
ment.
law alone
else.
It
means, again, equality before the law, or the

all classes to
equal subjection of
the ordinary law of
the land administered by the ordinary Law Courts the " rule of law " in this sense excludes the idea of
any exemption of
ofiicials
or others
from the duty
of
obedience to the law which governs other citizens or
from the jurisdiction of the ordinary tribunals there can be with us nothing really corresponding to the " administrative law " {droit administratif) or the
;
" administrative tribunals" (iW^Mnaita? administratifs)

of France.^ The notion which lies at the bottom of the " administrative law " known to foreign countries
is,
that affairs or disputes in which the government

its
or
servants are concerned are beyond the sphere

civil
of the
Courts and must be dealt with by special

This idea
is
and more
or less official bodies.
utterly
unknown to the law of England, and indeed is fundamentally inconsistent with our traditions and customs. The "rule of law," lastly, may be used as a
1
See Chap. XII.
"
ITS
199
formula for expressing the fact that with us the law

of the
constitution,
Chapter
!
the
rules
whicli
in
foreign
countries naturally form part of a constitutional code,

are not the source but the consequence of the rights
of individuals, as defined
that, in short, the principles of private
and enforced by the Courts law have with us been by the action of the Courts and Parliament so extended as to determine the position of the Crown
;
and of
its
servants
thus the constitution
is
the
result of the ordinary law of the land.
General propositions, however, as to the nature of If we the rule of law carry us but a very little way.
influence
of
Law
want
understand what that principle in all its different aspects and developments really means, we must try to trace its influence throughout some of
to
provlsionf
^0'''*""
the main provisions of the constitution.
The
best
mode
of doing this
is
to
manner
in which the law of
examine with care the England deals with the

\
following topics, namely, the right to personal freedom ; ^ the right to freedom of discussion ; ^ the right
of public meeting
rights
the use of martial law

;
the
;
and duties of the army
the collection and

;
expenditure of the public revenue ^ and the responThe true nature further of the sibility of Ministers.'^
rule of
law as it exists in England will be illustrated by contrast with the idea of droit administratif, or administrative law, which prevails in many continental
These topics will each be treated of in The object, however, of this treatise, their due order.
countries.*
1
Chap. V. Chap. VIII. 1 Chap. XI.
Chap. VI. 5 Chap. IX.

^
Chap. VII. Chap. X. Chap. XIT.
THE RULE OF LA W
Part
II.
as the
reader should remember,

full
is
not to provide
minute and
information,
e.g.
as to the
Habeas
Corpus Acts, or other enactments protecting the but simply to show that these liberty of the subject leading heads of constitutional law, which . have
;
been enumerated, these " articles," so to speak, of the constitution, are both governed by, and aflford illustrations of, the supremacy throughout English institutions of the
law of the land.^
If at
some future day
the law of the constitution should be codified, each

of the topics I have mentioned
would be dealt with

of these subjects
by the
sections of the code.
Many
are actually dealt with in the written constitutions

of foreign countries,
and notably
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 to

take the article of the Belgian, or
other
constitution,
it
may
be of some
which
bears
on the matter in
hand, as for example the right to personal freedom, and to consider how far the principle therein em-
bodied
it
is
recognised
by the law
of
England
and
if
be so recognised, what are the means by which

is
it
maintained or enforced by our Courts.
One
1 The rule of equal law is in England now exposed to a new peril. " The Legislature has thought fit," writes Sir F. Pollock, " by the Trade Disputes Act, 1906, to confer extraordinary immunities on combinations both of employers and of workmen, and to some extent Legal science has evidently on persons acting in their interests. nothing to do with this violent empirical operation on the body politic, and we can only look to jurisdictions beyond seas for the further judicial consideration of the problems which our Courts were endeavouring (it is submitted, not without a reasonable measure of success) to work out on principles of legal justice." Pollock, Law of
Torts (8th ed.), p. v.
ITS
reason

the law of the constitution
is,
201
why
is
imperfectly Chapter
it
understood
that
we
too
rarely
put
is
side
'_
by
side with the constitutional provisions of other
countries.
Here, as elsewhere, comparison
essential
to recognition.
CHAPTEE V
THE RIGHT TO PERSONAL PaEEDOM
Part
II.
The seventh
establishes in
article
of the
Belgian
constitution
Security
that
country principles which have
sona^TeeBeiTian'^^'^
long prevailed in England.

curiously iUustratc
.
by way
of contrast
The terms thereof so some marked
constitution.
features of English constitutional law as to be worth
quotation. " Art. 7.

"
La
liberie individuelle est garantie.
Nul ne peut Hre poursuivi que dans les cas " prevus par la hi, et dans la forme qu'elle prescrit. " Hors le cas de flagrant delit, nul ne peut etre
" arrete qu'en vertu de I'ordonnance motivee dujuge,
" qui doit itre signifiee an moment de V arrestation, on " au plus tard dans les vingt-quatre heures." ^
How
England."
which an Englishman enjoys for personal freedom does not really depend upon or originate in any general proposition contained in any written document. The nearest approach which our
security
The
statute-book presents to the statement contained in
the seventh article of the Belgian constitution

celebrated thirty-ninth article
^
is
the
of the
Magna Charta
Constitution de la Belgique, art. 7.

ed.), p. 301.
See Stubbs, Charters (2nd
^
THE RIGHT TO PERSONAL FREEDOM
"
203
Nullus
liber
homo capiatur,
vel imprisonetur, aut
Chapter
" dissaisiatur, aut utlagetur, aut exuletur, aut aliquo
modo destruatur, nee super cum ibimus, nee super " eum mitteTTVus, nisi per legale judicium parium
"
"
suorum
vel
per legem
terrae,"
which should be read

(if
in combination with the declarations of the Petition
of Right.
And
these enactments
such they can
be called) are rather records of the existence of a
which confer it. The expression again, "guaranteed," is, as I have already pointed
right than statutes
out,
extremely significant
is
it
suggests the notion
that personal liberty
a special privilege insured to

of
Belgians
the land.
by some power above the ordinary law

This
is
an idea utterly alien to English

since with us freedom of person
is
modes of thought,
not a special privilege but the outcome of the ordinary
law of the land enforced by the Courts.

short,
Here, in
we may observe
the application to a particular
case of the general principle that with us individual

rights are the basis, not the result, of the law of the
constitution.
The proclamation
in a constitution or charter of
the right to personal freedom, or indeed of any other right, gives of itself but slight security that the right has more than a nominal existence, and students who wish to know how far the right to freedom of person
is
in reality part of the
law of the constitution must
consider both
what
is
the meaning of the right and,
a matter of even more consequence, what are the
methods by which its exercise is secured. The right to personal liberty as understood in England means in substance a person's right not
legal
to
be subjected to imprisonment,
arrest,
or other
204
THE RULE OF LA W
manner that does not admit That anybody should sufier in England 'prima facie illegal, (speaking in very general terms)
is
physical coercion in any

of legal justification.
physical restraint
is
and can be justified on two grounds only, that
to say, either because

is
the prisoner or person sufiering restraint
accused of
some
ofi'ence
and must be brought before the Courts

trial,
to stand his
or because he has been duly con-
victed of some offence and

for
it.
must
sufi'er
punishment
Now
personal freedom in this sense of the
term
is
secured in England by the strict maintenance
of the principle that no
man
can be arrested or imi.e.
prisoned except in due course of law,
(speaking
again in very general terms indeed) under some legal
warrant or authority,^ and, what

sequence,
legal
is
of far
more con-
it is secured by the provision of adequate means for the enforcement of this principle. These methods are twofold ^ namely, redress for unlawful arrest or imprisonment by means of a prosecution or an action, and deliverance from unlawful imprisonment by means of the writ of habeas corpus. Let us examine the general character of each of these
;
remedies.
i.
Redress for Arrest.
in a wide sense,
we may say
suffered a
wrong obtains
we use the term redress that a person who has redress either when he gets
If
1 See as to arrests, Stephen, Commentaries, iv. (14th ed.), pp. 303-312. 2 Another means by which personal liberty or other rights may be protected is the allowing a man to protect or assert his rights by force against a wrongdoer without incurring legal liability for injury done to the aggressor. The limits within which English law permits
so-called
" self-defence," or,
more
accurately, " the assertion of legal

force," is
rights
by the use of a
legal questions.
one of the obscurest among See Appendix, Note IV., Right of Self-Defence.
person's
own

the wrongdoer punished or tion for the
205
damage
inflicted
when he obtains compensaupon him by the wrong.
Chapter ^'
to every one
Each of these forms of redress is in England open whose personal freedom has been in any
-unlawfully interfered
way
with.
Suppose, for ex-
ample, that
X
be
without legal justification assaults A,
by knocking him down,

whether
minutes;
it
or deprives of his freedom as the technical expression goes, " imprisons " him
for a length of time, or only for five
has two courses open to him.
He
can
have
X convicted of an assault and thus cause him to

and obtain from such comthe damage which A has sustained from
be punished for his crime, or he can bring an action

of trespass against
pensation for
X?, conduct as a jury think that A deserves. Suppose that in 1725 Voltaire had at the instigation of
an English lord been treated in London as he was He would not have needed to treated in Paris. depend for redress upon the goodwill of his friends He could have or upon the favour of the Ministry. pursued one of two courses. He could by taking the proper steps have caused all his assailants to be brought to trial as criminals. He could, if he had preferred it, have brought an action against each and he could have sued the nobleman who all of them
:
caused him to be thrashed, the footmen who thrashed him, the policemen who threw him into gaol, and the Notice gaoler or lieutenant who kept him there.
particularly that the action for trespass,
to which would have had recourse, can be brought, Voltaire
or,
as the technical expression goes, "lies," against
It can and has every person throughout the realm. been brought against governors of colonies, against
2o6
THE RULE OF LA W
who have
tried
Part
II.
secretaries of state, against oJBficers
by Court-martial persons not subject to military law, Here then against every kind of official high or low.
we come
across another aspect of the " rule of law."

if
No
one of Voltaire's enemies would,
he had been
in
injured in England, have been able to escape from

responsibility
on the plea of acting

his
an
official
character or in obedience to
official
superiors.''
them have been able to say that the degree of his guilt could in any way whatever be determined by any more or less official Court. Voltaire, to keep to our example, would have been able in England to have brought each and all of his assailants, including the officials who kept him in prison, before an ordinary Court, and therefore before judges and jurymen who were not at all likely to think
Nor would any one
of
that
official zeal
or the orders of
official
superiors were
either a legal or a moral excuse for breaking the law.
Before quitting the subject of the redress affi)rded

ference with
by the Courts for the damage caused by illegal interany one's personal freedom, we shall do
two maxims or
principles
well to notice the strict adherence of the judges in

this as in other cases to
which underlie the whole law of the constitution, and the maintenance of which has gone a great way both
to ensure the
ultimately to curb the arbitrariness
supremacy of the law of the land and of the Crown.
The
first
of these
is
maxims
or principles
is
that every
wrongdoer
ful or
is
individually responsible for every unlaw-
wrongful act in which he takes part, and, what
really the
same thing looked at from another point

if
of view, cannot,
1
the act be unlawful, plead in his

(7o(fo
Contrast the French
Pinal, art. 114.

defence that he did
it
207
under the orders of a master or superior. Voltaire, had he been arrested in England, could have treated each and all of the persons engaged in the outrage as individually responsible for Now this doctrine of indithe wrong done to him.
vidual responsibility
legal
is
Chapter
!_
the real foundation of the
dogma
that the orders of the

for the
King himself
are
no justification
illegal act.
commission of a wrongful or
rule, therefore, that
The ordinary
every
wrongdoer is individually liable for the wrong he has committed, is the foundation on which rests the
great constitutional doctrine of Ministerial responsibility.
The second
of these noteworthy
maxims
is,
that the Courts give a remedy for the infringement

of a right whether the injury done be great or small.
and imprisonment from which Voltaire but it would be an sufi'ered were serious wrongs as persons who have no experience in error to fancy,
The
assaults
the practice of the Courts are apt to do, that proceedings for trespass or for false imprisonment can be
taken only where personal liberty is seriously interNinety-nine out of every hundred fered with. actions for assault or false imprisonment have referIf ence to injuries which in themselves are trifling. one rufl&an gives another a blow, if a policeman makes
an arrest without lawful authority,
if
a schoolmaster
keeps a scholar lo.cked up at school for half an hour after he ought to have let the child go home,^ if
in short
X interferes unlawfully
suff"erer, if
1
to
however
slight a
degree with the personal liberty of A, the offender exposes himself to proceedings in a Court of law,
and the
he can enlist the sympathies of

v.
Ennter
Johnson, 13 Q. B. D. 225.
2o8
THE RULE OF LA W
Part
11.
a jury,
may
recover heavy damages for the injury
which he has or is supposed to have suffered. The law of England protects the right to personal liberty, 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 same degree of punishment or penalty) for the pettiest as for the This seems to gravest invasions of personal freedom.
us so
much
a matter of course as hardly to call for

it
observation, but
may
be suspected that few features
in our legal system have
done more to maintain the

all
authority of the law than the fact that
offences
great and small are dealt with on the same principles
and by the same Courts. The law of England now knows nothing of exceptional offences punished by
extraordinary tribunals.^
The
right of a person
who
has been wrongfully
imprisoned on regaining his

oppressor on
action
to
trial as
freedom to put
his
a criminal, or by means of an
obtain
pecuniary
compensation for the

affords a
wrong which he has endured,

in confinement,
it
most
insuffi-
cient security for personal freedom.

profits
If X. keeps
little
to
know
that if he
could recover his freedom, which he cannot, he could
punish and fine X.

liberty.
Till this is
wants is to recover his done he cannot hope to punish

of
it.
What
the foe
who has deprived him
It
would have
that
if
been
little
consolation for Voltaire to
know
he he
could have got out of the Bastille he could recover
damages from
1
his enemies.
The
possibility that
Contrast with this the extraordinary remedies adopted nnder the old French monarchy for the punishment of powerful criminals. As to which see FMchier, M^moires sur les Orand-Jours tenues A Clermont en 1665-66.

209
might when he got free have obtained redress for the wrong done him might, so far from being a benefit, have condemned him to hfelong incarceration.
Chapter
1-
Liberty
is
not secure unless the law, in addi-
tion to punishing every kind of interference with a
man's lawful freedom, provides adequate security that

every one
who without
legal justification
free.
is
placed in
confinement shall be able to get

is
This security
provided by the celebrated writ of habeas corpus
and the Habeas Corpus Acts. ii. Writ of Habeas Corpus}
It
is
not within
writ of
corpus.
the scope of these lectures to give a history of the

writ of habeas corpus or to provide the details of the
legislation
tion,
with regard to
it.
For minute informalegal text-books.
both about the writ and about the Habeas Corpus
Acts,
you should consult the ordinary

is
My
object
solely to explain generally the
mode
in
which the law of England secures the right to personal freedom.

I
shall therefore
:
call
attention
to
the following points
first,
the nature of the writ
secondly, the effect of the so-called
Habeas Corpus
is
Acts
thirdly,
the precise effect of what
called
(not quite accurately) the Suspension of the
Habeas
Corpus Act
and, lastly, the relation of any Act
suspending the operation of the Habeas Corpus Act Each of these matters has to an Act of Indemnity.
a close bearing on the law of the constitution. Nature of Writ. Legal documents constantly give
Nature of
the best explanation and illustration of legal principles.
We
shall
do well therefore to examine with

:
care the following copy of a writ of habeas corpus

1
;
31 Car.
See Stephen, Oommmiaries ( 1 4tli ed.), iii. pp. 69 7-707 1 6 Car. I.e. 1 56 George III. c. 100 ; Forsyth, Opinions, 436-452, 481. II. C.2
; ;
THE RULE OF
Part
II.
LAW
the United
" Victoria, hy the

"
Grace of God, of
Kingdom of Great Britain and Ireland Queen,
Defender of the Faith, " To J. K., Keeper of our Gaol of Jersey, in the " Island of Jersey, and to J. C. Viscount of said " Island, greeting. We command you that you have " the body of C. C. W. detained in our prison under " your custody, as it is said, together with the day
"
"and
cause of his being taken
and
detained,
by
"whatsoever
" "
name he may
next, to
be called or known, in
" our Court before us, at Westminster, on the 18th
day of January
and
singular such matters
undergo and receive all and things which our
"said Court shall then and there consider of him in " this behalf; and have there then this Writ. Witness
"Thomas Lord Denman, at Westminster, the 23rd " day of December in the 8th year of our reign.
"
By
the Court,
" Robinson."
"
At
the instance
of
C. C.
W.
"R.M.
"
R."
W. A.
L., 7 Gray's Inn Square, London, " Attorney for the said C. C. W."
is patent on its an order issued, in the particular instance, by the Court of Queen's Bench, calling upon a person
The character of the document

It is
face.
by whom a prisoner is alleged to be kept in confinement to bring such prisoner to " have his body,"
1 Gams Wilson's Case, 7 Q. B. 984, 988. In this particular case the writ calls upon the gaoler of the prison to have the body of the prisoner before the Court by a given day. It more ordinarily calls upon him to have the prisoner before the Court " immediately after the receipt of this writ."
211
let the
whence the name habeas corpus before the Court to Court know on what ground the prisoner is confined, and thus to give the Court the opportunity
of dealing with the prisoner as the law
chapter
'_
may
require.
The essence of the whole transaction is that the Court Can by the writ of habeas corpus cause any person
who
is
imprisoned to be actually brought before the
Court and obtain knowledge of the reason

imprisoned
;
why
he
is
either then
is
and then having him before the Court, and there set him free or else see that he dealt with in whatever way the law requires, as,
brought speedily to
trial.
for example,
The
writ can be issued on the application either of
the prisoner himself or of any person on his behalf,

or (supposing the prisoner cannot act) then on the application of
any person who

It is
believes
him
to be
unlawfully imprisoned.
Court, or during vacation
issued by the High by any judge thereof; and
the Court or a judge should and will always cause

it
to be issued
is
there
on being satisfied by afiidavit that reason to suppose a prisoner to be wrongfully

is
deprived of his liberty.

ness that the writ
say with strict" as a matter of course," issued
You cannot
for some ground must be shown for supposing that a But the writ is case of illegal imprisonment exists.
granted " as a matter of right,"
that
is
to say, the
is
Court will always issue
it \i
prima facie ground
shown
it is
for supposing that the person on whose behalf

is
asked for
unlawfully deprived of his liberty.
The writ or order of the Court can be addressed to any person whatever, be he an ofiicial or a private
individual,
who
has, or is
supposed to have, another

to the writ exposes
in his custody.
Any disobedience
THE RULE OF LA W
Part
II.
for contempt of heavy penalties recoverable by the party aggrieved.^ To put the matter, therefore, in the most general terms, the case The High Court of Justice possesses, stands thus. as the tribunals which make up the High Court used to possess, the power by means of the writ of habeas corpus to cause any person who is alleged to be kept
the offender to
summary punishment
Court/ and also in
many
cases to
in unlawful confinement to
be brought before the
The Court can then inquire into the reason why he is confined, and can, should it see fit, set him then and there at liberty. This power moreover is one which the Court always will exercise whenever ground is shown by any applicant whatever for the belief that any man in England is unlawfully deprived
Court. of his liberty.
Habeas
Acts.
The Habeas Corpus Acts.

of habeas corpus existed at
The right
to the writ
ths passing in
Act,^ 31 Car.
it
common law long before 1679 of the celebrated Habeas Corpus II. c. 2, and you may wonder how
100, are treated,
has happened that this and the subsequent Act,

Greo.
III.
c.
56
and
(for practical
purposes) rightly treated, as the basis on which rests
an Englishman's security
personal freedom.
for the
enjoyment of
his
The explanation is, that prior to 1679 the right to the writ was often under various pleas and excuses made of no effect. The aim of the
Habeas Corpus Acts has been to meet all the devices by which the effect of the writ can be evaded, either on the part of the judges, who ought to issue the
1
Bex
V.
Winton, 5 T. R. 89, and conf. 56 Geo. III.
c.
100,
s.
see Corner, Practice of the Crown Side of the Gourt of Queen's Bench. 3 31 Car. II. c. 2, a. 4. See also 16 Car. I. c. 10, s. 6.

same, and
if
213
necessary discharge the prisoner, or on Chapter
the part of the gaoler or other person

prisoner in custody.
who has
the
^'
The
earlier
Act of Charles the
crime
Second applies to persons imprisoned on a charge of the later Act of George the Third applies to
;
persons deprived of their liberty otherwise than on a

criminal accusation.
Take these two
classes of persons separately.
A person
he
is
imprisoned on a charge of crime.
If Sabms
is imprisoned without any legal warrant for his \m^z\ '^^'"''2imprisonment, he has a right to be set at liberty. If,
on the other hand, he

being brought to
differs
trial.
is
imprisoned under a legal

is
warrant, the object of his detention
to ensure his
His position in this case

In the case of the lighter
according to the nature of the offence with

is
which he
offences
charged.
as
misdemeanours he has, generally speaking,^ the right to his liberty on giving security with proper sureties that he will in due course surrender himself to custody and appear and take his trial on such indictment as may be found against him in respect of the matter with which he is charged, or (to use technical expressions) he has the right to be In the case, on the other hand, of admitted to bail. the more serious offences, such as felonies or treasons, a person who is once committed to prison is not enThe right of the prisoner titled to be let out on bail. is in this case simply the right to a speedy trial. The effect of the writ oi habeas corpus would be evaded either if the Court did not examine into the validity of
1
known
See Stephen, Digest of

1,
the
p.
Law
c.
note
and
also art.
136 and
of Criminal Procedure, art. 276, Compare the Indictable 89, note 1.

42),
s.
Offences Act,
1848 (11 & 12
Vict.
23.
214
THE RULE OF LA W
if
Part
II.
the warrant on which the prisoner was detained, and

the warrant were not valid release him, or
if
the Court,
on ascertaining that he was legally imprisoned, did not

cause him according to circumstances either to go out
on
bail or to
be speedily brought to
trial.
The Act provides against all these possible failures The law as to persons imprisoned under accusations of crime stands through the combined effect of the rules of the common law and of the statute in substance as follows. The gaoler who has such person in custody is bound when called upon to
of justice.
have the prisoner before the Court with the true

cause of his commitment.
the prisoner
If the cause
is insufficient,
;
must of course be discharged

the prisoner, in case he
is
if
the
cause
is sufficient,
charged
with a misdemeanour, can in general insist upon

being bailed
charge
is
on the other hand, the one of treason or felony, he can insist upon
till trial
;
in case,
being tried at the

or if he
is
first
sessions after his committal,
not then tried, upon being bailed, unless

for
the
witnesses
is
the
Crown
second
cannot appear.
sessions
after
If
he
not tried at
the
his
commitment, he can insist upon his release without bail. The net result, therefore, appears to be that while the Habeas Corpus Act is in force no person committed to prison on a charge of crime can be kept
long in confinement, for he has the legal means of
insisting
upon
either being let out

trial.
upon
bail or else
of being brought to a speedy

saheas
1816, 56
" '
A persou, again, who is detained in confinement but not on a charge of crime needs for his protection
^^6 means of readily obtaining
a legal decision on
c.îoo.
the lawfulness of his confinement, and also of getting

an immediate release
liberty.
if
215
he has by law a right to his
Chapter
what the writ of habeas corpus affords. Whenever any Englishman or foreigner is alleged to be wrongfully deprived of liberty,
This
is
exactly
the
Court will
issue
the
writ,
have
the
if
person
aggrieved brought before the Court, and

a right to liberty set
forcibly kept apart
he has
is
him
free.
Thus
if
a child
from his parents,^
if
man
if
is
wrongfully kept in confinement as a lunatic,

is
nun
alleged to be prevented from leaving her convent,

if,
in
short,
any man, woman, or

Court will
always
child
is,
or is
asserted on apparently good grounds to be, deprived

of liberty,
the
issue
writ of
habeas corpus to any one who has the aggrieved

person in his custody to have such person brought
before the Court, and
if
he
is
suffering restraint withTill,
out lawful cause, set him
free.
however, the year
1816 (56 Geo. III.) the machineryfor obtaining thewrit was less perfect ^ in the case of persons not accused of
crime than in the case of those charged with criminal
offences,
and the
effect of
56 Geo.
III. c.
100, was in
1 See The Queen v. Nash, 10 Q. B. D. (0. A.) 454 and compare Re Agar-Ellis, 24 Ch. D. (C. A.) 317. For recent instances of effect of Habeas Oorpus Act see Bamardo v. jF'or(i[1892], A. C. 326 Barnardo Reg. v. Jackson [1891], 1 Q. B. (C. A.) V. MeHugh [1891], A. C. 388 Cox V. Hakes, 15.App. Cas. 506 B^g. v. Barnardo, 24 Q. B. D. 671 and 23 Q. B. D. (C. A.) 305. Compare as to power of (C. A.) 283 Court of Chancery for protection of children independently of Habeas
;
;
Corpus Acts, Reg. v. Gyngall [1893], 2 Q. B. (C. A.) 232. As to appeal to Privy Council, see Att. Gen. for Hong Kong
v.
Kwok-A-Sing (1873), L. R. 5
2
P. C. 179.
The inconvenience ultimately remedied by
the Habeas Corpus
Act, 1816, was in practice small, for the judges extended to all cases of unlawful imprisonment the spirit of the Habeas Corpus Act, 1679,
and enforced immediate obedience
to the writ of habeas
cmpus,
even
when issued not under the

pf the Courts.
statute,
but under the

iii.
common law
authority
Blackstone,
Comm.
p.
138.
2i6
THE RULE OF
LAW
Part
II.
substance to apply to non-criminal cases the machinery

of the great
Habeas Corpus
are
in
Act, 31 Car.
II. c. 2.
At
the present day, therefore, the securities for
personal freedom
laws can
make them.
England as complete as The right to its enjoyment is
absolutely acknowledged.
entails either
Any
invasion of the right

fine
imprisonment or
upon the wrong-
doer; and any person, whether charged with crime

or not,
who
is
even suspected to be wrongfully im-
prisoned, has, if there exists a single individual willing

to exert himself on the victim's behalf, the certainty of having his case duly investigated, and, if he has been wronged, of recovering his freedom. Let us return
and suppose that Voltaire has been treated in London as he was treated in Paris. He most certainly would very rapidly have recovered his freedom. The procedure would not, it is true, have been in 1726 quite as easy as it is now under the Act of George the Third. Still, even then it would have been within the power of any one of his friends to put the law in motion. It would have been at least as easy to release Voltaire in 1726 as it was in 1772 to obtain by means oi habeas
for a
moment
to a former illustration,
corpus the freedom of the slave James Sommersett
when
in the
actually confined in irons on board a ship lying
Thames and bound for Jamaica.^ The whole history of the writ of habeas corpus
illustrates the
predominant attention paid under the English constitution to " remedies," that is, to modes of procedure by which to secure respect for a legal
right,
and by which to turn a merely nominal into an effective or real right. The Habeas Corpus Acts
1
Sommersetfs Case, 20 St. Tr.
1.

are
essentially procedure Acts,
217
and simply aim at improving the legal mechanism by means of whicli the acknowledged right to personal freedom may be
enforced.
Chapter
They
are intended, as
is
generally the case
with legislation which proceeds under the influence

of lawyers, simply to meet actual and experienced
difficulties.
Hence the Habeas Corpus Act of Charles

work, and Englishmen waited
the Second's reign was an imperfect or very restricted

piece
of legislative
nearly a century and a half (1679-1816) before the
procedure for securing the right to discharge from
unlawful confinement was made complete.

lawyer-like
But
this
mode of dealing with a fundamental right

its
had with
legislation
is
all
defects
the one great merit that
was
directed to the right point.
There
no
difficulty,
and there
is
often very little gain, in
declaring the existence of a right to personal freedom.
The true
difficulty is to secure its enforcement.
Habeas Corpus Acts have achieved
this end,
The and
have therefore done for the liberty of Englishmen more than could have been achieved by any declaration of rights. One may even venture to say that these Acts are of really more importance not only
than the general proclamations of the Rights of
Man
which have often been put forward in foreign countries, but even than such very lawyer-like documents as the Petition of Right or the Bill of Rights, though these
celebrated enactments
show almost equally with the

that
Habeas Corpus Act

constitution
1
the law of the English

law.^
is
at
bottom judge-made
Compare Imperial Constitution of 1804, ss. 60-63, under which a committee of the Senate was empowered to take steps for putting an end to illegal arrests by the Government. See Plouard, Les Constitutions Frangaises, p. 161.
2i8
THE RULE OF LA W
Every
critic of
Part
II.
the constitution has observed the

in securing the
Ettectof
habeas
effect of
the
Habeas Corpus Acts

attention
liberty of the subject;
luXrity
of judges.
deserves as
j.jgij^
much
is
what has received less and is the way in which the

determines the whole
iQ issue a writ of habeas corpus, strengthened
as that right
by
statute,
body towards the executive. The authority to enforce obedience to the writ is nothing less than the power to release from imprisonment any person who in the opinion of the Court is unlawfully deprived of his liberty, and hence in eflFect to put an end to or to prevent any punishment which
relation of the judicial
the
Crown
or its servants
may
attempt to
inflict in
opposition to the rules of law as interpreted

judges.
by the
though
The judges therefore are in
truth,
not in name, invested with the means of hampering

or supervising the whole administrative action of the
government, and of at once putting a veto upon any

proceeding not authorised by the letter of the law.
Nor is this power one which has fallen into disuse by want of exercise. It has often been put forth, and
this too in matters of the greatest
consequence
the
knowledge moreover of
best
its
existence governs the con-
duct of the administration.
An
example or two
will
show the mode in which the "judiciary"
(to use
a convenient Americanism) can and

of the executive.
guilty of treason in
do by means
of the writ of habeas corpus keep a hold on the acts
In 1839 Canadian rebels, found
Canada and condemned to trans-
portation, arrived in official custody at Liverpool on

their
way
to
Van Diemen's Land.
The
friends of the
convicts questioned the validity of the sentence under
which they were transported; the prisoners were
219
of habeas
thereupon taken from prison and brought upon a writ corpus before the Court of Exchequer.
Chapter ^'
Their whole position having been considered by the
was ultimately held that the imprisonment was legal. But had the Court taken a different view, the Canadians would at once have been released from confinement.^ In 1859 an English officer serving in India was duly convicted of manslaughter and sentenced, to four years' imprisonment he was sent
Court,
it
:
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 before the Queen's Bench, was on this purely So, to take a very technical ground set at liberty.^
notorious instance of judicial authority in matters
most nearly concerning the executive, the Courts have again and again considered, in the case of persons brought before them by the writ of habeas corpus, questions as to the legality of impressment, and as to the limits within which the right of impressment may
be exercised; and
if,
on the one hand, the judges
have in this particular instance (which by the way is almost a singular one) supported the arbitrary powers
of the prerogative, they have also strictly limited the exercise of this power within the bounds prescribed
to
it
by custom
or
by
statute.^
Moreover, as already
civil tribunals
pointed out, the authority of the

1
even
Canadian Prisoners, 6 M. & W. 32. 30 L. J. (Q. B.), 38. Stephen, Com3 See Case of Pressing Mariners, 18 St. Tr. 1323 conf. Corner, Forms of Writs on Crown ed.), p. 574 mentaries, u. (Uth an impressed Side of Court of Quern's Bench, for form of habeas corpus for
The Case of
the
2
In
re Allen,
seaman.
THE RULE OF LA W
Part
II.
when not
actually put into force regulates the action
In 1854 a body of Russian sailors of the government. were found wandering about the streets of Guildford, without any visible means of subsistence they were
;
by a Russian naval officer as deserters from a Russian man-of-war which had put into an English
identified
they were thereupon, under his instructions and with the assistance of the superintendent of police, conveyed to Portsmouth for the purpose of
port
;
Doubts The arose as to the legality of the whole proceeding. who thereupon gave it as law officers were consulted,
their being carried
back to the Russian
ship.
their opinion that " the delivering-up of the Russian
" sailors to the Lieutenant and the assistance offered " by the police for the purpose of their being con-
"veyed back to the Russian ship were contrary to " law." ^ The sailors were presumably released they no djoubt would have been delivered by the Court
;
had a writ of habeas corpus been applied for. Here then we see the judges in effect restraining the action of the executive in a matter which in most countries is considered one of administration or of policy lying beyond the range of judicial interference. The
strongest examples, however, of interference
by the
judges with administrative proceedings are to be
found in the decisions given under the Extradition Acts. Neither the Crown nor any servant of the Crown has any right to expel a foreign criminal
from the country or to surrender him to his own government for trial. ^ A French forger, robber, or
1 ^
See Forsyth, Opinions,

See, however,
Bex
v.
p. 468. Lundy, 2 Ventris, 314

v.
Rex
v.
Kimberley,
2 Stra.,
848
East India Company
Campbell,
Ves. Senr.,
246

murderer who escapes from France to England cannot, independently of statutory enactments, be sent back to his native land for trial or punishment. The absence of any power on the part of the Crown
to surrender foreign
their
Chapter
'
criminals to the authorities of
own
to
state has
in recent times Extradition Acts
been found so inconvenient, that have empowered the

with foreign states for the
Crown
make
treaties
mutual extradition of criminals or of persons charged
The exercise of this authority is, howhampered by restrictions which are imposed by It therefore the statute under which alone it exists.
with crime.
ever,
often happens that an offender arrested under the
warrant of a Secretary of State and about to be handed over to the authorities of his own country
conceives that, on some ground or other, his case
does not
fall
dition Act.
within the precise terms of any ExtraHe applies for a writ of habeas corpus
;
he
is
brought up before the High Court; every
technical plea he can raise obtains full consideration,^

and Chitty, Criminal Law (1826), pp. 14, V. Kaye, 4 Taunt. 34 in support of the opinion that the Crown possessed a common law This opinion may right of extradition as regards foreign criminals. (Compare, however, Reg. v. Bernard, possibly once have been correct.
Mure
1 6,
Annual Register
In
re Castioni
for 1858, p. 328, for opinion of Campbell, C. J., cited [1891], 1 Q. B. 149, 153, by Sir C. Russell, arguendo.) It has, however, in any case (to use the words of a high authority) " ceased to be k,w now. If any magistrate were now to arrest a "person on this ground, the validity of the commitment would " certainly be tested, and, in the absence of special legislative provi" sions, the prisoner as certainly discharged upon application to one The " of the superior Courts." Clarke, Extradition (3rd ed.), p. 27. case of Musgrove v. Ghun Teeong Toy [1891], A. C. 272, which
establishes that
an alien has not a kgal
right, enforceable
by
action,
to enter British territory, suggests the possible existence of a common law right on the part of the Crown to expel an alien from British
territory.
1
Inre Bellencontre [1891], 2 Q. B. 122.
THE RULE OF LA W
Part
II.
and
the
if
on any ground whatever
it
can be shown that
terms of the Extradition Act have not been

as a matter of course at once set
complied with, or that they do not justify his arrest
and surrender, he
at liberty.^
It is
is
easy to perceive that the authority

it
of the judges, exercised, as
invariably
must
be, in
support of the strict rules of law, cuts

discretionary powers of the Crown.
down
the
It often
prevents
the English government from meeting public danger
by measures of precaution which would as a matter by the executive of any continental country. Suppose, for example, that a body of foreign anarchists come to England and are thought by the police on strong grounds of suspicion to be engaged in a plot, say for blowing up the Houses of Parliament. Suppose also that the existence of the conspiracy does not admit of absolute
of course be taken
proof
to
An
English Minister,
if
he
is
not prepared
has no means
put the conspirators on their
trial,
of arresting them,
or of expelling
them from the
country.^
In case of arrest or imprisonment they
would 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 shown they
would be forthwith
reasons which might
set at liberty.
Of the
political
" or, to use foreign expressions, of the " adpiinistrative
make
the arrest or expulsion of
a foreign refugee highly expedient, the judges would
hear nothing
Secretary
1
that he was arrested

State,
by order
of the
of
that his
Ch. 47
;
imprisonment was a
In
re Goppin, L. R. 2
The Qiieeny. Wilson, 3 Q. B. D. 42.
^ Contrast the dealings of Louis Philippe's Government in 1833 with the Diwhesse de Berry, for which see Grdgoire, Histoire dfi Fr(ince, i. pp. 356-361.
^
simple administrative
the
act, that the Priine
223
Minister or Chapter
Home
Secretary was prepared to
that the arrest was
make affidavit demanded by the most urgent
considerations of public safety, or to assure the Court
that the whole matter was one of high policy and
concerned national interests, would be no answer whatever to the demand for freedom under a writ All that any judge could inquire of habeas corpus. into would be, whether there was any rule of common
would authorise interference Jf none such could be found, the applicants would assuredly obtain The plain truth is that the power their liberty.
or of statute law which
with a foreigner's personal freedom.
possessed by the judges of controlling the administrative conduct of the executive has been, of necessity,
so exercised as to prevent the development with us
of
any system corresponding

" of
to the " administrative
law
continental states.
as to
It strikes at the root of
those
acts,
theories
and
as
to
the nature of administrative the " separation of powêrs," on
which, as will be shown in a later chapter,^ the droit
administratif of Yvance depends, and it deprives the Crown, which now means the Ministry of the day,
of
all
discretionary authority.
The
actual or possible
intervention, in short, of the Courts, exercisable for
the most part by means of the writ of habeas corpus, confines the action of the government within the
strict letter of the
law
with us the state can punish,
but
it
can hardly prevent the commission of crimes.

can
We
flicts
now
see
why
it
was that the

'
of the seventeenth century
political con- osevenoften raged round *^'^
position of the judges, and the ^

1
JO
why
./
o the battle might a

_
,
century about
See Chap. XII.
position of judges.
224
THE RULE OF LA W
Part
II.
turn on a point so technical as the inquiry, what might be a proper return to a writ of habeas corpus} Upon the degree of authority and independence to be conceded to the Bench depended the colour and workTo supporters, on the one ing of' our institutions. hand, of the prerogative who, like Bacon, were not
unfrequently innovators or reformers, judicial inde-
pendence appeared to mean the weakness of the executive, and the predominance throughout the state of the conservative legalism, which found a representative
in .Coke.
The Parliamentary
leaders,
on
the other hand, saw, more or less distinctly, that the
independence of the Bench was the sole security

for the
maintenance of the
else
common
law, which was
nothing
than the rule of established customs
modified only by Acts of Parliament, and that Coke in

battling for the
power of the judges was asserting the

;
rights of the nation

this
is
they possibly also saw, though

the
it
uncertain,
that
maintenance
of rigid
legality,
inconvenient as
might sometimes prove,
was the certain road

Suspension
to Parliamentary sovereignty.^
Suspeusion of the Habeas Corpus Act.
Durinopersons
co^l'^'
^"^^
periods of political excitement the power or duty of
the Courts to issue a writ of habeas corpus, and
thereby compel the speedy
trial or release of
charged with crime, has been found an inconvenient or dangerous limitation on the authority of the
executive government.
Hence has
I
arisen the occa-
sion for statutes which are popularly called
Habeas
Corpus Suspension
1
Acts.
1.
say " popularly called,"
Darnel's Case, 3 St. Tr.
See Gardiner, History of England, ii. chap. xxiL, for an admirable statement of the different views entertained as to the position of the judges.
2

because
c.
225
if
you take
(as
54
as a type of such enactments,
you may) the Act 34 Geo. you will

its
III.
Chapter ^'
see
that
it
hardly corresponds with

effect
received name.
The whole
of the Act, which does not even
mention the Habeas Corpus Act, is to make it impossible for any person imprisoned under a warrant
signed by a Secretary of State on a charge of high
treason, or
on suspicion of high treason, to insist upon being either discharged or put on trial. No doubt this is a great diminution in the securities for
1 Of which s. 1 enacts " that every person or persons that are or "shall be in prison within the kingdom of Great Britain at or upon " the day on which this Act shall receive his Majesty's royal assent, "or after, by warrant of his said Majesty's most honorable Privy " Council, signed by six of the said Privy Council, for high treason, " suspicion of high treason, or treasonable practices, or by warrant, " signed by any of his Majesty's secretaries of state, for such causes " as aforesaid, may be detained in safe custody, without bail or main
" prize, until the " and ninety-five
day of February one thousand seven hundred and that no judge or justice of the peace shall bail " or try any such person or persons so committed, without order from " his said Majesty's Privy Council, signed by six of the said Privy " Council, till the said first day of Febrvary one thousand seven " hundred and ninety-five any law or statute to the contrary
first
;
" notwithstanding."
The so-called suspension of the Habeas Corpus Act under a statute such as 34 Geo. III. c. 54, produces both less and more effect than would the total repeal of the Habeas Corpus Acts. The suspension, while it lasts, makes it possible for the government to arrest and keep in prison any persons declared in effect by the government to be guilty or suspected of treasonable practices, and such persons have no means of obtaining either a discharge or a trial. But the suspension does not affect the position of persons not detained in custody under suspicion of treasonable practices. It does not therefore touch the ordinary liberty of ordinary citizens. The repeal of the Habeas Corpus Acts, on the other hand, would deprive every man in England of one security against wrongful imprisonment, but since it would leave alive the now unquestionable authority of the judges to issue and compel obedience to a writ of habeas corpus at common law, it would not, assuming the Bench to do their duty, increase the power of the government to imprison persons suspected of treasonable practices, nor materially diminish the freedom of any class of Englishmen.
Compare Blackstone, Comm.
iii.
p.
138.
226
THE RULE OF LAW

freedom provided by the Habeas Corpus but it falls very far short of anything like a
in
Part n.
personal
Acts
general suspension of the right to the writ of habeas
corpus
it
no way
affects the privileges
of any
person not imprisoned on a charge of high treason

it
does not legalise any arrest, imprisonment, or punishment which was not lawful before the Suspension Act passed it does not in any wise touch the claim to a writ of habeas corpus possessed by
;
every one, man, woman, or child,
who
c.
is
held in
confinement otherwise than on a charge of crime.
The
particular statute 34 Geo.
III.
54
is,
and
(I
believe) every other
Habeas Corpus Suspension Act

been an annual Act, and must, be renewed
sole,
affecting England, has
therefore, if
it
is
to continue in force,
year
by
is
year.
The
the
immediate,
and
the
direct
result, therefore, of
suspending the Habeas Corpus

Ministry
Act
this
may
for
period
during which the Suspension Act continues in force

constantly defer the trial of persons imprisoned on
the charge of treasonable practices.
This increase in
trifle,
the power of the executive

far short of the process
tries as "
is
no
in
but
it
falls
known
some foreign coun-
or in
siege "
suspending the constitutional guarantees," France as the " proclamation of a sta,te of

'
it,
indeed, extends the arbitrary powers of the

far less degree
government to a
Coercion Acts.
than
many
so-called
That this is so may be seen by a mere enumeration of the chief of the extraordinary powers which were conferred by comparatively recent
See Duguit, Manuel de Droit Gonstitutionnel, pp. 510-513, and " ^tat de Sifege" in Oh^ruel, Dictionnaire Historique des Institutions de la France (6th ed,).
1
article

enactments on the Irish executive.
227
Under the Act
of Chapter
^'
1881 (44
Vict.
c.
4) the Irish executive obtained the
absolute power of arbitrary and preventive arrest,
and could without breach of law detain

which the Act continued in
force.
in prison
any
person arrested on suspicion for the whole period for

It is true that
the Lord Lieutenant could arrest only persons sus-
pected of treason or of the commission of some act
tending to interfere with the maintenance of law
and order. But as the warrant itself to be issued by the Lord Lieutenant was made under the Act conclusive evidence of all matters contained therein, and therefore (inter alia) of the truth
of the assertion that the arrested person or "sus-
pect" was
able
reasonably
suspected,
e.g.
of
treason-
practices,
and therefore
official
liable
to
arrest,
the
result clearly followed that neither the
tenant nor any

possibility be
acting under
to
Lord Lieuhim could by any

legal penalty for
made
liable
any
any arrest, however groundless or malicious, made in due form within the words of the Act. The Irish government, therefore, could arrest any person whom
the Lord Lieutenant thought
fit
to
imprison, pro-
vided only that the warrant was in the form and

contained the allegations required by the statute.
Under
45
the Prevention of Crime (Ireland) Act, 1882
&
46 Vict.
the
c.
25
the
Irish executive
was armed
(among other) extraordinary The government could in the case of certain powers. crimes^ abolish the right to trial by jury,^ could
with
following
1 Viz. (a) treason or treason-felony ; (5) murder or manslaughter attempt to murder {d) aggravated crime of violence against the (/) attack person (e) arson, whether by common law or by statute
;
(c)
.:
on dwelling-house.
Sect. 1.
228
THE RULE OF LA W
under
Partn.
arrest strangers found out of doors at night
suspicious circumstances,^ could seize
any newspaper
which, in the judgment of the Lord Lieutenant, contained matter inciting to treason or violence,^ and
could prohibit any public meeting which the Lord
Lieutenant believed to be dangerous to the public

peace or safety.
Add
to this that the Prevention of
Crime Act, 1882, re-enacted (incidentally as it were) the Alien Act of 1848, and thus empowered the British Ministry to expel from the United Kingdom any foreigner who had not before the passing of the Act been resident in the country for three years.^ Not one of these extraordinary powers flows directly from a mere suspension of the Habeas Corpus Act
and, in truth, the best proof of the very limited
legal effect of such so-called suspension is supplied
Act of Indemnity.
by the fact that before a Habeas Corpus Suspension Act runs out its effect is, almost invariably, supplemented by legislation of a totally different character, namely, an Act of Indemnity. An Act of Indemnity. Reference has already i been made to Acts of Indemnity as the supreme instance of Parliamentary sovereignty.* They are retrospective statutes which free persons who have broken the law from responsibility for its breach, and thus make lawful acts which when they were committed were unlawful. It is easy enough to see the connection between a Habeas Corpus Suspension Act and an Act of Indemnity. The Suspension Act, as already pointed out, does not free any person from
civil or
1
criminal liability for a violation of the law.

2
*
Sect. 12.
Sect. 13.
gect. 15.
See pp. 47, 48, ante.
229
Suppose that a Secretary of State or his subordinates

should, during the suspension of the
Chapter
Habeas Corpus
L_
Act, arrest and imprison a perfectly innocent
man
be)
without
any cause whatever, except

it
(it
may
the belief that
is
conducive to the public safety
that the particular person
say,
an influential party
leader such as Wilkes, Fox, or O'Connell

at a particular crisis kept in
prison,
should
be
and thereby
deprived of influence.
should be
into
Suppose, again, that an arrest

orders of the Ministry under
made by
circumstances which involve the unlawful breaking

a private dwelling-house,
like.
the
destruction
of
private property, or the

stances,
In each of these ineasily be
and in many others which might
imagined, the Secretary of State
who
orders the arrest
and the
officials
broken the law.
bonajide belief
order.
carry out his commands have They may have acted under the that their conduct was justified by
the maintenance of
itself,
who
the necessity of providing for
But
this
will
not
of
whether the
Habeas Corpus Act be suspended

civil
or not, free the
persons carrying out the arrests from criminal and
wrong they have committed. The suspension, indeed, of the Habeas Corpus Act
liability for the
may
prevent the person arrested from taking at the

proceedings against a Secretary of State
moment any
the sufierer
or the officers
is
who have
acted under his orders.
For
of course imprisoned on the charge of
high treason or suspicion of treason, and therefore

will not, while the suspension lasts, be able to get
self
him-
discharged from prison.
The moment, however,
that the Suspension Act expires he can, of course,
apply for a writ of habeas corpus, and ensure that,
230
THE RULE OF LA W
by means
of being put on bis trial or otherwise,
shall
Part
II.
either
his arbitrary
imprisonment
be brought to an end.
In the cases we have supposed the prisoner has been

guilty of no legal offence.
The offenders are in reality The the Secretary of State and his subordinates.
result is that
on the expiration of the Suspension Act

to actions or indictments
for their
they are
liable
illegal conduct,
and can derive no defence whatever

time when the unlawHabeas Corpus Act was,
force.
from the mere

ful arrest
fact that, at the
took place, the
partially at
any
rate,
not in
It
is,
however,
almost certain that,
when the suspension of the Habeas

it
Corpus Act makes
possible for the
government
to
keep suspected persons in prison for a length of time

without bringing them to
trial,
a smaller or greater
number of unlawful acts will be committed, if not by the members of the Ministry themselves, at any rate by their agents. We may even go farther than this, and say that the unavowed object of a Habeas
Corpus Suspension Act is to enable the government to do acts which, though politically expedient, may not be strictly legal. The Parliament which destroys one of the main guarantees for individual freedom must hold, whether wisely or not, that a crisis has arisen when the rights of individuals must be postponed to considerations of state. A Suspension Act would, in fact, fail of its main object, unless officials felt assured that, as long as they bona fide, and
uninfluenced by malice or by corrupt motives, carried
out the policy of which the Act was the visible sign,
they would be protected from penalties for conduct
might be technically a breach of law, was nothing more than the free exertion for
which, though
it
231
the public good of that discretionary power which Chapter the suspension of the
Habeas Corpus Act was

expectation
that,
force,
in-
^"
tended to confer upon the executive.

is
This assurance
before
derived from
the
the
Suspension Act ceases to be in

will pass
Parliament
an Act of Indemnity, protecting all persons who have acted, or have intended to act, under the powers given to the government by the statute.
This expectation has not been disappointed.
An Act
suspending the 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
c.
which reference has already been made, 34 Geo. III. 54, was continued in force by successive annual
In
re-enactments for seven years, from 1794 to 1801.

the
c.
year an Act was passed, 41 Geo. III. 66, " indemnifying such persons as since the first
latter
"
day of February, 1793, have acted in the apprehend-
" ing, imprisoning, or detaining in custody in Great
"Britain of persons suspected of high treason or " treasonable practices." It cannot be disputed that
the so-called suspension of the
Habeas Corpus
Act,
which every one knows will probably be followed by an Act of Indemnity, is, in reality, a far greater interference with personal freedom than would appear from the very limited eflfect, in a merely legal point of
view, of suspending the right of persons accused of
treason to
demand a speedy
trial.
The Suspension
Act, coupled with the prospect of an Indemnity Act,
does in truth arm the executive with arbitrary powers.

Still,
there are one or two considerations which limit
the practical
to
importance that can
fairly
be given be
an expected Act of Indemnity.
The
relief to
232
THE RULE OF LA W
it is
Part
II.
obtained from
suspicion on
prospective and uncertain.
Any
had
the part of the public, that officials
might make it difficult to obtain a Parliamentary indemnity for things done As while the Habeas Corpus Act was suspended. regards, again, the protection to be derived from the
grossly abused their powers,
Act by men who have been guilty of

the terms
of the Act
irregular, illegal,
oppressive, or cruel conduct, everything depends on
of Indemnity.
These
may
be either narrow or wide.

instance, of 1801,
gives a very limited
The Indemnity Act, for amount of

It provides, indeed,
protection to
official
wrongdoers.
a defence against actions or prosecutions in respect

of anything done, commanded, ordered, directed, or
advised to be done in Great Britain for apprehending, imprisoning, or detaining in
custody any person
charged with high treason or treasonable practices.
And no doubt
larity or
such a defence would cover any irregu-
merely formal breach of the law, but there
certainly could be imagined acts of spite or extortion,
done under cover of the Suspension Act, which would expose the oifender to actions or prosecutions, and
could not be justified under the terms of the Indemnity Act.
still
Eeckless cruelty to a political prisoner,

certainly, the arbitrary
or,
punishment or the execution of a political prisoner, between 1793 and 1801, would, in spite of the Indemnity Act, have left
every
more
man
concerned in the crime liable to suffer
punishment.
Whoever wishes
to
appreciate
the
moderate character of an ordinary Act of Indemnity

passed by the Imperial Parliament, should compare
such
an
Act
as
41
Geo.
III.
c.
66,
with
the
enactment whereby the Jamaica House of Assembly

attempted to cover Governor Eyre from
for unlawful deeds
all
233
liability
Chapter
1865.
An
It is
done in suppressing rebellion during Act of Indemnity, again, though it is the

something in
its essential
L.
legalisation of illegality, is also, it should be noted, itself
a law.
fore,
character, there-
very different from the proclamation of martial
law, the establishment of a state of siege, or any other
proceeding by which the executive government at
its
own
will suspends the law of the land. It is no doubt an exercise of arbitrary sovereign power but where the legal sovereign is a Parliamentary assembly, even
;
acts of state
and
this fact
assume the form of regular legislation, of itself maintains in no small degree
the real no less than the apparent supremacy of law.
CHAPTER
VI
THE RIGHT TO FREEDOM OF DISCUSSION

Part
II.
The
Declaration of the Rights
of
Man^ and
the
Freedom
of
French Constitution of 1791

(Jiscussion
proclaim freedom of
discussion.
and the liberty of the press in terms which

^
are
still
cited in text-books
as
embodying maxims
of
French jurisprudence.
Principles
in foreign
constitution.
Communication des pensees et des dcs droits les plus precieux de " I'homme ; tout citoyen peut done parler, ecrire, " imprimer librement, sauf d, rdpondre de I'abus de " cette liberty dans les cas determines par la loi."^
libve
"La
" opinions
est
uu
"La
" civil
.
constitution garantit,
.
la liberted, tout " d' imprimer et publier ses pensees, sans que ses e'crits " puissent etre soumis h aucune censure ou inspection
.
comme droit naturel et homme de parler, d' ecrire,
" avant leur publication."
Belgian law, again, treats the liberty of the press

as a fundamental article of the constitution.
"Art.
" pourra
1
18.
La
presse est libre;

:
la censure
ne
jamais
etre etablie
il
ne peut etre exige

p.
2 8 *
Duguit et Monnier, Les Constitutions de la France, p. 1. Bourguignon, Elements Oeneraux de Legislation Frangaise,
468.
Ddclar. des droits, art. 11, Plouard, p. 16, Duguit et Monnier, p. 2. Constitution de 1791, Tit. 1 ; Plouard, p. 18, Duguit et Monnier,
p. 4.
234
235
" de cautionnement des e'crivains, Miteurs ou im" primeurs. " Lorsque Vauteur est
Chapter
connu
et
domicilie en Belle
" gique, I'editeur, rimprimeur ou

^
distrihuteur ne
"pent Stre poursuivi." Both the revolutionists of France and the constitutionalists of Belgium borrowed their ideas about freedom of opinion and the liberty of the press from England, and most persons form such loose notions as to English law that the idea prevails in England
itself
Noprinfreedom of
reoo^Tsed
J'^'^'^^'^''
that the right to the free expression of opinion,

it
and especially that form of
which
is
known
as the
" liberty of the press," are fundamental doctrines of
the law of England in the same sense in which they
were part of the ephemeral constitution of 1791 and

still
are
embodied in the
;
articles of the existing Belgian
constitution
and, further, that our Courts recognise
the right of every

pleases,
topics,
man
on
to say and write

political,
what he
especially
social,
or religious
without fear of legal penalties.
Yet
this
notion, justified
though
it
be, to
a certain extent,
life,
by the
false,
habits of
modern English
is
essentially
and conceals from students the real attitude of law towards what is called "freedom of thought," and is more accurately described as the
English
" right to the free expression of opinion."
As every
any
lawyer knows, the phrases "freedom of discussion"

or " liberty of the press " are rarely found in
part of the statute-book nor
among
the
maxims
of the
common
unknown
1
law.^
As terms
of art they are indeed quite
to our Courts.
At no time has
Preamble
to
there in

It appears, however, in the
[2
Lord Campbell's Act,
1843, 6
&
7 Vict.
c.
96.]
236
THE RULE OF LA W
any proclamation of the right to The of thought or to freedom of speech.
words from an excellent
treatise
Part
II.
England been
liberty
true state of things cannot be better described than

in these
on the law
of libel
English
secures
shall
'
:
;
te"^
for
eept
^rOT^To*
be breach
Our present law permits any one to say, write, what he pleases but if he make a bad " use of this liberty he must be punished. If he " unjustly attack an individual, the person defamed " ^y^ ^^ ^'^^ damages if, on the other hand, the
" and publish
;
"
words bc Written or printed, or
if
treason or im-
" morality be thereby inculcated, the offender can be
" tried for the
misdemeanour
^
either
by information
" or indictment."
Any man may,

he
likes, subject
if
therefore, say or write whatever

it
to the risk of,
may
be, severe
(either
punishment
he publishes any statement
by word
he
is
of mouth, in writing, or in print)
which
is
not legally entitled to make.
Nor
the
law of England specially favourable to free speech or to free writing in the rules which it maintains in
theory and often enforces in fact as to the kind of
statements which a
man
has a legal right to make.
Above
in
recognises in general no special privilege on behalf of the " press," if by that term we mean,
all, it
conformity with
in
ordinary
language,
periodical
literature
general,
and
is
particularly
little
the
news-
papers.
In
truth
there
in
the
^
statute-
book which can be called a " press law."

1
The law
Odgers, L'ihd and Slander, Introd. (3rd ed.), p. 12. For exceptions to this, see e.g. 8 & 9 Vict. c. 75 44 & 45 Vict. It is, however, true, as pointed out by oue of my critics c. 60, 8. 2. (see the Law of the Press, by Fisher & Strahan, 2nd ed. p. iii.), that " there
^
;
is
slowly growing up a distinct law of the press."
The tendency
01

of the press as
it
237
exists here is
merely part of the
Chapter
^^'
law of
libel,
and
it is
well worth while to trace out
with some care the restrictions imposed by the law of libel on the "freedom of the press," by which
expression
I
mean
a person's right to
make any
state-
ment he
likes in
books or newspapers.
statements with regard to inis
There are
many
it is
Liteison
'
dividuals which
no man
entitled to publish in
uais"
writing or print;
to publish
is
a libel (speaking generally) thus
any untrue statement about another which

to
calculated
injure
his interests, character,
or
reputation.
Every man who directly or indirectly makes known or, as the technical expression goes,
"publishes" such a statement, gives currency to a and is liable to an action for damages. The
libel
person
who makes
publisher
defamatory statement
brings
and
authorises its publication in writing, the person

writes, the
who
the
who
out for
sale,
vendor who distributes a libel, are each guilty of publication, and may each severally
printer
prints, the
who
be sued.
The
gist of the offence being the
making
public, not the writing of the libel, the person
who
having read a libel sends it on to a friend, is a libeller and it would seem that a man who reads aloud a
libel,
knowing
is,
it
to
be such,
may
be sued.
This
separate liability of
ful act
each person concerned in a wrong-
as already pointed out, a very noticeable

is
recent press legislation
to a certain extent to free the proprietors of
newspapers from the full amount of liability which attaches to other persons for the hona fide publication of defamatory statements made at See especially the Libel Law Amendpublic meetings and the like. ment Act, 1888 (51 & 52 Vict. c. 64), s. 4. Whether this deviation from the principles of the common law is, or is not, of benefit to the public, is an open question which can be answered only by
experience.
238
THE RULE OF LA W
Honest
belief,
Partn.
characteristic of our law.
moreover,
and good intentions on the part of a

legal defence for his conduct.
libeller, are
no
Nor
will it avail
him
to
show that he had good reason must pay heavy damages
for thinking the
false
statement which he made to be true.
Persons
often
for giving currency to
statements which were not meant to be falsehoods,
and which were reasonably believed

it is libellous
to be true.
Thus
to publish of a
man who
has been con-
victed of felony but has worked out his sentence that
he "is a convicted felon."
X'xiJL publishes that has stopped payment, statement to X, and

it
B
if,
on the part of has told him that ^'s bank though B in fact made the
It is a libel
X believed the report to be true,

Nor, again, are expressions
all
turns out to be
false.
of opinion
when
injurious to another at
certain not
to expose the publisher of them to an action. " fair " criticism, it is often said, is not libellous ; but
it
would be a grave mistake
to suppose that
critics,
either in the press or elsewhere,
publish whatever criticisms they think true.
have a right to Every
one has a right to publish
But
" a critic
fair and candid criticism. must confine himself to criticism, and
" not make it the veil for personal censure, nor allow " himself to run irito reckless and unfair attacks merely " from the love of exercising his power of denuncia-
" tion." ^ A writer in the press and an artist or actor whose performances are criticised are apt to draw the line between " candid criticism " and " personal censure" at very different points. And when on this
matter there
is
a difference of opinion between a critic
and
1
his victim, the delicate question
what
is
meant by
Whistler v. Buskin,
"The Times," Nov.
27, 1878,per Huddleston, B.

fairness has to be determined
239
by a
jury,
and may be
Chapter
so answered as greatly to curtail the free expression
of critical judgments.
Nor
let it
is
be supposed that
of itself sufficient
it
the mere " truth " of a statement

to protect the person
who
publishes
from
liability
to punishment.
is
For though the
fact that
an assertion
true
is
an answer to an action
for libel, a person
may
be criminally punished for publishing statements
which, though perfectly true, damage an individual
without being of any benefit to the public.

for example,
To write, and with truth of A that he many years ago committed acts of immorality may very well to criminal proceedings, and expose the writer if put on his trial will be bound to prove not only that A was in fact guilty of the faults imputed to him, but also that the public had an interest in the cannot show knowledge of ^'s misconduct. If
this,
he
will find that
no supposed right of
free dis-
cussion or respect for liberty of the press will before
an English judge save him from being found guilty of a misdemeanour and sent to prison. So far in very general terms of the limits placed by the law of libel on freedom of discussion as regards Let us now observe for the character of individuals. moment the way in which the law of libel restricts a
in theory, at least, the right to criticise the conduct
Libels on
mJnt
of the government.
Every person commits a misdemeanour who publishes (orally or otherwise) any words or any docu-
Now a seditious ment with a seditious intention. means an intention to bring. into hatred or intention contempt, or to excite disaffection against the King
or the government
and constitution of the United
240
THE RULE OF LAW

as
Part
II.
Kingdom
by law
established, or either
House of
Parliament, or the administration of justice, or to

excite British subjects to attempt otherwise than by-
means the alteration of any matter in Church or State by law established, or to promote feelings of And illwill and hostility between different classes.^
lawful
if
the matter published
is
contained in a written or
is
is
printed document the publisher
guilty of publishtrue, permits the
ing a seditious
libel.
The
law, it
publication of statements
meant only
to
show that
the
Crown has been
misled, or that the government
has committed errors, or to point out defects in the government or the constitution with a view to their legal remedy, or with a view to recommend alterations in Church or State by legal means, and, in short, sanctions criticism on public affairs which is bona fide
intended to recommend the reform of existing institutions
by
legal methods.
But any one
will see at once
that the legal definition of a seditious libel might

easily
be so used as to check a great deal of what
is
ordinarily considered allowable discussion,

if
and would
rigidly enforced be
inconsistent with prevailing
forms of political agitation.

Expression of opinion
The
^ tree
casc
IS
.
pretty
much
. .
on religious
questions,
cxprcssion
01
opinion
the same as regards the ... , on religious or moral
questions.^
Of
late years circumstances
have recalled
But it most persons to learn that, on one view of the law, any one who publishes a denial of the truth
surprises
attention to the forgotten law of blasphemy.
of Christianity in general or of the existence of God,
whether the terms of such publication are decent or

1
See Stephen,
Dij-esJ of the
2
Ibid., arts.
Criminal Law (6th 179-183.
ed.), arts.
96, 97, 98.
241
otherwise, commits the misdemeanour of publishing Chapter
a blasphemous
libel,
and
is
liable to
imprisonment;
libel
L_
that, according to' another

is
view of the law, any one
guilty
of publishing
blasphemous
who
publishes matter relating to God, Jesus Christ, or the
Book
feelings of
Prayer intended to wound the mankind, or to excite contempt against the Church by law established, or to promote immorand that it is at least open to grave doubt ality how far the publications which thus wound the
of
;
Common
feelings of
of
mankind are exempt from the character blasphemy because they are intended in good
which the person who Most persons, again, publishes them regards as true.^
faith to propagate opinions
are astonished to find that the denial of the truth of

'
Christianity or of the authority of the Scriptures, " by " writing, printing, teaching, or advised speaking
on the part of any person who has been educated in

or
made
profession of Christianity in England,
is
by
statute a criminal offence entailing very severe penal, When once, however, the principles of the ties.^
common law and
the force of the enactments
still
contained in the statute-book are really appreciated, no one can maintain that the law of England recognises
anything
like that natural right to the free
communi-
cation of thoughts and opinions which was proclaimed in France a little over a hundred years ago to
See especially Stephen, Diged of the Criminal Law (6tli ed.), art. where a view of the 179, and contrast Odgers (3rd ed.), pp. 475-490, law is maintained diifering from that of Sir J. F. Stephen. 2 See 9 & lOWill. III. c. 35, as altered by 53 Geo. III. c. 160,
1
and Stephen's Digest of

Lindley, L. J.
Conf. Attorneythe Criminal Law, art. 181. judgment of General v. Bradlaugh, 14 Q. B. D. (C. A.), 667, p. 719,

242
THE RULE OF LA W
Part
II.
It is be one of the most valuable Eights of Man. quite clear, further, that the effect of English law,
whether as regards statements made about individuals, or the expression of opinion about public affairs, or
speculative matters, depends wholly
to the question
upon the answer

(as
who
is
are to determine whether a given

libel.
publication
is
or
not a
The reply
is
we
all
know)
is,
that in substance this matter
referred to
case
libel
the decision of a jury.

a particular individual
Whether
is
in
any given
to be
convicted of
depends wholly upon their judgment, and they have

to determine the questions of truth, fairness, intention,
and the
like,
which
affect
the legal character of a
published statement.^
Freedom
else
of discussion
is,
then, in
than the right to write or
England little say anything which a

it
jury, consisting of twelve shopkeepers, think
ex-
pedient should be said or written.
Such "liberty"
and the
may
vary at different times and seasons from unrelicense
stricted
to
very severe restraint,
experience
centuries
of English history during the last two
amount of
shows that under the law of libel the latitude conceded to the expression of
fact, differed
opinion has, in
greatly according to the
condition of popular sentiment.
Until very recent
times the law, moreover,
has not recognised any
1 " The truth of the matter is very simple when stripped of all " ornaments 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 which twelve of his countrymen think is not " blamable, but that he ought to be punished if he publishes that
blamable \i.e. that which twelve of his countrymen think This in plain common sense is the substance of " all that has been said on the matter." Bex v. Cutbill, 27 St. Tr. 642, 675.
is
"which
is
"
blamable].

privilege
243
which
if
is
on the part of the press. defamatory or blasphemous,
A
if
statement Chapter
made
in a
L_
letter or
upon a
card, has exactly the
same character
made in a book or a newspaper. The protection given by the Belgian constitution to the editor,
newspaper involves a recognition of special rights on the part of persons connected with the press which is quite inconsistent with the general It is hardly an exaggeration theory of English law.
printer, or seller of a
to say,
from
this point of view, that liberty of the
press
is
not recognised in England.

liberty of the press been long why
the
"Why then has the
reputed as a special feature of English institutions ? The answer to this inquiry is, that for about two
centuries the relation between the government and
the press
though
^.^giand.'"
the press has in England been marked by

characteristics
all
those
which make up what we have termed the "rule" or "supremacy" of law, and that just because of this, and not because of any favour shown
by the law of England towards freedom of the press, and especially the newspaper
recent
discussion,
press,
has
till
practically enjoyed with us a freedom which
years was
unknown
is
in so
continental
states.
Any
and
one will see that this

then contrasts
it
who examines
care-
fully the situation of the press in
modern England,
either with the press law of
France or with the legal condition of the press in England during the sixteenth and seventeenth
centuries.
The present position of the English press is marked by two features. First, " The liberty of the press," says Lord Mansfield, " consists in printing without any previous
244
THE RULE OF LA W
^
Part n.
" license, subject to the consequences of law."
"
The
Thôd^
prTssIn*'''
En'^^nd
" law of England," says Lord EUenborough, is a " law of liberty, and consistently with this liberty " ^^ ^^^^^ ^^* what is Called an imprimatur there
"
;
No
censor-
<<
jg
j^q
" a
man
but if ^^q\ preliminary license necessary publish a paper, he is exposed, to the penal
;
" consequences, as he " illegal." ^
is
in every other act, if
it
be
These dicta show us at once that the so-called

liberty of
the press
is
mere
application
is
of the
general principle, that no
man
punishable except
for a distinct breach of the law.^
This principle
is
radically inconsistent with
any scheme of
is
fit,
license or
censorship
by which
man
hindered from writing
or printing anything which he thinks

to reconcile even with the right
and
is
hard
on the part of the

of a
libel,
Courts
at
to
restrain the circulation
until
any rate the publisher has been convicted of it. It is also opposed in spirit to any regulation requiring from the publisher of an intending newspaper a preliminary deposit of a certain sum of money, for the sake either of ensuring that newspapers should be published only by solvent persons, or that if a newspaper should contain libels there shall be a certainty of obtaining damages from
publishing
the proprietor.
to
No
sensible person will argue that
demand
or to
owner of a newspaper, impose other limitations upon the right of

a deposit from the
is
publishing periodicals,
unjust.
Rex Eex
of necessity inexpedient or
is,
All that
V.
is
here insisted upon

431
(note).
that such
Dean
of St. Asaph, 3 T. K.
V. Cobbett,
29
St. Tr.
49
see Odgers, Libel

8
and Slander (3rd

183, ante.
ed.), p.
10.
See
p.
'
245
checks and preventive measures are inconsistent with Chapter

the pervading principle of English law, that
men
are
^^'
to be interfered with or punished, not because they
may
when they have committed some definite assignable legal ofiience. Hence, with one exception,^ which is a quaint survival from a different system, no such thing is known
or will break the law, but only
with us as a license to print, or a censorship either

of the press or of political newspapers.
Neither the
government nor any other authority has the right to

seize or destroy the stock of a publisher because it
consists of books, pamphlets, or papers
which in the
libelwill,
opinion of the government contain seditious or

lous matter.
Indeed, the Courts themselves
only
under very special circumstances, even for the sake of protecting an individual from injury, prohibit the
publication
or
republication of a
libel,
or restrain
its sale until the matter has gone before a jury,

it
and
the
has been
established
by
their verdict
that
words complained of are libellous.^

the law of the realm, and nothing
Writers in the
press are, in short, like every other person, subject to

else.
Neither the
government nor the Courts have (speaking generally) any greater power to prevent or oversee the publication of a newspaper than the writing and sending of
a
letter.
Indeed, the simplest
way
of setting forth
is
broadly the position of writers in the press
to say that
they stand in substantially the same position as letterman who scribbles blasphemy on a gate writers.
U.
c.
the licensing of plays.

;
See the Theatres Act, 1843, 6
&
68 Stephen, Commentaries (14th ed.), iii. p. 227. 2 Compare Odgeia, Lihel and Slander (3rd ed.), chap, xiii., especially work, pp. 13-16. pp. 388-399, with the first edition of Mr. Odgers'
Vict.
3
Eeg.v.Pooley, cited Stephen, Digest of Criminal Law (6thed.),p. 125.
246
THE RULE OF LA W
Part
11.
and a man who prints blasphemy in a paper or in a book commit exactly the same offence, and are dealt with in England on the same principles. Hence also writers in and owners of newspapers have, or rather had until very recently, no special privilege
them from liability.^ Look at the matter which way you will, the main feature of liberty of the press as understood in England is that the press
protecting
(which means, of course, the writers in

only to the ordinary law of the land.
Press
it)
is
subject
deau with
aJy "courts,
Secondly, Press offences, in so far as the term can be used with reference to English law, are tried and
puuishcd Only by the ordinary Courts of the country, that is, by a judge and jury.^
Since the Eestoration,^ offences committed through
the newspapers,
or,
in other words, the publication
therein of libels whether
defamatory, seditious, or
blasphemous, have never been tried by any special

tribunal.
Englishmen seems more a matter of course than this. Yet nothing has in reality
to
Nothing
contributed so
much
to free the periodical press from
any
control.
If the criterion
whether a publication
1 This statement must be to a certain extent qualified in view of the Libel Act, 1843, 6 & 7 Vict c. 96, the Newspaper Libel and Registration Act, 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 to hona fide reports, e.g. of public meetings, in newspapers. 2 The existence, however, of process by criminal information, and the rule that truth was no justification, had the result that during the eighteenth century seditious libel rose almost to the rank of a press offence, to be dealt with, if not by separate tribunals, at any rate by special rules enforced by a special procedure. ^ See as to the state of the press under the Commonwealth, Masson,
Life of Milton, press offences
iii.
pp. 265-297.
Substantially the possibility of trying

to
by special tribunals was put an end of the Star Chamber in 1641, 16 Car. I. c. 10.
by the
abolition

be libellous
is
247
the opinion of the jury, and a
man may
Crown
or
Chapter
publish anything which twelve of his countrymen think

is
L_
not blamable,
it is
impossible that the
the Ministry should exert any stringent control over

writings in the press, unless (as indeed
may sometimes
happen) the majority of ordinary citizens are entirely
when persons
The times power wish to check the excesses of public writers are times at which a large body of But opinion or sentiment is hostile to the executive.
opposed to attacks on the government.
in
under these circumstances it must, from the nature of things, be at least an even chance that the jury called
upon
libels
to find a publisher guilty of printing seditious
sympathise with the language which the ofiicers of the Crown deem worthy of punishment, and hence may hold censures which are prosecuted as
libels to
may
be
fair
and laudable
criticism of ofiicial errors.
Whether the
control indirectly exercised over the ex-
pression of opinion
by the
is
verdict of twelve
common-
place Englishmen
at
the present day certain to
be as great a protection to the free expression of opinion, even in political matters, as it proved a century ago, when the sentiment of the governing
body was diflFerent from the prevalent feeling of the class from which jurymen were chosen, is an interesting speculation into which there is no need to enter.
What
is
certain
is,
that the practical freedom of the
English press arose in great measure from the trial with us of "press offences," like every other kind of
libel,
England simply one result of the universal predominance of the law The terms " liberty of the press," " press of the land.
press, then, is in
by a jury. The liberty of the
348
THE RULE OF LA W
and the hke, are
Part IL
offeuces," " censorship of tJbe press,"

all
but unknown to English lawyers, simply because
any offence which can be committed through the press is some form of libel, and is governed in substance by the ordinary law of defamation. These things seem to us at the present day so
natural as hardly to be noticeable
;
let us,
however,
glance as I have suggested at the press law of France
both before and since the Revolution

condition of the press
and
also at the
i-n England up to nearly the end of the seventeenth century. Such a survey will prove to us that the treatment in modern England of offences committed through the newspapers affords an example, as singular as it is striking, of the legal spirit which now pervades every part of the English
constitution.
Oomparison with the press
France.
Englishman who consults French authorities IS struck With amazement at two facts press law has long Constituted and still constitutes to a certain extent a special department of French legislation, and press offences have been, under every form of government which has existed in France, a more or less
.
Au
The
press
is
now governed
Juill.
in France by the Loi sur la
liberie
de la
this
presse,
29-30
1881.
This law repeals
all earlier edicts,
etc. on the subject. Immediately before law was passed there were in force more than thirty enactments regulating the position of the French press, and iniiicting penalties on offences which could be committed by writers in the press ; and the three hundred and odd closely printed pages of Dalloz, treating of laws on the press, show that the enactments then in vigour under the Eepublic were as nothing compared to the whole mass of regulations, ordinances, decrees, and laws which, since the earliest days of printing down to the year 1881, have been issued by French rulers with the object of controlling the literary expression of opinion and thought. See Dalloz, Repertoire, vol. xxivi., " Presse,"
decrees, laws, ordinances,
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
Droit Constitutionnel, pp. 575-582.

special class of crimes.
249
The Acts which have been
Chapter
^^'
passed in England with regard to the press since the

tenth,
days of Queen Elizabeth do not in number equal oneor even one-twentieth, of the laws enacted
during the same period
France.
same subject in still more marked if we compare the state of things in the two countries since the beginning of the eighteenth century, and (for the sake of avoiding exaggeration) put the laws passed since that date, and which were till 1881 in force in France, against every Act which, whether repealed or unrepealed, has been passed in England since the year 1700. It will be found that the French
the
on
The
contrast becomes
press code consisted, tiU after the establishment of the
present Kepublic, of over thirty enactments, whilst
the
English Acts about the press passed since the

last
beginning of the
century do not exceed a dozen,

little
and, moreover, have gone very
way towards
touching the freedom of writers.
The ground of
this difference lies in the opposite

rela-
views taken in the two countries of the proper

tion of the state to literature, or,
more
strictly, to
the
expression of opinion in print.
In England the doctrine has since 1700 in substance prevailed that the government has nothing to
do with the guidance of opinion, and that the sole duty of the state is to punish libels of all kinds, whether they are expressed in writing or in print. Hence the government has (speaking generally) exercised no special control over literature, and the law of
the press, in so far as
it
can be said to have existed,
has been nothing else

of the law of
libel.
than a branch or an application
250
THE RULE OF LA W
In France, literature has for centuries been con-
Partn.
sidered as the particular concern of the state.
The
to
prevailing doctrine,
as
may
it is
be gathered from the

still
current of French legislation, has been, and
a certain extent
is,
that
the function of the ad-
ministration not only to punish defamation, slander, or
blasphemy, but to guide the course of opinion,
or, at
adopt preventive measures for guarding against the propagation in print of unsound or dangerrate, to
any
Hence the huge amount and the special and repressive character of the press laws which have
ous doctrines.
existed in France.
Up
state.
to the time of the Revolution the whole litera-
was avowedly controlled by the and printed publications of any kind was treated as a special privilege or monopoly of certain libraries the regulations {reglements) of 1723 (some part of which was till quite recently in force ^) and of 1767 confined the right of sale and printing under the severest penalties
ture of the country
The
right to print or sell books
to librarians
publish, again,
ship,
licensed.^ The right to was submitted to the strictest censorexercised partly by the University (an entirely
who were duly
ecclesiastical body), partly
by the Parliaments,
partly
by the Crown.
the
printing
or
The
penalties of death, of the galleys,
of the pillory, were from time to time imposed upon

sale
of
forbidden
works.
These
punishments were often evaded; but they after all retained practical force till the very eve of the Eevolution. The most celebrated literary works of France
'
See
Ibid.
Dalloz,
Repertoire,
vol.
xxxvi., " Presse,"
Tit.
I.
chap.
i.
Compare Roger
2
et Sorel, Codes et Lois, "Presse," pp. 6;J7-652

were published abroad.
Lois appeared at Geneva.
printed in England
;
251
Montesquieu's Esprit des Chapter

Voltaire's
'_
Henriade was the most remarkable of his and

In 1775 a work entitled
of Eousseau's writings were published in London, in
Geneva, or in Amsterdam.
Philosophie de la Nature was destroyed by the order

of the Parliament of Paris, the author
was decreed
In
guilty of treason against
God and man, and would
have been burnt
if
he could have been arrested.
1781, eight years before the meeting of the States

General, Raynal was pronounced by the Parliament
guilty of blasphemy on account of his Histoire des
hides}
remark is, not so much the severity of the punishments which under the Ancien Regime were intended to suppress the
point, however, to
The
expression of heterodox or false beliefs, as the strict
maintenance down to 1789 of the right and duty of

It the state to guide the literature of the country. further be noted that down to that date the should
government made no marked distinction between When the Lettres periodical and other literature. Philosophiques could be burnt by the hangman, when the publication of the Henriade and the EncyclopMie depended on the goodwill of the King, there was no need for establishing special restrictions on newsThe daily or weekly press, moreover, hardly papers.
existed
in
France
till
the
opening of the States
General.^
1
See
Dalloz, Repertoire, vol.

et Sorel, Oodes
et
xxxvi., " Presse,"

Lois, "Presse," pp.
Tit.
I.
chap.
i.
Compare Roger
637-652.
2 See Eocquain, L'Esprit B^volutionnaire avant la Revolution, for " Eocquain's a complete list of " Livres Gondamn^s from 1 7 1 5 to 1 7 8 9. full of information on the arbitrariness of the French Governbook is
ment during the
reigns of Louis
XV. and Louis XVI.
'
252
THE RULE OF LA W
The Revolution (it may be fancied) put an end to upon the press. The Declaration of the
Part
II.
restraints
Rights of
to publish
Man
proclaimed the right of every citizen
and print his opinions, and the language has been cited ^ in which the Constitution of 1791
guaranteed to every
printing,
man the natural right
of speaking,
and publishing
his thoughts without having
his writings submitted to
tion prior to publication.
any censorship or inspecBut the Declaration of
Rights and this guarantee were practically worthless.
They enounced
utterly
a theory which for
many
years was
opposed to the practice government.
of
every French
The Convention did not

seditious
establish a censorship,
but under the plea of preventing the circulation of
works
it
passed the law of 29th March 1793,

free expression of opinion.
which silenced
all
The
First
Directory imitated the Convention.
Under the
Empire the newspaper press became the property of the government, and the sale, printing, and publication of books was wholly submitted to imperial control and censorship.^ The years which elapsed from 1789 to 1815 were,
it
may
be suggested, a revolutionary era which pro-
voked or excused exceptional measures of state interAny one, however, who wants to see how consonant to the ideas which have permanently governed French law and French habits is the notion
ference.
that the administration should

its
by some -means keep
hand on the national
literature of the country,
ought to note with care the course of legislation from

1 2
See
p.
234, anU.
I.
Dalloz, B^pertoire, xxxvi., " Presse," Tit.
chap.
i.

the Restoration to the present day.
253
The attempt,
chapter
indeed, to control the publication of books has been
___
by slow degrees given up
but one government after
another has, with curious uniformity, proclaimed the
freedom and ensured the subjection of the newspaper press. From 1814 to 1830 the censorship
was
practically
established
(21st
Oct.
1814), was
re-
partially
abolished,
was abolished (1819), was
established and extended (1820), and was re-abolished
The Revolution of July 1830 was occasioned by an attempt to destroy the liberty of the press. The
(1828).^
Charter
made
the abolition of the censorship part of the
and since that date no system of censorship has been in name re-established. But as regards
constitution,
newspapers, the celebrated decree of 17th February
1852 enacted restrictions more rigid than anything imposed under the name of la censure by any government
since the fall of
itself
Napoleon
I.
The government took
to
under
this law, in addition to other discretionary
powers, the right to suppress any newspaper without
the necessity of proving the commission of any crime

or oflfence
by the owner of the paper
or
by any writer
authorisation.
in its columns.^
No
one, further, could under this

official
decree set
up a paper without
Nor have
the press.
different forms of the censorship been the
sole restrictions
imposed in France on the
liberty of
The combined operations of enactments
passed during the existence of the Republic of 1848, and under the Empire, was (among other things) to
make
the signature of newspaper articles by their
authors compulsory,* to require a large deposit from

2
1 See Duguit, Traits de Droit Oonstitutionnel, i. pp. 91, 92. D^cret, 17 Fdvrier, 1852, sec. 32, Eoger et Sorel, Codes et Lois, p. 648. 3 Eoger et Sorel, Godes et Lois, p. 646. Lois, 16 JuUiet 1850.
254
THE RULE OF LA W
Part n.
any person who wished to establish a paper,^ to withdraw all press offences whatever from the cognisance
of a jury/ to re-establish or reaffirm the provision
contained in the reglement of 1723 by which no one

could carry on the trade of a librarian or printer
(commerce de la
lihrairie) without a license.
It
may,
in fact, be said with substantial truth that between
much
1852 and 1870 the newspapers of France were as controlled by the government as was every
kind of literature before 1789, and that the Second
Empire exhibited a retrogression towards the despotic The Eepublic,' it principles of the Ancien Regime. is true, has abolished the restraints on the liberty of the press which grew up both before and under the But though for the last twenty-seven years Empire. the ruling powers in France have favoured the liberty or license of the press, nothing is more plain than
1
Roger
et Sorel, Codes et Lois, p. 646.
Lois,
16 Juillet 1850.
Lois, 31 Die.
1851.
perfectly clear
and deserves notice. The legislation was not till 1881, any more than that of the Restoration or the Empire, based on the view of the press which " Press law " still formed a pervades the modern law of England. " Press offences " were a special department of the law of France. particular class of crimes, and there were at least two provisions, and probably several more, to be found in French laws which conflicted with the doctrine of the liberty of the press as understood in England. A law passed under the Republic (6th July 1871. Roger et Sorel, Codes et Lois, p. 652) reimposed on the proprietors of newspapers the necessity of making a large deposit, with the proper authorities, as a security for the payment of fines or damages incurred in the course of the management of the 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 the judgment of a jury, subjected others to the cognisance of Courts of which a jury formed no part. The law of 29th July 1881 establishes the freedom of the press. Recent French legislation exhibits, no doubt, a violent reaction against all attempts to check the freedom of the press, but in its very effort to secure this freedom betrays the existence of the notion that offences committed through the press require in some sort exceptional treatment.
2 is
One thing
of the existing Republic
255
that until quite recently the idea that press oflfences Chapter
were a peculiar
a special
class of offences to
be dealt with in
courts was
is
^^'
way and punished by

theoretical
special
accepted by every party in France.

of extreme
This
It
a matter
importance.
shows how
is the idea that every breach of law ought to be dealt with by the ordinary
foreign to French
notions
law of the land.

other
is
Even a cursory survey
possible in these lectures
of French
and
no
legis-
lation with regard to literature proves, then, that
from the time when the press came into existence up to almost the present date the idea has held ground
that the state, as represented
by the
executive, ought
to direct or control the expression of opinion, and that

this control has
by books and
ship
ance.
restrictions
been exercised by an official censoron the right to print or sell

subjection of press offences to
by the
special laws administered
by
special tribunals.
is
The
more
contrast
tion of press in
occasional relaxation of these restrictions
of import-
But
their
recurring revival
is
of far
significance than their temporary abolition.^
Let us now turn to the position of the English press during the sixteenth and seventeenth centunes.
England
The Crown
originally held all presses in its
own
^^^J^f
hands, allowed no one to print except under
special *^*^
1 Note the several laws passed since 1881 to repress the abuse of freedom in one form or another by the press, e.g. the law of 2nd August 1882, modified and completed by the law of 16th March 1898, for the suppression of violations of moral principles (outrages awx bonnes mceurs) by the press, the law of 28th July 1894, to suppress the advocacy of anarchical principles by the press, and the law of ICth March 1893, giving the French government special powers with regard to foreign newspapers, or newspapers published in a foreign
language.
Conf. Duguit, Manuel de Droit Constitutionnel, p. 582.

256
THE RULE OF LAW

and kept
all
Part
II.
license,
presses subject to regulations put
forward by the Star Chamber in virtue of the royal

prerogative
:
the exclusive privilege of printing was
thus given to
their successors,
ninety-seven London stationers and
who, as the Stationers' Company,

all
constituted a guild with power to seize

issued
publications
by outsiders
the printing-presses ultimately
conceded to the Universities existed only by a decree

of the Star Chamber. Side by side with the restrictions on printing
which appear to have more or

there grew
less
broken down
up
a system of licensing which constituted
a true censorship.^
Press offences constituted a special class of crimes

cognisable
by a
special tribunal
the Star Chamber

fell
which sat without a jury and administered severe

punishments.^
The Star Chamber indeed
in 1641,
never to be revived, but the censorship survived the
Commonwealth, and was under the Kestoration (1662) given a strictly legal foundation by the statute 13 & 14 Car. II. c. 33, which by subsequent enactments
was kept in force
Original
till
1695.^
There existed, in short, in England during the

sixteenth and seventeenth centuries every
indTubse-
method
of
ukenes
between press law of England
France.
Curbing the press which was then practised in France,
and which has prevailed there almost up to the * ^ prcscut day. In England, as on the Continent, the book trade was a monopoly, the censorship was in full vigour, the offences of authors and printers were
1 See for the control exercised over the press Odgers, Lihd and Slander (3rd ed.), pp. 10-13. 2 Gardiner, History of England, vii. pp. 51, 130 225, 234.
down
;
to
1695,
pp.
ibid.,
viii.
See Macaulay, History of England,
iv.
chaps, xix. xxi.

treated as special crimes and severely punished
special tribunals.
257
by
Chapter
^^'
This similarity or identity of the
principles with regard to the treatment of literature
by the government of England and the government of France is striking. It is rendered still more startling by the contrast between the subsequent history of legislation in the two countries. In France (as we have already seen) the
originally upheld
by
censorship, though frequently abolished, has almost as
frequently been restored.
In England the system of
licensing, which was the censorship under another name, was terminated rather than abolished in 1695. The House of Commons, which refused to continue the Licensing Act, was certainly not imbued with any
settled
enthusiasm
for
liberty
of
thought.
The
English statesmen of 1695 neither avowed nor entertained the belief that the " free communication of
and opinions was one of the most valuable man." ^ They refused to renew the Licensing Act, and thus established freedom of the press without any knowledge of the importance of what they were doing. This can be asserted with confidence, for the Commons delivered to the Lords a document which contains the reasons for their refusing
" of the rights of
" thoughts
to
renew the Act.

" This paper completely vindicates the resolution
But it proves "at the same time that they knew not what they " were doing, what a revolution they were making, " what a power they were calling into existence. " They pointed out concisely, clearly, forcibly, and " sometimes with a grave irony which is not uncome.
1
" to which the
Commons had
See Declaration of
the Rights of
Man,
art.
11, p. 234, ante.
2S8
THE RULE OF LA IV
of
Part n.
"becoming, the absurdities and iniquities

" statute
the
which was about to expire. But all their "objections will be found to relate to matters of
" detail. On the great question of principle, on the " question whether the liberty of unlicensed printing " be, on the whole, a blessing or a curse to society,
" not a "
as a thing essentially evil, but on "account of the petty grievances, the exactions, the "jobs, the commercial restrictions, the domiciliary
.
word demned, not
is
said.
The Licensing Act
is
con^
which were incidental to it. It is pronounced " mischievous because it enables the Company of " Stationers to extort money from publishers, because
"visits,
"it empowers the agents of the government to search
"houses under the authority of general warrants,

" because
it
confines the foreign book trade to the
"port
of
London;
because
it
detains
valuable
" packages of books at the
" pages are mildewed.
Custom House till the The Commons complain that

which the licenser may
"the amount of the

"
fee
demand is not fixed. They complain that it is " made penal in an ofiicer of the Customs to open a "box of books from abroad, except in the presence " of one of the censors of the press. How, it is
" very sensibly asked, is the officer to know that " there are books in the box till he has opened it ?
" Such were the arguments which did what Milton's " Areopagitica had failed to do." ^
How
slight
was the hold of the

is
principle of the
liberty of the press on the statesmen
who
abolished
the censorship
years later, a
'
proved by their entertaining, two

(which, however, never passed) to
iv.
bill
Macaulay, History of England,
pp. 541, 542.

prohibit the unlicensed publication of news.^
while, the
259
Yet solemn declaration by the National Assembly

letter, or at
Chapter
.
'
of 1789 of the right to the free expression of thought
remained a dead
influence,
best a speculative maxiin
of French jurisprudence which, though not without
was constantly broken
in
upon by the
actual law of France, the refusal of the English Par-
liament in 1695 to renew the
Licensing Act did
permanently establish the freedom of the press! in England. The fifty years which followed were a
period of revolutionary disquiet fairly comparable
with the era of the Restoration in France.
But the
censorship once abolished in England was never revived, and all idea of restrictions on the liberty of the
press other than those 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 be controlled by the state appear to most persons inexplicable anomalies, and are tolerated only
because they produce so
their existence is forgotten.
little
inconvenience that
To a student who surveys

suggest themselves.
to the
the history of the liberty
Questions
of the press in France and in England two questions
byôHghiai
How
does
it
happen that down
''^'fl^f
^gti^^g^g^""
end of the seventeenth century the principles

?
upheld by the Crown in each country were in substance the same
press law
What,
again,
is
the explanation of
and of
the fact that from the beginning of the eighteenth century the principles governing th6 law of the press
in the
^^^^
'
to be,
two countries have been, as they still continue The similarity and the essentially different?
Macaulay,
England,
pp. 771, 772.
difference each seems at first sight equally perplexing.

1
'History of
i v.
26o
THE RULE OF LA W
Part
II.
Yet both one and the other admit of explanation, and the solution of an apparent paradox is worth giving because of its close bearing on the subject of this lecture, namely, the predominance of the spirit of legality which distinguishes the law of the
constitution.
Eeasons
simUarity!
The grouud of the similarity between the press l^w of England and of France from the beginning
of the sixteenth
till
the beginning of the eighteenth
century,
is
that the governments, if not the people,
of each country were during that period influenced
by very
and by similar between the state and individuals. In England, again, as in every European country, the belief prevailed that a King was responsimilar administrative notions
ideas as to the relation
sible for
the religious belief of his subjects.

for
This
responsibility involves the necessity
regulating
the utterance and formation of opinion.

direction
or
But
this
control
cannot be
exercised
without
governmental interference with that liberty of the press which is at bottom the right of every man to
print any opinion which he chooses
to propagate,
subject only to risk of punishment if his expressions
contravene some distinct legal maxim.

sixteenth
During the
in short, the
and seventeenth
the
centuries,
Crown was
in England, as in France, extending its

;
administrative powers
Crown was
in England,
as in France, entitled, or rather required
by
public
aflfair
opinion, to treat the control of literature as an
of state.
results
;
Similar
in
circumstances
produced
similar
each country the same principles preeach country the treatment of the press
vailed
in
assumed, therefore, a similar character.

The
reason, again,
iti
why,
for
nearly two centuries, chapter

^^.
the press has been treated in France on principles

utterly diflFerent from those which have been accepted
in England, lies deep in the difference of the spirit
Reasons for
similarity.
which has governed the customs and laws of the two

countries.
In France the idea has always flourished that the
government, whether Koyal, Imperial, or Republican,

possesses, as representing the state, rights
as against individuals superior to
and powers and independent of

is
the ordinary law of the land.

so hard for
This
the real basis
of that whole theory of a droit adininistratif} which

it is
Englishmen
fully to understand.
The increase, moreover, in the authority of the central government has at most periods both before and since the Revolution been, or appeared to most Frenchmen
to be, the 'means of
removing
evils
which oppressed
in general
the mass of the people.
The nation has
looked upon the authority of the state with the same

favour with which Englishmen during the sixteenth
The century regarded the prerogative of the Crown. control exercised in different forms by the executive
over literature has, therefore, in the main fully harmonised with the other institutions of France. The
existence,
moreover, of an elaborate administrative
system, the action of which has never been subject to the control of the ordinary tribunals, has always
placed in the hands of whatever power was supreme

in
France the means of enforcing
ofl&cial
surveillance
of literature.
Hence the censorship
(to
speak of no
other
modes
of checking the liberty of the press) has
been on the whole in keeping with the general action

1
See Chap. XII.
ôst.
262
THE RULE OF LA W
Part II
of French goyernments and with the average senti-
ment of the
nation, whilst
there
has never been
wanting appropriate machinery by which to carry

the censorship into
effect.
No doubt
there were heard throughout the eight-
eenth century, and have been heard ever since, vigorous

protests .against the censorship, as against other forms
of administrative arbitrariness
and at the beginning

Hence
of the Great K'evolution, as at other periods since,

efforts
were made in favour of free discussion.
flowed the abolition of the censorship, but this attempt

to limit the powers of the
ticular direction
government
authority
of
in one par-
was quite out of harmony with the

for
general
reverence
the
the
state.
As
long, moreover, as the whole
scheme of French
administration was left in force, the government, in
whatever hands
it
means of resuming
was placed, always retained the its control over the press, when-
ever popular feeling should for a

repression of free speech.
moment
favour the
Hence arose the constantly
recurring restoration of the abolished censorship or of

restraints which,
name
of 7a censure, were
though not called by the unpopular more stringent than has ever
Eestrictions, in short, on
liberty of the
been any Licensing Act.

press
what Englishmen understand by the
have continued to exist in France and are hardly now, abolished, because the exercise of preventive and discretionary authority on the part of
the executive harmonises with the general spirit of
French law, and because the administrative machinery, which is the creation of that spirit, has always placed
(as it still places) in the hands of the executive the proper means for enforcing discretionary authority.
263
In England, on the other hand, the attempt made by the Crown during the sixteenth and seventeenth
centuries to
Chapter
L.
though
because
at
it
form a strong central administration, was for a time attended with success,
of the needs of the age, was
to
it
met some
;
bottom repugnant
the manners and tradi-
tions of the country
people wished the

liked
strength.
at a time when the Crown to be strong, they hardly the means by which the Crown exerted its
and even
Hundreds of Englishmen who hated

cared
little for
toleration
and
freedom of speech, entertained a keen
jealousy of arbitrary power, and a fixed determination

to be ruled in accordance with the law of the land.^ These sentiments abolished the Star Chamber in
1641, and
made the
re-establishment of the hated
Court impossible even for the frantic loyalty of 1660.
But the destruction of the Star Chamber meant much more than the abolition of an unpopular tribunal it meant the rooting up from its foundations of the
;
whole of the administrative system which had been erected by the Tudors and extended by the Stuarts. This overthrow of a form of administration which
contradicted the legal habits of Englishmen had no
any desire for the uncontrolled The Parliament which would expression of opinion. not restore the Star Chamber or the Court of High Commission passed the Licensing Act, and this statute, which in fact establishes the censorship, was, as we have seen, continued in force for some years The passing, however, of the after the Ee volution.
direct connection with
1 See Seidell's remarks on the illegality of the decrees of the Star Chamber, cited Gardiner, History of England, vii. p. 51.
264
THE RULE OF LA W
Part
11.
though not a triumph of toleration, was a triumph of legality. The power of licensing depended
statute,
henceforward, not on any idea of inherent executive
on the statute law. The right of was left in the hands of the government, but this power was regulated by the words of a statute and, what was of more consequence, breaches of the Act could be punished only by proceedings in
authority, but
licensing
;
the ordinary Courts.
The
fall
of the Star
Chamber
deprived the executive of the means for exercising

arbitrary power.
Hence the
Commons in 1695 to something very different from the proclamation of

freedom of thought contained in the French Declaration of Rights, or from
House of continue the Licensing Act was

refusal of the
any of the laws which have
abolished the censorship in France.
To
abolish the
right of the government to control the press, was,

in England, simply to do
away with an exceptional
authority, which was opposed to the general tendency
of the law, and the abolition was final, because the
executive had already lost the means by which the

control of opinion could be effectively enforced.
To sum
the whole matter up,
the
censorship
re-
though constantly abolished has been constantly

powers by the government has been and still harmony with French laws and institutions.
abolition
is
vived in France, because the exertion of discretionary

in
The
of the
censorship
was
final
in England,
because the exercise of discretionary power by the
Crown was inconsistent with our system of administration and with the ideas of English law. The contrast is made the more striking by the paradoxical
fact,
that the statesmen
who
tried
with
little
success
265
to establish the liberty of the press in France really Chapter
intended to proclaim freedom of opinion, whilst the
statesmen
who would not
pass the Licensing Act, and
thereby founded the liberty of the press in England,

held theories of toleration which
contrast
fell
far
short
of
favouring unrestricted liberty of discussion.

is
This
not only striking in
itself,
but also affords
the strongest illustration that can be found of English
conceptions of the rule of law.
CHAPTER
VII
.THE RIGHT OF PUBLIC MEETING,

Part
II.
The law
is
of Belgium
with regard to public meetings

re:
Eight of
public meeting.
contained in the nineteenth article of the constitu-
tion,
which
is
probably intended in the main to
produce the law of England, and runs as follows

Bules of
Belgian
constitution.
Les Beiges ont le droit de s' assembler " paisiblement et sans armes, en se conformant aux
19.
"Art.
"
lois, qui peuvent r4gler I'exercice de ce droit, " sans ndanmoins le soumettre h une autorisation " prealahle.
.
" Cette disposition ne s'applique point aux ras" semblements en plein air, qui restent entihrement
" soumis
Principles of English law as to right of public meeting.
aux
lois
de police."
The
restrictions
appear to be more stringent
England,
for
on the practice of public meeting in Belgium than in the police have with us no special
authority to control open-air assemblies.

as it
Yet just
cannot with
strict
accuracy be asserted that
1 See generally as to the right of public meeting, Stephen, Gommentaries, iv. (14th ed.), pp. 174-178, and "Kenny, Outlines of Criminal Law (3rd ed.), pp. 280-286. See Appendix, Note V., Questions connected with the Right of Public Meeting.
2 See Law Quarterly Review, iv. See also as to right of p. 159. public meeting in Italy, ibid. p. 78 in France, ihid. p. 165 in Switzerland, ibid. p. 169 ; in United States, ibid. p. 257. See as to history of law of public meeting in France, Duguit, Manuel de Droit
; ;
Constitutionnel, pp.
^
554-559.
266
THE RIGHT OF PUBLIC MEETING
267
English law recognises the liberty of, the press, so it can hardly be said that our constitution knows of such a thing as any specific right of public meeting.
Chapter
!_
No
better instanc'e can indeed be found of the

.
way
in which in England the constitution is built up upon individual rights than our rules as to public assemblies. The right of assembling is nothing more than a result of the view taken by the Courts as to
individual liberty of person and individual liberty of
no special law allowing^, B, arid C to meet together either in the open air or elsewhere for a lawful purpose, but the right of A to go where he pleases so that he does not commit a
speech.
There
is
trespass,
and to say what he
likes to
so that his
talk
is
not libellous or seditious, the right of
to
do
and the existence of the same rights of C, D, E, and F, and so on ad infinitum, lead to the consequence that A, B, C, D, and a thousand or ten
the
like,
thousand other persons,

together in any
lawful manner.
place
may
(as a general rule)^ riieet
have a right to be for
where otherwise they each a lawful purpose and in a
has a right to walk
down
the
same In other words, A, B, C. right to go there also. and D, and ten thousand such, have a right to hold may say to B that he a public meeting and as
C,
High Street same right.
or to go on to a
common.
has the
D, and
all their
friends have the
thinks an Act ought to be passed abolishing the House of Lords, or that the House of Lords are
bound
to reject
any
bill
modifying the constitution
1 It is not intended here to express any opinion on the point to meet together whether an agreement on the part of A, B, and may not under exceptional circumstances be a conspiracy.
268
THE RULE OF LA W
Part
II.
of their House, and as

to
B may
make the same remark
any of
his friends, the result ensues that
and
ten thousand more may hold a public meeting either to support the government or to encourage the Here then you have in resistance of the Peers. substance that right of public meeting for political
and other purposes which
is
constantly treated in
foreign countries as a special privilege, to be exercised only subject to careful restrictions.

tion,
The
asser-
however, that
A,B,
C,
and D, and a hundred
thousand more persons, just because they

go where they
political
like,
may
each
and each say what they

topics, does not of course
please,
have a right to hold meetings for the discussion of
and other
is
mean
object
that
it
impossible for persons so to exercise the
right of meeting as to break the law.
The
of a meeting
force, or in
may be to commit a crime by open some way or other to break the peace, in
itself
becomes an unlawful which a meeting is held assembly.^ The mode in may threaten a breach of the peace on the part of those holding the meeting, and therefore inspire in which peaceable citizens with reasonable fear case, again, the meeting will be unlawful. In either instance the meeting may lawfully be broken up, and
which case the meeting
;
the
members
in
of
it
expose themselves to
all
the con-
sequences,
the
way
of arrest, prosecution, and of
punishment, which attend the doing

acts, or, in other
Meeting
fill
unlawful
words, the commission of crimes.
A
^
public meeting which, from the conduct of those

it,
because
engaged in
-^""^ ^^^^
as, for
example, through their marching
it
will
lawful opposition.
Note
V.,
meaning of the term " unlawful assembly '' see Appendix, Questions connected with the Right of Public Meeting.
269
together in arms, or through their intention to excite Chapter

a breach of the peace on the part of opponents/
will be broken, is
fills
peaceable citizens with reasonable fear that the peace
an unlawful assembly.
illegal
which
is
not otherwise
does not
it
But a meeting become an unexcite violent

indirectly lead
lawful assembly solely because
will
and unlawful opposition, and thus may

to a breach of the peace.
Suppose, for example, that

to hold
the
members of the Salvation Army propose
a meeting at Oxford, suppose that a so-called Skeleton
Army announce
ists
that they will attack the Salvationforce, suppose, lastly, that
and disperse them by

of the
thereupon peaceable
quiet
citizens
town
to
who do not like the be disturbed and who dread
riots, urge the magistrates to stop the meeting of the
This may seem at first sight a reasonbut the magistrates cannot, it is subable request,
Salvationists.
mitted,^ legally take the
course suggested to them.
That under the present state of the law this must be to The right of so is on reflection pretty clear.
walk down the High Street is not, as a rule,* taken to knock A down if A away by the threat of
takes his proposed walk.

1
It is true that
14 L. E.
Ir.
^'s going
v.
Compare
(JKelly v. Harvey,
105, Humphries
Connor, 17 Ir. C. L. E. 1, 8, 9, judgment of Fitzgerald, J. 2 This statement must be read subject to the limitations stated,
p.
273,
s
post.
assume, of course, that the Salvationists meet together, as they certainly do, for a lawful purpose, and meet quite peaceably, and without any intent either themselves to break the peace or to The magistrates, however, could incite others to a breach thereof. require the members of the Skeleton Army, or perhaps even the members of the Salvation Army, to find sureties for good behaviour Compare Kenny, Outlines of Criminal Law or to keep the peace. (3rd ed.), pp. 282, 486 ; Wise v. Dunning [1902], 1 K. B. 167. * See p. 278, post, and compare Humphries v. Connor, 17 Ir.
I C. L. E. 1.
270
THE RULE OF LA W
High
Street
Part
II.
into the
may
lead to a breach of the
peace, but
than a
man whose
no more causes the breach of the peace pocket is picked causes the theft
by wearing
w:alk
a watch.
is
the victim, not the author

if
of a breach of the law.
Now,
the right of
to
down the' High Street is not affected by the X, the right of A, B, and C to march down the High Street together is not diminished by. the proclamation of X, Y, and Z that they will not suffer A, B, and C to take their walk. Nor does it make any difference that A, B, and C ca,ll themseltes the Salvation Army, or that X, Y, and Z call themselves the Skeleton Army. The plain principle
threats of
is
that ^'s right to do a lawful act, namely, walk

Street, cannot
down the High

down.
This
is
be diminished by X's
threat to do an unlawful act, namely, to
knock
the principle established,
or rather
by the case of Beatty v. Gillhanks} The Salvation Army met together at Weston-super-Mare with the knowledge that they would be opposed, by the Skeleton Army. The magistrates had put out a notice intended to forbid the meeting. The Salvationists, however, assembled,, were met by the police, and told to obey the notice. X, one of the members, declined to obey and was arrested. He was subsequently, with others, convicted by the magistrates of taking part in an unlawful assembly. It was an
illustrated,
Army
The
undoubted fact that the meeting of the Salvation was likely to lead to an attack by the Skeleton Army, and in this sense cause a breach of the peace.
by the magistrates was quashed on appeal to the Queen's Bench Division.

1
conviction, however, of
9 Q. B, D. 308.

"
271
What
has happened here," says Field,
J.,
" is
Chapter
^^^'
"that an tinlawful organisation [the Skeleton Army] " has assumed to itself the right to prevent the appel"lants and others from lawfully assembling together,
"
and the finding of the
justices
amounts
to this, that
if
" a "
man
miay be convicted for doing a lawful act

his doing it
"he knows that

an unlawful
" proposition."
^
may
cause another to do
for
act.
There
is
no authority
is
such a
The
principle here laid
down
thus expressed
by
an Irish judge in a case which has itself received the approval of the English King's, Bench Division.^
" the
said on both sides in the course of argument abbut the case qf Beatty v. Gillbanks.^ " I am not sure that I would have taken the same view " of the facts of that case as was adopted by the Coiirt
"
Much has been
" that decided it ; but I agree with both the law as laid " down by the Judges, and their application of it to the
" facts as they understood them. The principle under" lying the decision seems to me to' be that an. act
" innocent in itself,
"
done with innocent

to the
intent,
and
reasonably incidental to the performance of a duty,
"to the carrying on df business,

1
enjoyment of
Bcaty
v. Glenister,
Beatty
v. Gillbcmks,
9 Q. B. D. 308, at
v.
p.
314.
1
W. N. 1884,
Irish cases,
p.
93
Beg. v. Justices of Londonderry,
with which contrast Wise
Dunning [1902],
Humphries v. Connor, 17 Ir. C. L. E. 1 O'Kelly v. Harvey, 14 L. E. Ir. 105. 14 Cox C. C. 572 It is to be noted that the King's Bench Division in deciding Wise V. Dunning did not mean to overrule Beatty v. Gillbanh, and apparentlyconceived that they were following Beg. v. Justices of Londonderry. See also Appendix, Note V., Questions connected with the Right
;
.
28 L. K. Ir. 440 ; K. B. 167, and the Beg. v. M'Naghton, ;
of Pu))lic Meeting.
2
See Beg.
v. Justices
Dunning [1902],
3
of Londonderry, 28 L. E. Ir. 440 K. B. 167, 179, judgment of Darling^ J.
Wise
v.
9 Q. B. D. 308.
272
THE RULE OF LA W
Part II
" legitimate recreation, or generally to the exercise of
" a legal right, does not become criminal because it " may provoke persons to break the peace, or other-
" wise to conduct themselves in an illegal way."
Nor
is it
in general
an answer to the claim
of, e.g.
the Salvationists, to exercise their right of meeting,

that whilst such exercise
may
excite wrongdoers to
break the peace, the easiest
way
of keeping
it
is
to
prevent the meeting, for " if danger arises
from the
" exercise of lawful rights resulting in a breach of the " peace, the remedy is the presence of suflBcient force " to prevent that result, not the legal condemnation of " those who exercise those rights." ^
The
principle, then, that a
meeting otherwise in
is
every respect lawful and peaceable

unlawful merely by the possible
not rendered
probable missubmitted,^
or
conduct of wrongdoers,
well established,
who
it
to prevent the meeting

is, it is
are determined to break the peace,
whence
follows that in general an
otherwise lawful public meeting cannot be forbidden

1 The Queen v. Justices of Londonderry, 28 L. R. Ir. 440, pp. 461, 462, judgment of Holmes, J. 2 Reg. V. Justices of Lorodonderry, 28 L. E. Ir. 440, p. 450, judgment of O'Brien, J. Wise V. Dunning [1902], 1 K. B. 167, or rather some expressions used in the judgments in that case, may undoubtedly be cited as laying down the broader rule, that a public meeting in itself lawful, and carried on, so far as the promoters and the members of it are concerned, perfectly peaceably, may become unlawful solely because the natural consequence of the meeting will be to produce an unlawful act, viz. a breach of the peace on the part of opponents (see pp. 175, 176, judgment of Alverstone, C. J. ; p. 178, judgment of Darling, J. ; pp. 179, 1 80, j udgment of Ohannell, J.). It should be noted, however, that Wise V. Dunning has reference, not to the circumstances under which a meeting becomes an unlawful assembly, but to the different question, what are the circumstances under which a person may be required to find
'^
sureties for
p.
good behaviour?
(see
Kenny,
Outlines of Criminal
Law,
486).
'

or broken
273
up by the magistrates simply because the

probably or naturally lead to a breach
Chapter
meeting
may
^""
of the peace on the part of wrongdoers.
To the
application of this principle there exist
certain limitations or exceptions.
They
are grounded
on the absolute necessity

peace.
for preserving the King's
First limitation.
If there is
anything unlawful
of a
(i)
where
in the conduct of the persons convening or addressing
{"mtethig
a meeting, and the illegality

naturally
is
kind which
Îoh
p^*'=^-
rf
provokes opponents to a breach of the
and the members of the meeting may be held to cause the breach of the peace, and the meeting itself may thus become an unlawful
peace, the speakers at
meeting.
sialist
If,
for example,
a Protestant controver-
surrounded by his friends uses in some public place where there is a large Eoman Catholic population, abusive
language which
is
in fact slanderous of
is by a local by-law and thereby provokes
Roman
a
Catholics, or
which he
streets,
forbidden to use in the
mob
meeting
the
Eoman Catholics to break the peace, the may become an unlawful assembly. And same result may ensue where, though there is
of
is
nothing in the mode in which the meeting
carried
on which provokes a breach of the peace, yet the object of the meeting is in itself not strictly lawful, and may
^ therefore excite opponents to a breach of the peace.
Second limitation. Where a public meeting, ^2) where though the object of the meeting and the conduct of meeting
members thereof are strictly lawful, provokes a breach of the peace, and it is impossible to preserve or
the
1
but peace
be kept by
dispersing
^
Compare Wise
Ir.
v.
Dunning [1902],
K. B. 167, and ffKelly
v.
Harvey, 14 L. R.
105.
274
THE RULE OF LA W
by any other means than by
dispers-
Part
II.
restore the peace
ing the meeting, then magistrates, constables, and

other persons in authority
may
call
upon the meeting

it
to disperse, and, if the meeting does not disperse,
becomes an unlawful assembly.^

example, that the Salvation
Oxford, that a so-called
assembling, and that
Let us suppose,
for
Army hold a meeting at Skeleton Army come together

in strictness impossible for
with a view to preventing the Salvationists from

it is
the peace to be preserved by any other means than by

requiring the Salvationists to disperse.
Under
these
circumstances, though the meeting of the Salvation
Army is in itself perfectly lawful, and though the wrongdoers are the members of the Skeleton Army,
it would seem, if they can in no other way preserve the peace, require the Salvationists to disperse, and if the Salvationists do not do so, the meeting becomes an unlawful assembly and it is
yet the magistrates may,
possible that, if the magistrates
have no other means

cannot
protect the
of
preserving
the
peace,
i.e.
Salvationists
may
from attack by the Skeleton Army, they lawfully prevent the Salvationists from holding
for prevent-
But the only justification ing the Salvationists from exercising

the meeting.^
rights
is
their
legal
the necessity of the ease.
If the peace can
be preservled, not by breaking up an otherwise lawful

^
See especially
0' Kelly v.
It is particularly to
Harvey, 14 L. R. Ir. 105. be noted that in 0' Kelly v. Harvey, 14 L. B.
Ir. 105, the case in which is carried furthest the right of magistrates to preserve the peace by dispersing a lawful meeting, X, the magistrate
against
whom
an action for assault
wa,s
brought, believed that there
would be a breach of the peace if the meeting broken up continued assembled, and that there was no other way by which the breach of the peace could be avoided but by stopping and dispersing the meeting. Ibid. p. 109, judgment of Law, C.

meeting, but by arresting the wrongdoers
case
275
the Skeleton
Army
is
the
in this
chapter
magistrates or con-
stables are bound, it
submitted, to arrest the wrong-
doers and to protect the Salvationists in the exercise

of their lawful rights.^
One
it is
point, however,' deserves special notice since
apt to be overlooked.
restrictions
.
The limitations or paramount necessity

are,
which
.,
arise
TT-.
from the
,
Limitations on right of
whatever
their extent,
extent some fair

else
preservmg the Jimgs peace and as to their exact doubt exists, in reality nothing
lor
mêetlng
^^l^^^H^^^
î;^j
than restraints, which, for the sake of preserving the peace, are imposed upon the ordinary freedom of
individuals.
freedom.
Thus if .4, a religious alone and unaccompanied by

addresses the public
in, say,
controversialist, acting
friends
and supporters,
the streets of Liverpool,
and uses language which is defamatory or abusive, or, without being guilty of defamation, uses terms of abuse which he is by a local by-law forbidden to use
in the streets,
and thereby, as a natural
result of his
oratory, excites his opponents to a breach of the peace,
be held liable for the wrongful acts of which his language is the cause though not the legal justification, and this though he does not himself break
he
may
the peace, nor intend to cause others to violate
it.
He may,
certainly,
be called upon
to find sureties for
his good behaviour, and he may, probably, be prevented by the police from continuing addresses which " the cases with are exciting a breach of the peace, for " respect to apprehended breaches of the peace show
1
This
is
particularly well brought out in
Q Kelly
v.
Harvey, 14
L. R, Ir.
105,
276
THE RULE OF LA W
human
Part
II.
" that the law does regard the infirmity of
"temper
to the extent of considering that a breach of
may be the natural "consequence of insulting or abusive language or

" the peace, although an illegal act,
" conduct."
1
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 prevent him
from pursuing a course which in itself is perfectly legal. Thus A, a zealous Protestant lady, walks through a crowd of Eoman Catholics wearing a party emblem, namely, an orange lily, which under
the circumstances of the case
is
certain to excite,
does excite, the anger of the mob.
and She has no intenshe exposes her-
tion of provoking a breach of the peace, she is doing
nothing which
self,
is
in itself unlawful
however, to insult, and to pressing danger of
public attack.
A riot
has begun
X,
a constable
who
She
has no other means of protecting ^, or of restoring

the peace,
refuses to
less force,
requests
her to remove the
lily.
peace.
do so. He then, without use of any needremoves the flower and thereby restores the The conduct of is apparently legal, and A
has no ground of action for what would otherwise
have been an
conduct
rioters
is
assault.
not that
The legal vindication of X's was a wrongdoer, or that the
were within their rights, but that the King's
peace could not be restored without compelling
to
remove the
1
lily.^
Wise, V.
Dunning [1902],
v.
K. B. 167, at pp. 179, 180, judgment
of Channell, J.
17 Ir. C. L. R. 1. The case is verythe right of magistrates or constables to interfere with the legal conduct of A, for the sake of preventing or terminat2
Humphries
;
Connor,
noticeable
it carries
277
No
public
meeting,
illegal,
further,
which would not
Chapter
otherwise be
becomes so (unless in virtue of L some special Act of Parliament) in consequence of^^^^"^^ any proclamation or notice by a Secretary of State, ?"^*^^"\ by a magistrate, or by any other official. Suppose, prociamafor example, that the Salvationists advertise throughillegality.
out the town that they intend holding a meeting in

a field which they have hired near Oxford, that they
intend to assemble in
St. Giles's
and march thence

playing
to
with banners flying and bands

proposed place of worship.
their
Suppose that the
Home
it is
Secretary thinks that, for one reason or another,
undesirable that the meeting should take place, and

serves formal notice
or
on the
called
upon every member of the army, who are going to conduct the so"campaign" at Oxford, that the gathering
officers
must not take

illegal,
place.
This notice does not alter the
character of the meeting, though, if the meeting be
the notice makes any one
who
reads
it
aware
the
of the character of the assembly,

responsibility for attending
ing a breach of the peace by X, to
its
and thus
affects his
it.^
Assume
that
The interby necessity, and an eminent Irish judge has doubted whether it was not in this case " I do not see where we are to draw the line. If carried too far. " [X] is at liberty to take a lily from one person \A'\ because the wearvery furthest extent.
ference, if justifiable at all, can be justified only
" ing of it is displeasing to others, who may make it an excuse for a " breach of the peace, where are we to stop ? It seems to me that we " are making, not the law of the land, but the law of the mob supreme, " and recognising in constables a power of interference with the rights of " the Queen's subjects, which, if carried into effect to the full extent of " the principle, might be accompanied by constitutional danger. If it " had been alleged that the lady wore the emblem with an intent to
it would render her a wrongdoer ; and " she might be chargeable as a person creating a breach of the peace," Humphries v. Connor, 17 Ir. C. L. E. 1, at pp. 8, 9, per Fitzgerald, J. 1 See Bex v. Fursey, 6 C. & P. 81 ; 3 St. Tr. (n. s.) 543.
" provoke a breach of the peace,
278
THE RULE OF LA W
if
Part
II.
meeting would have been lawful

not been issued, and
to take place.
it
the notice had
certainly
will
not become
unlawful because a Secretary of State has forbidden

it
circumstances as
little
The proclamation has under these legal effect as would have a
proclamation from the
Home
Ofl&ce forbidding
me
or
any other person to walk down the High Street. It government has little or no power of preventing meetings which to all appearance are lawful, even though they may in fact turn out when actually convened to be unlawful because of the mode in which they are conducted. This is certainly a singular instance of the way in which adherfollows, therefore, that the
ence to the principle that the proper function of the

state
is
the punishment, not the prevention, of crimes,
deprives the executive of discretionary authority.

Meeting
A meeting,
less,
lastly,
may
be lawful which, neverthe-
Sui^
hSg""
topuwfc
interest,
to convene.
any wise or public-spirited person would hesitate For A, B, and C may have a right to
^"^^ ^ meeting, although their doing so will as a matter of fact probably excite opponents to deeds of
violence,
and possibly produce bloodshed.
Suppose
a Protestant zealot were to convene a meeting for the purpose of denouncing the evils of the confessional,
and were to choose as the scene of the open-air gathering some public place where meetings were usually held in the midst of a large town filled
with a population of
Eoman
Catholic
poor.
The
meeting would,
can doubt that
of opponents.
it is
it
conceived, be lawful, but no one
Neither the government,

(it is
might provoke violence on the part however,

submitted), as a rule,
nor the magistrates could

at
any
rate,
prohibit
and prevent the meeting from

taking place.
the meeting
if
279
would seem, prevent the Protestant controversialist and his
They might,
it
Chapter
'-
friends intended to pursue a course of conduct, e.g.

to give utterance to libellous abuse,
which would be
both
peace
illegal
and might naturally produce a breach of

if
the peace, or
the circumstances were such that the
could not be preserved
preventing the meeting.'
otherwise than by But neither the governit
ment nor the magistrates
can,
is
submitted, solely
on the ground that a public meeting
may provoke
wrongdoers to a breach of the peace, prevent loyal citizens from meeting together peaceably and for a
lawful purpose.
Of the
policy or of the impolicy of
denying to the highest authority in the state very wide power to take in their discretion precautionary measures against the evils which may flow from the
injudicious exercise of legal rights,
it is
unnecessary
is
here to say anything.

notice
is
The matter which
worth
of
the
way
in
which the rules as to the right

Spirit'
of public meeting illustrate both the legal
our institutions and the process by which the decisions of the courts as to the rights of individuals have in
effect
made the
right of public meeting a part of the
law of the constitution.

and compare UKelly v. Harvey, 14 L. B. Ir. 28 L. K. Ir. 440, and '(Fise V. Dunning [1902], 1 K. B. 167,, with Beatty v. Oillbanks, 9 Q. B. D. 308. And the magistrates might probably bind over the conveners The law on of the meeting to find sureties for their good behaviour. " Even a person who this point may, it appears, be thus summed up "has not actually committed any offence at all may be required to "find sureties for good behaviour, or to keep the peace, if there be "reasonable grounds to fear that he may commit some offence, or may " incite' others to do so, or even that he may act in some manner
See p. 269, 105, with Reg. v.
1
ante,
Justices of Lcmdonderry,
" which
".to
would naturally tend to induce other people (against his commit one." Kenny, Outlines of Criminal Law, p. 486.
desire)
CHAPTER
VIII
MARTIAL LAW
Part
II.
The
rights already treated of in the foregoing chapter,
No
sharp
be drawn
rui^ôf
private law or of criminal
constitutional law.
example the right to personal freedom or the ^^g^^ to free expressloH of opinion, do not, it may be
as for
suggested, properly belong to the province of constitutional law at

.
all,
but form part either of private law

(>
strictly SO Called,
or of the ordinary criminal law.

is,
11
be
Thus ^'s right
to personal freedom
it
may
said,
only the right of
A not
to be assaulted, or imprisoned,
by X,
or (to look at the

is
same thing from another

if
point of view)
assaulted
nothing else than the right of A,

to bring
by X,
an action against X, or to
the assault.
have
X punished as a criminal for

it
Now
an element of important undoubted that the right to personal freedom, the right to free discussion, and the
in this suggestion there lies
truth, yet
is
also
like,
appear in the forefront of
many
written constitu-
tions,
and
are in fact the
chief advantages which

to
citizens Jiope to gain
by the change from a despotic
a constitutional form of government.
The truth
is
that these rights
from two points of view. simply parts of private or,
may be looked upon They may be considered may

be, of criminal
it
law
thus the right to personal freedom may, as already

280
MARTIAL LA W
pointed out, be looked at as the right of
so far as these rights hold
281
A not to
have
Chapter
'-
the control of his body interfered with by X.
But in
good against the governing
body
in the state, or- in other words, in so far as these
rights determine the relation of individual citizens
towards the executive, they are part, and a most important part, of the law of the constitution.
Now
the noticeable point
is
that in England the
rights of citizens as against each other are (speaking
same as the rights of citizens against any servant of the Crown. This is the significance of the assertion that in this country the law of the conThe stitution is part of the ordinary law of the land.
generally) the
fact that
a Secretary of State cannot at his discretion
and for reasons of state arrest, imprison, or punish any man, except, of course, where special powers are conferred upon him by statute, as by an Alien Act or by
an Extradition Act,
is
simply a result of the principle

is
that a Secretary of State

in his private conduct
governed in his
Secretary to
fit
official
as
by the ordinary law
of the
realm.
Were
the
Home
assault
the
leader of the Opposition in a
of anger, or were
the
his
Home
Secretary to arrest
him because he thought
political
opponent's freedom dangerous to the
state, the Secretary of State would in either case be liable to an action, and all other penalties to which
a person exposes himself
by committing an
assault.
an influential politician might excite disturbance was a strictly whose speeches administrative act, would afi"ord no defence to the Minister or to the constables who obeyed his orders. The subjects treated of in this chapter and in the
The
fact that the arrest of
next three chapters clearly belong to the
field
of
THE RULE OF LA W
Part
II.
constitutional law,
ing to their
and no one would think of objecttreatment in a work on the law of the

it will
constitution that they are really part of private law..
Yet,
if
the matter be looked at carefully,
be found
that, just as rules
which at first sight seem to belong to the domain of private law are in reality the foundation of constitutional principles, so topics which
appear to belong manifestly to the law of constitution depend with us at bottom on the principles of private or of criminal law.
soldier
is
Thus the position of a England governed, as we shall see, by the principle, that though a soldier is subject to special liabilities in his military capacity, he remains while in the ranks, as he was when out of them, subject to all the liabilities of an ordinary citizen. So, from a legal
in
point of view, ministerial responsibility
is
simply one
application of the doctrine which pervades English

law,^ that
no one can plead the command of a superior,
Crown itself, in defence of conduct otherwise not justified by law. Turn the matter which way you will, you come back to the all-important consideration on which we
were
it
the order of the
have already dwelt, that whereas under
many
foreign
constitutions the rights of individuals flow, or appear

to flow, from the articles of the constitution, in
Engtoo,
land the law of the constitution
is
the result, not the

It
source of the rights of individuals.
becomes,
more and more apparent that the means by which the

Courts have maintained the law of the constitution
have been the

first
^
strict insistence upon the two principles, of " equality before the law," which negatives
See
Mommsen, Romische
to
what seems
Staatsrecht, p. 672, for the existence of have been a similar principle in early Roman law.
MARTIAL LA IV
283
exemption from the liabilities of ordinary citizens or from the jurisdiction of the ordinary Courts, and,
secondly, of " personal responsibility of wrongdoers,"
Chapter
1
which excludes the notion that any breach of law on

the part of a subordinate can be justified by the orders
of his superiors
;
the legal dogma, as old at least as

if
the time of Edward the Fourth, that,
any man
arrest
another without lawful warrant, even by the King's
command, he
to
shall not
an action
for false
be excused, but shall be liable imprisonment, is not a special
limitation imposed
upon the royal prerogative, but
the application to acts done under royal orders of that principle of individual responsibility wbich runs
through the whole law of

" Martial
torts.
law,"
in
the
proper
sense
of
that
Martial
term, in which it means law and" the temporary government of a country

or parts of
it
the suspension of ordinary
by
military tribunals,
is
unknown
to
the law of England.^

to
We
have nothing equivalent
what
is
called in France the " Declaration of the
State of Siege,"* under which the authority ordinarily vested in the civil power for the maintenance of
and See Hearn, Government of England (2Ed ed.), chap, iv; Gardiner, History, x. pp. 144, 145. compare Stephen, History 2 See Forsyth, Opinions, pp. 188-216, 481-563 Criminal Law, i. pp. 201-216 ; Rex v. Pinney, 5 C. & P. 254 ; 3 St. of
1
; ;
Tr.
(n. s.)
11
Beg. v. Vincent, 9 C.
C.
&
P.
91
St. Tr. (n.
s.)
1037
Reg. V.
NeaU, 9
&
P. 431.
3 This statement has no reference to the law of any other country British than England, even though such country may form part of the With regard to England in time of peace the statement Empire. As to how far, if at all, it ought to be qualified is certainly true. Law in with regard to a state of war, see Appendix, Note X., Martial
England during Time

4
of
War
or Insurrection.
Sorel, Codes et See Loi sur Petal de siige, 9 Aout 1849, Hoger et Loi Z Avril 1878, art. 1, and generally Duguit, Manuel Lois, p. 436 ; See p. 288, post. 926. de Droit Constitutionnel, s. 76, pp. 510-513,
284
THE RULE OF LA W
army
{autorite
Part
II.
order and police passes entirely to the

militaire).
an unmistakable proof of the permanent supremacy of the law under our constitution. The assertion, however, that no such thing as
This
is
martial law exists under our system of government, though perfectly true, will mislead any one who does
not attend carefully to the distinction between two

utterly different senses in which the
term " martial

for
law
In what
''
" is
used by English writers.

is
Martial law
the
sometimes employed as a name

right of the
tiai
law
common law
by
Crown and
its servants
by^gnsh *o repel force

'''"'
force in the case of invasion, insur-
rection, riot, or generally of
any violent resistance

is
to
the law.
This right, or power,
essential to the very
existence of orderly government,
recognised in the most ample
and is most assuredly manner by the law of
power which has in itself no special connection with the existence of an armed force. The
England.
It is a
Crown has the

Every whether what
peace.
in
right to put
down breaches
of the
subject,
is
whether a
civilian or a soldier,
called a
"servant of the govern-
ment," such for example as a policeman, or a person no way connected with the administration, not
only has the right, but
is,
as a matter of legal duty,^
bound
to assist in putting
No doubt
order, are
riot,
of the peace. policemen or soldiers are the persons who,
down breaches
as being specially
employed in the maintenance of most generally called upon to suppress a

clear that all loyal subjects are
but
it is
bound
to
take their part in the suppression of riots.

1
Compare Miller
v.
Knox, 6 Scott
L.J.,
1.
See statement of Commis-
sioners including
Bowen,
and R.
B. Haldane, Q.C.for Inquiring into
the Disturbances at Featherstone in 1893 [C. 7234], and see Appendix, Note VI., Duty of Soldiers called upon to disperse Unlawful Assembly.
MARTIAL LA W
It is
285
also clear that a soldier has, as

liability to the
such,
no
Chapter
exemption from
restoring order.
law for his conduct in
Officers, magistrates, soldiers, police-
men, ordinary citizens, all occupy in the eye of the law the same position they are, each and all of them, bound to withstand and put down breaches of the peace, such as riots and other disturbances they are, and all of them, authorised to employ so much each force, even to the taking of life, as may be necessary for that purpose, and they are none of them entitled they are, each and all of them, liable to to use more
;
;
be called to account before a jury for the use of excessive, that is, of unnecessary force they are eech,
;
it
must be added
for this is often forgotten
liable,
in theory at least, to be called to account before the
Courts for non-performance of their duty as citizens in

putting
though of course the degree and kind of energy which each is reasonably bound to exert in the maintenance of order may depend upon and differ with his position as officer, magistrate,
riots,
down
soldier, or
ordinary civilian.
propositions should study the leading case of
Whoever doubts these Rex v.

duty of Reform Eiots
Pinney^ in which was the Mayor of Bristol in

of 1831.
fully considered the
reference to the
So accustomed have people become to fancy that the maintenance of the peace is the duty solely of
soldiers or policemen, that
many
students will prob-
ably feel surprise on discovering, from the doctrine laid down in Rex v. Pinney, how stringent are the
obligations of a magistrate in time of tumult, and
how
to
unlimited
is
the amount
I
of force which he
;
is
bound
5 C.
&
P.
254
3 St. Tr.
(n. s.) 11.
286
THE RULE OF LA W
Part
II.
employ in support of the law. A student, further, must be on his guard against being misled, as he well might be, by the language of the Eiot Act.^ That
stEltute provides, in substance,
that if twelve rioters
continue together for an hour after a magistrate has
made a proclamation
(which proclamation
to
is
them
in the terms of the
Act
absurdly enough called read-
ing the Eiot Act) ordering them to disperse, he
may
command
the troops to
in hand.^
it is
fire
upon the
rioters or charge
is
them sword
language, but
This, of course,
not the
the effect of the enactment.

is
Now
likely
the error into which an uninstructed reader

to
fall, and into which magistrates and officers have from time to time (and notably during the Gordon
riots of
effect of the
1780) in fact fallen, is to suppose that the Riot Act is negative as well as positive,
and
that, therefore, the military
cannot be employed
to be erro-
without the fulfilment of the conditions imposed by

the statute.
This notion
is
now known
neous
the occasion on which force can be employed,
and the kind and degree of force which it is lawful iio use in order to put down a riot, is determined by
nothing
else
than the necessity of the
case.
If, then, by martial law be meant the power of the government or of loyal citizens to maintain public order, at whatever cost of blood or property may be
necessary, martial law
is
assuredly part of the law of
Even, however, as to this kind of martial England. law one should always bear in mind that the question whether the force employed was necessary or excessive
will, especially
where death has ensued, be ultimately
1 1 Geo. I. Stat. 2, c. 5. See Stepheu, History of Criminal Law, i. pp. 202-205.

MARTIAL LA W
287
determined by a judge and jury,^ and that the estimate
Chapter
L
what constitutes necessiary force formed by a judge and jury, sitting in quiet and safety after the supof
pression of a
riot,
may
differ considerably
from the
judgment formed by a general or magistrate, who is surrounded by armed rioters, and knows that at any moment a riot may become a formidable rebellion, and the rebellion if unchecked become a successful
revolution.
Martial law
is,
however, more often used as the
in what
tS'uaw'"^
name for the government of a country or a district by military tribunals, which more or less supersede
The proclamation of the jurisdiction of the Courts. martial law in this sense of the term is, as has been
already pointed out,^ nearly equivalent to the state
of things which in France
""sedX^
^"s"^''
and many other foreign
countries
siege,"
is
known
as the declaration of a " state of
and is in effect the temporary and recognised government of a country by military force. The
legal aspect of this condition of affairs in states
which
recognise the existence of this kind of martial law can hardly be better given than by citing some of the
provisions of the law which at the present day regulates the state of siege in
France
1 This statement does not contradict anything decided by Ex parte D. F. Marais [1902], A. C. 109, nor is it inconsistent with the language used in the judgment of the Privy Council, if that language be strictly construed, as it ought to be, in accordance with the important principles " actually decides that, first, " a case is only an authority for what it {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, or assumed to be proved, since the generality of the " expressions which may be found there are not intended to be exposi-
" tions of the whole law, but governed and qualified by the particular " facts of the case in which such expressions are to be found " (ibid.). 2 See p. 283, ante.
288
THE RULE OF LA W
"
7.
Part
French
II.
Aussitdt
I'etat
de siege declare,
les
le
pouvoirs
" dout VautOTite civUe etait revetue
pour
civile
maintien
continue
itaterf*"
siege.
"^^
I'ordre et
de la police passent tout entiers h
"I'autorite
militaire.
L'autorit^
"nSanmoins a exercer ceux de ces pouvoirs dont " I'autorite' militaire ne I' a pas dessaisie.
" 8. Les tribunaux militaires peuvent etre saisis " de la connaissance des crimes et delits contre la " surete
" contre
de la Repuhlique, contre la constitution,
paix puhlique, quelle que soit principaux et des complices. 1 Defaire "9. L'autorite militaire a le droit, " des perquisitions, de jour et de nuit, dans le domicile 2 eloigner les repris de justice et "des citoyens "les individus qui n'ont pas leur domicile dans les 3 D'ordonner la "lieux, soumis a I'etat de siege; " remise des armes et munitions, et deprocdder d leur 4 D'interdire les " recherche et a leur enlevement
Vordre
et la
" la qualite des auteurs
"publications
"
et
les
reunions qu'elle juge de nature

le
a exciter ou a entretenir
disordre."
We may
reasonably, however, conjecture that the
terms of the law give but a faint conception of the

real condition of affairs
when, in consequence of tumult
or insurrection, Paris, or
some other part of France,
is
declared in a state of siege, and, to use a significant expression known to some continental countries, " the
constitutional guarantees are suspended."
We
is
shall
hardly go far wrong
if
we assume
that,
during this
liable
suspension of ordinary law, any
man whatever
to arrest, imprisonment, or execution at the will of a
military tribunal consisting of a few officers

excited
by the passions natural

'
to civil war.
43B, 437.
who are However
Roger
et Sorel, Codes et Lois, pp.
MARTIAL LA W
this
289
may be,
it is clear
that in France, even under the
Chaptei
present Republican government, the suspension of law
^^^'
involved in the proclamation of a state of siege

a thing
fully recognised
is
by the
constitution,
and
(strange though the fact
may
it
appear) the authority

is
of military Courts during a state of siege
greater
under the Eepublic than

of Louis Philippe.^
was under the monarchy
Now, this kind of martial law is in England utterly unknown to the constitution. Soldiers may suppress
a riot as they
may
resist
an invasion, they
may
fight
rebels just as they
may
fight foreign enemies, but

inflict
they have no right under the law to
punishto
ment
for
riot
or
rebellion.
During the
efi'ort
restore peace, rebels
may
be lawfully killed just as

slaughtered in battle, or
may be lawfully prisoners may be shot to

enemies
prevent their escape, but
'
any execution (independently of military law) inflicted by a Court-martial is illegal, and technically murder. Nothing better illustrates the noble energy with which judges have maintained the rule of
regular law, even at periods
lence,
of revolutionary vio-
than Wolfe Tones Case.^
In 1798, Wolfe Tone,
an Irish rebel, took part in a French invasion of

Ireland.
The man-of-war in which he sailed was captured, and Wolfe Tone was brought to trial before He was thereupon sena Court-martial in Dublin.
tenced to be hanged. He held, however, no commission as an English ofiicer, his only commission being
1 See Geoffroy's Case, 24 Journal du Palais, p. 1218, cited by Conf., however, for statement of limits Forsyth, Opinions, p. 483. imposed by French law on action of military authorities during state 513. siege, Duguit, Manuel de Droit Gonstitutionnel, pp. 512,
of
27
St. Tr.
614.
TJ
ago
THE RULE OF LA W
Part
II.
On the morning when was about to take place application was made to the Irish King's Bench for a writ of habeas corpus. The ground taken was that Wolfe Tone, not being a military person, was not subject to punishment by a Court-martial, or, in effect, that the officers who tried him were attempting illegally to enforce martial law. The Court of King's Bench at once granted the writ. When it is remembered that Wolfe Tone's substantial guilt was admitted, that the Court was made up of judges who detested the rebels, and that in 1798 Ireland was in the midst of a revolutionary crisis, it will be admitted that no more splendid assertion of the supremacy of the law can be found than the protection of Wolfe Tone by the Irish Bench.
one from the French Eepublic.
his execution
CHAPTER
IX
THE AtlMY^
The
English
army may
for
the purposes of this
Chapter
'_
treatise
be treated as consisting of the Standing

language, the Regular Forces
^
Army
and of
is
or, in technical
"^^ ^"'y*
the Territorial Force/ which, like the Militia,*

1
ii. book iv. chap, viii.; Gneist, Das 952-966 ; Manual of Milita/ry Law. As to Standing Army, 1 "Will. & Mary, c. 5 ; see the Army the Army Discipline and Regulation Act, 1879,r 42 & 43 Vict. c. 33 Act, i.e. the Army Act, 1881, 44 & 45 Vict. c. 58, with the amendments made 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, or otherwise, are liable to render continuously for a term military service to His Majesty in any part of the world, including, subject to the modifications in thi^ Act mentioned, the Eoyal Marines and His Majesty's Indian forces and the Royal Malta Artillery, and
,See Stephen,^ (7owime?iteries,

ii.
Englische Verwaltwngsfreclit,
'
'
'
when the reserve forces are subject to military law such forces become during the period of their being so subject part of the regular forces" (Army Act, s. 190 (8)). * Seethe Territorial and Reserve Forces Act,' 1907 (7 Edw. VII.
subject to this qualification, that
c.
9),
especially
s.
6,
s.
1, sub-s. (6),
and the
Army
Act.
.
The Militia. The Territorial and Reserve Forces Act, 1907, Until these Acts are does not repeal the various Militia, Acts.
*
repealed the statutory power of raising; the militia, either regular or local, and of forming thereof regiments and porps will continue to (For the law regulating the militia see 13 Car. II. stat. 1. exist. c. 6 ; 14 Car. II. c. 3 ; 15 Car. II. c. 4 ; the Militia Act, 1802, 42 Militia Act, 1882, 45 & 46 Vict. c. 49 ; and RegulaGeo. c. 90 The militia as tion of the Forces Act, 1881, 44 & 45 Vict, c 57.) long as it exists is in theory a local force levied by conscription, but
m.
291

292
THE RULE OF LA W
army
for
Part
II.
territorial
the
defence
of
the
United
Kingdom. Each of these
forces has
to the law of the -land. even an outline of the enactments affecting the army, but simply to explain the legal principles on which
this
been rendered subordinate My object is not to give
supremacy of the law throughout the army has

be convenient in considering this matter to
been secured.
It will
reverse the order pursued in the
common
text-books
these contain a great deal about the militia, the territorial force of its day,
the regular forces, or
and comparatively little about what we now call the " army."
The reason of
this is that historically the militia is
an older institution than the permanent army, and the existence of a standing army is historically, and
according
to
constitutional
theories,
an
anomaly.
the power of raising it by ballot has been for a considerable time suspended, and the militia has been in fact recruited by voluntary Embodiment converts the militia into a regular army, enlistment.
Embodibut an army which cannot be called upon to serve abroad. ment can lawfully take place only in case "of imminent national
danger or of great emergency," the occasion being first communicated to Parliament if sitting, or if not sitting, proclaimed by Order in Council (Militia Act, 1882, s. 18 ; 2 Steph. Comm. (14th ed.) p. 469). The maintenance of discipline among the members of the militia when embodied depends on the passing of the Array (Annual) Act, or in popular language, on the continuance of the Mutiny Act (see p. 305,
lost).
The
(1)
position of the militia, however,
is
affected
:
by the
Territorial
and Eeserve Forces Act, 1907, in two ways

it is said,
All the units of the general (or regular) militia may, and will, in a short time have either been transferred to the Army Eeserve (under s. 34) or have been disbanded. (2) The personnel of the regular militia will shortly, it is said,
cease to exist as such.
The
which
is
actual position of the
militia,
however, until the Acts on

it
its
existence depends have been repealed, is worth noting, as
conceivable that Parliament
may
t.o
think
it
worth while to keep
alive
the historical right of the
Crown
raise the militia.
THE ARMY
Hence the standing army has
often been treated
293
by
writers of authority as a sort of exceptional or sub-
Chapter ^^'
ordinate topic, a kind of excrescence, so to speak, on the national and constitutional force known as the
militia.^
army
force
is is
As a matter of fact, of course, the standing now the real national force, and the territorial
a body of secondary importance.
As
to the
Standing Army.
A permanent army of
is
standing
paid soldiers, whose main duty
one of absolute
first
nHxistoSea
obedience to commands, appears at

, .
,
sight to be
wUh
an institution inconsistent with that rule of law or p*"^!'*mentary submission to the civil authorities, and especially to govemthe judges, which is essential to popular or Parlia- ^Tua/ mentary government and in truth the existence of Aots.^
,
. .
permanent paid forces has often in most countries and at times in England notably under the Commonwealth^been found inconsistent with the existence of what, by a lax though intelligible mode of speech, is called a free government.^ The belief, indeed, of our
statesmen down to a time considerably later than the Eevolution of 1689 was that a standing army must be fatal to English freedom, yet very soon after the
became apparent that the existence of a body of paid soldiers was necessary to the safety of
Eevolution
it
In the seventeenth century Parliament apparently meant to rely England upon this national army raised from the counties and placed under the guidance of country gentlemen. See 14 Car. II. c. 3. " Throughout the 2 See, e.g. Macaulay, History, iii. pp. 42-47. " period [of the Civil War and the Interregnum] the military authorities
^
for the defence of
" maintained with great strictness their exclusive jurisdiction over " offences committed both by officers and soldiers. More than once " conflicts took place between the civil magistrates and the commanders
"of the army over this question." -Firth, Cromwell's Army, p. 310, Mr. Firth gives several examples (pp. 310-312) of the assertion or attempted assertion of the authority of the civil power even during a period of military predominance.
294
1'HE
RULE OF LA
Part
II.
the nation.
Englishmen, therefore, at the end of the
seventeenth
centuries,
and the beginning of the eighteenth found themselves placed in this dilemma.
With
a standing
army the country could

;
not, they
feared, escape
from despotism
without a standing
army
to
the country could not, they were sure, avert

;
invasion
the maintenance of national liberty appeared the

sacrifice
involve
of national
independence.
Yet English statesmanship found almost by accident a pra,ctical escape from this tjieoretical dilemma, and the Mutiny Act, though an enactment passed in a hurry to meet an immediate peril, contains the
.
solution of an apparently insolvable problem.
In this instance, as in others, of success achieved by
good sense, the political Englishmen, we ought to be on our guard against two errors. We ought not, on the one hand, to fancy that English statesnien acted with some profound sagacity or
is
vhat
called the practical
instinct, or the statesmanlike tact of
foresight peculiar to themselves,
and not to be found

Still
among
the politicians of other countries.
less
ought we, on the other, to imagine that luck or chance helps Englishmen out of difficulties with which the
inhabitants of other countries cannot cope.
Political
little
;
common
sense, or, political instinct,
means
more
than habitual training in the conduct of affairs this practical acquaintance with public business was en-
joyed by educated Englishmen a century or two earlier than by educated Frenchmen or Germans; hence the early prevalence in England of sounder
principles of
vailed in other lands.
government than have till recently preThe statesmen of the Revolu-
tion succeeded in dealing with difficult problems, not
THE ARMY
because they struck out
295
new and
brilliant ideas, or chapter

^~^'
because of luck, but because the notions of law and
government which had grown up in England were in many points sound, and because the statesmen of 1689 applied to the difl&culties of their time the notions which were habitual to the more thoughtful Englishmen of the day. The position of the army, in fact, was determined by an adherence on the part of the authors of the first Mutiny Act to the fundamental principle of English law, that a soldier may,
like
a clergyman,
incur special
is
obligations
in
his
official
character, but
not thereby exempted from
the ordinary liabilities of citizenship.
The
object and principles of the

are exactly
first
of 1689
principles
the
of
the
is
Army
in
same as Act,^ under
Mutiny Act * the object and

which
the
English
army
substance
now
governed.
A
the
comparison of the two statutes shows at a glance what are the means by which the maintenance of
military
discipline
has
been
or, to
reconciled
with
maintenance of freedom,
use a more accurate
expression, with the supremacy of the law of the land.
The preamble
to the first
Mutiny Act has
re-
appeared with slight alterations in every subsequent Mutiny Act, and recites that " Whereas no man may
" be forejudged of life or limb, or subjected to any " kind of punishment by martial law, or in any other
the judgment of his peers, and " according to the known and established laws of " this realm ; yet, nevertheless, it " [is] " requisite for
"manner than by
"retaining such forces as are,

1
or
c.
shall be,
raised
1 Will.
&
Mary,
5.
Combined with the Army (Annual)
Act, passed each year.
296
THE RULE OF LA W
this
Part
II.
"during
exigence of
affairs,
in their duty an
" exact discipline be observed ; and that soldiers who " shall mutiny or stir up sedition, or shall desert " their majesties' service, be brought to a more ex-
" emplary and speedy punishment than the usual " forms of law will allow." ^
This recital states the precise difficulty which per-
plexed the statesmen of 1689.

the
Now
let
us observe
way
in
which
it
has been met.

in a stand-
A soldier, whether an officer or a private,

Acts) "a person subject to military law,"
two-fold relation
fellow-citizens
:
ing army, or (to use the wider expression of

^
modem
stands in a
the one
is
his relation
;
towards his
army the other is his members of the army, and especially towards his military superiors any man, in short, subject to military law has duties and rights as a citizen as well as duties and rights as a soldier.
outside the
relation
towards
the
Vict
See Clode, Military Forces of the Crown, i. p. 499. Compare 47 c. 8. The variations in the modern Acts, though slight, are
instructive.
2 Part v. of the Army Act points out who under English law are " persons subject to military law," that is to say, who are liable to be tried and punished by Court-martial for military, and in some circumstances for civil, offences under the provisions of the Act. For our present purpose such persons (speaking broadly at any rate) appear to come within three descriptions first, persons belonging to the regular forces, or, in popular language, the standing army (see
:
Army
Act,
ss.
175
(1),
territorial force, in
190 (8)); secondly, persons belonging to the certain circumstances, viz. when they are being
when acting with any regular forces, when embodied, and when called out for actual military service for purposes of defence (Army Act, ss. 176, 190 (6) (a)); thirdly, persons not belonging to the regular forces or to the auxiliary forces who are either emploj'ed by, or followers of, the army on active service beyond the seas (ibid. s. 176 (9) (10)). The regular forces include the Royal Marines when on shore and the reserve forces when called out. See Army Act,
trained,
sees.
175, 176
conf.
Marks
v.
Frogley [1898], 1 Q. B. (C. A.) 888.
THE ARMY
297
His position in each respect is under English law governed by definite principles.
Chapter
soldier's
position
as a
is
citizen.
The
L
SoUier'a
fixed
doctrine of English law
that a soldier, though a dtSenT

is
member
all
of a standing army,
the duties and liabilities " Nothing in this Act contained " (so runs the first Mutiny Act) " shall extend or be construed to exempt
"
England subject to of an ordinary citizen.

in
any
officer or soldier
whatsoever from the ordinary

regard to the standing
"process of law."^
These words contain the clue
to all our legislation with
'army whilst employed in the United Kingdom.

soldier
by
his
contract
of
enlistment
undertakes
many
obligations in addition to the duties incumbent

civilian.
upon a
But he does not escape from any
of the duties of an ordinary British subject.
The
results of this principle are traceable through-
out the Mutiny Acts.
soldier is subject to the
same criminal
liability as criminal
a civilian.^
He may when
trial
in the British dominions
any competent " civil " (i.e. non-military) Court for any offence for which he would be triable if he were not subject to military law, and there are certain offences, such as murder, for which he must in general be tried by a civil tribunal.^ Thus, if a soldier murders a companion or robs a traveller whilst quartered in England or in Van Diemen's Land, his military character will not
be put on
before
1
Will.
i.
&
Mary,
c.
5,
s.
see Clode,
Military Forces of the
Grown,
2
p.
500.
Act, sees. 41, 144, 162.
Compare Army
Compare, however, the Jurisdiction in Homicide Act, 1862, 25 & 26 Vict. c. 65, and Clode, Military Forces of the Crown, i.
^
pp. 206, 207.
298
THE RULE OF LAW

him from standing murder or theft.
in the dock
Part
II.
save
of
on the charge
liabilities,
Civil
liability.
A
tion
soldier cannot escape
from
civil
;
as,
for example, responsibility for debts
the only exemp-
which he can claim is that he cannot be forced to appear in Court, and could not, when arrest for debt was allowable, be arrested for any debt not
exceeding 30.^
No
one
who has
entered into the spirit of con-
tinental legislation can believe that (say in France or
Prussia) the rights of a private individual
would thus
have been allowed to override the claims of the public

service.
In
all
conflicts of jurisdiction
and a
civil
between a military Court the authority of the civil Court

if
prevails.
Thus,
a soldier
is
acquitted or convicted
civil
of an offence
by a competent
Court, he cannot
^
;
be tried for the same offence by a Court-martial but an acquittal or conviction by a Court-martial, say
for
manslaughter or robbery,
for the
is
no plea to an
indict-
ment
Order of
superiors no defence to cliarge of crime.
same
offence at the Assizes.*

is
When
^
a soldier
put on
trial
is
on a charge of crime,
itself a defence.*
obcdieuce to supcrior orders
not of
Compare Clode, Military Forces of the See Army Act, s. 144. Crown, i. pp. 207, 208, and Thurston v. Mills, 16 East, 254. 2 Army Act, s. 162, sub-ss. 1-6. ^ Ibid. Contrast the position of the army in relation to the law of The fundamental principle of French law is, as the land in France. it apparently always has been, that every kind of crime or offence committed by a soldier or person subject to military law must be tried by a military tribunal. See Code de Justice Militaire, arts. 55, 56, 76, 77, and Le Faure, Les Lois Militaires, pp. 167, 173. * Stephen, History of Criminal Law, i. pp. 204-206, and compare Clode, Military Forces of the Crovm, ii. pp. 125-155. The position of a soldier is curiously illustrated by the following case. was a " The sentinel on board the Achille when she was paying off.
','
orders to
him from
the preceding sentinel were, to keep off all boats.
TitE
Army
299
This
is
a inatter wHich requires explanation.
A soldier is bound to obey any lawful order which he receives' from his military superior. But a soldier cannot any more than a civilian avoid responsibility
for breach of the
Chapter ^'
law by pleading that he broke the
law in hona fide obedience to the orders (say) of the commander-in-chief Hence the 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 he disobeys an order, and to be hanged by a judge and jury if he obeys it. His situation and the line of his duty may be seen by
considering
how
soldiers
ought to act in the follow-
ing cases.
During a riot an officer orders his soldiers to fire upon rioters. The command to fire is justified by the fact that no less energetic course of action would
" unlesa they had officer.s with uniforms in them, or unless the officer " on deck allowed them to approach ; and he received a musket, three " blank cartridges, and three balls. The boats pressed ; upon which "he called repeatedly to them to keep off; but one of them persisted " and came close under the ship ; and he then fired at a man who was " in the boat, and killed him. It was put to the jury to find, whether "the sentinel did not fire under the mistaken impression that it was "his duty; and they found that he did. But a case being reserved, " the judges were unanimous that it was, nevertheless, murder. They " thought it, however, a proper case for a pardon ; and further, they " were of opinion, that if the act had been necessary for the pre" servation of the ship, as if the deceased had been stirring up a " mutiny, the sentinel would have been justified." Russell, Grimes and Misdemeanors (4th ed.), i. p. 823, on the authority oiRex v. Thomas, East, T., 1816, MS., Bay ley, J. . The date of the decision is worth no one can suppose that the judges of 1816 were disposed noticing
Crown and its servants. The judgment upon and illustrates the incontrovertible principle of the common law that the fact of a person being a soldier and of his acting strictly under orders, does not of itself exempt him from criminal liability for acts which would be crimes if done by a
to underrate the rights of the
of the Court rests
civilian.

300
THE RULE OF LA W
sufficient
Partn
be
to
put down the disturbance.
The
soldiers are,
under these circumstances, clearly bound
from a legal, as well as from a military, point of view It is a lawful obey the command of their officer. order, and the men who carry it out are performing
to
their
duty both as soldiers and as
citizens.
An
trial
officer orders his soldiers in a
time of
political
excitement then and there to arrest and shoot without

a popular leader against
is
whom
no crime has
been proved, but who
suspected of treasonable
designs. In such a case there is (it is conceived) no doubt that the soldiers who obey, no less than the
officer
who
gives the
and
liable to
be hanged for
command, are guilty of murder, it when convicted in due

even at the risk of disobeying
course of law.
In such an extreme instance as this

is,
the duty of soldiers
their superior, to obey the
law of the land.

to fire on a
An
officer orders his
men
crowd who
he thinks could not be dispersed without the use of As a matter of fact the amount of force which he wishes to employ is excessive, and order
firearms.
could be kept by the mere threat that force would be

used.
The
it is
order, therefore, to fire is not in itself a
lawful order, that

gives
is, the colonel, or other officer, who not legally justified in giving it, and will himself be held criminally responsible for the death
of any person killed by the discharge of firearms.
What
is,
?
soldiers
from a legal point of view, the duty of the The matter is one which has never been
;
absolutely decided
the following answer, given by

is, it
be assumed, as nearly correct a reply as the state of the authorities

fairly
Mr. Justice Stephen,
may
:
makes
it
possible to provide
THE ARMY
" I do not think, however, that the question
far superior orders
301
how
Chapter
^^'
would justify soldiers or sailors in making an attack upon civilians has ever been brought before the Courts of law in such a manner as to be fully considered and determined. Probably upon such an argument it would be found that the order of a military superior would justify his inferiors in executing any orders for giving which they might fairly suppose their superior officer to have good reasons. Soldiers might reasonably think
crowd which to them might not appear to be at that moment engaged in acts of dangerous violence, but soldiers could hardly
to fire into a disorderly
that their officer had good grounds for ordering
them
suppose that their
officer
could have any good

to fire a volley
grounds
for ordering
them
down
crowded street when no disturbance of any kind was either in progress or apprehended. The doctrine that a soldier is bound under all circumstances whatever to obey his superior officer would be fatal to military discipline itself, for it would justify the private in shooting the colonel by the orders of the captain, or in deserting to the enemy on the field of battle on the order of his immediate superior. I think it is not less monstrous to suppose that superior orders would justify a soldier in the
massacre of unofi"ending civilians in time of peace,
inhuman cruelties, such as the slaughter of women and children, during a rebellion. The only line that presents itself to my mind is that a soldier should be protected by orders for which he might reasonably believe his officer to have good grounds. The inconvenience of being
or in the exercise of
302
THE RULE OF LA W
Part u.
" subject to
two jurisdictions, the sympathies of which " are not unlikely to be opposed to each other, is an
"inevitable consequence of the double necessity of
"preserving on the one hand the supremacy of the
"law,
and
*
on
the
other
the
discipline
of
the
" army."
The hardship of a
this inconvenience is
soldier's position resulting
from
much diminished by
the power
of the Crown to nullify the effect of an unjust conviction
by means of a pardon.^
no substantial
While, however, a
soldier runs
risk of
punishment
for
obedience to orders which a
man
of
common
sense
may
honestly believe to involve no breach of law, he can under no circumstances escape the chance of his
military conduct becoming the
before a civil tribunal,
subject of inquiry
liability
and cannot avoid
on
to
the ground of obedience to superior orders for any act
whiqh a
Soldier's
man
of ordinary sense
must have known

the
be a crime.*
A
of
i
,
soldier' s positiou
'
as
a metnher of
army.
position as
member
army.
^ i tt-. Stephen, flisi. Grimnal Law of England, i. pp. 205, 206. Compare language of Willea, J., in Keighly v. Bell, 4 P. & F. 763. See also opinion of Lord Bowen, cited in Appendix, Note VI., Duty of Soldiers called upon to disperse an Unlawful Assembly. 2 As also by the right of the Attorney-General as representing the Crown to enter a nolle prosequi. See Stephen, History of driminal Law, i. p. 496, and Aiclabd[A, Pleading in Criminal Cases (22nd ed.),
p. 125.
3 Buron v. Benman, 2 Ex. 167, is sometimes cited as showing that obedience to the orders of the Crown is a legal justification to an
committing a breach of law, but the decision in that case does not, in any way, support the doctrine erroneously grounded upon "What the judgment in Buron v. Denman shows is, that an act it.
officer for
done by an English military or naval

act of war, but does not constitute
officer
in a foreign country to a
Crown, may be an any breach of law for which an action can be brought against the officer in an English Court. Comforeigner, in discharge of orders received from the
pare Feather
r.
The Queen, 6 B.
&
S.
257, 295, per Curiam.
THE ARMY
303
liable to Chapter " a person subject to military special duties as being
citizen
on entering the army becomes

acts
law."
Hence
which
all
be either no offence at
e.g.
done by a civilian would or only slight misdemeanours,

if
officer,
an
insult or a
blow offered to an
may
when done by
ment.
a soldier become serious crimes and
expose the person guilty of them to grave punish-
A soldier's
a.
offences,
moreover, can be tried and
punished by
Court-martial.
He
therefore in his
military character of a soldier occupies a position
from that of a civilian he has not the same freedom, and in addition to his duties as a citizen is subject to all the liabilities imposed by
totally different
;
military law
but though this
is so, it is
not to be
position
supposed that, even as regards a

as a military
soldier's
own
man, the rule of the ordinary law is, at any rate in time of peace, excluded from the army. The general principle on this subject is that the Courts of law have jurisdiction to determine who are the persons subject, to military law, and whether a given proceeding, alleged to depend upon military
law,
is
really justified'
1;he
by the
rules of
law which
govern
army.
other) conse-
Hence flow the following (among

quences.
The
is
civil
Courts determine ^ whether a given person

^
or
is
not " a person subject to military law."

614
Enlistment, which co'nstitutes

, '
the .contract'
;
by
Q. B.
1
;
See Wolfe Tone's Casei 27
St. Tr.
Douglass
Case, 3
s.
825
2
''
Fry
w. Ogle, citeA
MariuM
of Military Law, chap.
vii.
41.
is a species ôf contract between under the ordinary principles of "law cannot be altered -without the consent of both parties. The "result is that'the conditions laid down in the Act under which a
SeeArmir Act,<ss. IVS-IM.! " The enlistment of the soldier

the' soldier; and'
"the sovereign and

304
THE RULE OF LA W
Partn.
which a person becomes subject to military law, is a civil proceeding, and a civil Court may sometimes have to inquire whether a man has been duly enlisted,
or whether he
is
or
is
not entitled to his discharge/
If a Court-martial exceeds its jurisdiction, or

officer,
an
whether acting as a member of a Court-martial
or not, does
any
act not authorised

officer, is
by
law, the action
of the Court, or of the

vision of the Courts.
subject to the super-
"The proceedings by which " the Courts of law supervise the acts of Courts" martial and of officers may be criminal or civil. " Criminal proceedings take the form of an indict"
ment
for assault, false
imprisonment, manslaughter,
" or even murder. Civil proceedings " be preventive, i.e. to restrain the
;
may
either
commission
" or continuance of an injury or remedial, i.e. to " afford a remedy for injury actually suffered. Broadly " speaking, the civil jurisdiction of the Courts of law
"
is
exercised as
against
the tribunal of a Court;
" martial
by
writs of prohibition or certiorari
and
as
"against individual officers by actions for damages. " A writ of habeas corpus also may be directed to " any officer, governor of a prison, or other, who has
"
man was
1
enlisted cannot be varied without his consent."
Manual
of Military
Law, chap.
Act,
x.
a.
s.
18.
See
Army
96, for special provisions as to the delivering
to a master of an apprentice who, being under twenty-one, has enlisted Under the present law, at any rate, it can very rarely as a soldier.
happen that a Court should be

is
called upon to consider whether a person improperly detained in military custody as a soldier. See Army Act, The Courts used to interfere, when soldiers were s. 100, sub-ss. 2, 3. impressed, in cases of improper impressment. See Clode, Military Forces, ii. pp. 8, 587. A civil Court may also be called upon to determine whether a person subject to military law has, or has not, a right to resign his commission, Hearson v. Ghurckill [1892], 2 Q. B. (C. A.) 144.
THE ARMY
305
" in his custody any person alleged to be improperly Chapter " detained under colour of military law." ^ L
Lastly, the whole existence and discipline of the
standing army, at any rate in time of peace, depends
upon the passing of what is known as an annual Mutiny Act,^ or in strict correctness of the Army (Annual) Act. If this 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 officer would be no more than an assault.
As
It
is,
to the territorial force.
This
force in
many
Territorial
respects
as
represents
the
militia
and the volunteers.

be compelled to
It is
was in
fact the militia in later times, raised It cannot
by voluntary
enlistment.
serve outside the United
Kingdom.
from
its
nature, in this too like the militia, a
body hardly
to the
capable of being used for the overthrow of Parlia-
mentary government.
territorial force, care
it
But even with regard
has been taken to ensure that
shall be subject to the rule of law.
The members
of this local
army
are
(speaking in general terms)
subject to military law only
the force
is
embodied.'
when in training or when Embodiment indeed converts
1 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 with rights dependent on military status and military regulations. ^ The case stands thus The discipline of the standing army depends on the Army Act, 1881, 44 & 45 Vict. c. 58, which by s. 2 continues in force only for such time as may be specified in an annual Act, which is passed yearly, and called the Army (Annual) Act. This Act keeps in existence the standing army and continues the Array Act in
:
force.
It is therefore, in strictness,
upon the passing
of the
Army
(Annual) Act that depends the existence and the discipline of the standing army. * But in one case at least, i.e. failure to attend on embodiment, a man of the territorial force may be liable to be tried by Court-martial, though not otherwise subject to military law. (Territorial and Eeserve
3o6
THE RULE OF LAW
Partn.
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
imminent national danger or great emergency, or unless the emergency requires it, until Parliament has had an opportunity of presenting an address against the embodiment of the territorial force. The general effect of the enactments on the subject is that, at any rate when there is a Parliament in existence, the embodiment of the territorial force cannot, except under the pressure of urgent necessity,
in case of
be carried out without the sanction of Parliament.^
Add to this,
the
that the maintenance of discipline

force
among
members of the territorial
when
it is
embodied
depends on the continuance
in force of the
Army Act
and of the Army (Annual)
Act.^
Forces Act, 1907, s. 20 ; see also as to cases of concurrent jurisdiction of a Court-martial and a Court of summary jurisdiction, ihiA. ss. 24, 25.) 1 Compare the Territorial and Reserve Forces Act, 1907, s. 7, the Reserve Forces Act, 1882, ss. 12, 13, and the Militia Act, 1882, s. 18, and see note 4, p. 291, anU. ^ There exists an instructive analogy between the position of persona subject to military law, and the position of the clergy of the Established Church. 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, but the clergy are no more than soldiers exempt from the law of the land. Any deed which would be a crime or a wrong when done by a layman, is a crime or a wrong when done by a clergyman, and is in either case dealt with by the ordinary tribunals. Moreover, as the Common Law Courts determine the legal limits to the jurisdiction of Courts-martial, so the same Courts in reality determine (subject, of course, to Acts of Parliament) what are the limits
'
to the jurisdiction of ecclesiastical Courts.
The original difficulty, again, of putting the clergy on the same footing as laymen, was at least as great as that of establishing the supremacy of the civil power in all matters regarding the army.
Each
of these difficulties
was met at an
earlier date
and has been
THE ARMY
307
overcome with more completeness in England than in some other We may plausibly conjecture that this triumph of law countries. was due to the acknowledged supremacy of the King in Parliament, which itself was due to the mode in which the King, acting together with the two Houses, manifestly represented the nation, and therefore was able to wield the whole moral authority of the state.
Chapter IX.
CHAPTEE X
THE REVENUE^
Part
II.
As
in treating of the
army
my
aim was simply to
Revenue,
point out what Were the principles determining the

relation of the
armed
forces of the country to the
law of the land, so in treating of the revenue my aim is not to give even a sketch of the matters
connected with the raising, the collection, and the
expenditure of the national income, but simply to show
that the collection and expenditure of the revenue,
and all things appertaining thereto, are governed by strict rules of law. Attention should be fixed upon three points, the source of the public revenue the authority for expending the public revenue and the securities provided by law for the due
its
appropriation
of
the
public revenue,
that
is,
for
being expended in the exact manner which the
Source.
law directs. Source of public revenue.
It
is
laid
down by
Blackstone and other authorities that the revenue consists of the hereditary or " ordinary " revenue
of the
Crown and
upon
of the
depending
1
taxes
ii.
"extraordinary" revenue imposed by Parliament.

vii.
;
Stephen, Commentaries,
bk. iv. chap.
Hearn, Government
of England (2nd ed.), c. 13, pp. 351-388 ; May, Parliamentary Practice, see Exchequer and Audit Act, 1866, 29 & 30 Vict. c. 39, chap. xxi.
;
and
&
2 Vict.
c.
2,
s.
2.
308
THE REVENUE
Historically this distinction
is
309
of interest.
But
for
chapter
our purpose we need hardly trouble ourselves at all with the hereditary revenue of the Crown, arising
from Crown lands, droits of admiralty, and the 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
it
moment belong
specially to the
Crown, for
of
was commuted
at the beginning of the reign of

it
the present King,^ as
was
at the beginning
the reign of "William IV. and of the reign of Queen

Victoria, for a fixed
"civil list,"^
or
sum payable
is
yearly for the support of the dignity of the Crown.
The whole then of the hereditary revenue

paid into the national exchequer
of the
now
income of the nation.
We
and forms part may, therefore,

is
putting the hereditary revenue out of our minds,

direct our
called
whole attention to what

"extraordinary," but
is
oddly enough
in
reality
the
the
ordinary, or Parliamentary, revenue of the nation.
The whole of the national revenue had come to amount in a normal year to somewhere about 144,000,000.' It is (if we put out of sight the
small hereditary revenue of the Crown) raised wholly
by taxes imposed by
therefore,
law.
depends
;
wholly
The national revenue, upon law and upon
statute-law
it is
the creation of Acts of Parliament.
While no one can nowadays fancy that taxes

1 Ed. VII. c. 4. See as to civil list. May, Constitutional Hist. i. chap. iv. ^ The Chancellor of the Exchequer, in his Budget speech of 1 8th April 1907 (172 Hansard (4th ser.), col. 1180), gave the total revenue [See as to for the year (Exchequer receipts) 1906-7 at 144,814,000. the burden of taxes and rates in later years, Law and Opinion (2nd
1
Civil List Act, 1901,
ed.),
pp. Ixxxiv.-lxxxvii.]
3IO
THE RULE OF LA W
ill
Part u.
can be raised otherwise than

Parliament,
there
of us a
prevails,
virtue of an
Act of
it
may
be
suspected,
with
many
as to the exact relation
good deal of confusion of mind between the raising of the

of
revenue and the

often
talk as
sitting
if
Parliament.
People
though,
Parliament did not meet,
no taxes would be legally payable, and the assembling of Parliament were therefore secured
necessity
of filling
by
the
the national
exchequer.
This
encouraged by the study of periods, such as the reign of Charles I., during which the Crown
idea
is
could not legally obtain necessary supplies without the constant intervention of Parliament. But the
day no money could legally be levied if Parliament ceased to meet is unfounded. Millions of money would come into the Exchequer even though Parliament did not sit at all. For though all taxation depends upon Act of
notion that at the
present
Parliament,
taxation
it
is
far
from being the case that
all
now depends upon annual or temporary Acts. Taxes are made payable in two different ways,
either
i.e.
by permanent
the
Taxes,
by yearly Acts. proceeds of which amounted

or
in the
year 1906-7 to at least three-fourths of the whole yearly revenue, are imposed by permanent Acts; such taxes are the land tax,^ the excise,^ the stamp
duties,^
and by
far the greater
number
of
existing
These taxes would continue to be payable even though Parliament should not be convened
taxes. for years.
We
*
should
all,'
to take an
example which
1 38 George III. o. 5. See Stephen, Commentaries, ii. pp. 552, 553. * Stamp Act, 1891, 54 & 55 Vict. c. 39.
THE REVENUE
311
comes home to every one, be legally compellable to buy the stamps for our letters even though Parliament did not meet again till (say) a.d. 1910. Other taxes and notably the income tax the proceeds of which make up the remainder of the
Chapter
If
national income, are imposed
by yearly
Acts.^
by
any chance Parliament should not be convened for a year, no one would be under any legal obligation to pay income
tax.
This distinction between revenue depending upon

rary Acts
course,
permanent Acts and revenue depending upon tempois worth attention, but the main point, of
to be borne
statute,
in
mind
is
that
all
taxes are
imposed by
to
pay a
single
and that no one can be forced shilling by way of taxation which
cannot be shown to the satisfaction of the judges to be due from him under Act of Parliament. Authority for expending revenue. At one time
Authority
pendituire,
revenue once raised by taxation was in truth and in reality a grant or gift by the Houses of Parliament Such grants as were made to Charles to the Crown. the First or James the First were 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, to defray the expenses of govern-
ment
were
and the
gifts
made
to the
King by Parliament
to put into his
Still
it
never intended to be
pocket,"
"money
own
as the expression goes.
was
in truth money of which the King or his Ministers

1 The only taxes imposed annually or by yearly Acts are tbe customs duty on tea, which for the year ending 31st 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.
312
THE RULE OF LA W
One
of the
Part
II.
could and did regulate the distribution.

singularities
is
which
mark the English
constitution
the survival of mediaeval notions,
which more or
less identified the
King's property with the national
revenue, after the passing

to
away
of the state of society

;
which such ideas naturally belonged in the time of George the Third many public expenses, as, for example, the salaries of the judges, were charged upon the civil list, and thus were mixed up with
the
King's private expenditure.
At
the present
is
day, however, the whole public revenue
treated,
not as the King's property, but as public income
and
tion.
as to this
two matters deserve special observa-
First,
into
The whole revenue of the nation is paid the Bank of England^ to the "account of his
Office.
;
Majesty's Exchequer,"
Kevenue
mainly through the Inland That office is a mere place for the
^
receipt of taxes
it
is
a huge
money-box
into which
day by day moneys paid as taxes are dropped, and whence such moneys are taken daily to the Bank. What, I am told, takes place is this. Each day large amounts are received at the Inland Eevenue 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 not leave till every item is made perfectly clear they then take
; ;
1 Or into the Bank of Ireland. See Exchequer and Audit Departments Act, 1866 (29 & 30 Vict. c. 39), s. 10. ^ Ihii,. and Gontrol and Audit of Public Receipts and Expenditure, But a system of appropriations in aid has been introduced pp. 7, 8. during the last few years under which certain moneys which before were treated as extra receipts, and paid into the exchequer, are not paid into the Exchequer, but are applied by the department where they are received in reduction of the money voted by Parliament
THE REVENUE
all
it
313
money received, and drive off with it and pay into the Bank of England. Secondly, Not a penny of revenue can be legally
the
Chapter
;_
expended except under the authority of some Act of

Parliament.
This authority
as, for
c.
may
be given by a permanent Act,

1
example, by the Civil List Act,

or
&
2 Vict.
by the National Debt and Local Loans Act, it may be given by the Appropriation Act, that is, the annual Act by which Parliament " appropriates " or fixes the sums payable to objects (the chief of which is the support of the army and
2,
or
;
1887
navy) which are not provided for, as is the payment of the National Debt, by permanent Acts of
Parliament.
The whole
stands thus.
thing, to express
it
in general terms,
There
is
paid into the
Bank
of England
in a
normal year^ a national income raised by different taxes amounting to nearly 144,000,000 per annum. This 144,000,000 constitutes the revenue or " consolidated fund."
Every penny of it is, unless the law is broken, paid away in accordance with Act of Parliament. The authority to make payments from it is given in many cases by permanent Acts thus the whole of the interest on the National Debt is payable out of the Consolidated Fund under the National Debt and Local
;
Loans Act, 1887. The order or authority to make payments out of it is in other cases given by a yearly Act, namely, the Appropriation Act, which determines
the
mode in which
1
the supplies granted by Parliament

See
p.
309, ante
(3).
314
THE RULE OF LA W
Part
II.
(and not otherwise appropriated by permanent Acts) are to be spent. In either case, and this is the point
payments made out of the national revenue are made by and under the authority of the law, namely, under the directions of some special Act
to bear in mind,
of Parliament.
method according to which supplies are annually voted and appropriated by Parliament are amply treated of in works which deal with Parliamentary practice.^ The matter which
The
details
of the
requires our attention
is
the fact that each item of
expenditure (such, for example, as the wages paid

to the
army and navy) which is not directed and authorised by some permanent Act is ultimately authorised by the Appropriation Act for the year, or by special Acts which for convenience are passed
Act and are enumerated therein. The expenditure, therefore, no less than the raising of taxation, depends wholly and solely upon
prior to the Appropriation
Parliamentary enactment.
Security
expendf-^'^
ture.
Security for the proper appropriation of the revcnue. What, it may be asked, is the real security
moneys paid by the taxpayers are expended by the government in accordance with the intention of
that
Parliament
The answer is that this security is provided by an elaborate scheme of control and audit. Under this system not a penny of public money can be obtained by the government without the authority
or sanction of persons (quite independent, be it remarked, of the Cabinet) whose duty it is to see
that no
^
money
is
paid out of the Exchequer except

xxi.
See especially May, Parliamentary Practice, chap.
THE REVENUE
315
under legal authority. To the same oflS.cials ultimately comes the knowledge of the way in which
Chapter ^'
money
are
thus paid out
is
actually expended,
bound
to report to
is
and they Parliament upon any exappear to be not author-
penditure which
ised
or
may
by law. The centre
of this system of Parliamentary control
is
the Comptroller and Auditor General.^
He
is
a high
;
official,
absolutely independent of
the Cabinet he can take no part in politics, for he cannot be either a member of the House of
Commons,
or a peer of Parliament.
with his subordinate
Auditor General is appointed by a patent under the Great Seal, holds his office during good behaviour, and can be removed only on an address from both
the Assistant
He
in
common
Comptroller and
Houses of Parliament.^ He is head of the Exchequer and Audit Department. He thus combines in his own person two characters which formerly belonged
to
different officials.
He
is
is
controller of the issue
of public
money
he
auditor of public accounts.
He
to
is
called upon, therefore, to perform
two
different
functions, which the reader ought, in his
own mind,
keep carefully distinct from each other.

In exercise of his duty of control the Comptroller is bound, with the aid of the officials under be remembered,
lodged in the Bank
is
General
which,
him, to see that the whole of the national revenue,

it will
is
of England to the account of the Exchequer,
paid
out under legal

visions of
^
authority, that
is,
under the pro-
some Act of Parliament.

& 30
and Audit of Public Receipts and Expenditure, 1885. The Exchequer and Audit Departments Act, 1886 (29
Gontrol
c.
Vict.
39), sec. 3.
3i6
THE RULE OF LA W
Partn.
The Comptroller General is enabled to do this because, whenever the Treasury (through which office alone the public moneys are drawn out from the Bank) needs to draw out money for the public service, the Treasury must make a requisition to the Comptroller General authorising the payment
from the public moneys at the Bank of the definite
sum
required/
The payments made by the Treasury are, as made either under some permanent Act, for what are technically called " Consolidated Fund services," as, for example, to meet
already pointed out,
the interest on the National Debt, or under the
yearly ApproJ)riation Act, for what are technically called " supply services," as, for example, to meet
the expenses of the
army
the
or the navy.
In
either
case
Comptroller
General
must,
before granting the necessary credit, satisfy himself
that he
is
authorised in doing so
it is
the Act under which
by the terms of demanded. He must also

the Bank, has been
is satisfied
satisfy himself that every legal formality, necessary
for obtaining public
money from
duly complied with.

for the
Unless, and until, he
he ought not to grant, and will not grant, a credit
amount required and until this credit is obtained, the money required cannot be drawn out
;
of the Bank.
The obtaining from the Comptroller General of a may appear to many readers a mere formality, and we may suppose that it is in most
grant of credit
cases given as a matter of course.
^
It
is,
however, a
pp. 61-64,
See Control and Audit of Public Receipts and Expenditure, 1885, and Forms, No. 8 to No. 12.
THE REVENUE
formality which gives an opportunity to an
317
official,
Chapter
who has no
interest in deviating
from the law, for
L_
preventing the least irregularity on the part of the
government in the drawing out of public money. The Comptroller's power of putting a check on government expenditure has, oddly enough, been pushed to its extreme length in comparatively modern times. In 1811 England was in the midst the King was a of the great war with France lunatic, a Eegency Bill was not yet passed, and a million pounds were required for the payment of Lord Grenville, the then Auditor of the navy. the Exchequer, whose office corresponded to a
;
certain extent with that of the present Comptroller
and Auditor General, refused to draw the necessary order on the Bank, and thus prevented the million, though granted by Parliament, from being drawn The ground of his lordship's refusal was that out. he had received no authority under the Great Seal or the Privy Seal, and the reason why there was no authority under the Privy Seal was that the
King was
incapable
of affixing
the
Sign Manual,
affixed,
felt,
and that the Sign Manual not being

clerks of the Privy Seal
felt,
the
or said they
that
they could not consistently with their oaths allow the issue of letters of Privy Seal upon which the
warrant under the Privy Seal was then prepared.
All the world
knew
the true state of the case.
The
purely
money was granted by

larity
Parliament, and the irregu-
in
the issue
of
the
warrants
was
technical, yet the law officers
of the Ministry
advised
members
were in
themselves
that Lord Grenville and

Seal
the
clerks
of
the Privy
the right.

3i8
THE RULE OF LA W
it
Part n.
This inconvenient and, as
seems to modern readers,

deal
of political by-
unreasonable display of legal scrupulosity masked,

it
may
be suspected, a good
If
play.
Lord Grenville and

that the
his friends
had not
press
been anxious
the
Ministry should
on
Eegency Bill, the officials of the Exchequer would perhaps have seen their way through the
technical
difficulties
which,
it is
as
it
was,
appeared
insurmountable, and
impossible not to suspect
that Lord Grenville acted rather as a party leader
than as Auditor of the Exchequer. But be this as it may, the debates of 1811 ^ prove to demonstration that a Comptroller General can, if he chooses, put
an immediate check on any irregular dealings with

public moneys.
In exercise of his duty as Auditor the Comptroller
General audits
all
the public accounts
he reports
annually to Parliament upon the accounts of the past year. Accounts of the expenditure under the
Appropriation Act are submitted by him at the beginning of every session to the Public Accounts
Committee of the House of Commons

appointed for the examination
of
Committee
the accounts
showing the appropriation of the sums granted by Parliament to meet the public expenditure. This examination is no mere formal or perfunctory supervision a glance at the reports of the Committee shows that the smallest expenses which bear the least appearance of irregularity, even if amounting only to a pound or two, are gone into and discussed
;
Cobbett's Pari. Delates, xviii. pp. 678, 734, 787. In auditing the accounts he inquires into the legality of the purposes for which public money has been spent, and in liis report to Parliament calls attention to any expenditure of doubtful legality.
1 ^

THE REVENUE
by
the Committee.
319
The
results of their discussions
Chapter
are published in reports submitted to Parliament.
L_
The
audit
is,
general result of this system of control

that in England
and
we
possess accounts of the
national expenditure of an
accuracy which cannot
be rivalled by the public accounts of other countries,
and that every penny of the national income is expended under the authority and in accordance with the provisions of some Act of Parliament.^ How, a foreign critic might ask, is the authority
of
the
Comptroller
General
compatible with
;
the
orderly transaction of public business
how, in short,
does
it
happen that
difficulties like
those which arose
in 1811 are not of constant recurrence?
The general answer of course is, that high English officials, and especially officials removed from the
1
The main
:
features of
of national expenditure
follows
the system for the control and audit have been authoritatively summarised as
gross revenue collected is paid into the Exchequer. " Issues from the Exchequer can only be made to meet expenditure " which has- been sanctioned by Parliament, and to an amount not "exceeding the sums authorised. "The issues from the Exchequer and the audit of Accounts are " under the control of the Comptroller and Auditor General, who is "an independent officer responsible to the House of Commons, and " who can only be removed by vote of both Houses of Parliament. " Such payments only can be charged against the vote of a year as " actually came in course of payment within the year. " The correct appropriation of each item of Receipt and Expendi-
"
The
" ture is ensured.
" All unexpended balances of the grants of a year are surrendered " to the Exchequer, as also are all extra Receipts and the amount of " Appropriations-in-Aid received in excess of the sum estimated to be
" taken in aid 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 over the amount voted by Parliament for any Control and Audit of "service must receive legislative sanction." Public Receipts and Expenditure, 1885, pp. 24, 25.
320
THE RULE OF LA W
Paxtn.
sphere of politics, have no wish or temptation to

the Auditor hinder the progress of public business of the Exchequer was in 1811, be it noted, a peer
;
The more technical reply is, that the law provides two means of overcoming the perversity or factiousness of any Comptroller who should and a statesman.
without due reason refuse his sanction to the issue He can be removed from office on of public money.
an address of the two Houses, and he probably might, it has been suggested, be coerced into the proper fulfilment of his duties by a mandamus^ from the
High Court of Justice. The worth of this suggestion, made by a competent lawyer, has never been, and But the possibility probably never will be tested. that the executive might have to seek the aid of the Courts in order to get hold of moneys granted by
Parliament,
is itself
a curious proof of the extent to

is
which the expenditure of the revenue

law, or,
what
is
the same thing,
may become
governed by depend-
ent on the decision of the judges upon the meaning of
an Act of Parliament.
' See Bowyer, Gimvmentaries on Gonstitutional Law, Government of England (2nd ed), p. 375.
p.
210
Hearn,
CHAPTEE
XI
THE RESPONSIBILITY OF MINISTEBS

Ministerial responsibility means two utterly different
things.
It
Chapter
'
means
in ordinary parlance the responsibility of

or,
response'''
^^''*y-
Ministers to Parliament,
the liability of Ministers
to lose their offices if they cannot retain the confidence
of the
House of Commons.
is
This
a matter depending on the conventions of
the constitution with which law has no direct concern.

It
means, when used in

in
its strict sense,
the legal
responsibility of every Minister for every act of the
which he takes part. This responsibility, which is a matter of law, rests on the following foundation. There is not to be found in the law of England, as there is found in
'
Crown
most foreign
constitutions, an explicit statement that
the acts of the monarch must always be done through

a Minister, and that all orders given
by the Crown
Practically,
must, when expressed in writing, as they generally

are,
be countersigned by a Minister.
exists.
however, the rule
In order that an act of the Crown
may
be
re-
cognised as an expression of the Royal will and have any legal effect whatever, it must in general be done with the assent of, or through some Minister
or Ministers
who
will
be held responsible for

321
it.
For
322
THE RULE OF LA W
Part
II.
the Eojal will can, speaking generally, be expressed
only in one of three different ways,

in Council
;
viz. (l)
by order
by order, commission, or warrant under 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 his Privy Council " and those
(2)
the sign-manual; (3)
persons
who
are present at the meeting of the Council
for
was made, bear the responsibility what was there done. The sign-manual warrant, or other document to which the sign-manual is affixed,
at which the order
bears in general the countersignature of one responsible
Minister or of more than one
though
it is
not unfre-
quently authenticated by some one of the seals for the

use of which a Secretary of State
Great Seal
is
affixed to a
is responsible. The document on the responsibility
of the Chancellor, and there may be other persons also, who, as well as the Chancellor, are made responsible
for its being affixed.
The
result
is
that at least one

in,
Minister and often more must take part

fore be responsible for,
and
there-
has any legal
effect, e.g.
any act of the Crown which the making of a grant, the
giving of an order, or the signing of a treaty.^
The Minister
or servant of the
Crown who thus

is
takes part in giving expression to the Eoyal will

legally responsible for the act in
which he
is
con-
cerned,
and he cannot get rid of
his liability
by
1 On the whole of this subject the reader should consult Anson, Law and Custom of the Constitution, vol. ii.. The Crown (3rd ed.),
account with which I
gives by far the best and fullest acquainted of the forms for the expression of the Eoyal pleasure and of the effect of these forms in enforcing the legal responsibility of Ministers. See also Clode, Military Forces of the Grown, ii. pp. 320, 321 ; Buron v. Denman, 2 Ex. 167,. 189, and the Great Seal Act, 1884, 47 & 48 Vict. u. 30.
App. to
ch.
i.
pp. 50-59.
Anson
am
THE RESPONSIBILITY OF MINISTERS
32^
pleading that he acted in obedience to royal orders. Chapter
Now supposing that the act done is illegal, the Minister

becomes at once liable to criminal or civil proceedings in a Court of Law. In some instances, it is true, the only legal mode in which his offence could be reached may be an impeachment. But an impeachment itself is a regular though unusual
concerned in
it
Li
mode
of legal procedure before a recognised tribunal,
namely, the High Court of Parliament.
Impeach-
ments indeed may, though one took place as late as 1805, be thought now obsolete, but the cause why
this
mode
of enforcing Ministerial responsibility

is
is
almost out of date

rarely in a position
to
is
partly that Ministers are

is
now
where there
even a temptation
commit the
sort of crimes for
which impeachment
an appropriate remedy, and partly that the result
aimed at by impeachment could now in many cases be better obtained by proceedings before an ordinary The point, however, which should never be Court. forgotten is this it is now well-established law that the Crown can act only through Ministers and according to certain prescribed forms which absolutely
:
some Minister, such as a Secretary of State or the Lord Chancellor, who thereby becomes not only morally but legally responsible for the legality of the act in which he takes
require the co-operation of
part.
Hence, indirectly but surely, the action of
every servant of the Crown, and therefore in eflPect of the Crown itself, is brought under the supremacy
of the law of the land.
sponsibility
lies
legal
liability,
Behind Parliamentary and the acts

the
acts
re-
of
Ministers
officials are
no
less
than
of
subordinate
made
subject to the rule of law.
CHAPTER
XII
RULE OF LAW COMPARED WITH DROIT ADMINISTRATIf'^

Part n.
,
Introduotion.
In many continental countries, and notably in France, ^ known there exists a scheme of administrative law which rests on to Frenchmen as droit admmistratif-
Aucoc, Conferences siir V administration et Berth^lemy, Traite EUmentavre ; de Droit Administratif {5th. ed. 1908); Chardon, L' Administration de Duguit, Manuel de Droit Gonla France, Les Fonctionnaires (1908) stitutionnel (1907); Duguit, Traite' de Droit Gonstitutionnel ^1911); Duguit, L'Mat, les gouvernants et les agents (1903) Esmein, Elements de Droit Gonstitutionnel (1896); Hauriou, Precis de Droit Administratif; Jacquelin, La Juridiction Administrative (1891); Jacquelin, Les Principes Dominants du Contentieux Administratif {1899) J&e, Laferriere, Les Principes Generaux du Droit Administratif (1904) Traite' de la Juridiction Administrative, 2 vols. (2nd ed. 1896); Teissier, La Besponsabilit^ de la Puissance Publique (1906).
^
On
droit administratif see
le
droit
administratif (3rd
ed.)
It is not
droit
my
its
aim in
this chapter to give a general account of
administratif.
My
object
is
to
treat
of
droit
administratif
in so far as
fundamental principles conflict with modern English ideas of the rule of law, and especially to show how it always has given, and still does give, special protection or privileges to the servants of the state. I cannot, however, avoid mentioning some other aspects of a noteworthy legal system or omit some notice of the mode in which the administrative law of France, based as it originally was on the prerogatives of the Crown under the ancien regime, has of recent years, by the genius of French legists, been more or less " judicialised" " if so I may render the French term " juridictionnaliser and incorporated with the law of the land. ^ Known in different countries by different names, e.g. in Germany as Venuallungsrecht. The administrative law of France comes nearer than does the Verwaltung credit of Germany (conf. Otto Mayer, Le Droit Administratif A'lemand, i. (French translation), p. 293 s. 17), to the rule of law as understood by Englishmen. Here, as elsewhere,
324
DROIT ADMINISTRATIF
325
ideas foreign to the fundamental assumptions of our
Chapter
English
common
law, and especially to
what we have
is
termed the rule of law.
This opposition
specially
apparent in the protection given in foreign countries

to servants of the State, or, as
we say
in England, of
the Crown, who, whilst acting in pursuance of official orders, or in the hona fide attempt to discharge official duties, are guilty of acts which in themselves
are wrongful or unlawful.
The extent
of this pro-
France most part concerned varied from time to it is now far time. It was once all but complete It less extensive than it was thirty-six years ago.^ only one portion of the whole system of droit forms administratif, but it is the part of French law to
tection has in
for the
with which country we are
wish to direct particularly the I must, however, impress attention of students. them that the whole body of droit administratif upon
which in
this chapter I
is
well worth their study.
It has
been imitated in
Europe.
It
most
of the
countries
of continental
contrast, the full
illustrates,
by way of
critic
meaning of
that absolute supremacy of the ordinary law of the
land
legalism which we have found
foreign
might say of that intense

to be a salient feature
illustrates,
of English institutions.
It also
by way
of analogy rather than of contrast, some phases in the

it is
the similarity as
much
as the dissimilarity
between France and
England which prompts comparison. The historical glories of French arms conceal the important fact that among the great States of Europe, France and England have the most constantly attempted, though with unequal success, to maintain the supremacy of the civil power against any class which defies the legitimate sovereignty of the
nation.
1
Or than
it still is 1.
throughout the German Empire.
See Duguit,
L'tiat, p. 624, note
326
THE RULE OF
LAW
ôx droit adminis-
Part
II.
constitutional history of England,
tratif has, of recent years, been so developed as to
meet the requirements of a modern and a democratic society, and thus throws light upon one stage at least in the growth of English constitutional law.^ Our subject falls under two main heads. The one head embraces the nature and the historical growth of droit administratif, and especially of that part thereof with which we are chiefly concerned. The
(A.)
Droit
other head covers a comparison between the English

rule of law
Admittistratlt.
and the droit administratif of France. For the term droit administratif English legal
no
proper equivalent.
are
its
phraseology supplies
natural
words "administrative law," which

rendering, are
The most
unknown
to English judges
and
counsel, and are in themselves hardly intelligible without further explanation.
This absence from our language of any satisfactory

equivalent for the expression droit adm,inistratif is,
the want of a name arises at bottom from our non-recognition of the thing itself. In England, and in countries which, like the United States, derive their civilisation from English sources, the system of administrative law and the very
significant
;
on which it rests are in truth unknown. This absence from the institutions of the American
principles
Commonwealth of anything answering to droit administratif arrested the observation of Tocqueville from the first moment when he began his investigations into the characteristics of
In 1831 he writes to
{magistrat), Monsieur
American democracy. an experienced French judge

Blosseville, to ask
post.
De
both
for
} See pp. 371-378,
DROIT ADMINISTRATIF
327
an explanation of the contrast in this matter between French and American institutions, and also for an
authoritative explanation of the general ideas {notions
Chapter
^^^'
gen^rales) governing the droit administratif of his

country.^
his
He
grounds his request
for information
on
own ignorance ^ about this special branch

is
of French
jurisprudence, and clearly implies that this
want of
knowledge
uncommon among French lawyers. When we know that a legist of Tocqueville's

not
genius found
it necessary to ask for instruction in the " general ideas " of administrative law, we may
assume that the topic was one which, even in eyes of a French lawyer, bore an exceptional character, and need not wonder that Englishmen find
safely
the
it difficult
to appreciate the nature of rules which are,
admittedly, foreign to the spirit and traditions of

It is, however, this very contrast between administrative law as it exists in France, and still more as it existed during by far the greater
1
our institutions.
Tocqueville's language
it
is
our topic that
deserves quotation
so remarkable and bears so closely on " Ce qui m'empiche le plus, je :
" vous avoue, de savoir ce qui se fait sur ces differents points en Amerique, " c'est d'ignorer, d peu prh complUement, ce qui existe en France. '' Vous savez que, chez nous, le droit administratif et le droit civil ferment ' comme deux mondes separes, qui ne vivent point toujoui^ en paix, mais " qui ne sont ni assez amis ni assez ennemis pour se bien connaitre. J'ai
" toujours vecu
" V autre.
En mime
dans I'un et suis fort ignorant de ce qui se passe dans temps que j'ai senti le besoin d'acqu^rir les notions
cet
" generales qui me manquent a " mieuxfaire que de m'adresser d

vii.
dgard^
vous."
fai pense que
je ne pouvais
Tocqueville, (Euvres ComplUes,
pp. 67, 68.

^
This want of knowledge is explainable, if not justifiable. In 1831 Tocqueville was a youth of not more than twenty-six years of age. There were at that date already to be found books on droit administratif written to meet the wants of legal practitioners. But the mass of interesting constitutional literature represented by the writings of Laferrifere, Hauriou, Duguit, Jeze, or Berth^lemy which now elucidates the theory, and traces the history of a particular and most curious branch of French law, had not come into existence.
328
THE RULE OF LA W
Part
II.
part of the nineteenth century, and the notions of equality before the law of the land which are firmly
estabhshed in modern England, that mainly makes it worth while to study, not of course the details, but
what Tocqueville
calls
the notions generales of French
droit administratif.
Our aim should be
to seize the
general nature of administrative law and the principles
on which the whole system of droit administratif depends, to note the salient characteristics by which
this
system
is
marked, and,
it is
lastly, to
make
clear to
ourselves
how
that the existence of a scheme of
administrative law
makes the
in
legal situation of every
government
legal
from the situation of servants of the State in England,

official
France
different
and
in fact establishes a condition of things funda-
mentally inconsistent with what Englishmen regard

as the
rfdroa""^^
due supremacy of the ordinary law of the land. Droit administratif, or " administrative law," has
admmis-
by French authorities in general terms as "the body of rules which regulate the relations "of the administration or of the administrative " authority towards private citizens " ^ and Aucoc in his work on droit administratif d.&s>Gr:\\a&& his topic
i^gg^ defined
;
in this very general language
" Administrative law
" determines (l) the constitution and the relations of " those organs of society which are charged with the
1
"
On U
definit
I'
orddnairement I'ensenible des rigles qui r^gissent

de
I'autorit^ administrative
i.
les les
" rapports de
" citoyens."
^
-Aucoc,
1-
administration ou
avec
Droit Administratif,
s.
6.
:
" Noils prifêrions dire, pour notre part

la constitution
et
Le
droit administratif
"ddermine: " charg& du

" I'Elat
les
rapports des organes de la societe
soin des int&ets collectifs qui font I'objet de I' administration " publique, c'est-d-dire des differentes personnifications de la societe, dont
est la
plus importante
" lives avec les citoyens."
S"' les
rapports des autorites administra-
Ibid.
DROIT ADMJNJSTRATIF
329
" care of those social interests [interets collectifs) which Chapte

"
"are the object of public administration, by which term is meant the different representatives of society
^""
"
among which the State is the most important, and " (2) the relation of the administrative authorities " towards the citizens of the State."
These definitions are wanting in precision, and their is not without significance. As far, however, as an Englishman may venture to deduce the
vagueness
meaning of droit administratif from foreign treatises, it may, for our present purpose, be best described as that portion of French law which determines, (i.) the position and liabilities of all State officials, (ii.) the civil rights and liabilities of private individuals
in their dealings with officials as representatives of
the State, and

rights
(iii.)
the procedure by which these

are enforced.
it
and
liabilities
An
larly
English student will never,

this
should particu-
be noticed, understand
branch of French
law unless he keeps his eye firmly fixed upon its historical aspect, and carefully notes the changes,
almost amounting to the transformation, which droit
administratif hsis, undergone between 1800 and 1908, and above all during the last thirty or forty years. The fundamental ideas which underlie this department
of French law are, as he will discover, permanent,
but they have at various times been developed in

difi"erent
degrees and in difierent directions.

to
Hence
any attempt
unless
compare the administrative law of

will be deceptive
France with our English rule of law
what are the stages in the law of each country which we bring into comparison. If, for instance, we compare the law of England and
carefully
we note
THE RULE OF LA W
Part
II.
the law of France as they stand in 1908,

likely to fancy (in
e.g.
we
are
my
judgment erroneously)
that,
in regard
its
to the position
or privileges of the
State and
citizens,
servants
when dealing with

little
private
there
may
be
essential
difference
between the laws of the two countries. It is only when we examine the administrative law of France
at some earlier date, say between 1800 and 1815, or between the accession to the throne of Louis Philippe (1830) and the fall of the Second Empire (1870), that
we can
rightly appreciate the
essential opposition
between our existing English rule of law and the

fundamental ideas which
trative
lie
at the basis of adminis-
law not only in France but in any country

this
where
scheme of State or
official
law has obtained
recognition.
iaide^*"
veiopment.
The modern administrative law of France has grown up, or at any rate taken its existing form, during the nineteenth century it is the outcome of more than a hundred years of revolutionary and con;
stitutional conflict.-'
Its
development
may
conveni-
ently be divided into three periods,
marked by the names of the Napoleonic Empire and the Eestoration (1800-1830), the Orleanist Monarchy and the Second Empire (1830-1870), the Third Eepublic (18701908).
Napoleon and tne
Restoration.
pir^st
Period.
Napoleon
*
and the Eestoration,
'
lu the opinion of Frenchmen true droit administratif Q-ês, its origin to the consular constitution of the Year VIII. (1800) created
1
1800-1830.
by Bonaparte
i.
For the history of

ed.),
droit administratif see especially Laferriere,
(2nd
I
bk.
i.
c.
i.-iv.
pp. 137-301.
effect
The Second Republic (1848on French administrative law.
1851) produced have included
little
it
permanent
in the second of our three periods.
DROIT ADMINISTRATIF
after
331
the cowp
legists,^
d'etat
less
of
the
18th of
Brumaire.
Chapter
But
no
than historians, admit that the
ideas on which droit administratif rests,
may
be
rightly traced back, as they have been

ville,^
by Tocque-
to the ancien regime
every feature of Bona-
parte's
governmental fabric
recalls
some
characteristic
of the ancient
monarchy
his Conseil d'Etat revives
the Conseil
du
Roi, his Prefects are copies of the
royal Intendants.
Yet in
this instance public opinion
has come to a right conclusion.

parte that
It was from Bonamodern droit administratif received its form. If he was the restorer of the ancien regime, he was also the preserver of the Eevolution. What-
ever he borrowed from the traditions of old France
he adapted to the changed conditions of the new
France of 1800.
a
new
character
At his touch ancient ideas received and a new life. He fused together
in the despotic traditions of the
what was strongest
1 "Aussihaut que Von remonte dans notre histoire, depuis que des " juridiclions regulieres ont ete instituees, on ne trouve pas d'epoque oil les " corps judiciaires charges d'appliquer les lois civiles et crvminelles aient
"
ete
en
mime
tewps appeles a statuer sur
" tration puhlique."
"
"
" "
'
139, and compare ibid. p. 640. 2 " Ce qui apparait quand on etudie les paperasses administrafives, c'est V intervention continuelle du pouvoir administratif dans la sphere jvdiciaire. Les legistes administratifs nous disent sans cesse, que le plus grand vice du gouvernement interieur de V ancien regime etait On pourrait se plaindre avec aulant de que les juges administraient.
Laferriere,
.
les difficultes
en
matihe d'adininis-
i.
p.
raison de ce que les administrateurs jugeaient. La seule difference est " que nous avons corrige Vancien regime sur le premier point, et I'avons " imite' sur le second. J'avais eu jusqu'a present la simplicite de croire
'
" que ce que nous appelons la justice administrative etait
Napoleon.
C'est
du pur ancien regime conserve
et
le
une creation de principe que
"
lors mhne qu'il s'agit de contrat, c'est-drdire d'un engagernent formel et " re'gulikrement pris entre un particulier et I'JEtat, dest A I' Mat a juger la " cause, cet axiome, inconnu chez la plupart des nations modernes, etait
" tenu pour aussi sacrepar un intendant de Vancien regime, qii'il pourrait " rStre de nos jours par le personnage qui ressemble le plus a celui-la, je " veux dire unprefet." Tocqiieville, (Euvres GompUtes, vi. pp. 221, 222.
332
THE RULE OF LA W
Partn.
monarchy with what was strongest in the equally Nowhere is this fusion despotic creed of Jacobinism, more clearly visible than in the methods by which
Bonaparte's legislation and policy gave full expression to the ideas or conceptions of royal prerogative
underlying the administrative practice of the ancien

regime, and emphasised the jealousy felt in 1800 by
every Frenchman of the least interference by the law This Courts with the free action of the government.
jealousy
itself,
though
theoretically
revolutionary dogma, was inherited
justified by by the Revolution
Droit
tratifiis
from the statecraft of the monarchy. Any one who considers with care the nature of
the dvoit administratif of France, or the topics to
prkidp?e.^
which it applies, will soon discover that it rests, and always has rested, at bottom on two leading ideas alien to the conceptions of modern Englishmen.
Privileges
state.
The first of thcsc idcas is that the government, and every servant of the government, possesses, as representative of the nation, a whole body of special
rights, privileges, or prerogatives as against private
citizens,
and that the extent of these

is
rights, privileges,
be determined on principles different from the considerations which fix the legal
or prerogatives
to rights
and duties of one
citizen
towards another.
An
individual in his dealings with the State does not,
according to French ideas, stand on anything like the
same footing
as that
on which he stands in dealings
with his neighbour.^

1 " Un particulier qui n'execute pas un marche doit a I'entrepreneur " une indemnite proportionne'e au gain dont il le prive; le Code civil I'etahlit
" ainsi.
L' administration qui rompt

de la perte eprouve'e.
un
tel
marche ne doit d'indemnite

la rigle de la jurisprudence
" qu'en raison
G'est
" administrative.
mains que
le
droit ne s'y oppose, elle tient que
VAat,
DROIT ADMINISTRA TIF
333
The second of these general ideas is the necessity chapter ^^^" of maintaining the so-called " separation of powers "
(separation ^
-tr
des IT pouvoirs), J'
or,
>
in
other words,
'
of
Separation
of powers.,
preventing the government, the legislature, and the
Courts from encroaching upon one another's province.
The
expression, however,
separation of powers, as
applied
by Frenchmen
to the relations of the executive
and the Courts, with which alone we are here concerned,
may
easily mislead.
It means, in the
mouth of a
French statesman or lawyer, something different from what we mean in England by the "independence of
the'
judges," or the like expressions.
As
by French history, by French legislation, and by the decisions of French tribunals, it means neither more nor less than the maintenance of the
interpreted
principle that while the ordinary judges ought to be
irremovable and thus independent of the executive,

the government and
officially) to
its officials
ought (whilst acting
free
be independent of and to a great extent from the jurisdiction of the ordinary Courts.^ It were curious to follow out the historical growth of the
as to the " separation of powers." It
rests apparently
"
'^
whole theory
upon Montesquieu's Esprit des

Us
Lois,
c'est-a-dire la collection de tons

I'
citoyens, et le tresor public, c'est-a^dire
ensemble de tons
les
contribuables, doivent passer avant
un intent individuel." Vivien, Etudes This was the language of a French Administrati'ves, i. pp. 141-142. The particular doctrine lawyer of high authority writing in 1853. which it contains is now repudiated by French lawyers. Vivien's teaching, however, even though it be no longer upheld, illustrates the general view taken in France of the relation between the individual and the state. That Vivien's application of this view is now repudiated, illustrates the change which French droit administratif and the opinion of Frenchmen has undergone during the last fifty-five
years.
1
" contribuable isoles, defendant
le
citoyen
ou
le
See Aucoc, Droit Administratif,
sf.
20, 24.
334
THE RULE OF LA W
c.
Part
II.
some sort the offspring Montesquieu misunderstood on this point the principles and practice of the English constitution, and his doctrine was in turn, if not misunderstood, exaggerated, and misapplied by the French statesmen of the Eevolution. Their judgment was biassed, at once by knowledge of the inconveniences and indeed the gross evils which had resulted from the interference of the French " parliaments " in matters of State and by the belief that these Courts would offer opposition, as they had done before, to fundamental and urgently needed reforms. Nor were the leaders of French opinion uninfluenced by the traditional desire, felt as strongly by despotic democrats as by despotic kings, to increase the power of the central government by curbing the authority of the law Courts. The investigation, however, into the varying fate of a dogma which has undergone a
6,
Book XI.
and
is
in
of a double misconception
development on each side of the Atlantic would lead us too far from our immediate topic. All
different
that
we need note
is
the
extraordinary influence
countries which have
exerted in France, and in

folio wedFrench
all
examples, by this part of Montesquieu's
teaching,
the political
Eepublic.
Character-
and the extent to which it still underlies and legal institutions of the French
of these
two general ideas may be traced four distmguishing characteristics of French

administrative law.
.
To the Combination
(1) Rights
The
of state
determmed Will at
ruies.
first of these characteristics is, as the reader oucc pcrccive, that the relation of the govern.
ment and
its
ofiicials
towards private citizens must
be regulated by a body of rules which are in reality
DROIT ADMINIS TRA TIF

laws, but which
335
may differ considerably from the laws which govern the relation of one private person to another. This distinction between ordinary law and administrative law is one which since 1800 has been fully recognised in France, and forms an essential
part of French public law, as
Chapter
"
must form a part of the public law of any country where administrative
it
law in the true sense
exists.^
is
The second
of these characteristics
that the
(2)
Law
ordinary judicial tribunals which determine ordinary

questions, whether they be civil or criminal, between
without
inâtters"
man and man,
must, speaking generally, have no con'. _
t^rstate^ ^^^ ^li'"istrative
cern whatever with matters at issue between a private
person and the State,

.
i.e.
with questions of adminis,

.
litigation
trative law,
but that such questions,

all
m
.
r.
to be deter-
so lar as mined by
they form at
matter
of litigation
administratif), must be determined
by
(contentieux traUvT ^'"''âdministrative
Courts in some way connected with the government

or the administration.
No
more
viction
part of revolutionary policy or sentiment was

heartily accepted
by Napoleon than the conthat the judges must never be allowed to

action
hamper the
In the
of the government.
He
gave
effect to this conviction in

first place,
two
different ways.
he constituted, or reconstituted,
two
classes
of Courts.
or,,
The one
class
consisted of
"judicial"
Courts.
as
we should
say,
"common law"
decision of
;
They performed, speaking generally, but

The one function was the
strictness between private persons
this
two
functions.
disputes in
1 Of course it is possible that rules of administrative law may exist in a country, e.g. in Belgium, where these rules are enforced only by the ordinary Courts.
336
THE RULE OF LA W
Part
II.
duty was discharged by such Courts as the Courts of

First Instance
and the Courts of Appeal.

all
The other
;
function was the trial of
criminal cases
this
duty
was discharged by such Courts as the Correctional Courts [Trihunaux Coi'rectionnels) or the Courts of A.%s,ize^ {Cours d' Assises). At the head of all these judicial tribunals was placed, and still stands, the Court of Cassation {Cour de Cassation), whereof it is the duty to correct the errors in law of the The other class of so-called inferior judicial Courts.^ Courts were and are the administrative Courts, such ' as the Courts of the Prefects (Conseil de Prefecture) The function of these and the Council of State.
bodies, in so far as they acted judicially (for they
fulfilled
many
duties that were not judicial),
determine
questions
of
administrative
law.
was to The
two kinds of Courts stood opposed to one another. The judicial Courts had, speaking generally,* no
concern with questions of administrative law,
servants was at issue
or, in
other words, with cases in which the interest of the

State or
judicial
suit
1
its
to entrust
any
it
Court with the decision of any administrative

in 1800, as
would have been deemed
indeed
is trial
2
The Courts of Assize are the only Courts in France where there by jury. The Cow de Cassation is not in strictness a Court of Appeal. With the Courts, or Councils, of the Prefects an English student
need hardly concern himself. * There existed even under Napoleon exceptional instances, and their number has been increased, in which, mainly from motives of immediate convenience, legislation has given to judicial Courts the decision of matters which from their nature should fall within the
sphere of the administrative tribunals, just as legislation has exceptionwhich would naturally fall within the jurisdiction of the judicial Courts. These exceptional instances cannot be brought within any one clear principle, and may for our purpose be dismissed from consideration.
ally given to administrative tribunals matters
DROIT ADMINISTRATIF
is still
337
deemed by most Frenchmen,
a violation of the
Chapter
'^""
doctrine of the separation of powers, and would have
allowed the interference by mere judges with cases in
which the interest of the State or

issue.
its
servants was at
had,
speaking
The administrative Courts, on the other hand, generally, no direct concern with
which
fell
matters
judicial
within the jurisdiction of the
tribunals, but
the nature of
when we come to examine the Council of State we shall find that
on the authority of a body which in Napoleon's time formed part of the government itself
this restriction
was far less real than the strict limitations imposed on the sphere of action conceded to the common
law Courts.
Napoleon, in the second place, displayed towards
j udges the sentiment of contemptuous embodied in revolutionary legislation. The suspicion law of 16-24 August 1790^ is one among a score of examples which betray the true spirit of the
the ordinary
Kevolution.
The
judicial tribunals are thereby for-
bidden to interfere in
acts of legislation.
anyway whatever with any

it is
Judicial functions,
laid
down,
must remain separate from administrative functions. The judges must not, under penalty of forfeiture,
disturb or in any
way
interfere with the operations of
administrative bodies, or
istrative
officials
summon
before
them admin-
on account of anything done by
reason of their administrative duties.
Napoleon had
imbibed to the utmost the spirit of these enactments.
He
held, as even at a
much
later date did all persons
connected with the executive government, that "the

" judges are the enemies of the servants of the State,
1
Tit.
ii.
arts.
11-13.
338
THE RULE OF LA W
^^-^ II
and that there is always reason to fear their attempts " to compromise the public interests by their male" " volent, or at best rash, interference in the usual
"course of government business."^ This fear was during the Empire, at any rate, assuredly groundless. Administrative officials met with no resistance from
the Courts.
boundless
After the Kevolution the judges exhibited humility and servile submission, they
trembled before the power and obeyed the orders, often It is difficult, insolent enough, of the government.^
however, to see
how
in the days
of Napoleon the
ordinary judges could, whatever their courage or boldness, have interfered with the conduct of the govern-
ment
or its agents.
They
are even
now, as a
rule,
without jurisdiction in matters which concern the They have no right to determine, for instance, State.
the meaning and legal effect in case
it
be seriously
disputed of
official
documents,
as, for
example, of a
letter addressed by a Minister of State to a sub-
by a general to a person under his They are even now in certain cases without jurisdiction as to questions arising between a private person and a department of the government.
ordinate,
or
command.
In Napoleon's time
1
'^
they could not, without the condominant

chez les gouvemants,
les
On a
I'
subi I'injluence de ce prejuge

et
" dans
administration
meme
chez la plupart des jurisconsulies, que
"
agents judiciaires sont
" a toujours a
des agents administratifs, qu'il y crainAre lemurs tentatives de compromettre la chose publique
les
ennemis nes
" par
leur intervention
malveillante ou tout
" la marche normale de
I'
administration."
J6ze
au mains
(ed.
inconsideree
datis
1904), p. 139.
^ " Les agents administratifs, dans leur arbitraire veritablement inom, " ne recontrkrent aucune resistance chez les agents judiciaires. Ceux-ci,
" ap-ks
" sion
une hv/milit^ sans limite et une soumisen tremhlant qu'ils ont toujours oh& aux ordres " parfois insolents du Gouvernement." J^ze, p. 128. ^ See Constitution of Year VIII., art. 75, p. 343, post.
la Revolution, ont montre
servile.
Cest
339
sent of the government, have entertained criminal or

civil
Chapter
'_
proceedings against an
official for
wrong done
respect of
or a crime
committed by such
official in
private individuals
official
when
acting in discharge of his
duties.
The incompetence, however, of the
judicial Courts did not
that a person injured
by an agent
was without a remedy. before, and obtain redress from, the administrative
tribunals,
i.e.
mean, even under Napoleon, of the government He might bring his grievance
in substance the Council of State, or
proceedings might, where a crime or a wrong was
complained
of, be,
with the permission of the govern-
ment, taken before the ordinary Courts.
The
co-existence of judicial Courts
and of adminis-
(3)Conjurismo-
trative Courts results of necessity in raising questions
A, for example, in some judicial for a breach of Court claims damages against contract, or it may be for what we should term an
of jurisdiction.
*'"
assault or false imprisonment.
X's defence in sub-
stance
State,
is
that he acted merely as a servant of the
and that the case raises a point of administrative law determinable only by an administrative
tribunal,
State.
or,
speaking broadly, by the Council of

objection, in short, is that the judicial
The
Court has no jurisdiction.
How
is
this
dispute to
be decided? The natural idea of an Englishman be determined by the is that the conflict must
judicial
Courts,
i.e.
the
ordinary judges,
for
that
the judges of the land are the proper authorities to This define the limits of their own jurisdiction.
view, which
is
so natural to
an English lawyer,
is
radically opposed to the French conception of the separation of powers, since it must, if systematically
340
THE RULE OF LAW

on the
Part
II.
carried out, enable the Courts to encroach
province
principle
of the administration.
still
It contradicts the
recognised
as
valid
by French law
must never be troubled functions by any act in the exercise of whatever of the judicial power ;^ nor can an Englishman, who recollects the cases on general warrants, deny that our judges have often interfered with the action of the administration. The
that administrative bodies
their
worth of Montesquieu's doctrine is open to quesbut if his theory be sound, it is clear that judicial bodies ought not to be allowed to protion,
nounce a
authority.
final
judgment upon the

legislation of
limits of their
own
Napoleon the right to determine such questions of jurisdiction was in theory reserved to the head of the State, but was
in effect given to the Council of State, that
is,
Under the
to
the highest of administrative Courts.

this
Its authority in
matter was, as
it still is,
preserved in two different
ways.
If a case before
an ordinary or judicial Court
clearly raised a question of administrative law, the
Court was bound to see that the inquiry was referred

to the Council of State for decision.
ever, the Court exceeded, or the
that
it
exceeded,
its
Suppose, howgovernment thought jurisdiction and trenched upon

administrative
is
the
authority
of
it
the
Court,
mere government official, could raise a conflict, that is to say, could, by taking the proper steps, insist upon the question of
prefect,
who, be
remarked,
jurisdiction being referred for decision to the Council
of State.
We
^
can hardly exaggerate the extent of

s.
See Aucoo, Droit Administratif,
24.
DROIT ADMINISTRATIF
tlie
341
authority thus conferred upon the Council.

to
fix
It
Chapter
had the right

it
the limits of
its
own power,
^^^
could in
judicial
seised.^
effect take out of the hands of a Court a case of which the Court was already
The fourth and most despotic

droit administratif lies in
characteristic of
^
(4) Protec-
its tendency to protect from the supervision or control of the ordinary law Courts any servant of the State who is guilty of an act, however illegal, whilst acting in honafide obedi-
officiaL
ence to the orders of his superiors and, as far as

intention goes, in the mere discharge of his
duties.
ofl&cial
Such an
In the
trative,
official
enjoyed from
1800
till
1872 a
Act of
triple protection {garantie des fonctionnaires).

first place,
sible before
he could not be made responany Court, whether judicial or administhe
{acte
performance of any act of State de gouvernemeni).

for
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 of public
security, or touch
upon foreign policy
or the execu-
tion of treaties, or concern dealings with foreigners,
must be
1
left to
the uncontrolled discretion of the

to raise a conflict {elever
civil case.
undeserving of notice that, whilst a conflict could be raised in order to prevent a judicial Court from encroaching on the sphere of an administrative Court, there was in Napoleon's time and still is no legal means for raising a conflict with a view to prevent an administrative Court from encroaching on the sphere of a judicial Court. ^ This protection of officials may be displayed in parts of French law {e.g. CodeP^nal, art. 114) which do not technically belong to droit administratif, but it is in reality connected with the whole system of administrative law.
is it
Up to 1828 it was possible any criminal no less than in any
un
conjUt) in
Nor
342
THE RULE OF LAW

lie
Part
11.
government, and
quite outside
the jurisdiction the

it
of any Court whatever.
What may be
on
exact
definition of an act of State is
even now,
would
high
appear in France,
moot point
which
authorities are not entirely agreed.
It is therefore
impossible for any one but a French lawyer to determine what are the precise qualities which
turn
conduct
otherwise
illegal
into
an
of'
act
of
State of which no French Court could take cognisance.
Of recent years the tendency
French
lawyers has certainly been to narrow

of an ambiguous term which
justification of tyranny.
down
the sense
lends itself easily to the

feel sure,
We may
however,
that
during the Napoleonic era
and
for long after-
wards any transaction on the part of the government

or its servants was
which was carried

of furthering the
country.
Obedience
"to orfl.fii's
deemed to be an act of State out hona fide with the object

interest
or
the
security
of the
In the sccoud placc, the French Penal Code, Art.

114,^ protected, as it still protects,
an
oflS.cial
from
the penal consequences of any interference with the

personal liberty of fellow citizens
*
when
the act com-
" Art. 114.
"da
^'
Lorsqu'im fonctionnaire public, un agent ou un prepose Gouvernement, aura ordonne ou fait quelque acte arhitraire, et
attentatoire soit
la liberie individuelle, soit
" ou de plusieurs citoyens, soit
la Charte, il sera
aux droits civiques d'v/n condamne A la peine de

ses
" la degradation civique.
" Si neanmoins
" des objets
il justifie qu'il
a agi par ordre de

sur lesquels
il
supeneurs pour
du
ressort de ceux-ci,
il
leur etait
dH
obeissance
" hierarchique,
sera
exempte de la peine,
laquelle sera,
dans
" appliquee seulement aux superieurs qui auront donne I'ordre." Oode Penal, art. 114; and Gargon, Code Penal annate, p. 245. "With, this read Garfon, Code Penal, arts. 34 aad 87, compare Gode d'instruction criminelle, art. 10 ; Duguit, Manuel, pp. 524-527, and generally Duguit, L'^tat, ch. V. s. 10, pp. 615-634.
ce
cas,
DROIT ADMINISTRATIF
plained of
superior.^
is
343
done under the orders of his
official
chapter
^^^-
In the third place, under the celebrated Article 75 ^ of the Constitution of the Year VIII., i.e. of 1800, no
official
could, without the permission of the Council
of State, be prosecuted, or otherwise be proceeded

against, for
duties.
any
act done in relation to his official
The protection given was ample.

indeed as
if it
Article 75 reads
applied only to prosecutions, but was
construed by the
for damages.^
Courts so as to embrace actions
Under the Napoleonic Constitution no

met
for
servant of the State, whether a prefect, a mayor, or

a policeman, whose conduct, however unlawful,
with the approval of the government, ran any real

risk of incurring
punishment or of paying damages
None but
a French criminalist can pronounce with anything like
certainty on the full effect of Art. 114, but Gargon's comment thereon {GoAe Penal, pp. 245-255) suggests to an English lawyer that an
who brings himself within the exemption mentioned in the second clause of the Article, though he may be found guilty of the offence charged, cannot be punished for it under Art. 114, or any other Article of the Penal Code, and that Art. 114 protects a very wide class of public servants. (See Gargon, comment under heads and E, pp. 249-252, and under G, p. 253, and para. 100, p. 254. Eead also Duguit, Manuel, ss. 75-77, especially pp. 504, 527 ; Duguit, VAat, pp. 615-634.) It is difBcult for an Englishman to understand how under the God,t Pinal a prefect, a policeman, or any other servant of the State, acting hoTiafide under the orders of his proper official superior, can be in danger of punishment for crimes such as assault, unlawful imprisonoffender
ment, and the

2
like.
du Gouvernement, autres que les ministres, nepeuvent Stre " powsuivis pour des fails relatifs A leurs fonetions, qu'en vertu d'une " decision du conseil d'etat : en ce cas, la poursuite a lieu devant les " tribunaux ordinaires." Duguit and Monnier, Les Constitutions de la
agents
"ies
France (deuxifeme ed.), p. 127. ^ See Jaoquelin, Les Prindpes Dominants du Contentieux Administralif, p. 127.
344
THE RULE OF LA W
Paj^. any act which purported to be done in discharge of

his official duties.
The
effect practically
produced by the four characespecially the
teristics of droit
administratif, and
amount
in the
of the protection provided for officials acting
ia obedience to the orders of their superiors, depends
main on the answer

is
to one question
What
at a given time
found to be the constitution and
Was it then ? under Napoleon a law Court administering judicially a particular branch of French law, or was it a department of the executive government? The
the character of the Council of State
answer is plain. The Council, as constituted or revived by Bonaparte, was the very centre of his
whole governmental
fabric.
It consisted of the
most
eminent administrators whom Napoleon could gather round him. The members of the Council were entitled and were bound to give the supreme ruler
advice.
The Council, or some of the

affairs
Councillors,
It is hardly
took part in
will of
of
all descriptions.
an exaggeration to say that, subject to the absolute

Napoleon, the members of the Council constituted the government. They held office at his
pleasure.
The
Councillors dealt with policy, with
questions of administration, with questions of administrative law.

trative
suits
In 1800
it
is
probable that adminis-
were not very clearly separated from governmental business. The Council, moreover, even when acting judicially, was more of a Ministry than
of a Court, and
when
the Council, acting as a Court,
had given its decision, or tendered its advice, it possessed no means for compelling the executive to give effect to its decisions. As a matter of fact, years
DROIT ADMINISTRATIF
345
have sometimes elapsed before the executive of the day has thought fit to put the judgments of the Council into force, and it was not till 1872 that its
decisions acquired
Chapter
by law the character of
real judg-
ments.
It was, moreover, as
we have
already pointed
It
out, originally the final Conflict-Court.
had a right
it
to determine whether a given case did or did not
concern administrative law, and therefore whether

fell
within
its
own
jurisdiction or within the juris-
diction of the ordinary Courts.
Thus the
state of
things which existed in France at the beginning of
the nineteenth century bore some likeness to what
England if there between the Cabinet as part of the Privy Council and the Judicial Committee of the Privy Council, and if the Cabinet, in its character of a Judicial Committee, determined all questions arising between the government on the one side, and private individuals on the other, and determined them with an admitted reference to conwould be the condition of
were no, or
little,
affairs in
distinction
siderations of public interest or of political expediency.
Nor was any material change produced by the fall of The restored monarchy eagerly grasped Napoleon.
There was the prerogatives created by the Empire. unrestrained arbitrariness even a sort of return to the
of the Directory.
It
was not until 1828, that
is,
within two years of the expulsion of Charles X., that

public
opinion
enforced
some
restriction
on
the
i.e.
methods by
Courts.
which the administrative authorities,
the government, invaded the sphere of the judicial
There are two reasons
why
it
is
worth while to
first
study with care the droit administratif of our
346
THE RULE OF LA IV
Part
II.
The administrative law of to-day has been built up on the foundations laid by Napoleon. The Courts created by him still exist; their jurisdiction
period.
is
still
defined in accordance, in the main, with the

laid
lines
which he
down.
True
it is
that machinery
invented to support a scheme of rational absolutism

has in later times been used by legists and reformers
for the
promotion of legal
liberty.
But
it
is
a fact
never to be forgotten that the administrative law

of France originated in ideas which favour the prerogatives of the government as the proper defence
for the interest of the nation.
Monarchioai period.
Secoud Period. The Orleans Monarchy and the ^^^^^^ Empire 1830-1870.^
This
period
deserves
the
special
attention
of
English
students.
;
Napoleonic
Imperialism
reaction
;
was
absolutism
the
Restoration was
neither
admits of satisfactory comparison with any governmental system known to modern England. The
the other hand, which intervened between the expulsion of Charles X. and the fall of Napoleon III., though marked by three violent
forty years, on
Revolution of 1848, the coup d'etat of 1851, the overthrow of the Second Empire in 1870
form, as a whole, a time of civil order.
changes
the
During
these forty years France was, with the exception of
more than six months, governed under the established law of the land. An age of peaceful progress gives an opening for illuminative comparison between the public law of France and the public law
not
1
Little account
Its legislative
need be taken of the Second Republic, 1848-1851. reforms in administrative law did not outlive its brief
and troubled duration.

of England.
347
This remark
is
particularly applicable
Chapter
^""
to tlie reign of Louis Philippe.
He
was, in the eyes
of
Englishmen, above
all
things,
a constitutional
His Parliamentary ministries, his House of peers, and his House of deputies, the whole framework and the very spirit of his government, seemed to be modelled upon the constitution of England;
king.^
under his rule the supremacy of the ordinary law of the land, administered by the ordinary law Courts, was, as Englishmen supposed, as securely established in France as in England. They learn with surprise, that during the whole of these forty years few, if
any, legislative
or Parliamentary reforms^ touched
the
as
essential
characteristics of droit
administratif
by Napoleon. It remained, as it still does, a separate body of law, dealt with by administrative Courts. With this law the judicial
established
Courts
continued
to
have,
as
they
still
have,
no concern. The introduction of Parliamentary government took from the Council of State, during
the reign of Louis Philippe,
functions.
many
of
its
political
It remained, however, as it does to-day,

It preserved
the great administrative Court.

it
what
does not
now
retain,' the right to define the juris-
diction of the judicial Courts.

His accession
Servants of the State
superficial,
to the throne was aided by an obvious, but utterly analogy between the course of the English Revolution in the seventeenth century and of the great French Revolution in the Louis Philippe, it was supposed, eighteenth and nineteenth centuries. was exactly the man to perform in France the part which William III.
1
had played in England, and

2
close the era of revolution.
however, gradually reformed to a great extent by a process of judicial legislation, i.e. by the Council of State acting in the spirit of a law Court. 2 See as to present Conflict-Court, p. 360, ifost.
It
was,

348
THE RULE OF LAW
Part
II.
remained in possession of every prerogative or privilege ensured to them by custom or by Napoleonic

legislation.
till
Droit administratif, in short, retained
1870
Fivst.
all its essential features.

:
That
is
apparent from two considerations
this
was so
TheCounabsolutely
The Council of State never, during the period with which we are concerned, became a
thoroughly judicial body.
body!^
on which an English is a point He will must speak with some hesitation. remember how easily a Frenchman, even though well acquainted with England, might at the present moment misinterpret the working of English inthe stitutions, and imagine, for instance, from relation of the Lord Chancellor to the Ministry,
This indeed
critic
that the Cabinet, of which the Chancellor
is
always
a member, could influence the judgment given in an

action entered in the Chancery Division of the
High
Court, whereas, as every Englishman knows, centuries
have passed since the Lord Chancellor, when acting as a judge in Chancery, was in the slightest degree
guided by the interest or the wishes of the Cabinet. An English critic will also remember that at the
commands as profound Court in France, and stands in popular any estimation on a level with the Court of Cassation
present day the Council of State
respect as
the highest of judicial tribunals
and further, that the
repute of the Council has risen during every year since

1830.
Yet, subject to the hesitation which becomes
any one who comments on the working of institutions which are not those of his own country, an English
lawyer must conclude that between 1830 and 1870 the Council, while acting as an administrative
DROIT ADMINISTRATIF
tribunal,
349
though tending every year to become. more and more judicialised, was to a considerable extent an official or governmental body, the members
of which,
Chapter
when
acting in the
discharge
to
of quasi-
judicial
functions,
were
likely
be
swayed
by
ministerial or official sentiment.
This assertion does
not imply that the Council, consisting of persons
and character, did not aim What is at doing or did not constantly do justice. justice was not meant is that the Council's idea of likely to be exactly the same as that entertained by judicial or common law Courts.
of the highest eminence
Secondly. The legaL protection of
officials
suffered Nodiminution in protection of
T no dimmution.
.
,
No man
could be
made
liable before
any Court
^^^^^-
whatever for carrying out an act of State {acte And under the rule of Louis de gouvernement)} Philippe, as under the Second Empire, wide was the
extension given, both in theory and in practice, to
and undefined expression. In 1832 the Duchesse de Berry attempted to She was arrested. raise a civil war in La Vendue. The king dared not let her leave the country. He would not put on trial the niece of his wife. Eepublicans and Legitimists alike wished her to be brought before a law Court. The one class desired that "Caroline Berry" should be treated as an ordinary criminal, the other hoped to turn the Duchess The case was debated in into a popular heroine. Petitions demanded Parliament again and again.
this indefinite
that she should either be set at liberty or brought

before
a jury.
The government refused

1
to
take
See
p.
341, ante.
350
THE RULE OF LA W
course.
Part
II.
either
She was detained in prison until
private circumstances deprived her both of credit
and
She was then quietly shipped off to The conduct of the government, or in fact of the king, was illegal from beginning to end. The Ministry confessed, through the mouth of Monsieur Thiers, that the law had been violated. A vote of the Chamber of Deputies not be it noted an act of legislation supplied, it was held, full justification for a breach of the law.-^ This was the kind of authority ascribed in 1832 by the constitutional Ministers of a constitutional monarch to an act of State. This most elastic of pleas was, it would
of popularity.
Sicily.
seem, the excuse or the defence for the dealings of
Napoleon
family
as
;
III.
is
with the property of

it
the
Orleans
nor
easy to believe that even as late
1880 some of the proceedings against the unauthorised congregations were not examples of the spirit which places an act of State above the law
of the land.
The Penal Code
Article
114,^
protecting
from
punishment, though not from legal condemnation, an agent of the government who though he committed
a crime acted in obedience to the commands of his official superiors, remained, as it still remains, in
full force.
The celebrated
Article 75 of the Constitution of
1 " M. Thiers, dans la seance du 20 juin, avoua hautement tout ce " qu'il y avait eu d'ille'gal dans V arrestation, la detention, la mise en " liberty de la duchesse ; c'etait a la Chambre a decider si Von avait agi
" dans
I'interet
hien
"
I'ordre
du
jour."
entendu du salut public.

Qregoire, Histoire de France,
La Chambre
i.
p.
364.
passa a See also
ibid.
pp. 292-308, 356-364. 2 See p. 342, note 1, ante
DROIT ADMINISTRATIF
the Year YIII.,^ which
legal
351
made
it
impossible to take chaptei

-^^^
proceedings for a crime or a wrong against
any
official
without the permission of the Council of

this case
State,
which surely in
must have acted
in
accordance with the government of the day,

stood unrepealed.
still
Public opinion refused to regard the Council as

a judicial tribunal,
extended to
official
wrongdoers.
and condemned the protection Hear on this point

:
the language of Alexis de Tocqueville
'
French Eepublic a constitution was drawn up in which the following

VIII. of the
clause
Art. 75. was introduced All the agents of the government below the rank of ministers can
'
:
"In the Year
'
'
'
only be prosecuted ^ for offences relating to their

several functions
sell
'
by
virtue of a decree of the Con-
'
d'Etat
in which case the
prosecution
takes
'
place before the ordinary tribunals.'
This clause
it is
'
survived the
still
'
Constitution de I'An VIII.,' and
'
'
the nation.
maintained in spite of the just complaints of I have always found the utmost diffiits
'
culty in explaining
meaning
at
to
Englishmen or
great
'
Americans.
that the
tribunal,
They were
in
once led to concluae
'
Conseil
d'Etat in France was a
'
established
the centre of the king-
'
dom, which exercised a preliminary and somewhat

tyrannical jurisdiction in
all political causes.
'
But
'
when
I told
them
that the Conseil d'Etat was not
'
a judicial body, in the
common
council
sense of the term,
'
but an administrative
1
composed of men
See p. 343, ante. This term was extended by legal decisions so as to cover actions See Jacquelin, Les Principes Dominants du Gontentieux for damages.
2
Administratif, p. 127.
352
THE RULE OF LA W
Part
II.
" dependent on the Crown, so that the King, after " having ordered one of his servants, called a Prefect,
" to commit an injustice, has the power of command" ing another of his servants, called a Councillor of
" State, to prevent the former
^'
from being punished
when
demonstrated to them that the citizen
who
is
" has been injured
by the order of the sovereign
" obliged to solicit from the sovereign permission to " obtain redress, they refused to credit so flagrant an " abuse, and were tempted to accuse me of falsehood
"or
of ignorance. It frequently happened before " the Eevolution that a Parliament issued a warrant " against a public officer who had committed an " offence, and sometimes the proceedings were stopped
" by the authority of the Crown, which enforced " compliance with its absolute and despotic will. It
" is painful to perceive how much lower we are sunk " than our forefathers, since we allow things to pass
"
under the colour of justice and the sanction of the " law which violence alone could impose upon them." ^
This classical passage from Tocqueville's
Democracy
in
America was published in 1835, when, at the age of 30, he had obtained a fame which his friends
droit administratif assuredly
compared to that of Montesquieu. His estimate of had not changed when towards the end of his life he published L'Ancien
et
HSgime
"
la Revolution,
by
far the
most powerful
and the most mature of
his works.
he writes, " expelled the " judicial power from the sphere of government into " which the ancien regime had most unhappily allowed
have,
it is
We
true,"
(Euvres OomplHes,
A. de Tocqueville, Democracy in America, i. pp. 174, 175.
i.
(translation), p.
101
'
DROIT ADMINISTRATIF
'
353
its
introduction, but at the very

see, the
same time,
as
any
Chapter
'
one can
authority of the government has
^^
'
gradually been introducing itself into the natural sphere of the Courts, and there
it
'
we have
suflfered
'
'
'
'
'
'
'
'
'
was not came from the side of the government as if it came from the side of the Courts, or even worse. For the intervention of the Courts of Justice into the sphere of government only impedes the management of business, whilst the intervention of government in the administration of justice depraves citizens and turns them at the same time both into revolutionists and slaves." ^
as dangerous if it
to remain as if the confusion of powers
These are the words of a

genius
man
of extraordinary
who
well
knew French
history,
acquainted with the France of his day,

years sat in Parliament,
who was well who had for
who at least once had been a member of the Cabinet, and to whom the public life of his own country was as well known as the public life
of England to Macaulay.
Tocqueville's language
may
bear marks of an exaggeration, explainable partly by

his turn of
mind, and partly by the

assiduously
of
closeness
line of
thought
possibly
which
made him
the
study and
overrate
the
connection between
the weaknesses of
of
^
the
old monarchy.
il est vrai,
modern democracy and the vices Be this as it may, he

chasse la justice de la sphire administrative
" Nous avons,
"
"
"
"
"
" " P administration dans la justice deprave les hommes et tend a les rendre " tout a la fois revolutionnaires et serviles." Tocqueville, L'Ancien
; mais dans gouvernement s'introduisait sans cesse dans la sphere naturelle de la justice, et nous I'y avons laisse: comme si la confusion des pouvoirs n'etait pas aussi dangereuse de ce cSte que de I'autre, et mime pire ; car I'intervention de la justice dans I' administration ne nuit qu'aux affaires, tandis que I'intervention de
oil
le
I'ancien regime I'avait laissee s'introduire fort indllment
mime
temps, corrnne on
le
voit,
le
Regime
et
la Revolution, septifeme Edition, p. 81.
354
THE RULE OF LAW

expressed
writer
Part
II.
assuredly
time.
the
educated
opinion
of
his
who has admirably brought

it
into
view the
many
merits of the Council of State and
the methods
by which
has in matters of adminis-
trative litigation acquired for itself
more and more

till
of a judicial character, acutely notes that

later part
the
of the nineteenth century the language
life, which is the best expression of " popular feeling, applied the terms " courts of justice
of everyday
or "justice " itself only to the judicial or

Courts.^
common law
for the
What
stronger confirmation can be found
of the justice of Tocqueville's

at least in
Effect of
judgment
time
which he lived
ministratif
of French"
officials,
We can now understand the way in which from 1830 to 1870 the cxistencc of a droit administratif affccted the whole legal position of French public
servants,
and rendered
officials.
it
quite different from that
of English
Persons in the employment of the government, who formed, be it observed, a more important part of
community than do the whole body of English civil servants, occupied in France a situation in some
the
respects resembling that of soldiers in England.
For
the breach of
safely
official
discipline
they were, we
in
may
assume, readily punishable
one form or
another.
soldiers they were they enjoyed what even soldiers in England do not possess, a very large
But
if
like
English
subject to
official discipline,
amount of protection against proceedings before the

judicial Courts for
wrongs done to private

instance,
citizens.
The
position,
for
of say
a prefect or a
policeman,
who
in the over-zealous discharge of his

^
J^ze, p. 138, note 1.
DROIT ADMINISTRATIF
duties
355
had broken the law by committing an assault or a trespass, was practically unassailable. He might plead that the wrong done was an act of State. If this defence would not avail him he might shelter himself behind Article 114 of the Penal Code, and thus escape not indeed an adverse verdict but the possibility of punishment. But after all, if the Ministry approved of his conduct, he had no need
for legal defences.
Chapter
^^^'
He
could not, without the assent
of the Council of State, be called upon to answer

for his
conduct before any Court of law.
Article
T'S
was the palladium of official privilege or irresponsibility. Nor let any one think that this arm of defence had grown rusty with time and could not in practice be used. Between 1852 and 1864 there were 264 applications for authorisations under Article 75 to take proceedings against officials. Only 34 were granted, or, in other words, 230 were refused.^ The manifest injustice of the celebrated Article had been Even in 1815 Napoleon had promised its long felt.
modification.
Third Period. Va.^ Third Republic 1870-1908. Within two years from the fall of the Second Empire public opinion insisted upon three drastic
reforms in the administrative or
official
law of France.
Repeal of Art. 75.
On
,
the 19th of September 1870 Article 75 was

1
repealed.
It
had survived the Empire, the Restoration, the
Orleans Monarchy, the Republic of 1848, and the
Second Empire.
1 tratif, p.
The one thing which astonishes an
See Jacquelin, Let Principes Dominants du Gontentieux Adminis364.

is
It
till lately,
worth notice that the principle of Article 75 was, at any rate recognised in more than one State of the German Empire.
356
THE RULE OF LA W
Part
II.
more than the length of time during which the celebrated Article had withstood every assault, is the date, combined with the method It was abolished on the 19 th of of its abolition.
English, critic even
September 1870, when the German armies were pressIt was abolished by a Government which had come into office through an insurrection, and which had no claim to actual power or to moral
ing on to Paris.
authority except the absolute necessity for protecting
France against invasion.

Paris, should
It is passing strange that a
provisional government, occupied with the defence of
have repealed a fundamental principle of
French law.
in temporary authority
Of the motives which led men placed by the accidents of a revolu
tion to carry through a legal innovation which, in
appearance at
officials,
least, alters
the whole position of French
It
is,
no foreign observer can form a certain opinion. however, a plausible conjecture, confirmed by
subsequent events, that the repeal of Article 75 was

lightly enacted
and
easily tolerated, because, as
many
and
lawyers
may have
all
suspected,
it
effected
a change
more important
did not after
in appearance than in reality,
gravely touch the position of French
functionaries or the course of French administration.^
A circumstance which
further
fills
an English lawyer with
amazement
is
that the repeal of Article 75
88.
i.
1 For some confirmation of this view, see Aucoc, Droit Administratif, 419-426 J Acqnelm, Juridiction Administrative, -p. 427 Laferriere
;
bk.
iii.
ch. vii.
The admission, however, involved in the repeal of Article 75 of the general principle that officials are at any rate prima facie liable
same way as private persons, marks, it is said by competent authorities, an important change in the public opinion of France, and is one among other signs of a tendency to look with jealousy on the power of the State.
for illegal acts, in the
DROIT ADMINISTRATIF
became, and
still
357
without any direct confirmation by

across an accepted principle
Chapter
'_
any
legislative
assembly remains, part of the law of
the land.
Here we come
of French constitutional law which betrays the im-
mense authority conceded both by the law and by the public opinion of France to any de facto and generally accepted government. Such a body, even provisional government of 1848 it is called if like the to office one hardly knows how, by the shouts of a mob consisting of individuals whose names for the most part no one now knows at all, is deemed to possess whilst it continues in power the fullest legislative authority.
It
is,
to use French terms, not only

It
a legislative but a constituent authority.

issue decrees,
can
known by
lois),^
the technical
name
of decree
laws {decrets
which, until regularly repealed by

legislative
some person or body with acknowledged

authority, are often as
much law
of the land as
any
Act passed with the utmost formality by the present French National Assembly. Contrast with this ready acceptance of governmental authority the view taken by English Courts and Parliaments of every law passed from 1642 to 1660 which did not receive the Eoyal assent. Some of them were enacted by Parliaments of a ruler acknowledged both in England and in many
1 See for the legal doctrine and for examples of such decree laws, Duguit, Manuet, pp. 1037, 1038 ; Moreau, Le Bkglement AdministraUf, pp. 103, 1 04. Such decree laws were passed by the provisional government between the 24th of February and the 4th of May 1848; by
Louis Napoleon between the coup cHetat of 2nd December 1851 and 29th March 1852, that is, a ruler who, having by a breach both of the law of the land and of his oaths usurped supreme power, had not as yet received any recognition by a national vote ; and lastly, by the Government of National Defence between 4th September 1870 and 12th February 1871, that is, by an executive which might in strictness
be called a government of necessity.
358
THE RULE OF LA W
tlie
Part
II.
foreign countries as
head of the English State

died
in
the
Protector,
moreover,
peace,
and was
succeeded without disturbance
\ij his
son Richard.
Yet
in
not a single law passed

the
between the outbreak of

is
the Eebellion and the Restoration
to be found
English
Statute
Book.
The
scrupulous
legalism of English lawyers acknowledged in
1660 no Parliamentary authority but that Long Parliament which, under a law regularly passed and assented to by Charles I., could not be dissolved without
its
own
to
most
it
consent. A student is puzzled whether admire or to condemn the sensible but,

be, too
may
easy acquiescence of
Frenchmen
in
the
or
actual
authority of any de facto government,
the legalism carried to pedantic absurdity of Englishmen, who in matters of statesmanship placed
technical legality above those rules of obvious expediency which are nearly equivalent to principles of justice. This apparent digression is in reality germane
to our subject.
It exhibits the different light in
which,
men have
even in periods of revolution. Frenchmen and Englishlooked upon the rule of law.
The strange story of Article 75 needs a few words more for its completion. The decree law of 19th September 1870 reads as if it absolutely subjected officials accused of any breach of the law to the jurisdiction of the judicial Courts.
fact the
This, moreover, was in view taken by both the judicial and the administrative Courts between 1870 and 1872.^
But
judicial decisions can in
France, as elsewhere,
frustrate the operation of laws

1
which they cannot
See in support of this view, Jacqnelin, is Principes Dominants
du Contentieux Administratif, pp. 127-144.

repeal.
officials
359
After 1870 proceedings against

of
all
officials,
and
is
Chapter
noteworthy.
became frequent. The government wished

ranks,
It
^
This fact
^^'
to protect its
own
servants.
brought before the newly cona case raising for reconsidera-
stituted Conflict-Court
tion the effect of the decree law of 19 th September
1870.
The Court held

officials
that,
though
proceedings
against
might be taken without the leave
of the Council of State, yet that the
dogma
to
of the
separation
of powers must
still
be respected, and
determine
within the juris-
that
it
was for
the
Conflict- Court
fell
whether any particular case

Courts, that
is
diction of the judicial Courts or of the administrative
in effect of the Council of State. ^
The
principle of this decision has
now
obtained general
acceptance.
Thus a judgment grounded on that

by ordinary judges any rate to one
the repeal of
doctrine of the separation of powers which embodies

traditional jealousy of interference
in affairs of State has, according at
high authority, reduced the
effect of
" To sum the matter Article 75 almost to nothing. Duguit, " the only difference between the up," writes
actual
system and
of
that
which existed under the

is
Constitution of the Year VIII.
that before 1870 the
prosecution
State
officials
was subject to
the
it
authorisation of the Council of State, whilst to-day

is
subject to the authorisation of the Conflict-Court."'

1
See See
p.
360,
'post.
Pelletier's Case,
decided 26th July 1873
and in support of an
;
interpretation of the law which has

Laferrifere,
i.
now
received general approval,

p.
pp.
;
637-654
Berth^lemy,
65
Duguit, Manuel,
s.
J^ze, pp. 133-135. 67, pp. 463, 464 ^ " Finalement la seule difference entre le sysUme actuel et celui de la " constitution de Van VIII., c'est qu'avant 1870 la poursuite centre les " fonctionnaires ^tait subordonnê A I'autorisation du Conseil d!Etat, et

36o
THE RULE OF LA W
Under
tlie
Part
(2)
II.
law of 24th
first
May
1872/ the decisions of
De-
the Council of State concerning cases of administrative
counoiof
law received for the

^^ judgmcnts.
time the obligatory force

in theory,
become
judgments,
They had hitherto been
and from some points of view even in practice, as already pointed out,^ nothing but advice given to
the head of the State.
(3) crea-
The Same law ^ which enhanced the authority

. .
tion of
indepenflkt-court.
the Council's decisious
.......... diminished
its
of
jurisdiction.
The Council had,
since 1800, decided
whether a given
given case,
fell
case, or a point that
might
arise in a
within the jurisdiction of the judicial Courts or of

the administrative Courts,
i.e.
in
substance of the
Council
itself.
This authority or power was, in 1872,

a
transferred
to
separate
and
newly
constituted
Conflict-Court*
This Conflict-Court has been carefully constituted

so as to represent equally the authority of the Court
the highest judicial Court in France and the authority of the Council of State the
of Cassation
highest administrative Court in France.

of nine
It consists
members
three
members
of the Court of
;
Cassation elected by their colleagues
three
members
their colsix
of the Council of State, also elected
by
leagues
two other persons elected by the above

All these eight
judges of the Conflict- Court.

re -eligible,
of the Court hold ofiice for three years.
members They are

tribunal des
and are almost
invariably
re-elected.
dv,
" qu'aujourd'hui elle est subordonnee a I'autorisation " conflits." Duguit, Manuel, p. 464.
1 3
Sect. 9.
Law
of 24th
May
1872,
Tit. iv. art.
See p. 344, ante. 25-28.
* Such a separate Conflict-Court had been created under the Second Republic, 1848-1851. It fell to the ground on the fall of the Republic itself in consequence of the coup d'elat of 1851.
DROIT A DMINIS TRA TIF

The Minister of Justice {garde des sceaux)
time being,
officio
36
for the
is
Chapter
who
is
member
its
of the Ministry,
ex
President of the Court.

elects
He
rarely attends.
The Court
President
from
own members
The
a ViceConflict;
who
generally presides.^
Court comes near to an absolutely judicial body
it
commands, according to the best authorities, general confidence. But its connection with the Government of the day through the Minister of Justice (who is not necessarily a lawyer) being its President, and the absence on the part of its members of that permanent tenure of office,^ which is the best security for perfect
judicial
independence,
are
defects,
which,
jurists,
in
the
opinion of the fairest
among French
ought to
be removed,^ and which, as long as they
exist, detract
from the judicial character of the Conflict-Court.

Englishman, indeed, can hardly
the Court
fail
An
body
to surmise that
ofiicial
must
still
remain a partly
by the policy of more often be influenced by Nor is this suspicion ofBcial or governmental ideas. diminished by the knowledge that a Minister of
which
occasionally be swayed
still
may
Ministry, and
Justice
has
within
the
year
1908
defended
his
position as President of the Court on the ground that

it
ought to contain some one who represents the

These three thorough-joiner reforms were carried
The
re-
interests of the government.*

forms the
result of
1 See Appendix, Note XI., Constitution of Tribunal des Gonjlits ; ^0!"*!" Chardon, p. 412. Berth^lemy (5th ed.), pp. 880, 881 IdminL 2 A member of the Council of State does not hold his position as tratif. He may be removed from the Council by the Councillor for life. But no Councillor has been removed since 1875. government. 2 Laferrifere, i. p. 24 Chardon, p. 4, note 2 J^ze, pp. 133, 134. * See J^ze, Revue de Droit public, etc. (1908), vol. xxv. p. 257.
;
;

362
THE RULE OF LA IV
They obviously met the They were rapid they
;
Part
II.
out by legislative action.
requirements of the time.^
appeared to be sudden.
This appearance
is
delusive.
outcome of a slow but continuous revolution in French public opinion and also of the perseverance with which the legists of the
in reality the
They were
Council of State, under the guidance of French juris-
prudence and
logic,
developed out of the arbitrariness

a
fixed
of administrative practice
administrative law.
system of true
this evolution of
To understand
droit administratif during the lapse of
more than a
century (1800-1908) we must cast a glance over the
whole development of this branch of French law and

regard
which it presents itself, not so much to an historian of France as to a lawyer who looks upon the growth of French public law from an historical point of view. We shall then see that the years under consideration fall into three periods or
it
in the light in
They are The period of unnoticed growth, 1800-18 {Periode d' elaboration secrete). During these years the Council, by means of judicial precedents, created a body of maxims, in accordance with which the
divisions.^
(i.)
:
Council in fact acted

disputes.
(ii.)
when deciding administrative
The period
of publication, 1818-60 {Periode
1 They were either tacitly sanctioned (decree law of 19th September 1870) or enacted (law of 24th May 1872) even before thje formal establishment of the Republic (1875) by a National Assembly of which the majority were so far from being revolutionists, or even
reformers, that they desired the restoration of the monarchy.

2 See Hauriou, pp. 245-268. These periods do not precisely correspond with the three eras marked by political changes in the annals of France under which we have already considered (see p. 330, ante)
the history of droit administratif.
DROIT ADMINISTRATIF
de divulgation).
363
During these forty-two years various reforms were carried out, partly by legislation, but, to a far greater extent, by judge-made law. The judicial became more or less separated off from the administrative functions of the Council.
Chapter
Litigious business
(Ze
contentieux administratif) was in practice assigned

to
and decided by a special committee {section), and, what is of equal consequence, such business was decided by a body which acted after the manner of a Court which was addressed by advocates, heard arguments, and after public debate delivered judicial These decisions were reported, became the decisions.
object of
much
public
interest,
and were,
after a
manner with which English lawyers are quainted, moulded into a system of law.
judgments, in short,
force
well
ac-
The
the
of
of the
Council acquired
revolutions
of precedent.
The
political
France, which
have excited
little
far
too
much
notice,
whilst the uninterrupted growth of French institutions
has received too
attention,
sometimes
retarded or threw back, but never arrested the continuous evolution of droit administratif; even under
the Second Empire this branch of French jurisprudence became less and less arbitrary and developed more
and more into a system of fixed and subtle legal rules, The period of organisation, 1860-1908 (iii.) During the last forty[Periode d' organisation). eight years, marked as they have been in France by the change from the Empire to a Eepublic, by the German invasion, and by civil war, the development of droit administratif has exhibited a singular and
tranquil regularity.
rare
Sudden innovations have been and have produced little effect. The reforms
364
THE RULE OF LA W
Part
11.
introduced by the
decree law of 19th September and by the law of 24th May 1872, are, taken 1870,
;
together, considerable
to ideas which
but they in reality give
effect
had since 1800 more or less guided the judicial legislation and practice both of the Council If the legal of State and of the Court of Cassation. history of France since 1800 be looked at as a whole, an Englishman may reasonably conclude
that the arbitrary authority of the executive as
existed in the time of Napoleon,
it
and even as
it
was
exercised under the reign of Louis Philippe or of
Louis Napoleon, has gradually, as far as the jurisdiction of the administrative Courts
is concerned, been immensely curtailed, if not absolutely brought to an Droit administratif, though administered by end. bodies which are perhaps not in strictness Courts, and though containing provisions not reconcilable with the modern English conception of the rule of law, comes very near to law, and is utterly different from the
capricious prerogatives of despotic power.

(B)Com.
parison
drort'^"
comparison between the administrative law of * __ _ France and our English rule of law, if taken from the
right point of view, suggests
trSi"ind
law.
I.
some interesting points

it is
of likeness, no less than of unlikeness.

It
Likeness.
wiU bc obscrved that
"
modern " English
ôl^tad
ministratif
^^*^<^^s
which we have contrasted with the ideas
of administrative law prevalent in France
opposed
ideas'^^'^
continental states.
between the two

-^t
is
and other The reason why the opposition drawn in this form deserves notice.
is
sixTeTnth"
period which historically

^^' *^
not very remote
temtr""
centuries,
-^"^^"^
'^^^^ ^ ^^ *^^ position of the

if
Crown
which werc currcut,
not predominant in England, bore a very close analogy to the doctrines which have
DROIT ADMINISTRATJF
365
given rise to the droit administratif of France/

Similar beliefs moreover necessarily produced similar
Chapter
and there was a time when it must have seemed possible that what we now call administrative law should become a permanent part of English institutions. For from the accession of the Tudors till the final expulsion of the Stuarts the Crown and its servants maintained and put into practice, with more or less success and with varying degrees of popular approval, views of government essentially similar to the theories which under different forms have been accepted by the French people. The personal failings of the Stuarts and the confusion caused by the combination of a religious with a political movement have tended to mask the true character of the legal and constitutional issues raised by the political contests of the seventeenth
results,
century.
A lawyer,
who
regards the matter from an

is
tempted to assert that the real subject in dispute between statesmen such as Bacon and Wentworth on the one hand, and Coke or Eliot on the other, was whether a strong
exclusively legal point of view,
administration of the
continental type
should, or
should not, be permanently established in England.
Bacon and men

risk that
like
an increase
to
him no doubt underrated the in the power of the Crown

establishment
of
should
lead
the
despotism.
(it
But advocates of the prerogative did not

supposed) intend to
the
1
may
be
sacrifice the liberties or

;
invade
ordinary private rights of citizens

This
is
they were
by the similarity between the views at one time prevailing both in England and on the continent as to the relation between the government and the press. See pp. 255-259,
illustrated
ante.
366
THE RULE OF LA W
Part
II.
struck with the evils flowing from the conservative

legalism of Coke, and with the necessity for enabling
the
Crown
as
head of the nation to cope with the
and classes. They wished, in short, to give the government the sort of rights conferred on a foreign executive by the prinHence for each feature ciples of administrative law. of French droit administratif one may find some curious analogy either in the claims put forward or in the institutions favoured by the Crown lawyers of
selfishness of powerful individuals
the seventeenth century.
propounded under various metaphors by Bacon, that the prerogative was something beyond and above the ordinary law is like the foreign doc-
The
doctrine,
trine
that
in
matters
the
of
high
policy
{acte
de
gouvernement)
administration
has
discre-
tionary authority which
cannot
be controlled
by
any Court. The celebrated dictum that the judges, though they be " lions," yet should be " lions under " the throne, being circumspect that they do not " check or oppose any points of sovereignty," ^ is a
curious
anticipation
of
the
maxim formulated by
French revolutionary statesmanship that the judges are under no circumstances to disturb the action of
the
out,
administration,
and would,
if
logically
worked
have led to the exemption of every administrative act, or, to use English terms, of every act alleged
to be done in virtue of the prerogative, from judicial
cognisance.
Star
The constantly increasing power of the Chamber and of the Council gave practical
to
expression
prerogative,
1
prevalent
it is
and
the Eoyal hardly fanciful to compare

iii.
theories
as
to
Gardiner, History of England,
p. 2.
DROIT ADMINISTRATIF
367
these Courts, which were in reality portions of the
chapter
executive government, with the Conseil d'etat and

other Tribunaux administratifs of France.
parallel
Nor
is
wanting to the celebrated Article 75 of the

This parallel
is
Constitution of the Year VIII.^
to
be found in Bacon's attempt to prevent the judges by
means of the writ De non procedendo Rege inconsulto from proceeding with any case in which the interests " The working of this of the Crown were concerned. " writ," observes Mr. Gardiner, " if Bacon had " obtained his object, would have been, to some " extent, analogous to that provision which has been
" found in so
" to
many French constitutions, according which no agent of the Government can be sum" moned before a tribunal, for acts done in the exercise
" of his oflSce, without a preliminary authorisation by " the Council of State. The effect of the English writ " being confined to cases where the King was him-
" self supposed to be injured, would have been of less " universal application, but the principle on which it
" rested
ciple
this,
would have been equally bad." ^ The prinmoreover admitted of unlimited extension, and we may add, was perceived by Bacon. " The
" writ," he writes to the King, " is a mean provided " by the ancient law of England to bring any case
concern your Majesty in profit or power "from the ordinary Benches, to be tried and judged " before the Chancellor of England, by the ordinary
" that
may
and legal part of this power. " knoweth your Chancellor is

" counsellor
"
And
ever
your Majesty
a principal
and instrument of monarchy, of im7,
1 See p. 343, ante. Gardiner, History of England, iii. p.
note 2.
368
THE RULE OF LA W
Part
II.
''mediate dependence on the Icing; and therefore " like to he a safe and tender guardian of the " regal rights." ^ Bacon's innovation would, if
successful,
have
formally
of
established
law,
the
fundaadby-
mental
dogma
administrative
that
ministrative
questions
must
be
determined
administrative bodies.
The analogy between the administrative ideas which still prevail on the Continent^ and the conception of the prerogative which was maintained by
the English crown in the seventeenth century has
considerable speculative interest.
trative ideas
That the adminiswriters

to
supposed by many French
have been originated by the statesmanship of the
Empire are to a great extent developments of the traditions and habits of the French monarchy is past a doubt, and it is a curious inquiry how far the efforts made by the Tudors or Stuarts to establish a strong government were influenced by foreign examples. This, however,
great Revolution or of the first
is
a problem for historians.
lawyer
may
content
himself with noting that French history throws light on the causes both of the partial success and of the
ultimate failure of the attempt to establish in England a strong administrative system. The endeavour
had a
partial success, because circumstances, similar
to those which
despotic,
made French monarchs
ultimately
tended in England during the sixteenth and part of the seventeenth century to augment the authority of the Crown. The attempt ended in
Abbot, Francis Bacon, p. 234. It is worth noting that the system of "administrative law," though more fully judicialised in France than elsewhere, exists in one form or another in most of the Continental States.
^ 2
DROIT ADMimSTRAriF
failure,
369
partly because of the personal deficiencies

Stuarts,
chapter
of
the
but
chiefly
because
the
whole
^^'
scheme of administrative law was opposed to those of equality before the law which had long been essential characteristics of English institutions. Droit administratif is in its contents utterly unhabits
like
2nd
Point,
any branch of modern English law, but in the ^^î,. method of its formation it resembles English law i!'>/'s case-law. far more closely than does the codified civil law of France. For droit administratif is, like the greater
part of English
law."
^
code
law, "case-law," or "judge-made The precepts thereof are not to be found in any they are based upon precedent French lawyers
:
cling to the belief that droit administratif cannot be

codified, just as
tain, for
able to
English and American lawyers mainsome reason or other which they are never make very clear, that English law, and especi-
ally the
common
because
law, does not admit of codification.

to
The true meaning of a creed which seems

illogical
its
be
not,
apologists cannot, or will

for
give the true
grounds
their
faith,
is
that the
devotees of droit administratif
m France, in
common
is
with the devotees of the
common law
in England,
know
that the
system which they each admire

limit,
the product of judicial legislation, and dread that

codification
might
as
it
probably
would,
the essentially legislative authority of the tribunaux
administratifs in France, or of the judges in England.
The prominence
treatise
further given throughout every on droit adm/inistratif to the contentieux
^ See Dicey, Law and Opinion in England, Lect. XI. p. 359, and Appendix, Note IV. p. 481. It may be suspected that English lawyers underrate the influence at the present day exerted by precedent {Jurisprudence) in French Courts.
2 B
370
THE RULE OF LAW
Part
II.
administratif recalls the importance in English lawbooks given to matters of procedure. The cause is
in each case the same, namely, that
French
jurists
and English lawyers are each dealing with a system

of law based on precedent.
Nor
is
it
irrelevant
to
remark that the droit
administratif of France, just because it is case-law based on precedents created or sanctioned by
law of England, been profoundly influenced by the writers of text-books and There are various branches of English commentaries. law which have been reduced to a few logical printribunals, has, like the
ciples
by the books of well-known
writers.
Stephen
transformed pleading from a

coherent logical system.
as
set of rules derived
mainly from the experience of practitioners into a

Private international law,
understood in England at the present day, has

first
been developed under the influence
of Story's
Commentaries on
a later date,
of Laws, and next, at of Mr. Westlake's Private International

the Conflict
Law.
And
the authority exercised in every field of
English law by these and other eminent writers has

in France been exerted, in the field of administrative law,
by authors
or
teachers
such
as
Cormenin,
This
is
Macarel, Vivien, Laferriere, and Hauriou.

accident.
no
Wherever Courts have power to form the
law, there writers of text-books will also have in-
Eemark too that, from the very nature of fluence. judge-made law, Eeports have in the sphere of droit administratif an importance equal to the importance which they possess in every branch of English law,
except in the rare instances in which a portion of our
law has undergone codification.
DROIT ADMINJSTRA TIF

But in the comparison
between
371
French droit
critic
Chapter
ought not to stop at the points of likeness arising from

their each
decisions.
administratif wi<^ the law of England a

of
^^'
I'Îî^y"*'
them being the

.
creation of " judicial
otd/rmt administratif.
There exists a further and very curious
analogy
between
the
process
of
their
historical
development.
The
Conseil d'JStat has
been converted
from an executive into a judicial or quasi-judicial body
by the gradual separation
of its judicial
from
its
executive functions through the transference of the
former to committees [sections), which have assumed
more and more distinctly the duties of Courts. These "judicial committees" (to use an English expression)
at first only advised the Conseil d'etat or the whole
executive body, though it was soon understood that the
Council would, as a general rule, follow or ratify the

decision of its judicial committees.
This recalls to a
student of English law the fact that the growth of our
whole judicial system
may historically be treated
as the
transference to parts of the King's Council of judicial
powers originally exercised by the King in Council and it is reasonable to suppose that the rather illdefined relations between the Conseil d'Mat as a
whole, and the Comite
du
contentieux^
may
explain
to a student the exertion, during the earlier periods of English history, by the King's Council, of hardly distinguishable judicial and executive powers; it
explains also how,
by a natural
little
process which
may
have
excited very
observation,
the
judicial
functions of the Council became separated from its
executive powers,
and how
this
difierentiation
of
functions gave birth at last to Courts whose connection

1
See Jjaferri&re,
i.
p.
236,
372
THE RULE OF LA W
the political executive was
Part
II.
xvith
merely
historical.
This process, moreover, of differentiation assisted at

times, in France
no
less
than in England, by
legisla-
tion, has of quite recent years
changed the Conseil
d'jStat into a real tribunal of droit administratif, as

it
created in
England the Judicial Committee of the
Privy Council for the regular and judicial decision of

appeals from the colonies to the
Crown
is
in Council.
it
Nor, though the point

were,
is
a minor one,
irrelevant
to note that, as the so-called

seil d'iltat
till
judgments of the Con-
1872, not strictly "judgments,"
but in reality advice on questions of droit administratif giYen by the Conseil d'J^tat to the head of the
Executive, and advice which he was not absolutely
bound
mittee,
to follow, so the
"judgments" of the Privy
when acting through its judicial comthough in reality judgments, are in form merely humble advice tendered by the Privy Council to the Crown. This form, which is now a mere
Council, even
survival, carries us back to an earlier period of Eno-lish
constitutional history,
Council,
i.e.
was a real which has been the guarantee of English freedom, and this era in the history of England again is
curiously illustrated
when the interference by the by the executive, with judicial functions, menace to that supremacy of the law
by the annals of droit adminis-
tratif Skitev the restoration of the Bourbons, 1815-30. At that date the members of the Conseil d'JStat,
as
we have
seen,^ held, as
;
they
still
hold, office at the
pleasure of the Executive
they were to a great extent a political body; there existed further no Conflict-
Court
or rather the Conseil d'Etat

^
was
itself
the
See
p.
344, ante.
DROIT ADMINISTRATIF
Conflict -Court, or the
373
reciprocal jurisdiction of the ordinary law Courts
body which determined the and

i.e.
Chapter
-^^^
of the administrative Courts,
speaking broadly,
jurisdiction.
the extent of the Council's

result
own
The
was that the Conseil d'J^tat used its powers to withdraw cases from the decision of the law Courts, and
time when government functionaries were fully protected by Article 75 of the 'Constitution
this at a
of the Year VIII. from being
made
responsible before
the Courts for

legal powers.
official acts
done in excess of their
Nevertheless, the Conseil d'etat, just
because
ideas,
was to a great extent influenced by legal resisted, and with success, exertions of arbitrary
it
power inspired by the

upheld the
spirit of Eoyalist reaction.
It
sales of the national

;
domain made between

authorities
1789 and 1814
it
withstood every attempt to in-
validate decisions given
by administrative
it
during the period of the Revolution or under the
Empire.
The King, owing,
may
be assumed, to
the judicial independence displayed
by the Conseil
from the
Courts,
to
d'etat, took steps which were intended to transfer
the
decision
of
its
administrative
disputes
as
Council
or
committees,
acting
Councillors, acting as part of the executive.
Ordi-
nances of 1814 and of 1817 empowered the King

to
withdraw any administrative dispute which was

les
connected with principles of public interest (toutes

affaires
lieraient
du contentieux de V administration qui
se
h des vues d'interSt general) from the jurisdiction of the Conseil d'etat and bring it before the
Council of Ministers
or, as it
was
called, the Conseil
d'en haut, and the general
efiiect
of this power
and of
other arrangements, which
we need not
follow out
374
THE RULE OF
LAW
Part n.
was that questions of droit administratif, in the decision of which the government were interested, were ultimately decided, not even by a quasijudicial body, but by the King and his Ministers,
jj^^Q detail,
acting avowedly under the bias of political considera-
tions/ In 1828 France insisted upon and obtained from Charles X. changes in procedure which diminished the arbitrary power of the Council.^ But no one can wonder that Frenchmen feared the increase of
arbitrary power, or that French liberals demanded,
after the Revolution of 1830, the abolition of adminis-
trative law
and of administrative Courts.
They
felt
towards the jurisdiction of the Conseil d'J^tat the dread entertained by Englishmen of the sixteenth and seventeenth centuries with regard to the jurisdiction
of the Privy Council, whether exercised
Council
itself,
by the Privy by the Star Chamber, or even by the

In each country there existed
Court of Chancery.
an appreciable danger
lest the rule of the prerogative should supersede the supremacy of the law. The comparison is in many ways instructive it
;
impresses upon us
how
nearly
it
came
to pass that
something very
like administrative
law at one time
grew up
spirit,
in England.
ceive that such law, if
has in itself
make us perbe administered in a judicial some advantages. It shows us

It ought, too, to
it
danger of its not becoming in strictbut remaining, from its close connection with the executive, a form of arbitrary power above or even opposed to the regular law of the land. It is
ness law at
all,
1
also the inherent
See Laferriere,
i.
envisage
2
comme
conseil et
Ordinance of 1st
and Comienin, Du comme juridiction (1818). June 1828, Laferriere, i. p. 232.

pp. 226-234,
Conseil
d'Aat
DROIT ADMINISTRATIF
certain that in the sixteenth
375
and seventeenth centuries

its
Chapte:
the jurisdiction of the Privy Council and even of the
^^-
Star
Chamber, odious as
name has remained,

It should
re-
did confer some benefits on the public.
always be remembered that the patriots who

sisted the
tyranny of the Stuarts were fanatics -for the common law, and could they have seen their way
would have abolished the Court of Chancery no less than the Star Chamber. The Chancellor, after all, was a servant of the Crown holding his
to do so
office
at
the pleasure
of
the King, and certainly
was promoting justice or equity, of destroying the certainty no less than the formalism of the common law. The parallel therefore between the position of the English
puritans,
or
capable, under the plea that he
whigs,
who,
during
the
seventeenth
of
century,
Council,
opposed
the
arbitrary
authority
the
and the position of the French liberals who, under the Eestoration (1815-30), resisted the arbitrary authority of the Conseil d'etat and the
extension of droit administratif,
is
a close one.
In
each case,
it
may
be added, the friends of freedom
triumphed.
The
be
result,
however, of this triumph was,
it
will
said, as
regards the matter
we
are considering,
markedly
difierent.
Parliament destroyed, and deCouncil,
stroyed for ever, the arbitrary authority of the Star
Chamber and of the
and did not
suffer
any
system of administrative Courts or of administrative The law to be revived or developed in England. French liberals, on the expulsion of the Bourbons, neither destroyed the trihunaux administratifs nor
made
a clean sweep of droit administratif.
376
THE RULE OF LA IV
Part
II.
The diiFerence is remarkable, yet any student who looks beyond names at things will find that even
here an obvious difference conceals a curious element of fundamental resemblance.
abolished
;
The Star Chamber was
the arbitrary jurisdiction of the Council
disappeared, but the judicial authority of the Chan-
was touched neither by the Long Parliament nor by any of the Parliaments which met yearly
cellor
after the
Ee volution
of 1688.
difference are not hard to
The reasons for discover. The law

or, in
this
ad-
ministered by the Lord Chancellor,

Equity, had in
cretionary
benefits
it
other words,
dis-
originally
an arbitrary or
fact
element,
but
it
in
conferred
real
upon the nation and was

superior to the
felt to
be in
many
respects
common law
Even
Equity,
administered
by the common-law Judges.

a system of fixed law.
before 1660 acute
observers might note that Equity was growing into
which
originally
meant the
real
discretionary, not to say arbitrary inter-
ference of the Chancellor, for the
avowed and often
purpose of securing substantial justice between the parties in a given case, might, no doubt, have
and extend the Crown. But this was not the course of development which Equity actually followed at any rate from the time of Lord Nottingham (1673) it was obvious that Equity was
despotic prerogative of the
;
been so developed as to shelter
developing into a judicial system for the application of principles which, though different from those of
the
The danger had passed away, and English statesmen, many of them lawyers, were little likely to destroy a body of law
of Equity turning into the servant of despotism
common
law, were not less fixed.

which,
if
377
in one sense an anomaly, was productive of Chapter
beneficial reforms.
The treatment
of droit adminis-
tratifin the nineteenth century by Frenchmen bears
a marked resemblance to the treatment of Equity in
Droit by Englishmen. administratif has been the subject of much attack. More than one publicist of high reputation has
the
seventeenth
century
advocated
its abolition, or
has wished to transfer to
the ordinary or civil

bunals, but
Courts (trihunaux judiciaires)

tri-
the authority exercised by the administrative the

assaults
upon
di-oit
administratif
have been repulsed, and the division between the

spheres of the judicial and the spheres of the administrative
again,
is
tribunals
has been maintained.

difficulty
Nor,
this
its
all
there
much
in seeing
why
all
has
happened.
Droit administratif with

administrative
suffered
is
peculiarities,
their
and defects, have been
tribunals with
to
exist
because
to
it
the system as a whole
felt
by Frenchmen
concede that
is
be beneficial.
has
Its severest
critics
some great practical
merits,
and
suited
to
the spirit of French institutions.
MeanwhUe
the
;
droit
administratif has
the
developed
under
to
influence
rather of lawyers than of politicians

last half- century
itself
it
has during
and more
arbitrary
a great extent
divested
of
its
character,
less fixed
and
is
passing into a system of more or
law ad-
ministered by real tribunals
administrative tribunals
indeed
still
lack some of the qualities, such as com-
Government, which Englishand many Frenchmen also think ought to men

plete independence of the
belong to
tainly very
all
Courts,
but these tribunals are cer-
far indeed
from being mere departments
378
THE RULE OF LA W
To any person versed would therefore
Part n.
of the executive government.
in tlie judicial history of England, it
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 of France (even
if
we use the word
"
law " in
its
very strictest sense)
as Equity has for
4tii
Point.
more than two centuries become an acknowledged branch of the law of England. The annals of droit administratif during the
nineteenth century elucidate again a point in the
earlier
growth of
case-law.
history of English
law which excites some

a student, namely,
perplexity in the
mind of
the
mere existence and working of law Courts may create or extend a system of
rapidity with which the
law.
Any
reader of the History of English
Law
at
by Pollock and Maitland may well be surprised

became the general or common law of the land. have been the natural
of the vigorous exertion of judicial functions
the rapidity with which the law of the King's Court
This
result
legal revolution seems to
by
Court of great authority.
Nor can we
feel certain
at.
that the end attained was deliberately aimed
It
may, in the main, have been the almost undesigned effect of two causes the first is the disposition
:
always exhibited
decision
by capable judges
cases
to
refer
the
of
particular
to
general
principles,
is
and
to be guided
by precedent; the second
the
tendency of inferior tribunals to follow the lead given by any Court of great power and high dignity. Here, in short, we have one of the thousand illustrations
of the principle developed in M. Tarde's Lois de Vimitation, that the innate imitativeness of
DROIT ADMINISTRATIF
mankind explains the
of
spread,
first,
379
throughout one
Chapter
'_
country, and, lastly, throughout the civilised world,
any
institution or habit
on which success or any

It
other circumstance has conferred prestige.

still,
may
however, be
urged that
the
creation
is
under
judicial influence of a
system of law
an achieve-
ment which
requires for its performance a consider-
able length of time,
and that the influence of the

rapidity.
King's Court in England in moulding the whole law

of the country
is
worked with incredible
It
certainly true that from the
Norman Conquest
is
to
the accession of
of
Edward. I. (1066-1272)
a period
not much
over two centuries, and that by 1272

organisation of our judicial
II.
the foundations of English law were firmly laid

whilst if
we date the
system from the accession of Henry

through in not
this
(1154),
we
might say that a great legal revolution was carried
much more than
a century.
It is at
point that the
history of droit administratif
helps the student of comparative law.
One need
not, however, be greatly astonished at
rapidity in the development of legal principles

legal procedure at a period
and of
when the moral
influence
or the imaginative impressiveness of powerful tribunals
was much greater than during the later stages of human In any case it is certain and the fact is a progress. most instructive one that under the conditions of modern civilisation a whole body of legal rules and maxims, and a whole system of quasi -judicial procedure, have in France grown up within not much " more than a century. The expression " grown up the development of droit is here deliberately used administratif between 1800 and 1908 resembles a
38o
THE RULE OF LA W
It
is
Partn.
natural process.
as
true
of this
branch of
it
French law as of the English constitution that " has not been made but has grown."
II.
Unlike-
An
intelligent
student
soon
finds
that
droit
isfpoint.
administratif contains rules as to the status, the

pi'ivileges,
mitL^tif
not tote
identified
and the duties of government

thinks
officials.
jje
therefore
witiiany
of England
laws,
rfegulations,
he can identify or customs which

i
it
with
i-i
i
the
in
England
determine the position of the servants of the Crown,

or (leaving the
Civil
Service.
army out
Such
it
is
of consideration) of the
"official
only to a limited extent, in

in
law" exists, though England no less than

identify
France, and
of course possible to
and compare
the
official
this official
law of the one country with
law of the other.

part
of, is
But further
investiga-
tion shows that official law thus understood,

it
though
may form
it,
a very different thing from
droit administratif.
The law, by whatever name
which regulates the privileges or disthe law of a class, just as military law is the law of a class, namely, the army. But droit administratif is not the law of
abilities of civil servants is
we term
class,
which,
but a very different thing under given circumstances,
body of law
affect
may
the
rights of
any French
is
citizen, as for
example, where
brought by A against in the ordinary Courts {trihunaux judiciaires), and the rights of the parties are found to depend on an administrative act
an action
(acts administratif), which
must be interpreted by an administrative tribunal {tribunal administratif). In truth, droit administratif is not the law of the
is
Civil Service, but
that part of French public law
which
affects
every Frenchman in relation to the acts
38 J
of the public administration as the representative of Chapter
the State.
The
relation indeed of droit administratif
^^^'
to the ordinary law of France
may
be best compared
not with the relation of the law governing a particular class

{e.g.
military law) to the general law of
England, but with the relation of Equity to the
common law
slight
of England. The point of likeness, though in other respects it be, is that droit administratif in France and Equity in England each constitute a body of law which differs from the ordinary law of the land, and under certain circumstances modifies the ordinary civil rights of every
citizen.
When
our student finds that droit administratif
cannot be identified with the law of the Civil Service, he naturally enough imagines that it may be treated as the sum of all the laws which confer special powers
and impose special duties upon the administration, or, in other words, which regulate the functions of Such laws, though they must the Government, exist in every country, have till recently been few in England, simply because in England the sphere of
the State's activity has,
till
within the last
fifty
or
sixty years, been extremely limited.
But even in
England laws imposing special functions upon government officials have always existed, and the number
thereof has of late vastly increased
;
to take one
example among a score, th 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 and workshops, given
Government and its imposed upon them wide

to the
officials
wide rights, and

If,
duties.
then, droit
382
THE RULE OF LAW

sum
of
P^^^^
administratif meant nothing more than the

all
the laws which determine the functions of civil
might be identified in its general character with the governmental law of England. The idea that such an identification is possible is encouraged by the wide definitions of droit administratif to be gathered from French works of authority,^ and by the vagueness with which English writers occasionally use the term " administrative law." But here, again, the attempted identification breaks down. Droit administratif, as it exists in France, is not the sum of the powers possessed or of the functions discharged by the administration it is rather the sum of the principles which govern the relation between French citizens, as individuals, and
servants, droit administratif
;
the administration as the representative of the State.
Here we touch upon the fundamental difference between English and French ideas. In England the powers of the Crown and its servants may from time
to time be increased as they
may
also
are,
be diminished.
But these powers, whatever they

principles
must be exer-
cised in accordance with the ordinary
common law which govern the relation of one English-
man
is
to another.
A
;
factory inspector, for example,
possessed of peculiar powers conferred upon
him by
Act of Parliament
but
if in
virtue of the orders of
his superior officials he exceeds the authority given
him by
becomes at once responsible for the wrong done, and cannot plead in his defence strict
law, he
official orders,
obedience to
and, further, for the tort
1 See Aucoc, Droit Administratif, i. s. 6 ; Hauriou, Precis de Droit Administratif, 3rd ed., p. 242, and 6th ed., pp. 391, 392 Laferriere ; i. pp. 1-8.
'
DROIT ADMINISTRATIF
383
he has committed he becomes amenable to the ordinary

Courts.
Chapter
'_
In France, on the other hand, whilst the
powers placed in the hands of the administration might be diminished, it is always assumed that the
relation of individual citizens to the State is regu-
lated
by
principles different from those which govern
the relation of one French citizen to another.
Droit
administratif, in short, rests upon ideas absolutely

foreign to English law
explained,^
is
:
the one, as I have already
that the relation of individuals to the
is governed by principles essentially different from those rules of private law which govern the rights of private persons towards their neighbours
State
the other
is
that questions as to the application of This essential difference renders
these principles do not. lie within the jurisdiction of
the ordinary Courts.
the identification of droit
administratif with any
branch of English law an impossibility.

quiries
Hence
in-
which rightly occupy French

is
jurists, such, for
example, as what
the proper definition of the con-
what is the precise difference between actes de gestion and actes de. puissance puhlique, and generally, what are the boundaries between the jurisdiction of the ordinary Courts (trihunaux judiciaires) and the jurisdiction of the
tentieux administratif;
administrative Courts {trihunaux administratifs) have
under English law no meaning. Has droit administratif been of recent years introduced in any sense into the law of England ? This is an inquiry which has been raised by writers of eminence,^ and which has caused some
1
2nd
Point.
minUratif
^^\.
i"*^^"^''^^
England.
2
See p. 332, See Laferriere,
ante.
i.
pp. 97-106.
To
cite
such enactments as the
; ;
384
THE RULE OF LAW
Part
II.
perplexity.
We may
give thereto
a decided
and
negative reply.
The
povsrers of
the English Government have, durso,
ing the last sixty years or

the State has undertaken
been largely increased

functions, such,
many new
for example, as the regulation of labour
under the
Factory Acts, and the supervision of public education under the Education Acts.
Nor
is
the import-
ance of this extension of the activity of the State
by the consideration that its powers are in many cases exercised by local bodies, such, for example, as County Councils. But though the powers
lessened
conferred on persons or bodies

directly represent the State
who
directly or in-
have been greatly increased in many directions, there has been no intentional introduction into the law of England of the essential
principles of droit administratif.
Any
official
who
exceeds the authority given

the
him by the law
incurs
responsibility for his wrongful act amenable to the authority of the ordinary Courts, and the ordinary Courts have themselves
common law
he
is
Public Authorities Protection Act 1893, which by the way does little more than generalise provisions, to be found in a lot of Acts extending from 1601 to 1900, as an example of the existence of administrative law in England, seems to me little else than playing with words. The Act assumes that every person may legally do the act which by law he is ordered to do. It also gives a person who acts in purmance of his legal duty, e.g. under an Act of Parliament, special pri^leges as to the time within which an action must be brought against him for any wrong committed by him in the course of carrying out his duty, but it does not to the least extent provide that an order from a superior official shall protect, e.g. a policeman, for any wrong done by him.
There are, indeed, one or two instances in which no legal remedy can be obtained except against the actual wrong-doer for damage inflicted by the conduct of a servant of the Crown. These instances are practically unimportant. See Appendix, Note XII., "Proceedings
against the Crown."
DROIT ADMINISTRATIF
jurisdiction to determine
legal power,
385
what is the extent of his and whether the orders under which he Hence the Courts has acted were legal and valid. 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 the
support of
a
Chapter
'_
kind of
education
superior to
the
elementary teaching generally provided by School
Boards
the
High Court
of Justice has decided that
such right does not

officials,
exist.
year or two ago some
acting under the distinct orders of the Lords
of the
Admiralty,
to the
occupied some land alleged to
belong
Crown
disputed, a court of
officials as
Crown being law gave judgment against the

;
the
title
of the
wrong-doers.
In each of these cases nice

raised,
and disputable points of law were
but no
English lawyer, whatever his opinion of the judgments given by the Court, has ever doubted that
the
High Court had

the rights
of
jurisdiction to determine
were
the
School
what Board or of the
Crown. Droit administratif, therefore, has obtained no foothold in England, but, as has been pointed out by
some foreign critics, recent legislation has occasionally, and for particular purposes, given to officials something like judicial authority.
instances,
It is possible in such
which are
rare, to see a slight

'
approxima-
tion to droit administratif, but the innovations, such as they are, have been suggested merely by considerations of practical convenience, and do not
betray the least intention on the part of English
statesmen
to
modify
the
essential
principles
of
2 c
386
THE RULE OF LA W
There exists in England no true droit
Part
II.
English law.
administratif.
An
English lawyer, however,
who has
ascertained
that no branch of English law corresponds with the

administrative law of foreign countries
his
must be on
at
all,
guard against
falling into
the error that the droit

is is
administratif oi Tonodem France

in the sense in
not
"law"
which that term
used in England,
but
is
a mere
name
for
maxims which guide the

if
executive in the exercise

discretionary power.
will, I
its
not of arbitrary yet of

this notion is erroneous
That
hope, be
now
is
clear to all
existence there
my readers. But for some excuse and even a certain

in
fact
exercise,
amount of justification. The French Government does

especially as regards foreigners, a
wide discretionary
not under the control of any For an act of State the Executive or its servants cannot be made amenable to the jurisdiction of any tribunal, whether judicial or administrative. Writers of high authority have
is
authority which
Court whatever.
differed^ indeed profoundly as
to the definition of
an act of State [acte de gouvernement)} Where on a question of French law French jurists disagree, an English lawyer can form no opinion; he may be allowed, however, to conjecture that at times of disturbance a French Government can exercise discretionary powers without the dread of interference on
the part of the ordinary Courts, and that administrative tribunals,
1 2
when they can
intervene, are likely to
See
p.
342,
ante.
ii.
Compare
Laferrifere,
bk. iv. ch.
ii.
p.
32,
and Hauriou, pp.
282-287, with Jacquelm, pp. 438-447.
DROIT ADMINISTRATIF
387
favour that interpretation of the term act of State Chapter
which supports
the
authority
of
the
Executive,
^'^'
However
this
may
be, the possession

is
Executive of large prerogatives
apt, in the
by the French mind of
an Englishman, to be confused with the character of

the administrative law enforced by Courts composed,
in part at
any
rate, of officials.
The
restrictions, again, placed
by French law on
the jurisdiction of the

judiciaires)
fering
ordinary Courts i^r'ihunaux

are prevented from inter-
whereby they
with the action of
the Executive
and
its
servants,
seem to an Englishman accustomed to a system under which the Courts of law determine the
limits of their
own
jurisdiction, to be
all
much
the same
thing as the relegating of

authority of the State
of the Executive.
is
matters in which the

erroneous, but
concerned to the discretion

is
This notion
it
has been fostered
by a circumstance which may be

The nature and the very
first
termed accidental.
exist-
ence of droit administratif has been
revealed to
many
Englishmen, as certainly to the present writer,
through the writings of Alexis de Tocqueville, whose works have exerted, in the England of the nineteenth century, an influence equal to the authority exerted by the works of Montesquieu in the England of Now Tocqueville by his the eighteenth century. own admission knew little or nothing of the actual
working of droit administratif
in his
own
day.^
He
no doubt in his later years increased his knowledge, but to the end of his life he looked upon droit administratif, not as a practising lawyer but as the historian of the ancien regime, and even as an
1
Tocqueville,
vii.,
(Euvres CompUtes, p. 66.
388
THE RULE OF LA W
Part n,
historian he studied the subject from a very peculiar
point of view, for the aim of L'Ancien
Regime
that
et la
Revolution
is
to
establish
the
doctrine
the
modern France are in many respects in spirit the same as the institutions of the ancient monarchy and Tocqueville, moved by the desire to maintain 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, was inclined to exaggerate the similarity between
institutions of
;
the France of the Eevolution, the Empire, or the Republic, and the France of the ancien regime.
Nowhere
is this tendency more obvious than in his treatment of droit administratif. He demonstrates
that the ideas on which droit administratif
is
based
had been accepted by French lawyers and statesmen long before 1789 he notes the arbitrariness of droit administratif under the monarchy; he not only insists upon but deplores the connection under the ancien regime between the action of the Executive and the administration of justice, and he
;
certainly suggests that the
droit
administratif of
the nineteenth century was all but as closely connected with the exercise of arbitrary power as was the droit administratif of the seventeenth or the
eighteenth century.
He
did not recognise the change in the character
of droit administratif
place in his
bility
was quietly taking own day. He could not by any possianticipate the reforms which have occurred
which
during the lapse of well-nigh half a century since his death. What wonder that English lawyers who first gained their knowledge of French institutions from
DROIT ADMINISTRATIF
Tocqueville should
judicialisation
fa;il
389
to take full account of that chapter
(Juridictionncdisation)
is
of
adminis-
trative
law which
one of the most surprising

legal
and noteworthy phenomena in the

France.
It
is
history of
not uninstructive to compare the merits
in. Merits
demerits.
and
rule
defects,
on
and,
the
one
hand,
of
our
English
of
law,
on the other, of French droit

Rule of
administratif.
Our
deniable
rigid
rule
of law
has
immense and unfreedom

is
merits.
merits.
Individual
thereby
protected in England against by the government than in any other European country the Habeas Corpus Acts ^ pro-
more
thoroughly
oppression
tect the liberty
no
less
of foreigners than of British

is
subjects;
martial law^ itself
reduced within the
narrowest limits, and subjected to the supervision
an extension of judicial power which nought the dogma of the separation of powers, happily combined with judicial independence, has begotten reverence for the bench -of
of the Courts
sets
;
at
judges.
They, rather than the government, repre-
sent the august dignity of the State, or, in accordance
with the terminology of English law, of the Crown.

Trial
by jury
is
open to much criticism
a dis-
tinguished French thinker
may
be right in holding
of not
that the habit of submitting difficult problems of

fact to the decision of twelve
men
more than
average education and intelligence will in the near

future be considered an absurdity as patent as ordeal
by
is
battle.
Its success in
England
is
wholly due
to,
and
the most extraordinary sign

1
of,
popular confidence
^
See
p.
212,
ante.
See
p.
280, ante.
390
THE RULE OF LA W
Part
II.
in the judicial bench.
judge
is
the colleague and
the readily accepted guide of the jurors.

of
Commons
of
shows the feeling of the electors,

petitions.
The House and

occasions
inquiries
has handed over to the High Court of Justice the

trial
election
When
rare
arise, as at Sheffield in
1866, which
demand
of
an exceptional character which can hardly be
by the regular procedure of the Courts, it is to selected members of the bench that the nation turns for aid. In the bitter disputes which occur in the conflicts between capital and labour, employers and workmen alike will often submit their differences
effected
to the arbitration of
men who have been
judges of the
High
nise
Court.
is
Reverence, in short, for the supremacy of

its
the law
it
seen in
very best aspect when

our judges.
we
recog-
as being in
England at once the cause and the
effect of reverence for

Defects.
The
blessings, however, conferred
by the
rule of law are balanced
upon the nation by undeniable, though
less obvious, evils.
Courts cannot without consider-
able danger be turned into instruments of government.

It is
not the end for which they are created
it is
ill suited at any period any country where history has not produced veneration for the law and for the law Courts.^
purpose for which they are

or in
Respect for law, moreover, easily degenerates into legalism which from its very rigidity may work considerable injury to the nation. Thus the refusal to look upon an agent or servant of the State as standing,
In times of revolutionary passion trial by jury cannot secure The worst iniquities committed by Jeffreys at the Bloody Assize would have been impossible had he not found willing accomplices in the jurors and freeholders of the western
1
respect for justice.
counties.
DROIT ADMINISTRATIF
391
from a legal point of view, in a different position from the servant of any other employer, or as* placed under
obligations or entitled to immunities different from
Chapter
those imposed upon or granted to an ordinary citizen,
has certainly saved England from the development of

the arbitrary prerogatives of the Crown, but
also
it
has
in
more ways than one been injurious to the

law, for instance, has assuredly been slow to
public service.
The
officials
recognise the fact that violations of duty
by public
may have an
far greater
importance
and deserve a
punishment
than the same conduct on
the part of an agent of an ordinary employer.
Some
years ago a copyist in a public
office
betrayed to the
newspapers a diplomatic document of the highest

importance.
Imagination can hardly picture a more
flagrant breach of duty, but there then apparently
existed no available
If it could
means
for punishing the culprit.
have been proved that he had taten from the office the paper on which the communication of state was written, he might conceivably have been But a prisoner put on put on trial for larceny.^
which he was in fact morally innocent, because the gross moral offence of which he was really guilty was not a crime, might have counted on an acquittal. The Official Secrets Act, 1889,^ now, it is true, renders the particular offence, which could
trial
for a crime of
not be punished in 1878, a misdemeanour, but the Act, after the manner of English legislation, does not
establish the general principle that an official breach
See Annual Register, 1878, Ghronicle, p. 71. Repealed and superseded by the Ofacial Secrets Act, 1911, 1 & 2 Geo. 5, c. 28, described as " An Act to re-enact the Official Secrets See especially sec. 2,] Act, 1889, with Amendments."
1
[2
392
THE RULE OF LA W
is
Part
II.
of trust
a crime.
It is therefore
more than
possible
that derelictidns of duty on the part of public servants
which in some foreign countries would be severely

punished
may
still
in
England expose the wrong-doer
to no legal punishment.
Nor
is it
at all wholly a benefit to the public that

is
honajide obedience to the orders of superiors
not a
defence-available to a subordinate who, in the discharge
of his functions as a government officer, has invaded
the legal rights of the humblest individual, or that

officials are, like
everybody
else,
accountable for their

law,
is
conduct to an ordinary Court of

Court, be
jury.
it
noted, where the verdict
and to a given by a
In this point of view few things are more instructive
than an examination of the actions which have been brought against officers of the Board of Trade for
detaining ships about to proceed to sea.
Under the
Merchant Shipping Acts since 1876 the Board have been and are bound to detain any ship which from its unsafe and unseaworthy condition cannot, proceed to
sea without serious danger to
human
life.^
Most
persons would suppose that the officials of the Board, as long as they, hona fide, and without malice or
corrupt motive, endeavoured to carry out the provisions of the statute, would be safe from an action at the hands of a shipowner. This, however, is not
so.
The Board and
its officers
been sued with success.^
accused of either malice or fact that the Board act in an administrative capacity
1
have more than once They have never been negligence, but the mere
Merchant Shipping Act, 1894 (57 & 58 Vict. c. 60), s. 459. ^ See Thomson v. Farrer, 9 Q. B. D. (C. A.), 372.
DROIT ADMINISTRATIF
is
393
not a protection to the Board, nor

servants.
is
mere obedience
Chapter
to the orders of the
Board an answer to an action
^^'
against
its
Any
the exact terms of the Acts
the omission of the most unmeaning formality may make every person, high and low, concerned in the detention of the ship, a The question, on the answer to which wrong-doer.
deviation, moreover, from
the decision in each instance at bottom depends,
is
whether there was reasonable cause for detaining the vessel, and this inquiry is determined by jurymen who
sympathise more keenly with the losses of a shipowner, whose ship
may have
been unjustly detained,
than with the zeal of an inspector anxious to perform

his
duty and to prevent loss of life. The result (it is said) been to render the provisions of the Merchant Shipping Acts, with regard to the detention of unseaworthy ships, nugatory. Juries are
has
often biassed against the Government.
technical
question
is
referred for decision, from persons

subject,
who
know something about the to persons who are both

the public interest,
is
and
are impartial,
ignorant and prejudiced.
The government, moreover, which has no concern but

placed in the false position of a
own advantage. These things ought to be noticed, for they explain, if they do not justify, the tenacity with which statesmen, as partial as Tocqueville to English ideas of government, have
litigant fighting for his
clung to the conviction that administrative questions
ought to be referred to administrative Courts. The merits of administrative law as represented by
Droit
modern French droit administratif, that is, when tratif ^" seen at its very best, escape the attention, and do not
^"
receive the due appreciation of English constitution-
354
THE RULE OF LA W
Part
II.
alists.'
No
jurist can fail to
admire the
skill
with
which the Council of State, the authority and the jurisdiction whereof as an administrative Court year
worked out new would appear to be remedies for various abuses which hardly touched by the ordinary law of the land. The Council, for instance, has created and extended the power of almost any individual to attack, and cause
by year
receives
extension, has
any act done by any administrative authority (using the term in a very wide sense) which is in excess of the legal power given' to the person or body from whom the act emanates. > Thus an order issued by a prefect or a bye-law made by a corporation which is in excess of the legal power of the prefect or of the corporate body may, on the application of a plaintiflf who has any interest in the matter whatever,
to be annulled,
be absolutely set aside or annulled for the benefit not only of the plaintiff", but of all the world, and this
even though he has not himself suffered, from the act The complained of, any pecuniary loss or damage.
ingenious distinction
which has been more and more carefully elaborated by the Council of State,
^
again,
One, and not the least of them,
is
that access to the Council of
State as an administrative Court is both easy

2
and inexpensive. French law draws an important distinction between an injury
caused to a private individual by act of the administration or government which is in excess of its powers (faute de service), though duly carried out, or at any rate, carried out without any gross fault on the part of a subordinate functionary, e.g. a policeman acting in pursuance of official orders, and injury caused to a private individual by the negligent or malicious manner (faute personnelle) in which such subordinate functionary carries out official orders which may be perfectlj' lawful. In the first case the policeman incurs no liability at all, and the party aggrieved must proceed in some form or other against the State in the administrative Courts (frihunaux administratifs). In the second case the policeman is personally liable, and the party aggrieved must proceed against him in the ordinary Courts {tribunaux judiciaires)
DROIT ADMimsTRATiF
39S
between damage resulting from the personal fault

{faute personnelle),
of
e.g. spite,
Chapter
violence, or negligence
an
official, e.g.
a prefect or a mayor, in the carrying
out of
official orders,
and the damage
resulting, with-
out any fault on the part of the

carrying out of
official,
from the
official orders, illegal
or wrongful in
themselves {faute de service), has of recent years afforded a valuable remedy to persons who have
from the misuse of official power, and has also, from one point of view, extended or secured the
suffered
responsibility of officials
in
is
a responsibility enforceable wrongful conduct, which the ordinary Courts

for
in strictness attributable to their personal action. in no respect does this
And
judge-made law of the
Council appear to more advantage than in cases,
mostly
conceive of comparatively recent date, in
which,(individuals have
obtained compensation for
governmental action, which might possibly be considered of technical legality, but which involves in
reality the illegitimate use of
power conferred upon the government or some governmental body for one object, but in truth used for some end different from that contemplated by the law) One example explains
my
1872 had, as it still has, To the government was a monopoly of matches. given by law the power of acquiring existing match factories under some form of compulsory purchase.
meaning.
in
Hauriou, pp. 170, 171 ; Laferriere, cannot proceed against the State.
(see
i.
The State
p.
652), and apparently
French authorities differ as to what is the precise criterion by which to distinguish a faute personnelle from a faute de service, and show a tendency to hold that there is no faute personnelle on the part, attempted to carry out his e.g. of a policeman, when he has hona fide [Duguit, Traite de See Duguit, L'Mat, pp. 638-640 official duty.
;
Droit Oonstitutionnel,
i.
pp. 553-559.]
396
THE RULE OF LA W
Part n.
factories there
some ingenious minister that the fewer were left open for sale, the less would be the purchase-money which the State would need to
It occurred to
pay.
prefect, the direct servant
of the govern-
ment, had power to close factories on sanitary grounds.
Under the
orders of the minister he closed a factory
belonging to A, nominally on sanitary grounds, but in
match factories which the State, in the maintenance of its monopoly, would require to purchase. There was no personal fault on the part of the prefect. No action could with success be maintained against him in the judicial
reality to lessen the
number
of
Courts,^
nor,
we may
add,
in
the
administrative
A, however, attacked the act itself before the Council of State, and got the order of the prefect annulled,^ and ultimately obtained, through the Council of State, damages from the State of over
Courts.^
2000
for the illegal closing of the factory,
in addition to the purchase-money received
and this from the
State for taking possession of the factory.'

Defects.
No Englishman
trative Courts,
can wonder that the jurisdiction
of the Council of State, as the greatest of adminis-
grows apace the extension of its power removes, as did at one time the growth of Equity in England, real grievances, and meets the need of the ordinary citizen. Yet to an Englishman
;
imbued with an unshakeable faith in the importance of maintaining the supremacy of the ordinary law of the land enforced by the ordinary Law Courts, the droit administratif of modern France is open to some grave criticism.
1
Dalloz, 1875,
i.
495.
2
iii.
DaUoz, 1878,
iii.
13.
Dalloz, 1880,
41.
DROIT ADMINISTRATIF
397
The high and increasing authority of the Council must detract, he surmises, from the dignity and respect of the judicial Courts. " The more there
of State
is is of the less" is a Spanish proverb of profound wisdom and wide appli-
Chapter
of the more, the less there
cation.
There was a time in the history of England

judicial
when the
power of the Chancellor, bound up as it was with the prerogative of the Crown, might have overshadowed the Courts of Law, which have protected the hereditary liberties of England and the
personal freedom of Englishmen.
to It is difficult not
suppose
that
the
extension
of
its
the
Council's
jurisdiction, beneficial as
may
be
direct effects,
may
depress the authority of the judicial tribunals.

writer,
More than one

that
if
ideas of educated
who ought to represent the Frenchmen, makes the suggestion

of State lack that
is
the
members of the Council

to
absolute security of tenure which
universally ac-
knowledged
they
be the best guarantee of judicial

dismissal,
independence, yet irremovable judges, who, though
may
defy
are
tormented
by the
constant longing for
advancement,^ are not more
independent of the Government at whose hands they expect promotion than are members of the Council
of State who,
if legally
removable, are by force of

position.
custom hardly ever removed from their high

Trial
by
jury,
we
are told,
is
a joke, and, as far as
the interests of the public are concerned, a very bad Prosecutors and criminals alike prefer the joke.^
unknown, to the Courts of Assize, where a judge presides and a jury The prosecutor knows that in the gives a verdict.
Correctional Courts, where a jury
is
1
See Chardon, pp. 326-328.
jjnU
398
THE RULE OF LAW

Court proved guilt will lead to con-
Part
II.
Correctional
demnation.
inferior
The criminal knows that though
in the
Court he
may
or
lose the
chance of acquittal
by good-natured
ment.
sentimental jurymen, he also
avoids the possibility of undergoing severe punish-
Two facts are certain. In 1881 the judges were deprived of the right of charging the jury. Year by year the number of causes tried in the Assize
Courts decreases.
the judicial
Add
to this that the procedure of

civil
Courts,
whether
or
criminal,
is
The procedure in the great administrative Court is modelled on modern ideas,' is simple, cheap, and effective. The Court of Cassation still commands respect. The other judicial Courts, one can hardly doubt, have sunk in popular estimation. Their members neither exercise the power
nor enjoy the moral authority of the judges of the
antiquated and cumbrous.
High
Court.
It is difficult, further, for

that, at
an Englishman to believe
any rate where
administrative Courts
politics are concerned, the can from their very nature
give that amount of protection to individual freedom which is secured to every English citizen, and
indeed
tinction
to
every
foreigner
be, it
is
residing
certain
in
England.
dis-
However
this
may
that the
between ordinary law and administrative law (taken together with the doctrine of the separation of powers, at any rate as hitherto interpreted by French
jurists), implies
the general belief that the agents of the government need, when acting in hona fide discharge of their official duties, protection from the con-
trol of the
ordinary law Courts. That this is so is proved by more than one fact. The desire to protect
DROIT ADMINISTRATIS
399
servants of the State has dictated the enactment of the
Chapter
Code P4nal, Article 114.
YTT
This desire kept alive for
seventy years Article 75 of the Constitution of the
Year VIII. It influenced even the men by whom that Article was repealed, for the repeal itself is expressed in words which imply the intention of providing some
special protection for the agents of the
It influenced the decisions fied the effect
government. which more or less nulliof the law of 19th December 1870,
first
which was at
to suffer
supposed to make the judicial

civil
Courts the sole judges of the liability of
servants
punishment or make compensation for acts of dubious legality done in the performance of their Oddly enough, the success with which ofl&cial duties. Courts have extended the right of administrative private persons to obtain damages from the State itself for illegal or injurious acts done by its servants, seems, as an English critic must think, to supply a
new form of ment when
protection for the agents of the govern-
acting in
little
obedience to orders.
There
inducement to take proceedings against a subordinate, whose guilt consists merely in

surely can be
carrying out a wrongful or illegal order, given
him
by
his oflBcial superior, if the person
damaged can
compensation from the government, or, in other words, from the State itself.^ But turn the
obtain
1 Consider, too, the extended protection offered to every servant of the State by the doctrine, suggested by at least one good authority, that he cannot be held personally responsible for any wrong (Jauie) committed whilst he is acting in the spirit of his official duty. " Si, " en effet, le fonetionnaire a agi dans I'esprit de sa fondion, c'est-a-dire en " poursuivant effectivement le hut qu'avait I' Mat en etablissant cette
"fonction, il ne pent Stre responsable ni vis-d-vis de I'Etat, ni vis-d-vis des Duguit, L'Etat, " particuliers, alors mime qu'il ait comrnis unefaute."
p.
638.
400
THE RULE OF LA W
will,
Part
II.
matter which way you

of
oflficials
the personal immunities
who
take part, though without other fault
of their own, in any breach of the law, though consistent
even with the modern droit administratif

are
of France,
inconsistent
with the ideas which

This essential
underlie the
common law
of England.
opposition has been admirably expressed

jurist of eminence.
by
a French
" Under every legal system," writes Hauriou, " the right to proceed against a servant of the govern" ment for wrongs done to individuals in his official
"capacity exists in some form or other; the right " corresponds to the instinctive impulse felt by every " victim of a legal wrong to seek compensation from
"the immediately visible wrong-doer. But on this " point the laws of different countries obey utterly " different tendencies. There are countries [such, for
" example, as England or the United States] where " every effort is made to shelter the liability of the "State behind the personal responsibility of its
"servant.
There are other countries where every
"
effort
is
made
to cover the responsibility of the
"servant of the State behind the liability of the " State itself, to protect him against, and to save " him from, the painful consequences of faults com-
"mitted in the service of the 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
fonctionnaries).
1
-^
of
officials"
(garantie
des
" Ge principe
" fondionnaire " instinctif qui
exists partout,
est,
toutes les legislations, la powrsuite du d'autant qu'elle repond d un mouvement pour la victime d'un mefait, de s'en prendre d I'auteur
est
admis par
DROIT ADMINISTRATIF
/]oi
" iTwmediatement visible. Mais les legislations ohSssent d deux tendances " Men oppos&s ; il en est qui iefforqent d'abriter I'Etat derrihe le fonetion" naire, il en est d'autres, au contraire, qui s'efforgent de faire couvrir le
" fonctionnaire par I'Etat, de le proteger, de le rassurer contre les con" sequences fdcheuses de ses erreurs. Les legislations des pays centralises " et notamment celle de la France sont de ce dernier type ; il y a ce que "Von appelle une garantie des fonctionnaires." Hauriou, Pricis de Droit AdmAnistratif, Troisi&me ^dit., pp. 170, 171.
Chapter
XJl.
2 D
CHAPTER
XIII
EELATION BETWEEN PARLIAMENTARY SOVEREIGNTY
AND THE RULE OP LAW

PartiL
'
The
sovereignty of Parliament and the supremacy of
the law of the land
the
two principles which per-
vade the whole of the English constitution may appear to stand in opposition to each other, or to be
at best only counterbalancing forces.
But
this ap-
pearance
is
delusive
the sovereignty of Parliament,
as contrasted with other forms of sovereign power,
favours the supremacy of the law, whilst the predomi-
nance of rigid legality throughout our institutions

evokes the exercise, and thus increases the authority,
of Parliamentary sovereignty.
pariia^
The Sovereignty of Parliament favours the suprem^^

>^
mentary
sovereignty favours rule of law.
^f ^hc law of the land.
That
this should be so arises in the
..
,...
characteristics or peculiarities
i-it which distinguish

is
main from two

the
English Parliament from other sovereign powers.
The mands
first
of these characteristics
that the comit
of Parliament
(consisting as
does of the
Crown, the House of Lords, and the House of Commons) can be uttered only through the combined
action of its three constituent parts,
fore always take the shape of formal
402
and must, thereand deliberate
RELATION TO PARLIAMENTARY SOVEREIGNTY

legislation.
403
The
will of
Parliament ^ can be expressed

has most
Chapter
only through an Act of Parliament.

This
is
L
;
no mere matter of form

effects.
it
important practical
It
prevents those inroads
upon the law of the land which a despotic monarch, such as Louis XIV., Napoleon I., or Napoleon III., might effect by ordinances or decrees, or which the different constituent assemblies of France, and above all the famous Convention, carried out by sudden The principle that Parliament speaks resolutions. only through an Act of Parliament greatly increases
the authority of the judges.
A Bill
which has passed
into a statute immediately becomes subject to judicial
and the English Bench have always refused, in principle at least, to interpret an Act of Parliament otherwise than by reference to the words of the enactment. An English judge will take no notice of the resolutions of either House, of anything which may have passed in debate (a matter of which officially he has no cognisance), or even of the changes which a Bill may have undergone between the moment of its first introduction to Parliament and of its All this, which seems receiving the Eoyal assent. natural enough to an English lawyer, would greatly surprise many foreign legists, and no doubt often does
interpretation,
give a certain narrowness to the judicial construction

of statutes.
It contributes greatly,
however, both (as
^ strong, if not the strongest, argument in favour of the socalled " bi-cameral " system, is to be found in the consideration that
resolutions passed
the coexistence of two legislative chambers prevents the confusion of by either House with laws, and thus checks the
substitution of the arbitrary will of an assembly for the supremacy of "Whoever wishes to appreciate the force the ordinary law of the land.
argument should weigh well the history, not only of the French. Convention but also of the English Long Parliament.
of this
404
THE RULE OF LA W
Part
II.
have already pointed out) to the authority of the
judges and to the fixity of the law.'
The second
periods
of these
characteristics
is
that the
English Parliament as such has never,

of
revolution,
except
at
exercised
officials
direct
executive
executive
power or appointed the

government.
of the
No doubt
in
modem
times the House of
Commons
mem-
has in substance obtained the right to designate for
appointment the Prime Minister and the other

bers of the Cabinet.
But
;
this right
is
is,
historically
speaking, of recent acquisition, and
exercised in a
very roundabout manner
its
existence does not affect
the truth of the assertion that the Houses of Parlia-
ment do not
of the State
directly appoint or dismiss the servants

;
House
of
neither the House of Lords nor the Commons, nor both Houses combined, could
officer,
even now issue a direct order to a military

constable, or
a tax-collector;
in
the servants
of the
in
is
State
reality
are
still
" servants
name what they once were of the Crown " and, what
;
worth
ally,
careful
notice,
the
attitude
of
Parliament
towards government
and
is
still
was determined originregulated, by considerations and

officials
feelings belonging to a time

1?he
when the "servants of were dependent upon the King, that is, upon a power which naturally excited the jealousy
Crown
"
and vigilance of Parliament.

1 The principle that the sovereign legislature can express its commands only in the particular form of an Act of Parliament originates
of course in historical causes
it is
due
to the fact that
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 and " Commons in Parliament assembled."

Hence
support
several
results
all
405
indirectly
law.
tending to Chapter
Parliament,
is
tlie
supremacy of the
though sovereign, unlike a sovereign monarch who

not only a legislator but a ruler, that
to use the powers of the
is,
head of the
executive government, has never hitherto been able
government
as a
;
interfering with the regular course of law

is
means of and what

officials
even more important, Parliament has looked with

liabilities
disfavour and jealousy on all exemptions of
from the ordinary
of citizens or from the

;
jurisdiction of the ordinary Courts
Parliamentary
sovereignty has been fatal to the growth of " administrative law."
The
action, lastly, of Parliament
has tended as naturally to protect the independence

of the judges, as that of other sovereigns to protect
the conduct
of
officials.
It
is
worth notice that
Parliamentary care for judicial independence has,

in fact, stopped just at that point where on
grounds
it
might be expected to end.

;
a priori The judges
are not in strictness irremovable
they can be re-
moved from
on an address of the two Houses they have been made by Parliament independent of every power in the State except the Houses of
office
Parliament.
The idea may suggest
itself to a
reader that the
Tendency
rule of law
characteristics or peculiarities of the English Parlia-
ment on which
have just dwelt must now be
?ound"in
common
to
which exist National Assembly, for example, bears a consider

_
most of the representative assemblies The French in continental Europe.

to
remfsentative
assemblies.
able external resemblance
our
own
Parliament.
1 Contrast with this the way in which, even towards the end of the eighteenth century, French Kings interfered with the action of the Courts.
4o6
THk RULE OF LA W
however, by a
diff"erent spirit
;
Part
11.
It is influenced,
it
is
more ways than one, of the Bourbon Monarchy and the Napoleonic Empire. It is apparently, though on this point a foreigner must speak
the heir, in
with hesitation, inclined to interfere in the details of

administration.
It does
not look with special favour
on the independence or authority of the ordinary judges. It shows no disapprobation of the system of droit administratif which Frenchmen very likely with truth regard as an institution suited to their
country, and
it
certainly leaves in the hands of the
government wider executive and even legislative powers than the English Parliament has ever conceded
either to the
Crown
or to
its
servants.
of France
is
true under a different form of
What is true many other
continental states, such, for example, as Switzerland
The sovereignty of Parliament as developed in England supports the supremacy of the law. But this is certainly not true of all the countries
or Prussia.
which now enjoy representative or Parliamentary

government.
"^^^
feTOw"*''
Pariia-
supremacy of the law necessitates the exercise

rigidity of the law constantly
of Parliamentary sovereignty.
soyereiguty.
hampers (and sometimes with great injury to the public) the action of the executive, and from the hard-and-fast rules of
strict law, as interpreted by the judges, the government can escape only by obtaining from Parliament
The
the discretionary authority which
Crown by the law of
the land.
denied to the Note with care the

is
way
in
which the necessity for discretionary powers
brings about the recourse to exceptional legislation. Under the complex conditions of modern life no
407
government can in times of disorder, or of war, keep the peace at home, or perform its duties towards
foreign powers, without occasional use of arbitrary-
Chapter
^'"
During periods, for instance, of social disturbance you need not only to punish conspirators,
authority.
but also to arrest

of conspiracy
;
men who
are reasonably suspected
foreign revolutionists are
known
;
to be
spreading sedition throughout the land

aliens,
order can
hardly be maintained unless the executive can expel
"When two foreign nations are

civil contests
at war,
or
when
divide a friendly country into two
hostile camps, it is impossible for
England to perform
to the attempts
her duties as a neutral unless the Crown has legal

authority to put a
summary check
of English sympathisers to help one or other of the

belligerents.
Foreign nations, again,
feel
aggrieved
if
they are prevented from punishing theft and homicide,

if,
weakened because every scoundrel can ensure impunity for his crimes by an escape to England. But this result must inevitably ensue if the English executive has no authority to surrender French or German offenders The to the government of France or of Germany.
in short, their
whole criminal law
is
English
executive
needs
therefore
the
right
to
exercise discretionary, powers, but the Courts
must
prevent, and will prevent at any rate where personal

liberty is concerned, the exercise
of any
sort
of discretionary power.
cannot, except under statute,
by the government The Crown expel from England
any
alien
whatever, even though he were a murderer

Dovei*.
who, after slaughtering a whole family at Boulogne,
had on the very day crossed red-handed to

1
See, however, p. 220, note 2, anU.
4o8
THE RULE OF LA W
therefore
Part
II.
The executive
obtains, aid
must ask
for,
and always
from Parliament.
An
Alien Act enables
the Ministry in times of disturbance to expel any

foreigner from the country
;
a Foreign Enlistment Act
makes
it
possible for the Ministry to check intervention
in foreign contests or the supply of

belligerents.
arms to foreign
the govern-
Extradition Acts
empower
ment
at the
same time to prevent England from
becoming a city of refuge for foreign criminals, and to co-operate with foreign states in that general repression of crime in which the whole civilised world
has an interest.
!Nôr
have we yet exhausted the

There are times of
itself
instances in which the rigidity of the law necessitates
the intervention of Parliament.

the rules of law must be broken.
tumult or invasion when for the sake of legality

the government must then take
is
The course which clear. The Ministry

is
must break the law and

of Indemnity.
trust for protection to an Act

(as already
statute of this kind
pointed out
^)
the last and supreme exercise of ParliaIt legalises illegality

;
mentary sovereignty.
it affords
the practical solution of the problem which perplexed the statesmanship of the sixteenth and seventeenth
centuries, how to combine the maintenance of law and the authority of the Houses of Parliament with the free exercise of that kind of discretionary power or
prerogative which, under some shape or other, must at critical junctures be wielded by the executive government of every civilised country.
This solution may be thought by some critics a merely formal one, or at best only a substitution of the despotism of Parliament for the prerogative of the
1
See pp. 47, 48, 228-233,
ante.

Crown.
409
But
this idea
is
erroneous.
The
fact that
Chapter
L
the most arbitrary powers of the English executive
must always be exercised under Act of Parliament places the government, even when armed with the
widest authority, under the supervision, so to speak,
of the Courts.
Powers, however extraordinary, which
are conferred or sanctioned
by
statute, are never really
by the words of the Act itself, and, what is more, by the interpretation put upon the statute by the judges. Parliament is
unlimited, for they are confined
supreme
legislator,
but from the

as lawgiver,
moment Parliament
that will becomes
has uttered
its will
subject to the
interpretation put
upon
less
it
by the
judges of the land, and the judges, who are influenced
by the
feelings of magistrates
no
than by the
disposed to
prinitself
general spirit of the
common
law, are
construe statutory exceptions to

ciples in a
common law mode which would not commend

body of officials, or if the Houses were
to
either to
the
Parliament,
terpret their
called
Houses of upon to inideas
own enactments.
in
In foreign countries,
administrative
of a
and
especially
France,
notions
derived from the
traditions
despotic
monarchy
England
have
restricted the authority
and to a
In
certain extent influenced the ideas of the judges.

judicial notions
have modified the action and By influenced the ideas of the executive government. every path we come round to the same conclusion,
that Parliamentary sovereignty has favoured the rule
of law,
and that the supremacy of the law of the
land both calls forth the exertion of Parliamentary sovereignty, and leads to its being exercised in a
spirit of legality.
PAET
III
THE CONNECTION BETWEEN
THE LAW OF THE CONSTITUTION AND THE

CONVENTIONS OF THE CONSTITUTION
411
CHAPTEE XIV
NATURE OF CONVENTIONS OF CONSTITUTION
In an
tlie
earlier part of this work'' stress
was
laid
upon
chapter
essential distinction
.
between the "law of the

it
^^^Questions remaining to be
constitution," which, consisting (as

,
,
does) of rules
enforced or recognised by the Courts, makes up a body of " laws " in the proper sense of that term, and the " conventions of the constitution," which
consisting (as they do) of customs, practices, maxims,
or precepts which are not enforced or recognised
\~
by
the Courts,
make up
stitutional or
body not of laws, but of conpolitical ethics and it was further urged
a
;
that the law, not the morality of the constitution,
forms the proper subject of legal study. ^
In ac-
cordance with this view, the reader's attention has
been hitherto exclusively directed to the meaning and applications of two principles which pervade the law of the constitution, namely, the Sovereignty of Parliament ^ and the Eule of Law.*
But
of
a lawyer cannot master even the legal side
the English constitution without paying some
attention to the nature of those constitutional under-
standings which necessarily engross the attention of

1
See pp. 22-30, ante. S6e Part I.

413
^ *
See pp. 29-31, ante. See Part II.

414
LAW AND
how,
Part
m.
historians or of statesmen.
He
ought to ascertain, at
any
is
rate,
if
at
all,
the law of the constitution

this task will soon
connected with the conventions of the constitu;
tion
and a lawyer who undertakes

is
find that in so doing he
only following one stage
on which we have already entered, and is on the road to discover the last and most striking instance of that supremacy of the law which gives to the English polity the whole of its peculiar colour. My aim therefore throughout the remainder of
farther the path
this
book
is
to define, or ascertain, the relation or
connection between the legal and the conventional
elements in the constitution, and to point out the

in
way
which a just appreciation of this connection throws light upon several subordinate questions or problems
of constitutional law.
This end will be attained

to each of
if
an answer
is
found'
two questions
What
is
the nature of the
conventions or understandings of the constitution?

is the force or (in the language of jurisprudence) " sanction " by which is enforced obedience to the the
What
conventions of the constitution
These answers will
themselves throw light on the subordinate matters to
which
Nature of
tionai
have made reference.
"undings.
The salicut characteristics, the outward aspects so to which make up the constitutional morality of modern England, can hardly be better described than in the words of Mr. Freeman
speak, of the understandings
:
whole system of political " morality, a whole code of precepts for the guidance of " public men, which will not be found in any page
a " of either the statute or the
"We now
have
common
less
"are in practice held hardly
which sacred than any
law, but
i,!';,
"principle embodied in the Great Charter or in the Chapter " Petition of Eight. '_ In short, by the side of our " written Law, there has grown up an unwritten or " conventional Constitution. When an Englishman
" speaks of the conduct of a public
man
being consti^
"tutional
or
unconstitutional, he
"wholly
diflferent
means something from what he means by conduct
" being legal or illegal. famous vote of the House " of Commons, passed on the motion of a great states" man, once declared that the then Ministers of the " " of
Crown did not possess the confidence of the House Commons, and that their continuance in office
" was therefore at variance with the spirit of the con" stitution. The truth of such a position, accord" ing to the traditional principles on which public men " have acted for some generations, cannot be disputed " but it would be in vain to seek for any trace of such
any page of our written Law. The " proposer of that motion did not mean to charge the
" doctrines in
" existing Ministry with
any
illegal act,
with any act
" which could be made the subject either of a prose" cution in a lower court or of impeachment in the
" High Court of Parliament
itself.
He
did not
mean
"that they. Ministers of the Crown, " during the pleasure of the Crown, committed " any breach of the Law of which the Law could
appointed
" take cognisance, by retaining possession of their " offices till such time as the Crown should think " good to dismiss them from those offices. What he
meant was that the general course of their policy was one which to a majority of the House of Com" mons did not seem to be wise or beneficial to the "nation, and that therefore, according to a conven"
"
4i6
LA W AND CONVENTIONS OF CONSTITUTION
Part
III.
"tional code as well understood and as effectual as
"offices of
"the written Law itself, they were bound to resign which the House of Commons no longer
^
" held them to be worthy."
The one exception which can be taken to

picture of our conventional constitution
trast
is
this
the con-
drawn
in it
between the "written law" and

;
the " unwritten constitution "

as already pointed out,
is
the true opposition,
between laws properly so called, whether written or unwritten, and understandings, or practices, which, though commonly observed, are not laws in any true sense of that word at all. But this inaccuracy is hardly more than
verbal,
Mr. Freeman's words as a starting-point whence to inquire into the

nature or
and we
may
gladly accept
common
quality
of
the
maxims which
make up our body

E^'fampies
of constitutional morality.
tutionai standings,
The followiug are examples^ of the precepts to which Mr. Freeman refers, and belong to the code by which public life in England is (or is supposed to be) governed. "A Ministry which is outvoted in the House of Commons is in many cases bound
to retire from office."
"A
Cabinet,
when outvoted
appeal once to the country by means of a dissolution." " If an appeal to the electors goes against the Ministry they are
on
any
vital
question,
may
bound
are
to retire
from
to
office,
and have no right
to
dissolve Parliament a second time."
responsible
"The Cabinet Parliament as a body, for the
general conduct of affairs." "They are further responsible to an extent, not however very definitely
1
Freeman, Grovith of
2
the English Constitution (1st ed.), pp. 109, 110, See, for further examples, pp. 25, 26, ante.

fixed,
417
for the
number,
or
appointments made by any of their to speak in more accurate language,
Chapter
L
made by the Crown under the advice of any member " The party who for the time being of the Cabinet." command a majority in the House of Commons, have
have their leaders placed in ought (generally speaking) to be the Premier, or head of the Cabinet." These are precepts referring to the position and formation of the Cabinet. It is, how(in general) a right to
office."
"
The most
influential of these leaders
ever,
easy to
find
with other topics.
constitutional maxims dealing " Treaties can be made without
the necessity for any Act of Parliament;
but the
Crown, or in reality the Ministry representing the Crown, ought not to make any treaty which will
not
command
the approbation of Parliament."
"
The
of
foreign policy of the country, the proclamation
war, and the
making
in
of peace ought to be left in
the hands of the Crown, or in truth of the Crown's

servants.
But
foreign
as
in
domestic
affairs,
the wish of the two Houses of Parliament or (when
they
differ)
be followed."
of the House of Commons ought to " The action of any Ministry would
if it
be highly unconstitutional
proclamation of war,
or
should involve the
defiance of the wishes of the House."
the making of peace, in " If there is
a difference of opinion between the House of Lords
and the House of Commons, the House of Lords ought, at some point, not definitely fixed, to give way, and should the Peers not yield, and the House
of
Commons
it
continue to enjoy the confidence of the
country,
its
becomes the duty of the Crown, or of

2 E
responsible advisers, to create or to threaten to
4i8
Part
III.
enough new Peers to override the opposition of the House of Lords, and thus restore harmony^ bet ween the two branches of the legislature."
create
" Parliament ought to be

of business
at
least
summoned
e.g.
for the despatch
once in every year."
" If a
sudden emergency
of
arise,
through the outbreak
an
insurrection,
or
an invasion
by
foreign
power, the Ministry ought,

authority,
at
if they require additional have Parliament convened and obtain any powers which they may need for
once to
the protection of the country.
ought
to
take
the
every step,
law,
Meanwhile Ministers even at the peril of

necessary either for
breaking
which
is
Common
istioofcou-
and (if the law of the land is violated) must rely for protection on Parliament passing an Act of Indemnity." Thcse rulcs (which I have purposely expressed in
restoring order or for repelling attack,
understandmgs.
a lax and popular manner), and a lot more of the Same kind, make up the constitutional morality of ^^ ^^^^ They are all constantly acted upon, and, since they cannot be enforced by any Court of law, have no claim to be considered laws. They are
multifarious,
differing, as it might at first sight appear, from each other not only in importance but in general character and scope. They will be found
however, on
careful
examination,
to
possess
all,
one
at
common
any
rate
quality or property;
they are
or
most of them, rules for determining the mode in which the discretionary powers of the Crown (or of the Ministers as servants of the Crown) ought to be exercised; and this characteristic will be found on examination to be the trait common
1
See however Hearn, Government of England (2nd
ed.), p.
178,

not only to
to
all
419
the rules already enumerated, but chapter
by
far the greater part
(though not quite to the

This
its
^^'
whole) of the conventions of the constitution.

matter, however, requires for
proper understanding
some further explanation. The discretionary powers of the government mean every kind of action which can legally be taken by the Crown, or by its servants, without the necesapplying to Parliament for new statutory J d J authority. Thus no statute is required to enable
sity for
I
Constitu-
ventton'
ru]e?or^''
governing
exercise of
i-
i.
preroga-
the
Crown to dissolve make peace or war, to

a Minister from
ofl&ce
or to convoke Parliament, to create
new
Peers, to dismiss
or to appoint his successor.
The doing
of
all
these
things
lies
legally at
;
any
rate within the discretion of the
Crown
they belong
originate
in
therefore to the discretionary authority of the govern-
ment.
of
This authority
may no doubt
so
originate.
Parliamentary enactments, and, in a limited number

cases,
actually
does
Thus
the
Naturalization Act,
1870, gives to
Secretary of
State the right under certain circumstances to convert an alien into a naturalized British subject
;
and
the Extradition Act,
1870, enables a Secretary of
by the Act) to override the ordinary law of the land and hand over a With the foreigner to his own government for trial.
State (under conditions provided
exercise,
however, of such discretion as
is
conferred on
the Crown or its servants by Parliamentary enactments we need hardly concern ourselves. The mode
which such discretion is to be exercised is, or may be, more or less clearly defined by the Act itself, and is often so closely limited as in reality to become the subject of legal decision, and thus pass from the
in
420
Part
III.
domain of constitutional morality into that of law The discretionary authority ol properly so called. the Crown originates generally, not in Act of Parliament, but in the "prerogative" a term which has caused more perplexity to students than any other The "preexpression referring to the constitution. rogative" appears to be both historically and as a
matter of actual fact nothing else than the residue

of discretionary or arbitrary authority, which at any
given time
hands of the Crown. The King was originally in truth what he still is in name, " the sovereign," or, if not strictly the
is
legally left in the
"sovereign" in the sense in which jurists use that word, at any rate by far the most powerful part of the sovereign power. In 1791 the House of
compelled the government of the day, good deal against the wUl of Ministers, to put a on trial Mr. Eeeves, the learned author of the History of English, Law, for the expression of
opinions meant to exalt the prerogative of the Crown at the expense of the authority of the House of
Commons
Commons.
Among
other statements for the publicato the trunk,
tion of which he was indicted,
parison of the
Crown
was a lengthy comand the other
parts of the constitution to the branches
and leaves
the
of a great
tree.
This comparison was

it
made with
object of drawing from
the conclusion that the
Crown was the
source of all legal power, and that while to destroy the authority of the Crown was to cut down the noble oak under the cover of which
Englishmen
Jacobinism,
institutions
sought
the
refuge
of
from
the
storms
of
House
Commons and
leaves
other
were but branches and
which

might be lopped
tree.'^
421
off
without serious damage to the

of
Chapter
'_
The
publication
Mr.
Eeeves's
theories
during a period of popular excitement

been injudicious.
may have
to
But
a jury, one
;
is
happy
know,
fact.
found that
it
was not seditious
for his views un-
doubtedly rested on a sound basis of historical
The power of the Crown was that of the House of Commons.

the
in truth anterior to
From
the
the time of
Norman Conquest down

Crown nossessed
of sovereignty.
to
Eevolution of
1688, the
attributes
in reality
many
the
as
of the
is
The prerogative
of
is
the
name
for
the
remaining portion
Crown's
already
original
authority,
and
therefore,
name for the residue of discretionary power left at any moment in the hands of the Crown, whether such power be in fact exercised by the King Every act which the himself or by his Ministers.
pointed out, the
executive government can lawfully do without the authority of the Act of Parliament
this prerogative.
is
done in virtue of
(as
If therefore
we omit from view
we conveniently may do) powers conferred on the Crown or its servants by Parliamentary enactments, as for example under an Alien Act, we may use the
term " prerogative
" as equivalent to the discretionary
authority of the executive, and then lay

precepts for determining the
down
that
the conventions of the constitution are in the main
mode and
manner
spirit in
is
which
really
the prerogative
is
to be exercised, or
(what
in
the same thing) for fixing the
which any
transaction which can legally be done in virtue of the
Eoyal prerogative (such as the making of war or the This declaration of peace) ought to be carried out.
1
See 26
St. Tr.
530-634.
422

it
Part
III.
statement holds good,
should be noted, of
all
the
discretionary powers exercised
by the executive, other;
wise than under statutory authority

really
it
applies to acts
done by the King himself
in accordance with
his personal wishes, to transactions
(which are of more
frequent occurrence than modern constitutionalists are disposed to admit) in which both the King and
his Ministers take a real part,
and
also to that large
and
constantly increasing
number of proceedings
which, though
carried out in the King's
in truth wholly the acts
name, are The conof the Ministry.
ventions of the constitution are in short rules intended

to regulate the exercise of the whole of the remaining
discretionary powers of the
Crown, whether these
powers are exercised by the King himself or by the That this is so may be seen by the ease Ministry.
tions
and the technical correctness with which such convenmay be expressed in the form of regulations in reThus, to say
equivalent
that a Cabinet
are
ference to the exercise of the prerogative.
when outvoted on any
vital question
is
bound
its
in general to retire from office,
to the assertion, that the prerogative of the
dismiss
servants at the will of the
Crown to King must be
exercised in accordance with the wish of the Houses of
Parliament
to
the statement that Ministers ought not

treaty which will not
make any
command
the ap-
probation of the Houses of Parliament, means that the prerogative of the Crown in regard to the making of
treaties
power "
what the Americans the " treaty-making ought not to be exercised in opposition to
call
is
the will of Parliament.
So, again, the rule that Parin fact the
liament must meet at least once a year,
rule that the Crown's legal right or prerogative to call
423
Parliament together at the King's pleasure must be

.
or
Chapter
SO exercised that Parliament
meet once a
XIV.
year.
1
This analysis of constitutional understandings
is gome eonconven'-"^
open to the one valid

are
criticism, that,
though true as
;
far as it goes, it is obviously
incomplete
for there
toexerdse
some few constitutional customs or habits which have no reference to the exercise of the royal power,
Such,
for
ofPfiiamentary
privilege.
a very permanent conflict between the will of the House of Commons and the will of the House of Lords the Peers must at some point give way to the Lower House. Such, again, is, or at any rate was, the practice by which the judicial functions of the House of Lords are dis-
example,
is
the
understanding
vague one
at best
that
in case of a
charged solely by the
Law
Lords, or the understand-
ing under which Divorce Acts were treated as judicial
and not
these
as legislative proceedings.
Habits such as
rules
are
at
bottom customs
or
meant
to
determine the mode in which one or other or both of

the Houses of Parliament shall
exercise their dis-
cretionary powers, or, to use the historical term, their

"privileges."
is
The very use
of the
word "privilege"
almost enough to show us
how
to embrace all the
conventions of the constitution under one general

head.
Between
" prerogative "

:
and " privilege " there

is
exists a close analogy

for the
the one
the historical
name
;
discretionary authority of the
Crown
the
other
is
the historical
name
for
the discretionary
authority of each House of Parliament. determine, or are meant to
Understand-
ings then which regulate the exercise of the prerogative
determine, the
way
in
which one member of the sovereign body, namely the

Crown, should exercise
its
discretionary authority;

424
Part
III.
understandings which regulate the exercise of privilege

determine, or are meant
to
determine, the
the
way
in
which the other members of
sovereign body
should each exercise their discretionary authority.
The
result follows, that the conventions of the con-
stitution, looked at as a whole, are customs, or under-
standings, as to the
mode in which
King
the several
members
it will
^
of the sovereign legislative body, which, as
be
remembered,
it
is
the "
in Parliament,"
should
each exercise their discretionary authority, whether be termed the prerogative of the
Since,
privileges of Parliament.
Crown however, by
or the
far the
most numerous and important of our constitutional understandings refer at bottom to the exercise of the prerogative, it will conduce to brevity and clearness
if
we
treat the conventions of the
constitution, as
rules or customs determining the
mode
in
which the
discretionary
language the prerogative, ought the nation) to be employed.

Aim of con.
understandings, ^j^^^
power of the executive, or in technical {i.e. is expected by
Having ascertained that the conventions of the

coustitution are (in the main) rules for determining
excrcise of the prerogative,
we may
is
carry our
analysis
of
their
character
a step
farther.
They
have
all
one ultimate object.
Their end
to secure
that Parliament, or the Cabinet which
is
indirectly
appointed by Parliament, shall in the long run give effect to the will of that power which in modern
England
is the true political sovereign of the State the majority of the electors or (to use popular though not quite accurate language) the nation.
At
this point
comes into view the

1
full
importance
See
p. 37, ante.
425
of the distinction already insisted upon^ between " legal " sovereignty and " political " sovereignty.
Chapter
L
Parliament
is,
from a merely
is
legal point of view, the
absolute sovereign of the British Empire, since every
Act of Parliament
binding on every Court through-
out the British dominions,
and no
rule,
whether of
morality or of law, which contravenes an Act of Parliament, binds any Court throughout the realm.
if
But
Parliament be in the eye of the law a supreme
legislature, the essence of representative

is,
government
i.e.
that the legislature should represent or give effect
to
the will of the political sovereign,
of the
electoral body, or of the nation.
That the conduct of
the different parts of the legislature should be deter-
mined by
rules
meant
to secure
action of the legislative
the political sovereign,
harmony between the sovereign and the wishes of must appear probable from
If the true ruler or political
general considerations.
sovereign of England were, as was once the case, the
King, legislation might be carried out in accordance
with the King's will by one of two methods.
The
by royal proclamations, some other body, such as a Council of State or Parliament itself, might be allowed to legislate as long as this body conformed to the will of the Crown. If the first plan were adopted, there would be no room or need for constitutional conventions.
Crown might
;
itself legislate,
or decrees
or
If the second plan were adopted, the proceedings of

'
the legislative
some
rules
body must inevitably be governed by meant to make certain that the Acts of
electorate
1
the legislature should not contravene the will of the
Crown.
The
is
in fact the sovereign of

ante.
See pp. 68-73,
426
LA W AND CONVENTIONS OP CONSTITUTION

It is a
Part
III.
body which does not, and from its nature hardly can, itself legislate, and which, owing
England.
chiefly to historical causes,
has
left
in existence a
supreme legislature. The result of this state of things would naturally be that the conduct of the legislature, which (ex hypothesi) cannot be
theoretically
governed by laws, should be regulated by understandings of which the object is to secure the conformity
of Parliament to the will of the nation.
And
this
is
what has actually

constitution
occurred.
now
consist
The conventions of the of customs which (whatever
day maintained for the sake of ensuring the supremacy of the House of Commons, and ultimately, through the elective House
their historical origin) are at the present
of
Commons,
of the nation.
Our modern code of consti-
tutional morality secures, though in a roundabout way, what is called abroad the " sovereignty of the people."
That
into
this is so
effect
the
becomes apparent if we examine of one or two among the leading
The rule that the powers of the Crown must be exercised through Ministers who are members of one or other House of Parliament and who " command the confidence of the House of Commons,"
articles of this code.
really means, that the elective portion of the legisla-
though by an indirect process, appoints the executive government; and, further, that the Crown, or the Ministry, must ultimately carry out, or at any rate not contravene, the wishes of the
ture in
efi"ect,
House of Commons.
sentation
is
But
else
as the process of repre-
nothing
than a mode by which the
will of the representative

is
body
or
House
of
Commons
it
made
to coincide with the will of the nation,
follows
that a
rule
which gives the appointment
NATURE OF CONVENTIONS OP CONSTITUTION
427
and control of the government mainly to the House of Commons is at bottom a rule which gives the election and ultimate control of the executive to the nation. The same thing holds good of the understanding, or habit, in accordance with which the
Chaptei
XIV
1
House
of Lords are expected in every serious political
controversy to give
will of the
way
at
some point or other

as
to the
House of Commons
expressing the
deliberate resolve of the nation, or of that further
custom which, though of comparatively recent growth, forms an essential article of modern constitutional
ethics,
by which,
in case the Peers should finally re-
fuse to acquiesce in the decision of the
Lower House,
the
Crown is expected to nullify the resistance of the How, it Lords by the creation of new Peerages.^ " point " to be fixed at which, in may be said, is the
between the two Houses, the Lords must give way, or the Crown ought to use its precase of a conflict
rogative in the creation of

is
new Peers ?
The question
light
worth raising, because the answer throws great upon the nature and aim of the articles which
code.
make up our conventional

intervene
is
This reply
is,
that the
point at which the Lords must yield or the
Crown
properly determined by anything which
conclusively
shows that the
House
of
Commons
deliberate
represents on the matter in dispute

decision of the nation.
the
The truth
is
of this reply will
hardly be questioned, but to admit that the deliberate

decision of the electorate
decisive,
is
in fact to
concede that the understandings as

1
to the action of
Mr. Hearn denies, as
it
seems to
me
existence of this rule or understanding. England (2nd ed.), p. 178.
on inadequate grounds, the See Heara, Government of
428
Part
III.
House of Lords and of the Crown are, what we have found them to be, rules meant to ensure the ultimate supremacy of the true political sovereign, or,
the
in other words, of the electoral body.^
Rules as
uon'ofParliament.
most striking example of the real sense attaching to a whole mass of constitutional conventious is fouud in a particular instance, which appears
far the
By
at
first
sight
to
present a marked exception to

of constitutional
morality.
the
general
principles
Ministry placed in a minority by a vote of the

have, in accordance with received doctrines,
Commons
a right to demand a dissolution of Parliament. On the other hand, there are certainly combinations of circumstances under which the Crown has a right
to dismiss a Ministry
who command
a Parliamentary
majority,
and
to dissolve the Parliament
by which the
in short, of
to
Ministry are supported.

dissolution
The prerogative,
may
constitutionally be so
employed as
override the will of the representative body, or, as it is popularly called, " The People's House of Parliasight like saying that in certain cases the prerogative can be so used as to set at nought the will of the nation. But in reality
first
ment."
This looks at
it
is
far
otherwise.
Crown
strip
occasionally
The discretionary power of the may be, and according to con-
stitutional precedents
sometimes ought to be, used to an existing House of Commons of its authority.
in accordance with the constitution be deprived of power and of existence is that an occasion has arisen on which
But the reason why the House can
there
is fair
is
1
House
reason to suppose that the opinion of the not the opinion of the electors. A dissoluBageliot, English Constitution, pp. 25-27.
Compare
NA TURK OF CONVENTIONS OF CONSTITUTION

tion is in its essence
political
429
an appeal from the
legal to the Chapter
sovereign.
dissolution
is
allowable,
or
^^'
necessary, whenever the wishes of the legislature are,

or
may
This
fairly
be presumed to
be, different
from the
celebrated The
wishes of the nation.

is
the doctrine established
by the
dis-
contests of 1784
and of 1834.
In each instance the im'and"

^^^^'
King dismissed a Ministry which commanded the confidence of the House of Commons. In each case there was an appeal to the country by means of a
dissolution.
In 1784 the appeal resulted in a decisive

office
and his colleagues, who had by the King against the will of the House of Commons. In 1834 the appeal led to a verdict equally decisive against Peel and Wellington, who also had been called to office by the Crown against the wishes of the House. The essential
verdict in favour of Pitt
been brought into
point to notice
is
that these contests each in effect
admit the principle that it is the verdict of the political sovereign which ultimately determines the right or (what in politics is much the same thing) the power of a Cabinet to retain office, namely, the
nation.
Much discussion, oratorical and literary, has been expended on the question whether the dissolution of 1784 or the dissolution of 1834 was constitutional.^ To a certain extent the dispute is verbal, and depends upon the meaning of the word " constitutional." If we mean by it " legal," no human being can dispute that George the Third and his son could without any breach of law dissolve Parliament. If we mean "usual," no one can deny that each monarch took
1
See Appendix, Note VII., The Meaning of an Unconstitutional Law.
430
Part
III.
a very unusual step in dismissing a Ministry which
commanded a majority in the House of Commons. If " we mean " in conformity with the fundamental principles of the constitution," we
by " constitutional
must without hesitation pronounce the conduct
of
George the Third constitutional, i.e. in conformity with the principles of the constitution as they are now
understood. He believed that the nation did not approve of the policy pursued by the House of Commons. He was right in this belief No modern constitutionalist will dispute that the
authority of the
its representing the will of the nation, and that the chief object of a dissolution is to ascertain that the will of Parliament
House of Commons
is
derived from
George the Third then made use of the prerogative of dissolution for the very purpose for which it exists. His conduct, therefore, on the modern theory of the constitution,
was, as far as the dissolution went, in the strictest sense constitutional. But it is doubtful whether in
coincides with the will of the nation.
1784 the King's conduct was not in reality an innovation, though a salutary one, on the then prevailing doctrine. Any one who studies the questions connected with the name of John Wilkes, or the disputes between England and the American colonies, will see
Third and the great majority of George the Third's statesmen maintained up to 1784 a view of Parliamentary sovereignty which made Parliament in the strictest sense the sovereign power. To this theory Fox clung, both in his youth as a
that George the
and in his later Chatham and of
life
as a
Whig.
Tory The greatness of
his son lay in their perceiving that behind the Crown, behind the Eevolution Families,

behind Parliament
itself,
431
lay
what Chatham
call
calls
the Chapter
1
" great public," and
what we should
the nation,
and that on the

*
will
of the nation depended the
In 1784 George the Third was led by the exigencies of the moment to adopt the attitude of Chatham and Pitt. He appealed (oddly enough) from the sovereignty of Parliament, of which he had always been the ardent champion, to that sovereignty of the people which he never ceased to hold in abhorrence. Whether this appeal be termed constitutional or revolutionary is now of
authority of Parliament.
little
moment
it
aflBrmed decisively the fundamental
principle of our existing constitution that not Parlia-
ment but the nation

supreme power in the
is,
politically
speaking,
the
State.
On
this very
ground
the so-called " penal " dissolution was
consistently
enough denounced by Burke, who at all periods of his career was opposed to democratic innovation, and far less consistently by Fox, who blended in
his political creed doctrines of absolute Parliamentary
sovereignty with the essentially inconsistent

of the sovereignty of the people.
dogma
speak with decision.
Of William the Fourth's action it is hard to The dissolution of 1834 was,

;
from a- constitutional point of view, a mistake it was justified (if at all) by the King's belief that the
House of Commons did not represent the will of the nation. The belief itself turned out erroneous, but the large minority obtained by Peel, and the rapid
decline in the influence of the Whigs, proved that,
though the King had formed a wrong estimate of

public
sentiment,
for
ground
was not without reasonable believing that Parliament had ceased to

he
'
432
LA
W AND
Part in.
represent the opinion of the nation.

constitutionally right for the
Now
if it
be
Parliament
to
the
in
electors
reality
Crown when the House

to
to appeal from
of
its
Commons
has
ceased
represent
constituents, there
is is
great difficulty in maintaining
that a dissolution
the
electors
unconstitutional simply because

to,
do,
when appealed
support
the
opinions
of their representatives.
Admit
that the
electors are the political sovereign of the State,
and
the result appears naturally to follow, that an appeal

to
them by means
is
of a dissolution
valid
is
constitutional,
for
whenever there
and reasonable ground
supposing that their Parliamentary representatives
have ceased to represent their wishes.

stitutionality therefore
The conin
of the
still
dissolution
1834
turns at bottom
of fact,
upon the
disputable question
whether the King and his advisers had reasonable ground for supposing that the reformed House of Commons had lost the confidence of the
nation.
Whatever may be
the
answer given by
historians to this inquiry,
the precedents of 1784
and 1834 are decisive; they determine the principle on which the prerogative of dissolution ought to be exercised, and show that in modern times the rules
as to the dissolution of Parliament are, like other conventions of the constitution, intended to secure the ultimate supremacy of the electorate as the true
political sovereign of the State; that, in short, the
maxims is subordinate and subservient to the fundamental principle of popular sovereignty.

validity of constitutional
The
necessity
for
dissolutions
stands
of
in
close
connection
with
the
existence
Parliamentary

sovereignty.
legislative
433
Where, as in the United States, no assembly is a sovereign power, the right
Chapter
of dissolution
may be
dispensed
with
the
con- ^^f 0
vital
mentary
reignty.
'
stitution provides security that
no change of
fg^pj^'j^^'^
importance can be
people
tive
;
eflfected
without an appeal to the
and the change in the character of a legislabody by the re-election of the whole or of part thereof at stated periods makes it certain that in
the long run the sentiment of the legislature will
harmonise with the feeling of the public.

Parliament
is
Where
some further security for such harmony is necessary, and this security is given by the right of dissolution, which enables the Crown or the Ministry to appeal from the legislature to The security indeed is not absolutely the nation. Crown, Cabinet, and Parliament may complete. conceivably favour constitutional innovations which do not approve themselves to the electors. The Septennial Act could hardly have been passed in England, the Act of Union with Ireland would not, it is often asserted, have been passed by the Irish
supreme,
Parliament,
if,
in either instance, a legal revolution
had been necessarily preceded by an appeal to the

electorate.
Here, as elsewhere, the constitutionalism
of America proves of a more rigid type

constitutionalism of England.
ditions of
Still,
than the
under the conof dissolution

security
for
modern
if
political life,
the understandings
which exist with us

afford
as to the right
nearly,
not quite,
as
much
sympathy between the action of the

on
legislative
legislature
and
the will of the people, as do the limitations placed
power by the constitutions of American

2
States.
In this instance, as in others, the principles

F
434
Part
III.
explicitly stated in the various constitutions of the
and in the Federal Constitution itself, are impliedly involved in the working of English political
States,
institutions.
The
right of dissolution
is
the right
all
of appeal to the people, and thus underlies

constitutional
those
or
conventions which,
in
one
way
another, are intended to produce
harmony between
the legal and the political sovereign power.
CHAPTEE XV
THE SANCTION BY WHICH THE CONVENTIONS OF THE CONSTITUTION AEE ENFORCED
What
forced
?
is
the sanction by which obedience

of
to
the Chapter
'_
conventions
the
constitution
is
at
bottom enThe
most perplexing of the specula. . tive questions suggested by a study ot constitutional law. Let us bear in mind the dictum of Paley, that
This
is
bv
far the
problem to
be solved.
it is
often far harder to
of a difficulty, than to
difficulty
is
make men see the existence make them, when once the
its
perceived, understand
explanation,
make clear to ourselves and in the first what is the precise nature of a puzzle of which most students dimly recognise the existence.
place try to
Constitutional understandings are admittedly not
laws
they are not (that
is
to say) rules
which
will
be enforced by the Courts.
If a Premier were to
retain office after a vote of censure passed
by the
House of Commons,
if
he were
(as did
Lord Pal-
merston under like circumstances) to dissolve, or strictly speaking to get the Crown to dissolve, Parliament, but, unlike Lord Palmerston, were to be again
censured by the newly elected House of Commons,
and then,
after all this
had taken
43s
place,
were
still
tQ
436
Part
m. remain
no one could at the head of the government, deny that such a Prime Minister had acted unconYet no Court of law would take stitutionally. Suppose, again, that on the notice of his conduct. passing by both Houses of an important bill, the
King should
refuse
his
assent
to the measure, or
(in popular language) put his "veto" on it. Here there would be a gross violation of usage, but the matter could not by any proceeding known to English law be brought before the judges. Take another instance. Suppose that Parliament were for more than a year not summoned for the
despatch of business.
This would be a course of pro-
ceeding of the most unconstitutional character.

there
is
Yet no Court in the land before which one could go with the complaint that Parliament had not been
assembled.^
stitution,
Still
the conventional rules of the conit is constantly not quite as binding as laws.
though not laws,

nearly
if
are, as
asserted,
They
as
are, or
appear to be, respected quite as
much
most statutory enactments, and more than many. The puzzle is to see what is the force which habitually
compels obedience to rules which have not behind them the coercive power of the Courts.
Partial
The
.
difficulty of
.
.
the problem before

,
answer, that constîtutionai
indeed be got rid
of,
but
to or
may
us cannot be shifted and a good
^^^
of
ings
lessened,
by observing that the invariableness

constitutional
less
fictitious.
oftenT
obeyed.
the
is
obedience
itsclf
understand-
articles
1
The special of the conventional code are in fact often See 4 Edward III. c. 14 16 Car. II. c. 1 and 1 Will.
;
morc
Mary, Sess. 2, c. 2. Compare these with the repealed 16 Car. I. c. 1, which would have made the assembling of Parliament a matter
of law.
&
SANCTION OF CONVENTIONS OP CONSTITUTION 437

disobeyed.
A
his
Minister sometimes refuses to retire Chapter
when, as
tionally
opponents
resign
office
allege,
;
he ought constitu-
to
not
many
years
have
if
passed since the Opposition of the day argued,
not
convincingly yet with a good deal of plausibility, that

the Ministry had violated a rule embodied in the Bill
House of Commons maintained, not only by argument but by repeated votes, that Pitt had deliberately dej&ed more than one constitutional precept, and the Whigs of 1834 brought a like charge against Wellington and Peel. Nor is it doubtful that any one who searches through the pages of Hansard will find other instances in which constitutional maxims of long standing and high repute have been set at nought. The uncertain
of Rights;
in 1784 the
character of the deference paid to the conventions
of the constitution
is
concealed under the current
phraseology, which treats the successful violation of a

constitutional rule as a proof that the
in reality part of the constitution.
maxim was not

If a habit or
precept which can be set at nought
is
thereby shown
it
is
not to be a portion of constitutional morality,

naturally follows that no true constitutional rule
ever disobeyed.
Yet, though the obedience supposed to be rendered
to the separate understandings or maxims of public
life is
But
prin-
conformity
tL'natiôn
*J,'^y^^_
to a certain extent fictitious, the assertion that
they have nearly the force of law is not without Some few of the conventions of the meaning.
constitution are rigorously obeyed.
Parliament, for
as
example,
is
summoned year by year with

its
much
regularity as though
for
annual meeting were provided

;
by a law
of nature
and (what
is
of
more con-
438
La iV AND CONVENTIONS OF COMsTlWTlON

though particular understandings are of
obligatioa,
Partm. sequence)
uncertain
neither
the
Crown nor any

all
servant of the
Crown ever
refuses obedience to the
grand principle which, as we have seen, underlies
the conventional precepts of the constitution, namely,

that government must be carried on in accordance
with the will of the House of Commons, and ultimately with the will of the nation as expressed This principle is not a law it not to be found in the statute-book, nor is it a maxim of the common law ; it will not be enforced
;
through that House.
is
Why then has the have certain conventions or understandings which are closely connected with it, the force of law ? This, when the matter is reduced
judicial body.
by any ordinary
itself,
principle
as also
to its
simplest form,
deal.
have to
the puzzle with which we It sorely needs a solution. Many

is
writers, however, of authority, chiefly
because they
its legal side,
do not approach the constitution from

hardly recognise the
full force
of.
of the difficulty which
requires to be disposed
either pass it by, or else apparently acquiesce in one of two answers, each of which contains an element of truth,
They
but
neither of which fully removes the perplexities of any inquirer who is determined not to be put off with mere words.
In^wf
"*
Impeachment.
suggested than formulated in that obedience to the conventions of the constitution is ultimately enforced by the fear of impeachment.
SO
^ ""^P^^
"^"""^ '"^^^^
is
many
words,
view were tenable, these conventions, it should be remarked, would not be " understandings " at all, but "laws" in the truest sense of that term,
If this
SANCTION OF CONVENTIONS OF CONSTITUTION

and
their sole
439
peculiarity
would
lie
in their being Chapter
laws the breacli of which, could be punished only by
one extraordinary tribunal, namely, the High. Court

of Parliament.
But though
it
may
well be conceded
and the
fact is
one of great importance
that
the
habit of obedience to the constitution was originally
generated and confirmed

that the dread of the
by impeachments, yet
there
are insuperable difficulties to entertaining the belief
Tower and the block
exerts
any
appreciable influence
over tbe conduct of modern

for violations
statesmen.
No impeachment
of the
constitution (since for the present purpose
we may
leave out of account such proceedings as those taken

against
Lord
Macclesfield,
Melville) has occurred for
Warren Hastings, and Lord more than a century and a

is
half
The
process,
which
supposed to ensure the
retirement from
office
of a
modern Prime
is,
Minister,
when
and has long The arm by which attacks on freedom been, obsolete. were once repelled has grown rusty by disuse it is laid
placed in a hopeless minority,
;
aside
it
ever,
among the antiquities of the constitution, nor will we may anticipate, be drawn again from its
For, in truth, impeachinent, as a
scabbard.
means
for
enforcing the observance of constitiitional morality,
always laboured under one grave defect. The possibility of its use suggested, if it did not stimulate, one most
important violation
of. political
usage
a Minister
who
dreaded impeachment would, since Parlia,ment was the only Court before which he could be impeached,
naturally advise the
Crown not
is
to convene Parliament.
There
is
something
like a contradiction in
terms in
saying that a Minister
compelled to advise the
meeting of Parliament by the dread of impeachment
440

If the fear of Parlia-
Part
III.
if
Parliament should assemble.
mentary punishment were the only difficulty in the
way
of violating the constitution,
we may be
sure
that a bold party leader would, at the present day, as
has been done in former centuries, sometimes suggest

that Parliament should not meet.
Power
of
second and current answer

is,
to
the
question
opinion,
uudcr Consideration
that obedience to the conven-
tional precepts of the constitution is ensured

force of public opinion.
by
the
Now
shall be
that this assertion
is
in one sense true, stands
past dispute.
The nation expects that Parliament

;
convened annually
the nation expects that
a Minister
who cannot
retain the confidence of the
House of Commons,
tions.
up his place, and no Premier even dreams of disappointing these expectashall give
The
assertion, therefore, that public opinion
gives validity to the received precepts for the conduct

of public life is true. Its defect is that, if taken without further explanation, it amounts to little else than a re-statement of the very problem which it is
meant
to solve.
For the question to be answered

it
is,
at bottom.
Why is
that public opinion
is,
apparently
at least, a sufficient sanction to
the conventions of the constitution?
compel obedience to and it is no

conventions
answer
to this inquiry to say that these
are enforced
Let it also be noted that many rules of conduct which are fully supported by the opinion of the public are violated every day of
the year.
by
public opinion.
Public opinion enjoins the performance of promises and condemns the commission of crimes, but the settled conviction of the nation that promises
ought to be kept does not hinder merchants from
SANCTION OF CONVENTIONS OF CONSTITUTION 441

going into the Gazette, nor does the universal execration of the villain who sheds man's blood prevent the
Chapter
^^'
commission of murders.
a certain extent check extravagance

is
That public opinion does to and criminality

is
of course true, but the operation of opinion
in
by the law, or in the last resort by the physical power at the disposal of the state. The limited effect of public opinion when aided by the police hardly explains the immense effect of opinion in enforcing rules which may be violated without any
this case assisted
risk of the offender being
brought before the Courts.
To contend that the

stitution
understandings of the con-
derive their coercive

is
power
like
solely
from
the approval of the public,
very
maintaining
the kindred doctrine that the conventions of international law are kept alive solely
by moral
is
force.
Every one, except a few dreamers, perceives that the

respect paid to international morality
due in great
measure, not to moral force, but to the physical force in the shape of armies and navies, by which the com-
mands
and
least,
of general opinion are in
many cases supported
it is difficult
not to suspect that, in England at the conventions of the constitution are supported
in addition to
and enforced by something beyond or

the public approval.
What then
that
it is
is
this
"something"?
My
answer
is. True
nothing else than the force of the law.
The
and
obedient
*,^'''''-
dread of impeachment
may have
established,
public opinion certainly adds influence to, the pre- ^"f^^ But the sanction of law. vailing dogmas of political ethics.
which constrains the boldest political adventurer to obey the fundamental principles of the constitution and the conventions in which these principles are
442

is
Part
III.
expressed,
principles
the
of
fact
that
the
breach
of
these
and
these
conventions
will
almost
immediately bring the offender into conflict with

the Courts and the law of the land.
This
is
the true answer to the inquiry which I
have
Expiana-
raised,
but
it
is
an answer which undoubtedly
requires both explanation
and defence.
Yearly meeting
of Pariia-
The meaning of the statement that the received by the law of the land, and the grounds on which that statement is based, can be most easily made apparent by considering what would be the legal results which would inevitably ensue from the violation of some indisputable constitutional maxim. No rulc is better established than that Parliament must assemble at least once a year. This maxim, as before pointed out, is certainly not derived from the common law, and is not based upon any statutory
precepts of the constitution are supported
enactment. Now suppose that Parliament were prorogued once and again for more than a year, so that
for
two years no Parliament sat at Westminster. Here we have a distinct breach of a constitutional
practice or understanding, but
we have no violation What, however, would be the consequences which would ensue ? They would be, speaking generally, that any Ministry who at the present day
of law.
sanctioned
stitution,
or
tolerated
this
violation
of the con-
and every person connected with the government, would immediately come into conflict with the law of the land. A moment's reflection shows that this would be so.
The Army (Annual) Act would in the first place expire. Hence the Army Act, on which the discipline
SANCTION OP CONVENTIONS OF CONSTITUTION 443

army depends, would But thereupon all means of
of the
tbe
cease to be in force.^
Chapter
1
controlling the
exist.
army
Either
without a breach of law would cease to
army must be discharged, in which case the means of maintaining law and order would come to an end, or the army must be kept up and discipline must be maintained without legal authority for its
maintenance.
wards,
If this alternative were adopted, every person, from the Commander-in-Chief down-
who took
part in the control of the army, and
indeed every soldier
who
carried out the
commands
of his superiors, would find that not a day passed
without his committing or sanctioning acts which
would render him

dock.
still
liable to stand as a criminal in the
Then, again, though most of the taxes would

into the Exchequer, large portions of the
come
revenue would cease to be legally due and could not

be legally collected, whilst every
collector,
tions.
official,
who
acted as
would expose himself to actions or prosecuThe part, moreover, of the revenue which
could not be legally applied to the purposes
If the Ministry laid hold of the
it difficult
came
in,
of the government.
revenue they would find

of definite laws
to avoid breaches
which would compel them to appear

Suppose however that the Cabinet
Their criminal daring
;
before the Courts.
were willing to defy the law.
would not
of a large
officials,
suffice for its
purpose
they could not get
hold of the revenue without the connivance or aid
number
of persons, some of
them indeed
and
but some of them, such as the Comptroller
General, the Governors of the

^
Bank
of England,
expire."
In popular, though inaccurate language, " the Mutiny Act would See note 2, p. 305 ante.
444

like,
Part
m. the
unconnected with the administration.

officials,
it
None
of these
should be noted, could receive
from the government or the Crown any protection against legal liability and any person, e.g. the Com;
mander-in-Chief, or the colonel of a regiment,
who
employed force to carry out the policy of the government would be exposed to resistance supported by the Courts. For the law (it should always be borne in mind) operates in two different ways. It inflicts penalties and punishment upon law-breakers, and
(what
is
of equal consequence)
it
enables law-respect-
ing citizens to refuse obedience to illegal commands.

It legalises passive resistance.
The
efficacy of such
is immensely increased by the nonEngland of anything resembling the droit administratif of France,^ or of that wide discretionary authority which is possessed by every continental government. The result is, that an administration
legal opposition
existence in
which attempted to dispense with the annual meeting of Parliament could not ensure the obedience even of
its
own
officials,
and, unless prepared distinctly to
violate the
itself
undoubted law of the land, would find not only opposed but helpless.
rule,
that Parliament must meet once a year, though in strictness a constitutional convention which is not a law' and will not be
therefore,
The
enforced by the Courts, turns out nevertheless to be an understanding which cannot be neglected without
involving hundreds of persons,
many
of
whom
are
amenable to government influence, in distinct acts of illegality cognisable by

the tribunals of the country.
'
by
no
means
specially
This convention there-
See chap,
xii., ante.

fore of the constitution is in reality
445
based upon, and
Chapter
secured by, the law of the land.
This no doubt
is
a particularly plain case.
have
examined
it
it
fully,
both because
it is
a particularly
plain instance,
affords
and because the full understanding of the clue which guides us to the principle on
rests such coercive force as is possessed
which really
by the conventions of the constitution. To see that this is so let us consider for a moment the effect of disobedience by the government to one of the most purely conventional among the maxims
of constitutional morality,
*
Resigna-
Ministry
J^st'^con-'^
the
rule, that is to say,
^^^ g^^ge
that a Ministry ought to retire on a vote that they ofCom<j ^ J

mons.
no longer possess the confidence of the House of Suppose that a Ministry, after the Commons. passing of such a vote, were to act at the present
day as Pitt acted in 1783, and hold office in the face There would of the censure passed by the House.
clearly be
ethics.
primA facie breach

ensue
is
of constitutional
If the Ministry
What must
clear.
wished to keep within the constitution
they would
announce their intention of appealing to the constituencies, and the House would probably assist in hurrying on a dissolution. All breach of law would
be avoided, but the reason of this would be that the conduct of the Cabinet would not be a breach of
constitutional
morality;
for
is,
the true rule

the
of the
constitution admittedly
not that a Ministry can-
not keep
office
when censured by
under
such
House of
unless they
Commons, but that
circumstances a
office
Ministry ought not to remain in
can by an appeal to the country obtain the election of a House which will support the government.
446
Partni.
Suppose then that, under the circumstances I have imagined, the Ministry either would not recommend
a
dissolution
of
Parliament,
or,
having dissolved
Parliament and heing again censured by the newly

elected
It
House of Commons, would not resign
office.
would, under this state of things, be as clear as
day that the understandings of the constitution had been violated. It is however equally clear that the House would have in their own hands the means of
ultimately forcing the Ministry either to respect the
constitution or to violate the law.
Sooner or later
the
moment would come for passing the Army (Annual) Act or the Appropriation Act, and the
House by refusing to pass either of these enactments would involve the Ministry in all the inextricable embarrassments which (as I have already pointed out) immediately follow upon the omission to convene Parliament for more than a year. The breach, therefore,
of a purely conventional rule, of a
maxim
utterly un-
known and indeed opposed

law, ultimately entails
conflict
to the theory of English

direct
upon those who break it with the undoubted law of the land.
We
have then a right to assert that the force which in the last resort compels obedience to constitutional
morality
itself
is nothing else than the power of the law The conventions of the constitution are not
laws, but, in so far as they really possess binding

force, derive their sanction
from the fact that whoever breaks them must finally break the law and
incur the penalties of a law-breaker.
It is
otjection?.
tions which
worth while to consider one or two objecmay be urged with more or less plausi-
bility against the doctrine that the obligatory force

of constitutional morality
itself.
is
447
derived from the law Chapter
^_
it is
sometimes suggested, may Law may by the use of actual force carry through a cowp dJetat powlred ^^ ^'"'' and defy the law of the land.
This suggestion
is
The government,
true,
but
is
quite irrelevant.
No
constitution can be absolutely safe from revolution
show that the laws may be defied by violence does not touch or invalidate the
or from a coup d'etat; but to
statement that the understandings of the constitution

are based
upon the
law.
They have
certainly
no
like
more force than the law

could of
course
itself.
A Minister who,
the French President in 1851, could override the law
overthrow the constitution.
The
theory propounded aims only at proving that
when
constitutional understandings have nearly the force of
law they derive their power from the fact that they No one is cannot be broken without a breach of law.
concerned to show, what indeed never can be shown,
that the law can never be defied, or the constitution
never be overthrown.
It should further
be observed that the admitted

Eevolutionists or con-
sovereignty of Parliament tends to prevent violent

attacks on the constitution.
spirators generally believe tbemselves to be supported
by the majority of the

ceed, this belief is
nation, and,
when they
suc-
in general well founded.
But
in
modern England, a party, however violent, who count on the sympathy of the people, can accomplish by
obtaining a Parliamentary majority
all
that could be
gained by
the success of a revolution.
When
a spirit
of reaction or of innovation prevails throughout the
country, a
reactionary
or
revolutionary
policy
is
448

by Parliament without any party needing to The oppressive legislation of Eestoration in the seventeenth century, and the
use of violence.
legislation
Part
III.
enforced
make
the
anti-revolutionary
of
the
till
Tories
the
outbreak of
the
Revolution
the
from end of
George the Third's reign, saved

from attack.
form
;
the
constitution
change of spirit averted a change of

its
the flexibility of the constitution proved
strength.
Parliament
refused
If the
maintenance of
of Parliament
political morality, it
may
laws
with somc plausibility be asked, really depends on

*^^ right
to
Mutiny
^'*-
refuse
to
pass
such as the
for
Army
(Annual) Act, which are necessary

of
order,
the
maintenance
English
and
does
indeed
it
for
the very existence of society,

that
this
how
has
no
Parliament
happen ever employed
extreme method of enforcing obedience to the

?
constitution
The true answer

most
is is
to
the
objection
thus raised
appears to be that the observance of the main and the

essential of all constitutional rules, the rule, that
to say, requiring the annual
meeting of Parliament,
ensured, without any necessity for Parliamentary
by the temporary character of the Mutiny Act, and that the power of Parliament to compel obedience to its wishes by refusing to pass the Act is so complete that the mere existence of the power has made its use unnecessary. In matter of fact, no Ministry has since the Revolution of 1689 ever defied the House of Comaction,
mons, unless the Cabinet could confide in the support

of the country,
election of a
or, in other words, could count on the House which would support the policy of the government. To this we must add, that in the

rare instances in
449
which a Minister has defied the

Pitt's victory
Chapter
House, the refusal to pass the Mutiny Act has been

threatened or contemplated.
over the
Coalition is constantly cited as a proof that Parliament
cannot refuse to grant supplies or to pass an Act necessary for the discipline of the army. Yet any
one
who
studies with care the great " Case of the

see
it
Coalition" will
that
is
it
does not support the
dogma
utmost
mons.
for
which
quoted.
Fox and
his friends
did threaten and did intend to press to the very

all
the legal powers of the House of
Com-
They
failed to carry out their intention solely
because they at last perceived that the majority of the
House did not represent the
will
is,
of the country.
What
the " leading case " shows
that the Cabinet,
when supported by
the Crown, and therefore possess-
ing the power of dissolution, can defy the will of a
House of Commons if the House is not supported by Here we come round to the fundamental the electors. dogma of modern constitutionalism the legal sove;
reignty of Parliament
is
subordinate to the political
sovereignty of the nation.

reality established
This the conclusion in

of 1784.
by the events
Pitt over-
rode the customs, because he adhered to the principles,

of the constitution..
He
;
broke through the received
constitutional understandings without
damage
to his
power or reputation
punity.
in case of necessity
he might in all probability have broken the law itself with imtheir legal
For had the Coalition pressed
rights to an extreme length, the
new Parliament
of
1784 would in all likelihood have passed an Act of Indemnity for illegalities necessitated, or excused, by the attempt of an unpopular faction to drive from
2
450
Part
III.
power a Minister supported by the Crown, by the However this may be, the Peers, and by the nation. conflict between Pitt and Fox lends no celebrated
countenance to the idea that a House of Commons supported by the country would hot enforce the
morality of the constitution by placing before any Minister who defied its precepts the alternative of
resignation or revolution.^
Snbinquiries,
A clear perception
of the true relation between the
conventious of the constitution and the law of the
land supplies an answer to more
than one sub-
ordinate question which has perplexed students and
commentators.
Why
out
has
How
.
is
it
that the ancient methods of enforcing
inentgone
use
Parliamentary authority, such as impeachment, the

Qj,mg^2
refusal of supplies,
?
and the
like,
have
fallen
into disuse
The answer is, that they are disused because ultimate obedience to the underlying principle of all modern constitutionalism, which is nothing else than
the principle of obedience to the will of the nation as
expressed through Parliament,
is
so closely
bound up
with the law of the land that
it
can hardly be violated
without a breach of the ordinary law.
Hence the
extraordinary remedies, which were, once necessary for

enforcing the deliberate will of the nation, having
become unnecessary, have
fallen into desuetude.
If
they are not altogether abolished, the cause lies partly in the conservatism of the English people, and partly
^
It 13 further not the case that the idea of refusing supplies is un-
In 1868 such refusal was threatened in to modern statesmen. order to force an early dissolution of Parliament; in 1886 the dissolution took place before the supplies were fully granted, and the supplies granted were granted for only a limited period.
known

in
451
the valid consideration that crimes
may
still
be Chapter
occasionally committed for which the ordinary law of
'
the land hardly

therefore
may
due punishment, and which well be dealt with by the High Court
aflfords
of Parliament.
Why
and
is it
that the understandings of the constitu- why

tionai
are
tion have about them a singular element of vagueness

variability
is it,
?
"
^- ^,
riabie?
Why
tainty
to take definite instances of this uncer-
and changeableness, that no one can define with absolute precision the circumstances under which a Prime Minister ought to retire from office ? Why is it that no one can fix the exact point at which resistance of the House of Lords to the will of the House of Commons becomes unconstitutional ? and how does
happen that the Peers could at one time arrest legislation in a way which now would be generally
it
held to involve a distinct breach of constitutional
morality?
What
is
the reason
why no
one can
describe with precision the limits to the influence on
the conduct of public affairs which
may
rightly be
exerted
by
the reigning monarch? and
how
does
it
happen that George the Third and even George the Fourth each made his personal will or caprice tell on the policy of the nation in a very different way and degree from that in which Queen Victoria ever attempted to exercise personal influence over matters
of State
?
The answer
inquiries
is,
in general terms to" these
and the
like
that the one essential principle of the

is
constitution
obedience by
all
persons to the deliberin the
ately expressed will of the

first
House of Commons
instance,
and ultimately to the
will of the nation
452

The conventional
Part
III.
as expressed through Parliament.
is, as already pointed out, merely a body of maxims meant to secure respect for
code of political morality
this principle.
Of
these
for example, as the rule that
maxims some indeed such, Parliament must be con-
are so closely connected with the respect due to Parliamentary or national
voked at
least once a year
authority, that they will never be neglected
by any
one who
tionist ;
not prepared to play the part of a revolusuch rules have received the undoubted stamp
is is
of national approval, and their observance
secured
by the fact that whoever breaks or aids in breaking them will almost immediately find himself involved in
Other constitutional maxims stand in a very different position. Their maintenance up to a certain point tends to secure the supremacy of Parliament, but they are themselves vague, and no one
can say to what extent the will of Parliament or the nation requires their rigid observance; they therefore obtain only a varying and indefinite amount of
obedience.
withconfidence
a breach of law.
Thus the
rule that a Ministry
confideucc of the
Housc of
who have lost the Commons should retire
Commons!^ ffoi officc is plain
enough, and any permanent neglect of the spirit of this rule would be absolutely inconsistent with Parliamentary government, and would
who broke the rule in undoubted illegality. But when you come to inquire what are the signs by which you are to know that the House has withdrawn its confidence from a Ministry,whether, for example, the defeat of an
acts of
finally involve the Minister
important Ministerial measure or the smallness of a Ministerial majority is a certain proof that a

Ministry ought to
retire, 453
you
ask a question whicli Chapter

All that can be said
admits of no absolute reply. ^

is,
that a Cabinet ought not to continue in power
(subject, of course, to the one exception
on which
have before dwelt ^)

of
after the expression
by the House
Commons
of a wish for the Cabinet's retirement.
Of
course, therefore, a Minister or a Ministry
resign if the
dence.
must House passes a vote of want of confiThere are, however, a hundred signs of Par-
liamentary disapproval which, according to circumstances, either
may
or
may
not be a sufficient notice

office.
that a Minister ought to give up
The
essential
as
thing
the
is
that the Ministry should obey the House
But House of Commons has or has not indirectly intimated its will that a Cabinet should give up office is not a matter as to which any definite principle can be laid down. The difficulty which now exists, in settling the point at which a Premier and his colleagues are bound to hold that they have lost the confidence of
representing the nation.
the question whether the House,
is
exactly analogous to the difficulty which
often perplexed statesmen of the last century, of de-
termining the point at which a Minister was bound to

hold he had lost the then essential confidence of the
King.
The
ridiculous
effijrts
of the
Duke
of
New-
castle to
remain at the head of the Treasury, in spite
of the broadest hints from Lord Bute that the time

1 See Hearn, Government of England, chap, ix., for an attempt to determine the circumstances under which a Ministry ought or ought See debate in House of Commons of 24th July not to keep office. 1905, for consideration of, and reference to, precedents with regard to the duty of a Ministry to retire from office when they have lost the Pari. Deb. 4th ser. vol. 150. confidence of the House of Commons.
col.
2
50.
See pp. 428-434,
ante.
454

for resignation, are exactly analogous to the
Part in.
'
had come
undignified persistency with which later Cabinets have

occasionally clung to office in the face of intimations
that the House desired a change of government.
As
long as a master does not directly dismiss a servant, the question whether the employer's conduct betrays
a wish that the servant should give notice must be an
inquiry giving rise to doubt and discussion.
there be sometimes a difiiculty in determining
And
if
the will of Parliament,

still
more
difficult to
what is must often of necessity be determine what is the will of the

it
nation, or, in
electors.
other words, of the majority of the
When
Lords simiidgive
The general
jjQ^gg q
jjiaxims of
rule that the
House of Lords must
in matters of legislation ultimately give
way
But
to the
Qommons
modern
is
one of the best -established

if
Commons,
constitutional ethics.
any
inquirer asks
how
the point at which the Peers are to
give
way
is
to be determined,
no answer which even

]pe
approximates to the truth can
given, except the
very vague reply that the Upper House must give
way whenever it is clearly proved that the will of the House of Commons represents the deliberate will of
the nation.
The nature of the proof
difi'ers
under
different circumstances.
When
it is
once the true state of the case
is
perceived,
easy to understand a matter which, on
any
cut-
and-dried theory of the constitution, can only with

difficulty
be explained, namely, the relation occupied
is
by modern Cabinets towards the House of Lords. It certain that for more than half a century Ministries
have constantly existed which did not command the confidence of the Upper House, and that such Minis-

tries
455
have, without meeting
much
opposition on the Chapter

L
part of the Peers, in the main carried out a policy of
which the Peers did not approve. It is also certain that while the Peers have been forced to pass many bills which they disliked, they have often exercised large though very varying control over the course
of legislation.
Between 1834 and 1840 the Upper

re-
House, under the guidance of Lord Lyndhurst,

sures
peatedly and with success opposed Ministerial mea-
which had passed the House of Commons. For many years Jews were kept out of Parliament simply because the Lords were not prepared to admit them.
you search for the real cause of this state of things, you will find that it was nothing else than the fact, constantly concealed under the misleading rhetoric of party warfare, that on the matters in question the
If
electors
were not prepared to support the Cabinet in
taking the steps necessary to compel the submission

of the
House of Lords.
On any
matter upon which
the electors are firmly resolved, a Premier,

efiiect
the representative of the House of
who is in Commons,
has the means of coercion, namely, by the creation of

Peers.
In a country indeed like England, things are
rarely carried to this extreme length.
The knowledge
its
that a power can be exercised constantly prevents
being actually put in force.

life
;
This
is
so even in private
most men pay

it
their debts without being driven
were absurd to suppose that the possible compulsion of the Courts and the sheriff" has
into Court, but
not a good deal to do with regularity in the payment The acquiescence of the Peers in measures of debts.
which the Peers do not approve arises at bottom from the fact that the nation, under the present constitution,
4S6

power of enforcing, through very cum-
Part
III.
possesses the
bersome machinery, the submission of the Peers to the

conventional rule that the wishes of the House of
Lords must
finally give
way
to the decisions of the rule itself is vague,

it
House of Commons.
But the
and
the degree of obedience which
obtains
is
varying,
because the will of the nation
is
often not clearly
expressed, and further, in this as in other matters,

is itself liable
to variation.
If the
smoothness with
which the constitutional arrangements of modern England work should, as it often does, conceal from
us the force by which the machinery of the constitution
is
kept working, we
may
with advantage consult
the experience of English colonies.
No better example
can be given of the methods by which a Eepresentative
Chamber attempts
in the last resort to compel the

is
obedience of an Upper House than
afforded
by -the
varying phases of the conflict which raged in Victoria during 1878 and 1879 between the two Houses of the
Legislature.
There the Lower House attempted to

efiect,
enforce upon the Council the passing of measures
which the Upper House did not approve, by, in

inserting
the substance
Bill.
of
a rejected bUl in the
Appropriation
the Appropriation
Bill.
The Council in turn threw out The Ministry thereupon dis-
magistrates, county court judges, and they had no longer the means to pay, and attempted to obtain payments out of the Treasury
officials,
missed
others,
whom
on the strength of resolutions passed solely by the Lower House. At this point, however, the Ministry came into conflict with an Act of Parliament, that is,
with the law of the land.
The contest continued under difierent forms until a change in public opinion

finally led to the election of a
457
could act with the Council.

contest
Lower House which With the result of the

Three points, however,
Chapter
^^'
we
are not concerned.
should be noticed.
The
conflict
was ultimately
ter-
minated in accordance with the expressed will of the electors each party during its course put in force constitutional powers hardly ever in practice exerted
;
in
England
as the Council
was
elective, the
Ministry
be-
did not possess any means of producing
harmony
tween the two Houses by increasing the number of the Upper House. It is certain that if the Governor could have nominated members of the Council, the Upper House would have yielded to the will of the
Lower, in the same way in which the Peers always
in the last resort
bow
to the will of the
House of
is
Commons.
How
is
it,
again,
that
all
the understandings why
the
which are supposed to regulate the personal relation Muenoe of the Crown to the actual work of government are ^*^*^^ ^^^_ ^^^^va. marked by the utmost vagueness and uncertainty ?
?
The matter
is,
to a certain extent at
any
rate,
explained by the same train of thought as that which
we have followed out in regard between the House of Lords and the
revelations of political
to
the
relation
Ministry.
The
memoirs and the observation quite clear two points, both of which are curiously concealed under the mass of antiquated formulas which hide from view the real working of our institutions. The first is, that while
of
modern public
life
make
every act of State

the real
Cabinet.
done in the name of the Crown, executive government of England is the The second is, that though the Crown
is
has no real concern in a vast number of the trans-
458
LAW AND
name, no
Part
III.
actions which take place under the Eoyal
one
of
the
King's
predecessors,
nor,
it
may
be
presumed, the King himself, has ever acted upon

act upon the maxim originated by "the King reigns but does not govern." George the Third took a leading part in the work of administration his two sons, each in different degrees and in different ways, made their personal will and predilections tell on the government of the
or affected to
Thiers, that
country.
No
one really supposes that there
is
not
a sphere, though a vaguely defined sphere, in which the personal will of the
tution very considerable influence.
of this state of things
is,
King has under the constiThe strangeness or rather would be to any one
his
who had not been accustomed from
youth to the
mystery and formalism of English constitutionalism, that the rules or customs which regulate the personal
vague and undefined. any one who has followed these chapters. The personal inaction of the
are utterly
Crown
The reason
of this will, however, be obvious to
fluence of the
Crown
exists,
not because acts of State
name, but because namely Parliament, nor the political sovereign, namely the nation, wishes that the reigning monarch should be without personal weight in the government of the country. The customs or understandings which regulate or control
are done' formally in the Crown's
neither the legal sovereign power,
the exercise
of
the
King's personal influence
are
vague and
the matter
rules,
indefinite,
is
both because statesmen feel that one hardly to be dealt with by precise
and
and because no human being knows how far what extent the nation wishes that the voice of the reigning monarch should command attention.
to
459
All that can be asserted with certainty is, that on this matter the practice of the Crown and the wishes of
Chapter
George the Third made no use of the so-called veto which had been used by William the Third; but he more
than once insisted upon his will being obeyed in matters of the highest importance. None of his
successors
the nation have from time to time varied.
have
after
the
manner
of George
the
Third made their personal will decisive as to general

measures of policy.
In small things as
much
as in
great one can discern a tendency to transfer to the
Cabinet powers once actually exercised by the King.
The scene between Jeanie Deans and Queen Caroline is a true picture of a scene which might have taken place under George the Second George the Third's firmness secured the execution of Dr. Dodd. At the present day the right of pardon belongs in fact to the Home Secretary. A modern Jeanie Deans would be referred to the Home Office the question whether a popular preacher should pay the penalty of his crimes would now, with no great advantage to the country, be answered, not by the King, but
; ;
by the Cabinet. What, again,
is
the real
effect
9
f
produced by the
things,
of
The
effect
E X.survival 01 prerogative
^
powers
"^ surviving preof
namely,
Here we must distinguish two different the way in which the existence
affects
&own.
the
the
prerogative
the
in
personal
influence
of
King, and the
way
which
it affects
the power of
the executive government.
The
in the
fact that all important acts of State are
done
name
of the
King and
in
most cases with the
cognisance of the King, and that
many
of these acts.
46o
LAW AND
Part in. such, for
example, as the appointment of judges or the

like, are
creation of bishops, or the conduct of negotiations
with foreign powers and the
exempt from
the direct control or supervision of Parliament, gives

the reigning monarch an opportunity for exercising
great
influence
on
the
conduct
of
affairs
and
Bagehot has marked out, with his usual subtlety, the mode in which the mere necessity under which Ministers are placed of consulting with and giving
information to the
King
secures a wide sphere for the
exercise of legitimate influence

ruler.
by a
constitutional
But though
confers
real
it
were a great error to underrate the
extent to which the formal authority of the
Crown
power upon the King, the

is
important matter
Cabinet.
to notice the
way
in
far more which the
survival of the prerogative affects the position of the
hands of the Premier and his colleagues, large powers which can be exercised, and constantly are exercised, free from Parliamentary
It leaves in the
control.
affairs.
This
is
especially the
case in all foreign
Parliament
may
censure a Ministry for mis-
conduct in regard to the foreign policy of the country. But a treaty made by the Crown, or in fact by the
Cabinet,
is
valid without the authority or sanction of

;
Parliament and it is even open to question whether the treaty-making power of the executive might not
in
some
1
cases override the
law of the
;
land.^
However
See the Parlement Beige, 4 P. D.

the
"Whether
power"
[of the
Crown
to
129 5 P. D. (C. A.) 197. compel its subjects to obey
the provisions of a treaty] " does exist in the case of treaties of peace, "and whether if so it exists equally in the case of treaties akin to a " treaty of peace, or whether in both or either of these cases inter" ference with private rights can be authorised otherwise than by the

this
may
all
be, it is not Parliament,
but the Ministry, Chapter

^^^'
who
direct the
diplomacy of the nation, and virtually
decide
questions of peace or war.
The founders of
the American
Union showed
their full appreciation of
the latitude
left to
the executive government under
the English constitution
.able of their innovations
by one upon
the
of the
it.
most remarknot
of
;
They lodged the

the
treaty-making
further
power
the
in
hands,
President, but of the President and the Senate
and
gave to
Senate a right of
office.
veto on
Presidential appointments to
These arrange-
ments supply a valuable illustration of the way in which restrictions on the prerogative become restrictions on the discretionary authority of the executive. Were the House of Lords to have conferred upon it by statute the rights of the Senate? the change in our institutions would be described
.
with technical correctness as the limitation of the
making of But the true treaties and of official appointments. effect of the constitutional innovation would be to place a legal check on the discretionary powers of
prerogative of the
as regards the
Crown
the Cabinet.
The survival of the prerogative, conferring as it does wide discretionary authority upon the Cabinet, involves a consequence which constantly escapes attention. It immensely increases the authority of the House of Commons, and ultimately of the conMinisstituencies by which that House is returned.
ters
must
in the exercise of all discretionary
powers
" legislature, are grave questions
upon which,
their Lordships do not

v.
"find it necessary to express an opinion." A. C. 491, 497, judgment of P. C.
Walker
Baird [1892],
462

predominant authority in the
chief
Part
III.
inevitably obey the

State.
When
the
King was the
member
of
the sovereign body, Ministers were in fact no less than

in
history
name the King's servants. At periods of our when the Peers were the most influential
in the country, the conduct of the Ministry
body
the
represented with more or less fidelity the wishes of

Peerage.
Now
that
the
House of Commons
all
has become by far the most important part of the

sovereign body, the Ministry in
matters of
dis-
cretion carry out, or tend to carry out, the will of the
House.
When however the

legislation,
Cabinet cannot act except
by means of
into play.
other considerations
law requires the sanction of

can increase
come the House

statutory
of Lords.
No government
its
authority without obtaining the sanction of the
Upper
Thus an Act of Parliament when passed represents, not the absolute wishes of the House of Commons, but these wishes as modified by the influence of the House of Lords. The Peers no doubt
Chamber.
"
will in the long

electorate.
run conform to the wishes of the But the Peers may think that the electors
any rate be indiff'erent to, a which meets with the approval of the House of Commons. Hence while every action of the Cabinet which is done in virtue of the prerogative is in fact though not in name under the direct control of the
will disapprove of, or at
bill
representative
chamber,
all
powers which can be
exercised only in virtue of a statute are

controlled in their creation
of Lords
;
more
or less
will of the House they are further controlled in their exercise by the interference of the Courts. One example, taken from the history of recent years, illustrates
by the

the practical effect of this difference.^
463
In 1872 the Chapter

L
Ministry of the day carried a

of
bill
through the House

the
Commons
The
abolishing the system of purchase in the

bill
army.
Cabinet
the
was rejected by the Lords

that
i.e.
then
discovered
purchase
could
be
abolished by Eoyal warrant,

like
exercise
of the
prerogative.^
was then and there abolished.
by something very The system The change, it will
probably be conceded, met with the approval, not

only of the Commons, but of the electors.
But
it
will
equally be conceded that had the alteration required

statutory authority the system of purchase
might
day.
have continued in force up to the

in this particular instance to give
present
The existence of the prerogative enabled the Ministry

immediate
is
effect to
the wishes of the electors, and this
the result which,
under the circumstances of modern politics, the survival The of the prerogative will in every instance produce.
prerogatives of the
of the people,
Crown have become the privileges and any one who wants to see how widely
these privileges
House
of
may conceivably be stretched as the Commons becomes more and more the direct
the powers
representative of the true sovereign, should weigh well
the words in which Bagehot describes
by the Crown without consulting Parliament and should remember that these powers can now be exercised by a Cabinet
which can
still
legally be exercised
;
who
1
are really servants, not of the Crown, but of a
On
this subjest there
are remarks worth noting in Stephen's
Life of Fawcett, pp. 271, 272. 2 Purchase was not abolished

legal
by the prerogative
sense of
the term.
A
effect.
statute
in the ordinary prohibited the sale of offices
except in so far as might be authorised in the case of the army by Koyal warrant. When therefore the warrant authorising the sale was
cancelled the statute took
464
LAW AND
Part
III.
representative chamber which in its turn obeys the
behests of the electors. " I said in this book that it would very much sur" prise people if they were only told how many things
" the Queen could do without consulting Parliament, " and it certainly has so proved, for when the Queen " abolished purchase in the army by an act of pre-
"rogative (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
Not to mention "other things, she could disband the army (by law "she cannot engage more than a certain number of " men, but she is not obliged to engage any men)
" she could dismiss
all
" do without consulting Parliament.
the
oflBcers,
from the General

she
"commanding-in-chief downwards;
" miss all the sailors too
;
could
dis-
she could
sell off all
our
"ships-of-war and
"
all
our naval stores;
she could
make
war
a peace
for the
by the
in
;
sacrifice of Cornwall,
and begin
"a
conquest of Brittany.
" every citizen
the United Kingdom,
She could make male or
" female, a peer she could make every parish in " the United Kingdom a ' university she could " dismiss most of the civil servants she could pardon
' ; ;
"
all
offenders.
In a word,
all
the
Queen could by
" prerogative
upset
the action of civil govern-
"ment within the government, could disgrace the "nation by a bad war or peace, and could, by dis" banding our forces, whether land or sea, leave us " defenceless against foreign nations." ^
If
into
1
government by Parliament is ever transformed government by the House of Commons, the
Bagehot, English Constitution, Introd. pp. xxxv. and xxxvi.

transformation
effected
will,
it
4'6S
may
be
conjectured,
be
chapter
by use of the prerogatives of tbe Crown.
L
Conclusion
results
Let us cast back a glance for a moment at the which we have obtained by surveying the
its legal side.
English constitution from
The
constitution
appear a " sort

different parts
;
when thus looked at ceases to it is seen to consist of two of maze " the one part is made up of under;
standings, customs, or conventions which, not being
enforced by the Courts, are in no true sense of the
laws
the other part
enforced
is made up of rules by the Courts, and which, whether embodied
word which are
in statutes or
not, are
laws in the strictest sense
of
the
term,
and make up the true law of the

is,
constitution.
This law of the constitution

found, in spite of
all
we have
further
appearances to the contrary, the
true foundation on which the English polity rests, and

it
gives in truth even to the conventional element of
constitutional
law such
force as it really possesses.^

is
The law of the
constitution, again,
in all its
two guiding principles, which have been gradually worked out by the more or less
branches the result of
conscious efforts of generations of English statesmen
and lawyers.
The
first
of these principles
is
the sovereignty of
Parliament, which means in effect the gradual transfer

of power from the
Crown
to a
body which has come

This curious
more and more

1
to represent the nation.^
See pp. 435-450, ante. words may be in place as to the method by which this The leaders of the English people in transfer was accomplished. their contests with Royal power never attempted, except in periods
^
A few
466

by which the personal authority
:
Part
III.
process,
has been turned into the sovereignty of Parliament, has had two effects it has put an end to
the arbitrary powers of the
intact
State.
;
King the King in

of the
monarch it has preserved and undiminished the supreme authority of the

of these
principles
is
The second
what
have
supremacy throughout all our institutions of the ordinary law of the land. This rule of law, which means at bottom the right of the Courts to punish any illegal act by whomsoever
committed,
tions.
is
called the " rule of law," or the
of the very essence of English institu-
If the sovereignty of
Parliament gives the
form, the supremacy of the law of the land determines
the substance of our constitution.
The English con-
of revolutionary violence, to destroy or dissipate the authority of
Their policy, continued through as head of the State. was to leave the power of the King untouched, but to bind down the action of the Crown to recognised modes of procedure which, if observed, would secure first the supremacy of the law, and The King was acknowledged ultimately the sovereignty of the nation. to be supreme judge, but it was early established that he could act the King was recognised judicially only in and through his Courts as the only legislator, but he could enact no valid law except as King in Parliament ; the King held in his hands all the prerogatives of the executive government, but, as was after long struggles determined, he could legally exercise these prerogatives only through Ministers who were members of his Council, and incurred responsibility for his acts. Thus the personal will of the King was gradually identified with and transformed into the lawful and legally expressed will of the Crown. This transformation was based upon the constant use of fictions. It bears on its face that it was the invention of lawyers. If proof of this
the
centuries,
;
Crown
were wanted, we should find it in the fact that the " Parliaments " of France towards the end of the eighteenth century tried to use against the fully-developed despotism of the French monarchy, fictions recalling the arts by which, at a far earlier period, English constitutionalists had nominally checked the encroachments, while really diminishing the sphere, of the royal prerogative. Legal statesmanship bears everywhere the same character. See Eocquain, L'Esprit Bevolutionnaire avant la Bevolution.

which appears when looked at from one point of view to be a mere collection of practices or customs, turns out, when examined in
stitution
'
in
short,
Chapter
its
legal aspect,
to be
more truly than any other
polity in the world, except the Constitution of the
United
States,^
based on the law of the land.
When we
underlie
see
what
are the principles
which truly
the English polity,
we
by
also perceive
how
rarely they have been followed
foreign statesmen
who more
England.
or less intended to copy the constitution of
The sovereignty of Parliament
is
an idea
fundamentally inconsistent with the notions which
govern the inflexible or rigid constitutions existing in
by
far
the most important of the countries which
have adopted any scheme of representative government.
The " rule of law "
is
a conception which in
the United States indeed has received a development
beyond that which it has reached in England but it is an idea not so much unknown to as deliberately rejected by the constitution-makers of France, and of other continental countries which have followed French guidance. For the supremacy of the law of
;
the land
means
in the last resort the right of the
judges to control the executive government, whilst the separation des pouvoirs means, as construed by
Frenchmen,- the right of the government to control the judges. The authority of the Courts of Law as
understood in England can therefore hardly coexist

well worth notice that the Constitution of the United a very considerable extent on judge-made law. Chief-Justice Marshall, as the " Expounder of the Constitution," may almost be reckoned among the builders if not the
^
It
is
States,
as it actually exists, rests to
See for a collection of his judgments on constitutional questions. The Writings of John Marshall, late ChiefJustice of the United States, on the Federal Constitution.
founders of the American polity.
468
Part III
system of droit administratif as it prevails We may perhaps even go so far as to say that English legalism is hardly consistent with the
-with the
in France.
existence of an official
resemblance to
tion."
body which bears any true what foreigners call "the administra-
To say this is not to assert that foreign forms of government are necessarily inferior to the
English constitution, or unsuited for a civilised and
free
people.
All
that necessarily results from
an
analysis of our institutions,
and a comparison of them

is,
with the institutions of foreign countries,

English constitution
is
still
that the
marked,
than
is
generally supposed,
by peculiar
that these peculiar characteristics
more deeply and may be summed up

far
features,
in the combination of Parliamentary Sovereignty with
the Eule of Law.
APPENDIX
NOTE
Twelve
I
RIGIDITY OF FRENCH CONSTITUTIONS

constitutions ^ have been framed by French constitutionmakers since the meeting of the States General in 1789.
stitutions for
results.
survey of the provisions (if any) contained in these conthe revision thereof leads to some interesting
First, With but two exceptions, every French constitution has been marked by the characteristic of " rigidity." Frenchmen of all political schools have therefore agreed in the assumption, that the political foundations of the State must be placed beyond the reach of the ordinary legislature, and ought to be changed, if at all, only with considerable difficulty, and generally after
such delay as may give the nation time for maturely reflecting over any proposed innovation. In this respect the Monarchical Constitution of 1791 is noteThat Constitution formed a legislature consisting of worthy. one Assembly, but did not give this Assembly or Parliament any The only body endowed authority to revise the Constitution. with such authority was an Assembly of Eevisi'on {AssemlUe de EMsion), and the utmost pains were taken to hamper the con-
vening and to limit the action of the Assembly of Kevision.

of 1792; (2) the Republican Conthe Republican Constitution of 1795 (Directory), 5 (5) Fruot. An. III. ; (4) the Consular Constitution of the Year VIII. (1799) Senate the Imperial Constitution, 1804 ; (6) the Constitution proclaimed by the and Provisional Government, 1814; (7) the Constitutional Charter, 1814 remodelling the (Restoration); (8) the Additional Act (Acte Additionnel), 1815, of 1830 (Louis Philippe) ; Imperial Constitution (9) the Constitutional Charter 1852 (12) (11) the Second Imperial Constitution, (10) the Republic of 1848 See generally Helie, Les Constitutions de la the present Republic, 1870-75. ed.). France ; and Duguit et Monnier, Les Constitutions de la France (Deuxitoe French Constitutions It is possible either to lengthen or to shorten the list of the extent of according to the view which the person forming the list takes of a new constitution. the in the arrangements of a state necessary to form
1
Viz. (1)
The Monarchical Constitution

;
stitution
of 1793
(3)
change
469
47o
APPENDIX
The provisions enacted with

follows
years.
:
An ordinary Legislative Assembly was

No
this object
were in substance as
elected for
two
three
their
On
three
lative
change in the Constitution could take place until successive Legislative Assemblies should have expressed wish for a change in some article of the Constitution. resolution in favour of such reform having been carried in successive legislatures or Parliaments, the ensuing Legis-
Assembly was to be increased by the addition of 249 members, and this increased Legislature was to constitute an Assembly of Revision. This Assembly of Revision was tied down, as far as the end could be achieved by the words of the Constitution, to debate on those matters only which were submitted to the consideration of the Assembly by the resolution of the three preceding legislatures. The authority, therefore, of the Assembly was restricted to a
partial revision of the Constitution.
The moment
this revision
was finished the 249 additional members were to withdraw, and the Assembly of Revision was thereupon to sink back into the position of an ordinary legislature. If the Constitution of 1791 had continued in existence, no change in its articles could, under any circumstances, have been effected in less than six years. But this drag upon hasty legislation was not, in the eyes of the
authors of the Constitution, a sufl&cient guarantee against inconsiderate innovations.^ They specially provided that the two consecutive legislative bodies which were to meet after the proclamation of the Constitution, should have no authority even to propose the reform of any article contained therein. The intended consequence was that for at least ten years (1791-1801) the bases of the French government should remain unchanged and unchangeable.^ The Republicans of 1793 agreed with the Constitutionalists of 1791 in placing the foundations of the State outside the limits of ordinary legislation, but adopted a different method of revision. Constitutional changes were under the Constitution of 1793 made dependent, not on the action of the ordinary legislature, but on the will of the people. Upon the demand of a tenth of the primary assemblies in more than half of the Departs
ments of the Republic, the legislature was bound to convoke all the primary assemblies, and submit to them the question of convening a national convention for the revision of the Constitution. The vote of these Assemblies thereupon decided for
' resolution was proposed, though not carried, that the articles of the Constitution should be unchangeable for period of thirty years. H^lie, Lts GonstUutions de la France, p. 302. ^ See Constitution of 1791, Tit. vii.
471
or against the meeting of a convention, and therefore whether a

revision should take place.
vention, elected in the
Assuming that they decided in favour of a revision, a consame manner as the ordinary legislature, was to be forthwith convened, and to occupy itself as regards
the Constitution with those subjects only which should have On the caused (pnt motivi) the convention to be assembled.
expressed wish, in short, of the

legislature
majority of the citizens,
was to be convoked with a limited authority to
reform certain articles of the Constitution. ^ The Republican and Directorial Constitution again, of 1795, rested, like its predecessors, on the assumption that it was of primary importance to make constitutional changes difficult, and also recognised the danger of again creating a despotic sovereign assembly like the famous, and hated. Convention. The devices by which it was sought to guard against both sudden innovations, and the tyranny of a constituent assembly, can be understood only by one who remembers that, under
the Directorial
Constitution, the legislature consisted of
two
bodies, namely, the Council of Ancients,
and the Council
of Five
proposal for any change in the Constitution was from the Council of Ancients, and to be After such a proratified by the Council of Five Hundred. posal had been duly made and ratified thrice in nine years, at
Hundred.
necessarily to proceed
periods distant from
each other by at least three years, an This Assembly was to be convoked. constituted what the Americans now term a " constitutional It was a body elected ad hoc, whose meeting did convention." not in any way suspend the authority of the ordinary legislature, The authority of the Assembly of Revision or of the Executive. was further confined to the revision of those articles submitted
Assembly
of Revision
to its consideration
for
by the legislature. It could in no case more than three months, and had no other duty than
{prcjet de reforme) for
sit
to
prepare a plan of reform When once this of the primary Assemblies of the Republic. duty had been performed, the Assembly of Revision was ipso The Constitution not only carefully provided facto dissolved. that the Assembly of Revision should take no part in the government, or in ordinary legislation, but also enacted that until the changes proposed by the Assembly should have been accepted
the consideration
by the people the existing Constitution should remain in force. The Consular and Imperial Constitutions, all with more or less
1 Constitution 463, 464.
du 5 Fructldor, An.
III.,
articles 336-350,
H^lie,
pp. 436,
472
APPENDIX
made changes
in the Constitution depend,
first,
directness,
upon
a senatus consultum or resolution of the Senate ; and, next, on the ratification of the change by a popular vote or plebiscite.^ This may be considered the normal Napoleonic system of constitutional reform. It makes all changes dependent on the will of
a body, in
efiect,
appointed by the Executive, and makes them
subject to the sanction of a popular vote taken in such a
manner
that the electors can at best only either reject or, as in fact they always have done, afiirm the proposals submitted to them by the Executive.
No opportunity is
given for debate or for amendments
of the proposed innovations.
We may
assume that even under
the form of Parliamentary Imperialism sketched out in the Additional Act of 23rd April 1815, the revision of the Constitution was intended to depend on the will of the Senate and the ratification of the people.
The Additional Act

its
is,
however, in one
respect very remarkable.
It absolutely prohibits
any proposal
which should have for
object the Restoration of the Bourbons,
the re-establishment of feudal rights, of tithes, or of an established Church {cnlte priviUgii et dominant), or which should in any way revoke the sale of the national domains, or, in others words, should unsettle the title of French landowners. This attempt to place certain principles beyond the influence, not only of ordinary legislation but of constitutional change, recalls to the student of English history the Cromwellian Constitution of 1653, and the determination of the Protector that certain principles should be regarded as " fundamentals " not to be touched by Parliament,
would appear, by any other body in the State. The Eepublic of 1848 brought again into prominence the distinction between laws changeable by the legislature in its
nor, as far as
ordinary legislative capacity, and articles of the Constitution changeable only with special difficulty, and by an assembly specially elected for the purpose of revision. The process of change was elaborate. The ordinary legislative body was elected for three years. This body could not itself modify any constitutional article. It could however, in its third year, resolve that a total or partial revision of the Constitution was desirable ; such a resolution was invalid unless voted thrice at three sittings, each divided from the other by at least the period of a month,
unless affirmed
500 members voted, and unless the resolution were by three-fourths of the votes given.
On the resolution in favour of a constitutional change being duly carried, there was to be elected an assembly of revision. This assembly, elected for three months only, and consisting of a
^
See Hîe, Les Constitutions de la France, pp. 696-698.

larger
itself
473
number than the ordinary legislature, was hound to occupy with the revision for which it was convoked, but might, if It was therefore intended to be necessary, pass ordinary laws. a constituent body superseding the ordinary legislature.^ The second Empire revived, in substance, the legislative system of the first, and constitutional changes again became dependent upon a resolution of the Senate, and ratification by a popular vote.^ The existing Republic is, in many respects, unlike any preceding polity created by French statesmanship. The articles of the Constitution are to be found, not in one document, but in several constitutional laws enacted by the National Assembly which met in 1871. These laws however cannot be changed the Senate and the Chamber of by the ordinary legislature The two Deputies acting in its ordinary legislative character. Chambers, in order to effect a change in the constitutional manner, must, in the first place, each separately resolve that a revision of the Constitution is desirable. When each have passed
this
resolution, the
two Chambers meet
together,
and when
thus assembled and voting together as a National Assembly, or
power to change any part, as they have in fact changed some parts, of the constitutional laws.^ I have omitted to notice the constitutional Charter of 1814, granted by Louis XVIII., and the Charter of 1830, accepted by The omission is intentional. Neither of these Louis Philippe. documents contains any special enactments for its amendment. An Englishman would infer that the articles of the Charter
Congress, have
could be abrogated or amended by the process of ordinary legislation. The inference may be correct. The constitutionalists of 1814 and 1830 meant to found a constitutional monarchy of the English type, and therefore may have meant the Crown and the two Houses to be a sovereign Parliament. The inference howLouis ever, as already pointed out,* is by no means certain.
XVIII.
may have meant that the
articles of a constitution
granted
as a charter
by the Crown, should be modifiable only
at the will
Louis Philippe may certainly have wished that of the grantor. the foundations of his system of government should be legally However this may have been, one thing is clear, immutable. namely, that French constitutionalists have, as a rule, held firmly to the view that the foundations of the Constitution ought not
to be subject to
legislature.
See Constitution, 1848, art. 111. 32 Hîe, p. 1170. s See Constitutional Law, 1875, art. 8. * See pp. 118-120, anU.
1
sudden changes at the
will
of
the ordinary
2 Ihid. 1852, arts. 31,
474
APPENDIX
Secondly, French statesmen have never fully recognised the inconveniences and the perils which may arise from the excessive rigidity of a constitution. They have hardly perceived that the power of a minority to place a veto for a period of many years on a reform desired by the nation provides an excuse or a
reason for revolution. The authors of the existing Eepublic have, in this respect, They have indeed preserved learnt something from experience. the distinction between the Constitution and ordinary laws, but they have' included but a small number of rules among constitutional articles, and have so facilitated the process of revision as to make the existing chambers all but a sovereign Parliament.
this is on the whole a gain or not, is a point on which were most unwise to pronounce an opinion. All that is here insisted upon is that the present generation of Frenchmen have perceived that a constitution may be too rigid for use or for
Whether
it
safety. 1
Thirdly, An English critic smiles at the labour wasted in France on the attempt to make immutable Constitutions which, The on an average, have lasted about ten years apiece. edifice, he reflects, erected by the genius of the first great National Assembly, could not, had it stood, have been legally that is, till the date when, after three constialtered till 1801 tutions had broken down, Bonaparte was erecting a despotic Empire. The Directorial Eepublic of 1795 could not, if it had lasted, have been modified in the smallest particular till 1804, at which date the Empire was already in full vigour. But the irony of fate does not convict its victims of folly, and, if we look at the state of the world as it stood when France began her experiments in constitution-making, there was nothing ridiculous in the idea that the fundamental laws of a country ought to be changed but slowly, or in the anticipation that the institutions of France would not require frequent alteration. The framework of the English Constitution had, if we except the Union between England and Scotland, stood, as far as foreigners could observe, unaltered for a century, and if the English Parliament was theoretically able to modify any institution whatever, the Parliaments of George III. were at least as little likely to change any law which could be considered constitutional as a modern Parliament to abolish the Crown. In fact it was not till nearly forty years after the meeting of the States General
See as to the oiroumstanoes which explain the character of the existing ConOovernments and Parties in Continental Europe, i. pp. 7-14, and note that the present constitution has already lasted longer than any constitution which has existed in France since 1789.
'
stitution of France, Lowell,
475
(1829) that any serious modification was made in the form of the government of England. No one in France or in England could a century ago foresee the condition of pacific revolution to vfhich modern Englishmen had become so accustomed as hardly to feel The newly-founded Constitution of the United its strangeness. States showed every sign of stability, and has lasted more than a century without undergoing any material change of form. It was
reasonable enough therefore for the men of 1789 to consider that a well-built constitution might stand for a long time without the need of repair.
Fourthly,
have been,
if
The errors committed by French constitutionalists we may judge by the event, in the main, twofold.
Frenchmen have always been blind to the fact that a constitution may be undermined by the passing of laws which, without They nominally changing its provisions, violate its principles. have therefore failed to provide any adequate means, such as those adopted by the founders of the United States, for rendering They have in the next unconstitutional legislation inoperative.
place, generally,
of
though not invariably, underrated the dangers convoking a constituent assembly, which, as its meeting suspends the authority of the established legislature and Executive, is likely to become a revolutionary convention. Fifthly, The Directorial Constitution of 1795 is, from a theoretical point of view, the most interesting among the French
experiments in the art of constitution-making.
Its authors
knew
by experience the risks to which revolutionary movements are exposed, and showed much ingenuity in their devices for miniIn mising the perils involved in revisions of the Constitution. entrusting the task of revision to an assembly elected ad hoc, which met for no other purpose, and which had no authority to interfere with or suspend the action of the established legislative bodies or of the Executive, they formed a true constitutional convention in the American sense of that term,^ and, if we may judge by transatlantic experience, adopted by far the wisest method hitherto invented for introducing changes into a written and rigid constitution. The establishment, again, of the principle that all amendments voted by the Assembly of Eevision must be referred to a popular vote, and could not come into force until accepted by the people, was an anticipation of the Eeferendum which has now taken firm root in Switzerland, and may, under one shape or another, become in the future a recognised part of all democratic
See the word "Convention" in the American Encyclcâdia of American and Bryoe, American Crnnmonwealth, i. (3rd ed.), App. on Constitutional Conventions, p. 667.
'
Science;

476
APPENDIX
polities. It is worth while to direct the reader's attention to the ingenuity displayed by the constitution-makers of 1795, both because their resourcefulness stands in marked contrast with the want of inventiveness which marks the work of most French constitutionalists, and because the incapacity of the Directorial Government, in the work of administration, has diverted attention from the skill displayed by the founders of the Directorate
in
some parts
of their constitutional creation.
NOTE
II
DIVISION OF POWERS IN FEDERAL STATES
STUDENT who wishes to understand the principles which, under a given system of federalism, determine the division of authority between the nation or the central government on the one hand, and the States on the other, should examine the
following points -first, whether'it is the National Government or the States to which belong only " definite " powers, i.e. only the
:
powers definitely assigned to it under the Constitution ; secondly whether the enactments of the Federal legislature can be by any
tribunal or other authority nullified or treated as void ; thirdly, to what extent the Federal government can control the legislation of the separate States
of the
;
and
fourthly,
what
is
body
(if
such there be) having authority to
the nature amend the
Constitution.
It is interesting to
compare on these points the provisions of
five different federal systems.
A. The United States. 1. The powers conferred by the Conon the United States are strictly " definite " or defined the powers left to the separate States are "indefinite" or undefined. " The powers not delegated to the United States by the Constitution
by it to the States, are reserved to " the States respectively, or to the people." ^ The consequence is that the United States (that is, the National Government) can claim no power not conferred upon the United States either
"stitution, nor prohibited
by the Constitution. Every State in the Union can claim to exercise any power belonging to an independent nation which has not been directly or indirectly taken away from the States by the Constitution.
directly or impliedly
'
Constitutiou of United States,
Amendment
10.
DIVISION OF
2.
POWERS IN FEDERAL STATES

is
477
Federal legislation
as
much
as the legislation of the
States.
An
subject to the Constitution enactment, whether of
Congress or of a State legislature, which is opposed to the Constitution, is void, and will be treated as such by the Courts. 3. The Federal government has no power to annul or disallow State legislation. The State Constitutions do not owe their existence to the Federal government, nor do they require its sanction. The Constitution of the United States, however, guarantees to every State a Eepublican Government, and the Federal government has, it is submitted, the right to put down, or rather is under the duty of putting down, any State Constitution which is not "Republican," whatever be the proper
definition of that term.
Changes in the Constitution require for their enactment it would appear that constitutionally no State can be deprived of its equal
4.
the sanction of three-fourths of the States, and

suffrage in the Senate without its consent.^
B.
The
Sviiss Confederation.
1.
The
authority of the national
government or Federal power is definite, the authority of each of the Cantons is indefinite.^ 2. Federal legislation must be treated as valid by the Courts. But a law passed by the Federal Assembly must, on demand of either 30,000 citizens or of eight Cantons, be referred to a It would appear that popular vote for approval or rejection. the Federal Court can treat as invalid Cantonal laws which
violate the Constitution.
3.
The Federal
authorities have no
amendments
and need the guarantee of the Confederacy. This guarantee will not be given to articles in a Cantonal Constitution which are repugnant to the Federal Constitution, and amendments to a Cantonal Constitution do not, I am informed, come into force until they receive the Federal guarantee. 4. The Federal Constitution can be revised only by a combined majority of the Swiss people, and of the Swiss Cantons. No amendment of the Constitution can be constitutionally effected which is not approved of by a majority of the Cantons. C. The Canadian Dominion. I. The authority of the Dominion,
annulling a Cantonal law.
thereto,
power But the Cantonal
of disallowing or
Constitutions,
is indefinite or undefined ; the authority Provinces is definite or defined, and indeed of the States or defined within narrow limits.*
or Federal,
government
'
"
Constitution of United States, art. 5. See Constitution Fed^rale, art. 3. s See British North America Act, 1867,
ss.
91, 92.
478
APPENDIX
From a federal point of view this is the fundamental difference between the Constitution of the Dominion on the one hand, and the Constitution of the United States or of Switzerland on the other. The Dominion Parliament can legislate on all matters not
The Proexclusively assigned to the Provincial legislatures. vincial or State Legislatures can legislate only on certain matters
Congress, on the other hand, to them. or the Swiss Federal Assembly, can legislate only on certain definite matters assigned to it by the Constitution ; the States
exclusively assigned
or Cantons retain all powers exercised
wise not specially taken

2.
is
by legislation or otheraway from them by the Constitution.

Dominion, Parliament
{i.e.
The
legislation of the Federal, or
the British North America Act, 1867) as the legislation of the Provinces. Any Act passed, either by the Dominion Parliament or by a Provincial Legislature, which is inconsistent with the Constitution is void, and will be treated as void by the Courts. 3. The Dominion Government has authority to disallow the Act passed by a Provincial legislature. This disallowance may be exercised even in respect of Provincial Acts which are constitutional, i.e. within the powers assigned to the Provincial legislatures under the Constitution.^ 4. The Constitution of the Dominion depends on an Imperial
as
much
subject to the Constitution
it can, therefore, except as provided by the statute be changed only by an Act of the Imperial Parliament. The Parliament of the Dominion cannot, as such, change any part of the Canadian Constitution. It may however, to a limited extent, by its action when combined with that of a Provincial legislature, modify the Constitution for the purpose of producing uniformity of laws in the Provinces of the Dominion.^ But a Provincial legislature can under the British North America Act, 1867, s. 92, sub-s. 1, amend the Constitution of The law, however, amending the Provincial Conthe Province. stitution is, in common with other Provincial legislation, subject to disallowance by the Dominion government. D. The Commmwealth of Australia. 1. The authority of the Federal government is definite; the authority of each of the States, vested in the Parliament thereof, is indefinite.^ 2. Federal legislation {i.e. the legislation of the Commonwealth Parliament) is as much subject to the constitution as the legislation of the State Parliaments. An enactment whether of the
statute
itself,
' See British North America Act, 1867, o. 90 ; and Bourinot, Practice and Procedure, pp. 76-81. British North America Act, 1867, s. 94. " Commonwealth Constitution Act, ss. 51, 52, 106, 107.
'^
ParUamentary
DIVISION OF POWERS IN FEDERAL STATES

Commonwealth Parliament
479
or of a State legislature which is opposed to the Constitution of the Commonwealth, is void and will be treated as such by the Courts. 3. The Federal or Commonwealth government has no power to annul or disallow either directly or indirectly the legislation
of a State Parliament.
Amendments of the Commonwealth Constitution may be by a bill passed by the Commonwealth Parliament, or under some circumstances by one only of the Houses of the Commonwealth Parliament, and approved of by a majority of the voting electors of the Commonwealth, and also by a majority of
4.
effected
the States thereof.^ Note however that
(i.) many provisions of the Constitution the Constitution be changed by an ordinary Act of the Commonwealth Parliament.^ (ii.) The Commonwealth Constitution being an Act of the
may under
Imperial Parliament may be altered or abolished by an Act of the Imperial Parliament. 1. The authority under the ConstituE. The Germam, Empire. tion of the Imperial (Federal) power is apparently finite or
'
defined, whilst
Federation is 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
:
authority of the indefinite or undefined. the
States
making up the
the Constitution.* 2. Imperial legislation at any rate, if carried through in a proper form, cannot apparently be "unconstitutional,"* but it would appear that State legislation is void, if it conflicts with the
Constitution, or with Imperial legislation.^
3. Whether the Imperial government has any power of annulling a State law on the ground of unconstitutionality is not very clear, but as far as a foreigner can judge, no such power
under the Imperial Constitution. The internal constitutional which may arise within any State may, under certain circumstances, be ultimately determined by Imperial authority.^ Constitution may be changed by the Imperial 4. The But no (Federal) legislature in the way of ordinary legislation.
exists
conflicts
^ Sec e.g. Constitution, ss. 7, 10. Constitution, s. 128. See Eeichsverfassung, arts. 2 and 78. * See on the moot question whether the Reiohsgerioht and the Courts generally can treat a statute passed by the Diet (Reichstag) as unconstitutional, Lowell, Omemments and Parties in Continental Europe, i. pp. 282-284. * Eeichsverfassung, art. 2 and Labaud, Staatsrecht des Deutschen Reiches, ^ Beichsverfassung, art. 76. s. 10,
?
"
48o
APPENDIX
carried, if
law amending the Constitution can be
opposed by
This gives fourteen votes in the Federal Council (Bundesrath). in effect a " veto " on constitutional changes to Prussia and to
several combinations of other States.
Certain rights, moreover, are reserved to several States which cannot be changed under the Constitution, except with the assent of the State possessing the right.^
NOTE
III
DISTINCTION BETWEEN A PARLIAMENTARY EXECUTIVE
AND
A NON-PARLIAMENTARY EXECUTIVE
Representative government, of one kind or another, exists at moment in most European countries, as well as in all countries which come within the influence of European ideas there are few civilised states in which legislative power is not exercised by a wholly, or partially, elective body of a more or less popular or
this
;
representative character.
Eepresentative government, however, does not mean everywhere one and the same thing. It exhibits or tends to exhibit two different forms, or types, which are discriminated from each other by the difference of the relation between the executive and the legislature. Under the one form of representative government the legislature, or, it may be, the elective portion thereof, appoints and dismisses the executive which under these circumstances is, in general, chosen from among the members of the legislative body. Such an executive may appropriately be termed a "parliamentary executive."
[1 The South Afrwan Union. The constitution of the Soutli African Union, it has been well said, " is frankly not in any real sense federal. " The Act under which it is framed " does not restrict in any substantial manner the Parliament's power to alter the provisions of the Constitution. It is especially laid down in s. 162 that Parliament may by law repeal or alter any of the provisions of the Act, provided that no provision thereof for the operation of which a definite period of time is fixed shall be repealed or altered before the expiration of such period, and also provided that no repeal or alteration of the provisions of the section itself, or of ss. 33 and 34 relative to the numbers of the members of the Legislative Assembly, prior to the expiration of ten years, or until the total number of members of the Assembly has reached 150, whichever occurs later, or of the provisions of s. 35 relative to the qualifications of electors to the House of Assembly, or of s. 137 as to the use of languages, shall be valid, unless the Bill containing the alterations is passed at a joint sitting of the Houses, and at its third reading by not less than two-thirds of the total number of members of both Houses. The section is well worded, as it obviates the possible evasion of its spirit by the alteration of the section itself." Keith, South African Union, Reprinted from the Journal of the Society of Comparative Legislation, pp. 60. 51. See also Brand The Union of South Africa, especially chap. xL]
TWO FORMS OF EXECUTIVE

Under the other form
tive,
481
of representative government the execube an Emperor and his Ministers, or a President and his Cabinet, is not appointed by the legislature. Such an executive may appropriately be termed a "non-parliamentary
whether
it
executive."
this distinction between the two forms government, which, though noticed of recent times by authors of eminence, has hardly been given sufficient prominence in. treatises on the theory or the practice of the English constitution, two or three points are worth attention. First, The distinction affords a new principle for the classification of constitutions, and brings into light new points both Thus if the character of polities be of affinity and difference. tested by the nature of their executives, the constitutions of England, of Belgium, of Italy, and of the existing French Eepublic, all, it will be found, belong substantially to one and the same class ; for under each of these constitutions there exists a parliamentary executive. The constitutions, on the other hand, of the United States and of the German Empire, as also the constitution of France in the time of the Second Eepublic, all belong to another and different class, since under each of these constitutions there is to be found a non-parliamentary executive. This method of grouping different forms of representative government is certainly not without its advantages. It is instructive to perceive that the Eepublican democracy of America and the Imperial government of Germany have at least one important feature in common, which distinguishes them no less from the constitutional monarchy of England than from the democratic Eepublic of France.
As
to
of representative
Secmdly, The practical power of a legislative body, or parliament, greatly depends upon its ability to appoint and dismiss the executive ; the possession of this power is the source of at least half the authority which, at the present day, has accrued to the English House of Commons. The assertion, indeed, would be substantially true that parliamentary government, in the full sense of that term, does not exist, unless, and until, the members of the executive body hold office at the pleasure of parliament, and that, when their tenure of office does depend on the pleasure of parliament, parliamentary government has reached
development and been transformed into government by But, though this is so, it is equally true that the distinction between a constitution with a parliamentary executive and a constitution with a non-parliamentary executive does not square with the distinction insisted upon in the body of this work, between a constitution in which there exists a sovereign parliament and a constitution in which there exists
its full
parliament.
482
APPENDIX
The English Parliament, it is non-sovereign parliament. the a sovereign body, and the real English executive Cabinet is in fact, though not in name, a parliamentary executive. But the combination of parliamentary sovereignty with a The parliamentary executive is not essential but accidental. English Parliament has been a sovereign power for centuries, but down at any rate to the Eevolution of 1689 the government of
a
true, is
England was in the hands

again
it
of a non-parliamentary executive.
So
the Federal Council (Bundesrath) and the Federal Diet (Eeichstag) constitute together a sovereign legislature.' But no one with recent events
is
at least maintainable that in
Germany
before his eyes can assert that the German Empire is governed by a parliamentary executive. In this matter, as in many others, instruction may be gained from a study of the history of parliamentary government in Ireland. In modern times both the
and the admirers of the constitution popularly identified with the name of Grattan, which existed from 1782 to 1800, feel that there is something strange and perplexing in the position of the Irish Parliament. The peculiarity of the case, which it is far easier for us to perceive than it was for Grattan and his contemporaries, lies mainly in the fact that, while the Irish Parliament was from 1782 an admittedly sovereign legislature, and whilst it was probably intended by all parties that the Irish Houses of Parliament should, in their legislation for Ireland, be as little checked by the royal veto as were the English Houses of Parliament, yet the Irish executive was as regards the Irish Parliament in no sense a parliamentary executive, for it was in reality appointed and dismissed by the English Ministry. It would be idle to suppose that mere defects in constitutional mechanism would in themselves have caused, or that the most ingenious of constitutional devices would of themselves have averted, the failure of Grattan's attempt to secure the parliamentary independence of Ireland. But a critic of constitutions may, without absurdity, assert that in 1782 the combination of a sovereign parliament with a non-parliamentary executive made it all but certain that Grattan's constitution must either be greatly modified or come to an end. For our present purpose, however, all that need be noted is that this combination, which to modern critics seems a strange one, did in fact exist during the whole period of Irish parliamentary independence. And as the existence of a sovereign parliament does not necessitate the existence of a parliamentary executive, so a parliamentary executive constantly coexists mth a non-sovereign parliament. This is exemplified by the constitution of Belgium as of every
critics
1
See the Imperial Constitution, Arts 2 aud 78,
TIVO
English
FORMS OF EXECUTIVE
483
colony endowed with representative institutions and
responsible government.
The difference again between a parliamentary and a nonparliamentary executive, though it covers, does not correspond with a distinction, strongly insisted on by Bagehot, between Cabinet Government and Presidential Government.^ Cabinet Government, as that term is used by him and by most writers, is one form, and by far the most usual form, of a parliamentary executive, and the Presidential Government of America, which Bagehot had in his mind, is one form, though certainly not the only form, of a non-parliamentary executive. But it would be easy to imagine a parliamentary executive which was not a Cabinet, and something of the sort, it may be suggested, actually existed in France during the period when Monsieur Thiers and Marshal MacMahon were each successively elected chief of the executive power by the French National Assembly,^ and there certainly may exist a non-parliamentary executive which cannot Such for example be identified with Presidential government. is at the present moment the executive of the German Empire. The Emperor is its real head ; he is not a President neither he, nor the Ministers he appoints, are appointed or dismissible by the body which we may designate as the Federal Parliament.
;
Thirdly,
here, as elsewhere,
The English constitution as we now know it presents more than one paradox. The Cabinet is, in
in fact, a parliamentary executive, for it is in truth by a very indirect process, and may be dismissed
reality
and
chosen, though
selected
of Commons, and its members are invariably from among the members of one or other House of Parliament. But, in appearance and in name, the Cabinet is now what it originally was, a non-parliamentary executive ; every Minister is the servant of the Crown, and is in form appointed
by the House
and dismissible, not by the H|ouse of Commons, nor by the Houses of Parliament, but by the King. It is a matter of curious speculation, whether the English Cabinet may not at this moment be undergoing a gradual and, as yet, scarcely noticed change of character, under which it may be transformed from a parliamentary into a non-parliamentary The possibility of such a change is suggested by the executive.
increasing authority of the electorate.
election
Even as it is, a general be in effect, though not in name, a popular election It is at any rate of a particular statesman to the Premiership. conceivable that the time may come when, though all the forms of the English constitution remain unchanged, an English Prime Minister will be as truly elected to ofiSce by a popular vote as is
may
'
See Bagehot, English Constitution (ed. 1878), pp. 16 and following. 2 See Helie, Les Constitutions de la France, pp. 1360, 1397.
484
APPENDIX
an American President. It should never be forgotten that tiie American President is theoretically elected by electors who never exercise any personal choice whatever, and is in fact chosen by citizens who have according to the letter of the constitution no more right to elect a President than an English elector has to elect a Prime Minister. Fowrthly, Each kind of executive possesses certain obvious merits and certain obvious defects. A parliamentary executive, which for the sake .of simplicity we may identify with a Cabinet, can hardly come into conflict with the legislature, or, at any rate, with that part of it by which the Cabinet is appointed and kept in power. Cabinet government has saved England from those conflicts between the executive and the legislative power which in the United States have impeded the proper conduct of public affairs, and in France, as in some other countries, have given rise to violence and revolution. A parliamentary Cabinet must from the necessity of the case be intensely sensitive and amenable to the fluctuations of parliamentary opinion, and be anxious, in matters of administration no less than in matters of legislation, to meet the wishes, and even the fancies, of the body to which the Ministry owes its
The " flexibility," if not exactly of the constitution yet of our whole English system of government, depends, in practice, quite as much upon the nature of the Cabinet as upon the legal sovereignty of the English Parliament. But Cabinet government is inevitably marked by a defect which is nothing more than the wrong side, so to speak, of its merits. parliamentary executive must by the law of its nature follow, or tend to follow, the lead of Parliament. Hence under a system of Cabinet government the administration of affairs is apt, in all its details, to reflect not only the permanent will, but also the
existence.
temporary wishes, or transient passions and fancies, of a parliamentary majority, or of the electors from whose good will the
majority derives
short,
is
its
authority.
parliamentary executive, in
become the creature of the parliament by which it is created, and to share, though in a modified form, the weaknesses which are inherent in the rule of an elective assembly. The merits and defects of a non-parliamentary executive are the exact opposite of the merits and defects of a parliamentary executive. Each form of administration is strong where the other is weak, and weak where the other is strong. The stronolikely to
point of a non-parliamentary executive is its comparative independence. Wherever representative government exists, the head of the administration, be he an Emperor or a President, of course
TWO FORMS OF EXECUTIVE

prefers to be on
legislative
485
body.
good terms with and to have the support of the But the German Emperor need not pay any-
thing like absolute deference to the wishes of the Diet; an American President can, if he chooses, run counter to the opinion of Congress. Either Emperor or President, if he be a man of strong will and decided opinions, can in many respects give effect as head of the executive to his own views
sound policy, even though he may, for the moment, offend not only the legislature but also the electors. Nor can it be denied that the head of a non-parliamentary executive may, in virtue of his independence, occasionally confer great benefits on the nation. Many Germans would now admit that the King of Prussia and Prince Bismarck did, just because the Prussian executive was in fact, whatever the theory of the constitution, a non-parliamentary executive, pursue a policy which, though steadily opposed by the Prussian House of Representatives, laid the foundation of German power. There was at least one occasion, and probably more existed, on which President Lincoln rendered an untold service to the United States by acting, in defiance of the sentiment of the moment, on his own conviction as to the course required by sound policy. But an executive which does not depend for its existence on parliamentary support, clearly may, and sometimes will, come into conflict with parliament. The short history of the second French Republic is, from the election of Louis Napoleon to the Presidency down to the Coup d'tat of the 2nd of December, little else than the story of the contest between the French executive and the French legislature. This struggle, it may be said, arose from the peculiar position of Louis Napoleon as being at once the President of the Republic and the representative of the Napoleonic dynasty. But the contest between Andrew Johnson and Congress, to give no other examples, proves that a conflict between a non-parliamentary executive and the legislature may arise where there is no question of claim to a throne, and among a people far more given to respect the law of the land than are
of
the French.
Fifthly, The founders of constitutions have more than once attempted to create a governing body which should combine the characteristics, and exhibit, as it was hoped, the merits without the defects both of a parliamentary and of a non-parliamentary The means used for the attainment of this end have executive. almost of necessity been the formation under one shape or another of an administration which, while created, should not be These attempts to construct a dismissible, by the legislature.
486
APPENDIX
semi-parliamentary executive repay careful study, but have not been crowned, in general, with success. The Directory which from 1795 to 1799 formed the government of the French Republic was, under a very complicated system of choice, elected by the two councils which constituted The Directors the legislature or parliament of the Republic. could not be dismissed by the Councils. Every year one Director at least was to retire from office. "The foresight," it has been well said, " of [the Directorial] Constitution was infinite " it prevented popular violence, the encroachments of power, and "provided for all the perils which the different crises of the "Revolution had displayed. If any Constitution could have
"become firmly
established at that period [1795], it " directorial constitution." ^ It lasted for four years.
was the Within
two years the majority of the Directory and the Councils were at open war. Victory was determined in favour of the Directors by a cffwp d'itat, followed by the transportation of their opponents
in the legislature.
It may be said, and with truth, that the Directorial Constitution never had a fair trial, and that at a time when the forces of reaction and of revolution were contending for supremacy with alternating success and failure, nothing but the authority of
a successful general could have given order, and no power whatever could have given constitutional liberty, to France. In 1875 France was again engaged in the construction of a Republican Constitution. The endeavour was again made to create an executive power which should neither be hostile to, nor yet the legislature. The outcome of these efibrts was the system of Presidential government, which nominally still exists in France. The President of the Republic is elected by the National Assembly, that is, by the Chamber of
absolutely dependent upon,
Deputies and the Senate (or, as we should say in England, by the two Houses of Parliament) sitting together. He holds office for a fixed period of seven years, and is re-eligible ; he possesses, nominally at least, considerable powers ; he appoints the Ministry or Cabinet, in whose deliberations he, sometimes at least, takes part, and, with the concurrence of the Senate, can dissolve the Chamber of Deputies. The Third French Republic, as we all know, has now lasted for thirty-eight years, and the present Presidential Constitution has been in existence for thirty-three
There is no reason, one may hope, why the Republic should not endure for an indefinite period ; but the interesting endeavour to form a semi-parliamentary executive may already be pronounced a failure. Of the threatened conflict between Marshal
years.
'
Mignet, French Revolution (English Translation) p. 303.
TIVO
MacMahon and
FORMS OF EXECUTIVE
may
487
the Assembly,
it
need say nothing;
closed by his resignation, we in fairness be considered the last
effort of reactionists to
prevent the foundation of a Republican
Commonwealth. The breakdown of the particular experiment with which we are concerned is due to the events which have taken place after MacMahon's retirement from office. The government of France has gradually become a strictly parliamentary executive. Neither President Gr6vy nor President Carnot attempted to be the real head of the administration. President Faure and President Loubet followed in their steps. Each of these Presidents filled, or tried to fill, the part, not of a President, in the American sense of the word, but of a
constitutional King. Nor is this all. As long as the President's tenure of office was in practice independent of the will of the Assembly, the expectation was reasonable that, whenever a statesmanof vigour and reputation was called to the Presidency, the
office
as
might acquire a new character, and the President become, were in a sense both Thiers and MacMahon, the real head of
also of President Casimir Purler's retirement
But the circumstances of President Gravy's fall, as from office, show that the President, like his ministers, holds his office in the last resort by the favour of the Assembly. It may be, and no doubt is, a more difficult matter for the National Assembly to dismiss a President
the Republic.
than to change a Ministry.

dismissible
Still
the President
is
in reality
Meanwhile the real executive by the legislature. is the Ministry, and a French Cabinet is, to judge from all appearances, more completely subject than is an English Cabinet The plain truth is that to the control of an elective chamber. the semi-parliamentary executive which the founders of the Republic meant to constitute has turned out a parliamentary executive of a very extreme type. The statesmen who in 1848 built up the fabric of the Swiss Confederation have, it would seem, succeeded in an achievement which has twice at least baffled the ingenuity of The Federal Council 1 of Switzerland is French statesmanship. a Cabinet or Ministry elected, but not dismissible, by each Federal Assembly. For the purpose of the election the National The National Council and the Council of States sit together.
The Swiss Council continues in existence for three years. Ministry being elected for three years by each Federal Assembly holds office from the time of its election until the first meeting
of the
noteworthy.
The working of this system next Federal Assembly. The Swiss Government is elective, but as it
is is
^ As to the character of the Swiss Federal Council, and Parties in Continental Ewope, ii. pp. 191-208.
see Lowell, Governments
488
APPENDIX
chosen by each Assembly Switzerland thus escapes the turmoil of a presidential election, and each new Assembly begins its The Council, it is existence in harmony with the executive. true, cannot be dismissed by the legislature, and the legislature cannot be dissolved by the Council. But conflicts between the Government and the Assembly are unknown. Switzerland is the most democratic country in Europe, and democracies are supposed, not without reason, to be fickle ; yet the Swiss
executive power possesses a permanence and stability which An English does not characterise any parliamentary Cabinet. Ministry, to judge by modern experience, cannot often retain power for more than the duration of one parliament ; the
Cabinets of Louis Philippe lasted on an average for about three ; under the Republic the lifetime of a French administration is measured by months. The members of the Swiss Ministry, if we may use the term, are elected only for three years ; they are however re-eligible, and re-election is not the exception but the rule. The men who make up the administrayears
tion are rarely changed.
You may,
it
is said,
find
among them
statesmen who have sat in the Council for fifteen or sixteen years consecutively. This permanent tenure of office does not, it would seem, depend upon the possession by particular leaders of extraordinary personal popularity, or of immense political influence ; it arises from the fact that under the Swiss system there is no more reason why the Assembly should not re-elect a trusted administrator, than why in England a joint^stock company should not from time to time reappoint a chairman in whom they have confidence. The Swiss Council, indeed, is as far as a stranger dare form an opinion on a matter of which none but Swiss citizens are competent judges not a Ministry or a Cabinet in the English sense of the term. It may be described as a Board of Directors appointed to manage the concerns of the Confederation in accordance with the articles of the Constitution and in general deference to the wishes of the Federal Assembly. The business of politics is managed by men
who transact national affairs, but are not statesmen who, like a Cabinet, are at once the servants and the leaders of a parliamentary majority. This system, one is told by observers
of business
who
know
Switzerland,
reformers, or innovators,
may well come to an end. The who desire a change in the mode of
appointing the Council, wish to place the election thereof in the hands of the citizens. Such a revolution, should it ever be carried out, would, be it noted, create not a parliamentary but a non-parliamentary executive.^
'
See Adams, Swiss Confederation,
cli. iv.
THE RIGHT OF SELF-DEFENCE
489
NOTE
IV
THE KTGHT OF SELF-DEFENCE
How far
has an individual a right to defend his person, liberty,
or property, against unlawful violence by force, or (if vre use the vFord " self-defence " in a wider sense than that usually assigned to it) what are the principles which, under English law,
govern the right of^ self-defence % ^ The answer to this inquiry is confessedly obscure and indefinite, and does not admit of being given with dogmatic certainty ; nor need this uncertainty excite surprise, for the rule which fixes the limit to the right of self-help must, from the nature of things, be a compromise between the necessity, on the one hand, of allowing every citizen to maintain his rights against wrongdoers, and the necessity, on the other hand, of suppressing Discourage self-help, and loyal subjects become private warfare. Over-stimulate self-assertion, and for the the slaves of ruffians. arbitrament of the Courts you substitute the decision of the sword or the revolver. Let it further be remarked that the right of natural selfdefence, even when it is recognised by the law, " does not imply " a right of attacking, for instead of attacking one another for " injuries past or impending, men need only have recourse to the " proper tribunals of justice." ^ A notion is current,^ for which some justification may be found in the loose dicta of lawyers, or the vague language of legal text-books, that a man may lawfully use any amount of force which is necessary, and not more than necessary, for the This notion, however popular, is protection of his legal rights. If pushed to its fair consequences, it would at erroneous.
times justify the shooting of trespassers, and would make it legal for a schoolboy, say of nine years old, to stab a hulking bully Some seventy of eighteen who attempted to pull the child's ears. years ago or more a worthy Captain Moir carried this doctrine out in practice to
1
its
extreme
logical results.
His grounds were
and
Report of Ciiminal Code Commission, 1879, pp. 43-46 [C. 2345], Notes A 1 East, P. C. 271-294 Stephen, Criminal Digest (6th ed.), art. 221
;
pp. 270, 271. ^ Stephen, Gmnmentarks (8th ed.), iv. pp. 53, 54. 3 This doctrine is attributed by the Commissioners, who in 1879 reported on As a matter of criticism it is the Criminal Code Bill, to Lord St. Leonards. however open to doubt whether Lord St. Leonards held precisely the dogma
Poster, Discourse II.
ss. 2, 3,
ascribed to him.
44,
See Criminal Code Bill Commission, Report [C. 2345], p.
Note B.

490
APPENDIX
infested
by trespassers. He gave notice that he should fire at any wrongdoer who persisted in the offence. He executed his
threat, and, after fair warning, shot a trespasser in the arm.
The
was carefully nursed at the captain's expense. He The captain was put on his unexpectedly died of the wound. trial for murder ; he was convicted by the jury, sentenced by the judge, and, on the following Monday, hanged by the hangman, fie was, it would seem, a well-meaning man, imbued with too rigid an idea of authority. He perished from ignorance of His fate is a warning to theorists who incline to the legal law. heresy that every right may lawfully be defended by the force
wounded
lad
necessary for its assertion. The maintainable theories as to the legitimate use of force necessary for the protection or assertion of a man's rights, or in other words the possible answers to our inquiry, are, it will be found, two, and two only.
In defence of a man's liberty, person, or proany amount of force which is both "necessary" i.e. not more than enough to attain its object and " reasonable " or "proportionate " i.e. which does not inilict upon the wrongdoer mischief out of proportion to the injury or mischief which the force used is intended to prevent ; and no man may use in defending his rights an amount of force which is either unnecessary or unreasonable. This doctrine of the " legitimacy of necessary and reasonable force " is adopted by the Criminal Code Bill Commissioners. It had better be given in their own words
First Theory.
perty, he
may
lawfully use
take [they write] one great principle of the common law to it sanotiona the defence of a man's person, liberty, and property against illegal violence, and permits the use of force to prevent crimes, to preserve the public peace, and to bring offenders to justice, yet all this is subject to the restriction that the force used is necessary ; that is, that the mischief sought to be prevented could not
be, that
"We
though
be prevented by less violent means ; and that the mischief done by, or which might reasonably be anticipated from the force used is not disproportioned to the injury or mischief which it is intended to prevent. This last principle will explain and justify many of our suggestions. It does not seem to have been universally admitted and we have therefore thought it advisable to give our reasons for thinking that it not only ought to be recognised as the law in future, but that it is the
;
law
at present."
The use of the word "necessary'' is, it should be noted, somewhat peculiar, since it includes the idea both of necessity
'
C. C. B. Commission, Report, p. 11.

and
of reasonableness.
491
this is taken into account, the submitted, as already stated, that a man may lawfully use in defence of his rights such an amount of force as is needful for their protection and as does not inflict, or run the risk of inflicting, damage out of all proportion to the injury to be averted, or (if we look at the same thing from the other side) to the value of the right to be protected. This doctrine is eminently rational. It comes to us recommended by the high authority of four most distinguished judges. It certainly represents the principle towards which the law of England tends But there is at least some ground for the suggesto approximate. tion that a second and simpler view more accurately represents the result of our authorities. Second Theory. man, in repelling an unlawful attack upon his person or liberty, is justified in using against his assailant so
When
is
Commissioners' view
is,
it
much
force,
even amounting to the
infliction
of
death, as
is
i.e. as is needed for selfnecessary for repelling the attack defence ; but the infliction upon a wrongdoer of grievous bodily harm, or death, is justified, speaking generally, only by the i.e. the defence of life, limb, or necessities of self-defence
permanent
liberty.^
This theory may be designated as the doctrine of "the Its essence is legitimacy of force necessary for self-defence." that the right to inflict grievous bodily harm or death upon a wrongdoer originates in, and is limited by, the right of every loyal subject to use the means necessary for averting serious danger to life or limb, and serious interference with his personal
liberty.
force "
The doctrine of the " legitimacy of necessary and reasonable and the doctrine of the " legitimacy of force necessary for self-defence " conduct in the main, and in most instances, to the
same practical
results.
On
1
either theory
A, when assaulted by X, and placed

;
in peril
42-46. iii. p. 267 ; iv. pp. See Stephen, Commentaries (14th ert.), i. p. 79 -with the case of justifiahle self-defence the injured party may repel force manifestly force in defence of his person, hahitation, or property, against one who known felony intendeth and endeavonreth with violence or surprise to commit a upon either. In these oases he is not obliged to retreat, hut may pursue his adversary 'till he findeth himself out of danger, and if in a conflict between them
"In
he happeneth to
"
kill,
such killing
is justifiable.
Where a known felony is attempted upon the person, be it to rob or murder, servant then here the party assaulted may repel force with force, and even his preventing attendant on him, or any other person present, may interpose for In this mischief and if death ensueth, the party so interposing will be justified. chap. 111. pp. 2/3, case nature and social duty co-operate." Foster, Discourse II. 274.
;

492
APPENDIX
life,
he cannot otherwise repel or avoid the assault, the one view, the force used by A is both necessary and reasonable ; on the other view, the force used by A is employed strictly in self-defence. According to either docbecause is wilfully trine A is not justified in shooting at For the damage inflicted by A upon trespassing on A's land.
of his
may,
if
strike
X dead.
On
X^namely, the risk to X of losing his

is,
life
is
unreasonable, that
by the trespass, proportion to the injury done to and in firing at a trespasser is clearly using force, not for the purpose of self-defence, but for the purpose of defending his property. Both theories, again, are consistent with the elaborate and admitted rules which limit a person's right to wound or slay another even in defence of life or limb.'^ The gist of these rules is that no man must slay or severely injure another until he has
out of
all
done everything he possibly can to avoid the use

force.
of
extreme
has a revolver in his pocket. He must not then and there fire upon X, but, to avoid pursues; is crime, must first retreat as far as he can. Then, and not till then. A, if he has no driven up against a wall. Grant other means of repelling attack, may justifiably fire at X. that, as has been suggested, the minute provisos as to the circumstances under which a man assaulted by a ruffian may turn upon his assailant, belong to a past state of society, and are more or less obsolete, the principle on which they rest is, nevertheless, clear and most important. It is, that a person attacked, even by a wrongdoer, may not in self-defence use force which is not " necessary," and that violence is not necessary when the person attacked can avoid the need for it by retreat ; or, in other words, by the temporary surrender of his legal right to stand in a particular place e.g. in a particular part of a public square, where he has a lawful right to stand. ^ Both theories, in short, have reference to the use of " necessary " force, and neither counteis
struck
by a
ruffian,
X;
^ See Stephen, Oriminal Digest (6th ed.), art. 221, but compare Commentaries (8th ed.), iv. pp. 54-56 and 1 Hale, P. C. 479. The authorities are not precisely in agreement as to the right of A to -wound before he has retreated as far as he can. But the general principle seems pretty clear. The rule as to the necessity for retreat by the person attacked must be always taken in combination with the acknowledged right and duty of every man to stop the commission of a felony, and with the fact that defence of a man's house seems to be looked upon by tlie " If a thief assaults a true law as nearly equivalent to the defence of his person. man, either abroad or in his house, to rob or kill him, the true man is not bound to give back, but may kill the assailant, and it is not felony." 1 Hale, P. C. See as to defence of house, 1 East, P. C. 287. 481. 2 Stephen, Commentaries (14th ed.), iv. pp. 42-46 compare 1 Hale, P. C. 481, 482 Stephen, Criminal Digest, art. 222 ; Foster, Discourse II. cap. iii. It should be noted that the rule enjoining that a man shall retreat from an assailant before he uses force, applies, it would appear, only to the use of such force as may inflict grievous bodily harm or death.
;
493
nances the use of any force which is more than is necessary for its purpose. is assaulted by X, he can on neither theory justify
^
the slaying or wounding of X, if can provide for his own safety simply by locking a door on X. Both theories equally well explain how it is that as the intensity of an unlawful assault
amount of force legitimately to be used in selfdefence increases also, and how defence of the lawful possession of property, and especially of a man's house, may easily turn into the lawful defence of a man's person. "A justification of a " battery in defence of possession, though it arose in defence of
increases, so the
" possession, yet in the end it is the defence of the person." 1 This sentence contains the gist of the whole matter, but must be read in the light of the caution insisted upon by Blackstone, that the right of self-protection cannot be used as a justification for
attack.^
Whether the two
doctrines
may not under conceivable

is
circum-
stances lead to different results,
an inquiry
of great interest,
but in the cases which generally come before the Courts, of no great importance. What usually requires determination is how far a man may lawfully use all the force necessary to repel an assault, and for this purpose it matters little whether the test of legitimate force be its " reasonableness " or its " self-defensive character." If, however, it be necessary to choose between the two theories, the safest course for an English lawyer is to assume that the use of force which inflicts or may inflict grievous bodily harm or death of what, in short, may be called "extreme" force is justifiable only for the purpose of strict
self-defence.
This view of the right of self-defence, it may be objected, narrowly a citizen's power to protect himself against wrong. The weight of this objection is diminished by two reflections. For the advancement of public justice, in the first place, every man is legally justified in using, and indeed is often bound to use, force, which may under some circumstances amount to the
restricts too
infliction of death.
Hence a
loyal citizen
may
lawfully interfere to put an end to
a breach of the peace, which takes place in his presence, and use such force as is reasonably necessary for the purpose.^ Hence,
too,
mitted,
any private person who is present when any felony is comis bound by law to arrest the felon, on pain of fine and
'
RoUe's Ab. Trespass, g
8.
^ ^
Blacks.
See Timothy
pp. 183, 184. t. Simpson, 1 C. M. & E. 757.

iv.
Comm.

494
APPENDIX
imprisonment
" Where if he negligently permit him to escape.^ " a felony is committed and the felon flyeth from justice, or a " dangerous wound is given, it is the duty of every man to use
" his best endeavours for preventing an escape. And if in the "pursuit the party flying is killed, vihere he cannot otherwise be For the "overtaken, this will be deemed justifiable homicide. " pursuit was not barely warrantable ; it is what the law "requireth, and will punish the wilful neglect of."^ No doubt the use of such extreme force is justifiable only in the case of felony, or for the hindrance of crimes of violence. But " such "homicide as is committed for the prevention of any forcible and " atrocious crime, is justifiable ... by the law of England " as it stands at the present day. If any person attempts the " robbery or murder of another, or attempts to break open a house
. . .
" in the night-time, and shall be killed in such attempt, either by " the party assaulted, or the owner of the house, or the servant " attendant upon either, or by any other person, and interposing " to prevent mischief, the slayer shall be acquitted and discharged.
" This reaches not to
any crime unaccompanied with force

;
as,
nor to the breaking open " of a house in the day-time, unless such entry carries with it an " attempt of robbery, arson, murder, or the like." ^ Acts therefore which would not be justifiable in protection of a person's own property, may often be justified as the necessary means, either of stopping the commission of a crime, or of arresting a felon. Burglars rob A's house, they are escaping over his garden wall, carrying off A's jewels with them. A is in no peril of his life, but he pursues the gang, calls upon them to surrender, and having no other means of preventing their escape, knocks down one of them, X, who dies of the blow A, it would seem, if Foster's authority may be trusted, not only is innocent of guilt, but has also discharged a public duty.* Let it be added that where may lawfully inflict grievous
;
" for example, the picking of pockets
bodily harm upon

1
e.g.
in arresting
ed.),
iv.
him
309
;
X acts
unlawfully
ii.
Stephen,
Commentaries (14th
p.
Hawkins, P. C. hook
cap. 12.
Foster, Discourse II. of Honiloide, pp. 271, 272, and compare pp. 273, 274. "The intentional infliction of death is not a crime when it is done by any person ... in order to arrest a traitor, felon, or pirate, or keep in lawful custody a traitor, felon, or pirate, who has escaped, or is about to escape from such custody, although such traitor, felon, or pirate, offers no violence to any person "
^
Stephen, Digest (6th

=
ed.), art. 222. Stephen, Oommentaries {8th ed.), iv. pp. 49, 50, and compare 14th ed. p. 40. * story told of that eminent man and very learned judge, Mr. Justice Willes, and related by an ear-witness, is to the following effect Mr. Justice Willes was " If I look into my drawing-room, and see a burglar packing asked up the clock, and he cannot see me, what ought I to do ? " Willes replied, as nearly as

in resisting
495
A, and
is
responsible for the injury caused to
by
X's resistance. 1
Every man, in the second place, acts lawfully as long as he merely exercises his legal rights, and he may use such moderate force as in effect is employed simply in the exercise of such
rights.
walking along a public path on his way home, X tries aside, X has a fall and is hurt. him A pushes A has done no wrong he has stood merely on the defensive and re-
is
to stop
an attempt to interfere with his right to go along a public thereupon draws a sword and attacks A again. It is e.g. by clear that if A can in no other way protect himself down he may use running away from X, or by knocking He may any amount of force necessary for his self-defence.
pelled
way.
stun X, or fire at X. Here, however, comes into view the question of real diffiHow far is bound to give up the exercise of his rights, culty. in this particular instance the right to walk along a particular path, rather than risk the maiming or the killing of X? knows perfectly well that Suppose, for example, that claims, though without any legal ground, a right to close the turns down particular footpath, and also knows that, if another road which will also bring him home, though at the cost
he will avoid all danger of an assault being driven, in so-called self-defence, to inflict grievous bodily harm upon X. Of course the case for A's right to use any force necessary has a right to push for his purpose may be put in this way. has a right to repel As X's violence grows greater, aside. He may thus turn a scuflBe over a right of way into a it.
of a slightly longer walk,
by X, or
of
A A
struggle for the defence of A's
life,
and so
justify the infliction
But this manner of looking at the even of death upon X. or is justified in, say, firing at Before matter is unsound. stabbing X, he must show distinctly that he comes within one at least of the two principles which justify the use of extreme But if he can avoid Z's violence force against an assailant. going a few yards out of his way, he- cannot justify his by
conduct under either of these principles.

may te
"
The
firing at
is
advice to you, which I give as a man, as a lawyer, and as an have as follows : In the supposed circumstance this is what you do it. Take a right to do, and I am by no means sure that it is not your duty to attracting a douhle-barrelled gun, carefully load both barrels, and then, without See the burglar's attention, aim steadily at his heart and shoot him dead." Saturday Review, Nov. 11, 1893, p. 534. ' Foster, Discowrse II. p. 272,
;
My
English judge,
is

496
APPENDIX
in upon not "reasonable,'' for the damage inflicted by wounding him is out of all proportion to the mischief to which it is intended to prevent namely, his being forced to The firing at go a few yards out of his way on his road home. could have X, again, is not done in strict self-defence, for uses force, avoided all danger by turning into another path. not for the defence of his life, but for the vindication of his That this is the true right to walk along a particular pathway. view of A^s position is pretty clearly shown by the old rules enjoining a person assaulted to retreat as far as he can before he
A A
grievously
wounds
his assailant.
Reg. V. Hewlett, a case tried as late as 1858, contains judicial
doctrine pointing in the same direction.
was struck by X, thereupon drew a knife and stabbed X. The judge laid down that "unless the prisoner \A'\ apprehended robbery or some " similar offence, or danger to life, or serious bodily danger " (not simply being knocked down), he would not be justified " in using the knife in self-defence." ^ The essence of this dictum is, that the force used by was not justifiable, because, though it did ward off danger to namely, the peril of being knocked down it was not necessary for the defence of A's life
A A
The case is a particularly strong one, or limb, or property. because was not a petson asserting a supposed right, but a simple wrongdoer. Let the last case be a little varied. Let be not a ruflBan but a policeman, who, acting under the orders of the Commissioner of Police, tries to prevent from entering the Park at the Marble Arch. Let it further be supposed that the Commissioner has taken an erroneous view of his authority, and that therefore the
attempt to hinder
from going into Hyde Park at the particular entrance does not admit of legal justification. X, under these circumstances, is therefore legally in the wrong, and may, it would seem,^ push by X. But is there any reason for
saying that if cannot simply push the force necessary e.g. by stabbing
A
is
The stabbing of X is neither a reasonable nor a self-defensive employment of force. A dispute, in short, as to legal rights must be settled by legal tribunals, " for the King and his Courts are the vindices injuriarvm,
There clearly
none.
'
X aside he can lawfully use Xto effect an entrance
Foster
&
Finlason, 91, per Crowder J.

are the the the
assumed in this imaginary case that Acts of Parliament not in force empowering the Commissioner of Police to regulate the use of right to enter into the Park. It is not my intention to discuss the eflfect of Metropolitan Police Acts, or to intimate any opinion as to the powers of
"
It is of course
Commissioner of Police.

"and
will give to the
497
party wronged all the satisfaction he allowed to vindicate the strength of Legal controversies his disputed rights by the force of his arm. bishop who in the last cenare not to be settled by blows. tury attempted, by means of riot and assault, to make good his claim to remove a deputy registrar, was admonished from the Bench that his view of the law was erroneous, and was saved from, the condemnation of the jury only by the rhetoric and the
"deserves";! ô one
is
fallacies of Erskine.^
point therefore the matter be approached, we same conclusion. The only undoubted justification for the use of extreme force in the assertion of a man's rights is, subject to the exceptions or limitations already men-
From whatever
to the
come round
tioned, to be
self-defence.
found
in,
as it
is
limited by, the necessities of strict
NOTE V
QUESTIONS CONNECTED WITH THE RIGHT OF PUBLIC MEETING
Four important
questions connected with the right of public meeting require consideration. These inquiries are first, whether there exist any general right of meeting in public places ? secondly, what is the meaning of the term "an unlawful assembly"? thirdly, what are the rights of the Crown or its servants in dealing with an unlawful assembly ? and fourthly, what are the rights possessed by the members of a lawful assembly when the meeting is interfered
:
with or dispersed by force 1 For the proper understanding of the matters under discussion, it is necessary to grasp firmly the truth and the bearing of two indisputable but often neglected observations. The first is that English law does not recognise any special right of public meeting either for a political or for any other
purpose.^
The right
of assembling
is
nothing more than the result of

of individual liberty of person
the view taken
by our Courts
and
individual liberty of speech.
Interference therefore with a lawful meeting

'
is
44.
not an invasion
Stephen, Commentaries (14th ed.),
iv. p.
2 ^
The Bishop of Bangor's Case, 26

See chap, tu., ante.
St. Tr. 463.
498
APPENDIX
but an attack upon the individual rights of and must generally resolve itself into a number of assaults upon definite persons, members of the meeting. A wrongdoer who disperses a crowd is not indicted or sued for breaking up a meeting, but is liable (if at all) to a prosecution or an action for assaulting A, a definite member of the crowd.^ Hence further the answer to the question how far persons present 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 a given citizen A, for punishing
of a public right,
or B,
or repelling an assault.
The second of these preliminary observations is that the most serious of the obscurities which beset the law of public meetings arise from the difficulty of determining how far a citizen
is
liberty, or property, or, if
legally justified in using force for the protection of his person, we may use the word " self-defence "
from uncertainty as to the true principles which govern the right of self-defence.^ The close connection of these introductory remarks with the questions to be considered will become apparent as we proceed.
in its widest sense,
I.
Does there
exist
is
The answer
England. Englishmen,
easy.
any general right of meeting in public places ? No such right is known to the law of
true,
meet together for political as well as on commons, and in other open spaces accessible to all the world. It is also true that in England meetings held in the open air are not subject, as they are in other countries for instance, Belgium to special restrictions. A crowd gathered together in a public place, whether they assemble for amusement or discussion, to see an acrobat perform his somerit is
for other purposes, in parks,
in the
saults or to hear a statesman explain his tergiversations, stand same position as a meeting held for the same purpose in a
hall or a drawing-room. An assembly convened, in short, for a lawful object, assembled in a place which the meeting has a right to occupy, and acting in a peaceable manner which inspires
no sensible person with fear, is a lawful assembly, whether it be held in Exeter Hall, in the grounds of Hatfield or Blenheim, or in the London parks. With such a meeting no man has a
right
to
interfere,
and
for attending
it
no man incurs legal
penalties.
But the law which does not prohibit open-air meetings does
^
See Redford
v.
Birley, 1 St. Tr. (u.

ante.
s.)
1017.
See Note IV.,

QUESTIONS AS TO RIGHT OF PUBLIC MEETING
not, speaking generally, provide that there shall be spaces
499
where
dis-
the public can meet in the open
air,
either for political
There may of course be, and indeed cussion or for amusement. there are, special localities which by statute, by custom or otherwise, are so dedicated to the use of the public as to be available
for the purpose of public meetings.
But speaking
in general
terms, the Courts do not recognise certain spaces as set aside for
In this respect, again, a crowd of a thousand people If A wants stand in the same position as an individual person. 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. He must not invade the rights of private property .. commit a trespass. He must not interfere with the convenience i.e. create a nuisance. of the public The notion that there is such a thing as k right of meeting in public places arises from more than one confusion or erroneous assumption. The right of public meeting that is, the right of all men to come together in a place where they may lawfully assemble
that end.
any lawful purpose, and especially for political discussion is confounded with the totally different and falsely alleged right of every man to use for the purpose of holding a meeting any place which in any sense is open to the public. The two rights, did they both exist, are essentially diflferent, and in many countries are reguIt is assumed again that squares, lated by totally different rules. streets, or roads, which every man may lawfully use, are necessarily available for the holding of a meeting. The assumption is false. crowd blocking up a highway will probably be a nuisance in the legal, no less than in the popular, sense of the term, for they interfere with the ordinary citizen's right 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 going
for
along them,i and the legal mode of use negatives the claim of politicians to use a highway as a forum, just as it excludes the The crowd claim of actors to turn it into an open-air theatre. who collect, and the persons who cause a crowd, for whatever The claim on purpose, to collect in a street, create a nuisance.^ the part of persons so minded to assemble in any numbers and for so long a time as they please, to remain assembled " to the " detriment of others having equal rights, is in its nature irrecon"cilable with the right of free passage, and there is, so far as we " have been able to ascertain, no authority whatever in favour of
1 ^
Domstm
Rex
V.
v.
Payne, 2 Hy.
6
C..
Bl. 527.
CarlUe,,
&
P..
628, 636
the
Tramways
Case, the Times,
7th
geptember 1888,
500
APPENDIX
^
"
it."
The general
public cannot
ings even on a common.^
make out a right to hold meetThe ground of popular delusions as to
the right of public meeting in open places is at bottom the prevalent notion that the law favours meetings held for the sake of political discussion or agitation, combined with the tacit assumption that
provides the means for its exercise. English law no more favours or provides for the holding of political meetings than for the giving of public concerts. man has a right to hear an orator But each as he has a right to hear a band, or to eat a bun. right must be exercised subject to the laws against trespass,
the law allows a right
it
when
No
ideas can be
more unfounded.
against the Creation of nuisances, against theft.
The want of a so-called forum may, it will be said, prevent ten thousand worthy citizens from making a lawful demonstration of The remark is true, bxit, from a lawyer's their political wishes. point of view, irrelevant. Every man has a right to see a Punch show, but if Punch is exhibiting in a theatre for money, no man can see him who cannot provide the necessary shilling. Every man has a right to hear a band, but if there be no place where a band can perform without causing a nuisance, then thousands of excellent citizens must forgo their right to hear music. Every man has a right to worship God after his own fashion, but if all the landowners of a parish refuse ground for the building of a Wesleyan chapel, parishioners must forgo attendance at a Methodist place
of worship.
meaning of the term " an unlawful assembly " ? " unlawful assembly " does not signify any meeting of which the purpose is unlawful. If, for example, five cheats meet in one room to concoct a fraud, to indite a libel, or to forge a bank-note, or to work out a scheme of perjury, they assemble for an unlawful purpose, but they can hardly be said to constitute an "unlawful assembly." These words are, in English law, a term of art. This term has a more or less limited and definite signification, and has from time to time been defined by different authorities ^ with varying degrees of precision. The
II.
WTiaf
is the
The expression
'
Exparle Lems, 21 Q. B. D. 191, 197
per Curiam.
Bailey v. WiUianison, L. K. 8 Q. B. 118 ; De Morgan . Metropolitan Board of Works, 5 Q. B. D. 155. 3 See Hawkins, P. C. book i. cap. 65, ss. 9, 11 Blackstone, iv. p. 146 Stephen, Commentaries (14th ed.), iv. p. 174 Stephen, Criminal Digest, art. 75 Criminal Code Bill Commission, Draft Code, sec. 84, p. 80 Rex v. Pinney
5
; ; ; ; ;
Hunt, 1 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. OHlbanks, 9 Q. B. D. 308 Reg. v. M'Naugkton (Irish), 14 Cox, C. C. 576 0' Kelly V. Harvey (Irish), 15 Cox, C. C. 436.
5 C.
P.
254
Rex
v.
';
'
QUESTIONS As TO RIGHT OP PUSLIC MEETING

definitions
50!
vary, for the most part, rather in words
than in
substance.
Such
differences as exist have, however, a twofold
importance.
They show,
in the
first place,
that the circumstances
which may render a meeting an unlawful assembly have not been absolutely determined, and that some important questions with regard to the necessary characteristics of such an assembly are open to discussion. They show, in the second place, that the rules defining the right of public meeting are the result of judicial legislation, and that the law which has been created may be further developed by the judges, and hence that any lawyer bent on determining the character of a given meeting must
consider carefully the tendency, as well as the words, of reported judgments. The general and prominent characteristic of an unlawful assembly (however defined) is, to any one who candidly studies It is a meeting of persons who the authorities, clear enough. either intend to commit or do commit, or who lead others to entertain a reasonable fear that the meeting will commit, a breach of the peace. This actual or threatened breach of the peace is, so to speak, the essential characteristic or " property " connoted careful examination, by the term "unlawful assembly."
received descriptions or definitions and of the authoritative statements contained in Sir James Stephen's Digest and in the Draft Code drawn by the Criminal Code Commissioners, enables an inquirer to frame a more or less accurate definition of an " unlawful assembly."
however,
of
It
may
(it is
submitted) be defined as any meeting of three
or more persons
(i.)
who
Assemble
(ii.)
to commit, or, when assembled do commit, a breach of the peace ; or Assemble with intent to commit a crime by open
force
(iii.)
or
Assemble for any common purpose, whether lawful or unlawful, in such a manner as to give firm and courageous persons in the neighbourhood of the
assembly reasonable cause to fear a breach of peace, in consequence of the assembly ; or Assemble with intent to incite disaffection among Crown's subjects, to bring the Constitution Government of the realm, as by law established,
the the
[(iv.)
and
into
contempt, and generally to carry out, or prepare for i] carrying out, a public conspiracy,
1 The portion of this definition 0' Kelly V. Harvey (Irish), 15 Cox, C. C. 435. contained in braclcets must perhaps he considered as, in England, of doubtful

5o2
APPENDIX
following points require notice
:
The
1.
an unlawful assembly which either disturbs the peace, or inspires reasonable persons in its neighbourhood with a fear that it will cause a breach of the peace. Hence the state of public feeling under which a meeting is convened, the class and the number of the persons who come together, the mode in which they meet (whether, for instance, they do or do not carry arms), the place of their meeting (whether, for instance, they assemble on an open common or in the midst of a populous city), and various other circumstances, must all be taken into account in determining whether a given meeting is an unlawful assembly or not. 2. A meeting need not be the less an unlawful assembly because it meets for a legal object. A crowd collected to petition for the release of a prisoner or to see an acrobatic performance, though meeting for a lawful object, may easily be, or turn into, an unlawful assembly. The lawfulness of the aim with which a hundred thousand people assemble may affect the reasonableness of fearing that a breach
meeting
is
of the peace will ensue. But the lawfulness of their object does not of itself make the meeting lawful. meeting for an unlawful purpose is not, as already 3. pointed out, necessarily an unlawful assembly. The test of the character of the assembly is whether the meeting does or does not contemplate the use of unlawful force, or does or does not inspire others with reasonable fear that unlawful force will be used i.e. that the King's peace will be broken. 4. There is some authority for the suggestion that a meeting for the purpose of spreading sedition, of exciting class against class, or of bringing the constitution of the country into contempt, is ipso fado an unlawful assembly,^ and that a meeting to promote an unlawful conspiracy of a public character, even though it does not directly menace a breach of the peace, is also an unlawful assembly. This is a matter on which it is prudent to speak with reserve and hesitation, and to maintain a suspended judgment until the
Ernest Jones, 6 St. Tr. (n. s.) 783, 816 817 v. Fussdl, ibid. 723, 764, summing 'up of Wilde, C. J.), but would, it is conceived, certainly hold good if the circumstances of the time were such that the seditious proceedings at the meeting would be likely to endanger the public peace. 1 See Redford v. Birley, 1 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 0' Kelly V. Harvey (Irish), 15 Cox, C. C. 435 Reg. v. Bums, 16 Cox, C. C. 355 ; Reg. v. Ernest Jones, 6 St. Tr. (n. s.) 783 ; Reg. v. Fussell, iiid. 723.
(see,
v.
authority
however, Reg.
J.,
summing up
of Wilde, C.
and Reg.
503
point suggested has come fairly before the English Courts. The true rule (possibly) may be, that a meeting 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 an unlawful assembly. 5. Two questions certainly remain open for decision. Is a meeting an unlawful assembly because, though the meeting itself is peaceable enough, it excites reasonable dread of future disturbance to the peace of the realm ; as where political leaders address a meeting in terms which it is reasonably supposed may, after the meeting has broken up, excite
insurrection
?
The answer to this inquiry is doubtful.^ Need again the breach of the peace, or
fear thereof,
which
gives a meeting the character of illegality, be a breach caused by the members of the meeting % To this inquiry an answer has already been given in the body
of this treatise.^
general terms, that, on the one hand, a its object and the conduct of the members of it, is perfectly lawful, does not become an unlawful assembly from the mere fact that possibly or probably it may cause wrongdoers who dislike the meeting to break the peace,^ but, on the other hand, a meeting which, though perhaps not in
The
reply
is,
in
meeting which, as regards
an unlawful assembly, does from some illegality in its conduct of its members, cause a breach of the peace by persons opposed to the meeting, may thereby become an unlawful assembly,* and a meeting which, though in every way perfectly lawful, if it in fact causes a breach of the peace on the part of wrongdoers who dislike the meeting may, if ihe peace can he restored by no other means, be required by the magistrates or
strictness
object, or in the
'
Bailey,
Rex v. Hunt, 1 St. Tr. (n. s.) 171 ; Rex v. Dewhurst, ibid. 530, 599. the subject of terror, there may be cases in which, from the general " appearance of the meeting, there could be no fear of immediate mischief pro" duced before that assembly should disperse and I am rather disposed to think " that the probability or likelihood of immediate terror before the meeting should " disperse is necessary in order to fix the charge upon that second count to which I " have drawn your attention. But if the evidence satisfies you there was a present " fear produced of future rising, which future rising would be a terror and alarm "to the neighbourhood, I should then desire that you would present that as yoar " finding in the shape of what I should then take it to be, a special verdict " per See also Reg. v. Ernest Jones, 6 St. Tr. (n. s.) 783 ; Reg. v. Fussell, J.
See
"Upon
ibid. 723. 2 See chap, vii., ante.

3
Beaili/ V. GiUbanhs, 9 Q. B.
,
L. E. Ir. 440, pp. 461

*
Wise
V.
Dunning
Reg. v. Justices of Londonderry, 28 D. 308 462, judgment of Holmes, J. [1902], 1 K. B. 167.

;

504
APPENDIX
other persons in authority to break up, and on the members of the meeting refusing to disperse, becomes an unlawful assembly.^
III.
What
are
the,
rights,
of the Grown or
its
servants in dealing
with an unlawful assembly ?

1.
guilty of a misdemeanour,
Every person who takes part in an unlawful assembly is and the Crown may therefore prosecute
every such person for his ofifence. Whether a given man A, who is present at a particular meeting, does thereby incur the guilt of "taking part" in an unlawful assembly, is in each case a question of fact. A, though present, may not be a member of the meeting ; he may be there accidentally he may know nothing of its character the crowd may originally have assembled for a lawful purpose the circumstances, e.g. the production of arms, or the outbreak of a riot, which render the meeting unlawful, may have taken place after it began, and in these transactions may have taken no part. Hence the importance of an official notice, e.g. by a Secretary of State, or by a magistrate, that a meeting is convened for a criminal object. A citizen after reading the notice or proclamation, goes to the meeting at his pei^l. If it turns out in fact an unlawful assembly, he cannot plead ignorance of its character as a defence against the charge of taking part in the meeting.^ 2. Magistrates, policemen, and all loyal citizens not only are entitled, but indeed are bound to disperse an unlawful assembly, and, if necessary, to do so by the use of force ; and it is a gross error to suppose that they are bound to wait until a riot has occurred, or until the Riot Act has been read.^ The prevalence of this delusion was the cause, during the Gordon Eiots, of London being for days in the hands of the mob. The mode of dispersing a crowd when unlawfully assembled, and the extent of force which it is reasonable to use, differ according to the circumstances of each case. 3. If any assembly becomes a riot i.e. has begun to act in a tumultuous manner to the disturbance of the peace a magistrate on being informed that twelve or more persons are unlawfully, riotously, and tumultuously assembled together to the disturbance of the public peace, is bound to make the short statutable proclamation which is popularly known as " reading the Eiot Act." *
;
Humphries v. Oonnor. 17 Ir. C. L. R. 1. Fursey, 6 C. & P. 81 3 St. Tr. (n. s.) 543. Reg. V. Necde, 9 C. & P. 431 ; Bardet v. Aihot, 4 Taunt. 401, 449. pp. 285, 286, ante. * 1 Geo. I. stat. 2, cap. 5, s. 2.
'
On
this point see especially

V.
2
=
Rex
See

The consequences
:
505
rioters
are as follows first, that any twelve not disperse within an hour thereafter, are guilty of felony and, secondly, that the magistrate and those acting with him may, after such hour, arrest the rioters and disperse the meeting by the employment of any amount of force necessary for the purpose, and are protected from liability for hurt inflicted or death caused in dispersing the meeting. The magistrates are, in short, empowered by the Eiot Act to read the proclamation before referred to, and thereupon, after waiting for an hour, to order troops and constables to fire upon the rioters, or charge them sword in hand.^ It is particularly to be noticed that the powers given to magistrates for dealing with riots under the Eiot Act in no way lessen the common law right of a magistrate, and indeed of every citizen, to put an end to a breach of the peace, and hence to disperse an unlawful assembly.^
who do
;
IV.
What
are the lights possessed by the members of a lawful

is interfered
assembly when the meeting
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 a lawful purpose, namely, to hear a
Certain persons who think the meeting either objectionsermon. able or illegal attempt to break it up, or do break it up, by force. What, under these circumstances, are the rights of the Salvationists who have come to listen to a preacher ? This in a concrete form
is
the problem for consideration.^
An
attempt, whether successful or not, to disperse a lawful
assembly involves assaults of more or less violence upon the The wrong thus persons A, B, and G who have met together. done by the assailants is, as already pointed out, a wrong done, not to the meeting a body which has legally no collective but to A, B, or C, an individual pushed, hustled, struck, rights
or otherwise assaulted. Our problem is, then, in substance
What
are the rights of
A, the member
of a meeting,
when unlawfully
assaulted
And
embraces two different questions, which, for clearness sake, ought to be carefully kept apart from each
this inquiry, in its turn,
other.
^ See Stephen, Hist. Grim. Law, i. 203 ; -CJriminal Code Bill Commission, Draft Code, ss. 88, 99. 2 Rex V. Fursey, 6 C. & P. 81 3 St. Tr. (n. s.) 543. " For the sake of convenience, I have taken a meeting of the Salvation Army It should, however, be conas a typical instance of a lawful public meeting. more nor less stantly remembered that the rights of the Salvationists are neither than those of any other crowd lawfully collected together e.g'. to hear a band
;
of music.

5o6
APPENDIX
First,
What
are the remedies of
for the
wrong done
to
has the right to take civil, or (subject to one reservation) criminal proceedings against any person, be he an officer, a soldier, a commissioner of police, a magistrate, a policeman, or a private ruffian, who is responsible for the assault
him by the assault 1 The answer is easy.
upon A.
whom
A be killed, the person or persons by been caused may be indicted, according to circumstances, for manslaughter or murder. This statement as to A's rights, or (what is, however, the same thing from another point of view) as to the liabilities of There exists A's assailants, is made subject to one reservation. considerable doubt as to the degree and kind of liability of soldiers (or possibly of policemen) who, under the orders of a superior, do some act (e.g. arrest A or iire at A) which is not on the face of it unlawful, but which turns out to be unlawful because of some circumstance of which the subordinate was not in a position to judge, as, for example, because the meeting was not technically an unlawful assembly, or because the officer giving the order had in some way exceeded his authority.
If,
moreover,
his death has
never have to determine that superior officer are a justification. to determine that question, I should probably hold that the orders are an absolute justification in time of and, I actual war at all events, as regards enemies or foreigners should think, even with regard to English-born subjects of the Crown, unless the orders were such as could not legally be given. I believe that the better opinion is, that an officer or soldier, acting under the orders of his superior not being necessarily or manifestly illegal would be justified by his orders." ^
difficult
" I hope [says Willes, J.] I

question,
may
how far the Were I compelled
orders of a
whose
were rash who questioned the suggestion of a jurist 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 legal subtleties which, after a lengthy consultation, might still perplex experienced lawyers, and the private ordered by his
dicta are
:
A critic
commanding
the risk,
and,
if
officer to take part in the suppression of a riot runs he disobeys, of being shot by order of a court-martial, he obeys, of being hanged under the sentence of a judge.
if
Keighhj
v. Bell, 4
512, post,
Buty
F. & F. 763, 790, per Willes, J. See also Note VI. of Soldiers called upon to disperse an Unlawful Assembly.
p.
507

Let
it
further be carefully noted that the doctrine of Mr. Justice
Willes,
applies, it
which is approved of by the Criminal Code Commissioners,^ would seem, to criminal liability only. The soldier or policeman who, without full legal justification, assaults or arrests A incurs (it is submitted), even though acting under orders, full
civil liability.
Secondly,
all
How
far
is
entitled to maintain
by
force against
assailants his right to take part in a lawful public meeting,
or,
in other words,
his
e.g.
right to stand in a place where he
lawfully
by the owner, for a purpose which is in itself lawful e.g. the hearing of an address from a captain of the Salvation Army ? In order to obtain a correct answer to this inquiry we should bear in mind the principles which regulate the right of selfdefence,^ and should further consider what may be the different circumstances under which an attempt may be made without The legal warrant to disperse a meeting of the Salvation Army. attack upon the meeting, or in other words upon A, may be made either by mere wrongdoers, or by persons who believe, however mistakenly, that they are acting in exercise of a legal right or in Let each of these cases be examined discharge of a legal duty.
stand
separately.
may
ground opened to
Let us suppose, in the
first place,
that the Salvationists,

so-called Skeleton
and
or further be supposed that the object of the assault is simply to break up the meeting, and that therefore, and others disperse, they are in no peril of damage to life if
among them,
are attacked
it
by the
Army
other roughs, and let
or limb.
and his friends may legally, it would seem, stand their ground, and use such moderate force as amounts to simple and assertion of the right to remain where they are. his companions may further give individual members of the It Skeleton Army in charge for a breach of the peace. however, happen that the roughs are in large numbers, may, and press upon the Salvationists so that they cannot keep their ground without the use of firearms or other weapons. The use of such force is in one sense necessary, for the SalvaIs the tionists cannot hold their meeting without employing it. The strongest way of putting the case use of such force legal?
in favour of
and
his friends
is
that,
in firing
upon
their
opponents, they are using force to put down a breach of the On the whole, however, there can, it is submitted, be peace.
1
See C. C. B. Commission, Draft Code, 2 See Note IV. p. 489, ante.
ss.
49-53.
5o8
APPENDIX
of firearms or other deadly weapons, to
is
no doubt that the use

legally justifiable.
under the circumstances not on which extreme acts of selfdefence against a lawless assailant cannot be justified until the person assaulted has retreated as far as he can, is applicable to A, B, 0, etc., just as it would be to A singly. Each of the Salvationists is defending, under the supposed circumstances, not his life, but his right to stand on a given plot of ground.
maintain their right of meeting,
The
principle
Next, suppose that the attempt to disperse the Salvationists made, not by the Skeleton Army, but by the police, who act under the order of magistrates who hold loriA fide, though mistakenly,! that a notice from the Home Secretary forbidding the Army to meet, makes its meeting an unlawful assembly.
is
Under
these
circumstances,
the
police
are
clearly
in
the
policeman who assaults A, B, or C, does an act not wrong. Nor is it easy to maintain that admitting of legal justification.
the mere fact of the police acting as servants of the Crown in supposed discharge of their duty makes it of itself incumbent upon to leave the meeting.
respects from that of
two important mere wrongdoers. Policeman X, when he tells A to move on, and compels him to do so, does not put A ill peril of life or limb, for A knows for certain that, if he leaves the meeting, he will not be further molested, or that if he allows himself to be peaceably arrested, he has nothing to dread but temporary imprisonment and appearance before a magistrate,
The
position, however, of the police differs in
who will deal with his rights in accordance with law. Policeman X, further, asserts bond fide a supposed legal right to make A believes A has no right to stand ; withdraw from a place where This as to a matter of law. there is a dispute between A and
being the state of
A,
'
B,
any rate fairly arguable that and C have a right to stand simply on the defensive,^ and
affairs, it is
at
Gillbanhs, 9 Q. B. D. 308. however, of even this amount of resistance to the police is " Any man who advises a public assembly when the police come there doubtful. to disperse them, to stand their ground shoulder by shoulder, if that means to resist the police, although it might not mean to resist by striking them ; yet if it meant to resist the police and not to disperse, that was illegal advice. If the police had interfered with them, they were not at liberty to resist in any such circumstances they ought to have dispersed by law, and have sought their remedy against any unjust interference afterwards. This is a body of police acting under the responsibility of the law, acting under the orders of those who would be responsible for the orders which they gave, charged with the public
See Beatty
v.
The
legality,
peace, and who would have authority to disperse when they received those orders, leaving those who should give them a deep responsibility if they should improperly interfere with the exercise of any such public duties. . . Gentlemen, the peaceable citizens are not in the performance of their duty if they stand shoulder to shoulder, and when the police come and order the assembly to dis.

509
remain wliere they are as long as they can do so without inflicting grievous bodily harm upon and other policemen. Suppose, however, as is likely to be the fact, that, under the pressure of a large body of constables, the Salvationists cannot maintain their meeting without making use of arms e.g., using bludgeons, swords, pistols, or the like. They tave clearly no right to make use of this kind of force. A and his friends are not in peril of their lives, and to kill a policeman in order to secure A the right of standing in a particular place is to inflict a mischief out of all proportion to the importance of the mischief to A which A, therefore, if he stabs or stuns X, can he wishes to avert. on no theory plead the right of self-defence. A and X further are, as already pointed out, at variance on a question of legal rights. This is a matter to be determined not by arms, but by an action at law. Let it further be noted that the supposed case is the most They may unfavourable for the police which can be imagined. well, though engaged in hindering what turns out to be a lawful meeting, stand in a much better situation than that of assailants. The police may, under orders, have fully occupied and filled up the ground which the Salvationists intend to use. When the Salvationists begin arriving, they find there is no place Nothing but the use of force, and where they can meet. This force indeed of extreme force, can drive the police away. the Salvation Army cannot use ; if they did, they would be using violence not on any show of self-defence, but to obtain possession Their only proper course is the of a particular piece of land.
'^
vindication of their rights
by proceedings
in Court.
which deal with the question how far it is justifiable to resist by violence an arrest made by an officer of justice without due authority, it is difficult to make much use for the elucidation of the question under consideration,^ for in these cases the matter discussed seems often to have been not whether A's resistance was justifiable, but whether it amounted There are, however, one or to murder or only to manslaughter. two more or less recent decisions which have a real bearing on the right of the members of a public meeting to resist by force And these eases are, on the whole, attempts to disperse it.
Of the older
cases,
they do not disperse, but insist on remaining, they are not in the peaceable execution of any right or duty, but the contrary, and from that moment they become an illegal assembly. "iJe?. v. Ernest Jones, 6 St. Tr. (n. s.) 783, 811. summing up of Wilde, C. J. 1 Rex V. Fursey, 6 C. & P. 81 3 St. Tr. (n. s.) 543. Borthwick's Case, ibid. ; Wither s 2 See, e.g., Dixon's Case, 1 East, P. C. 313 Tooley's Case, 2 Lord Raymond, 1296. Case, 1 East, P. C. 233, 309
perse,
; ; ;

APPENDIX
5IO
understood, not inconsistent with the inferences The doctrine laid down already drawn from general principles. ought not to inilict grievous bodily in Ueg. v. Hewlett,'^ that harm even upon a wrongdoer unless in the strictest selfRex v. Fursey,^ a decision defence, is of the highest importance. At a of 1833, has direct reference to the right of meeting.
when properly
A carried an American which was snatched from him by X, a policeman, whereupon A stabbed X. He was subsequently indicted under 9 Geo. I. c. 31, s. 12, and it appears to have been laid down by the judge had no right to that though, if the meeting was a legal one, snatch away A's flag, still that even on the supposition that the meeting was a lawful assembly, A, if had died of his wound, would have been guilty either of manslaughter, or very possibly of murder. Quite in keeping with Rex v. Fwrsey is the recent
public meeting held that year in London,
flag
case of Reg. v. Harrison.^

in a very
Some
of the expressions attributed,
compressed newspaper report, to the learned judge who tried the case, may be open to criticism, but the principle involved in the defendant's conviction, namely, that a ruffian cannot assert his alleged right to walk down a particular street by stunning or braining a policeman, or a good citizen who is helping the policeman, is good law no less than good sense.*
Nor does the claim

pistols
to
assert legal rights
by recourse
to
or
bludgeons receive countenance from two decisions
occasionally adduced in its support.
The one is BeMty v. Gillbanks.^ This case merely shows that a lawful meeting is not rendered an unlawful assembly simply because ruffians try to break it up, and, in short, that the breach of the -peace which renders a meeting unlawful must, in general,^
be a breach caused by the members of the meeting, and not by wrongdoers who wish to prevent its being held.^ The second is M'Clenaghan v. Waters.^ The case may certainly be so explained as to lay down the doctrine that the
'
1 F.
&
F. 91.
Tr.
(n. s.)
St.
543,
and compare Criminal Code Commission Report,
December 1887. any heads are broken before [after?] men are ordered [by the police] to disperse and refuse to disperse, those who breali their heads will find their own heads in a very bad situation if they are brought into a court of law to answer for it. No jury would hesitate to convict, and no court would hesitate to
^
pp. 43, 44. 3 Tlie Times, 19th
"Well,
if
punish."
I'
Reg.
v.
Ernest
.Tones, 6 St.
Tr. (n.
s.)
783, 811, 812,
summing np
of
"Wilde, C. J.
9 Q. B. D. 308. ^ See p. 502, ante. ' As already pointed out, the principle maintained in Beatty v. itself open to some criticism. 8 The Times, 18th July 1882.
GUlbanks
is

police
51
when engaged under orders in dispersing a lawful meeting are not engaged in the " execution of their duty," and that
therefore the
members
of the
meeting
may
persist in holding it
this doctrine
in spite of the opposition of the police.
Whether
be absolutely sound is open to debate. It does not necessarily, however, mean more than that a man may exercise a right, even though he has to use a moderate amount of force, against a person who attempts to hinder the exercise of the light. But M'Olenaghan v. Waters certainly does not decide that the member of a lawful assembly may exercise whatever amount of force is necessary to prevent its being dispersed, and falls far short of justifying the proceedings of a Salvationist who brains a policeman rather than surrender the so-called light of public meeting. It is, however, doubtful whether M'Clenaghan v. Waters really supports even the doctrine that moderate resistance to the police is justifiable in order to prevent the dispersing The case purports to follow Beaity v. of a lawful assembly. Gillbanks, and therefore the Court cannot be taken as intentionally
go.ing
beyond the principle
laid
down
in that case.
The question
for the opinion of the Court, moreover, in M'Clenaghan v. Waters was, " whether upon the facts stated the police at the time of
"their being assaulted by the appellants (Salvationists) were " legally justified in interfering to prevent the procession from " taking place " ; or, in other words, whether the meeting of the To this question, in the Salvationists was a lawful assembly 1 This face of Beatty v. Gillbanks, but one reply was possible. answer the Court gave they determined " that in taking part " in a procession the appellants were doing only an act strictly " lawful, and the fact that that act Avas believed likely to cause " others to commit such as were unlawful, was no justification for Whether the Court determined any"interfering with them." thing more is at least open to doubt, and if they did determine, as alleged, that the amount of the resistance offered to the police was lawful, this determination is, to say the least, not
:
inconsistent with the stern punishment of acts like that committed by the prisoner Harrison. No one, however, can dispute that the line between the
forcible
exercise of a right in the face of opposition,
and an
on those who oppose its exercise, is a fine that many nice problems concerning the degree of one, and resistance which the members of a lawful meeting may offer to
unjustifiable assault
persons
who wish to break it up are at present unsolved. The next patriot or ruffian who kills or maims a policeman rather than compromise the right of public meeting will try what, from

SI2
APPENDIX
a speculative point of view, may be considered a valuable legal experiment which promises results most interesting to jurists. The experiment will, however, almost certainly be tried at the cost, according to the vigour of his proceedings, of either his
freedom or his
life.'
NOTE
VI
DUTY OF SOLDIERS CALLED UPON TO DISPERSE AN UNLAWFUL

ASSEMBLY
7th September 1893 Captain Barker and a small number of were placed in the Ackton Colliery, in order to defend it from the attack of a mob. body of rioters armed with sticks and cudgels entered the colliery yard, and with threats demanded The mob gradually increased, the withdrawal of the soldiers. and broke the windows of the building in which the troops were stationed and threw stones at them. Attempts were made to burn the building, and timber was actually set on fire. The soldiers retreated, but were at last surrounded by a mob of 2000 persons. The crowd was called upon to disperse, and the More stones were hurled at the troops, and it Riot Act read. was necessary to protect the colliery. At last, before an hour from the reading of the Riot Act, and on the crowd refusing to disperse, Captain Barker gave orders to fire. The mob dispersed, but one or two bystanders were killed who were not taking an active 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 the law as to the duty of soldiers when called upon to disperse a mob
On
soldiers
" We pass next to the consideration of the all-important question whether the conduct of the troops in firing on the crowd was justifiable and it becomes essential, for the sake of clearness, to state succinctly what the law is which bears upon the subject. By
;
'
Tlie
s. )
(n.
and
if
whole summing up of WiUle, C. J., in Reg. v. Ernest Jones, 6 St. Tr. 783, 807-816, merits particular attention. His language is extremely .strong it be taken as a perfectly correct exposition of the law, negatives the right
to resist
by
force policemen
duty, disperse an assembly which unlawful assembly.
who with may
the bond fide intention to discharge their ultimately turn out not to have been an
SOLDIERS AND UNLAWFUL MEETING
513
the law of this country every one is bound to 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 each riot, for the force used must always be moderated and proportioned to the circumstances of the case and to the end to be attained. "The taking of life can only be justified by the necessity for protecting persons or property against various forms of violent crime, or by the necessity of dispersing a riotous crowd which is dangerous
unless dispersed, or in the case of persons whose conduct has become felonious through disobedience to the provisions of the Eiot Act, and who resist the attempt to disperse or apprehend them. The riotous
its
crowd at the Ackton Hall Colliery was one whose danger consisted in manifest design violently to set fire and do serious damage to the colliery property, and in pursuit of that object to assault those upon the colliery premises. It was a crowd accordingly which threatened serious outrage, amounting to felony, to property and persons, and it became the duty of all peaceable subjects to assist in preventing this. The necessary prevention of such outrage on person and property
the guardians of the peace in the
justifies
employment against a
and subject
riotous
to
crowd of even deadly weapons. "Ofl&cers and soldiers are under no no special responsibilities as regards
special privileges
this principle of the law.
soldier for the purpose of establishing civil order is only a citizen
He cannot because he is a soldier without necessity he takes human life. The duty of magistrates and peace ofiBcers to summon or to abstain from summoning the assistance of the military depends in like manner on the necessities A soldier can only act by using his arms. The weapons of the case. They cannot be einployed at all without he carries are deadly. danger to life and limb, and in these days of improved rifles and perfected ammunition, without some risk of injuring distant and possibly innocent bystanders. To call for assistance against rioters from those who can only interpose under such grave conditions ought, But when of course, to be the last expedient of the civil authorities. the call for help is made, and a necessity for assistance from the military has arisen, to refuse such assistance is in law a misdemeanour. "The whole action of the military when once called in ought, from first to last, to be based on the principle of doing, and doing without fear, that which is absolutely necessary to prevent serious crime, and of exercising all care and skill with regard to what is done. No set of rules exists which governs every instance or defines One salutary practice beforehand every contingency that may arise. The presence of a is that a magistrate should accompany the troops. magistrate on such occasions, although not a legal obligation, is a The military come, it may be, matter of the highest importance.
armed in a particular manner.
excuse himself
if
from a distance.
the special circumstances.
They know nothing, probably, of the locality, or of They find themselves introduced suddenly 2 L
514
APPENDIX
on a field of action, and they need the counsel of the local justice, who presumably familiar with the details of the case. But, although the magistrate's presence is of the highest value and moment, his absence does not alter the duty of the soldier, nor ought it to paralyse his conduct, but only to render him doubly careful as to the proper steps to be taken. No officer is justified by English law in standing by and allowing felonious outrage to be committed merely because of
is
a magistrate's absence. " The question whether, on any occasion, the moment has come for firing upon a mob of rioters, depends, as we have said, on the necessities of the case. 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 have alluded to and it must be conducted without recklessness or negligence. When the need is clear, the soldier's duty is to fire with all reasonable caution, so as to produce no further injury than what is absolutely wanted for the purpose of protecting person and property. An order from the magistrate who is present is required by military regulations, and wisdom and discretion are entirely in favour of the observance of such a practice. But the order of the magistrate has at law no legal effect. Its presence does not justify the firing if the magistrate is wrong. Its absence does not excuse the officer for declining to fire when the necessity &ists. " With the above doctrines of English law the Riot Act does not interfere. Its effect is only to make the failure of a crowd to disperse for a whole hour after the proclamation has been read a felony and
; ;
ground to afford a statutory justification for dispersing a felonious assemblage, even at the risk of taking life. In the case of the Ackton Hall Colliery, an hour had not elapsed after what is popularly called
this
on
the reading of the Riot Act, before the military fired.

for their firing can therefore be rested
No justification
on the provisions of the Riot Act itself, the further consideration of which may indeed be here dismissed from the case. But the fact that an hour had not expired since its reading did not incapacitate the troops from acting when outrage had to be prevented. All their common law duty as citizens and soldiers remained in full force. The justification of Captain Barker and his men must stand or fall entirely by the common law. Was what they did necessary, and no more than was necessary, to put a stop to or prevent felonious crime ? In doing it, did they exercise all ordinary skill and caution, so as to do no more harm than could
be reasonably avoided ? " If these two conditions are made out, the fact that innocent people have suffered does not involve the troops in legal responsibility. guilty ringleader who under such conditions is shot dead, dies by justifiable homicide. An innocent person killed under such conditions, where no negligence has occurred, dies by an accidental death. The legal reason is not that the innocent person has to thank himself for what has happened, for it is conceivable (though not often likely) that
SOLDIERS AND UNLAWFUL MEETING
515
he may have been unconscious of any danger and innocent of all imprudence. The reason is that the soldier who fired has done nothing except what was his strict legal duty. "In measuring with the aid of subsequent evidence the exact necessities of the case as they existed at the time at Ackton Hall Colliery, we have formed a clear view that the troops were in a position of great embarrassment. The withdrawal of half their original force to Nostell Colliery had reduced them to so small a number as to render it difficult for them to defend the colliery premises effectively at nighttime. The crowd for some hours had been familiarised with their presence, and had grown defiant. All efforts at conciliation had failed. Darkness had meanwhile supervened, and it was difficult for Captain Barker to estimate the exact number of his assailants, or to what extent he was being surrounded and outflanked. Six or seven appeals had been made by the magistrate to the crowd. The Riot Act had been read without result. A charge had been made without avail. Much valuable colliery property was already blazing, and the troops were with difficulty keeping at bay a mob armed with sticks and bludgeons, which was refusing to disperse, pressing where it could into the colliery premises, stoning the fire-engine on its arrival, and keeping up volleys of missiles. To prevent the colliery from being overrun and themselves surrounded, it was essential for them to remain as close as possible to the Green Lane entrance. Otherwise, the rioters would, under cover of the darkness, have been able to enter in force. To withdraw from their position was, as we have already intimated, to abandon the colliery offices in the rear to arson and violence. To hold the position was not possible, except at the risk of the men being seriously hurt and their force crippled. Assaulted by missiles on all sides, we think that, in the events which had happened. Captain Barker and his troops had no alternative left but to fire, and it seems to us that Mr. Hartley was bound to require them to do so. "It cannot be expected that this view should be adopted by many of the crowd in Green Lane who were taking no active part in the Such persons had not, at the time, the means of riotous proceedings. But judging of the danger in which the troops and the colliery stood. no sympathy felt by us for the injured bystanders, no sense which we entertain of regret that, owing to the smallness of the military force at Featherstone and the prolonged absence of a magistrate, matters had drifted to such a pass, can blind us to the fact that, as things stood at the supreme moment when the soldiers fired, their action was necessary. We feel it right to express our sense of the steadiness and discipline of We can find no ground for any the soldiers in the circumstances. suggestion that the firing, if it was in fact necessary, was conducted The darkness rendered it with other than reasonable skill and care. impossible to take more precaution than had been already employed to discriminate between the lawless and the peaceable, and it is to be observed that even the first shots fired produced little or no effect upon

5i6
APPENDIX
If our conclusions
the crowd in inducing them to withdraw.

points be, as
on these
we
believe
them
to be, correct, it follows that the action

^
of the troops was justified in law."
NOTE
VII
THE MEANING OF AN "UNCONSTITUTIONAL" LAW
The expression " unconstitutional " has, as applied to a law, at least three different meanings varying according to the nature
of the constitution with reference to which
The expression, as applied ment, means simply that the Act in

(i.)
to
it is used an English Act of Parlia:
question, as, for instance, the
Irish
Olmrch Act, 1869,

is
is,
in the opinion of the speaker,

;
to the spirit of the English constitution
it
opposed cannot mean that
the Act
(ii.)
either a breach of
law or
is
void.
a law passed by the e.g. extending the length of the President's tenure of office, is opposed to the articles of the constitution. The expression does not necessarily mean that the law in question is void, for it is by no means certain that any French Court will refuse to enforce a law because it is unconstitutional. The word would probably, though not of necessity, be, when employed by a Frenchman, a term of censure. (iii.) The expression, as applied to an Act of Congress, means simply that the Act is one beyond the power of Congress, and is therefore void. The word does not in this case necessarily import any censure whatever. An American might, without any inconsistency, say that an Act of Congress was a good law, that is, a law calculated in his opinion to benefit the country, but that unfortunately it was "unconstitutional," that is to say, ultra vires
The
expression,
as
applied to
French Parliament, means that the law,
and
1
void.
Eeport of the committee appointed to inquire into the circnmstanoes connected with the disturbances at Featherstone on the 7th of September 1893
[C 7234].
SIVISS
FEDERALISM
517
NOTE
VIII
SWISS federalism!
Swiss Federal Constitution may appear to a superficial observer to be a copy in miniature of the Constitution of the United States ; and there is no doubt that the Swiss statesmen of 1848 did in one or two points, and notably in the formation of the Council of States or Senate, intentionally follow American precedents. But for all this, Swiss Federalism is the natural
The
outgrowth of Swiss history, and bears a peculiar character of
its
own
that well repays careful study. Three ideas underlie the institutions of modern Switzerland. The first is the uncontested and direct sovereignty of the
nation.
In Switzerland the will of the people, when expressed in the the Constitution, is admittedly supreme. This supremacy is not disputed by any political party or by any section of the community. No one dreams of changing the democratic basis of the national institutions. There does not exist in Switzerland any faction which, like the reactionists in France, meditates the overthrow of the Eepublic. There does not exist any section of the community which, like the Bohemians in Austria, or like the French in Alsace, is, or may be supposed to be, disloyal to the central government. But in Switzerland not only the supremacy but the direct authority of the nation is, practically as well as theoretically, acknowledged. The old idea of the opposition between the government and the people has vanished. All parts of the government, including in that term not only the Executive but also the Legislative bodies, are the recognised agents of the nation, and the people In intervene directly in all important acts of legislation. Switzerland, in short, the nation is sovereign in the sense in which a powerful king or queen was sovereign in the time when monarchy was a predominant power in European countries, and we shall best understand the attitude of the Swiss nation towards its representatives, whether in the Executive or in Parliament, by considering that the Swiss people occupies a position not Howunlike that held, for example, by Elizabeth of England. ever great the Queen's authority, she was not a tyrant, but she
mode provided by
and Parties in Continental Europe, ii., Switzerland, Das Staatsrecht der Schweizerischen Eidgenossenschaft ; Marquardaen's Handbuch des Oefentlichen Rechts, iv. i. 2.
'
See Lowell, Oovernmenfs

;
pp. 180-336
Orelli,
5i8
APPENDIX
really in the last resort governed the country,

were her servants
and her ministers and carried out her policy. The Queen did not directly legislate, but by her veto and by other means she Such is, speaking roughly, controlled all important legislation. The Federal Executive and the position of the Swiss people. the Federal Parliament pursue the lines of policy approved by
the people. Under the name of the Eeferendum there is exercised a popular veto on laws passed by the Legislature, and of recent years, under the name of the Initiative, an attempt has been made at more or less direct legislation by the people. Whatever be the merits of Swiss institutions, the idea which governs them is obvious. The nation is monarch, the Executive and the members of the Legislature are the people's agents or
ministers.
The second
is
idea to which Swiss institutions give expression

business-like.
of capacity,
that politics are a matter of business.

is
government
transacted
nation.
The
by men
who
of Swiss the nation are give effect to the will of the

affairs
The system
of
The last and most original Swiss conception is one which it not easy for foreigners bred up under other constitutional systems to grasp. It is that the existence of political parties does not necessitate the adoption of party government. These are the principles or conceptions embodied in Swiss institutions ; they are closely inter-connected, they pervade and to a great extent explain the operation of the different parts of the Swiss Constitution. Many of its features are of course common to all federal governments, but its special characteristics are due to the predominance of the three ideas to which the reader's attention has been directed. That this is so will be seen if we examine the different parts of the Swiss Constitution. I. The Federal Coiincil. This body, which we should in England call the Ministry, consists of seven persons elected at their first meeting by the two Chambers which make up the Swiss Federal Assembly or Congress, and for this purpose sit together. The Councillors hold office for three years, and being elected after the first meeting of the Assembly, which
is
keep their places 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 of the Federal Assembly, and though they lose their seats on election, yet, as they can take part in the debates of each House, may for practical purposes be considered members of the Assembly or Parliament. The powers confided to the
itself is elected for three years,
5 IV/SS
FED ERA LISM
5 1
Council are wide. The Council is the Executive of the Confederacy and possesses the authority naturally belonging to the national government. It discharges also, strange as this may appear to Englishmen or Americans, many judicial functions. To the Council are in many cases referred questions of "administrative law," and also certain classes of what Englishmen or Americans consider strictly legal questions. Thus the Council in effect determined some years ago what were the rights as to meeting in public of the Salvation Army, and whether and to what extent Cantonal legislation could prohibit The Council again gives the required or regulate their meetings. sanction to the Constitutions or to alterations in the Constitutions of the Cantons, and determines whether clauses in such Constitutions are, or are not, inconsistent with the articles of the Federal Constitution. The Council is in fact the centre of
the whole Swiss Federal system ; it is called upon to keep up good relations between the Cantons and the Federal or National government, and generally to provide for the preservation of order, and ultimately for the maintenance of the law throughout - the whole country. All foreign affairs fall under the Council's supervision, and the conduct of foreign relations must, under the circumstances of Switzerland, always form a most important and difficult part of the duties of the government. Though the Councillors are elected they are not dismissible by the Assembly, and in so far the Council may be considered an independent body; but from another point of view the It is expected to carry out, and Council has no independence. does carry out, the policy of the Assembly, and ultimately the policy of the nation, just as a good man of business is expected Many matters which to carry out the orders of his employer.
are practically determined by the Council might constitutionally be decided by the Assembly itself, which, however, as a rule leaves the transaction of affairs in the hands of the Council. But the Council makes reports to the Assembly, and were the Assembly to express a distinct resolution on any subject, effect
Nor is it expected that either the it. Council or individual Councillors should go out of office because proposals or laws presented by them to the Assembly are rejected, or because a law passed, with the approval of the Council, by the Chambers, is vetoed on being referred to the The Council, further, though as the members thereof, people. being elected by the Federal Assembly, must in general agi-ee with the sentiments of that body, does not represent a Parliawould be given to
mentary majority as does an English or a French Ministry.
The
S20
APPENDIX
though elected for a term of three years, are reand as a rule are re-elected. The consequence is that a man may hold office for sixteen years or more, and that the character of the Council changes but slowly ; and there have, it is said, been cases in which the majority of the Parliament belonged to one party and the majority of the Council to another, and this want of harmony in general political views between the Parliament and the Government did not lead to inconvenience. In truth the Council is not a Cabinet but a Board for the management of business, of which Board the so-called President of the Confederation, who is annually elected from among the members of the Council, is merely the chairman. It may fairly be compared to a Board of Directors chosen by the members of a large joint-stock company. In one sense the Board has no
Councillors,
eligible,
The majority of the shareholders, did they choose to do so, could always control its action or reverse its policy. In another sense, as we all know, a Board is almost free from control. As long as things are well, or even tolerably, managed, the shareholders have neither the wish nor practically the power to interfere. They know that the directors possess knowledge and experience which the shareholders lack, and that to interfere with the Board's management would imperil the welfare of the association. So it is with the Federal Council. Its dependence is the source of its strength. It does not come into conflict with the Assembly; it therefore is a permanent body, which carries on, and carries on with marked success, the administration of public affairs. It is a body of men of business who transact the business of the State. It is worth while to dwell at some length on the constitution and character of the Swiss Council or Board, because it gives us a kind of Executive difTering both from the Cabinet government of England or France, and from the Presidential government of America. The Council does not, like an English Cabinet, repreindependent power.
and immediately, a predominant be at any moment dismissed from office. Its members keep their seats for a period longer than the time during which either an English Ministry or an Ameiican President can hope to retain office. But the Council, though differing greatly from a Cabinet, is a Parliamentary or semi-Parliamentary Executive.^ It has not, like an American
sent,
at
any
rate
directly
political party.
It is not liable to
President, an independent authority of
its
own
The
which, being
derived
from popular
to,
election,
may
transcend,
and even be
constitutional
opposed
the authority of the Legislature.

'
See Note III. p. 480, ante.
S IVJSS
FEDERALISM
521
history of Switzerland since 1848 has exhibited none of those conflicts between the Executive and the legislative body which
have occurred more than once in the United States. The position of the Council may, if we seek for an historical parallel, be compared with that of the Council of State under the Cromwellian Instrument of Government, and indeed occupies very nearly the position which the Council of State would have held had the Instrument of Groveniment been, in accordance with the wishes of the Parliamentary Opposition, so modified as tp allow of the frequent re-election by Parliament of the members of the Council. If we desire a modern parallel we may perhaps find
'^
it
in the English Civil Service.
The members
of the Council are,
permanent heads of the English Government offices, ofiicials who have a permanent tenure of ofiSce, who are in strictness the servants of the State, and who are expected to carry out, and do carry out, measures which they may not have framed, and the policies of which they may not approve. This comparison is the more instructive, because in the absence of an elaborate Civil Service the members of the Council do in effect discharge rather the duties of permanent civil servants than of
like the
ministers.
This Parliament is certainly II. The Federal Assembly. For modelled to a certain extent on the American Congress. several purposes, however, the two chambers of which it consists sit together. As already pointed out, when thus combined they The Assembly, moreover, elect the Federal Council or JWinistry. unlike any representative assembly to which the English is, people are accustomed, on certain administrative matters a final Court of Appeal from the Council. The main function, however, of the Assembly is to receive reports from the Council and to legislate. It sits but for a short period each year, and confines
Laws passed pretty closely to the transaction of business. Its members referred to the people, be vetoed. are pretty constantly re-elected, and it is apparently one of the most orderly and business-like of Parliaments. The Assembly consists of two chambers or houses. The Council of States, or, as we may more conveniently call it, the Senate, represents the Cantons, each of which as a rule
itself
by it may, when
sends two members to it. The National Council, like the American House of RepreIt varies in numbers sentatives, directly represents the citizens.
cap. 39
See the "Constitutional Bill of the First Parliament of the Protectorate,'' Gardiner, Constitutional Documents of the. Puritan Resolution, pp. 366,
;
367.
APPENDIX
with the growth of the population, and each Canton
is
repre-
sented in proportion to its population. In one important respect the Federal Assembly differs from the American Congress. In the United States the Senate has In hitherto been the more influential of the two Houses. Switzerland the Council of States was expected by the founders of the Constitution to wield the sort of authority which belongs to the American Senate. This expectation has been disappointed. The Council of States has played quite a secondary part in the working of the Constitution, and possesses much less power than the National Council. The reasons given for this are various. The members of the Council are paid by the Cantons which they represent. The time for which they hold ofiice is regulated by The Council has each Canton, and has generally been short. no special functions such as has the American Senate, and the general result has been that leading statesmen have sought for seats not in the Council of State, but in the National Council. One cause of the failure on the part of the Council of States to fulfil the expectations of its creators seems to have escaped Swiss attention. The position and functions of the Federal Council or Ministry, its permanence and its relation to the Federal Parliament, make it impossible for the chamber which represents the Cantons to fill the place which is occupied in America by the House which represents the States. The inferior position of the Swiss Council of States deserves notice. It is one of the parts of the Constitution which was suggested by the experience of a foreign country, and for this very reason has, it may be suspected, not fitted in with the native institutions of Switzerland. III. The Federal Tribunal} This Court was constituted by statesmen who knew the weight and authority which belongs to the Supreme Court of the United States ; but the Federal Tribunal was from the beginning, and is still, a very different body from, and a much less powerful body than, the American Supreme Court. It is composed of fourteen judges, and as many substitutes elected for six years by the Federal Assembly, which also designates the President and the Vice-President of the Court for two years at a time. It possesses criminal jurisdiction in cases of high treason, and in regard to what we may term high crimes and misdemeanours, though its powers as a criminal
Court are rarely put into operation. It has jurisdiction as regards suits between the Confederation and the Cantons, and between the Cantons themselves, and generally in all suits in
1
Lowell,
ii.
p.
214
Orelli, pp. 38-44.
SWISS FEDERALISM
523
which the Confederation or a Canton is a party. It also determines all matters of public law, and has by degrees, in consequence of federal legislation, been made virtually a general Court of Appeal from the Cantonal tribunals in all cases arising under federal laws where the amount in dispute exceeds 3000 francs. Add to this that the Court entertains complaints of the
violation of the constitutional rights of citizens,
and
this
whether
the right alleged to be violated
by a Cantonal constitution. Court was constituted was the giving decisions, or rather the making of judicial declarations where points of public law are in dispute; and its civil jurisdiction has, under the stress of circumstances, been increased beyond the limits within which the
founders of the Swiss Constitution intended it to be restrained. But the Federal Tribunal, though possessed of a wide and somewhat indefinite jurisdiction, wields nothing like the power possessed by the Supreme Court of the United States. It has no jurisdiction whatever in controversies with reference to " administrative law ; these are reserved for the Federal " Council, and ultimately for the Federal Assembly,^ and the term " administrative controversies " has been given a very extensive signification, so that the Court has been excluded "from the consideration of a long list of subjects, such as the right to carry
guaranteed by a Federal or The primary object for which the

is
on a trade, commercial
certificates
treaties,
consumption taxes, game laws,

acts,
of
professional
capacity, factory
bank-notes,
weights and measures,- primary public schools, sanitary police, and the validity of cantonal elections,"^ which would primd facie seem to fall within its competence. The Tribunal, moreover, though it can treat cantonal laws as unconstitutional, and therefore invalid, is bound by the Constitution to treat all federal
legislation as valid.
The judges of the Federal Tribunal are appointed by the Federal Assembly, and for short terms. The Tribunal stands alone, instead of being at the head of a national judicial system. It has further no officials of its own for the enforcement of its judgments. They are executed primarily, by the cantonal authorities, and ultimately, if the cantonal authorities The control, morefail in their duty, by the Federal Council* over, exerted by the Federal Tribunal over the acts of Federal Any citizen may sue an official, but, as officials is incomplete. already pointed out, administrative controversies are excluded
See Swiss Constitution, Art. 86, s. 12, and Art. 113. See Swiss Constitution, Art. 113 ; Brinton Coxe, Unconstituiional Legislation, p. 86. * See Adams, Sujiss Confederation, pp. 74, 75.
1
^ Lowell, p. 218. Judicial Power and
524
APPENDIX
from the Court's jurisdiction, and in case there is a conflict of jurisdiction between the Federal Council and the Federal Tribunal, it is decided not by the Court but by the Federal Assembly, which one would expect to support the authority of The Federal Tribunal, at any rate, cannot as the Council.
regards such disputes fix the limits of its own competence.'^ Under these circumstances it is not surprising that the Tribunal exercises less authority than the Supreme Court of the United What may excite some surprise is that, from the very States. nature of federalism the jurisdiction of the Federal Tribunal
has, in spite of all disadvantages
under which the Court
suffers,
year by year increased.

religious liberty,
Thus
until
of
and the rights
1893 questions relating to different sects, were reserved
for the decision of the Federal Assembly.
Since that date they have been transferred to the jurisdiction of the Federal Tribunal. This very transfer, and the whole relation of the Tribunal, the Council, and the Assembly respectively, to questions which would in England or the United States be necessarily decided by a law court, serve to remind the reader of the imperfect recognition in Switzerland of the "rule of law," as it is understood in England, and of the separation of powers as that doctrine is understood in many continental countries.^ IV. The Referendum.^ If in the constitution of the Federal Tribunal and of the Council of States we can trace the influence of American examples, the referendum, as it exists in Switzerland, is an institution of native growth, which has received there a far more complete and extensive development than in any other country. If we omit all details, and deal with the referendum as it in fact exists under the Swiss Federal Constitution, we may describe it as an arrangement by which no alteration or amendment in the Constitution, and no federal law which any large number of Swiss citizens think of importance, comes finally into force until it has been submitted to the vote of the citizens, and has been sanctioned by a majority of the citizens who actually vote. It may be added that a change in the Constitution thus referred to the people for sanction cannot come into force unless it is approved of both by a majority of the citizens who vote, and by a majority of the Cantons. It must further be noted that the referendum in different forms exists in all but one of
2 Lowell, See Lowell, p. 220. pp. 218, 219. See Lowell, ii. chap. xii. ; Adams, Siiriss Confederation, chap. vi. The referendum, though not under that name, exists for many purposes in the dilferent States of the American Union. There is no trace of it, or of any institution corresponding to it, in the Constitution of the United States. Compare Oberholtzer, Referendum in America,
1 '
SWISS FEDERALISM
the Swiss Cantons, and
525
may
therefore
now
be considered an
essential feature of Swiss constitutionalism.
The referendum
is
therefore in effect a nation's veto. It gives to the citizens of Switzerland exactly that power of arresting legislation which is still in theory and was in the time, for example, of Elizabeth actually possessed by an English monarch. bill could not
had obtained the consent of the Crown. In popular language, the Crown, in case the monarch dissented, might be said to veto the bill. A more accurate way of describing the Crown's action is to say that the King threw out or rejected the bill just as did the House of Lords or the House of Commons when either body refused to pass a bill. This is in substance the position occupied by the citizens of Switzerland when a law passed by the Federal Assembly is
finally
become a law
until
it
submitted to them for their approbation or rejection. If they give their assent it becomes the law of the land if they refuse their assent it is vetoed, or, speaking more accurately, the proposed law is not allowed to pass, i.e. to become in reality a law. The referendum has a purely negative effect. It is in many of the Cantonal Constitutions, and in the Federal Constitution to a certain extent, supplemented by what is called the Initiative that is, a device by which a certain number of citizens can propose a law and require a popular vote upon it in spite of the refusal of the legislature to adopt their views.i The Initiative has, under the Federal Constitution at any rate, received as yet but little Whether it can be under any circumstances a successful trial. All that need here be mode of legislation may be doubted. noted is that while the introduction of the Initiative is neither in theory nor in fact a necessary consequence of the maintenance of the referendum, both institutions are examples of the way in which in Switzerland the citizens take a direct part in
;
legislation.
The referendum, taken
in
combination with the other pro-
visions of the Constitution,
Swiss federalism, tends, it is It alters, in the first place, the position both of the Legislature and of the Executive. The Assembly and the Federal Council become obviously the agents of the Swiss people. This state of things, while it decreases the power, may also increase the
and with the general character of conceived, to produce two effects.
member of the Council, or the freedom of Swiss statesmen. Council itself, proposes a law which is passed by the Legislature. It is, we will suppose, as has often happened, referred to the The Council and the people for approval and then rejected.
1
Lowell, p. 280.
526
APPENDIX
Assembly bow without any discredit to the popular decision. There is no reason why the members either of the Council or of
it has frequently disapproving of certain laws submitted for their acceptance by the Federal Assembly, have re-elected the very men whose legislation they have refused to Individual politicians, on the other hand, who advocate accept. particular measures just because the failure to pass these measures into law does not involve resignation or expulsion from office, can openly express their political views even if these views differ from the opinions of the people. The referendum, in the second place, discourages the growth of party government. The electors do not feel it necessary that the Council, or even the Assembly, should strictly represent one party. Where the citizens themselves can veto legislation which they disapprove, it matters comparatively little that some of their representatives should entertain political opinions which do not at the moment commend themselves to the majority of the electorate. The habit, moreover, acquired of taking part in legislation must probably accustom Swiss citizens to consider any proposed law more or less on its merits. They are at any rate less prone than are the voters of most countries to support a party programme which possibly does not as to every one of its provisions command the assent of any one voter. It may, of course, on the other hand, be maintained that it is the incomplete development of party government in Switzerland which favours the adoption of the referendum. However this may be, there can be little doubt that the existence of the most peculiar of Swiss institutions has a close connection with the condition of Swiss parties. Swiss Federalism has been, as we have already pointed out, considerably influenced by American Federalism, and it is almost impossible for an intelligent student not to compare the most successful federal and democratic government of the New World with the most successful federal and democratic government of Europe, for the history and the institutions of America and of Switzerland exhibit just that kind of likeness and unlikeness which excites comparison.
the Legislature should
resign
their seats;
happened that the
electors, whilst
federations;
States and Switzerland are both by nature neither country could, it is pretty clear, prosper under any but a federal constitution ; both countries are, at the present day at any rate, by nature democracies. In each
The United
country the States or Cantons have existed before the federation. In each country state patriotism was originally a far stronger sentiment than the feeling of national unity. In America and
SWISS FEDERALISM
in Switzerland national unity has been the
it
527
growth
of necessity.
It is also probable that the sentiment of national unity,
now
that
has been once evoked, will in the long run triumph over the feeling of State rights or State sovereignty. In a very rough manner, moreover, there is a certain likeness between what may be called the federal history of both countries. In America and in Switzerland there existed for a long time causes which prevented and threatened finally to arrest the progress towards national unity. Slavery played in the United States a part which resembled at any rate the part played in Swiss history by religious divisions. In America and in Switzerland a less progressive, but united and warlike, minority of States held for a long time in check the influence of the richer, the more Constant disputes as to the civilised, and the less united States. area of slavery bore at any rate an analogy to the disputes about the common territories which at one time divided the Catholic and Protestant Cantons. Secession was anticipated by the Sonderbund, and the triumph of Grant was not more complete Nor is it at all certain that the than the triumph of Dufour. military genius of the American was greater than the military The War of Secession and the War genius of the Swiss general.
of the
Sonderbund had
this furt'her quality in
common.
They
each absolutely concluded the controversies out of which they had arisen ; they each so ended that victors and vanquished alike soon became the loyal citizens of the same Eepublic. Each country, lastly, may attribute its prosperity, with plausibility at least, to its institutions, and these institutions bear in
their general features a
marked
similarity.
however, between American and Swiss Federalism is at least as remarkable as the likeness. America is the largest as Switzerland is the smallest of Confederations; more than one American State exceeds in size and population The American Union is the whole of the Swiss Confederacy. from every point of view a modern state the heroic age of
The
unlikeness,
concerned, had closed before a single European had set foot in America, and the independence of Switzerland was acknowledged by Europe more than a century before the United States began their political
Switzerland, as far as military glory
is
American institutions are the direct outgrowth of English ideas, and in the main of the English ideas which prevailed in England during the democratic movement of the American society was never under the seventeenth century The democracy of Switzerland is imbued influence of feudalism. in many respects with continental ideas of government, and till
existence.
;
528
APPENDIX
time of the great French Revolution, Swiss with inequalities originating in feudal ideas.
is
tlie
society
filled
was The United
States
made up
of States
;
which have always been used to
the Cantons of Switzerland have been mainly accustomed to non-representative, aristocratic or democratic government. Under these circumstances, it is naturally to be expected that even institutions which possess a
representative
institutions
certain formal similarity should display
an essentially
different
character
in
countries which
differ
so widely as the United
States and Switzerland.
These differences may be thus roughly summed up American Federalism is strong where Swiss Federalism is weak; where American Federalism is weak, Swiss Federalism is strong. The Senate and the Judiciary of the United States have rightly excited more admiration than any other part of the American Constitution. They have each been, to a certain extent, imitated by the founders of the existing Swiss Republic. But in neither instance has the imitation been a complete success. The Council of States has not the authority of the Senate the Federal Tribunal, though its power appears to be on the increase, cannot stand ^ comparison with the Supreme Court. The judicial arrangements of Switzerland would appear, at any rate to a foreign critic, to be the least satisfactory of Swiss institutions, and the exercise by the Federal Council and the Federal Assembly of judicial powers is not in unison with the best modern ideas as to the due administration of
:
justice.
institutions which receive very not actual censure even from favourable critics, are the mode in which the President is appointed, the relation of the Executive Government to the Houses of Congress, the disastrous development of party organisation, and the waste or corruption which are the consequence of the predominance of party managers or wirepullers. The Federal Council, on the other hand, forms as good an Executive as is possessed by any country in the world. It would appear to a foreign observer (though on such a matter
The
features
in
American
qualified approval,
if
foreign critics are singularly liable to delusion) to combine in a rare degree the advantages of a Parliamentary and of a non-
Parliamentary government.
It acts in
uniform harmony with
the elected representatives of the people, but though appointed by the legislature, it enjoys a permanent tenure of office unknown to Parliamentary Cabinets or to elected Presidents.
Though
parties, again,
exist,
and party
spirit occasionally
runs
SWISS FEDERALISM
529
high in Switzerland, party government is not found there to be a necessity. The evils, at any rate, attributed to government by party are either greatly diminished or entirely averted.
The Caucus and

country
is
the "Machine" are all but unknown. The freed from the unwholesome excitement of a Presidential election, or even of a general election, which, as in England,
There
determines which party shall have possession of the government. is no notion of spoils, and no one apparently even hints at
corruption.
NOTE
IX
AUSTRALIAN FEDERALISM ^
The aim
been to combine in the from the federal and republican constitutionalism of the United States, or, to a certain extent, of Switzerland, with ideas derived from
of Australian statesmen has
Constitution of
the
Commonwealth
ideas borrowed
the unitarian
and monarchical constitutionalism
of England.
They have
also created for the
Commonwealth
itself,
for each of the several States thereof, the relation
and retained which has for
years existed between England and the self-governing colonies

of Australia.
Hence the Commonwealth exhibits four main characteristics a Federal form of Government; secondly, a Parliamentary Executive ; thirdly, an effective Method for amending the Con:
first,
fourthly, the maintenance of the Relation which exists between the United Kingdom and a self-governing colony.
stitution
A. Federal Government
The Commonwealth is in the strictest sense a federal government. It owes its birth to the desire for national unity which pervades the whole of Australia, combined^ with the determination on the part of the several colonies to retain as States of the Commonwealth as large a measure of independence
^ The Commonwealth of Australia Constitution Act, 63 & 64 Vict. 0. 12. Quick and Garran, The Annotated Constitution of the Australian Commonwealth. Moore, The Commonwealth of Australia. Bryce, i. Studies in History and Jurisprudence, Essay VIII.
"
See p. 135, ante.
See pp. 136-139, ante.
530
APPENDIX
be found compatible with the recognition of Australian The creation of a true federal government has been achieved mainly by following, without however copying in any servile spirit, the fundamental principles of American As in the United States so in the Australian federalism. Commonwealth the Constitution is (subject of course to the sovereign power of the Imperial Parliament) the supreme law of the land ; ^ the Constitution itself in the Australian Commonwealth, as in the United States, fixes and limits the spheres of the federal or national government and of the States respectively, and morever defines these spheres in accordance with the principle that, while the powers of the national or federal government, including in the term government both the Executive and the Parliament of the Commonwealth, are, though wide, definite and limited, the powers of the separate States are indefinite, so that any power not assigned by the Constitution to the federal government remains vested in each of the several States, or, more accurately, in the Parliament of each State.^ In this point Australian statesmen have followed the example, not of Canada, but of the United States and of Switzerland. The methods again for keeping the government of the Commonwealth on the one side, and the States on the other, within their proper spheres have been suggested in the main by American experience. The Parliament of the Commonwealth is so constituted as to guarantee within reasonable limits the maintenance of State rights. For whilst the House of Eepresentatives represents numbers, the Senate represents the States of the Commonwealth, and each of the Original States is
as
may
nationality.
and population, to an equal is so framed as to secure respect for the Senate the longer term for which the Senators are elected and the scheme of retirement by rotation, which will, in general, protect the Senate from a dissolution, are intended to make the Senate a more permanent, and therefore a more experienced, body than the House of Representatives, which can under no circumstances exist for more than three years, and may very well be dissolved before that period has
entitled,
irrespective
of
its
size
number
of senators.*
The
Constitution, further,
;
elapsed; then too the senators will, as the Constitution now stands, represent the whole of the State for which they sit.* The States, again, retain a large amount of legislative indeConstitution, ss. 51, 108. 2 lUd. ss. 106, 107. IKii. 0. 7. Such experience however as can lie supplied by the events of eight years shows, it is said, that the Senate is absolutely hostile to the maintenance of State rights, and fai' more so than the House of Representatives * Ihid. a. 7.
'
'
AUSTRALIAN FEDERALISM
pendence.
531
Neither the Executive nor the Parliament of the either directly or indirectly veto the legislation, e.g., of the Victorian Parliament. Lastly, the law Courts, and especially the Federal Supreme Court, are, as in the United States, the guardians of the Constitution, for the Courts are called upon, in any case which comes before them for decision, to pass judgment, should the point be raised, upon the constitutionality, or, in other words, upon the validity under the Constitution of any Act passed either by the Parliament of the Commonwealth or by the Parliament of, e.g., Victoria. That this duty is laid upon the Courts is not indeed expressly stated in the Constitution of the Commonwealth, any more than in the Constitution of the United States ; but no English lawyer can doubt that the Courts, and ultimately the Federal Supreme Court, are intended to be the interpreters, and in this sense the protectors of the Constitution. They are, be it noted, in no way bound, as is the Swiss Federal tribunal, to assume the constitutionality of laws passed by the federal legislature. The founders, then, of the Commonwealth have, guided in the main by the example 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, from England. This is specially visible in
Commonwealth can
B. The Parliamentary Executive
The Executive of the Commonwealth is a parliamentary Cabinet, such as has long existed in England, and as exists in The authors indeed all the self-governing British colonies. of the Australian Constitution have, true to English precedent, never made use of the word cabinet ; they have not
enacted that the executive shall be a ; but no one who has the least acquaintance with the history of the English constitution, or of the working of the constitutions which have been conferred upon the self-governing colonies of Australia, can doubt that the federal executive is intended to be, as it in fact is, a parliamentary ministry, which, though
even in so
many words
body
of ministers responsible to the federal Parliament
nominally appointed by the Governor- General, will owe its power to the support of a parliamentary majority, and will therefore, speaking broadly, consist in general of the leaders of This cabinet the most powerful parliamentary party of the day. possesses the most peculiar among the attributes of an English
532
APPENDIX
namely, the power, in many cases at any rate, to and thus appeal from the body by whom the ministry was created to the people, or in other words to the electors, of the Commonwealth. We should here also observe that the powers of the Australian executive exceed in one respect the authority of an English ministry; an English cabinet may often dissolve the House of Commons, but can never dissolve the House of Lords. But an Australian cabinet can under certain circumstances cause, indirectly at any rate, the dissolution of the Senate. In studying indeed the Constitution of the Commonwealth great attention should be paid to this existence of the right or power to dissolve Parliament ; it is not possessed by the President of the United States or by the Executive Council of the Swiss Confederation, and it is granted under the constitution of the existing French Eepublic only in a very limited degree to the French President ; nor is there anything to make it certain that the President, even if being sure of the assent of the Senate he has the power to dissolve the Chamber of Deputies, will exert his authority at the request of the ministry.^ The point to be specially noted is that the Federalists of Australia have almost as a matter of course placed the executive power in the hands of a parliamentary cabinet; they have neither adopted the American plan of an elected President, whereby the administration of affairs is placed in the hands of a non-parliamentary executive, or the Swiss scheme of creating a semi-parliamentary executive, which, while elected by the federal Parliament, cannot be dismissed by it. It is true that it might have been found difficult to adjust the relations between a non-parliamentary or a semi-parliamentary executive and the English cabinet or the Imperial Parliament. But the difficulty is not one which need necessarily be insuperable. The true reason, it may be conjectured, why Australia has decisively adhered to the system of cabinet government is that a Parliamentary cabinet is the only form of executive to which the statesmen either of Australia or of England are accustomed. In one point, indeed, the executive of Australia may appear to bear an even more parliamentary character than does an English cabinet, for whilst, in theory at least, a statesman might be the member of an English ministry, though he were not a member of either House of Parliament, no Australian minister can hold office, ix. in effect be a member of the cabinet for more than three months, unless he becomes a Senator, or a member of the House of Eepresentatives.2 But here Australian statesmanship
ministry,
dissolve Parliament,
'
Esraein, Droit Constitutionnel, pp. 556-563. " Constitution, s, 64.
A USTRALIAN PEbERALiSM
533
has followed the conventions rather than the law of the English constitution, for in practice an English cabinet always consists of men who are members or will become members either of the House of Lords or of the House of Commons. Indeed it is worth remark that in several instances where the Australian Constitution deviates from that of England, the deviation is caused by the desire to follow the spirit of modern English constitutionalism. Thus the elaborate and ingenious plan for avoiding in case of disagreement between the two Houses a parliamentary deadlock ^ is simply an attempt to ensure by law that deference for the voice of the electorate which in England constitutional conventions enforce in the long run upon both Houses of the Imperial Parliament.
C.
Amendment
of the Constitution
must of necessity be a " rigid " conbut the constitutions of each of the Australian selfgoverning colonies, e.g. of Victoria, have been in substance "flexible" constitutions of which the colonial Parliament could change the articles as easily, or nearly as easily, as any other law.
federal constitution
;
stitution
Now
the people of Australia have,

si
we may
safely assume,
no
desire to forego the advantages of
flexible constitution or to
adopt a federal polity which should lend itself as little to amendment as does the Constitution of the United States, or should, like the Constitution of the Canadian Dominion, be amendable only by the action of the Imperial Parliament. Hence Australian Federalists were forced to solve the problem of giving to the
Constitution of the Commonwealth as much rigidity as is required of a federal government, and at the same time such flexibility as should secure to the people of Australia the free exercise of legislative authority, even as regards articles of
by the nature
the Constitution.
Their solution of this problem is ingenious. The Constitution of the Commonwealth is, looked at as a whole, a rigid constitution, since it cannot be fundamentally altered by the ordinary method of parliamentary legislation.
But
this rigidity of the constitution is
tempered in three
different ways.
JTirsf. The Parliament of the Commonwealth is endowed with very wide legislative authority; thus it can legislate on many topics which lie beyond the competence of the Congress of the United States, and on some topics which lie beyond the
^
Constitution,
s.
67.
"
534
APPENDIX
competence of the Parliament of the Canadian Dominion ; ^ and here worth notice that the extension of the powers of the Commonwealth Parliament is facilitated by the fact that on many topics the federal legislature and the State Parliaments have concurrent legislative authority, though of course where a law of the Commonwealth 'conflicts with the law of a State, the federal law, if within the competence of the Commonwealth
it is
Parliament, prevails.^
Secondly.
A
is
large
number
of the articles of the constitution
remain in force only " until Parliament otherwise provides ; they can therefore be changed like any other law by an Act of Parliament passed in the ordinary manner ; in other words, the
constitution
Thirdly.
The
as to
many
of its provisions flexible.*
constitution provides the

principle,
alteration
and embodies the
means for its own though not the name, of
the Swiss institution

of constitutional
:
broadly and normally as follows law changing the constitution must be passed by an absolute majority of each House of Parliament ; it must then be submitted to the electors of the Commonwealth for their approval ; if in a majority of the States a majority of the electors voting approve the law and also a majority of all the electors voting approve the law, it must be submitted to the GovernorGeneral for the King's assent, and on receiving the due assent becomes, like any other bill, an Act of Parliament. The principle of the whole proceeding is that the constitution can be changed by a vote of the federal Parliament, ratified by the approval both of the majority of the States and of the majority of the
is
known amendment
as the referendum.
The
process
Commonwealth
It
electorate.
should however be noted that under certain circumstances a law for changing the constitution which has been passed by an absolute majority of one House of Parliament only, and either is rejected by the other House or not passed by an absolute majority thereof, must be submitted to the electors for their approval, and if approved in the manner already stated, becomes, on the assent of the Crown being duly given, an Act of Parliament.
Add to this that there are a few changes, e.g. an alteration diminishing the proportionate representation in any State in either House of Parliament, which cannot be carried through
'
art. 1, ss. 1
Compare Commonwealth Constitution, ss. 51, 52, with Constitution of U. and 8, and British North America Act, 1867 (30 & 31 Vict. u. 3),
See Constitution,
Ibid. Ibid.
s. 8. s.
S.,
ss.
91, 92.
^
*
>
51, suh.
s.
109. xxxvi. compared e.g. with
ss.
3,
29, 31, etc.
128.
A USTRALIAN FEDERALISM
535
unless the majority of the electors voting in that State approve of the change. 1
What may
venture
may
be the working of new institutions no one will confidently to predict; but a critic of constitutions entertain the hope that Australian statesmanship has
accomplished the feat of framing a polity which shall have the merits both of a rigid and of a flexible constitution, which cannot hastily be changed, but yet admits of easy amendment, whenever alteration or reform is demanded by the deliberate voice of the nation.
D, Maintenance of
the Eelation toith the
United Kingdom
The founders
influenced at once
of
the Commonwealth have admittedly been by a growing sense of Australian nationality,
and by enduring, or even increasing loyalty to the mothercountry. The one sentiment has been satisfied by the union of the Australian colonies under a federal government which secures to the people of Australia as complete power of selfgovernment as is compatible with the position of a colony that The other sentiment desires to form part of the British Empire. has been satisfied by placing the Commonwealth itself as regards
the mother-country in the position of a self-governing colony, and also by leaving the relation between each State of the Commonwealth and the United Kingdom as little disturbed as is compatible with the creation of the Australian Commonwealth.
Each point
is
worth
notice.
The Commonwealth of Australia itself is, as regards the Crown and the Imperial Parliament, nothing but a large selfThus the Governor-General is appointed by governing colony.
the Crown, i.e. by the English ministry, and fills substantially the same position as, before the formation of the Commonwealth, bill passed was occupied by the Governor, e.g., of Victoria. by the Parliament of the Commonwealth, whether it be an ordinary law or a law which, because it affects the constitution, has been submitted to the electors for their approval, requires in order that it may become an Act the assent of the Crown,^ and the Crown can negative or veto bills passed by the
Parliament of the Commonwealth just as it could, and still can, The veto bills passed by the Parliament, e.g., of Victoria. Imperial Parliament, again, has the admitted right, though it is a right which, except at the wish of the Australian people, would most rarely be exercised, to legislate for Australia, or even to
'
Constitution,
ss. 1,
s.
28,
Constitution,
58, 59,
and 128.
536
APPENDIX
modify the constitution of the Australian Commonwealth. An appeal further lies on most subjects from the decisions of the federal Supreme Court to the English Privy Council, and even the limitations placed on such appeals when certain questions as to the Commonwealth constitution are raised are themselves
subject to some qualifications.^
that as regards the
The broad result therefore is Commonwealth the connection with the
United Kingdom is retained, and the sovereignty of the Imperial Parliament is untouched. The position of any State of the Commonwealth in regard to the United Kingdom remains pretty much what it was when the State, e.g. Victoria, was still merely a self-governing colony. The G-overnor of Victoria is now, as then, appointed by the bill passed by the Crown, i.e. by the English ministry. Victorian Parliament still, in order that it may become an Act, The Government of the requires the assent of the Crown. Commonwealth possesses no power of putting a veto on bills The right of appeal from passed by the Victorian Parliament. a Court of Victoria to the English Privy Council stands, in most matters at any rate, substantially where it did before the passing of the Australian Commonwealth Act, except indeed that there is an alternative right of appeal to the High Court of Australia, for " the Constitution grants a new right of appeal " from the State Courts to the High Court, but does not take "away the existing right of appeal from the State Courts to " the Privy Council, which therefore remains unimpaired." ^ The peculiarities of Australian federalism receive illustration
See Constitution, ss. 71, 73, 74. Quick and Garran, Annotated Oonstitution, p. 738. Thus an appeal lies from the Supreme Court of each of the States to the Privy Council from any decision of their Courts as of right in circumstances defined in the several instruments constituting the Courts ; by special leave from the Privy Council in all oases without exception. This rule applies to the exercise of any jurisdiction, whether State or federal, vested in the State Courts, but the State Courts have not full federal jurisdiction. Prom their power are excepted all cases involving the relation inter se of the States, and the States and the Commonwealth. Appeals lie also from the State Courts to the High Court of Australia in matters both of State and federal jurisdiction on terms defined in the Judicature Act, 1903, of the Commonwealth Parliament. The appellant has of course the choice of appeal. There is nothing to prevent an appeal from such Courts to decide whether any particular case falls under sec. 74 of the constitution or not. Nor is there any mode of preventing contradictory decisions on matters other than questions arising as to the limits inter se of the constitutional powers of the Commonwealth and those of any State or States, or to the limits inter se of the constitutional powers of any two or more States which cannot reach the Privy Council. The High Court further is not bound to accept the rulings of the Privy Council as superior to its own except in those cases where an actual appeal is successfully brought not from the Superior Court of a State, but from the High Court to the Privy Council,
'^
;
AUSTRALIAN FEDERALISM
537
from a comparison between the constitution of the Canadian Dominion 1 and the constitution of the Australian Commonwealth.
The Dominion is from one point of view more, and from another point of view less, directly subject to the control of the Imperial Parliament than is the Commonwealth. The Dominion is more completely subject than the Commonwealth, because the greater part of the Canadian constitution - can be amended only by an Act of the Imperial Parliament, whilst the Australian constitution can be amended by the people of the Commonwealth ; this distinction, it is well to add, sounds more important than it is in reality, since we may feel morally certain that the Imperial
Parliament would introduce any amendment into the constitution of the Dominion which was deliberately desired by the majority at once of the people and of the Provinces of the Dominion. The Dominion of Canada, on the other hand, is less subject to the Imperial Parliament than is the Commonwealth, because the Provinces of the Dominion are in a sense less directly connected with the Imperial Government and Parliament than are the
Commonwealth. Here however we come across the most important distinction between Canadian federalism and Australian federalism, namely, the difference of the relation of the federal power to the States, or, as in the case of Canada they are called, the Provinces, of the federation. The Dominion possesses all the residuary powers which are not under the Constitution conferred exclusively upon the Commonwealth possesses only those powers the Provinces which are conferred upon it by the Constitution, whilst all the residuary powers not conferred upon the Commonwealth belong
States of the
;
to the States.
of the Dominion, again, can exercise very control over the legislation of the Provincial legisconsiderable latures and over the administration of the Provinces ; the government of the Dominion can in all cases put a veto upon
The government
laws passed by the Provincial Parliaments ; the government of the Dominion appoints the judges of the State Courts; the government of the Dominion, lastly, can appoint and dismiss the Lieutenant-Governor of any Province, who therefore is neither an Imperial official nor a Provincial official, but a
Dominion
^
official.
See Munro, Gonstitution of Canada. 2 But certain important though limited powers are under the constitution itself, to the Dominion Parliament and to i.e. the British North America Act, 1867, given amend their conthe Provincial legislatures, enabling them from time to time to See e.g. B.N.A. Act, 1867, stitutions (Munro, Gonstitution of Ganada, p. 229).
ss.
35, 41, 45, 78, 83, 84.
538
APPENDIX
NOTE X
MARTIAL LAW IN ENGLAND DUKING TIME OF OR INSURRECTION 1
WAR
question for our consideration is, on what principle, and within what limits, does armed resistance to the authority of the Crown, either on the part of an invading army, or on the part of rebels or rioters, afford a legal justification for acts done in England by the Crown, its servants, or loyal citizens, which, but for the existence of war or insurrection, would be breaches
of
The
law
In considering this question two preliminary observations must be borne in mind. The first is that this note does not treat of several topics which are often brought within the vague term, martial law. It does not refer to Military Law, i.e. the rules contained in the Army Act and the Articles of War for the government of the Army and of all persons included within the term "persons subject to military law " ; it has no reference to the laws that govern the action of an English General and his soldiers when carrying on war in a foreign country, or in their treatment of foreign invaders of England ; it has no reference to transactions taking place out of England, or to the law of any other country than England. It does not refer, e.g., to the law of Scotland oiof Jersey.
The second observation is that, in regard to the subject of note, we must constantly bear in mind the broad and fundamental principle of English law that a British subject must be presumed to possess at all times in England his ordinary common-law rights, and especially his right to personal freedom,
this
unless it can be conclusively shown, as it often may, that he is under given circumstances deprived of them, either by Act of Parliament or by some well-established principle of law. This
' See Law Quarterly Review, xviii., Holdsworth, Martial Law Historically Considered, pp. 117-132; Richards, Martial Law, ibid. pp. 133-142; Pollock,
What is Martial Law ? ibid. pp. 152-158 ; Dodd, Tlie Case of Marais, Hid. pp. 143-151. The Case of Ship Money, 3 St. Tr. 826 ; Wall's Case, 28 St. Tr. 61 Expa/rte D. F. Marais [1902], A. C. 109 Forsyth, Cases and Opinions, ch. vi. Clode, Military Forces of the Grown, ii. oh. xviii. p. 188 Mx parte Milligan (Am.), 4 Wall. 2, and Thayer, Cases on Constitutional Law, ii. p. 2376. This, and the other American cases on martial law, though not authorities in an English Court, contain an exposition of the common law in regard to martial law which deserves the most careful attention. See also Note IV., Right of Self-Defence Note V., Right of Public Meeting Note VI., Soldiers and Unlawful Meeting, ante.
; ; ; ; ;
MARTIAL
LAW
539
presumption in favour of legality is an essential part of that rule of law 1 which is the leading feature of English institutions. Hence, if any one contends that the existence of a war in England deprives Englishmen of any of their common-law rights, e.g. by establishing a state of martial law, or by exempting military officers from the jurisdiction of the civil Courts, the burden of proof falls distinctly upon the person putting forward this contention.
Our topic may be considered nature of martial law ; secondly, drawn from the nature of martial with regard to martial law which
propounded in
this note.
under three heads ; first, the the inferences which may be law thirdly, certain doctrines are inconsistent with the view
;
A. Nature of Martial Law

" Martial law," in the sense in
which the expression
is
here
its
used,
means the power,
right,
or duty of the
Crown and
servants, or, in other words, of the
public order, or,
Government, to maintain in technical language, the King's peace, at what-
ever cost of blood or property may be in strictness necessary Hence martial law comes into existence in for that purpose. times of invasion or insurrection when, where, and in so far as the King's peace cannot be maintained by ordinary means, and This owes its existence to urgent and paramount necessity.^ power to maintain the peace by the exertion of any amount of force strictly necessary for the purpose is sometimes described
as the prerogative of the Crown, but it may more correctly be considered, not only as a power necessarily possessed by the Crown, but also as the power, right, or diity possessed by, or
citizen of preserving or restoring King's peace in the case, whether of invasion or of rebellion the or generally of armed opposition to the law, by the use of any amount of force whatever necessary to preserve or restore the This power or right arises from the very nature of peace. things. No man, whatever his opinions as to the limits of the
incumbent upon, every loyal
prerogative,
can question the duty of loyal subjects to
aid,
all
subject to the
command
of the
Crown, in
resistance,
it
by
necessary means, to an invading army.^
Nor can
be denied
See chap, iv., ante. M. See Kent, Oomm. i. p. 341, and opinion of Sir John Camptell and Sir E. Eolfe, Forsyth, Opinions on Constitutional Law, pp. 198, 199. 1011s -See especially the Case of Skip Money, 3 St. Tr. 860, 905, 974, 975, 1013, 1134, 1149, 1162, and 1214.
1
540
APPENDIX
that acts, otherwise tortious, are lawful when necessary for the resistance of invaders.'" When enemies come against the realm to the sea coast, it is " lawful to come upon my land adjoining to the same coast, to " make trenches or bulwarks for the 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 the realm, as appears 8 Ed. IV. 23. And in such " case or such extremity they may dig for gravel for the making
" " of bulwarks " benefit by it.
:
for this
. .
is
for the public,
and every one hath

et
And
in this case the rule is true, Princeps
" respublica ex justa causa possunt
rem meam
auferre."
So
to the
same
effect counsel for
the defence in the Case of
Ship Money.
" My Lords, in these times of war 1 shall admit not only His " Majesty, but likewise every man that hath power in his hands, " may take the goods of any within the realm, pull down their " houses, or burn their corn, to cut off victuals from the enemy, " and do all other things that conduce to the safety of the king-
dom, without respect had to any man's property." * And though these authorities refer, as is worth noticing, to interferences with rights of property and not to. interferences with personal freedom, between which there exist considerable differences, it will not (it is submitted) be disputed that, in case of invasion, a general and his soldiers acting under the authority of the Crown may lawfully do acts which would otherwise be an interference with the personal liberty, or even, under conceivable circumstances, which may cause the death of British
"
subjects,
if
these acts are a necessary part of military operations.

to be borne in
is
The point
martial law, which
mind is that the power to exercise not ill-described by an expression known to the American Courts, viz. the " war power," as it originates in, so it is limited by, the necessity of the case.* On this matter note the opinion of Sir J. Campbell and Sir E. M. Rolfe that " martial law is merely a cessation from neces" sity of all municipal law, and what necessity requires it " justifies " ; ^ and this description of the circumstances which justify martial law also implies the limits within which it is
2 12 Rep. 12. See 1 Dyer, 366. Case of Ship Money, 3 St. Tr. 826, 906. Compare especially the language of Holborne in the same case at p. 975, and language of BuUer, J., in British Cast Plate Manufacturers v. Meredith, 4 T. R. at p. 797. * See especially opinion of Henley and Yorke, Forsyth, pp. 188, 189 ; opinion of Hargrave, ibid. pp. 189, 190 ; opinion of Sir John Campbell and Sir Forsyth, R. M. Rolfe, ibid. pp. 198, 199. p. 201.
'
MARTIAL LA W
justifiable
541
these have been stated with truth, if not with the ; precise accuracy of legal argument, by Sir James Mackintosh. " The only principle on which the law of England tolerates
what is called Martial Law is necessity ; its introduction can " be justified only by necessity ; its continuance requires pre" cisely the same justification of necessity ; and if it survives the
"
" necessity on which alone it rests for a single minute, it becomes " instantly a mere exercise of lawless violence. When foreign " invasion or Civil War renders it impossible for Courts of Law " to sit, or to enforce the execution of their judgments, it
" becomes necessary to find some rude substitute for them, and " to employ for that purpose the Military, which is the only
" remaining Force in the community. While the laws are silenced " by the noise of arms, 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 no longer." ^ The existence of martial law thus understood, taken in com-
common law as to the duty of wide authority in England to all persons, and of course above all to a general engaged in repelling He holds the armed forces completely under his an invasion. control ; they are governed by military law ; ^ so too are all citizens who, though not in strictness soldiers, are persons subject to military law ; and in this connection it must be remembered that the King and his servants have a right to call for the help of every loyal subject in resisting an invasion,^ whence it follows that the number of persons subject to military law may be
bination with the rules of the
loyal
subjects,
gives very
greatly, indeed almost indefinitely, increased.

is
general again
any land which he requires for the purpose of military operations and may, if he see fit, erect fortifications thereon, and generally he has the right to use land or any other property which is required for the conduct of the war. It is again his right, and indeed his duty, when the necessity arises, to inflict instant punishment upon, and even, if need be, put to death, persons aiding and abetting the enemy or
clearly entitled to use or occupy
army as can fairly be required indeed difficult to picture to one's self any legitimate warlike operation or measure which, while war is raging in England, a general cannot carry out without any breach Let it too be noted that what is true of of the law whatever. a general holds good of every loyal subject according to his situation and the authority which he derives from it, e.g. of a
refusing such aid to the English
of them.
It is
'
Cited Clode,
^ 3
MUUary Forces of the Crown, ii. p. 486. See chaps, viii. and ix., ante. See Case of Ship Money, 3 St. Tr. 826, 975.
542
APPENDIX
subordinate officer, of a magistrate, or even of a private citizen who is helping to resist an invader. Eeal obvious necessity in this case not only compels but justifies conduct which would To this add the consideraotherwise be wrongful or criminal. tion, which has been strongly insisted upon by several able writers, that the conditions of modern warfare, such as the existence of the telegraph, whereby acts done, e.g., in London may affect military operations, e.g., in Northumberland, greatly
extend the area of necessity, and may, conceivably at

it
least,
make
legally allowable,
when war
north of England, to interfere legal process with the freedom of persons residing in Loijdon or Bristol. However this may be, it is clear that the existence of the necessity which justifies the use of so-called martial law
sole justification for martial other words, for a temporary suspension of the ordinary rights of English citizens during a period of war or insurrection, does however place a very real limit on the lawful The presence exercise of force by the Crown or by its servants. of a foreign army or the outbreak of an insurrection in the north of England, may conceivably so affect the state of the whole country as to justify measures of extra-legal force in every part of England, but neither war nor insurrection in one part of the country prima fade suspends the action of the law in other
armed insurrection exists in the summarily and without waiting for

or
must depend on the circumstances The fact that necessity is the

law
or,
of each case.
in
parts thereof.
The fact that the Pretender's army had advanced with unbroken success to Derby did not deprive the citizens of London of the ordinary rights of British subjects. No one has ever suggested that it would have justified the summary execution at Tyburn of an Englishman there found guilty of treason by a court-martial. It is not easy to believe that, without a breach of the law of England, an Englishman imprisoned in London on a charge of high treason could have been taken to a part of the country where in 1745 war was raging, in order that he might there be tried and executed under the authority of a court-martial.i Nor does the consideration that the summary execution of rebels, whose crimes could be punished by the ordinary course of law, may check the spread of treason, show that their execution is necessary or legal. We need not, more^ If the language in the Charge of Blackburn, J., Reg. v. Eyre, p. 84, be cited in support of the possible legality of such a transaction, it must be remembered
that Blackburn's hypothetical apology for Governor Eyre was based on certain statutes passed by the legislature of Jamaica, and that the whole tendency of the Charge of Cookbnrn, C. J., in Reg. v. Ndson, is to show that the execution of
Gordon was
illegal.
MARTIAL LA W
543
over, confine our observation to cases of punishment. It is easy to imagine circumstances under which the arrest and imprisonment on suspicion of persons who are not guilty, or cannot be proved guilty of crime, may be salutary and expedient, but such arrest or imprisonment cannot be legally justified unless it be a matter of necessity.! If it be urged, that the respect due in England to the ordinary law of the land places restrictions which may be inconvenient or even noxious on the exercise of the authority of the Crown and its servants, the truth of the observation may be admitted. The reply to it is twofold first, that the maintenance of the legal rights of citizens is itself a matter of the highest expediency ; secondly, that whenever at a period of national danger a breach of law is demanded, if not by absolute necessity, yet by considerations of political expediency, the lawbreaker, whether he be a general, or any other servant of the Crown, who acts bond fide and solely with a view to the public interest, may confidently count on the protection of an Act of Indemnity. Nor is it irrelevant at this point to note the striking analogy between the right of an individual to exercise force, even to the extent of causing death, in self-defence, and the right of a general or other loyal citizen to exercise any force whatever In either case the right necessary for the defence of the realm. An individual may use any amount of arises from necessity. force necessary to avert death or grievous bodily harm at the hands of a wrongdoer,^ but, if he kills a ruflRan, he must to justify his conduct show the necessity for the force employed in selfSo a general, who under martial law imprisons or protection. kills British subjects in England, must, if he is to escape punishThe analogy ment, justify his conduct by proving its necessity. between the two cases is not absolutely complete, but it is sug:
gestive
and
full of instruction.
Observe, further, that the principle which determines the limits of martial law is the principle which also determines the
of magistrates, of constables, and of loyal generally when called upon to disperse or prevent No doubt the degree unlawful assemblies or to suppress a riot. and the area of the authority exercised by a general when resisting an invading army is far greater than the degree and the area of the authority exercised by a mayor, a magistrate, or a constable when called upon to restore the peace of a town disturbed by riot, but the authority though difi'ering in degree has the same object and has the same source. It is exercised for the
rights
and duties
citizens
See specially language of Holborne, Case of Ship Money, 3 St. Tr. p. 975. See App., Note IV., The Eight of Self-Defence, p. 489, ante.
"-

544
APPENDIX
So maintenance of the King's peace ; it is justified by necessity. true is this, that, when you need to fix the limits of martial law, you are compelled to study the case of E. v. Pinney,'^ which refers not to the power and authority of a general in command of soldiers, but to the duty of the Mayor of Bristol to suppress
a
riot.
In every case in which the legal right or duty arises to maintain the King's peace by the use of force, there will be found to exist two common features. The legal right, e.g. of a general or of a mayor, to override the ordinary law of the land is, in the first
Such legal place, always correlative to his legal duty to do so. right or duty, in the second place, always lasts so long, and so long only, as the circumstances exist which necessitate the
Martial law exists only during time of war use of force. the right of a mayor to use force in putting an end to a riot ceases when order is restored, just as it only begins when a breach of the peace is threatened or has actually taken place. The justification and the source of the exercise in England of extraordinary or, as it may be termed, extra-legal power, is always the necessity for the preservation or restoration of the
King's peace.
B. Conclusions
From
First.
the nature of martial law ^ follow four conclusions cannot exist in time of peace. This is on all hands admitted.^
Martial law
is is
What, then,
the test for determining whether a state of peace
exists at a given time, in a given part of England, say
London
;
The answer
in
that no unfailing test

is
is
to be found
as
the
existence of a state of peace

question.*
a question of fact to be determined
any case before the Courts in the same way
any other such
According, indeed, to a number of old and respectable a state of war cannot exist, or, in other words, a state of peace always does exist when and where the ordinary Courts are open. But this rule cannot, it would seem, be laid down as anything like an absolute principle of law, for the fact that for some purposes some tribunals have been permitted to
authorities,
^ 3 St. Tr. (n. s.) 11, with which compare Blackburn's Charge in R. t. Eyre, pp. 58, 59. ^ Cookburn's Charge, Reg. /. Nelson, p. 85. ' Compare Ex parte D. F. Marais [1902], A. C. 109 Ex parte MiUigan, i Wall. 2 (Am,). ^ Whether the Courts may not take judicial notice of the existence of a state
;
of
war
MARTIAL
LAW
545
pursue their ordinary course in a district in which martial law has been proclaimed, is not conclusive proof that war is not there raging.i Yet the old maxim, though not to be accepted as a rigid rule, suggests, it is submitted, a sound principle. At a time and place where the ordinary civil Courts are open, and
fully and freely exercise their ordinary jurisdiction, there exists, presumably, a state of peace, and where there is peace there cannot be martial law. " If, in foreign invasion or civil war, the Courts are actually
'closed,
'
and
it
is
impossible
then,
to
administer
of
criminal justice
active military
according
operations,
to
law,
on the theatre
where war
really prevails, there is a 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 military, it is allowed to govern by martial rule until the laws can have their free course. As necessity creates ' the rule, so it limits its duration ; for, if this government is continued after the Courts are reinstated, it is a gross usurpation Martial rule can never exist where the Courts are of power. open, and in the proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual
' ' '
'
'
'war."
The existence of martial law does not in any way depend upon the proclamation of martial law. The proclamation of martial law does not, unless under some statutory provision, add to the power or right inherent in the Government to use force for the repression of disorder, or for It does not confer upon the Government resistance to invasion. any power which the Government would not have possessed The object and the effect of the proclamation can without it. only be to give notice, to the inhabitants of the place with regard to which martial law is proclaimed, of the course which the Government is obliged to adopt for the purpose of defending
Secondly.
the country, or of restoring tranquillity.* The Courts have, at any rate in time of peace, jurisdicThirdly. tion in respect of acts which have been done hy military authorities
and
others during
state
"
The
justification of
of war.^ any particular act done in
eC state of
war
F. Marais [1902], A. C. 109. parte Milligan, 4 Wall. 2 ; Thayer, Cases on Constitutional Law, pait iv. p. 2390. ^ See opinion of Camptell and Kolfe, Forsyth, p. 198. * See Cockbum's Charge, Reg. v. Nelson Blackburn's Charge, Reg. v. Eyre Ex parte Milligan, i Wall. 2 ; and compare Wall's Case, 28 St. Tr. 51. Wright v. Fitzgerald, 27 St. Tr. 759.
1
Ex parte D.
Ex
2n
546
APPENDIX
"
is ultimately examinable in the ordinary Courts, and the prior "question, whether there was a state of war at a given time and " place, is a question of fact." ^ The truth of this statement of the law is almost self-evident. in the High Court for assault and for false imprisonsues
;
was assault on the ground that at the time of the act complained of the colonel of a regiment, and that the alleged assault was the arrest and imprisonment of
men
X X justifies the alleged
under the orders, say, of the Commander-in-Chief, by during a time of war and after the proclamation of martial law. The defence may or may not be good, but it is certain that the Courts have, at any rate after the restoration of peace, jurisdiction to inquire into the facts of the case, and that one of the necessary inquiries is whether a state of war did exist at the time was arrested, though it is quite possible that the existwhen ence of a state of war may be a fact of which the Courts take Expressions, indeed, have been used in a recent judicial notice. case ^ which, if taken alone, might seem to assert that the ordinary Courts have no jurisdiction in respect of acts which have been done by military authorities in time of war. But the very width of the language used by the Privy Council in Ex parte D. F. Marais warns us that it must be limited to the circumstances of It does not necessarily assert more, and as the particular case. regards transactions taking place in England, cannot be taken to mean more than that the Courts will not, as indeed they in strictness cannot, interfere with actual military operations, or, whilst war is actually raging, entertain proceedings against
military
law.
men and
others for acts done under so-called martial

of the
The judgment
its
Privy Council, in short, whatever
the application of
principles to England, asserts nothing as to
the jurisdiction of the Courts when peace is restored in respect of acts done during time of war, and eminent lawyers have held that even in time of war the exercise of jurisdiction by the ordinary Courts is rather rendered impossible than superseded. " The question, how far martial law, when in force, super" sedes the ordinary tribunals, can never arise. Martial "law is stated by Lord Hale to be in truth no law, but some" thing rather indulged than allowed as a law, and it can only " be tolerated because, by reason of open rebellion, the enforcing " of any other law has become impossible. It cannot be said in "strictness to supersede the ordinary tribunals, inasmuch as it
.
Sir F. Pollock,
Ex
WluU is Martial Lawt L.Q.K. xvlii. pp. 156, 157. parte D. F. Marais [1902,] A. C. 109, 114, 116, judgment of Privy
Council.
MARTIAL
"
LAW
547
only exists by reason of those tribunals having been already " practically superseded." ^
Fowrthly.
The
fide,
protection
of military
men and
others
against
actions or prosecutions in respect of unlawful acts done during
a time
of war, bond Indemnity.^
and in
the service of the
country, is
an Act of
An
make
illegal,
Act
of
Indemnity
is
legal
transactions which,
a statute the object of which is to when they took place, were
or to free individuals to
whom
the statute applies from
liability for
Statutes of this description have been invariably, or almost invariably, passed after the determination of a period of civil war or disturbance, e.g. after the Rebellions of 1715 and of 1745,^ and their very object has
having broken the law.
been to protect officials and others who, in the interest of the country, have in a time of danger pursued an illegal course of conduct, e.g. have imprisoned citizens whom they had no legal authority to imprison. For our present purpose it is absolutely essential to appreciate the true character of an Act of Indemnity. Such a statute has no application to conduct which, however severe, is strictly lawful. A magistrate who, under proper circumstances, causes an unlawful assembly to be dispersed by force, or an officer who, under proper circumstances, orders his troops to fire on a mob and thereby, in dispersing the mob, wounds or
some of the crowd, neither of them require to be indemniThey are sufficiently protected by the common -law justification that in discharge of their duty they used the force, and no more than the force necessary to maintain the King's peace. A general, an officer, a magistrate, or a constable, on the other hand, who, whether in time of war or in time of peace, does without distinct legal justification, any act which injures
kills
fied.
the property or interferes with the liberty of an Englishman, incurs the penalties to which every man is liable who commits a The law-breaker's motives may be in the breach of the law. highest degree patriotic, his conduct may be politically sagacious, and may confer great benefit on the ptiblic, but all this will not, in the absence of legal justification, save him from liability to an action, or, it may be, to a prosecution ; he needs for his proOn this point note the words of tection an Act of Indemnity.
a judge of the highest reputation, who was by no means inclined to minimise the authority of the Crown and its servants. "Where the inquiry is, whether an officer is guilty of
Joint opinion of Sir J. CamplDell and Sir E. M. Eolfe, cited Forsyth, p. 199. See pp. 47, 228, ante. " See Clode, Military Forces of the Crown, ii. pp. 164, 165 ; 1 Geo. I. St. 2, 39, and 19 Geo. II. c. 20.
'
0.
548
APPENDIX
his duty, the principle the complement of that " laid If the officer does of Rex v. Finney. " some act altogether beyond the power conferred upon him by " law, so that it could never under any state of circumstances have "been his duty to do it, he is responsible according to the " quality of that act ; and even if the doing of that illegal act " was the salvation of the country, that, though it might be a
"misdemeanour from an excess beyond

is
"
very
much the same, down in the case
or rather
it is
" good ground for the Legislature afterwards passing an Act of " Indemnity, would be no bar in law to a criminal prosecution ; " that is, if he has done something clearly beyond his power.
But if the act which he has done is one which, in a proper state " of circumstances, the officer was authorised to do, so that in "an extreme case, on the principle laid down in B. v. Finney, " he might be criminally punished for failure of duty for not
it, then the case becomes very different." This passage from Blackburn's charge suggests further the proper answer to an objection which is sometimes raised against the view of martial law maintained in this treatise. How, it is urged, can it be reasonable that a man should be liable to punishment, 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 1 The answer is, that the supposed difficulty or dilemma cannot in reality arise. The apparent or alleged unreasonableness of the law is created by the ambiguity 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, of course, be punished, but for the performance of a legal duty he needs no Act of Indemnity. For the performance, on the 6ther hand, of any moral duty, which is not a legal duty, a man may undoubtedly, if he thereby infringes upon the rights of his fellowcitizens, expose himself to punishment of one kind or another, and may therefore need an Act of Indemnity to protect him from the consequences of having done what is legally wrong, though, under the peculiar circumstances of the case, morally right. But then, for the non-performance of a merely moral duty, he will not incur the risk of punishment. If the Mayor of Bristols omits, by the use of the necessary force, to put down a riot, this omission undoubtedly exposes him to punishment, since he neglects to perform a legal duty ; but if he does perform his duty, and by the use of a proper amount of force puts down
"
"doing
Blackburn's Charge,
He;/,
v.
Eyre, p. 58.
MARTIAL
the
riot,
LAW
549
punishment, and needs no If, on the other hand, at a period of threatened invasion or rebellion, a magistrate, without any legal authority, arrests and imprisons on suspicion a number of persons whom he holds to be disloyal, he may be performing a moral duty, and, if his view of the state of things turns out right, may have rendered a great service to the country ; but he assuredly needs an Act of Indemnity to protect him from actions for false imprisonment. But, and this is the point to note, if our magistrate be a man of more prudence than energy, and omits to arrest men whom ex hypothesi he has no legal right to arrest, his conduct may incur the blame of patriots, but cannot bring him before the Courts. man, in short, may be punished for having omitted to do an act which it is his legal duty to perform, but needs no Act of Indemnity for having done his legal duty. man, on the other hand, who does a legal wrong, whilst performing a moral which is not a legal duty does require an Act of Indemnity for his protection, but then a man will never incur punishment for the simple omission to perform a merely moral duty.
liability to
he incurs no legal
Act of Indemnity
for his protection.
C.
Other Doctrines vnth regard
to
Martial
Law
In opposition to the view of martial law upheld in this treatise, which may conveniently be termed the "doctrine of immediate necessity," three other doctrines are, or have been maintained. Of these the first bases the use of martial law on the royal prerogative ; the second on the immunity of soldiers from liability to proceedings in the civil Courts as contrasted with the military Courts for any act bonafde done in the carrying out of military operations ; and the third (which extends very widely the meaning of the term necessity) on political necessity
or expediency.
(1) The Doctrine of the Prerogative.
It is
sometimes alleged,
virtue of the prerogative, in time of war proclaim martial law, and suspend or override the ordinary law of the land, and this view is supposed to derive support from the consideration that the Petition of Eight does
or implied, that the
Crown may, by
not condemn martial law in time of war.
The fatal objection to this doctrine, in so far as it means anything more than the admitted right of the Crown and its servants to use any amount of force necessary for the maintenance of the peace or for repelling invasion, is that it utterly lacks legal authority, whilst to the inference suggested from the language of the Petition of Eight no better reply can be given
550
APPENDIX
than that supplied by the words of Blackburn, namely, " It " would be an exceedingly wrong presumption to say that the " Petition of Eight, by not condemning martial law in time of " war, sanctioned it," though, as he cautiously adds, " it did not " in terms condemn it." ^ This doctrine, it is conceived, (2) The Bodrine of Immunity.^ may be thus stated. An officer in command of an army must of necessity, in carrying out military operations against an invader, override ordinary rights whether of property or of personal liberty. Decisive authorities may be produced ^ in support of the proposition that he may lawfully violate rights of property, e.g. can, without incurring any legal liability, do acts which
amount to trespass. But all legal rights stand on the same level and if an oflBcer can lawfully occupy an Englishman's land,
or destroy his property, he can also lawfully, whilst lona 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 the carrying out of military operations. The soundness of this view is, it is urged, confirmed by the admitted inability of a civil Court to judge of the due discharge of military duties, and by the consideration that no Court would, or in fact could, during a period of warfare interfere with a general's mode of conducting the war, or with any act done by him or by soldiers acting under his orders, whence, as it is alleged, it follows that acts lona fide done in the course of military operations fall outside the jurisdiction of the ordinary Courts, not only during war time, but also after the restoration
this doctrine of immunity in what appears to most plausible form, the outbreak of war is to be regarded as a suspension of the ordinary law of the land, as regards, at any rate, officers in command of troops and engaged in resisting invaders. On this view a general would occupy, during the conduct of war, a position analogous to that of a judge when engaged in the discharge of his judicial functions, and no action or other proceeding in the Courts of Common Law would lie against an officer for acts bona fide done as a part of a military operation, just as no action lies against a judge for acts done in discharge of his official duties.
of peace.*
To put
me
to be its
1 Blackburn's Charge, R. v. Eyre, p. 73, with which should he read pp. 69-73, which suggest the reasons why the authors of the Petition of Right may have omitted all reference to martial law in time of war. ^ See for a very able statement of the theory here criticised, H. Erie Richards' Martial Law, L.Q.E. xviii. p. 133. ' See pp. 540, 541, ante. ^ See L.Q.R. xviii. p. 140.

MARTIAL
LAW
551
This doctrine of immunity is, however, open, it is submitted, to the very strongest objections. Most of the undoubted facts
it rests, e.g. the right of a general when resisting an invasion to use freely the land or other property of Englishmen, are merely applications of the principle that a loyal citizen may do any act necessary for the maintenance of the King's peace, and especially for the defeat of an invading army. But for the broad inferences based on this fact and similar facts there appears
on which
to exist no sufficient ground.
In support of the doctrine of immunity there can be produced no direct authority, whilst it appears to be absolutely inconsistent, not only with the charge of Cockburn, C.J., in E. v. Nelson, but also with the principles or assumptions which are laid
down
or
made
in the charge of Blackburn, J., in R. v. Eyre.

is
The
doctrine, further,
really inconsistent with the constant passing
of Acts of Indemnity with a view to covering deeds done in the Nor is it easy to follow the course of civil war or of rebellion. line of reasoning by which it is assumed that if the Courts have no power to interfere with the acts of a general or his soldiers whilst war is raging, the Courts have no jurisdiction to entertain during peace proceedings in respect of acts done by a Here, at anyrate, general and his soldiers during a time of war. we apparently come into contradiction with some of the best
known
The Courts, not only of England, facts of legal history. but also of the United States, have never entertained the least doubt of their jurisdiction to inquire into the character of any act done during war time which was p-i?na facie a breach of
law.
(3)
The Doctrine of
Political Necessity
maintained by eminent the to the highest respect to this extent, namely, that, e.g. during an invasion, a general, a mayor, a magistrate, or indeed any loyal citizen, is legally justified in doing any act, even though 'p-ima facie a tort or a crime, as to which he can prove to the satisfaction of a jury that he did it for the public service in good faith, and for reasonable and probable cause. This doctrine, which for the sake of convenience I term the
war or invasion justifies lawyers, whose opinion is entitled use of what is called martial law
existence of
or Expediency.'^
it is
The
doctrine of political expediency, manifestly justifies from a legal point of view many acts not dictated by immediate necessity.
The scope
which
I
thereof
in
may
the
give
be best understood from an example words of its ablest and very learned
:
advocate. Sir Frederick Pollock

1
See Pollock,
Whai
is
Martial
Law ?
L.Q.R.
xvlii. p.
162.
552
APPENDIX
" An enemy's army has landed in force in the north, and is " marching on York. The peace is kept in London and Bristol, " and the Courts are not closed. It is known that evil-disposed " persons have agreed to land at several ports for the purpose "of joining the enemy, and giving him valuable aid and in" formation. What shall Bristol is one of the suspected ports. " the Lord Mayor of Bristol do I submit that it is his plain
i.
moment the " question of strict law) to prevent suspected persons from land" ing, or to arrest and detain them if found on shore ; to assume " control of the railway traffic, and forbid undesirable passengers " to proceed northward, and to exercise a strict censorship and
" moral
duty as a good
citizen (putting aside for a
" inquisitorial
power over letters and telegrams. All these things "are in themselves trespasses (except, probably, forbidding an " alien to land) ; some of them may perhaps be justifiable under " the statutory powers of the Postmaster-General, but summary " restraint by way of prevention must be justified by a common "law power arising from necessity, if at all. Observe that I " say nothing for the present about trial or punishment. The " popular (and sometimes official) notion that martial law neces" sarily means trial
by
court-martial has caused
much
confusion.
"
In that not be necessary. " respect the Mayor's authority would be like that of the master " of a ship. " Now, if the Lord Mayor of Bristol fails to do these things, " he will surely find himself in as much trouble as his predecessor " [Mr. Pinney] in the time of the Bristol riots. And I do not " think he will improve his defence by pleading that the peace " was still kept in Bristol, and the Courts were open, and there" fore he thought he had no power to do anything beyond the " ordinary process of law. Nor yet will he mend matters if he " says that he was waiting for an Order in Council which was "never issued, or never came to his knowledge. At best it " will be a topic of slight mitigation. "^^ The objections to a view which at bottom differs essentially from what I have termed " the doctrine of immediate necessity " are these The theory under consideration rests on little legal authority, except the case of R. v. Pinney ; ^ but that case, when its circumstances are examined, does not justify the inferences apparently grounded upon it. The charge against Mr. Pinney was in substance that, being the magistrate specially responsible for the maintenance of order in the town of Bristol, he
or
:
Summary punishment may
may
'
Pollock,
What
is
Martud Laiol L.Q.R.

^
xviii.
pp. 155, 156.
St. Tr. (11.S.) 11.
MARTIAL LA IV
553
neglected to take the proper steps to prevent the outbreak of a riot, and after the King's peace had been openly violated by rioters, the prison broken open, and the Bishop's Palace and other houses burned down, he did not take adequate
steps
to arrest
offenders
or
to
restore
order.
It
is
im-
possible to imagine a case under which there could exist a
more
urgent and stringent necessity for the use of force in the restoration of order. K the charges brought by the Crown could have been made out, Mr. Pinney would have been guilty of as patent a neglect of duty as could have been committed by any public official placed in a position of high authority. That he acted feebly can hardly be doubted ; yet, in spite of this, he was, with the apparent approval of the Judge, held The point, however, specially to be innocent of any crime. noted is that, in Pinney's Case, no question whatever was raised as to the possible justification for acts which were prima facie tortious, but were done by a magistrate on reasonable grounds
though lying quite outside the scope of his in short, the case of Mr. Pinney, which at most establishes only that a magistrate who fails to make due efforts to maintain the peace is guilty of a crime, can be supposed to justify the action of the imaginary Mayor of Bristol, who because an invasion is taking place feels it to be his right or his duty to override, in a town where peace prevails, all the
of public expediency,
ordinary authority.
How,
law, many lawyers will find it harder will they find it to point out why a mayor, under the circumstances so graphically described by Sir Frederick Pollock, should fear that his failure to show despotic energy should expose him to the legal charges brought But if Pinney's case does not go far enough against Mr. Pinney. to sustain the doctrine of political expediency, I know of no
ordinary rules of the

difficult to explain.
common
Still
other case which can be produced in its support. This doctrine, however, is open to the further objection, of which its able advocate recognises the force, that it is inconsistent " It may," writes Sir the existence of Acts of Indemnity.
with Frederick Pollock, " be objected that, if the view now propounded " is correct. Acts of Indemnity are superfluous. But this is not so. Its " An Act of Indemnity is a measure of prudence and grace. "office is not to justify unlawful acts ex post facto, but to quiet " doubts, to provide compensation for innocent persons in respect "of damage inevitably caused by justifiable acts which would
" not have supported a legal claim." ^ The attempt to meet this objection
1
is
ingenious, but
xviii. p. 157.
the
Pollock,
What
is
Martial
Lawi
L.Q.R.
554
APPENDIX
endeavour rests on a very inadequate description of an Act of Indemnity. Such a statute may no doubt be in part a measure of prudence and grace, but it is usually far more than this. The Indemnity Acts, whatever their formal language, which for a century or so protected Nonconformists from penalties incurred year by year through the deliberate breach of the Test and Corporation Acts, the Acts of Indemnity passed after the Rebellions of 1715 and of 1745, the Act of Indemnity passed by the Irish Parliament after the Eebellion of 1798 which was not wide enough to protect Mr. T. Judkin Fitzgerald ^ from actions for acts of cruelty done by him in the suppression of the Rebellion, the further Act finally passed which apparently was wide enough to place him beyond the reach of punishment, and the Act of the legislature of Jamaica which was successfully pleaded by the defendant in Phillips v. Eyre, were, it is submitted, all of them enactments intended to protect men from An Act of Indemnity the consequences of a breach of the law. in short is, as is insisted upon throughout this treatise, the legalisation of illegality, and is constantly intended to protect from legal penalties men who, though they have acted in the supposed, or even real discharge of a political duty, have broken the law of the land. This is a point on which it is necessary to insist strongly, for the determination of the question at issue
between the supporters
and upon the answer to the inquiry. What is the true nature of an Act of Indemnity 1 If such an Act is essentially the legalisation
of illegality, the doctrine of political
falls, it is
immediate necessity the advocates of the " doctrine of political necessity," turns
of the " doctrine of
"
necessity or expediency submitted, to the ground. Two circumstances give an apparent but merely apparent impressiveness to the doctrine of political expediency. The first
the paradox involved' in the contention that action on behalf which is morally right may be legally wrong, and, therefore, be the proper object of an Act of Indemnity. This
is
of the State
paradox however is, as already pointed out, apparent only, and after all amounts merely to the assertion that a man's ordinary duty is to keep within the limits of the law, and that, if he is at any moment compelled, on grounds of public interest, to transgress these limits, he must obtain the condonation of the sovereign power, i.e. the King in Parliament. The second is the current idea that, at a great crisis, you cannot have too much energy. But this notion is a popular delusion. The fussy activity of a hundred mayors playing the part of public -spirited despots
^
Wright
v.
Fitzgerald,
viii.
27
St.
Tr.
769
Lecky,
History of Englamd in
Eighteenth Century,
pp. 22-27.

MARTIAL
555
LAW
would increase tenfold the miseries and the dangers imposed upon the country by an invasion.
NOTE
The
I.
XI
CONSTITUTION OF THE TRIBUNAL DES CONFLITS'^

Conflict Court consists of the following persons : President, the Minister of Justice {Garde des sceauxy rarely attends, though he may attend, preside, and vote.
He
II.
{Conseillers A la Cour de Cassation) elected for three years by their colleagues, i.e. by the judges of the Court of Cassation.
(b)
en,
(a)
Eight elected judges, namely Three judges of the Court of Cassation

:
Three members
of the Council of State {Conseillers d'Mat
service ordinaire) * elected for
three years
by
their colleagues
{i.e.
by the
Conseillers d'itat en service ordinaire).
(c) Two other persons elected by the foregoing six judges of the Conflict Court, enumerated under heads {a) and (b).
These two other persons ought in strictness to be elected neither from the judges of the Court of Cassation nor from the membel-s of the Council of State,' but they are in general elected
one from the Court of Cassation, the other from the Council
of State.
re-eligible and usually re-elected, include the Minister of Justice, these nine persons, constitute the judges of the Conflict Court.
or,
if
These eight persons, who are
we
Then
there are two substitutes {swppleants) elected
by the
judges coming under the heads {a) and {h) who act only when one of the judges of the Conflict Court cannot act. There are further two so-called Commissioners of the Government {Commissaires du Gouvernement) * appointed for a year by
See Berthelemy, Traits MSmentaire de Droit Administratif {5th ed.), pp. 880, Chardon, 1/ Administration de la France, p. 411. ^ A Vice-President, who generally presides, is elected by and from the eight elected judges of the Conflict Court. * Conseillers d'itat en service ordinaire are permanent members of the Council of State. They are contrasted "with Conseillers en sermce extraordinaire, who are temporary members of the Council, for the discharge of some special duty. See Berthelemy, p. 126. * The name may be misleading. Those commissioners are, it is said, absolutely They are representatives of the law, they free from pressure by the Government. are not strictly judges, the opinions which they express often disagree with the opinion of the representative of the Government, viz. the prefect, who has raised the conflict, i.e. has brought before the Court the question whether a, judicial court has exceeded its jurisdiction by dealing with a question of administrative law'
881
5S6
APPENDIX
;
the one for a year from the Masters of Requests (Mattres des requMes), who belong to the Council of State, the other from the class of public prosecutors, belonging to the Court of Cassation (avocats genSraux d, la Cour de the President of the Eepublic
Cassation).
NOTE
XII
PROCEEDINGS AGAINST THE CROWN

Technically it is impossible under English law to bring an action against the Crown, and this impossibility is often said to be based on the principle that the Crown can do no wrong.
and perhaps some Englishno remedy against the Crown, or in other words, against the Government, for injuries done to individuals by either, (1) The breach of a contract made with the Crown, or with
critics,
is
Hence well-informed foreign
men
also,
often think that there
in reality
a Grovernment department, or
(2) servants.
wrong committed by the Crown, or rather by

is
its
This idea
however
in substance erroneous.
As
ment on behalf
to
Breach of Contract
For the breach of a contract made with a Government departof the Crown a Petition of Right will in general lie, which though in form a petition, and requiring the sanction
an
of the Attorney-General (which is never refused), is in reality action.
Many Government departments, further, such for instance as the Commissioners of Works, who have the general charge of public buildings, are corporate bodies, and can be sued as such. Contracts made with Government departments or their representatives are made on the express or implied terms of payment out of monies to be provided by Parliament, but the risk of Parliament not providing the money is not one which any contractor takes into consideration.
As
to
Wrongs
lies
Neither an action nor a Petition of Right
against the
Crown for a wrong committed by its servants. The remedy open to a person injured by
a servant of the
PROCEEDINGS AGAINST THE CROWN

Crown
person
in the
557
course of his service
is
an action against the
has actually done or taken part in doing the wrongful act which has caused damage. But, speaking generally, no
injustice results
who
from this, for the Crown, i.e. the Government, usually pays damages awarded against a servant of the State for a wrong done in the course of his service. Actions, for instance, have been constantly brought against officers of the Eoyal Navy
damage done by collisions with other ships caused by the negligence of such officers. The damage recovered against the officer is almost invariably paid by the Admiralty.
for
Petition
would be an amendment of the law to enact that a of Eight should lie against the Crown for torts committed by the servants of the Crown in the course of their service. But the technical immunity of the Crown in respect of such torts is not a subject of public complaint, and in practice works little, if any, injustice. It should be further remembered that much business which in foreign countries is carried on by persons who are servants of the State is in England transacted by corporate bodies, e.g. railway companies, municipal corporations, and the like, which are Jegally fully responsible for the contracts made on their behalf or wrongs committed by their officials or servants in
It
the course of their service.^
NOTE
XIII
PARLIAMENT ACT, 1911 Ch. 13.] [1 & 2 Geo. 5.
An
House and to
of
Act to make provision with respect to the powers of the Lords in relation to those of the House of Commons,
limit the duration of Parliament.
[18th August, 1911.]
Whereas it is expedient that provision should be made for regulating the relations between the two Houses of Parliament And whereas it is intended to substitute for the House of Lords as it at present exists a Second Chamber constituted on a popular instead of hereditary basis, but such substitution
cannot be immediately brought into operation And whereas provision will require hereafter to be made by Parliament in a measure effecting such substitution for limiting
:
'
See Lowell, The, Goveimwmiit of England,
ii.
pp. 490-494.
558
APPENDIX
of the new Second Chamber, but it is expedient to make such provision as in this Act appears for restricting the existing powers of the House of Lords Be it therefore enacted by the King's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and "Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows 1. (1) If a Money Bill, having been passed by the House of Commons, and sent up to the House of Lords at least one month before the end of the session, is not passed by the House of Lords without amendment within one month after it is so sent up to that House, the Bill shall, unless the House of Commons direct to the contrary, be presented to His Majesty and become an Act of Parliament on the Eoyal Assent being signified, notwithstanding that the House of Lords have not consented to the Bill. Money Bill means a Public Bill which in the opinion (2) of the Speaker of the House of Commons contains only provisions dealing with all or any of the following subjects, namely, the imposition, repeal, remission, alteration, or regulation of taxation ; the imposition for the payment of debt or other financial purposes of charges on the Consolidated Fund, or on money provided by Parliament, or the variation or repeal of any such charges supply; the appropriation, receipt, custody, issue or audit of accounts of public money ; the raising or guarantee of any loan or the repayment thereof ; or subordinate matters incidental to those subjects or any of them. In this subsection the expressions "taxation," "public money," and "loan" respectively do not include any taxation, money, or loan raised by local authorities or bodies for local purposes. (3) There shall be endorsed on every Money Bill when it is sent up to the House of Lords and when it is presented to His Majesty for assent the certificate of the Speaker of the House of Commons signed by him that it is a Money Bill. Before giving his certificate, the Speaker shall consult, if practicable, two members to be appointed from the Chairmen's Panel at the beginning of each Session by the Committee of
and defining the powers
Selection.
2.
(1) If
any Public
Bill (other
than a
Money
Bill or a
any provision to extend the maximum duration of Parliament beyond five 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 of Lords at least one month before the end of the session, is rejected by the House of Lords in each of those sessions, that
Bill containing
PARLIAMENT ACT,
191
559
Bill shall, on its rejection for the third time by the House of Lords, unless the House of Commons direct to the contrary, be presented to His Majesty and become an Act of Parliament on the Royal Assent being signified thereto, notwithstanding that
the House of Lords have not consented to the Bill Provided that this provision shall not take effect unless two years have elapsed between the date of the second reading in the first of those sessions of the Bill in the House of Commons and the date on which 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 of the provisions of this section, there shall be endorsed on the Bill the certificate of the Speaker of the House of
i
Commons
(3)
signed
by him that the
provisions of this section
have been duly complied with.
Lords
be deemed to be rejected by the House of not passed by the House of Lords either without amendment or with such amendments only as may be agreed to by both Houses. Bill shall be deemed to be the same Bill as a former (4) Bill sent up to the House of Lords in the preceding session if, when it is sent up to the House of Lords, it is identical with the former Bill or contains only such alterations as are certified by the Speaker of the House of Commons to be necessary owing to the time which has elapsed since the date of the former Bill, or to represent any amendments which have been made by the House of Lords in the former Bill in the preceding session, and any amendments which are certified by the Speaker to have been made by the House of Lords in the third session and agreed to by the House of Commons shall be inserted in the Bill as presented for Royal Assent in pursuance of this section Provided that the House of Commons may, if they think fit, on the passage 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
Bill shall
if
it is
agreed to by that House,' shall be treated as amendments made by the House of Lords and agreed to by the House of Commons; but the exercise of this power by the House of Commons shall not affect the operation of this section in the event of the Bill being rejected by the House of Lords. 3. Any certificate of the Speaker of the House of Commons given under this Act shall be conclusive for all purposes, and shall not be questioned in any court of law. 4. (1) In every Bill presented to His Majesty under the
56o
APPENDIX
preceding provisions of this Act, the words of enactment shall be as follows, that is to say
:
"Be it enacted by the King's most Excellent Majesty, by and with the advice and consent of the Commons in this present Parliament assembled, in accordance with the provisions of the Parliament Act, 1911, and by authority of the same, as follows."
(2) Any alteration of a Bill necessary to give effect to this section shall not be deemed to be an amendment of the Bill.
5.
In this Act the expression "Public Bill" does not include
any
Bill for confirming a Provisional Order.
6.
rights
Nothing in this Act shall diminish or qualify the existing and privileges of the House of Commons.
7. Five years shall be substituted for seven years as the time fixed for the maximum duration of Parliament under the Septennial Act, 1715. 8. This Act may be cited as the Parliament Act, 1911.
;; ;
INDEX
Act of Settlement, the, 27 ; the descent of the Crown under, 41, 42 Acta, Bankruptcy Act, 1883, xxviii,
the Commonwealth of Australia Constitution Act, 113 note, 150 note, and Appendix, Note IX., 529-537 ; Deceased Husband's Brother Act, 1900 (New Zealand), 115 note ; Immigrants' Bestriction Act, 1907 (Transvaal), 116 note; of Congress, 24th September 1789, 157 the Supreme Court of the United States and, 157, 159 ; the foundations of, 160 instances of unconstitutipnal, 161 British North America Act, 1867, 161-163 and 'ixotes; Canadian Provincial, 163 ; the Extradition, position of foreign criminals under, 220 and note ; the Ahen, of 1848, 228 ; the Press Licensing Act, discontinued, 257 ; the Mutiny,
;
Companies-suTjjeot to, 91
cal
practi-
importance of, 403 Acts of Union, the (Great Britain), 62 ; the fifth Article of, 64 as
;
1689,
294
298
preamble
Act,
of,
295;
the
note,
Army
under, 309 ; the National Debt and 310 ; Local Loans Act, 1887, 313 ; the Appropriation Act, 313 ; Public Authorities Protection Act, 1893, 384 ; the Merchant Shipping Act, the AUen, 408; 1876, 392; Foreign Enlistment, 408 ; Extradition,
1881, 296, 296 note ; the Revenue relating to Taxation,
subject to repeal, 141 Administrative Law, in England and France, 324, 325, 374; characteristics of, in France, 334 el seg. ; foundations of, in France, laid by Napoleon. 3 46 Alien Act of 1848, power of the Ministry under, 228, 408 Aliens, case of arrest of, 206, 220 position of, in England, 220 and note ; Act of 1848 relating to, 228 position of, in England, 407 America, the Constitution of the United States of, 4 ; the Gommentariea of Kent and Story on, 4 American Commonweatth, The, Bryce, 134 note American Union, the treaty-making power in the hands of the President and Senate, 461 Ancien Segime, the, literature under,, 251 and note ; Droit Administratif and, 331 Anne, Queen, and creation of peers,
lii
Anson, Sir William,
Law and Citstorn of the Oonstitution referred to,

of,
34 note Appeal to precedent, frequency

in English history, 18 Appropriation Act, the, 313
;
419
ment
Naturalization, the Septennial, 433 ; ParliaAct, 1911, 557
408;
pay-
ments under, 314
Acts, Local and Private, 47 Acts of Indemnity, objects of, 47, 51, 647-549, 553, 554 ; in connection
Armed
Army,
291
Rebellion,
the,
xliii
under the Rule of Law,
with the Habeas Corpus Suspension Act, 228, 231-233 Acts of Parliament, rules of the Privy Council Under, 50; as opposed to moral or international law, 59 ; power of Parliament in regard to preceding, 61 ; Railway
liability of soldiers as citi; zens, 282, 296 ; the forces of, 291 in relation to English law, 292
the Standing Army, 293 ; the soldier under civil and military law, 302, 303; the Territorial Force, 305-307; abolition of
purchase
in,
463 and note
561
2o
; ; ;
562
INDEX
Act, the, 1881, 295, 296 note, in relation to the annual ;
of Parliament, 442-443
Bills,
Army
procedure
;
with
regard
to,
298 note meeting
Arrest, redress for, 204 ; instance in case of aliens, 206, 220 ; maxims relating to, under the 206 ; Habeas Corpus Suspension Act, 229 Article 75 of the Constitution of the Year VIII., Tocqueville on, 351352 ; abolition of, 355 Asquith, Mr., xxxiii ; on the Empire, Ixxxi note 1 ; and the Parliament and Government of
difBonlty of amending, under Parliament Act, xxii Blackburn on martial law, 547-548 Blackleg, the, xl Blackstone, 5, 6 ; Constitutional law not defined by, 7 ; on the royal prerogative, 7; on moral law,
xxi, xxii
59
the United Kingdom, Ixxxv Auooc on Droit Administraiif, 328 and note
Austin, theory of Parliamentary sovereignty, 68-70, 72 Australia, Western, xxiv note 1 Australian Commonwealth, powers of the Parliament in regard to changes in the Articles of the Constitution, 106 note, 533-535 the Immigration Act, 1901, 114 note ; in relation to the Imperial Parliament, 117, 535-537; an example of Federalism, 134 note
its main characteristics. Appendix, Note IX., 529-537
Blackstone's Commentaries, confusion of terms in, 7 ; misstatements in, 9 ; quoted on the authority of Parliament, 39 Board of Trade, the, under the Merchant Shipping Act, 1876, 392,
393
Boutmy, Mons., Studes de Droit

Constitutionnel, 6 note 1 ; division of the English constitutional law by, 6 note Bradlaugh, Charles, actions in con-
nection with, 32 Brand, The Union of South Africa. 480 note 1

Bright, Ivi British Empire, benefits conferred by, XXXV British North America Act, 1867.
Bacon, 16 ; on the attempt of a, Parliament to bind its successors, 62 note ; on the judges and the prerogative, 366 ; introduction of the writ De non procedendo Rege inconsulto by, 367 Bagehot, Ixxiv, Ixxvi, 6 ; English
Constitution, Ixix note
1
;
1,
quotation from,
theorist,
cii
civ note ; as a
English 19 ; Constitution by, 19 ; on powers legally exercised by the Crown, 463 ; on Cabinet and Presidential
political
Governments, 483 Bankruptcy Act, 1883, xxviii

Beaconsfield, Lord, xlix, 1 note 1 Belgium, Constitution of, in comparison with the English, 4, 86,
161-163 and notes British Mule and Jurisdiction beyond the Seas, Sir H. Jenkyns, 51 note, 100 note British subjects, poHtioal rights of, xxxvii note 1 Bryce, Professor, 87 ; American Commonwealth by, 134 note, 151 note Budget, effect of House of Lords' rejection, Iviii Burke, liii, Ixvi ; Letter to the Sheriffs of Bristol, xîii note \; Conciliation with America, xxvi note 1 ; Correspondence, Ixvi note I ; on the necessity of the study of the English Constitution, 1, 3; on the House of Commons, 82 ; opposition of, to
122
of,
note,
124,
and
131; the Courts Parliamentary enact-
Democracy, 431 Bute, Lord, 453 Butler, The Passing of the Great Beform BiU, Ixi note 1
Cabinet, the English, 8 ; power of, increased by Parliament Act, Iv ; subject to the will of the House of Commons, 152 ; position of, as affected by the survival of the Prerogative, 459 ; a parliamentary executive, 481, 482 ; merits and defects of, 483, 484; possibility of a change in character of, 483
ments, 153 ; rights of individuals in, 192, 196 ; articles of the Constitution, 200 ; personal freedom under, 202 ; the law of, in relation to the liberty of the Press, 234, 243 ; rules of the Constitution as to right ot public meeting, 266 administrative law in, 335 note
Bentham and Benthamites,

BiU
of Eights, the, 27
Ixii
INDEX
Government and Presidential Government, forms of, 483 Cabinet members and partisanship,
Cabinet
Ivii
563
Cobden,
Ixxi
Ivi
and the Free Traders,
noU
Campbell, Sir J., on martial law, 540, 546 Canada, the Dominion of, 94 ; position of the Parliament in regard to changes in the Constitution, 106 rmte,; instances of Veto on Acts passed in, 114; in relation to the Imperial Parliament, 117 the Dominion of, an example of Federalism, 134, 148 ruote.; the
;
British
North America Act, 1867,
161-163 and notes ; the Constitution of, 162 and note, compared with that of the Australian Commonwealth, 537 ; power of Dominion Government, 163, 164 " Case-law " or " judge-made law," 369; rapid growth of, 378 Caste in India, reason for tolerating,
Ix
Censorship of the Press, absence of, in England, 244, 248 in France,

;
252, 253, 261, 262, 264;
under
the Star Chamber, the Commonwealth, and the Eestoration, 256 ; discontinuance of the Licensing Act, 257, 259 ; the contrast
Coercion Act (Ireland), 1881, power of the Irish executive under, 227 Coke, Sir Edward, 16, 18, 365, 366 on the power and jurisdiction of Parliament, 39 ; on private rights and parliamentary authority, 46 Colonial Acts, the sanction of the Crown to, 99 ; limit to powers of, 99 note, 117 Colonial Bills, the right of Veto, as exercised by a Governor, 111 " Colonial Laws Validity Act, 1865," the text of, 101, 105 Colonial legislatures, and the right of Veto, 109, 111 and notes, 112, 113 Colonial Parliaments, limit to powers of, 99 and note ; as " constituent bodies," 105 authority of, in regard to changes in Articles of Constitutions, 106 note ; controlled by the Imperial Parliament, 108; the liberty of, in relation to Imperial Sovereignty, 108 ; power of the Governor as to assent to Bills, 111 Colonial policy in 1914, xxxii
;
Colonies, the, in 1884, xxxiv;
between England and France as 265 Censure, the Vote of, action of the Ministry under, 435, 445 Channel Islands, the, and Acts of the
to, 264,
and growth of Imperialism, xxxiv Act limiting right of Parliament to tax, 1778, 64, 78; power of,
as to Treaties, 115
;
Imperial Parliament, 51 note I., 16 ; the personal and the wiU of the King, 16 Charles II., Rhode Island under charter of, 161 Chatham, Lord, attempt of, to legislate by Proclamation, 61, 430, 431 Church, the, and the Act of Union, 63 ; the Irish Church Act, 1869, 64 ; position of the clergy with regard to the Courts, 306 note
Charles
legal
policy of the Imperial Government toward, 115 Colonies, Laws relating to. Tarring, 104 note Commitment for contempt, instance of Parliamentary, 54, 66 n,ote Common, or " unwritten " law, 27 Commons, the House of, resolutions of, not law, 62; Mr. Justice Stephen on, 53 ; powers of, 54 Commonwealth Act, xviii note 8 Comptroller and Auditor General,
position and powers of, 315 instance of the power in 1811, 317 Conciliation with America, xxvi note 1 Confederation, the Articles of, 15
duty of, in cases of riot, 284 British subjects of Qtizenship throughout the Empire, xxviii,
Citizens,
xxxvi, xxxvii, Ixxxi note 1, Ixxxv, xci note 1 Civil servants and the Law Courts,
xlviii
Qergy, the, and lawlessness, xli; as subject to the Courts, 306 note
Closure, the, li Coalition, Pitt and the, 449
Conferences with Dominions, xxxi Conflict Court, the, in France, xliv, xlv, 360, Appendix, Note XI., 566-557 Congress, Acts of, 146 ; powers of, compared with powers of English railway companies, 147; limited power of, 148; Act of 24th September 1789, the 157; Supreme Courts of the United States and, 167, 169
; ;
; ;
564
INDEX
objectors
Conscientious
and law-
lessness, xli Conseil d'Etat, xliv, 331 ; the functions of, 371 ; a real tribunal of
Droit Administraiif, 372
Conservatism, tendency of Federalism to, 169 Consolidated Fund, the, 313 Constitution, the, the division of, between history and law, 22 rights part of the law of, 25 ; rules belonging to the conventions of, the law of the, three prin26 ciples of the study of, 34 ; Federal States subject to, 140, 142 note the fifth Article of the United States, 143 ; Federal Governments under, 143 and Tiote Federal, legislature under, 145, 147, 165 Constitution, the, the Law of, and the Conventions of, xlviii, 413 probable changes in, xlviii the legal and the conventional elements in, 414 ; based on the law of the land, 466 Constitution of Commonwealth of Australia, 135 note, 136 note, 148 note, 150 note, and Appendix, Note IX., 629-537; amendment of, 533 Constitution of France, 118 Tooqueville on, 118 rigidity of, 122 ; revolutionary instances in, 129 ; the existing, 129 Constitution of the German Empire, 143 note, 144 note Constitution of the United States, the Articles of, 4 ; in comparison with the English, 4, 134 ; Kent's and Story's work on, 5 preamble of, 139 ; the judges in relation to, 154 ; in comparison with the Canadian, 162 and note Constitutional freedom, confusion as to the origin of, 17 Constitutional historians, in con; ; ; ; ;
stitutional historians in coimeotion with, 11 ; antiquarian study unnecessary to the study of, 14 iudefinitensss of, 21 ; character of rules of, 23 ; rules of, as enrules as conventions, forced, 23 the legal and conventional 23 importance elements of, 27, 28 different of, to the lawyer, 29 ; in character of rules of, 30 ; general the result of ordinary laws, 191 Constitutional laws, 84 ; no legal distinction between, and other laws, 87 Constitutional maxims, the observance of, 451 Constitutional Monarchy, of Louis Philippe, 118 Constitutional understandings, 414 Freeman's Qrowth of the English Constitution, quoted as to, 414; examples of, 416 ; common characteristics of, 418 the aim of, 424 ; not rules enforced by the Courts, 435 ; how disobeyed, 436 variability of, 451
; ; ; ;
Constitutionalism,
difference
be-
tween English and French, 121 note ; comparison necessary to the study of, 201
Constitutionalists, legal, in contrast with constitutional historians, 15 Constitutions, Burke and Hallam on the study of the English, 1 ; past
ideas
and views of, 2 ; modern view and study of, 3 difficulties in the study of, 4, 6 difference between the state of the government and the theory, 9 Jioje ; of England, contrasted with that
; ;
of France, 4, 118, 186 ; flexible, 122; rigid, 123, 124 and note, 169 ; the formation of foreign, 192; of the United States, 195 and woie ; main provisions of tho English, 199; rigidity of the
trast with legal constitutionalists,
15
Constitutional history, research in, in relation to modern constitutional law, 14 Constitutional idea, development of
new,
of, 1
Iviii
Constitutional
;
Law, the true nature

origin of the term,
modem
Mons. Boutmy's division of
the English, 6 note; sources of work in, 6 ; as considered by Blaokstone, 7 ; study of the con-
French, Appendix, Note L, 469476 ; classification of, 480 Constitutions, of Belgium, in comparison with the English, 4 ; in contrast with the English, 86; flexible and rigid, 87, 123 note Constitutions, the Swiss and the " guaranteed " rights of, 150 Contracts, law in relation to, 21 Conventions of the Constitution, xlviii recent important changes in, xlviii the lawyer in relation to, 29; and the Ministry, 30;
; ;
;; ;
; ; ;
INDEX
Ministers under, 321 ; and Law of the Constitution, 413 ; nature of Conventions, 413 ; and exercises of the prerogative, 419 ; and
S65
Crisis of Liberalism, The, xci note 2 Criticism, fair and libellous, 238 Crown, the, power of veto in
Dominion
affairs,
xxx;
moral
Parliamentary
privilege,
423
those strictly obeyed, 437; how obedience ensured to, 440 ; obedience to, enforced by law, 441 Conventions, enacted, 1 ; necessity for Parliament observing, Ivii Conventions, "mere," dix; as affecting DisraeU, Gladstone, and
Peel, xlix
officials,
;
influence of, ci ; theory of the prerogative of 1785, 9 note unreality of expressions in connection with, 11 ; and responsibility of Ministers, 24 ; law regulating
the descent
of,
of,
27
the descent
of Settle-
fixed under the

;
Act
effect
;
inconvenience
Iviii
on parties and and
danger of violating,
Corporations, as non-sovereign lawmaking bodies, 90 ; Municipal, 147 mofe Correspondence, Burke's, Ixvi note 1 Courts, the, and Acts of Parliament,
38
and Parliamentary
52
;
resolu-
Mr. Justice Stephen on, 53 and Parliamentary authority, 58-61 ; and the electors, 71 and the bye-laws of Railway Companies, 92 ; and Colonial Acts, under the Imperial Parlia104 ment and under Federalism, 152 ; the authority of, 153 ; the Belgian and French, 153 ; of the United (States, 154, 155, 157 ; Canadian, 184 ; Swiss, 165 ; of the United States, 170, 171 note, 172 ; position of officials under, 189 ; as the foundation of the English and the Constitution, 193 ;
tions,
; ;
legislation by pro41 clamations under, 48; la relation proclamations, 51 ; sanction of, to to Colonial Acts, 100; and the right of Veto, 110 and note ; hereditary revenue of, 308 ; responsibility of Ministers as to Acts of, 321 ; prerogative of, as anterior to the power of the House of Commons, 421 ; position of, in case of a conflict between the Lords and the Commons, 427 ; the personal influence uncertain, of, 457 the survival of the prerogatives of,
ment,
459
Bagehot on powers legally
exercised by, 463 ; proceedings against the, Appendix, Note XII.,
556-557
Crown servants
of,
in England,
powers
382
Davis, American Constitutions, 173

note
De De
Berry, Duohesse, and her atraise

civil
tempt to
war
in
La
Habeas Corpus Act, 212, 215, 218, 219, 224; and the Press, 246;
right of public meeting, 271, 272, 274 note ; and Courtsmartial, 298 ; and military law, 303, 644-547 ; and State matters and in France, 335, 359-361 ; Droit Administratif, 347, 395, 399 ; English Crown servants as subject to, 391, 392 ; and Parliament, 405 and note Courts, Federal, 148 Courts of Australia, as interpreters of the Constitution of the Com-
Vendue, 349
Blosseville, 326
and the
Decentralisation par service, xlvi as affecting the Post Office, xlvi D'Eon, the Chevalier, 187 De Lolme on the limit of English
monwealth, 531 Courts of India, the, and the Acts of the Legislative Council, 95, 97 power of, as to Acts passed by the Council, 98 Blackstone's Courts of Justice, statement as to Eoyal power in connection with, 9 Courts-martial, and the CivU Courts, 298, 303, 304
Parliamentary power, 41, 83 Declaration of the Rights of Man, freedom of discussion and liberty of the press under. 234 " Declaration of the State of Siege," the, 283 French law aa to, 288 under the Republic of France, 289 Dentists Act, the, 141 Despotism, instances of, 188 and
;
note Discussion, the Right to Freedom of, 234 ; under foreign constitutions, 234 ; under English law, 235, 242
and
Tiote
Dissolution of Parliament, the rules as to, 428 ; of 1784 and 1834, 429 right of, in relation to Parliamentary sovereignty, 433; the right
;:
;; ; ;
566
INDEX
foreign to English not in reality introduced into the law of England, 383 no foothold in England, 385 its merits, 389, 393 ; its defects, 389, 396 Dubs, Dr., on the Swiss Federal Court, 165
rests
as the right of appeal to the people, 434, 452 Documents, Public, necessary signatures to, 322 Dodd, Dr., execution of, 459 " Dominions," meaning of term, xxiv, xxT ; each a self-governing colony, xxiv ; and Acts of Imand perial Parliament, xxix ;
of,
upon ideas
383
;
law,
Duguit,
treaties,
xxix
and war, xxix

xxix
;
tionnel, xlv note 1, xlvi note 3,
powers to
legislate,
extent
of independence, xxx ; right to raise miUtary and .naval forces, xxx ; right of appeal, xxxi
Droit Constitu253 Manuel de Droit Public Francis, 50 note, 119 note ; on the position of officials under Droit AdminisTraite de
tratif,
399 note
conferences
Country a
with moral
the
right,
Mother
xxxi
Edward
49
relations of England and the, in 1884 and 1914, xxxii ; and England in early Victorian era, xxxii, xxxiii ; willingness to share cost of defence of the Empire, xxxvi Droit Administratif, compared with present official law of England,
xliii
VI., repeal of the Statute of Proclamations in the reign of,
Electorate, the true sovereign power, xlix ; power of the, Iv ; as the political power of the State, 423, 424 ; in relation to dissolution of
Parliament, 428
Electors, position of, in the United States, 28 ; Parliamentary, position of, 57 ; the Courts and, 71
examination of, xlvi contrasted with the Bule Law, 324; the term, 326; of Tooqueville on, 326, 327 and note, 352, 353 note ; definition of, 328 ;
;
;
critical
power
of, politically,
73
position of officials and others under, 329, 337-344, 349-362, 354, 380 ; fundamental ideas permanent, 329 ; historical development, 330 ; leading principles, 332 ; Vivien on, 332 moie ; characteristics, 334 ; foundations laid by Napoleon, 335-337 ; conflicts of jurisdiction, 339 ; protection of officials, 341, 342, 349 ; the Council of State under Napoleon, 344 ; during the Monarchical period (1830-1870), 346 ; and the Third Republic, 355 ; decisions of the Council of State become judgments, 360 ; creation of independent Conflict-court, 360 ; evolution of, 362-364, 371 ; comparison between, and the Rule of Law, 364 ; not opposed to English ideas current in the sixteenth and seventeenth centuries, 364 ; " caselaw " or " judge-made law," 369, 378 ; the Conseil d'Stat a real tribunal of, 372 ; felt by Frenchmen to be beneficial, 377 ; de-
Elizabeth, Queen, xcii Ellenborough in England, 244 Empire, British, benefits conferred by, XXXV ; citizenship of British subjects throughout, xxviii, xxxvi, xxxvii, Ixxxi note 1, Ixxxv, xci note 1 ; secures peace to Britain and the colonies, Ixxx ; and cost of Imperial defence, Ixxx ; pride in, Ixxxi England, the King of, Blackstone on the power of, 7, 9 England, Tooqueville on the respect for law in, as compared with Switzerland in 1836, 180; the Press laws of, 236, 243, 247, 248 law of, as to right of public meeting, 266 English Cabinet, the, 8 English Constitution, Ixix
note
1,
civ note
1, cii
velopment of, between 1800 and 1908, 379; not to be identified with any part of the law of England, 380 not the law of the Civil Service, 380, 381 compared with the law of Equity, 381
; ;
English Constitution, the, Burke and Hallam on the study of, 1 ; past views and ideas of, 2 ; modern view and study of, 3 difficulties connected with the study of, 4, Paley quoted, on actual state 6 and theory of government, 9 note ; Tocqueviile on, 21, 84 ; unwritten character of, 86 ; ideas of the Royal prerogative in the seventeenth century, 365 English Constitutional law, 6 ; Mons.
; ;
INDEX
division of, 6 moie sources of work in, 6 ; as treated by Blaokstone, 7, 141 English Parliament, the, characteristic of, 402, 403 note; the appointment of the Prime Minister,
567
Boutmy's
404
English Prime Minister, as head of the English Cabinet, 8, 404 Enlistment, power of the Civil Courts as to, 303, 304 and notes the Foreign Act, 408 Equity, the law of, in England, 376, 378 ; compared with Droit Administratif, 381 Essays in Jurisprudence and Ethics, PoUock, 38 note Etudes de Droit Oonstitutionnel, Mons. Boutmy, 6 note Executive, distinction between a parliamentary and a non-parliamentary, Appendix, Note III., 480-488 Extradition Acts, foreign criminals under, 220 and note ; powers under, 408 Eyre, Governor, and the Jamaica rebellion, 1865, 233, 542 note
Ixxxii ; its effect if applied to India, Ixxxiii, Ixxxv ; what would become of the old Imperial Parliament, Ixxxiv ; new prestige gained by, Ixxxvii ; of United Kingdom and divided allegiance, xo ; foreign to English constitutionalism, xc ; would affect loyalty of colonies, xoi note 1 ; and Parliamentary sovereignty, 134 and note ; Swiss,
135
note,
and Appendix, Note
Factory legislation in England, 381 Featherstone Commission, Report of, 284 note, and Appendix, Note VI., 512-516 Federal Assemblies, the Swiss, 57
Constitution, legislature Federal under, 145, 147, 165 Federal government, leading characrequirements teristics of, Ixxv ; for success, Ixxv ; in the United States, Ixxvi; in Switzerland, Ixxvi ; what it means, Ixxix ; in relation to Imperial Federation, Ixxx ; characteristics of, in relation to Home Rule all round, Ixxxvii ; instances of, 134 ; aims necessary conditions to of, 136 the formation of, 136 and notes Federal States, division of Powers in. Appendix, Note XL, 476-480 Federalism, Ixxiii ; and nationalism, Ixxvi ; a weak form of government, Ixxvii ; incompatible with English ideas, Ixxviii ; divides not to be allegiance, Ixxviii ; nationalism, confounded with the dream of many Ixxix; objections to Englishmen, Ixxx the creed of, Ixxxi ; a peril to the British Empire, Ixxxii ; difficulties in the United States,
; ;
the foundations ; of, 136 ; the sentiment of, 137 ; the aim of, 139 ; of the United States, 139 the leading characteristics of, 140 ; in relation to Constitution, 140 ; sovereignty under, distribution of 144; powers under, 147 ; limitations under, 148 and note, 149 ; in comparison with Unitarian government, 151 and note; the Law Courts under, 152 ; the meaning of, 153 ; individual character of Swiss, 164 ; in comparison with Parliamentary sovereignty, 167 weakness of Swiss, 167 and note, 176 ; and Conservatism, 169 the legal spirit of, 170 ; success of, in the United States, 175 ; AustraUan, Appendix, Note IX., 529-537 ; distinction between Canadian and Australian, 537 Field, J., on the right of public meeting, 271 Firth, Cromwell's Army, 293 note " Flexible " Constitutions, the English, an example of, 122, 123 ofe Foreign Enlistment Act, powers of the Ministry under, 408 Foreign Legislatures, non-sovereign, 117 Fox, support of Parliamentary sovereignty by, 430 France, Constitution of, in comparison with the English, 4 ; Tooqueville on the constitution of, 118 ; the Republic of 1848, 120 ; the authority of the present Republic, 120; the Ooup d'Etat of 1851, the Revolutionary 125, 485 ; constitutions of, 129 the existing constitution of, 129 ; the Courts of, in relation to the National Assembly, 153 ; lawlessness in past administrations, 187 and note ; the Press law of, 248 note ; literature under the Aruiien Regime, 251 ; under the Revolution, 252 ; under the First Empire and
VIII., 465-467
; ;
; ;
568
INDEX
Goldsmith's Citizen of the World, 2
note
the Kepublic, 252, 254 note ; the of, as to the " Declaration of the State of Siege," 287, 288; Droit Administratif in, 324 et seq. ; the " Separation of powers," 333 ;
law
Gordon
Riots, the, 1780, 286 Governance of England, The, Iv note I, xci note 2
limit of jurisdiction of law courts, 335 ; judicial and administrative
courts constituted
by Napoleon,
336, 336 and note ; acts of State, 341, 386 ; officials under Art. 75 of Constitution of Year VIII., Tribunal des Conflits, 343, 351 ; 359, Appendix, Note XI., 556657 ; the Conseil d'Mtat, 371, 372 ; the National Assembly, 405, 486, 487 ; Directorial Constitution of, 485, 486 ; President of Republic, election and power of, 486, 487 in relation to National Assembly,
Government, position of publishers of libel on, 239 ; in relation to the Press, 243 ; and the right of public meeting, 277 Government of England, Iv note 1, xci
note 2,
487 Frederick the Great, 80 Free Traders, Ixxi Freeman, E. A., 6, 16 Oroioth of the English Constitution by, 12 quoted on constitutional understandings, 414 ; on appeal to precedent, 18
;
Ireland Act and Rule, Ixxxvii note 1 Grant, General, third candidature of, as President, 28 Grattan's Constitution, 482 Great Reform Act, xx Gregoire quoted, 350 note GreuviUe, Lord, action of, in opposition to Parliament, 1811, 317 Grouch of the English Constitution, Freeman, in relation to constitutional law, 12 ; qv/jted, 17 " Guaranteed " rights of the Swiss Constitution, 150
Government
note 1 of
Home
Guillotine, the,
li
French in Canada,
Ixxix
their
loyalty,
Habeas Corpus Acts,
the, 27,
193,
French Constitutions, Rigidity of. Appendix, Note I., 469-476 French National Assembly of 1871,
76 French Republic, the, officials under Art. 75, Year VIII., 343, 351 Fundamental laws and constitutional laws, 85, 141 and note
GarQon, Code
Pencil,
195 ; suspension of, in comparison with foreign " suspension of constitutional guarantees," 197, 200 the Writ of, 209 ; the issue of the Writ of, 211 ; power of the Courts aa to, 212 ; the Acts of Charles
II.
and George
III.,
212; rights
343 note
Gardiner, Mr., 16 ; on Bacon's writ De non procedendo Bege inconsuUo,
367 George 11., 459 George III., 1, 2, 9 ; pubUo expenses as charged in the reign of, 312 dissolution of Parliament by, as a constitutional act, 429 ; view of Parliamentary sovereignty, 431 ; exercise of personal wiU in matters of policy, 458 George V. and creation of peers, lii German Emperor, real head of executive, 483 independent action of, 485 German Empire, the. Constitution of, 143 note, 144 note, 429 ; an example of federal government, 134 ; executive of, 482, 483
;
the individual under, 213 provisions of, 214, 216; the authority of the judges under Writ of, 218 ; case of aliens under, 220, the suspension of, 224 and note ; charge of High Treason under, 225 and note ; the Suspension Act, as an Annual Act, 226 the Ministry and, 226 ; and Act of Indemnity, 228, 232 ; position of official under, 229 ; arrest under, 229 HaUam, Middle Ages, 2 note HaUam, on the prosperity of England traceable to its laws, 1, 3, 6, 12 ; on the Septennial Act, 43 Hamilton, opinions of, in relation to the constitutional articles of the United States, 15 Hastings, Warren, 439 Hauriou, on the position of officials under Droit Administratif, 400 and
of
note
Gladstone, Mr., xlix, Gneist, 83
note
Heam,
Professor, 6
Government of
to,
England by, referred
18, 25,
INDEX
427
19
rMte,;
569
as a political theorist,
of Pro-
Henry VIIL, the Statute

clamations in the reign
Ixxxii ; what they ought to keep in view, Ixxxvi Income Tax, the. Act as to, annual,
of,
48
;
High Treason, charges of, under the Habeas Corpus Acts, 225 and note under the Coercion Act (Ireland).
1881, 227
Historians compared with lawyers,
Hobson,
J. A.,
The
Crisis of Liberal-
ism, xci note 2 Holland's Jurisprudence, 22 note Home Rule, what has stimulated interest in, Ixxxvii; why not a benefit if applied all round,
Ixxxviii
Home
Rule Bill, history of, xxii as viewed by the electors, liii House of Commons, the, its powers, XX, xxii ; jealousy of judicial interference, xxxix ; and obstruction, sion,
311 Indemnity, Acts of, objects of, 47, 547-549, 553, 664 ; an instance of Parliamentary power, 51, and the Habeas Corpus Suspension Act, 228, 230, 231 officials under the Act of 1801, 232; the Ministry under Act of, 408 India, British, the Legislative Counoil subordinate to the British Parliament, 95; the Acts of the Council and the Courts of India, 96, 97, 98 Inland Revenue Office, the daily routine of, as to receipts, 312 International law. Acts of Parliament and, 69
;
y ^/
li
Ixix ; ; on, 82 ; powers of, in relation to the Ministry, 152, 429 ; and the Licensing Act, 267 ; in relation to the House of Lords, 454 House of Lords, its powers, xx, xxi, xxii Ttotes 1, 2, xxiv ; and Money Bills, XX ; veto of, xx ; legislation delayed by, xx, xxi ; in relation to the House of Commons, 427, 454 ; instances of opposition to the Commons, 454, 455 How France is Governed, xliv note 3
and freedom of discusnot a debating society, parties in, Ixxi Burke

;
Ireland, and the Act of Union relating to the United Church, 63 ; the Coercion Act of 1881, 227; the Prevention of Crime Act, 1882,
227
Irish Church Act, 1869, the, 64, 170 Irish Parliament of 1782, an ad-
mittedly sovereign legislature, 482 ; power of English ministry over executive, 482 Jackson, President, 173 Jamaica, the rebellion of, 1865, 233 James II. as an instance of the limit of sovereign power, 76 Jenks's Qovernment of Victoria, 106
note
on Sovereign power, 75 Humphreys, Proportional Bepreaentation, Ixvi note
Hume
Immigrants Restriction Act, 1907

(Transvaal), 116 note
Impeachment, 438 ; disuse of, 450 Imperial Government, the, right of,
to veto Colonial Bills, 113
of,
;
action
toward the Colonies, 115 Imperial Parliament, and self-governing colonies,
xxv ; and
taxes,
xxvi
advantages of powers of
legislation by, xxvii ; relation of, to self-governing colonies in 1884, xxvii ; in 1914, xxix ; and Isle of Man, xxvii note ; and New
Zealand, xxvii Imperialism, growth
of, in colonies,
xxxiv ; definition of term, xxxiv ; advantages of, xxxvi ; disappointments in connection with, xxxvii Imperialists, what they aim at.
Jenkyns, Sir H., British Bule and Jurisdiction beyond the Seas, 51 note, 100 note Johnson, Dr., Ixxxix Judge, primary duty of, xxxix "Judge-made law," 369, 370 Judges, English, in relation to the Imperial Parliament, 152 ; Belgian and French, 153 ; of the United States in relation to the Constitution, 164, 155, 174 ; and the Writ of Habeas Corpus, 218 position of, in the seventeenth century,' 223, 224 note ; instance of the power of, in the case of Wolfe Tone, 289, 290 ; salaries of, under George III., 312 ; position of, in France, as to matters of the State, 336 ; in relation to English Acts of Parliament, 403 ; in relation to the Houses of Parliament, 405 ; and Parliamentary laws, 409
; ;
570
INDEX
Legal constitutionalists in contrast .with constitutional historians, 15 Legal rules of constitutional law, 30 ; the Peers and Commons under, 30-31 Legal sovereignty, limit of, 76 ; and political sovereignty, the distinction between, 425 Legalism, Federalism as, 170
Legislation, what it must aim at, Ix ; judicial, and the supremacy safeguards of Parliament, 58 ; against unconstitutional, 126 Legislative authority, of Parliament, 48, 67, 68 ; in France, 50 and note Legislative bodies, limited power of, in the United States, 132 Legislatures, Foreign non-sovereign,
Judges and Courts, public distrust of, xl ; and Trade Unions, xl
Kangaroo, the,
li
Keith, Responsible Government in the
Dominions, xxix note 2, xxx notes 1, 3 ; on South African Union, 480 Kenny, Outlines of Criminal Law, 279 note Kent, Commentaries of, on the Constitution of the United States, 4 lines of -work, 5 loyalty to and imKing, the, 8 perial position of, xxxv, xci note the 1, ci ; veto of, xxii note 1 ; recognised representative of the whole Empire, li ; Blaokstone on
; ;
the authority of, 7, 9 ; ordinances and proclamations of, 48 ; and the perthe ministry, 422, 483
;
117
Letter to the Sheriffs of Bristol, xxiii note 1 Libel, the law of, 236 and note ; position of individuals under, 236-239 as to Government, 239 ; blas-
sonal win and influence of, 458, 459 " King in Parliament," the, 37, 424 King's speech, 1 note 2 Kitchener, Lord, declaration on taking office, Ivii note 1
Laudesgemeinden of Uri, the, 14 Law, the Rule of, xxxvii ; decline
Law as
Law,
in reverence for, xxxviii the basis of English civilisation, 18
in England, under, 240 under the Belgian Constitution, 243 Liberty of individuals, in England,
phemy
241
;
constitutional, 21 ; rules of, 23 ; an " unconstitutional," meaning of. Appendix, Note VII., 516 Law of the Constitution, position of the a Ministry in regard to, 30 and Conthree principles of, 34 ventions of the Constitution, 413 Law Courts, authority of, diminished by recent Acts, xxxviii ; and and the civil servants, xlviii ; powers of the Premier, 20 ; and Acts of Parliament, 38 Law of {he Press, Fisher and Strahan, 236 note new doctrine as Lawlessness, xli to, xli ; English clergy and, xli conpassive resisters and, xli militant scientious objectors, xli explanation suffragettes and, xli democratic sentiof zeal for, xli ment and, xlii Laws, and contracts, 21 ; constituand fundamental, 85 tional fundamental, 141 and note
; ; ; ; ; ; ;
Lawyers, in comparison with

torians,
his-
16
and the
rules
of
constitutional law, 30 Lee, General, Ixxix
Legal authority liable to prosecution in cases of excess, 33
193, 196 ; in Belgium, 193, 196 Liberty of the Press, foreign and the law English ideas as to, 235 control of, of libel, 236, 247; under French Governments, 251 Licensing Act, the, of the Press, 257, reasons for the discontinuance of, 257. 264 Limitations on right of Public Meeting, 273 ; really limitations on individual freedom, 275 Limitations on sovereignty of Parliament, alleged, 58, 59 note, 68 in the Colonies, 64 Todd on, 65 and external, 74, note ; actual, 69, 74 75, 79 ; internal, 77, 79 ; Leslie Stephen on, 78 Limitations under Federalism, 147, 149 Literature, in England and France, penalties connected 249, 250 ; with the production of forbidden works, 250 ; under the Ancien Begime, 251 and note ; under the Republic of 1848, 253 ; license and punishment under the Star Chamber, 256 Local and Private Acts, 47 Louis XIV., an instance of the limit of sovereign power, 76, 78 Louis XV., 187 Louis XVI., 187
; ; ; ;
INDEX
Louis Philippe, the Constitutional monarchy of, 118, 125, 347 Louis Napoleon, 80, 125, 485 Low, The. Governance of England, It note 1, xci note 2 Lowell, Public Opinion and Popular Oovernment, xlii note 1, Ixvi note note 1 ; Government 2, xci note 2, of England, Iv note 1, xci note 2,
note 1
571
missal of, by the King, 429, 431 resignation of, under Vote of Censure, 435, 445 ; and the Mutiny Act, 448 ; the withdrawal of confidence in, 452 Money Bills, xx, xxi Montesquieu, Esprit des Lois referred
to, 185, 333 Moral law. Acts of Parliament in
Lyndhurst, Lord, in opposition to measures of the House of Commons, 455
Blackstone on, 240 Moral Philosophy, Paley, quoted, 9 note, 22 note Morley's Life of Diderot, 186
relation to,
59
59
and
libel,
Maoaulay on the Press Licensing

Act, 257-258 Macclesfield, Lord, 439
Mackintosh, Sir James, on martial law, 541 Maine, Sir Henry, Ixxiv ; on democracy, xcv ; Popular Government,
Ixxiv, xov note 1 Mansfield, Lord, on the liberty of the Press, 243 Martial law, 32 note, 280 ; liability of soldiers as citizens, 282 ; and the " Declaration of the State of Siege," 283 ; how recognised in
Muir, Ramsay, Iv Peers and Bureaucrats, xxxviii note 2, xliii note 2, Iv note 1 Municipal corporations, 147 note Mutiny Act, the, 1689, preamble of, an annual Act, 305 ; in 295 relation to the annual meeting of Parliament, 443 note
; ;
Napoleon Bonaparte, the foundations of modern Droit Admitdstratif laid by, 330, 335-337 ; and
ordinary judges, 337 ; Council of State under, 344 Napoleon, Louis, 80, 125, 485 Natal, xxiv note 1 National danger the test of national
greatness, civ
England, 284 ; the proclamation trial of WoUe Tone, 289, of, 287 290 ; in England during time of war or insurrection. Appendix, Note XII., 538-555 Maxims belonging to the Conventions of the Constitution, 25, 26 and note not " laws," 26 ; constitutional, 452 May, Sir Thomas, as a constitutional
; ;
National Debt and Local Loans Act, 1887, 313 ; the interest on,
313
National Insurance Acts, xviii note 8 National Revenue, the, 309 Naturalization Act, 1870, the, 419 Newcastle, the Duke of, 453 Newspapers, position of publishers and writers, 244 offences treated by the ordinary Courts, 246 and note under the First Empire, 252 ; under the Republic of 1848, 253 New Zealand, the Supreme Court and the Foreign Offenders Apprehension Act, 1863, 100 note ; the Deceased Husband's Brother Act, 1900, 115 note New Zealand Parliament, 99 and note ; a non-sovereign legislating body, 100 and note ; liable to the authority of the Courts and the Imperial Parliament, 100 ; laws of, opposed to English common valid and law, 103 and moie; invalid acts; 103, 104 laws of, as affecting other colonies, 104 authority of, to change Articles
; ; ; ;
historian, 12 Melville, Lord, 439 Members of Parliament, increase in number of speakers among, Ivi
authority
of, Ivi
Merchant Shipping Act, 1876,
the,
392, 393 Mignet, French Revolution quoted,
486
in comparison the, 291 with the standing army, 292 quoted, on political Mill, Ixiii, Ixix
Militia,
; ;
institutions, 191 Ministers, responsibility of,

;
under the as subject to Rule of Law, 321 the Rule of Law, 323 Ministry, the, position of, under defeat, 30; power of, regarding the Habeas Corpus Act, 226; powers of, under the Alien Act, 1848, 228 ; action of, in case of tumult or invasion, 408; dis-
'; ;;
572
INDEX
106 and
note.,
in the Constitution, 163 ; power of the assent to BiUs, 111, Nightingale, Florence,
Governor to
112 Ixv
bodies in relation to, 87 ; the Legislative Council of India subject to, 95 ; the Colonial, of New
Non-sovereign law-making bodies, in contrast with legislative bodies, 83

characteristics of, 87 meaning of the term, 88 and note. ; the Indian Council, 95 the New Zealand Parliament, 105-107; Foreign, 117; Chamber, 120, 121 the French Nottingham, Lord, 376
; ;
O'ConneU and the Repealers, Ixx, Ixxi rnote, 1 and Federalism, xc Odgers, JAhd and Slander, quoted, 236
;
Official Secrets Act, 1889, 391 Officials, State, duty of, xxxix
Zealand, 99 ; powers of, 99 ; the sanction of the Crown in Acts of, 100 ; the " Colonial Laws Validity valid and iuAct, 1865," 101 the legal vaUd Acts, 103; supremacy of, as to Colonial the Imperial, legislation, 108 ; compared with the National Assembly of France, 120; the Courts in relation to, 152 ; the Ministry subject to the will of the House of Commons, 152 rules as to the dissolution of, 428 ; the dissolutions of 1784 and 1834, 429 ; non-assembly of, a breach
;
of
under the Habeas Corpus Suspension Act, 229 protected by Act of Indemnity,
position
of,
the
constitutional practice, 442 Army Act in relation to the
230-232
limited protection
of,
under the Act of 1801, 232 ; position of, under ordinary law, 281 position of, under Droit Adminis329, 337-344, 349-352, 354 powers of the English Crown, 382 ; appointment of the Prime Minister and the Cabinet of England, 404 Ordinances, Royal, 48
tratif,
the 442 ; 450 note ; the between the Upper and Lower Houses, 1878 and 1879, 456 ; a sovereign body, 482 Parliament, French, duration of,
annual
meeting
of,
refusal of supplies, Victorian, conflict
liii
Orton, Arthur, Ixxii

Paley's Moral Philosophy, the actual state and theory of government considered in, 9 note ; quoted, 22 note Palmer, Roundell, Ivi Palmerston, Lord, 1 ; career of, ci action of, under vote of censure,
Parliament Act, xix note 3 ; Appendix, Note XIII., 557 ; state of things before passing of, xx indirect effects of, xxi-xxiv ;
direct effects of, U ; as introducing written constitution, li; as aboUshing necessity for emergency creation of peers, lii ; and the duration of Parliament, lii ; enables House of Parliament to overrule will of electors, hii ; effect on Speaker, xxxviii, liv; increases power of the majority and the
435
Parliament,
;
sovereignty
of,
xviii,
Cabinets, Iv
what
constitutes,
xviii
powers of, xviii, xix ; under the legal rules of constitutional law, 30 ; the constitution of, 37 ; law-
making power of, 38 ; Acts of, and the Law Courts, 38 un;
limited legislative
authority of, 39 ; De Lolme on the limit of power of, 41 ; the passing of the Septennial Act, 42 ; position of, in regard to private rights, 46
under Acts of, 50 and note the Courts in relation to the Resolutions of, 52 : the legislative authority of, 58 and preceding Acts, 62 and the Acts of Union, 62 ; and the Colonies, 78 ; power of, to change any law, 84 other
rules
; ; ;
Parliamentary authority, instanced in the Septennial Act, 44, 45 ; and the power of the Courts, 59, 60 Parliamentary executive and a nonparliamentary executive, distinction between. Appendix, Note III., 480-488 Parliamentary leaders, powers of, Iv Parliamentary power, exemplified by Acts of Indemnity, 61 ; in relation to the Law Courts, 54; electors in connection with, 67 Parliamentary privilege and constitutional conventions, 423 Parliamentary procedure, as conventional law, 27 Parliamentary sovereignty, the nature of, 37 recognised by the
;
;; ; ;
; ;
INDEX
law, 39 ; and the Act of Settlement, 41 ; the Septennial Act a proof of, 45, 73, 433; and the Law Courts, 58 ; limitations on, 58 ; the Irish Church Act, 1869, 64 ; limitation of, in respect to the Colonies, 64, 65 and mote Austin on, 68 ; political and legal sense of, 70 ; external limit on exercise of, 75, 79 ; internal limit on, 77, 79 ; the two limitations of, 81 ; characteristics of, 83, 85 Tooqueville on, 84, 85 ; and Federalism, 134 and note, ; in
573
Poor
Law
of 1834, Ixi
Pope, the, in relation to reforms, 78 Popular Oovemment, Ixxiv, xcv

note 1
Precedent, frequency of appeal to, in English history, 18 Premier, the, power of, to dissolve Parliament, liii ; power of, to
comparison with Federalism, 167 and the Rule of Law, 402, 406 George the Third's view of, 430
to,
freedom of discussion, Ivi of Law, 20 Prerogative of the Crown, 61 ; the term, 420 ; as anterior to the power of the House of Commons, 421 ; survival of, 459 ; in relation to the Cabinet, 460 ; as increasing
curtail
and the Courts
the authority of the Commons, 461 President of the United States, the,
election of, 28, 175, 483 ; position of the Federal Judiciary in connection with, 152 ; independent
relation of the right of dissolution
433
" Ireland a Nation," xo government, disadvantages
PameE and
Party
of, xciii
Party system in England, Iv Passing of the Qreat Reform
Bill,
action of, 485 President of French Kepublio, election and powers of, 486, 487 ; in relation to National Assembly,
xU Payment of M.P.'s, effect of, liii Peel, 1 and the Dissolution of 1834,
;
The, Ixi note 1 Passive resisters and lawlessness,
429
Peers,
emergency creation
of,
lii
487 Government and Cabinet Government, forms of, 482 the former nominally still existing in France, 486 Press, the. Prevention of Crime Act
Presidential
(Ireland), 1882, in relation to, ; liberty of, under the Declaration of the Rights of Man,
the House of, resolutions of, not law, 52 ; powers of, 54 ; the creation of new, in case of conflict of the Lords and Commons, 427 Peers and Bureaucrats, xxxviii note.
2, xliii note 2,
228
234
Iv note 1
Personal Freedom, the Bight to, 202 ; under the Belgian Constitution, 202 ; as secured in England, 202 ; redress for arrest, 204 wrongful imprisonment, 208 ; the Habeas Carpus Acts, 209 ; the securities for, 216 Pitt, 1 ; and the Dissolution of 1784, 429 ; the Vote of Censure, 1783, 445 ; and the Coalition, 449-450 Pitt, Life of, 2 note 2 Poincare, Hmo France is Ooverned, xliv note 3 Sovereignty and Legal Political Sovereignty, the distinction between, 425 Political theorists, Bagehot and Professor Heam as, 19; questions
for,
20
Pollock's Essays in Jurisprudence and Ethics, 38 note ; Science of Case Law referred to, 58 Pollock, Sir F., on martial law, 546,
552, 553
Belgian law as to, 234 ; the libel, 236 ; the Government in relation to, 243 ; present position in England, 243 ; absence of censorship in England, 244 the Courts and, 246 ; under the Commonwealth, 246 note ; the law of, in France, in comparison with that of England, 248 under the laws of France, 260 ; in England in the sixteenth and seventeenth centuries, 255 ; of England, under the Star Chamber, 256 ; law of England and of France in contrast, 257, 259 ; end of the Licensing Act, 257 Prevention of Crime Act (Ireland), 1882, 227; powers of the Irish Executive under, 227 Priestley, opinion of, on the Septennial Act, 45 Prime Minister, the, as head of the English Cabinet, 8 ; the appointment of, 404 Printing-presses, the control of the Star Chamber over, 256 the University, 256
;
law of
; ;
574
INDEX
of veto might work for ill as well as good, xcvi ; main argument in favour of, xcvii ; the strength of, xovii ; its tendency to lessen the evils of the party system, xoviii Reform BUI, the, of 1882, Ivi, 126 Reform Riots, the, of 1831, 285 Religion, the law of libel in relation
to,
Private member, impatience of, to carry BUI, Ivi Private Rights, Parliament in regard to, 46 ; Coke on, 46
Privy Council, the, power of, in relation to Acts of Parliament, 50 and

ruAe, ; jurisdiction of, in the sixteenth and seventeenth centuries,
374, 375
240
Proclamations, the Statute of, 48 repeal of, 49; Royal, in relation to common law, 51 ; modern instances of, 51 and note Proportional representation, the case
for, Ixvi
;
Representation, proportional, Ixvi Representative government, causes leading to the foundation of, 81 ;
two different forms of, 480 RepubUo, the, of France, 120 ; position of the President, 120 ; the existing constitutions of, 129 Art. 75 of the Year VIII., 351 Republican electors, in the United States, 28 Resignation of Ministry, how enforced, 446 Resolutions of Parliament, Mr. Justice Stephen on, 53 Responsible Government in the Dominions, xxix note 2, xxx notes
Ixxii; note 1
in 1870
fosters log-rolling, Ixx, and 1914, Ixxiii
Proportional Bepresentation and British Politics, Ixvi note 2, Ixviii

notes 1,
ProportionaUsts, object of, Ixxi Public Accounts Committee, the, 318 Public Authorities Protection Act, 1893, 384 note Public Bill, xxi Public Documents, the formality of
signing, 322
1,3
Revenue, the, 308 ; source of the public, 308 hereditary, of the Crown, 309 ; under permanent and annual Acts, 310; the
;
Public Meeting, Right of, 32 note questions connected with, 32, 266
in Belgium
and in England, 266 ; the Courts of England in relation to, 267

;
unlawful assembly under, 268-269 ; decisions in oases of, 270-272 ; limitations on right of, 273-276 ; power of the
Government as
to,
tions as to, 278-279 Note v., 497-512
277 ; condiAppendix, J
authority for expenditure, 311, 312; the "Consolidated Fund," security for the proper 313 ; expenditure of, 314, 315 ; position of the ComptroUer General with regard to, 316 Lord Grenville in opposition to the Parliament in matter of, 1811, 317 ; the Public
;
Public Opinion and Popular Government, xlii note 1, Ixvi note 2, xoi
note 1 Pubhshers of libel, position of, 238
note 2,
Accounts Committee, 318
main
on Government, 239
Railway Companies, as non-sovereign law - making bodies, 90 power of, to make bye-laws, 91 functions of the Courts with re;
gard to, 92 ; instances of illegal bye-laws, 93 Rebellion, armed, xliii Reeves, author of History of English
features of control and audit, 319 note ; as governed by law, 320 Revolution of 1830, 253 Rhode Island, under charter of Charles II., 161 Right of PubUo Meeting, the, questions connected with. Appendix, Note v., 497-512 Right of Self-defence, the, Appendix, Note IV., 489-497 " Rigid " Constitution, Belgium and
France examples
of,
123 and note,

Constitutions,
Law, trial Referendum,
of,
420
124, 142, 169 Rigidity of French
the, xci ; definition as applied to England, xoi ; the "people's veto," xcii ; what it may be applied to, xcii note 1 ; causes of demand for, xcii ; main argument against, xoiv ; as
Appendix, Note
I.,
469-476
of
Constitution of Australian
Com-
monwealth, 533 Riot Act, the, substance
of,
286
viewed by
Socialists,
xov
power
Riots, duties of citizens in cases of, 284; the Reform, of 1831, 285; the Gordon, 1780, 286
; ; ;
'
INDEX
Roebuck,
Ivi
I
575
Roland, Madame, Ixii nvoU 3 Rolfe, Sir R. M., on martial law, 540, 646 Roman Empire and Greece, Ixxxix Royal Prerogative, ideas as to, in the seventeenth century, 365, 368 Royal Proclamations, in relation to common law and Acts of Parliament, 51 ; modem instances of,
51 and luAe, Royalty, English, in sympathy with
British people,
tions of,
1
proof of Parliamentary sovereignty, 46, 73, 433 Sidgwiok, Prof., Elements o/ Politics,
68 note, 171 niote Slavery, the War of Secession in relation to the abolition of, 79 Soldiers, liability of, as citizens, 282 ; under the Mutiny Act, 294 ; rights of, as citizens, 295 ; civil liabihty of, 297, 298 ; under charges for crime, 298 and note ; Mr. Justice Stephen on, in relation to their
officers,
300;
liabilities
under
Rule of Law, the nature and applica179-201

_;
Tocqueville's
comparison of Switzerland and England under, 180 ; three meanings of, 183 ; personal security under, 183; Continental authority under, 184, 185 and moie ; as a characteristic of England, 189; England and France in contrast, 190 ; in the United States, 195 ; equality under, 198 ; and the leading provisions of Constitution, ]99 ; Right to Personal Freedom, 202-233; Right to Freedom of Discussion, 234-265; Right of Public Meeting, 266-279 ; Martial Law, 280-290; the Army, 291-
military law, 302 ; duty of, when called upon to disperse unlawful assembly. Appendix, Note VI.,
512-516 Sommersett, James, case of, referred to, 216 South Africa, wars in, xxxvi South African Union, Keith on, 480 Sovereign power, Hume on, 75
limits to, in the case of absolute rulers, 75, 77 ; illustrations of the limit of, 75; under Federalism,
145
Sovereignty, the limit of legal, 76 legal, of the United States, 145 legal and political, the distinction
the Revenue, 308-320 ; responsibility of Ministers, 321-323 ; Ministers as subject to, 323 ; in contrast with Droit Administratif, 324-401 ; its merits, 389 ; defects,
307
between, 425 Sovereignty of Parliament, xviii, 37-176, 58 note; modification of, xix ; and of King, xxiv ; change in the area of, xxiv in relation
;
to
390 409
relation
between
Parlia-
Colonial Acts, 465 note
100-104,
of
113,
mentary sovereignty and, 402tendency of foreign assem;
Speaker
of
House
Commons,
blies to support, 405 Rules, legal, of Constitutional law, 30 ; as enforced, 23 ; as conven-
tions, 23,
Russell,
25 Lord John,
as affected by Parliament Act, xxxviii, liv ; not the servant of a party, liv Speaker of U.S. House of Representatives, Iv
Scotch Universities in relation to the Act of Union, 63 Scotsmen, their objection to use of term England for Great Britain, Ixxxix
Scott, General, Ixxix Scott, Sir Walter, Ixxx Seals necessary to the completion of
Standing Army, the, of England, in comparison with the Militia, 292 ; the institution of, 292 ; legislation as to, 297 Stanhope, Lord, Life of Pitt, 2 Tiote 2 ; on the Septennial Act, 43
Chamber, the, control of printing-presses held by, 256 abolition of, 1641, 263, 375 State officials, position of, under
Star
Acts, 322 Secretary of State, the, position of, under ordinary law, 281 Self-defence, the Right of. Appendix, Note IV., 489-497 Septennial Act, the, 42 Hallam and Lord Stanhope on, 43 ; opinion of Priestley and others on, 45 ; a
;
the Habeas Corpus Suspension Act, 229, 230; under the In-
demnity Act of 1801, 231, 232 Statesmen as affected by mere conventions, 1 Stationers' Company, the, formation
of,
256
Statute or " written law," 27
;; ;
576
INDEX
stitution of France, 118, 119 and note ; on the influence of law in
Statute of Proclamations, legislation under, 48 ; repeal of, 49 Stephen's Commentariea, 8, 370 Stephen, Mr. Justice, on the resolutions of the Commons and the judgment of the Courts, 63 ; on the relation of soldiers to their
officers,
300
Stephen, Leslie, on the limitations of Parliament, 78 ; lAfe of Fawcett, 463 note Story, Commentaries of, on the Constitution of the United States, 4 ; lines of work, 5 ; Commentaries on
Switzerland and England, 176, 180 ; on Droit Adminiatratif and the institutions of the Union, 327 and note, 331 and note, 352, 353 note, 387, 388 ; on Art. 75, Year VIII. of the Republic, 351-352 Todd, on Parliamentary power, 65 ; on the passing of Colonial Bills, 112 Tone, Wolfe, the trial of, 1798, 289,
290
Tories and Whigs, Ixx Trade, the Board of, under the Merchant Shipp&g Act, 1876, 392 Trade Unions and judges, xl ; and "peaceful picketing," xl Traite de Droit Conetitutionnel, xlv note 1, xlvi note 3, 253 Transvaal Legislature, Immigrants Restriction Act, 1907, 116 note Treaties, power of the Colonies as to,
the Conflict of Laws, 370 Stubbs, Dr. (Bishop of Oxford), as a constitutional historian, 12, 16
Suffragettes and lawlessness, xli Supplies, the refusal of, 450 and note Supreme Court, the, of the United States, American reverence for,
Ixxviii
;
formation and power

;
of,
154-158
case
of
Marbury
v.
115
161 ; as " master of the Constitution," 171 note restraints on, 171 note case of Munn v. Illinois, 173 ; alleged weakness of, 173 ; source of power of, 174
;
Madison decided by,
by Jury, 397 Tribunal dea Conflits, the, the funcTrial
tions
of,
359,
360,
Appendix,
Note XI., 555-556

" Unconstitutional " Law, meaning of an. Appendix, Note VII., 516 Union, the Acts of, 42 the Scotch Universities and, 63 the fifth Article of (Ireland), 64, 433 Union, the Act of, Ixi ; as subject to
; ;
Suttee, Ix
Swiss Confederation, the, 71 note an example of Federalism, 134, 135 note, 164, 165 ; description of,
487, 488 Swiss Constitution, the, 140, 148 " guaranteed " rights of, note ; 150 ; serious flaw in, 166
repeal (Scotland), 141
Union of South Africa, The, 480

note 1
Swiss Federalism, Appendix, Note VIII., 517-529 Switzerland, the electorate of, 57 ; the Federal Assembly in relation to the Courts, 165, 172 ; weakness of Federalism, 167, 168, 176;
Tooqueville'a comparison of law of, with that of England in 1836,
180
Federal CounoU
of,
487
Unitarian government, and Federalism, 151 and note; the meaning of, 153 Unitarianism in contrast with Federalism, 144 United States, the. Constitution of, in comparison with the English, 4 ; Kent and Story's Commentaries on, 4 ; an instance of relationship of constitutional historians and legal constitutionalists, 15 ; law of the constitution
Tarde's Lois de Vimitation referred

to,
378
Tarring, Laws relating to the Colonies, 104 note
and conventional
rules
in,
28;
Taxation,
how levied, 310 nent and annual Acts

Income
tax, 311
of,
perma310
Territorial Force, 305-307 Thiers, M., 350 Tocqueville, A. de, on the English
Constitution, 21
Parliament, 84, 85
on the English on the Con;
position of electors in, 28; Constitution of, 71 note; the abolition of slavery, 79; limited power of legislative bodies in, 132 ; the Federalism of, 134 and note ; the constitution in comparison with the English, 135 ; the union of ideas as to institutions in, and in England, 136 ; preamble of the
; ;
INDEX
Constitution of, 139 ; the supremacy of the Constitution, 140 ; the
577
Vivien, on Droit Administraiif, 332 Voltaire, impressions of England,
War
of Secession, 142
and
note.
180
imprisonment and exUe
of,
the fifth Article of the Constitution of, 143 ; the legal sovereignty of, 145 ; legislature of, 146 ; Acts of Congress, 146, the 157 ; President of, 148 ; the i"ederal Courts of, 148 ; limit of power in individual states, 149 ; the authority of the Courts of, 154, 170 ; the Supreme Court of, 155158, 172, 173 ; the Constitution of, in comparison with that of Canada, 162 ; success of the Federal system in, 175 ; the Constitution of, 195 and note ; rule
185, 186 Vote of Censure,
action of the Ministry under, 435, 445 Vox populi vox Dei, revival of faith
in, Ixii
Walpole and the passing of the Septennial Act, 45
War
law in^l96 ^ institutions of, in contrast with Droit Administraiif, 320 ; the President in relation to the Senate, 461 ; the Constitution of, 467 and note ; the rule of law
of
in,
467
to,
Universities, the, legislation of Par-
of Secession, the, and the the abolition of slavery, 79 ; plea for, 142 Ward, Sir Joseph, and his plan for Imperial Council, Ixxiv note 1 Washington, in connection with the articles of the constitutional United States, 15 Wellington and the Dissolution of 1834, 429 Westlake's Private International Law referred to, 370 Whigs and Tories, Ixx
liament as
170
establishment
WUkes, John,
32,
430
of peers, of 1834,
of printing-presses at, 255 Unlawful assembly, 269, 272 note, 273, 274 ; duty of soldiers when called upon to disperse. Appendix,
WiUiam
lii
;
III.,
459
William IV. and creation
and the Dissolution
431
Williams, Fisher, Proportional Representation and British Politics, Ixvi note 2, Ixviii notes 1, 2
Note
VI., 512-516
Veto, of
lation,
of,
; the meaning 25 note ; the right of, in connection with the Crown and
Crown and xxviii, XXX
Colonial legis-
Witenagem6t,
the, 14 Wollstonecraft, Mary, Vindication the Rights of Women, Ixii note 3 of
Colonial legislatures, 110-113 and notes ; instances of, in Canada and Australia, 114 ; non-existent in the French Chamber, 120
Victoria, Queen, 1, 451 Victorian (Colonial) Parliament, the, and laws altering the constitution,
Woman
suffrage,
Ixii
woman's
106 note ; the the Upper and 1878 and 1879, Vindication of the
Ixii note
struggle between
Lower Houses
456
Rights of
of,
Women,
claim to a vote, Ixii ; causes of strength of the movement, Ixiii arguments for and against, Ixiv ; and proportional representation, Ixvi; John Mill's argument for, Ixix Writ of Habeas Corpus, the, 209, 210 and note ; the issue of, 210 ; inaustance of power under, 216 thority of the Judges under, 218 case of aliens under, 220
;
THE END
Priuledin GrenC RritaLn by R.
&
R.
CLARK, Limited, Edinburgh.
BY
A. V.
DICEY,
K.C.
LECTURES ON THE RELATION BETWEEN LAW AND PUBLIC OPINION IN ENGLAND DURING THE NINETEENTH CENTURY.
Second Edition.
8vo.
12s. 6d. net.
THE r/MS5." Published
originally in
1905, this book

classic.
It
has occupied for some years the position of a

introduced new thoughts and new views.
the teaching of the historian and the
lies
sity,
has
It
has brought together

It
jurist.
has shown what
behind or under legal forms and

here and in America,
it
statutes.
In every univer-
has for some years been a stimulant
of thought, a corrective of the narrow legal habit of never looking
beyond the
letter of the statute.
This volume
is
in a sense the
esprit des lois of our time.
To
the second edition

in
Professor
carries his
Dicey has added a long introduction,

analysis into the twentieth century."
which he
THOUGHTS ON THE UNION BETWEEN ENGLAND AND SCOTLAND.

By
A. V. Dicey, K.C, Hon. D.C.L., and
the University of Glasgow.
Robert
1
S.
Rait,
in
C.B.E., Professor of Scottish
History and Literature

8vo.
6s. net.
THE SPECTATOR. "An

English
jurist
extremely able book.

historian,
The
and the Scottish

its
collaborating in an
its
examination of the Union,
antecedents, and
consequences,
in our
have thrown new

history."
light
on one of the greatest events
LONDON
MACMILLAN AND
CO., Ltd.
MEMORIALS OF ALBERT VENN DICEY

Being chiefly Letters and Diaries.
Edited by
With
ROBERT
S.
RAIT,
C.B.E.
2 Portraits in Photogravure.
8vo.
2s. 6d. net.
THE
TIMES.
" Prof. Rail's volume, in
memory
of the late
letters
Prof. A. V. Dicey, will

as well as of law.
be very welcome in the realm of

far
Dicey was
more than a
lawyer, though he
brought to bear upon the most contested juridical fields a mind

of singular clarity and vast capacity.
this
...
It
is
no
criticism of
well-compiled book and the invaluable collection of letters
and papers to say that the autobiographic fragment at the beginning shows what a loss was sustained by Dicey's failure to write
his reminiscences in full.
This fragment, written in his eighty-
seventh year,
back.
is
full
of wise
comment and admirable
lookings-
His views, however, are adequately represented by the many letters on politics, law, literature, and sociology. They
represent the ripe outlook of a
the quietude of his study, was having
mind and more
personality which, in
influence for
good on
the world that he adorned than has been vouchsafed to

able
many
and resourceful
politicians
and statesmen."
this
THE OBSER VEIi." In

Rait has
left
charming volume, Professor

Wisely
main, to speak for himself;
to give
us a most attractive picture of his friend.

in the
enough, he has allowed Dicey,
and he has
deftly
added only the few necessary touches
mtegrity to the whole."
GUARDIAN. "Professor
reticently not
Sir
Michael
Sadler
in
THE MANCHESTER
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CORNELL UNIVERSITY

the Cornell University Library.

There are no known copyright

the United States on the use of the

LAW OF THE CONSTITUTION

BOMBAY CALOOTTA MELBOOENE

THE MACMILLAN COMPANY

CUICAGO SAN FRANCISCO

LAW OF THE CONSTITUTION

K.O., Hon. D.C.L.

MAETIN'S STEEET LONDON

Second Edition 1880

Fifth Edition 1897.

Reprinted 1920 {twice).

PRINTED IN GREAT BRITAIN E. CLARK, LIMITED, EDINBURGH

'PEEFACE TO THE FIRST ^DITION

the study of the Law of the constitution -

pretend to be even a summary, nluch

deals only with

two or three guiding principles which pervade the

modern constitution of England.

to provide students with a

impress these leading principles on tkeir

minds, and thus

treatises of the like nature those legal topics which,

taken together, make up the constitutional law of

only emphasised the doctrines (such, for example, as

constantly illustrated English

and the constitutionalism on

the one hand of the United States, and on the other

actually delivered lectures must, even though revised

principles of the law of the constitution differs in its

and purpose, as well from a constitutional

the practical working of our complicated system of

modern Parliamentary government.

on the fact that

the debt which I

lawyers and historians

have composed works on the English constitution.

have been written

without constant reference to writers such as Blackstone, Hallam, Hearn, Gardiner, or

books are in the hands of every student.

a duty no less than a pleasure to

acknowledgment of the extent of

Professor Hearn's Government of England has taught

than any other single work of the

which the labours of lawyers established in early

times the elementary principles which form the basis

Mr. Gardiner's History of Eng-

land has suggested to

the conclusion on which,

could collect about French administrative law, stress

frequently laid in the course of the following pages,

the views of the prerogative

Crown lawyers under the Tudors and the

bear a marked resemblance to the legal and administrative ideas

which at the present day under the

support the droit administratif

and colleague Mr. Freeman