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Full text of "Introduction to the study of the law of the constitution"

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INTBODUCTION 



TO THE STUDY OF THE 



LAW OF THE CONSTITUTION 



BY 



A. V. DICEY, B.C.L. 

OF THE INNER TEMPLE 

BARRISTER-AT-LAW ; VINERIAN PROFESSOR OF ENGLISH LAW 

FELLOW OF ALL SOULS COLLEGE, OXFORD 

HON. LL.D. GLASGOW AND EDINBURGH 



THIRD EDITION 




All rights reserved 



First Edition, 1883. Second Edition, 1886. 

Third Edition, iSSg. 



1) 



5 



PEEFACE TO THE FIRST EDITION 

THIS book is (as its title imports) an introduction to 
the study of the law of the constitution ; it does not 
pretend to be even a summary, much less a complete 
account, of constitutional law. It deals only with 
two or three guiding principles which pervade the 
modern constitution of England. My object in pub- 
lishing the work is to provide students with a manual 
which may impress these leading principles on their 
minds, and thus may enable them to study with 
benefit in Blackstone's Commentaries and other 
treatises of the like nature those legal topics which, 
taken together, make up the constitutional law of 
England. In furtherance of this design I have not 
only emphasised the doctrines (such, for example, as 
the sovereignty of Parliament) which are the founda- 
tion of the existing constitution, but have also 
constantly illustrated English constitutionalism by 
comparisons between it and the constitutionalism on 
the one hand of the United States, and on the other 
of the French Republic. Whether I have in any 



vi PREFACE 

measure attained my object must be left to the judg- 
ment of my readers. It may perhaps be allowable to 
remind them that a book consisting of actually 
delivered lectures must, even though revised for 
publication, exhibit the characteristics inseparable 
from oral exposition, and that a treatise on the 
principles of the law of the constitution differs in its 
scope and purpose, as well from a constitutional 
history of England as from works like Bagehot's in- 
comparable English Constitution, which analyse the 
practical working of our complicated system of modern 
Parliamentary government. 

If, however, I insist on the fact that my book has 
a special aim of its own, nothing is further from my 
intention than to underrate the debt which I owe to 
the labours of the lawyers and historians who 
have composed works on the English constitution. 
Not a page of my lectures could have been written 
without constant reference to writers such as Black- 
stone, Hallam, Hearn, Gardiner, or Freeman, whose 
books are in the hands of every student. To three 
of these authors in particular I am so deeply indebted 
that it is a duty no less than a pleasure to make special 
acknowledgment of the extent of my obligations. 
Professor Hearn's Government of England has taught 
me more than any other single work of the way 
in which the labours of lawyers established in early 
times the elementary principles which form the basis 



PREFACE vii 

of the constitution. Mr. Gardiner's History of Eng- 
land has suggested to me the conclusion on which, 
confirmed as I found it to be by all the information I 
could collect about French administrative law, stress 
is frequently laid in the course of the following 
pages, that the views of the prerogative maintained 
by Crown lawyers under the Tudors and the Stuarts 
bear a marked resemblance to the legal and adminis- 
trative ideas which at the present day under the 
Third Eepublic still support the droit administratif 
of France. To my friend and colleague Mr. Freeman 
I owe a debt of a somewhat different nature. His 
Growth of the English Constitution has been to me a 
model (far easier to admire than to imitate) of the 
mode in which dry and even abstruse topics may be 
made the subject of effective and popular exposition. 
The clear statement which that work contains of the 
difference between our so-called "written law" and 
" our conventional constitution " originally led me to 
seek for an answer to the inquiry what may be the 
true source whence constitutional understandings 
which are not laws derive their binding power, whilst 
the equally vigorous statements contained in the same 
book of the aspect in which the growth of the consti- 
tution presents itself to an historian forced upon my 
attention the essential difference between the historical 
and the legal way of regarding our institutions, and 
compelled me to consider whether the habit of looking 



viii PREFACE 

too exclusively at the steps by which the constitution 
has been developed does not prevent students from 
paying sufficient attention to the law of the constitu- 
tion as it now actually exists. The possible weakness 
at any rate of the historical method as applied to the 
growth of institutions, is that it may induce men 
to think so much of the way in which an institution 
has come to be what it is that they cease to consider 
with sufficient care what it is that an institution has 
become. 

A. V. DICEY. 

ALL SOULS COLLEGE, 
OXFORD, 1885. 



PREFACE TO THE TRIED EDITION 

THIS Edition has been carefully revised. 

The revision consists mainly in the re-arrangement 
of the subject-matter. The division into lectures has 
been abandoned. The first lecture appears as what in 
its nature it really is an introduction to the main 
thesis of the book. The rest of the treatise is dis- 
tributed into parts and chapters. The parts correspond 
with and bring into prominence the three leading 
branches of the work ; each of the chapters is devoted 
to some special but subordinate topic, such, for ex- 
ample, as the right to personal freedom, or the contrast 
between French droit administratif and the rule of 
law prevailing in England. 

This Edition further contains a good deal of new 
matter. 

Most of this new matter is to be found in the 
Notes which make up the Appendix. To three of 
these Notes it may be allowable to direct the special 
attention of readers. Note I. presents in the merest 
outline some marked characteristics of French con- 



x PREFACE 

stitutionalism. It will have attained its object if it 
induces serious inquirers to study the invaluable 
lessons to be drawn from French experiments in the 
art of constitution-making. Notes III. and IV. should 
be read together. The substance of them has already 
appeared in the Contemporary Review. They answer 
several questions connected with the right of public 
meeting, and trace the difficulties besetting the law of 
public meeting to their true source the admitted 
obscurity of the principles determining the legal 
limits to the right of self-defence. 

My thanks are due to various friends, and especially 
to Mr. H. Jenkyns, of the Parliamentary Counsel 
Office, for valuable help in the detection and correction 
of errors which had hitherto escaped my notice. 

A. v. r>. 

July 1889. 



CONTENTS 



INTRODUCTION 

PAGE 

THE TRUE NATURE OF CONSTITUTIONAL LAW . 1' 



PAET I 
THE SOVEREIGNTY OF PARLIAMENT 

CHAPTER I 

THE NATURE OF PARLIAMENTARY SOVEREIGNTY . .37 

CHAPTER II 

PARLIAMENT AND NON-SOVEREIGN LAW-MAKING BODIES . 82 

CHAPTER III 

PARLIAMENTARY SOVEREIGNTY AND FEDERALISM . . 129 

PART II 
THE RULE OF LAW 

CHAPTER IV 

THE RULE OF LAW : ITS NATURE AND GENERAL APPLICATIONS 171 



CONTENTS 



CHAPTER V 

PAGE 

THE RIGHT TO PERSONAL FREEDOM '. . . .193 



CHAPTER VI 

THE RIGHT TO FREEDOM OF DISCUSSION 223 

CHAPTER VII 

THE RIGHT OF PUBLIC MEETING . 254 

CHAPTER VIII 

MARTIAL LAW .... . 2G2 

CHAPTER IX 

THE ARMY ... . 272 

CHAPTER X 

THE REVENUE . . . .287 

CHAPTER XI 

THE RESPONSIBILITY OF MINISTERS .... 300 

CHAPTER XII 

RULE OF LAW CONTRASTED WITH DROIT ADMINISTRATE . . 303 

CHAPTER XIII 

RELATION BETWEEN PARLIAMENTARY SOVEREIGNTY AND THE 

RULE OF LAW 331 



CONTENTS 



PART III 

THE CONNECTION BETWEEN THE LAW OF THE 

CONSTITUTION AND THE CONVENTIONS 

OF THE CONSTITUTION 

CHAPTER XIV 

PAGE 

NATURE OF CONVENTIONS OF CONSTITUTION . . .341 

CHAPTER XV 

THE SANCTION BY WHICH THE CONVENTIONS OF THE CON- 
STITUTION ARE ENFORCED 362 



APPENDIX 

NOTE I. RIGIDITY OF FRENCH CONSTITUTIONS . .395 

II. DIVISION OF POWERS IN FEDERAL STATES . 402 

III. THE RIGHT OF SELF-DEFENCE . . . 405 

IV. QUESTIONS CONNECTED WITH THE RIGHT OF PUB- 
LIC MEETING . . .413 

., V. THE MEANING OF AN " UNCONSTITUTIONAL " LAW 427 
INDEX 429 



INTRODUCTION 

THE TRUE NATURE OF CONSTITUTIONAL LAW 

" GREAT critics," writes Burke in 1 791, "have taught us Optimistic 

11 T i c iii y i ew f 

" one essential rule. . . . It is this, that 11 ever we should English 
" find ourselves disposed not to admire those writers tfon. 
" or artists, Livy and Virgil for instance, Raphael or 
" Michael Angelo, whom all the learned had admired, 
" not to follow our own fancies, but to study them until 
" we know how and what we ought to admire ; and if 
" we cannot arrive at this combination of admiration 
" with knowledge, rather to believe that we are dull, 
" than that the rest of the world has been imposed on. 
" It is as good a rule, at least, with regard to this ad- 
" mired constitution (of England). We ought to under- 
" stand it according to our measure ; and to venerate 
" where we are not able presently to comprehend." 1 

"No unbiassed observer," writes Hallam in 1818, 
" who derives pleasure from the welfare of his species, 
" can fail to consider the long and uninterruptedly in- 
" creasing prosperity of England as the most beautiful 
" phenomenon in the history of mankind. Climates 
" more propitious may impart more largely the mere 
" enjoyments of existence; but in no other region have 

1 Burke, Works, iii. (1872 ed.), p. 114. 
B 



INTRODUCTION 



" 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 charac- 
" teristic independence and industriousness of our 
" nation have been derived. 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 
" has recorded, by its manifesting, after the lapse of 
" several centuries, not merely no symptom of irretriev- 
" able decay, but a more expansive energy." l 

These two quotations from authors of equal though 
of utterly different celebrity, recall with singular 
fidelity the spirit with which our grandfathers and 
our fathers looked upon the institutions of their 
country. The constitution was to them, in the quaint 
language of George the Third, " the most perfect of 
human formations ; " 2 it was to them not a mere 
polity to be compared with the government of any 
other state, but so to speak a sacred mystery of states- 
manship ; it " had (as we have all heard from our youth 
up) not been made but had grown ; " it was the fruit 
not of abstract theory but of that instinct which (it is 
supposed) has enabled Englishmen, and especially un- 

1 Hallam, Middle Ages (12th ed.), ii. p. 267. Nothing gives a more 
vivid idea of English sentiment with regard to the constitution towards 
the end of the last century than 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. 



THE TRUE NATURE OF CONSTITUTIONAL LA W 3 

civilised Englishmen, to build up sound and lasting insti- 
tutions, much as bees construct a honeycomb, without 
undergoing the degradation of understanding the prin- 
ciples on which they raise a fabric more subtlely wrought 
than any work of conscious art. The constitution was 
marked by more than one transcendent quality which in 
the eyes of our fathers raised it far above the imitations, 
counterfeits, or parodies, which have been set up during 
the last hundred years throughout the civilised world ; 
no precise date could be named as the day of its birth ; 
nodefinite body of persons could claim to be its creators, 
no one could point to the document which contained 
its clauses ; it was in short a thing by itself, which 
Englishmen and foreigners alike should "venerate, 
where they are not able presently to comprehend." 

The present generation must of necessity look on Modem 

... ..,., ,> , . view of 

the constitution in a spirit different irom the senti- constitu- 
ment either of 1791 or of 1818. We cannot share the 
religious enthusiasm of Burke, raised as it was to the 
temper of fanatical adoration by just hatred of those 
" doctors of the modern school," who, when he wrote, 
were renewing the rule of barbarism in the form of the 
reign of terror ; we cannot exactly echo the fervent 
self-complacency of Hallam, natural as it was to an 
Englishman who saw the institutions of England 
standing and flourishing, at a time when the attempts 
of foreign reformers to combine freedom with order 
had ended in ruin. At the present day students of 
the constitution wish neither to criticise, nor to vene- 
rate, but to understand, and a professor whose duty it 
is to lecture on constitutional law, must feel that he is 
called upon to perform the part neither of a critic nor 
of an apologist, nor of a eulogist, but simply of 



INTRODUCTION 



an expounder ; his duty is neither to attack nor 
to defend the constitution but simply to explain 
its laws. He must also feel that however attractive 
be the mysteries of the constitution, he has good 
reason to envy professors who belong to countries 
such as France, Belgium, or the United States, en- 
dowed with constitutions of which the terms are to be 
found in printed documents, known to all citizens and 
accessible to every man who is able to read. What- 
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 Kent or Story, who 
commented on the constitution of America, with the 
situation of any person who undertakes to give instruc- 
tion in the constitutional law of England. 
Special When these distinguished jurists delivered in the 

comment- f rm of lectures commentaries upon the Constitution 
En Hsh f ^e United States, they knew precisely what was 
cpnstitu- the subject of their teaching and what was the proper 
mode of dealing with it. The theme of their teaching 
was a definite assignable part of the law of their 
country ; it was recorded in a given document to 
which all the world had access, namely, " the Consti- 
tution of the United States established and ordained 
by the People of the United States." The articles of 
this constitution fall indeed far short of perfect logical 
arrangement ; and they lack absolute lucidity of ex- 
pression, but they contain in a clear and intelligible 
form, the fundamental law of the Union. This law (be 
it noted) is made and can only be altered or repealed 
in a way different from the method by which other 



THE TRUE NATURE OF CONSTITUTIONAL LAW 5 

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, in- 
directly defines the body in which resides the legisla- 
tive sovereignty of the United States. Story and 
Kent therefore knew with precision the nature and 
limits of the department of law on which they in- 
tended to comment ; they knew also what was the 
method required for the treatment of their topic. 
Their task as commentators on the constitution was 
in kind exactly similar to the task of commenting on 
any other branch of American jurisprudence. The 
American lawyer has to ascertain the meaning of the 
Articles of the Constitution in the same way in which 
he tries to elicit the meaning of any other enactment. 
He must be guided by the rules of grammar, by his 
knowledge of the common law, by the light (occa- 
sionally) thrown on American legislation by American 
history, and by the conclusions to be deduced from a 
careful study of judicial decisions. The task, in short, 
which lay before the great American commentators, 
was the explanation of a definite legal document in 
accordance with the received canons of legal interpre- 
tation. Their work, difficult as it might prove, was 
work of the kind to which lawyers are accustomed, 
and was to be achieved by the use of ordinary legal 
methods. Story and Kent indeed were men of extra- 
ordinary capacity, so however were our own Black- 
stone, and at least one of Blackstone's editors. If, as 
is undoubtedly the case, the American jurists have 
produced commentaries on the constitution of the 
United States utterly unlike, and, one must in truth 



INTRODUCTION 



add, vastly superior to any commentaries on the con- 
stitutional law of England, their success is partly due 
to the possession of advantages denied to the English 
commentator or lecturer. His position is entirely 
different from that of his American rivals. He may 
search the statute-book from beginning to end, but he 
will find no enactment which purports to contain the 
articles of the constitution ; he will not find any test 
by which to discriminate laws which are constitutional 
or fundamental from ordinary enactments ; he will dis- 
cover that the very term "constitutional law," which is 
not (unless my memory deceives me) ever employed by 
Blackstone, is of comparatively modern origin; and in 
short, that before commenting on the law of the con- 
stitution he must make up his mind what is the nature 
and the extent of English constitutional law. 1 
Commen- jji s natural, his inevitable resource is to recur to 

tator seeks 

help from writers of authority on the law, the history, or the 
ttonai practice of the constitution. He will find (it must 



b e admitted) no lack of distinguished guides ; he may 
ava ^ himself of the works of lawyers such as Black- 
constitu- stone, of the investigations of historians such as 
theorists. Hallam or Freeman, and of the speculations of philo- 
sophical theorists such as Bagehot or Hearn. From 
each class he may learn much, but for reasons which 
I am about to lay before you for consideration, he is 

1 See ^this point brought out with great clearness by Monsieur 
Boutmy, Etudes de Droit Constitutionnel (1st ed.), p. .9. Monsieur Boutmy 
well points out that the sources of English constitutional law may be con- 
sidered fourfold, namely (1) Treaties or Quasi-Treaties, i.e. the Acts of 
Union ; (2) the Common Law ; (3) Solemn Agreements (pacts), e.g. the 
Bill of Rights ; (4) Statutes. This mode of division is not exactly that 
which would be naturally adopted by an English writer, but it calls 
attention to distinctions often overlooked between the different sources 
of English constitutional law. 



THE TRUE NATURE OF CONSTITUTIONAL LAW 7 

liable to be led by each class of authors somewhat 
astray in his attempt to ascertain the field of his 
labours and the mode of working it ; he will find, 
unless he can obtain some clue to guide his steps, 
that the whole province of so-called " constitutional 
law " is a sort of maze in which the wanderer is per- 
plexed by unreality (by what, if I might venture to 
do so, I would call " shams "), by antiquarianism and 
by conventionalism. 

Let us turn first to the lawyers, and as in duty i. Law- 
bound to Blackstone. 



Of constitutional law as such there is not a word ^ ltutlODt 

its Tin," 

to be found in his Commentaries. The matters which aiHy. 

Black- 
appear to belong to it are dealt with by him in the stone. 

main under the head Eights of Persons. The Book 
which is thus entitled treats (inter alia) of the 
Parliament, of the King and his title, of master and 
servant, of husband and wife, of parent and child. 
The arrangement is curious and certainly does not 
bring into view the true scope or character of consti- 
tutional law. This, however, is a trifle. The Book 
contains much real learning about our system of 
government. Its true defect is the hopeless confusion 
both of language and of thought, introduced into the 
whole subject of constitutional law by Blackstone's 
habit common to all the lawyers of his time of 
applying old and inapplicable terms to new institu- 
tions, and especially of ascribing in words to a modern 
and constitutional King, the whole and perhaps more 
than the whole of the powers actually possessed and 
exercised by William the Conqueror. 

" We are next," writes Blackstone, " to consider 
" those branches of the royal prerogative, which invest 



INTRODUCTION 



" 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, 
" for the sake of unanimity, strength, and dispatch. 
" Were it placed in many hands, it would be subject 
" to many wills : many wills, if disunited and drawing 
" different ways, create weakness in a government; and 
" to unite those several wills, and reduce them to one, is 
" a work of more time and delay than the exigencies of 
" state will afford. The King of England is, therefore, 
" not only the chief, but properly the sole, magistrate 
" of the nation ; all others acting by commission from, 
" and in due subordination to him ; in like manner as, 
" upon the great revolution of the Eoman 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." 1 

The language of this passage is impressive ; it 
stands curtailed but in substance unaltered in 
Stephen's Commentaries. It has but one fault ; the 
statements it contains are the direct opposite of the 
truth. The executive of England is in fact placed 
in the hands of a committee called the Cabinet. If 
there be any one person in whose single hand the 
power of the State is placed, that one person is not the 
Queen 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. (Christian's ed.), p. 249. 



THE TRUE NATURE OF CONSTITUTIONAL LAW 9 

true account of the powers of the King at the time when 
Blackstone wrote. George the Third enjoyed far more 
real authority than has fallen to the share of any of his 
descendants. But it would be absurd to maintain 
that the language I have cited painted his true posi- 
tion. The terms used by the commentator were, when 
he used them, unreal, and known 1 to be so. They 
have become only a little more unreal during the cen- 
tury and more which has since elapsed. "The King," 
he writes again, " is considered in domestic affairs 
" . . . as the fountain of justice, and general con- 
" servator of the peace of the kingdom. . . . He there- 
" fore has alone the right of erecting courts of judica- 
" ture : for, though the constitution of the kingdom hath 
" entrusted him with the whole executive power of the 

1 The following passage from Paley's Moral Philosophy, published 
in 1785, is full of instruction. "In the British, and possibly in all 
" other constitutions, there exists a wide difference between the actual 
" state of the government and the theory. The one results from the 
" other ; but still they are different. When we contemplate the theory of 
" the British government, we see the King invested with the most 
" absolute personal impunity ; with a power of rejecting laws, which 
" have been resolved upon by both Houses of Parliament ; of conferring 
" by his charter, upon any set or succession of men he pleases, the 
" privilege of sending representatives into one House of Parliament, as by 
" his immediate appointment he can place whom he will in the other. 
" What is this, a foreigner might ask, but a more circuitous despotism? 
" Yet, when we turn our attention from the legal existence to the actual 
" exercise of royal authority in England, we see these formidable 
" prerogatives dwindled into mere ceremonies ; and in their stead, a sure 
" and commanding influence, of which the constitution, it seems, is totally 
" ignorant, growing out of that enormous patronage, which the increased 
" extent and opulence of the Empire has placed in the disposal of the 
" executive magistrate." Paley, Moral Philosophy, Book vi. cap. vii. 
The whole chapter whence this passage is taken repays study. Paley sees 
far more 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 
existing prerogative of the Crown. The power of the Crown was still 
large, and rested in fact upon the possession of enormous patronage. 



io INTRODUCTION 



" 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." 1 
Here we are in the midst of unrealities or of fictions. 
Neither the Queen nor the Executive has anything to 
do with erecting courts of justice. We should rightly 
conclude that the whole Cabinet had gone mad if 
to-morrow's Gazette contained an order in council not 
authorised by statute erecting a new Court of Appeal. 
It is worth while here to note what is the true injury 
to the study of law produced by the tendency of 
Blackstone, and other less famous constitutionalists, 
to adhere to unreal expressions. The evil is not 
merely or mainly that these expressions exaggerate 
the power of the Crown. For such conventional 
exaggeration a reader could make allowance, as easily 
as we do for ceremonious terms of respect or of social 
courtesy. The harm wrought is, that unreal language 
obscures or conceals the true extent of the powers, 
both of the Queen and of the Government. No one, 
indeed, but a child, fancies that the Queen sits 
crowned on her throne at Westminster, and in her 
own person administers justice to her subjects. But 
the idea entertained by many educated men that an 
English Bang or Queen reigns without taking any 

1 Blackstone, Commentaries, i. p. 267. 



THE TRUE NATURE OF CONSTITUTIONAL LAW 11 

part in the government of the country, is not less far 
from the truth than the notion that Queen Victoria 
ever exercises judicial powers in what are called her 
Courts. The oddity of the thing is that to most 
Englishmen the extent of the authority actually 
exercised by the Crown, and the same remark applies 
(in a great measure) to the authority exercised by the 
Prime Minister, and other high officials, is a matter of 
conjecture. We have all learnt from Blackstone, and 
writers of the same class, to make such constant use 
of expressions which we know not to be strictly true 
to fact, that we cannot say for certain what is the 
exact relation between the facts of constitutional 
government, and the more or less artificial phraseology, 
under which they are concealed. Thus to say that 
the Queen appoints the Ministry is untrue ; it is also, 
of course, untrue to say that she creates courts of 
justice ; but these two untrue statements each bear a 
very different relation to actual facts. Moreover, of 
the powers ascribed to the Crown, some are in reality 
exercised by the Government, whilst others do not in 
truth belong either to the King or to the Ministry. The 
general result is that the true position of the Crown as 
also the true powers of the Government are concealed 
under the fictitious ascription to the sovereign of 
political omnipotence, and the reader of, say the first 
Book of Blackstone, can hardly discern the facts of 
law with which it is filled under the unrealities of the 
language in which these facts find expression. 

Let us turn from the formalism of lawyers to the n. Histo 
truthfulness of our constitutional historians. 

Here a student or professor troubled about the 
nature of constitutional law finds himself surrounded anism 



12 INTRODUCTION 



by a crowd of eminent instructors. He may avail 
himself of the impartiality of Hallam : he may dive 
into the exhaustless erudition of the Bishop of Oxford : 
he will discover infinite parliamentary experience in 
the pages of Sir Thomas May, and vigorous common 
sense, combined with polemical research, in Mr. Free- 
man's Growth of the English Constitution. Let us 
take this book as an excellent type of historical con- 
stitutionalism. The Growth of the English Constitu- 
tion is known to every one. Of its recognised merits, 
of its clearness, of its accuracy, of its force, it were 
useless and impertinent to say much to an audience 
who know, or ought to know, every line of the book 
from beginning to end. One point, however, deserves 
especial notice. Mr. Freeman's highest merit is his 
unrivalled faculty for bringing every matter under 
discussion to a clear issue. He challenges his readers 
to assent or deny. If you deny you must show good 
cause for your denial, and hence may learn fully as 
much from rational disagreement with our author as 
from unhesitating assent to his views. Take, then, 
the Growth of the English Constitution as a first-rate 
specimen of the mode in which an historian looks at 
the constitution. What is it that a lawyer, whose 
object is to acquire the knowledge of law, will learn 
from its pages.? A few citations from the ample and 
excellent head notes to the first two chapters of the 
work answer the inquiry. 

They run thus : 

The Landesgemeinden of Uri and Appenzell; 
their bearing on English Constitutional History ; 
political elements common to the whole Teutonic race ; 
monarchic, aristocratic, and democratic elements to 



THE TRUE NATURE OF CONSTITUTIONAL LAW 13 

be found from the beginning ; the three classes of men, 
the noble, the common freeman, and the slave ; uni- 
versal prevalence of slavery ; the Teutonic institutions 
common to the ivhole Aryan family; witness of 
Homer; description of the German Assemblies by 
Tacitus; continuity of English institutions; English 
nationality assumed; Teutonic institutions brought 
into Britain by the English conquerors ; effects of the 
settlement on the conquerors; probable increase of 
slavery; Earls and Churls ; growth of the kingly 
power ; nature of kingship ; special sanctity of the 
King; immemorial distinction betiueen Kings and 
Ealdormen. . . . Gradual growth of the English 
constitution ; new laws seldom called for ; importance 
of precedent ; return to early principles in modern 
legislation; shrinking up of the ancient national 
Assemblies; constitution of the Witenagemot; the 
Witenagemot continued in the House of Lords; 
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 men; Simon 
of Montfort . . . Edward the First ; the constitu- 
tion 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 constitu- 
tion ; but in regard to English law and the law of the 
constitution, the Landesgemeinden of Uri, the witness 
of Homer, the ealdormen, the constitution of the 



I 4 INTRODUCTION 



Witenagem<5t, and a lot more of fascinating matter are 
mere antiquarianism. Let no one suppose that to say 
this is to deny the relation between history and law. 
It were far better, as things now stand, to be charged 
with heresy, or even to be found guilty of petty 
larceny, than to fall under the suspicion of lacking 
historical-mindedness, or of questioning the universal 
validity of the historical method. What one may 
assert without incurring the risk of such crushing 
imputations is, that the kind of constitutional history 
which consists in researches into the antiquities of 
English institutions, has no direct bearing on the rules 
of constitutional law in the sense in which these rules 
can become the subject of legal comment. Let us 
eagerly learn all that is known, and still more eagerly 
all that is not known, about the Witenagem<5t. But let 
us remember that antiquarianism is not law, and that 
the function of a trained lawyer is not to know what 
the law was yesterday, still less what it was centuries 
ago, or what it ought to be to-morrow, but to state 
and explain what are the principles of law actually 
existing in England during the year of grace 1889, 
52 & 53 Victoria. For this purpose it boots nothing 
to know the nature of the Landesgemeinden of Uri, 
or to understand, if it be understandable, the con- 
stitution of the Witenagemdt. All this is for a lawyer's 
purposes simple antiquarianism. It throws as much 
light on the constitution of the United States as 
upon the constitution of England, that is, it throws 
from a legal point of view no light upon either the 
one or the other. 

The name of the United States serves well to 
remind us of the true relation between constitutional 



THE TRUE NATURE OF CONSTITUTIONAL LAW 15 

historians and legal constitutionalists. They are each Contrast 
concerned with the constitution, but from a different legal and 



aspect. An historian is primarily occupied with 
ascertaining the steps by which a constitution has stitution - 
grown to be what it is. He is deeply, sometimes 
excessively, concerned with the question of "origins." 
He is but indirectly concerned in ascertaining what 
are the rules of the constitution in the year 1889. 
To a lawyer, on the other hand, the primary object of 
study is the law as it now stands ; he is only 
secondarily occupied with ascertaining how it came 
into existence. This is absolutely clear if we com- 
pare the position of an American historian with the 
position of an American jurist. The historian of the 
American Union would not commence his researches 
at the year 1789 ; he would have a good deal to say 
about Colonial history and about the institutions of 
England ; he might, for aught I know, find himself 
impelled to go back to the Witenagem<5t ; he would, 
one may suspect, pause in his researches considerably 
short of Uri. A lawyer lecturing on the constitution 
of the United States would, on the other hand, neces- 
sarily start from the constitution itself. But he would 
soon see that the articles of the constitution required 
a knowledge of the Articles of Confederation ; that the 
opinions of Washington, of Hamilton, and generally of 
the " Fathers," as one sometimes hears them called in 
America, threw light on the meaning of various con- 
stitutional articles ; and further, that the meaning of 
the constitution could not be adequately understood 
by any one who did not take into account the situation 
of the colonies before the separation from England and 
the rules of common law, as well as the general con- 



1 6 INTRODUCTION 



ceptions of law and justice inherited by English 
colonists from their English forefathers. As it is with 
the American lawyer compared with the American 
historian, so it is with the English lawyer as compared 
with the English historian. Hence, even where 
lawyers are concerned, as they frequently must be, 
with the development of our institutions, arises a 
further difference between the historical and the legal 
view of the constitution. Historians in their devotion 
to the earliest phases of ascertainable history are 
infected with a love which, in the eyes of a lawyer, 
appears inordinate, for the germs of our institutions, 
and seem to care little about their later developments. 
Mr. Freeman gives but one-third of his book to any- 
thing as modern as the days of the Stuarts. The 
period of nearly two centuries which has elapsed since 
what used to be called the " Glorious Revolution," 
filled as it is with change and with growth, seems 
hardly to attract the attention of a writer whom lack, 
not of knowledge, but of will alone prevents from 
sketching out the annals of our modern constitution. 
A lawyer must look at the matter differently. It is 
from the later annals of England he derives most help 
in the study of existing law. What we might have 
got from Dr. Stubbs,had he not surrendered to the Epis- 
copate gifts which we hoped were dedicated to the Uni- 
versity alone, is now left to conjecture. But things 
being as they are, the historian who most nearly meets 
the wants of lawyers is Mr. Gardiner. The struggles of 
the seventeenth century, the conflict between James and 
Coke, Bacon's theory of the prerogative, Charles's effort 
to substitute the personal will of Charles Stuart for the 
legal will of the King of England, are all matters 



THE TRUE NATURE OF CONSTITUTIONAL LAW 17 

which touch not remotely upon the problems of actual 
law. A knowledge of these things guards us, at any 
rate, from the illusion, for illusion it must be termed, 
that modern constitutional freedom has been estab- 
lished by an astounding method of retrogressive 
progress ; that every step towards civilisation has 
been a step backwards towards the simple wisdom of 
our uncultured ancestors. The assumption which 
underlies this view, namely, that there existed among 
our Saxon forefathers a more or less perfect polity, 
conceals the truth both of law and of history. To ask 
how a mass of legal subtleties "would have looked 
" . . . in the eyes of a man who had borne his part 
" in the elections of Eadward and of Harold, and 
" who had raised his voice and clashed his arms in 
" the great Assembly which restored Godwine to his 
" lands/' 1 is to put an inquiry which involves an unten- 
able assumption ; it is like asking what a Cherokee 
Indian would have thought of the claim of George the 
Third to separate taxation from representation. In each 
case the question implies that the simplicity of a savage 
enables him to solve with fairness a problem of which 
he cannot understand the terms. Civilisation may 
rise above, but barbarism sinks below the level of legal 
fictions, and our respectable Saxon ancestors were, as 
compared, not with ourselves only, but with men so 
like ourselves as Coke and Hale, respectable barbarians. 
The supposition, moreover, that the cunning of lawyers 
has by the invention of legal fictions corrupted the 
fair simplicity of our original constitution, underrates 
the statesmanship of lawyers as much as it overrates 
the merits of early society. The fictions of the Courts 

1 See Freeman, Growth of the English Constitution (1st ed.), p. 125. 

C 



1 8 INTRODUCTION 



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 fic- 
tions or subtleties afford the sole means of establishing 
that rule of equal and settled law which is the true 
basis of English civilisation. Nothing can be more 
pedantic, nothing more artificial, nothing more unhis- 
torical, 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. 1 But no achievement of sound argu- 
ment, or stroke of enlightened statesmanship, ever 
established a rule more essential to the very existence 
of the constitution than the principle enforced by the 
obstinacy and the fallacies of the great Chief Justice. 
Oddly enough the notion of an ideal constitution cor- 
rupted by the technicalities of lawyers is at bottom a 
delusion of legal imagination. The idea of retrogres- 
sive progress is merely one form of the appeal to pre- 
cedent. This appeal has made its appearance at every 
crisis in the history of England, and indeed no one has 
stated so forcibly as my friend Mr. Freeman himself 
the peculiarity of all English efforts to extend the 
liberties of the country, namely, that these attempts 
at innovation have always assumed the form of an 
appeal to pre-existing rights. But the appeal to pre- 
cedent is in the law courts merely a useful fiction by 
which judicial decision conceals its transformation into 
judicial legislation ; and a fiction is none the less a 
fiction because it has emerged from the Courts into the 
field of politics or of history. Here, then, the astute- 

1 See 12 Rep. 64; Hearn, Government of England (2d ed.), chap. iii. 



THE TRUE NATURE OF CONSTITUTIONAL LAW 19 

ness of lawyers has imposed upon the simplicity 
of historians. Formalism and antiquarianism have, 
so to speak, joined hands ; they have united to 
mislead students in search for the law of the 
constitution. 

Let us turn now to the political theorists. 

No better types of such thinkers can be taken in. view 
than Bagehot and Professor Hearn. No author of theorists!* 



modern times (it may be confidently asserted) has 
done so much to elucidate the intricate workings 
of English government as Bagehot. His English ventions of 
Constitution is so full of brightness, originality, and tion. 
wit, that few students notice how full it is also of 
knowledge, of wisdom, and of insight. The slight 
touches, for example, by which Bagehot paints the 
reality of Cabinet government, are so amusing as to 
make a reader forget that Bagehot was the first 
author who explained in accordance with actual fact 
the true nature of the Cabinet and its real relation to 
the Crown and to Parliament. He is, in short, one 
of those rare teachers who have explained intricate 
matters with such complete clearness, as to make the 
public forget that what is now so clear ever needed 
explanation. Professor Hearn may perhaps be counted 
an anticipator of Bagehot. In any case he too has 
approached English institutions from a new point of 
view, and has looked at them in a fresh light ; he 
would be universally recognised among us as one of 
the most distinguished and ingenious exponents of 
the mysteries of the English constitution, had it not 
been for the fact that he made his fame as a professor, 
not in any of the seats of learning in the United 
Kingdom, but in the University of Melbourne. From 



20 INTRODUCTION 



both these writers we expect to learn, and do learn 
much, but as in the case of Mr. Freeman, though we 
learn much from our teacher which is of value, we do 
not learn precisely what as lawyers we are in search 
of. The truth is that both Bagehot and 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 simul- 
taneous creation of a large number of Peers for a 
special purpose is constitutionally justifiable ; what is 
the principle on which a Cabinet may allow of open 
questions ; these and the like are the kind of inquiries 
raised and solved by writers whom, as being occupied 
with the conventional understandings of the consti- 
tution, we may term conventionalists. These in- 
quiries are, many of them, great and weighty ; but 
they are not inquiries which will ever be debated in 
the law courts. If the Premier should advise the 
creation of five hundred Peers, the Chancery Division 
would not, we may be sure, grant an injunction to 
restrain their creation. If he should on a vote of 
censure decline to resign office, the Queen's Bench 
Division would certainly not issue a quo ivarranto 
calling upon him to show cause why he continues to 
be Prime Minister. As a lawyer, I find these matters 
too high for me. Their practical solution must be 
left to the profound wisdom of Members of Parlia- 
ment ; their speculative solution belongs to the pro- 
vince of political theorists. 

One suggestion, a mere legist may be allowed to 



THE TRUE NATURE OF CONSTITUTIONAL LAW 21 

make, namely, that the authors who insist upon and And con- 
explain the conventional character of the understand- vLVdoes 
ings which make up a great part of the constitution, p^'how 
leave unexplained the one matter which needs ex- cp nven - 

tions 

planation. They give no satisfactory answer to the enforced. 
inquiry how it happens that the understandings of 
politics are sometimes at least obeyed as rigorously 
as the commands of law. 1 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 re- 
quires 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 con- 
which must more than once have haunted students i aw really 
of the constitution. Is it possible that so-called all * w 
" constitutional law " is in reality a cross between 
history and custom which does not properly deserve 
the name of law at all, and certainly does not belong 
to the province of a professor called upon to learn 
or to teach nothing but the true indubitable law 
of England 1 Can it be that a dark saying of De 
Tocqueville's, "the English constitution has no real 
existence " (elle riexiste point 2 ), contains the truth of 

1 See further on this point, Part III. post. 
2 De Tocqueville, (Euvres Completes, i. 166, 167. 



22 INTRODUCTION 



the whole matter ? In this case lawyers would gladly 
surrender a domain to which they can establish no 
valid title. The one half of it should, as belonging 
to history, go over to our historical professors ; on 
this transfer of territory being carried out, we might 
perhaps suggest to our friends the professors of history, 
the advisability of conferring together and carefully 
reconsidering the doctrine that the constitution was 
" finally completed" in the reign of Edward the First; 
it is at least worth argument whether, when the 
foundations of a house are just laid, the house can or 
cannot be said to be finally completed. The other 
half should, as belonging to conventions which illus- 
trate the growth of law, be transferred either to my 
friend the Professor of Jurisprudence, because it is his 
vocation to deal with the oddities or the outlying 
portions of legal science, or to my friend the Professor 
of International Law, because he being a teacher of 
law which is not law, and being accustomed to 
expound those rules of public ethics which are 
miscalled international law, will find himself at 
home in expounding political ethics which, on the 
hypothesis under consideration, are miscalled con- 
stitutional law. 

Before, however, admitting the truth of the sup- 
position that "constitutional law" is in no sense law 
at all, it will be well to examine a little further into 
the precise meaning which we attach to the term con- 
stitutional law, and then consider how far it is a fit 
subject for legal exposition.' 

it consists Constitutional law, as the term is used in England, 
appears to include all rules which directly or indirectly 

of 

rules. 



kmds of a g- ect t h e distribution or the exercise of the sovereign 



THE TRUE NATURE OF CONSTITUTIONAL LAW 23 

power in the state. 1 Hence it includes (among other 
things) all rules which define the members of the 
sovereign power, all rules which regulate the relation 
of such members to each other, or which determine 
the mode in which the sovereign power, or the mem- 
bers 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 deal with Ministers, with their 
responsibility, with their spheres of action, define the 
territory over which the sovereignty of the state 
extends and settle who are to be deemed subjects or 
citizens. Observe the use of the word "rules," not 
"laws." This employment of terms is intentional. 
Its object is to call attention to the fact that the 
rules which make up constitutional law, as the term 
is used in England, include two sets of principles or 
maxims of a totally distinct character. 

The one set of rules are in the strictest sense "laws," (i.) 
since they are rules which (whether written or un- true C iaw S e 
written, whether enacted by statute or derived from the thecoi f 
mass of custom, tradition, or judge-made maxims known stltutlon - 
as the Common Law) are enforced by the Courts ; these 
rules constitute " constitutional law " in the proper 
sense of that term, and may for the sake of distinction 
be called collectively, " the law of the constitution." 

1 Compare Holland, Jurisprudence (4th ed.), pp. 122 and 303-307. 
' By the constitution of a country is meant so much of its law as 
' relates to the designation and form of the legislature ; the rights and 
' functions of the several parts of the legislative body ; the construction, 
' office, and jurisdiction of courts of justice. The constitution is one 
' principal division, section, or title of the code of public laws, dis- 
' tinguished from the rest only by the superior importance of the sub- 
' ject of which it treats." Paley, Moral Philosophy, Book vi. chap. vii. 



24 INTRODUCTION 



(ii.) Rules The other set of rules consist of conventions, under- 

which are ... 11- 1-11 11 

not laws standings, habits, or practices which, though they may 
reulate the conduct of the several members of the 



tion tltu 






sovereign power, of the Ministry, or of other officials, 
are not in reality laws at all since they are not enforced 
by the Courts. This portion of constitutional law may, 
for the sake of distinction, be termed the " conven- 
tions of the constitution," or constitutional morality. 

To put the same thing in a somewhat different 
shape, " constitutional law/' as the expression is used 
in England, both by the public and by authoritative 
writers, consists of two elements. The one element, 
here called the "law of the constitution," is a body 
of undoubted law; the other element, here called 
the " conventions of the constitution," consists of 
maxims or practices which, though they regulate 
the ordinary conduct of the Crown and of Ministers 
and of others under the constitution, are not in 
strictness laws at all. The contrast between the law 
of the constitution and the conventions of the constitu- 
tion may be most easily seen from examples. 
Examples To the law of the constitution belong the following; 

of rules be- , 
longing to rules I - 

" 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 
Queen were herself 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 other- 



THE TRUE NATURE OF CONSTITUTIONAL LAW 25 

wise justifiable by law ; this principle in both its 
applications is (be it noted) a law and a law of the 
constitution, but it is not a written law. " There is 
no power in the Crown to dispense with the obligation 
to obey a law ; " this negation or abolition of the dis- 
pensing power now depends upon the Bill of Eights ; 
it is a law of the constitution and a written law. 
" Some person is legally responsible for every act 
done by the Crown." This responsibility of Ministers 
appears in foreign countries as a formal part of the 
constitution ; in England it results from the combined 
action of several legal principles, namely, first, the 
maxim that the King can do no wrong ; secondly, the 
refusal of the Courts to recognise any act as done by 
the Crown, which is not done in a particular form, a 
form in general involving the affixing of a particular 
seal by a Minister, or the counter -signature or 
something equivalent to the counter- signature of a 
Minister; thirdly, the principle that the Minister 
who affixes a particular seal, or countersigns his 
signature, is responsible for the act which he, so to 
speak, endorses ; l this again is part of the constitu- 
tion and a law, but it is not a written law. So again 
the right to personal liberty, the right of public 
meeting, and many other rights, are part of the law 
of the constitution, though most of these rights are 
consequences of the more general law or principle 
that no man can be punished except for direct 
breaches of law (i.e. crimes) proved in the way pro- 
vided by law (i.e. before the Courts of the realm). 

To the conventions of the constitution belong the 
following maxims : 

1 Compare Hearn, Government of England (2d ed.), chap. iv. 



26 INTRODUCTION 



Examples " The King must assent to, or (as it is inaccurately 
which be- expressed) cannot ' veto ' l any bill passed by the two 
Houses of Parliament;" "the House of Lords does 
not originate any money bill ; " " when the House of 
Lords acts as a Court of Appeal, no peer who is not a 
law lord takes part in the decisions of the House ; " 
"Ministers resign office when they have ceased to 
command the confidence of the House of Commons ; " 
" a bill must be read a certain number of times 
before passing through the House of Commons." 
These maxims are distinguished from each other by 
many differences ; 2 under a new or written constitu- 

1 As to the meaning of " veto," see Hearn, Government of England 
(2d ed.), pp. 51, 60, 61, 63, 548, and the article on the word Veto 
in the last edition of the Encyclopaedia Britannica, by Professor Orelli. 

2 Some of these maxims are never violated, and are universally 
admitted to be inviolable. Others, on the other hand, have nothing 
but a slight amount of custom in their favour, and are of disputable 
validity. The main distinction between different classes of conven- 
tional rules may, it is conceived, be thus stated : Some of these rules 
could not be violated without bringing to a stop the course of orderly 
and pacific government ; others might be violated without any other 
consequence than that of exposing the Minister or other person by 
whom they were broken to blame or unpopularity. 

This difference will at bottom be found to depend upon the degree 
of directness with which the violation of a given constitutional maxim 
brings the wrongdoer into conflict with the law of the land. Thus a 
Ministry under whose advice Parliament were not summoned to meet 
for more than a year would, owing to the lapse of the Mutiny Act, 
etc., become through their agents engaged in a conflict with the Courts. 
The violation of a convention of the constitution would in this case 
lead to revolutionary or reactionary violence. The rule, on the other 
hand, that a bill must be read a given number of times before it is 
passed is, though a well-established constitutional principle, a con- 
vention which might be disregarded without bringing the Government 
into conflict with the ordinary law. A Ministry who induced the 
House of Commons to pass an Act, e.g. suspending the Habeas Corpus 
Act, after one reading, or who induced the House to alter their rules 
as to the number of times a Bill should be read, would in no way be 
exposed to a contest with the ordinary tribunals. Ministers who, after 
Supplies were voted and the Mutiny Act passed, should prorogue the 
House and keep office for months after the Government had ceased to 



THE TRUE NATURE OF CONSTITUTIONAL LAW 27 

tion some of them probably would and some of them 
would not take the form of actual laws. Under the 
English constitution they have one point in common : 
they are none of them " laws " in the true sense of 
that word, for if any or all of them were broken, no 
court would take notice of their violation. 

It is to be regretted that these maxims must be 
called " conventional," for the word suggests a notion 
of insignificance or unreality. This, however, is the 
last idea which any teacher would wish to convey to 
his hearers. Of constitutional conventions or prac- 
tices some are as important as any laws, though 
some may be trivial, as may also be the case with 
a genuine law. My object, however, is to contrast, 
not shams with realities, but the legal element with 
the conventional element of so-called " constitutional 
law." 

This distinction differs essentially, it should be Distinction 
noted, from the distinction between "written law"i a wsand 
(or statute law) and " unwritten law " (or common 
law). There are laws of the constitution, as the Bill JJ 
of Rights, the Act of Settlement, the Habeas Corpus Between 

/ written 

Acts, which are " written law," found in the statute- and un- 
hook in other words, statutory enactments. There law. 
are other most important laws of the constitution 
(several of which have already been mentioned) 
which are "unwritten" laws, that is, not statutory 
enactments. Some further of the Jaws of the con- 
stitution, such, for example, as the law regulating 
the descent of the Crown, which were at one time 

retain the confidence of the Commons, might or might not incur grave 
unpopularity, but would not necessarily commit a breach of law. See 
further Part III. post. 



28 INTRODUCTION 



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 statute- 
book, though they may be formally reduced to 
writing. Thus the whole of our parliamentary pro- 
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 un- 
written law does not in any sense square with the 
distinction between the law of the constitution (con- 
stitutional law properly so called) and the conven- 
tions of the constitution. This latter is the distinction 
on which we should fix our whole attention, for it is 
of vital importance, and elucidates the whole subject 
of constitutional law. It is further a difference which 
may exist in countries which have a written or stat- 
utory constitution. 1 In the United States the legal 
powers of the President, the Senate, the mode of 
electing the President, and the like, are, as far as the 
law is concerned, regulated wholly by the law of the 
constitution. But side by side with the law have 
grown up certain stringent conventional rules, which, 
though they would not be noticed by any Court, 
have in practice nearly the force of law. No Presi- 
dent has ever been re-elected more than once : the 
popular approval of this conventional limit (of which 

1 The conventional element in the constitution of the United 
States is far larger than most Englishmen suppose. See on this 
subject Wilson, Congressional Government, and Bryce, American Common- 
wealth, chaps, xxxiv. and xxxv. It may be asserted without much 
exaggeration that the conventional element in the Constitution of 
the United States is now as large as in the English constitution. 
Under the American system, however, the line between " conven- 
tional rules " and " laws " is drawn with a precision hardly possible in 
England. 



THE TRUE NATURE OF CONSTITUTIONAL LAW 29 

the constitution knows nothing) on a President's re- 
eligibility proved a fatal bar to General Grant's third 
candidature. Constitutional understandings have 
entirely changed the position of the Presidential 
electors. They were by the founders of the constitu- 
tion intended to be what their name denotes, the 
persons who chose or selected the President ; the 
chief officer, in short, of the Republic was, according 
to the law, to be appointed under a system of double 
election. This intention has failed ; the " electors " 
have become a mere means of voting for a particular 
candidate ; they are no more than so many ballots 
cast for the Republican or the Democratic nominee. 
The understanding that an elector is not really to 
elect, has now become so firmly established, that for 
him to exercise his legal power of choice is considered 
a breach of political honour too gross to be committed 
by the most unscrupulous of politicians. Public 
difficulties, not to say dangers, might have been 
averted if, in the contest between Mr. Hayes and Mr. 
Tilden, a few Republican electors had felt themselves 
at liberty to vote for the Democratic candidate. Not 
a single man among them changed his side. The 
power of an elector to elect is as completely abolished 
by constitutional understandings in America as is the 
royal right of dissent from bills passed by both Houses 
by the same force in England. Under a written, 
therefore, as under an unwritten constitution, we find 
in full existence the distinction between the law and 
the conventions of the constitution. 

Upon this difference I have insisted at possibly 
needless length, because it lies at the very root of the 
matter under discussion. Once grasp the ambiguity 



30 INTRODUCTION 



constitu- latent in the expression "constitutional law," and 

tional law . . i i i / 

as subject everything connected with the subject tails so com- 



pletely into its right place that a lawyer, called upon 
law * * ea ch or to study constitutional law as a branch of 
stitution ^ e ^ aw ^ England, can hardly fail to see clearly the 
character and scope of his subject. 

With conventions or understandings he has no 
direct concern. They vary from generation to gen- 
eration, almost from year to year. Whether a Min- 
istry defeated at the polling booths ought to retire on 
the day when the result of the election is known, or 
may more properly retain office until after a defeat in 
Parliament, is or may be a question of practical im- 
portance. The opinions on this point which prevail 
to-day differ (it is said) from the opinions or under- 
standings which prevailed thirty years back, and are 
possibly different from the opinions or understandings 
which may prevail ten years hence. Weighty prece- 
dents and high authority are cited on either side of 
this 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 one not 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 may be called upon to show what is the connec- 
tion (if any there be) between the conventions of the 
constitution and the law of the constitution. 

This the true constitutional law is his only real 
concern. His proper function is to show what are the 
legal rules (i.e. rules recognised by the Courts) which 
are to be found in the several parts of the constitution. 
Of such rules or laws he will easily discover more than 



THE TRUE NATURE OF CONSTITUTIONAL LAW 31 

enough. The rules determining the legal position of 
the Crown, the legal rights of the Crown's ministers, 
the constitution of the House of Lords, the constitu- 
tion of the House of Commons, the laws which govern 
the established Church, the laws which determine the 
position of the non- established Churches, the laws 
which regulate the army, these and a hundred other 
laws form part of the law of the constitution, and are 
as truly part of the law of the land as the articles of 
the Constitution of the United States form part of the 
law of the Union. 

The duty, in short, of an English Professor of law Law of 
is to state what are the laws which form part of the tioncan"b 



constitution, to arrange them in their order, to explain 
their meaning, and to exhibit where possible their ^ncb of 
logical connection. He ought to expound the un- En s lish 
written or partly unwritten constitution of England, 
in the same manner in which Story and Kent have 
expounded the written law of the American constitu- 
tion. 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 have to deal partly with statute law, partly with 
judge-made law ; you have to rely on Parliamentary 
enactments and also on judicial decisions, on authori- 
tative dicta, and in many cases on mere inferences 
drawn from judicial doctrines ; it is difficult to dis- 
criminate between prevalent custom and acknowledged 
law. This is true of the endeavour to expound the 
law of the constitution ; all this is true also in a 
measure of any attempt to explain our law of contract, 
our law of torts, or our law of real property. 



32 INTRODUCTION 



Moreover, teachers of constitutional law enjoy at 
this moment one invaluable advantage. Their topic 
has from the circumstances of the' time become of 
immediate interest and of pressing importance. Each 
year that passes brings into the foreground new con- 
stitutional questions, and affords in many instances 
the answers thereto. The series of actions connected 
with the name of Mr. Bradlaugh has done as much to 
clear away the obscurity which envelops many parts 
of our public law as was done in the last century by 
the series of actions connected with the name of John 
Wilkes. The law of maintenance has been redis- 
covered ; the law of blasphemy has received new 
elucidation. All the world now know the character 
of a penal action. It is now possible to define with 
precision the relation between the House of Commons 
and the Courts of the land ; the legal character and 
solemnity of an oath has been made patent to all the 
world, or at any rate to all that portion of it who 
choose to read the Law Reports. Meanwhile circum- 
stances with which Mr. Bradlaugh has no connection 
have forced upon public attention all the various 
problems connected with the right of public meeting. 
Is such a right known to the law? What are the 
limits within which it may be exercised ? What is 
the true definition of an " unlawful assembly " ? How 
far may citizens lawfully assembled assert their right 
of meeting by the use of force ? What are the limits 
within which the English Constitution recognises the 
right of self-defence ? These are questions some of 
which have been raised and all of which may any day 
be raised before the Courts. They are inquiries which 
touch the very root of our public law. To find the 






THE TRUE NATURE OF CONSTITUTIONAL LAW 33 

true reply to them is a matter of importance to every citi- 
zen. 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 of notoriety and 
which excite keen feelings of political partisanship may 
foster a serious misconception. Unintelligent students 
may infer that the law of the constitution is to be 
gathered only from notorious judgments which embalm 
the results of grand constitutional or political conflicts. 
This is not so. Scores of unnoticed cases, such as the 
Parlement Beige, 1 or Thomas v. The Queen, 2 touch 
upon or decide principles of constitutional law. In- 
deed every action against a constable or collector of 
revenue enforces the greatest of all such principle's, 
namely, that obedience to administrative orders is no 
defence to an action or prosecution for acts done in 
excess of legal authority. The true law of the consti- 
tution is in short to be gathered from the same sources 
whence we collect the law of England in respect to 
any other topic, and forms as interesting and as dis- 
tinct, though not as well explored, a field for legal 
study or legal exposition as any which can be found. 
The subject is one which has not yet been fully mapped 
out. Teachers and pupils alike therefore suffer from 
the inconvenience as they enjoy the interest of ex- 
ploring a province of law which has not yet been 
reduced to order. 

This inconvenience 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 prin- 

1 4 P. D. 129 ; 5 P. D. 197. 2 L. R, 10 Q. B. 31. 

D 



34 INTRODUCTION 



ciples gradually become apparent. They are, first, 
the legislative sovereignty of Parliament ; l secondly, 
the universal rule or supremacy throughout the con- 
stitution of ordinary law ; 2 and thirdly (though 
here we tread on more doubtful and speculative 
ground), the dependence in the last resort of the con- 
ventions upon the law of the constitution. 3 To 
examine, to elucidate, to test these three principles 
forms, at any rate (whatever be the result of the 
investigation), a suitable introduction to the study of 
the law of the constitution. 

1 See Part L 2 See Part II. 3 See Part III. 



PAKT I 
THE SOVEREIGNTY OF PARLIAMENT 



CHAPTER I 

THE NATURE OF PARLIAMENTARY SOVEREIGNTY 

THE sovereignty of Parliament is (from a legal point Chapter 

of view) the dominant characteristic of our political L_ 

institutions. 

My aim in this chapter is, in the first place, to Aim of 
explain the nature of Parliamentary sovereignty and c 
to show that its existence is a legal fact, fully recog- 
nised by the law of England ; in the next place, to 
prove that none of the alleged legal limitations on the 
sovereignty of Parliament have any existence ; and, 
lastly, to state and meet certain speculative difficulties 
which hinder the ready admission of the doctrine that 
Parliament is, under the British constitution, an absol- 
utely sovereign legislature. 

A. Nature of Parliamentary Sovereignty. Par- Nature of 
liament means, in the mouth of a lawyer (though the mentary 
word has often a different sense in ordinary conversa- 
tion), the King, the House of Lords, and the House of 
Commons ; these three bodies acting together may be 
aptly described as the " King in Parliament/' and 
constitute Parliament. 1 

1 Conf. Blackstone, Commentaries, i. p. 153. 



38 THE SOVEREIGNTY OF PARLIAMENT 

Part I. The principle of Parliamentary sovereignty means 
neither more nor less than this, namely, that Parlia- 
ment 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 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 con- 
travention 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 re- 
solvable into cases in which Parliament either directly 
or indirectly sanctions subordinate legislation. This 
is not the place for entering into any details as to the 
nature of judicial legislation ; l the matter is men- 
tioned here only in order to remove an obvious 

1 The reader who wishes for fuller information on the nature of 
judge-made law will find what he wants in Professor Pollock's Essays 
in Jurisprudence and Ethics, p. 237. 



NATURE OF PARLIAMENTARY SOVEREIGNTY 39 

difficulty which might present itself to some students. Chapter 

It will be necessary in the course of these lectures to '_ 

say a good deal more about Parliamentary sovereignty, 
but for the present the above rough description of its 
nature may suffice. The important thing is to make 
clear that the doctrine of Parliamentary sovereignty is, 
both on its positive and on its negative side, fully 
recognised by the law of England. 

I. Unlimited legislative authority of Parliament, unlimited 
The classical passage on this subject is the following a^hority 6 
extract from Blackstone's Commentaries : 

"The power and jurisdiction of Parliament, says 
" Sir Edward Coke, 1 is so transcendent and absolute, 
" that it cannot be confined, either for causes or per- 
" sons, within any bounds. And of this high court, he 
" adds, it may be truly said, ' Si antiguitatem species, 
" est vetustissima; si dignitatem, est honoratissima ; si 
11 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, are 
" within the reach of this extraordinary tribunal. It 
" can regulate or new -model the succession to the 

o 

" crown ; as was done in the reign of Henry VIII. and 

1 Fourth Institute, p. 36. 



40 THE SOVEREIGNTY OF PARLIAMENT 

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

De Lolme has summed up the matter in a gro- 
tesque expression which has become almost proverbial. 

1 Blackstone, Commentaries, i. pp. 160, 161. 



NATURE OF PARLIAMENTARY SOVEREIGNTY 41 

" It is a fundamental principle with English lawyers, Chapter 
" that Parliament can do everything but make a ' 
" woman a man, and a man a woman." 

This supreme legislative authority of Parliament Historical 
is shown historically in a large number of instances, 

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



42 THE SOVEREIGNTY OF PARLIAMENT 

Part i. "of his said late Majesty King William the Third, 
" intituled, An Act for the further limitation of the 
" Crown, and better securing the rights and liberties of 
" the subject ; and the Acts lately made in England 
" and Scotland mutually for the union of the two 
" kingdoms ; or that the Kings or Queens of this realm, 
" with and by the authority of Parliament, are not able 
" to make laws and statutes of sufficient force and 
" validity to limit and bind the Crown, and the descent, 
" limitation, inheritance, and government thereof; 
" every such person or persons shall be guilty of high 
" treason, and being thereof lawfully convicted, shall be 
" adjudged traitors, and shall suffer pains of death, and 
" all losses and forfeitures as in cases of high treason." 3 

Acts of The Acts of Union (to one of which Blackstone 

calls attention) afford a remarkable example of the 
exertion of Parliamentary authority. But there is no 
single statute which is more significant either as to 
the theory or as to the practical working of the 
constitution than the Septennial Act. 2 The circum- 
stances of its enactment and the nature of the Act 
itself merit therefore special attention. 

Septennial In 1716 the duration of Parliament was under an 

Act. 

Act of 1694 limited to three years, and a general 
election could not be deferred beyond 171 7. The 
King and the Ministry were convinced (and with 
reason) that an appeal to the electors, many of whom 
were Jacobites, might be perilous not only to the 
Ministry but to the tranquillity of the state. The 
Parliament then sitting, therefore, was induced by the 
Ministry to pass the Septennial Act by which the 
legal duration of Parliament was extended from three 

1 6 Anne, c. 7, sec. 1. 2 1 George I. st. 2, c. 38. 



NATURE OF PARLIAMENTARY SOVEREIGNTY 43 

to seven years, and the powers of the then existing chapter 
House of Commons were in effect prolonged for four ' 
years beyond the time for which the House was 
elected. This was a much stronger proceeding than 
passing say an Act which enabled future Parliaments 
to continue in existence without the necessity for a 
general election during seven instead of during three 
years. The statute was justified by considerations 
of statesmanship and expediency. This justification 
of the Septennial Act must seem to every sensible 
man so ample that it is with some surprise that one 
reads in writers so fair and judicious as Hallam or 
Lord Stanhope attempts to minimise the importance 
, of this supreme display of legislative authority. 
" Nothing," writes Hallam, " can be more extravagant 
" than what is sometimes confidently pretended by the 
" ignorant, that the legislature exceeded its rights by 
" this enactment ; or, if that cannot legally be ad- 
" vanced, 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." 1 

" We may," says Lord Stanhope, "... cast aside 
" the foolish idea that the Parliament overstepped its 
" legitimate authority in prolonging its existence ; an 
" idea which was indeed urged by party-spirit at the 
" time, and which may still sometimes pass current in 
" harangues to heated multitudes, but which has been 

1 Hallam, Constitutional History of England, iii. (1872 ed.), p. 236. 



44 THE SOVEREIGNTY OF PARLIAMENT 

Part I. " treated with utter contempt by the best constitu- 
" tional writers." 1 

These remarks miss the real point of the attack on 



portanceof the Septennial Act and also conceal the constitutional 
importance of the statute. The thirty-one Peers who 
protested against the Bill because (among other 
grounds) "it is agreed, that the House of Commons 
" must be chosen by the people, and when so chosen, 
" they are truly the representatives of the people, 
" which they cannot be so properly said to be, when 
" continued for a longer time than that for which they 
" were chosen ; for after that time they are chosen by 
" the Parliament, and not the people, who are thereby 
" deprived of the only remedy which they have against 
" those, who either do not understand, or through cor- 
" ruption, do wilfully betray the trust reposed in them ; 
" which remedy is, to choose better men in their 
" places," 2 hit exactly the theoretical objection to it. 
The peculiarity of the Act was not that it changed 
the legal duration of Parliament or repealed the 
Triennial Act ; 3 the mere passing of a Septennial Act 
in 1716 was not and would never have been thought 
to be anything more startling or open to graver cen- 
sure than the passing of a Triennial Act in 1694. 
What was startling was that an existing Parliament 
of its own authority prolonged its own legal existence. 
Nor can the argument used by Priestley, 4 and in effect 
by the protesting Peers, " that Septennial Parliaments 
" were at first a direct usurpation of the rights of the 
" people ; for by the same authority that one Parlia- 

1 Lord Mahon, History of England, i. p. 302. 

2 Thorold Rogers, Protests of the Lords, i. p. 228. 

3 6 Win. and M. c. 2. 

4 See Priestley on Government (1771), p. 20. 



NATURE OF PARLIAMENTARY SOVEREIGNTY 45 

" ment prolonged their own power to seven years, they chapter 

" might have continued it to twice seven, or like the ! 

" Parliament of 1641 have made it perpetual/' be 
treated as a blunder grounded simply on the " ignor- 
ant assumption" that the Septennial Act prolonged 
the original duration of Parliament. 1 The contention 
of Priestley and others was in 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 own authority beyond 
the period for which it was conferred upon them by 
their principals, i.e. the electors. There are countries, 
and notably the United States, where an Act like the 
Septennial Act would be held legally invalid ; no 
modern English Parliament would for the sake of 
keeping a government or party in office venture to 
pass say a Decennial Act and thus prolong its own 
duration ; the contention therefore that Walpole and 
his followers in passing the Septennial Act violated 
the understandings of the constitution has on the face 
of it nothing absurd. Parliament made a legal 
though unprecedented use of its powers. To under- 
rate this exertion of authority is to deprive the 
Septennial Act of its true constitutional importance. 
That Act proves to demonstration that in a legal point 
of view Parliament is neither the agent of the electors 
nor in any sense a trustee for its constituents. It is 
legally the sovereign legislative power in the state, 
and the Septennial Act is at once the result and the 
standing proof of such Parliamentary sovereignty. 
Hitherto we have looked at Parliament as legally 

1 Hallam, Constitutional History, iii. p. 236 (n.) 



46 THE SOVEREIGNTY OF PARLIAMENT 

Part I. omnipotent in regard to public rights. Let us now 
interfer- consider the position of Parliament in regard to those 
Parliament private rights which are in civilised states justly held 
private specially secure or sacred. Coke (it should be noted) 
rights. particularly chooses interference with private rights 
as specimens of Parliamentary authority. 

" Yet some examples are desired. Daughters and 
" heirs apparent of a man or woman, may by Act of 
" Parliament inherit during the life of the ancestor. 
" It may adjudge an infant, or minor of full age. 
" To attaint a man of treason after his death. 
" To naturalise a mere alien, and make him a sub- 
" ject born. It may bastard a child that by law is 
" legitimate, viz. begotten by an adulterer, the hus- 
" band being within the four seas. 

" To legitimate one that is illegitimate, and born 
" before marriage absolutely. And to legitimate 
" secundum quid, but not simpliciter." J 

Coke is judicious in his choice of instances. 
Interference with public rights is at 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 
overthrowing the constitution of his country, would 
in all probability hesitate a long time before he 
touched the property or interfered with the contracts 
of private persons. Parliament however habitually 
interferes, for the public advantage, with private 
rights. Indeed such interference has now (greatly to 
the benefit of the community) become so much a 
matter of course as hardly to excite remark, and few 
persons reflect what a sign this interference is of the 

1 Coke, Fourth Institute, p. 36. 



NATURE OF PARLIAMENTARY SOVEREIGNTY 47 

supremacy of Parliament. The statute-book teems Chapter 

with Acts under which Parliament gives privileges or __! 

rights to particular persons or imposes particular 
duties or liabilities upon other persons. This is of 
course the case with every railway Act, but no one 
will realise the full action, generally the very bene- 
ficial 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 like. To these you should add Acts such as those 
which declare valid marriages which, owing to some 
mistake of form or otherwise, have not been properly 
celebrated, and Acts, common enough at one time but 
now rarely passed, for the divorce of married persons. 

One further class of statutes deserve in this con- 
nection more notice than they have received these 
are Acts of Indemnity. 

An Act of Indemnity is a statute, the object of Acts of in- 
which is to make legal transactions which when they 
took place were illegal, or to free individuals to whom 
the statute applies from liability for having broken 
the law; enactments of this kind were annually 
passed with almost unbroken regularity for more than 
a century (1727-1828) to free Dissenters from pen- 
alties, for having accepted municipal offices without 
duly qualifying themselves by taking the sacrament 
according to the rites of the Church of England. To 
the subject of Acts of Indemnity however we shall 
return in a later chapter. 1 The point to be now 
1 See chap. v. post. 



48 THE SOVEREIGNTY OF PARLIAMENT 

Parti, noted is that such enactments being as it were the 
legislation of illegality are the highest exertion and 
crowning proof of sovereign power. 

So far of the sovereignty of Parliament from its 
positive side : let us now look at the same doctrine 
from its negative aspect. 

NO other II. The absence of any competing legislative 

legislative power. The King, each House of Parliament, the 
inty ' Constituencies, and the Law Courts, either have at 
one time claimed, or might appear to claim, inde- 
pendent legislative power. It will be found however 
on examination that the claim can in none of these 
cases be made good. 

The King. (i.) The King. Legislative authority originally 
resided in the King in Council, 1 and even after the 
commencement of Parliamentary legislation there 
existed side by side with it a system of royal legis- 
lation under the form of Ordinances, 2 and (at a later 
period) of Proclamations. 

statute of These had much the force of law, and in the year 
tions! an 1539 the Act 31 Henry VIII. , c. 8, formally empowered 
the Crown to legislate by means of proclamations. 
This statute is so short and so noteworthy that it may 
well be quoted in extenso. " The King," it runs, " for 
" the time being, with the advice of his Council, or the 
" more part of them, may set forth proclamations under 
" such penalties and pains as to him and them shall 
" seem necessary, which shall be observed as though 

1 See Stubbs, Constitutional History, i. pp. 126-128, and ii. pp. 
245-247. 

2 Stubbs, ibid. ii. chap. xv. 



NA TURE OF PARLIAMENTAR Y SO VEREIGNTY 49 

" they were made by Act of Parliament ; but this shall chapter 

" not be prejudicial to any person's inheritance, offices, !_ 

" liberties, goods, chattels or life ; and whosoever shall 
" willingly offend any article contained in the said pro- 
" clamations, shall pay such forfeitures, or be so long 
" 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." l 

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 
two consequences. An English king would have 
become nearly as despotic as a French monarch. The 
statute would further have established a distinction 
between "laws" properly so-called as being made by 
the legislature and " ordinances " having the force of 
law, though not in strictness laws as being rather 
decrees of the executive power than Acts of the legis- 
lature. This distinction exists in one form or another 
in most continental states, and is not without great 
practical utility. In foreign countries the legislature 
generally confines itself to laying down general 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. 
The cumbersomeness and prolixity of English statute 
law is due in no small measure to futile endeavours of 

1 31 Henry VIII., cap. 8. 
E 



50 THE SOVEREIGNTY OF PARLIAMENT 

Part I. Parliament to work out the details of large legislative 
changes. This evil has become so apparent that in 
modern times Acts of Parliament constantly contain 
provisions empowering the Privy Council, the judges, 
or some other body to make rules under the Act for 
the determination of details which cannot be settled 
by Parliament. But this is only an awkward miti- 
gation l of an acknowledged evil, and the substance no 
less than the form of the law would, it is probable, be 
a good deal improved if the executive government of 
England could like that of France, by means of decrees, 
ordinances, or proclamations having the force of law, 
work out the detailed application of the general 
principles embodied in the Acts of the legislature. 2 
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 
restraints on the action of the executive government. 
For the repeal of 31 Henry VIII., c. 8, rendered 

1 A critic lias objected to the words " awkward mitigation of an 
acknowledged evil " on the ground that they condemn in England a 
system which as it exists abroad is referred to as being not without 
great practical utility. The expression objected to is, however, 
justifiable. Under the English system elaborate and detailed statutes 
are passed, and the power to make rules under the statute, e.g. by 
order in council or otherwise, is introduced only in cases where it 
is obvious that to embody the rules in the statute is either highly in- 
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 by decrees. English statutes attempt, 
and with very little success, to provide for the detailed execution of 
the laws enacted therein. Foreign laws are, what every law ought to 
be, statements of general principles. 

2 Recent events, as for example the issue by the French Govern- 
ment of the decree secularising the Pantheon, have called attention to 
the considerable though subordinate legislative authority possessed by 
the President of the French Republic. See on the subject of these 
legislative powers, M. F. Bosuf, Droit Administratif (4 me ed.), p. 11. 



NA TURE OF PARLIAMENTAR Y SO VEREIGNTY 5 1 

governmental legislation, 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 some 
time doubtful. In 1610, however, a solemn opinion 
or protest of the judges 1 established the modern 
doctrine that royal proclamations have in no sense the 
force of law ; they serve to call the attention of the 
public to the law, but they cannot of themselves 
impose upon any man any legal obligation or duty not 
imposed by common law or by Act of Parliament. In 
1766 Lord Chatham attempted to prohibit by force of 
proclamation the exportation of wheat, and the Act of 
Indemnity (7 George III., c. 7), passed in consequence 
of this attempt, may be considered the final legislative 
disposal of any claim on the part of the Crown to 
make law by force of proclamation. 

The main instances 2 where, in modern times, pro- 
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 

1 See Coke, Rep. xii. 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 Crown exercises legislative functions in virtue of the 
prerogative. Thus the Crown can legislate, by proclamations or orders 
in council, for a newly conquered country (Campbell v. Hall, Cowp. 
204), and has claimed the right, though the validity thereof is doubt- 
ful, to legislate for the Channel Islands by orders in council. In the 
Matter of the States of Jersey, 9 Moore P. C., n. s. 184, 262. See Stephen, 
Commentaries (8th ed.), i. pp. 100-102. Acts of Parliament further 
applying to the Channel Islands are, I am told, as a matter of custom 
extended to the Islands by order in council. There is, however, of 
course no doubt that an Act of Parliament can in any case override 
the effect of an order in council, and that such an Act is proprio vigore 
of effect in any part of the British dominions to which it extends. 



52 THE SOVEREIGNTY OF PARLIAMENT 

Part I. the executive will of the King, as when parliament is 
summoned by proclamation, or else where orders in 
council have authority given to them by Act of 
Parliament. 

Houses of (ii.) Resolutions of either House of Parliament. 

5nt ' The House of Commons at any rate, has from time to 

time appeared to claim for resolutions of the House, 

something like legal authority. That this pretension 

cannot be supported is certain, but there exists some 

difficulty in defining with precision the exact effect 

which the Courts concede to a resolution of either House. 

Two points are, however, well established. 

Resolutions First. The resolution of neither House is a law. 

House. This is the substantial result of the case of Stock- 

dale v. Hansard. 1 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 constitu- 
tional functions of Parliament. 

Secondly. Each House of Parliament has complete 
control over its own proceedings, and also has the 
right to protect itself by committing for contempt any 
person who commits any injury against, or offers any 
affront to the House, and no Court of law will inquire 
into the mode in which either House exercises the 
powers which it by law possesses. 2 

The practical difficulty lies in the reconciliation of 

1 9 A. & E. i. 

2 See Stockdale v. Hansard, 9 A. & E. 1 ; Case of Sheriff of Middlesex, 
11 A. & E. 273 ; Burdett v. Abbot, 14 East, 1, 111, 131 ; Bradlaitgh 
v. Gossett, 12 Q. B. D. 272. 



NATURE OF PARLIAMENTARY SOVEREIGNTY 53 

the first with the second proposition, and is best met Chapter 

by following out the analogy suggested by Mr. Justice 

Stephen, between a resolution of the House of Com- 
mons, and the decision of a Court from which there is 
no appeal 

"I do not say," runs his judgment, "that the re- 
" solution of the House is the judgment of a Court not 
" subject to our revision ; but it has much in common 
" with such a judgment. The House of Commons is not 
" a Court of Justice ; but the effect of its privilege to 
" regulate its own internal concerns, practically invests 
" it with a judicial character when it has to apply to 
" particular cases the provisions of Acts of Parliament. 
" We must presume that it discharges this function 
" properly, and with due regard to the laws, in the 
" making of which it has so great a share. If its 
" determination is not in accordance with law, this 
" resembles the case of an error by a judge whose 
" decision is not subject to appeal. There is nothing 
" startling in the recognition of the fact that such an 
" error is possible. If, for instance, a jury in a criminal 
" case give a perverse verdict, the law has provided no 
" remedy. The maxim that there is no wrong without 
" a remedy, does not mean, as it is sometimes supposed, 
" that there is a legal remedy for every moral or polit- 
" ical wrong. If this were its meaning, it would be 
" manifestly untrue. There is no legal remedy for the 
" breach of a solemn promise not under seal, and made 
" without consideration ; nor for many kinds of verbal 
" slander, though each may involve utter ruin; nor for 
" oppressive legislation, though it may reduce men 
" practically to slavery ; nor for the worst damage to 
" person and property inflicted by the most unjust and 



54 THE SOVEREIGNTY OF PARLIAMENT 

Part I. " cruel war. The maxim means only that legal wrong 
" and legal remedy are correlative terms ; and it would 
" be more intelligibly and correctly stated, if it were 
" reversed, so as to stand, ' Where there is no legal 
" remedy, there is no legal wrong.' "* 

Law as to The law therefore stands thus. Either House of 
resolutions Parliament has the fullest power over its own pro- 
House. er ceedings, and can, like a Court, commit for contempt 
any person who, in the judgment of the House, is 
guilty of insult or affront to the House. The Case of 
the Sheriff of Middlesex 2 carries this right to the very 
farthest point. The Sheriff was imprisoned for con- 
tempt 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 Stockdalev. 
Hansard, and that the Sheriff was imprisoned by the 
House because under such judgment he took the 
goods of the defendant Hansard in execution. Yet 
when the Sheriff was brought by Habeas Corpus before 
the Queen's Bench the Judges held that they could 
not inquire what were the contempts for which the 
Sheriff was committed by the House. The Courts, in 
other words, do not claim any right to protect their 
own officials from being imprisoned by the House of 
Commons for alleged contempt of the House, even 
though the so-called contempt is nothing else than an 
act of obedience to the Courts. A declaration or 
resolution of either House, on the other hand, is not in 
any sense a law. Suppose that X were by order of 
the House of Commons to assault A out of the House, 
irrespective of any act done in the House, and not 

1 Bradlaugh v. Gossett, 12 Q. B. D. 271, 285. 2 11 A. & E. 273. 



NA TURE OF PARLIAMENTAR Y SO VEREIGNTY 5 5 

under a warrant committing A for contempt ; or chapter 

suppose that X were to commit some offence by 

which he incurred a fine under some Act of Parlia- 
ment, and that such fine were recoverable by A as a 
common informer. No resolution of the House of 
Commons ordering or approving of X's act could be 
pleaded by X as a legal defence to proceedings, either 
civil or criminal, against him. 1 If proof of this were 
wanted it would be afforded by the Act 3 & 4 Viet. c. 
9. The object of this Act, passed in consequence of 
the controversy connected with the case of Stockdale 
v. Hansard, is to give summary protection to persons 
employed in the publication of Parliamentary papers, 
which are, it should be noted, papers published by the 
order of one or other of the Houses of Parliament. 
The necessity for such an Act is the clearest proof 
that an order of the House is not of itself a legal 
defence for the publication of matters which would 
otherwise be libellous. The House of Commons " by 
" invoking the authority of the whole Legislature to 
" give validity to the plea they had vainly set up in the 
" action [of Stockdale v. Hansard] and by not appeal- 
" ing against the judgment of the Court of Queen's 
" Bench, had, in effect, admitted the correctness of that 
" judgment and affirmed the great principle on which 
" it was founded, viz. that no single branch of the 
" Legislature can, by 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 Conf. Attorney-General v. Bradlaugh, 14 Q. B. D. (C. A.), 667. 

2 Arnould, Memoir of Lord Denman, ii. p. 70. Nothing is harder 



56 THE SO VEREIGNTY OF PARLIAMENT 

Parti. (iii.) The Vote of the Parliamentary Electors. 
The Con . Expressions are constantly used in the course of 
stituencies. political discussions which imply that the body of 
persons entitled to choose members of Parliament 
possess under the English constitution some kind of 
legislative authority. Such language is, as we shall 
see, not without a real meaning ; l it points to the 
important consideration that the wishes of the con- 
stituencies influence the action of Parliament. But 

to define than the extent of the indefinite powers or rights possessed 
by either House of Parliament under the head of privilege or law and 
custom of Parliament. The powers exercised by the Houses, and 
especially in practice by the House of Commons, make a near approach 
to an authority above that of the ordinary law of the land. Parlia- 
mentary privilege has from the nature of things never been the subject of 
precise legal definition. One or two points are worth notice as 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 
for a specified term, even beyond the duration of the session (May, 
Parliamentary Practice (9th ed.), p. 111). 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 dis- 
charged 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 con- 
tempt. (Ibid.) 

4. The Houses and all the members thereof have all the privileges 
as to freedom of speech, etc., necessary for the performance of their 
duties. (See generally May's Parliamentary Practice (9th ed.), chap, iii.) 
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. (7th 
ed.), 251 ; Wilkests Case, 19 St Tr. 1153; Burdett v Colman, 14 East, 
163 ; Bex v. Creevy, 1 M. & S. 273 ; Clarice v. Bradlaitgh, 7 Q. B. D. 
38, 8 App. Cas. 354 ; The Attorney -General v. Bradlaugh, 14 
Q. B. D. 667. 

1 See p. 69, post. 



NA TURE OF PARLIAMENTARY SO VEREIGNTY 57 

any expressions which attribute to Parliamentary Chapter 
electors a legal part in the process of law-making are ! 
quite inconsistent with the view taken by the law of 
the position of an elector. The sole legal right of 
electors under the English constitution is to elect 
members of Parliament. Electors have no legal 
means of initiating, of sanctioning, or of repealing the 
legislation of Parliament. No Court will consider for 

o 

a moment the argument that a law is invalid as being 
opposed to the opinion of the electorate ; their opinion 
can be legally expressed through Parliament, and 
through Parliament alone. This is not a necessary 
incident of representative government. In Switzer- 
land no change can be introduced in the constitution l 
which has not been submitted for approval or dis- 
approval to all male citizens who have attained their 
majority ; and even an ordinary law which does not 
involve a change in the constitution may, after it has 
been passed by the Federal Assembly, be submitted 
on the demand of a certain number of citizens to a 
popular vote, and is annulled if a vote is not obtained 
in its favour. 2 

(iv.) The Law Courts. A large proportion of The Courts. 
English law is in reality made by the judges, and 
whoever wishes to understand the nature and the 
extent of judicial legislation in England, should read 
Professor Pollock's admirable essay on the Science of 
Case Law. 5 The topic is too wide a one to be con- 
sidered at any length in these lectures. All that we 

1 Constitution FecMrale de la Confederation Suisse, Arts. 118-121 ; 
see Adams, The Suriss Confederation, chap. vi. 

2 Constitution Fe'de'rale de la Confederation Suisse, Art. 89. 

3 Pollock, Essays in Jurisprudence and Ethics, p. 237. 



58 THE SOVEREIGNTY OF PARLIAMENT 

Part I. need note is that the adhesion by our judges to pre- 
cedent, that is, their habit of deciding one case in 
accordance with the principle, or supposed principle, 
which governed a former case, leads inevitably to the 
gradual formation by the Courts of fixed rules for 
decision, which are in effect laws. This judicial legis- 
lation 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 over- 
ride and constantly do override the law of the judges. 
Judicial legislation is, in short, subordinate legislation, 
carried on with the assent and subject to the super- 
vision of Parliament. 

Alleged B. Alleged legal limitations on the legislative 

' sovereignty of Parliament. All that can be urged 

as to the speculative difficulties of placing any limits 

whatever on sovereignty has been admirably stated 

^ by Austin and by Professor Holland. 1 With these 
difficulties we have, at this moment, no concern. Nor 
is it necessary to examine whether it be or be not 
true, that there must necessarily be found in every 
state some person, or combination of persons, which, 
according to the constitution, whatever be its form, 
can legally change every law, and therefore consti- 
tutes the legally supreme power in the state. Our 
whole business is now to carry a step further the 
proof that, under the English constitution, Parliament 
does constitute such a supreme legislative authority 

1 See Austin, Jurisprudence, i. (4th ed.), pp. 270-274, and Holland, 
Jurisprudence (4th ed.), pp. 45-47 and 304, 305. The nature of 
sovereignty is also stated with brevity and clearness in Lewis, Use 
and Abuse of Political Terms, pp. 37-53. 



NATURE OF PARLIAMENTARY SOVEREIGNTY 59 

or sovereign power as, according to Austin and other chapter 

jurists, . must exist in every civilised state, and for L_ 

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 Parlia- 
mentary authority, and to show that none of them 
are countenanced by English law. 

The suggested limitations are three in number. 1 
First. Acts of Parliament, it has been asserted, Moral law. 
are invalid if they are opposed to the principles of 
morality or to the doctrines of international law. 
Parliament, it is in effect asserted, cannot make a law 
opposed to the dictates of private or public morality. 
Thus Blackstone lays down in so many words that 
the " law of nature being co-eval with mankind, and 
" dictated by God himself, is of course superior in 
" obligation to any other. It is binding over all the 
" globe, in all countries, and at all times : no human 
" laws are of any validity if contrary to this; and such 
" of them as are valid derive all their force and all 
" their authority, mediately or immediately, from this 
" original ; " 2 and expressions are sometimes used by 
modern judges which imply that the Courts might 
refuse to enforce statutes going beyond the proper 
limits (internationally speaking) of Parliamentary 

1 Another limitation has been suggested more or less distinctly by 
judges such as Coke (12 Eep. 76 ; and Hearn, Government of England 
(2d ed.), pp. 48, 49) ; an Act of Parliament cannot (it has been inti- 
mated) overrule the principles of the common law. This doctrine 
once had a real meaning (see Maine, Early History of Institutions, 
pp. 381, 382), but it has never received systematic judicial sanction 
and is now obsolete. See Colonial Laws Act, 1865, 28 & 29 
Viet. cap. 63. 

2 Blackstone, Commentaries, i. p. 40 ; and see Hearn, Government 
of England (2d ed.), pp. 48, 49. 



60 THE SOVEREIGNTY OF PARLIAMENT 

Parti, authority. 1 But to words such as those of Black- 
stone, and to the obiter dicta of the Bench we must 
give a very qualified interpretation. There is no 
legal basis for the theory that judges, as exponents of 
morality, may overrule Acts of Parliament. Lan- 
guage which might seem to imply this amounts in 
reality to nothing more than the assertion that the 
judges when attempting to ascertain what is the 
meaning to be affixed to an Act of Parliament, will 
presume that Parliament did not intend to violate 2 
the ordinary rules of morality, or the principles of 
international law, and will therefore, whenever pos- 
sible, give such an interpretation to a statutory 
enactment as may be consistent with the doctrines 
both of private and of international morality. A 
modern judge would never listen to a barrister who 
argued that an Act of Parliament was invalid because 
it was immoral, or because it went beyond the limits 
of Parliamentary authority. The plain truth is that 
our tribunals uniformly act on the principle that a 
law alleged to be a bad law is ex hypothesi a law, and 
therefore entitled to obedience by the Courts. 
Pre- Secondly. Doctrines have at times 3 been main- 

tained which went very near to denying the right of 
Parliament to touch the Prerogative. 

In the time of the Stuarts 4 the doctrine was main- 
tained, not only by the King, but by lawyers and 

1 See Ex parte Blain, 12 Ch. D. (C. A.), 522, 531, judgment of 
Cotton, L. J. 

2 See Colquhoun v. Brooks, 21 Q. B. D. (C. A.), 52 ; and compare 
the language of Lord Esher, pp. 57, 58, with the judgment of Fry, 
L. J., ibid. pp. 61, 62. 

3 See Stubbs, Constitutional History, ii. pp. 239, 486, 513-515. 

4 Gardiner, History, iii. pp. 1-5 ; compare, as to Bacon's view of 
the prerogative, Francis Bacon, by Edwin A. Abbott, pp. 140, 260,279. 



NA TURE OF PARLIAMENTAR Y SO VEREIGNTY 61 

statesmen who, like Bacon, favoured the increase of chapter 

royal authority, that the Crown possessed under the L_ 

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 com- 
bined with the deduction from it that the Crown 
could suspend the operation of statutes, or at any rate 
grant dispensation from obedience to them, certainly 
suggested the notion that the high powers of the pre- 
rogative were to a certain extent beyond the reach of 
Parliamentary enactment. We need not, however, 
now enter into the political controversies of another 
age. All that need be noticed is that though certain 
powers as, for example, the right of making treaties 
are now left by law in the hands of the Crown, and 
are exercised in fact by the executive government, no 
modern lawyer would maintain that these powers or 
any other branch of royal authority could not be regu- 
lated or abolished by Act of Parliament, or, what is 
the same thing, that the judges might legally treat as in- 
valid a statute, say, regulatingthe mode in which treaties 
are to be made, or making the assent of the Houses 
of Parliament necessary to the validity of a treaty. 1 

Thirdly. Language has occasionally been used in Preceding 
Acts of Parliament which implies that one Parliament Parliament 
can make laws which cannot be touched by any sub- 
sequent Parliament, and that therefore the legislative 
authority of an existing Parliament may be limited 
by the enactments of its predecessors. 

1 Compare the parliamentary practice in accordance with which 
the consent or recommendation of the Crown is required to the intro- 
duction of bills touching the prerogative or the interests of the 
Crown. 



62 THE SOVEREIGNTY OF PARLIAMENT 

Parti. That Parliaments have more than once intended 
The Acts of and endeavoured to pass Acts which should tie the 
hands of their successors is certain, but the endeavour 
has always ended in failure. Of statutes intended to 
arrest the possible course of future legislation, the 
most noteworthy are the Acts which embody the 
treaties of Union with Ireland and Scotland. The 
legislators who passed these Acts assuredly intended 
to give to certain portions of them more than the 
ordinary effect of statutes. Yet the history of 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 
faith, and in substance enacts that this provision shall 
be a fundamental and essential condition of the treaty 
or union in all time coming. 1 But this very provision 
has been in its main part repealed by 16 & 17 Viet, 
c. 89, s. 1, which relieves most professors in the 
Scotch universities from the necessity of subscribing 
the Confession of Faith. Nor is this by any means 
the only inroad made upon the terms of the Act of 
Union ; from one point of view at any rate the Act 
10 Anne, c. 12, 2 restoring the exercise of lay patron- 
age, was a direct infringement upon the Treaty of 
Union. The intended unchangeableness, and the real 
liability of these Acts or treaties to be changed by 
Parliament, comes out even more strikingly in the 

1 See 6 Anne, c. 11, art 25. 
2 Compare Innes, Law of Creeds in Scotland, pp. 118-121. 



NA TURE OF PARLIAMENTAR Y SO VEREIGNTY 63 

history of the Act of Union with Ireland. The fifth Chapter 

Article of that Act (39 & 40 Geo. III., c. 67) runs as L 

follows : " That it be the fifth Article of Union, that 

" the Churches of England and Ireland as now by law 

" established, be united into one Protestant episcopal 

" Church, to be called the United Church of England 

" and Ireland; and that the doctrine, worship, discipline 

" and government of the said United Church shall be 

" and shall remain in full force for ever, as the same are 

" now by law established for the Church of England ; 

" and that the continuance and preservation of the 

" said United Church, as the established Church of 

" England and Ireland, shall be deemed and be taken 

"to be an essential and fundamental part of the 

" Union." 

That the statesmen who drew and passed this 
Article meant to bind the action of future Parliaments 
is apparent from its language. That the attempt has 
failed of success is apparent to every one who knows 
the contents of the Irish Church Act, 1869. 

One Act, indeed, of the British Parliament might, Act limit- 
looked at in the light of history, claim a peculiar of g pafiia- 
sanctity. It is certainly an enactment of which the 
terms, we may safely predict, will never be repealed i 
and the spirit will never be violated. This Act is 18 
Geo. III., c. 12, passed in 1778. It provides that 
Parliament " will not impose any duty, tax or assess- 
" ment 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 ma;y 
" 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 



64 THE SOVEREIGNTY OF PARLIAMENT 

Part L " plantation, in which the same shall be respectively 
" levied, in such manner as other duties collected by 
" the authority of the respective general courts, or 
" general assemblies, of such colonies, provinces, or 
" plantations, are ordinarily paid and applied." l 

This language becomes the more impressive when 
contrasted with 6 Geo. III., c. 12, which, being passed 
in 1766 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 18 Geo. III., c. 12, or the enactment of any 
law inconsistent with its spirit, there is under our 
constitution no legal difficulty in the way of repeal- 
ing or overriding this Act. If Parliament were to- 
morrow to impose a tax, say on Victoria or on the 
Canadian Dominion, the statute imposing it would 
be a legally valid enactment, as stated in short by a 
very judicious writer " It is certain that a Parliament 
" cannot so bind its successors by the terms of any 
" statute, as to limit the discretion of a future Parlia- 
" ment, and thereby disable the Legislature from 
" entire freedom of action at any future time when 
" it might be needful to invoke the interposition of 
" Parliament to legislate for the public welfare." 2 

1 18 Geo. Ill, cap. 12, s. 1. 

2 Todd, Parliamentary Government in the British Colonies, p. 192. 
It is a matter of curious speculation to consider why it is that Parliament, 
though on several occasions intending to pass Acts which should be im- 
mutable, has never in reality succeeded in restricting its own legislative 
authority. 

The question may be considered either logically or historically. 
The logical reason why Parliament has failed in its endeavours to 



NATURE OF PARLIAMENTARY SOVEREIGNTY 65 

Parliamentary sovereignty is therefore an un- Chapter 
doubted legal fact. 

It is complete both on its positive and on its 
negative side. Parliament can legally legislate on 
any topic whatever which, in the judgment of Parlia- 

enact unchangeable enactments is that a sovereign power cannot, 
whilst retaining its sovereign character, restrict its own powers by any 
particular enactment. An Act, whatever its terms, passed by Parlia- 
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. In two ways only 
can a sovereign power divest itself of authority. 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 summoned. (See Bryce, American Commonwealth, i. 
p. 324, note 1.) A step very 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 em- 
powered to legislate by proclamation ; and though the fact is often 
overlooked, the Parliaments both of England and of Scotland did, at 
the Act of 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 legis- 
latures by which it was constituted, became in its turn a legally 
supreme or sovereign legislature, authorised therefore, though contrary 
perhaps to the intention of its creators, to modify or 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. " Limited sovereignty," in short, is, in the case of a 

F 



66 THE SOVEREIGNTY OF PARLIAMENT 

Parti, ment, is a fit subject for legislation. 1 There is no 
power which, under the English constitution, can 
come into rivalry with the legislative sovereignty of 
Parliament. 2 

No one of the limitations alleged to be imposed by 
law on the absolute authority of Parliament has any 
real existence, or receives any countenance, either 
from the statute-book or from the practice of the 
Courts. 3 

Parliamentary as of every other sovereign, a contradiction in terms. 
Its frequent and convenient use arises from its in reality signifying 
and being, by any one who uses words with any accuracy, understood to 
signify that some person, e.g. a king who was at one time a real 
sovereign or despot, and who is in name treated as an actual sovereign, 
has become only a part of the power which is legally supreme or 
sovereign in a particular state. 

The historical reason why Parliament has never succeeded in pass- 
ing immutable laws, or in other words, has always retained its character 
of a supreme legislature, lies deep in the history of the English people 
and in the peculiar development of the English constitution. England 
has, at any rate since the Norman Conquest, been always governed 
by an absolute legislator. This lawgiver was originally the Crown, 
and the peculiarity of the process by which the English constitution 
has been developed lies in the fact that the legislative authority of 
the Crown has never been curtailed, but has been transferred from 
the Crown acting alone (or rather in Council) to the Crown acting 
first together with, and then in subordination to, the Houses of Parlia- 
ment. Hence Parliament, or in technical terms the King in Parlia- 
ment, has become it would perhaps be better to say has always re- 
mained a supreme legislature. It is well worth notice that on the 
one occasion when English reformers broke from the regular course of 
English historical development, they framed a written constitution, 
anticipating in many respects the constitutionalism of the United 
States, and placed the constitution beyond the control of the ordinary 
legislature. It is quite clear that, under the Instrument of Govern- 
ment of 1653, Cromwell intended certain fundamentals to be beyond 
the reach of Parliament. It may be worth observing that the con- 
stitution of 1653 placed the Executive beyond the control of the 
legislature. The Protector under it occupied a position which may 
well be compared either with that of the American President or of 
the German Emperor. -See Harrison, Cromwell, pp. 194-203. 

1 See pp. 39-48, ante. 2 See pp. 48-58, ante. 

3 See pp. 58-64, ante. 



NA TURE OF PARLIAMENTAR Y SO VEREIGNTY 67 

This doctrine of the legislative supremacy of Par- Chapter 
liament is the very keystone of the law of the consti- 
tution. But it is, we must admit, a dogma which 
does not always find ready acceptance, and it is well 
worth while to note and examine the difficulties 
which impede the admission of its truth. 

C. Difficulties as to the doctrine of Parliamentary Difficulties 
Sovereignty. The reasons why many persons find 
it hard to accept the doctrine of Parliamentary 
sovereignty are twofold. 

The dogma sounds like a mere application to the Difficulty 
British constitution of Austin's theory of sovereignty, Austin's 
and yet intelligent students of Austin must have* 
noticed that Austin's own conclusion as to the 
persons invested with sovereign power under the 
British constitution does not agree with the view 
put forward, on the authority of English lawyers, in 
these lectures. For while lawyers maintain that 
sovereignty resides in " Parliament," i.e. in the body 
constituted by the King, the House of Lords, and 
the House of Commons, Austin holds 1 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 Difficulty 

, i i i , i from actual 

sense that whatever lawyers may say, the sovereign limitation 
power of Parliament is not unlimited, and that King, 
Lords, and Commons united do not possess anything ment - 
like that " restricted omnipotence " if the term 
may be excused which is the utmost authority 

1 See Austin, Jurisprudence, L (4th. ed.), pp. 251-255. Compare 
Austin's language as to the sovereign body under the constitution of the 
United States. (Austin, Jurisprudence, i. (4th ed.), p. 268.) 



68 THE SOVEREIGNTY OF PARLIAMENT 

Parti, ascribable to any human institution. There are 
many enactments, and these laws not in themselves, 
obviously unwise or tyrannical, which Parliament 
never would and (to speak plainly) never could pass. 
If the doctrine of Parliamentary sovereignty involves 
the attribution of unrestricted power to Parliament, 
the dogma is no better than a legal fiction, and cer- 
tainly is not worth the stress here laid upon it. 

Both these difficulties are real and reasonable 
difficulties. They are, it will be found, to a certain 
extent connected together and well repay careful 
consideration. 

Criticism As to Austin's theory of sovereignty in relation 

the British constitution. Sovereignty, like many 
of Austin's conceptions, is a generalisation drawn -in 
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- 
stances of English commerce. In England we are 
accustomed to the existence of a supreme legislative 
body, i.e. a body which can make or unmake every 
law ; and which, therefore, cannot be bound by any 
law. This is, from a legal point of view, the true 
conception of a sovereign, and the ease with which 
the theory of absolute sovereignty has been accepted 
by English jurists is due to the peculiar history of 
English constitutional law. So far, therefore, from 
its being true that the sovereignty of Parliament is a 
deduction from abstract theories of jurisprudence, a 
critic would come nearer the truth who asserted that 
Austin's theory of sovereignty is suggested by the 
position of the English Parliament, just as Austin's 
analysis of the term " law " is at bottom an analysis 



NA TURK OF PARLIAMENTAR Y SO VEREIGNTY 69 

of a typical law, namely, an English criminal chapter 

statute. 

It should, however, be carefully noted that the 
term " sovereignty," as long as it is accurately em- 
ployed in the sense in which Austin sometimes l 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 sove- 
reign power under the English constitution is clearly 
" Parliament." But the word " sovereignty " is some- 
times employed in a political rather than in a strictly 
legal sense. That body is ''politically" sovereign 
or supreme in a state the will of which is ultimately 
obeyed by the citizens of the state. In this sense of 
the. word the electors of Great Britain may be said 
to be, together with the Crown and the Lords, or 
perhaps in strict accuracy independently of the King 
and the Peers, the body in which sovereign power is 
vested. For, as things now stand, the will of the 
electorate, and certainly of the electorate in com- 
bination with the Lords and the Crown, is sure 
ultimately to prevail on all subjects to be determined 
by the British government. The matter indeed may 
be carried a little further, and we may assert that the 
arrangements of the constitution are now such 
as to ensure that the will of the electors shall by 
regular and constitutional means always in the end 
assert itself as the predominant influence in the 
country. But this is a political, not a legal fact. 
The electors can in the long run 2 always enforce their 

1 Compare Austin, Jurisprudence, i. (4th ed.), p. 268. 

2 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 



70 THE SOVEREIGNTY OF PARLIAMENT 

Part I. will. But the Courts will take no notice of the will 
of the electors. The judges know nothing about any 
will of the people except in so far as that will is 
expressed by an Act of Parliament, and would never 
suffer the validity of a statute to be questioned on 
the ground of its having been passed or being kept 
alive in opposition to the wishes of the electors. 
The political sense of the worcf " sovereignty " is, it 
is true, fully as important as the legal sense or 
more so. But the two significations, though inti- 
mately connected together, are essentially different, 
and in some parts of his work Austin has apparently 
confused the one sense with the other. 

" Adopting the language," he writes, " of most of 
" the writers who have treated of the British constitu- 

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 accur- 
ately the electorate, are politically sovereign. The action of the 
people of the United States in changing the Federal Constitution is 
impeded by many difficulties, and is practically slow ; the Federal 
Constitution has, except after the civil war, not been materially changed 
during the century which has elapsed since its formation. The 
Articles of the Swiss Confederation admit of more easy change than 
the Articles of the United States Constitution, and since 1848 have 
undergone considerable modification. But though in one point of 
view the present constitution, revised in 1874, may be considered a 
new constitution, it does not differ fundamentally from that of 1848. 
As things now stand the people of England can change any part of the 
law of the constitution with extreme rapidity. Theoretically there is no 
check on the action of Parliament whatever, and it may be conjectured 
that in practice any change however fundamental would be at once 
carried through, which was approved of by one House of Commons, 
and, after a dissolution of Parliament, was supported by the newly 
elected House. The paradoxical assertion, therefore, that England is 
more democratically governed than either the United States or Switzer- 
land, contains an 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. 



NA TURE OF PARLIAMENTAR Y SO VEREIGNTY 7 1 

" tion, I commonly suppose that the present parlia- Chapter 

" ment, or the parliament for the time being, is possessed L_ 

" of the sovereignty: or I commonly suppose that the 
" King and the Lords, with the members of the Com- 
" mons' house, form a tripartite body which is sovereign 
" or supreme. But, speaking accurately, the members 
" of the Commons' house are merely trustees for the 
" body by which they are elected and appointed : and, 
" consequently, the sovereignty always resides in the 
" King and the Peers, with the electoral body of the 
" Commons. That a trust is imposed by the party 
" delegating, and that the party representing engages 
" to discharge the trust, seems to be imported by the 
" correlative expressions delegation and representation. 
" It were absurd to suppose that the delegating em- 
" powers the representative party to defeat or abandon 
" any of the purposes for which the latter is appointed : 
" to suppose, for example, that the Commons empower 
" their representatives in parliament to relinquish their 
" share in the sovereignty to the King and the 
"Lords." 1 

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 " 2 for the electors. Of such a feigned 
" trust " the Courts know nothing. The plain truth 

1 Austin, Jurisprudence, i. (4th ed.), p. 253. 

2 This Austin concedes, but the admission is fatal to the con- 
tention that Parliament is not in strictness a sovereign. (See Austin, 
Jurisprudence, i. (4th ed.), pp. 252, 253.) 



72 THE SOVEREIGNTY OF PARLIAMENT 

Part I. 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 legis- 
lative and judicial system. It is however equally true 
that in a political sense the electors are the most 
important part of, we may even say are actually, the 
sovereign power, since their will is under the present 
constitution sure to obtain ultimate obedience. The 
language therefore of Austin is as correct in regard to 
" political " sovereignty as it is erroneous in regard to 
what we may term " legal " sovereignty. The electors 
are a part of and the predominant part of the poli- 
tically sovereign power. But the legally sovereign 
power is assuredly, as maintained by all the best 
writers on the constitution, nothing but Parliament. 

It may be conjectured that the error of which 
(from a lawyer's point of view) Austin has been 
guilty arises from his feeling, as every person must 
feel who is not the slave to mere words, that Parlia- 
ment is (as already pointed out 1 ) nothing like an 
omnipotent body, but that its powers are practically 
limited in more ways than one. And this limitation 
Austin expresses, not very happily, by saying that 
the members of the House of Commons are subject 
to a trust imposed upon them by the electors. This, 
however, leads us to our second difficulty, namely, 
the coexistence of parliamentary sovereignty with 
the fact of actual limitations on the power of Par- 
liament. 

As to the actual limitations on the sovereign 
power of Parliament. The actual exercise of authority 

1 See p. 67, ante. 



NA TURE OF PARLIAMENTAR Y SO VEREIGNTY 73 

by any sovereign whatever, and notably by Parlia- Chapter 

ment, is bounded or controlled by two limitations. _ ! _ 
Of these the one is an external, the other is an internal 



limitation. limitations 

to power 

The external limit to the real power of a sovereign not incon- 

. x . sistent with. 

consists in the possibility or certainty that his subjects, sove- 
or a large number of them, will disobey or resist his 
laws. limit - 

This limitation exists even under the most despotic 
monarchies. A Roman Emperor, or a French King 
during the middle of the eighteenth century, was (as 
is the Eussian Czar at the present day) in strictness a 
" sovereign " in the legal sense of that term. He had 
absolute legislative authority. Any law made by him 
was binding, and there was no power in the empire or 
kingdom which could annul such law. It may also be 
true, though here we are passing from the legal to 
the political sense of sovereignty, that the will of an 
absolute monarch is in general obeyed by the bulk of 
his subjects. But it would be an error to suppose 
that the most absolute ruler which ever existed could 
in reality make or change every law at his pleasure. 
That this must be so results from considerations which 
were long ago pointed out by Hume. Force, he 
teaches, is in one sense always on the side of the 
governed, and government therefore in a sense always 
depends upon opinion. " 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 



74 THE SOVEREIGNTY OF PARLIAMENT 

Part I. " 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 prcetorian bands, 
" like men, by their opinion." x 

niustra- The authority, that is to say, even of a despot, 

Stemd depends upon the readiness of his subjects or of some 
limit on portion of his subjects to obey his behests ; and this 

exercise of J .... 

sovereign readiness to obey must always be in reality limited. 
This is shown by the most notorious facts of history. 
None of the early Caesars could at their pleasure have 
subverted the worship or fundamental institutions of 
the Roman world, and when Constantine carried 
through a religious revolution his success was due to 
the sympathy of a large part of his subjects. The 
Sultan could not abolish Mahomedanism. Louis the 
Fourteenth at the height of his power could revoke 
the Edict of Nantes, but he would have found it impos- 
sible to establish the supremacy of Protestantism, and 
for the same reason which prevented James the Second 
from establishing the supremacy of Roman Catholi- 
cism. The one king was in the strict sense despotic; 
the other was as powerful as any English monarch. 
But the might of each was limited by the certainty of 
popular disobedience or opposition. The unwilling- 
ness of subjects to obey may have reference not only 

1 Hume, Essays, i. (1875 ed.), pp. 109, 110. 



NA TURE OF PARLIAMENTAR Y SO VEREIGNTY 75 

to great changes, but even to small matters. The chapter 

French National Assembly of 1871 was emphatically '__ 

the sovereign power in France. The majority of its 
members were (it is said) prepared for a monarchical 
restoration, but they were not prepared to restore the 
white flag : the army which would have acquiesced in 
the return of the Bourbons, would not (it was antici- 
pated) tolerate the sight of an anti - revolutionary 
symbol : " the chassepots would go off of themselves." 
Here we see the precise limit to the exercise of legal 
sovereignty ; and what is true of the power of a 
despot or of the authority of a constituent assembly is 
specially true of the sovereignty of Parliament ; it is 
limited on every side by the possibility of popular 
resistance. Parliament might legally establish an 
Episcopal Church in Scotland ; Parliament might 
legally tax the Colonies ; Parliament might without 
any breach of law change the succession to the throne 
or abolish the monarchy ; but every one knows that 
in the present state of the world the British Parlia- 
ment will do none of these things. In each case 
widespread resistance would result from legislation 
which, though legally valid, is in fact beyond the 
stretch of Parliamentary power. Nay more than this, 
there are things which Parliament has done in other 
times, and done successfully, which a modern Parlia- 
ment would not venture to repeat. Parliament would 
not at the present day prolong by law the duration of 
an existing House of Commons. Parliament would 
not without great hesitation deprive of their votes 
large classes of Parliamentary electors ; and, speaking 
generally, Parliament would not embark on a course of 
reactionary legislation ; persons who honestly blame 



76 THE SOVEREIGNTY OF PARLIAMENT 

Parti. Catholic Emancipation and lament the disestablish- 
ment of the Irish Church do not dream that Parlia- 
ment could repeal the statutes of 1829 or of 1869. 
These examples from among a score are enough to 
show the extent to which the theoretically boundless 
sovereignty of Parliament is curtailed by the external 
limit to its exercise. 

internal The internal limit to the exercise of sovereignty 

must- arises from the nature of the sovereign power itself. 
Even a despot exercises his powers in accordance 
with his character, which is itself moulded by the 
circumstances under which he lives, including under 
that head the moral feelings of 'the time and the 
society to which he belongs. The Sultan could not 
if he would change the religion of the Mahomedan 
world, but if he could do so it is in the very highest 
degree improbable that the head of Mahomedanism 
should wish to overthrow the religion of Mahomet ; 
the internal check on the exercise of the Sultan's 
power is at least as strong as the external limitation. 
People sometimes ask the idle question why the 
Pope does not introduce this or that reform ? The 
true answer is that a revolutionist is not the kind 
of man who becomes a Pope, and that the man who 
becomes a Pope has no wish to be a revolutionist. 
Louis the Fourteenth could not in all probability have 
established Protestantism as the national religion of 
France ; but to imagine Louis the Fourteenth as 
wishing to carry out a Protestant reformation is 
nothing short of imagining him to have been a being 
quite unlike the Grand Monarque. Here again the 
internal check works together with the external check, 
and the influence of the internal limitation is as great 



NATURE OF PARLIAMENTARY SOVEREIGNTY 77 

in the case of a Parliamentary sovereign as of any Chapter 

other ; perhaps it is greater. Parliament could not 

prudently tax the Colonies ; but it is hardly con- 
ceivable that a modern Parliament, with the history 
of the last century before its eyes, should wish to tax 
the colonies. The combined influence both of the 
external and of the internal limitation on legislative 
sovereignty is admirably stated in Mr. Leslie Stephen's 
Science of Ethics, whose chapter on "Law and Custom" 
contains one of the best statements to be met with 
of the limits placed by the nature of things on the 
theoretical omnipotence of sovereign legislatures. 

"Lawyers are apt to speak as though the 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 
" point of view, the power of the legislature is of course 
" strictly limited. It is limited, so to speak, both from 
" within and from without ; from within, because the 
" legislature is the product of a certain social condition, 
" and determined by whatever determines the society ; 
" and from without, because the power of imposing laws 
" is dependent upon the instinct of subordination, which 
" is itself limited. If a legislature decided that all blue- 
" eyed babies should be murdered, the preservation of 
" blue-eyed babies would be illegal ; but legislators 
" must go mad before they could pass such a law, and 
" subjects be idiotic before they could submit to it." l 

Though sovereign power is bounded by an external 
and an internal limit, neither boundary is very de- 

1 Leslie Stephen, Science of Ethics, p. 143. 



78 THE SOVEREIGNTY OF PARLIAMENT 

Part I. finitely marked, nor need the two precisely coincide. 
Limitg A sovereign may wish to do many things which he 
eo&ntide e i tner cannot do at all or can do only at great risk of 
serious resistance, and it is on many accounts worth 
observation that the exact point at which the external 
limitation begins to operate, that is, the point at which 
subjects will offer serious or insuperable resistance to 
the commands of a ruler whom they generally obey, 
is never fixed with precision. It would be rash of the 
Imperial Parliament to abolish the Scotch law Courts, 
and assimilate the law of Scotland to that of England. 
But no one can feel sure at what point Scotch resist- 
ance to such a change would become serious. Before 
the War of Secession the sovereign power of the 
United States could not have abolished slavery with- 
out provoking a civil war ; after the War of Secession 
the sovereign power abolished slavery and conferred 
the electoral franchise upon the Blacks without ex- 
citing actual resistance. 

Represent- In reference to the relation between the external 
govern- and the internal limit to sovereignty, representative 



- government presents a noteworthy peculiarity. It is 
is. The aim and effect of such government is to 
external produce a coincidence, or at any rate diminish the 

and in- * 

temai limit, divergence, between the external and the internal 
limitations on the exercise of sovereign power. 
Frederick the Great may have wished to introduce, 
and may in fact have introduced, changes or reforms 
opposed to the wishes of his subjects. Louis Napoleon 
certainly began a policy of free trade which would 
not be tolerated by an assembly which truly repre- 
sented French opinion. In these instances neither 
monarch reached the external limit to his sovereign 



NATURE OF PARLIAMENTARY SOVEREIGNTY 79 

power, but it might very well have happened that he Chapter 
might have reached it, and have thereby provoked 
serious resistance on the part of his subjects. There 
might, in short, have arisen a divergence between the 
internal and the external check. The existence of 
such a divergence, or (in other words) of a difference 
between the permanent wishes of the sovereign, or 
rather of the King who then constituted a predomi- 
nant part of the sovereign power, and the permanent 
wishes of the nation, is traceable in England through- 
out the whole period beginning with the accession 
of James the First and ending with the Eevolution 
of 1688. The remedy for this divergence was 
found in a transference of power from the Crown 
to the Houses of Parliament ; and in placing on the 
throne rulers who from their position were induced to 
make their wishes coincide with the will of the nation 
expressed through the House of Commons ; the differ- 
ence between the will of the sovereign and the will 
of the nation was terminated by the foundation of a 
system of real representative government. Where a 
Parliament truly represents the people, the divergence 
between the external and the internal limit to the 
exercise of sovereign power can hardly arise, or if it 
arises, must soon disappear. Speaking roughly, the 
permanent wishes of the representative portion of 
Parliament can hardly in the long run differ from the 
wishes of the English people, or at any rate of the 
electors ; that which the majority of the House of 
Commons command, the majority of the English 
people usually desire. To prevent the divergence 
between the wishes of the sovereign and the wishes 
of subjects is in short the effect, and the only certain 



8o THE SOVEREIGNTY OF PARLIAMENT 

Part I. effect, of bona fide representative government. For 
our present purpose there is no need to determine 
whether this result be good or bad. An enlightened 
sovereign has more than once carried out reforms in 
advance of the wishes of his subjects. This is true 
both of sovereign kings and, though more rarely, of 
sovereign Parliaments. But the sovereign who has 
done this, whether King or Parliament, does not in 
reality represent his subjects. All that it is here 
necessary to insist upon is that the essential property 
of representative government is to produce coincidence 
between the wishes of the sovereign and the wishes 
of the subjects ; to make, in short, the two limitations 
on the exercise of sovereignty absolutely coincident. 
This, which is true in its measure of all real represent- 
ative government, applies with special truth to the 
English House of Commons. 

" The House of Commons," writes Burke, " was 
" supposed originally to be no part of the standing 
11 government of this country. It was considered as a 
" control, issuing immediately from the people, and 
" speedily to be resolved into the mass from whence it 
" arose. In this respect it was in the higher part of 
" government what juries are in the lower. The 
" capacity of a magistrate being transitory, and that of 
" a citizen permanent, the latter capacity it was hoped 
" would of course preponderate in all discussions, not 
" only between the people and the standing authority 
" of the Crown, but between the people and^the fleeting 
" authority of the House of Commons itself. It was 
" hoped that, being of a middle nature between subject 
" and government, they would feel with a more tender 
" and a nearer interest everything that concerned the 



NA TURE OF PARLIAMENTAR Y SO VEREIGNTY 8 1 

" people, than the other remoter and more permanent Chapter 
" parts of legislature. 

" Whatever alterations time and the necessary 
" accommodation of business may have introduced, this 
'" character can never be sustained, unless the House of 
" Commons shall be made to bear some stamp of the 
" actual disposition of the people at large. It would 
" (among public misfortunes) be an evil more natural 
" and tolerable, that the House of Commons should be 
" infected with every epidemical phrensy of the people, 
" as this would indicate some consanguinity, some 
" sympathy of nature with their constituents, than that 
" they should in all cases be wholly untouched by the 
" opinions and feelings of the people out of doors. By 
" this want of sympathy they would cease to be a 
" House of Commons." l 

1 Burke, Works, i. (1871 ed.), pp. 34V, 348. 






CHAPTER II 

PARLIAMENT AND NON-SOVEREIGN LAW-MAKING BODIES 

Part I. IN my last chapter I dwelt upon the nature of Parlia- 

Aim of rnentary sovereignty ; my object in this chapter is to 

chapter illustrate the characteristics of such sovereignty by 

comparing the essential features of a sovereign Parlia- 

ment like that of England with the traits which mark 

non-sovereign law-making bodies. 

Pariia- A. Characteristics of Sovereign Parliament. 

men ary rpj^ characteristics of Parliamentary sovereignty may 
^ e d e( j ucec i f rO m the term itself. But they are apt to 
escape the attention of Englishmen, who have been so 
accustomed to live under the rule of a supreme 
legislature, that they almost, without knowing it, 
assume that all legislative bodies are supreme, and 
hardly therefore keep clear before our minds the 
properties of a supreme as contrasted with a non- 
sovereign law-making body. In this matter foreign 
observers are, as is natural, clearer-sighted than Eng- 
lishmen. De Lolme, G-neist, and De Tocqueville 
seize at once upon the sovereignty of Parliament as 
a salient feature of the English constitution, and recog- 
nise the far-reaching effects of this marked peculiarity 
in our institutions. 



NON-SOVEREIGN LAW-MAKING BODIES 83 

" In England," writes De Tocqueville, " the Parlia- chapter 

" 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." l 

His expressions are wanting in accuracy, and 
might provoke some criticism, but the description of 
the English Parliament as at once " a legislative and 
a constituent assembly " supplies a convenient formula 
for summing up the fact that Parliament can change 
any law whatever. Being a " legislative " assembly 
it can make ordinary laws, being a " constituent " 
assembly it can make laws which shift the basis of the 
constitution. The results which ensue from this fact 
may be brought under three heads. 

First. There is no law which Parliament cannot NO law 
change, or (to put the same thing somewhat differently), cannot""* 
fundamental or so-called constitutional laws are under change - 
our constitution changed by the same body and in the 
same manner as other laws, namely, by Parliament 
acting in its ordinary legislative character. 

A Bill for reforming the House of Commons, a 
Bill for abolishing the House of Lords, a Bill to give 
London a municipality, a Bill to make valid marriages 
celebrated by a pretended clergyman, who is found 
after their celebration not to be in orders, are each 
equally within the competence of Parliament, they 
each may be passed in substantially the same manner, 
they none of them when passed will be, legally 
speaking, a whit more sacred or immutable than the 

1 De Tocqueville, i. (translation), p. 96, (Euvres Completes, i. pp. 
166, 167. 



84 THE SOVEREIGNTY OF PARLIAMENT 

Part I. others, for they each will be neither more nor less than 
an Act of Parliament, which can be repealed as it has 
been passed by Parliament, and cannot be annulled 
by any other power. 

NO dis- Secondly. There is under the English constitution 

tweencon-~ no marked or clear distinction between laws which 



are no * fundamental or constitutional and laws which 
ary laws. are fundamental or constitutional. The very language 
therefore, expressing the difference between a " legis- 
lative " assembly which can change ordinary laws and 
a " constituent " assembly which can change not only 
ordinary but also constitutional and fundamental 
laws, has to be borrowed from the political phraseology 
of foreign countries. 

Relation This absence of any distinction between constitu- 

pST tional and ordinary laws has a close connection with 
mentary ne non-existence in England of any written or enacted 

sovereignty * 

andanxm- constitutional statute or charter. De Tocqueville 

written . , , . -11 

constitu- indeed, in common with other writers, apparently 
holds the unwritten character of the British constitu- 
tion to be of its essence : " L'Angleterre n'ayant point 
de constitution ecrite, qui peut dire qu'on change sa 
constitution ? " * But here De Tocqueville falls into 
an error, characteristic both of his nation and of the 
weaker side of his own rare genius. He has treated 
the form of the constitution as the cause of its 
substantial qualities, and has inverted the relation of 
cause and effect. The constitution, he seems to have 
thought, was changeable because it was not reduced 
to a written or statutory form. It is far nearer 
the truth to assert that the constitution has never 
been reduced to a written or statutory form because 

1 De Tocqueville, (Euvres Completes, i. p. 312. 



NON-SOVEREIGN LA W-MAKING BODIES 85 

each and every part of it is changeable at the will of Chapter 

Parliament. When a country is governed under a 

constitution which is 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, is necessarily expressed 
in writing, or, to use English phraseology, is enacted 
as a statute. Where, on the other hand, every law 
can be legally changed with equal ease or with equal 
difficulty, there arises no absolute need for reducing 
the constitution to a written form, or even for looking 
upon a definite set of laws as specially making up the 
constitution. One main reason then why constitu- 
tional laws have not in England been recognised 
under that name, and in many cases have not been re- 
duced to the form of a statutory enactment, is that 
one law, whatever its importance, can be passed and 
changed by exactly the same method as every other 
law. But it is a mistake to think that the whole law 
of the English constitution might not be reduced to 
writing and be enacted in the form of a constitutional 
code. The Belgian constitution indeed comes very 
near to a written reproduction of the English constitu- 
tion, and the constitution of England might easily be 
turned into an Act of Parliament without suffering 
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 
British Empire any person or body of persons, execu- 



86 THE SOVEREIGNTY OF PARLIAMENT 

Part I. tive, legislative or judicial, which can pronounce void 
NO person any enactment passed by the British Parliament on 
pronounce the ground of such enactment being opposed to the 
iialent Par constitution, or on any ground whatever, except of 
void. course its being repealed by Parliament. 

These then are the three traits of Parliament 
sovereignty as it exists in England : first, the power 
of the legislature to alter any law, fundamental or 
otherwise, as freely and in the same manner as other 
laws ; secondly, the absence of any legal distinction 
between constitutional and other laws ; thirdly, the 
non-existence of any judicial or other authority having 
the right to nullify an Act of Parliament, or to treat 
it as void or unconstitutional. 

Flexibility These traits are all exemplifications of the quality 
sfitution! 1 " which my friend Mr. Bryce has happily denominated 
the "flexibility" of the British constitution. Every 
part of it can be expanded, curtailed, amended or 
abolished, with equal ease. It is the most flexible 
polity in existence, and is therefore utterly different 
in character from the " rigid " constitutions (to use 
another expression of Mr. Bryce's) the whole or some 
part of which can be changed only by some extra- 
ordinary method of legislation. 

character- B. Characteristics of non- sovereign law-making 
ma- bodies. From the attributes of a sovereign legislature 
ia\7-making ^ * s possible to infer negatively what are the charac- 
bodies. teristics all (or some) of which are the marks of a 
non-sovereign law-making body, and which therefore 
may be called the marks or notes of legislative sub- 
ordination. 

These signs by which you may recognise the 



NON-SOVEREIGN LA W-MAKING BODIES 87 

subordination of a law-making body are, first, the Chapter 

existence of laws affecting its constitution which 

such body must obey and cannot change ; hence, 
secondly, the formation of a marked distinction be- 
tween ordinary laws and fundamental laws ; and, 
lastly, the existence of some person or persons, judicial 
or otherwise, having authority to pronounce upon the 
validity or constitutionality of laws passed by such 
law-making body. 

Wherever any of these marks of subordination 
exist with regard to a given law-making body, they 
prove that it is not a sovereign legislature. 

Observe the use of the words "law-making Meaning of 

-. , term "law- 

bOdy. making 

This term is here employed as an expression which body ' 
may include under one head 1 both municipal bodies, 

1 This inclusion has been made the subject of criticism. 

The objections taken to it are apparently threefold. 

First. There is, it is said, a certain absurdity in bringing into one 
class things so different in importance and in dignity as, for example, 
the Belgian Parliament and an English School-board. This objection 
rests on a misconception. It would be ridiculous to overlook the pro- 
found differences between a powerful legislature and a petty corpora- 
tion. But there is nothing ridiculous in calling attention to the points 
which they have in common. The sole matter for consideration is 
whether the alleged similarity be real. No doubt when features of 
likeness between things which differ from one another both in appear- 
ance and in dignity is pointed out, the immediate result is to produce 
a sense of amusement, but the apparent absurdity is no proof that the 
likeness is unreal or undeserving of notice. A man differs from a rat. 
But this does not make it the less true or the less worth noting that 
they are both vertebrate animals. 

Secondly. The powers of an English corporation, it is urged, can in 
general only be exercised reasonably, and any exercise of them is 
invalid which is not reasonable, and this is not true of the laws made, 
e.g. by the Parliament of a British colony. 

This objection admits of more than one reply. It is not univer- 
sally true that the bye-laws made by a corporation are invalid unless 
they are reasonable. But let it be assumed for the sake of argument 
that this restriction is always, as it certainly is often, imposed on the 



88 THE SOVEREIGNTY OF PARLIAMENT 

Part I. such as railway companies, school-boards, town coun- 
cils, and the like, which possess a limited power of 
making laws, but are not ordinarily called legislatures, 
and bodies such as the Parliaments of the British 
Colonies, of Belgium, or of France, which are ordin- 
arily called "legislatures," but are not in reality 
sovereign bodies. 

The reason for grouping together under one name 
such very different kinds of " law-making " bodies is, 

making of bye-laws. This concession does not involve the consequence 
that bye-laws do not partake of the nature of laws. All that follows 
from it is a conclusion which nobody questions, namely, that the 
powers of a non-sovereign law-making body may be restricted in very 
different degrees. 

Thirdly. The bye-laws of a corporation are, it is urged, not laws, 
because they affect only certain persons, e.g. in the case of a railway 
company the passengers on the railway, and do not, like the laws of a 
colonial legislature, affect all persons coming under the jurisdiction of 
the legislature ; or to put the same objection in another shape, the bye- 
laws of a railway company apply, it is urged, only to persons using 
the railway, in addition to the general law of the land by which such 
persons are also bound, whereas the laws, e.g., of the Victorian Parlia- 
ment constitute the general law of the colony. 

The objection is plausible, but does not really show that the simi- 
larity insisted upon between the position of a corporation and, e.g., a 
colonial legislature is unreal. In either case the laws made, whether 
by the corporation or by the legislature, apply only to a limited class 
of persons, and are liable to be overridden by the laws of a superior 
legislature. Even in the case of a colony so nearly independent as 
Victoria, the inhabitants are bound first by the statutes of the Imperial 
Parliament, and in addition thereto by the Acts of the Victorian Par- 
liament. The very rules which are bye-laws when made by a corpo- 
ration would admittedly be laws if made directly by Parliament. 
Their character cannot be changed by the fact that they are made by 
the permission of Parliament through a subordinate legislative body. 
The Council of a borough, which for the present purpose is a better 
example of my meaning than a railway company, passes in accordance 
with the powers conferred upon it by Parliament a bye-law prohibiting 
processions with music on Sunday. The same prohibition if contained 
in an Act of Parliament would be admittedly a law. It is none the 
less a law because made by a body which is permitted by Parliament 
to legislate. 



NON-SOVEREIGN LA W-MAKING BODIES 89 

that by far the best way of clearing up our ideas as chapter 

to the nature of assemblies which, to use the foreign '_ 

formula, 1 are " legislative " without being " consti- 
tuent," and which therefore are not sovereign legis- 
latures, is to analyse the characteristics of societies, 
such as English, railway companies, which possess a 
certain legislative authority, though the authority is 
clearly delegated and subject to the obvious control 
of a superior legislature. 

It will conduce to clearness of thought if we divide 
non-sovereign law-making bodies into the two great 
classes of obviously subordinate bodies such as cor- 
porations, the Council of India, etc., and such legis- 
latures of independent countries as are legislative 
without being constituent, i.e. are non- sovereign 
legislative bodies. 

The consideration of the position of the non- 
sovereign legislatures which exist under the com- 
plicated form of constitution known as a federal 
government is best reserved for a separate chapter. 2 

I. Subordinate Law-making Bodies. 

(i.) Corporations. An English railway company Subordm- 
is as good an example as can be found of a subordinate 
law-making body. Such a company is in the strictest Corpora- 

' . * turns. 

sense a law-making society, for it can under the 
powers of its Act make laws (called bye-laws) for the 
regulation (inter alia) of travelling upon the railway, 3 
and can impose a penalty for the breach of such laws, 



1 See p. 83, ante. 

2 See chap. iii. 

3 



See especially the Companies Clauses Consolidation Act, 1845, 



90 THE SOVEREIGNTY OF PARLIAMENT 

Part I. 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 dis- 
cover to his own cost who, when he travels by rail 
from Oxford to Paddington, deliberately violates a 
bye-law duly made by the Great Western Railway 
Company. 

But though an English railway company is 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, 
i.e. by the company. The company, if we may 
apply to it the terms of constitutional law, is not 
a constituent, but is within certain limits a legislative 
assembly ; and these limits are fixed by the constitu- 
tion of the company. 

Thirdly. The Courts have the right to pronounce, 

(8 & 9 Viet. c. 20), sees. 103, 108-111. This Act is always embodied 
in the special Act constituting the company. Its enactments therefore 
form part of the constitution of a railway company. 



NON-SOVEREIGN LA W-MAKING BODIES 91 

and indeed are bound to pronounce, on the validity chapter 

of the company's bye-laws ; that is, upon the validity, 1_ 

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. The function 
of the Court is simply, upon any particular case 
coming before it which depends upon a bye-law made 
by a railway company, to decide for the purposes of 
that particular case whether the bye-law is or is not 
within the powers conferred by Act of Parliament 
upon the company ; that is to say, whether the bye- 
law is or is not valid, and to give judgment in the 
particular case according to the Court's view of the 
validity of the bye-law. It is worth while to examine 
with some care the mode in which English judges deal 
with the inquiry whether a particular bye -law is or is 
not within the powers given to the company by Act 
of Parliament, for to understand this point goes a 
good way towards understanding the exact way in 
which English or American Courts determine the 
constitutionality of Acts passed by a non- sovereign 
legislature. 

The London and North- Western Eailway 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 
" shillings, and shall, in addition, be liable to pay his 
" fare according to the class of carriage in which he is 
" travelling from the station where the train originally 



92 THE SOVEREIGNTY OF PARLIAMENT 

Part I. " started, unless he shows that he had no intention to 
" defraud." X, with the intention of defrauding the 
company, travelled in a first-class carriage instead of 
a second-class carriage for which his ticket was issued, 
and having been charged under the bye-law was con- 
victed in the penalty of ten shillings, and costs. On 
appeal by X, the Court determined that the bye-law 
was illegal and void as being repugnant to 8 Viet. 
c. 20, s. 103, or in effect to the terms of the Act 
incorporating the company. 1 

A bye-law of the South-Eastern Railway Company 
required that a passenger should deliver up his ticket 
to a servant of the company when required to do so, 
and that any person travelling without a ticket or 
failing or refusing to deliver up his ticket should be 
required to pay the fare from the station whence the 
train originally started to the end of his journey. X 
had a railway ticket enabling him to travel on 
the South - Eastern Eailway. Having to change 
trains and pass out of the company's station he 
was asked to show his ticket, and refused to do so, 
but without any fraudulent intention. He was 
summoned for breach of the bye-law, and convicted 
in the amount of the fare from the station whence 
the train started. The Queen's Bench Division 
held the conviction wrong; on the ground that the 

o o 

bye-law was for several reasons invalid, as not being 
authorised by the Act under which it purported to 
be made. 2 

Now in these instances, and in other cases where 

1 Dyson v. L. and N.-W. By. Co., 7 Q. B. D. 32. 

2 Saunders v. S.-K Ry. Co., 5 Q. B. D. 456. Compare Bentham 
v. Hoyle, 3 Q. B. D. 289, and L. B. and S. G. Ry. Co. v. Watson, 3 
C. P. D. 429 ; 4 C. P. D. (C. A.), 118. 



NON-SOVEREIGN LA W-MAKING BODIES 93 

the Courts pronounce upon the validity of a bye-law Chapter 
made by a body (e.g. a railway company or a 
School-board) having powers to make bye -laws 
enforceable by penalties, it is natural to say that 
the Courts pronounce the bye-laws valid or invalid. 
But this is not strictly the case. What the judges 
determine is not that a particular bye-law is invalid, 
for it is not the function of the Courts to repeal or 
annul the bye-laws made by railway companies, but 
that in a proceeding to recover a penalty from X for 
the breach of a bye-law judgment must be given on 
the basis of the particular bye-law being beyond the 
powers of the company, and therefore invalid. It 
may indeed be thought that the distinction between 
annulling a bye-law and determining a case upon 
the assumption of such bye-law being void is a dis- 
tinction without a difference. But this is not so. 
The distinction is not without importance even when 
dealing with the question whether X, who is alleged 
to have broken a bye -law made by a railway 
company, is liable to pay a fine ; it is of first-rate 
importance when the question before the Courts is 
one involving considerations of constitutional law, as 
for example when the Privy Council is called upon, as 
constantly happens, to determine cases which involve 
the validity or constitutionality of laws made by the 
Dominion Parliament or by one of the provincial 
Parliaments of Canada. The significance, however, 
of the distinction will become more apparent as we 
proceed with our subject ; the matter of consequence 
now is to notice the nature of the distinction, and to 
realise that when a Court in deciding a given case 
considers whether a bye-law is or is not valid, the 



94 THE SOVEREIGNTY OF PARLIAMENT 

Part I. Court does a different thing from affirming or annul- 
ling the bye-law itself. 

Council of (ii.) Legislative Council of British India. British 
India. India is governed by a Legislative Council having 
very wide powers of legislation. This Council, or as 
it is technically expressed, the " Governor-General in 
Council," can pass laws as important as any Acts 
passed by the British Parliament. But the authority 
of the Council in the way of law-making is as com- 
pletely subordinate to and as much dependent upon 
Acts of Parliament as is the power of the London and 
North- Western Railway Company to make bye-laws. 

The legislative powers of the Governor-General 
and his Council arise from definite Parliamentary 
enactments. 1 These Acts constitute what may be 
termed as regards the Legislative Council the con- 
stitution of India. Now observe, that under these 
Acts the Indian Council is in the strictest sense a 
non- sovereign legislative body, and this independ- 
ently of the fact that the laws or regulations made 
by the Governor-General in Council can be annulled 
or disallowed by the Crown ; and note that the posi- 
tion of the Council exhibits all the marks or notes of 
legislative subordination. 

First. The Council is bound by a large number of 
rules which cannot be changed by the Indian legisla- 
tive itself, and which can be changed by the superior 
power of the Imperial Parliament. 

Secondly. The Acts themselves from which the 

1 3 & 4 Will. IV. c. 85, ss. 45-48, 51, 52 ; 24 & 25 Viet. c. 67, 
ss. 16-25 ; 28 & 29 Viet. c. 17. 

The Indian Council is in some instances under Acts of Parliament, 
e.g. 24 & 25 Viet. c. 67 ; 28 & 29 Viet. c. 17 ; 32 & 33 Viet. c. 98, 
empowered to legislate for persons outside India. 



NON-SOVEREIGN LAW-MAKING BODIES 95 

Council derives its authority cannot be changed by chapter 

the Council, and hence in regard to the Indian L_ 

legislative body form a set of constitutional or fun- 
damental laws which, since they cannot be changed 
by the Council, stand in marked contrast with the 
laws or regulations which the Council is empowered 
to make. These fundamental rules contain, it must 
be added, a number of specific restrictions on the 
subjects with regard to which the Council may legis- 
late. 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 con- 
stitution 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. 1 

Thirdly. The Courts in India (or in any other 
part of the British Empire) may, when the occasion 
arises, pronounce upon the validity or constitutionality 
of laws made by the Indian Council. 

The Courts treat Acts passed by the Indian Council 
precisely in the same way in which the Queen's Bench 
Division treats the bye-laws of a railway company. 
No judge in India or elsewhere ever issues a decree 
which declares invalid, annuls, or makes void a 
law or regulation made by the Governor -General in 
Council. But when any particular case comes before 
the Courts, whether civil or criminal, in which the 
rights or liabilities of any party are affected by the 
legislation of the Indian Council, the Court may have 
to consider and determine with a view to the particular 
case whether such legislation was or was not within 

1 See 24 & 25 Viet. c. 67, s. 22. 



96 THE SOVEREIGNTY OF PARLIAMENT 

Part I. the legal powers of the Council, which is of course the 
same thing as adjudicating as regards the particular 
case in hand upon the validity or constitutionality 
of the legislation in question. Thus suppose that 
X is prosecuted for the breach of a law or regula- 
tion passed by the Council, and suppose the fact to 
be established past a doubt that X has broken this 
law. The Court before which the proceedings take 
place, which must obviously in the ordinary course 
of things be an Indian Court, may be called upon to 
consider whether the regulation which X has broken 
is within the powers given to the Indian Council by 
the Acts of Parliament making up the Indian con- 
stitution. If the law is within such powers, or, in 
other words, is constitutional, the Court will by giving 
judgment against X give full effect to the law, just 
as effect is given to the bye -law of a railway company 
by the tribunal before whom an offender is sued 
pronouncing judgment against him for the penalty. 
If, on the other hand, the Indian Court deem that 
the regulation is ultra vires or unconstitutional, they 
will refuse to give effect to it, and treat it as void by 
giving judgment for the defendant on the basis of 
the regulation being invalid or having no legal 
existence. On this point the Empress v. Surah l 
is most instructive. The details of the case are 
immaterial ; the noticeable thing is that the High 
Court held a particular legislative enactment of the 
Governor- General in Council to be in excess of the 
authority given to him by the Imperial Parliament 
and therefore invalid, and on this ground entertained 
an appeal from two prisoners which, if the enactment 

1 3 Ind. L. R (Calcutta Series), p. 63. 



NON-SOVEREIGN LA W-MAKING BODIES 97 

had been valid, the Court would admittedly have chapter 
been incompetent to entertain. The Privy Council, 



it is true, held on appeal l 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. To look 
at the same thing from another point of view, the 
Courts in India treat the legislation of the Governor- 
General in Council in a way utterly different from 
that in which any English Court can treat the Acts 
of the Imperial Parliament. An Indian tribunal 
may be called upon to say that an Act passed by 
the Governor-General need not be obeyed because it 
is unconstitutional or void. No British Court can 
give judgment, or ever does give judgment, that an 
Act of Parliament need not be obeyed because it 
is unconstitutional. Here, in short, we have the 
essential difference between subordinate and sovereign 
legislative power. 2 

(iii.) English Colonies with Representative Govern- English 
ments. Many English colonies, and notably Victoria cc 
(to which country our attention had best for the 
sake of clearness be confined), possess represent- 
ative assemblies which occupy a somewhat peculiar 
position. 

The Victorian Parliament exercises throughout 
the colony 3 all the ordinary , powers of a sovereign 

1 Reg. v. Burah, 3 App. Gas. 889. 

2 See especially Empress v. Burah and Book Singh, 3 Ind. L. R. 
(Calcutta Series, 1878), 63, 86-89, for the judgment of Markby J. 

3 No colonial legislature has as such any authority beyond the 
territorial limits of the colony. This forms a considerable restriction 

H 



98 THE SOVEREIGNTY OF PARLIAMENT 

Parti, assembly such as the Parliament of Great Britain. 
Powers It makes and repeals laws, it puts Ministries in power 
by e coT e niai an( l dismisses them from office, it controls the general 
policy of the Government, and generally makes its 
will felt in the transaction of affairs after the manner 
of the Parliament at Westminster. An ordinary 
observer would, if he looked merely at the everyday 
proceedings of the legislature which meets at Mel- 
bourne, have no reason to pronounce it a whit less 
powerful within its sphere than the Parliament of 
Great Britain. No doubt the assent of the Governor 
is needed in order to turn colonial Bills into laws : 
and further investigation would show our inquirer 
that for the validity of any colonial Act there is 
required, in addition to the assent of the Governor, 
the sanction, either express or implied, of the Crown. 
But these assents are constantly given almost as a 
matter of course, and may be compared (though not 
with absolute correctness) to the Crown's so-called 
" veto " or right of refusing assent to Bills which have 
passed through the Houses of Parliament. 
Limit to Yet for all this, when the matter is further looked 

into, the Victorian Parliament (together with other 
colonial legislatures) will be found to be a non- 

on the powers of a colonial Parliament. Acts, for example, passed by the 
legislatures of Victoria and of New South Wales, to ensure the mutual 
extradition of criminals, would be ultra vires, and would be treated as 
invalid by any court in the British dominions. A great part of the 
Imperial legislation for the colonies arises from the Acts of colonial 
legislatures having, unless given extended operation by some Imperial 
statute, no effect beyond the limits of the colony. 

In various instances Imperial Acts have given extended power of 
legislation to colonial legislatures. Of such Acts the Copyright Act, 
1886, is an example, and sometimes extra-territorial effect is given to 
colonial legislation by orders in Council authorised by a statute of the 
United Kingdom. See the Extradition Act, 1870. 



NON-SOVEREIGN LA W-MAKING BODIES 99 

sovereign legislative body, and bears decisive marks Chapter 

of legislative subordination. The action of the Vic- !_ 

torian Parliament is restrained by laws which it 
cannot change, and are changeable only by the 
Imperial Parliament ; and further, Victorian Acts, 
even when assented to by the Crown, are liable to be 
treated by the Courts in Victoria and elsewhere 
throughout the British dominions as void or uncon- 
stitutional, on the ground of their coming into conflict 
with laws of the Imperial Parliament, which the Vic- 
torian 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 is worth some little 
examination, both for its own sake and for the 
sake of the light it throws on the sovereignty of 
Parliament. 

The charter of colonial legislative independence 
is "an Act to remove doubts as to the validity 
of colonial laws," known as the " Colonial Laws Act, 
1865." 

This statute seems (oddly enough) to have passed colonial 
through Parliament without discussion ; but it per- 
manently defines and extends the authority of colonial 
legislatures, and its main provisions are of such im- 
portance as to deserve verbal citation : 

" Sec. 2. Any colonial law which is or shall be in 
" any respect repugnant to the provisions of any Act 
" of Parliament extending .to the colony to which 
" such law may relate, or repugnant to any order or 
" regulation made under authority of such Act of Par- 
" liament, or having in the colony the force and effect 
" of such Act, shall be read subject to such Act, order, 



ioo THE SOVEREIGNTY OF PARLIAMENT 

Parti. " or regulation, and shall, to the extent of such repug- 
" nancy, but not otherwise, be and remain absolutely 
" void and inoperative. 

" 3. No colonial law shall be or be deemed to 
" have been void or inoperative on the ground of 
" repugnancy to the law of England, unless the same 
" shall be repugnant to the provisions of some such 
" Act of Parliament, order, or regulation as aforesaid. 

"4. No colonial law, passed with the concurrence 
" of or assented to by the Governor of any colony, or 
" to be hereafter so passed or assented to, shall be or be 
" deemed to have been void or inoperative, by reason 
" only of any instructions with reference to such law 
" or the subject thereof which may have been given to 
" such Governor by or on behalf of Her Majesty, by any 
" instrument other than the letters-patent or instru- 
" ment authorising such Governor to concur in passing 
" or to assent to laws for the peace, order, and good 
" government of such colony, even though such in- 
" structions may be referred to in such letters-patent 
" or last-mentioned instrument. 

" 5. Every colonial legislature shall have, and be 
" deemed at all times to have had, full power within 
" its jurisdiction to establish courts of judicature, and 
" to abolish and reconstitute the same, and to alter the 
" constitution thereof, and to make provision for the 
" administration of justice therein; and every 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 respect- 
" ing the constitution, powers, and procedure of such 
" legislature ; provided that such laws shall have been 
" passed in such manner and form as may from time 



NON-SO VEREIGN LA W-MAKING BODIES i o i 

" to time be required by any Act of Parliament, letters- Chapter 

" patent, order in council, or colonial law for the time L_ 

" being in force in the said colony." l 

The importance, it is true, of the Colonial Laws 
Act, 1865, may well be either exaggerated or under- 
rated. The statute is in one sense less important than 
it at first sight appears, because the principles laid 
down therein were, before its passing, assumed to be 
good law and to govern the validity of colonial legis- 
lation. From another point of view the Act is of the 
highest importance, because it determines, and gives 
legislative authority to, principles which had never 
before been accurately defined, and had been occa- 
sionally 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. 

The Victorian Parliament may make laws opposed 
to the English common law, and such laws (on receiving 
the required assents) are perfectly valid. 

Thus a Victorian Act which changed the common 
law rules as to the descent of property, which gave 
the Governor authority to forbid public meetings, or 
which abolished trial by jury, might be inexpedient 
or unjust, but would be a perfectly valid ]aw, and 
would be recognised as such by every tribunal through- 
out the British Empire. 2 

The Victorian Parliament, on the other hand, 
cannot make any laws inconsistent with any Act of 
Parliament, or with any part of an Act of Parlia- 

1 28 & 29 Viet. c. 63, ss. 2-5. 

2 Assuming of course that such Acts are not inconsistent with any 
imperial statute applying to Victoria, 



102 THE SOVEREIGNTY OF PARLIAMENT 

Part I. ment, intended by the Imperial Parliament to apply 
to Victoria. 

Suppose, for example, that the British Parliament 
were to pass an Act providing a special mode of trial 
in Victoria for particular classes of offences committed 
there, no enactment of the colonial Parliament, which 
provided that such offences should be tried otherwise 
than as directed by the imperial statute, would be of 
any legal effect. So again, no Victorian Act would 
be valid that legalised the slave trade in the face 
of 5 Geo. IV, c. 113, which prohibits slave trading 
throughout the British dominions ; nor would Acts 
passed by the Victorian Parliament be valid which 
repealed, or invalidated, several provisions of the 
Merchant Shipping Acts meant to apply to the 
colonies, or which deprived a discharge under the 
English Bankruptcy Act of the effect which, in virtue 
of the imperial statute, it has as a release from 
debts contracted in any part whatever of the British 
dominions. No colonial legislature, in short, can 
override imperial legislation which is intended to 
apply to the colonies. Whether the intention be 
expressed in so many words, or be apparent only 
from the general scope and nature of the enactment, 
is immaterial. Once establish that an imperial law 
is intended to apply to Victoria, and the conse- 
quence follows that any Victorian enactment which 
contravenes that law is invalid and unconstitutional. 1 

Hence the Courts in Victoria, as also in the rest 
of the British dominions, may be called upon to 

1 See Tarring, Law Relating to the Colonies, pp. 79-86, for a list of 
imperial statutes which relate to the colonies in general, and which 
therefore no colonial legislation can contravene. 



NON-SOVEREIGN LAW-MAKING BODIES 103 

adjudicate upon the validity or constitutionality of Chapter 
any Act of the Victorian Parliament. For if a _ _ 
Victorian law really contradicts the provisions of an ^j^iai 
Act of Parliament extending to Victoria, no Court legislature 

. . mayoepro- 

throughout the British dominions could legally, it is 



clear, give effect to the Victorian enactment. This Courts. 
is an inevitable result of the legislative sovereignty 
exercised by the Imperial Parliament. In the sup- 
posed case the Victorian Parliament commands the 
judges to act in a particular manner, and the Imperial 
Parliament commands them to act in another manner. 
Of these two commands the order of the Imperial 
Parliament is the one which must be obeyed. This 
is the very meaning of Parliamentary sovereignty. 
Whenever, therefore, it is alleged that any enactment 
of the Victorian Parliament is repugnant to the pro- 
visions of any Act of Parliament extending to the 
colony, the tribunal before which the objection is 
raised must pronounce upon the validity or constitu- 
tionality of the colonial law. 1 

The constitution of Victoria is created by and Colonial 

Parlia- 

depends upon the Act of Parliament 1 8 & 1 9 Viet, ment may 
c. 55. One might therefore expect that the Victorian 



Parliament would exhibit that " mark of subordina- f s ^,. 

legislative 

tion " 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 dis- 
tinction between ordinary laws which the legislature 
can change and laws of the constitution which it can- 
not change, at any rate when acting in its ordinary 
legislative character. 

1 See Powell v. Apollo Candle Co., 10 App. Cas. 282 ; Hodge v. The 
Queen, 9 App. Cas. 117. 



104 THE SO VEREIGNTY OF PARLIAMENT 

Part I. But this anticipation is hardly borne out by an 
examination into the Acts creating the Victorian 
constitution. A comparison of the Colonial Laws 
Act, 1865, s. 5, with 18 & 19 Viet. c. 55, Sched. I. 
sect. 60, shows that the Parliament of Victoria can 
change the articles of the constitution. This power, 
derived as it is from an imperial statute, is of course in 
no way inconsistent with the legal sovereignty of the 
Imperial Parliament. Though, further, a Victorian 
law may alter the articles of the constitution, that 
law must in some cases be passed in a manner different 
from the mode in which other laws are passed. The 
Victorian constitution does contain a faint recognition 
of the difference between fundamental and other laws. 
Still the recognition is so very faint that one may 
fairly assert that the Victorian Parliament (in common 
with many other colonial legislative assemblies) is, 
though a subordinate, yet at once a legislative and 
a constituent assembly. 1 It is a "subordinate" 
assembly because its powers are limited by the legis- 
lation of the Imperial Parliament ; it is a " con- 
stituent" assembly since it can change the articles 
of the Victorian constitution. 
Reason of The authority of the Victorian Parliament to 

this. . 

change the articles of the Victorian constitution is 
from several points of view worth notice. 

We have here a decisive proof that there is no 
necessary connection between the written character 
and the immutability of a constitution. The Vic- 
torian constitution is to be found in a written docu- 
ment ; it is a statutory enactment. Yet the articles 
of this constitutional statute can be changed by the 

1 See p. 83, ante. 



NON-SO VEREIGN LA W-MAKING BODIES 105 

Parliament which it creates, and changed almost, Chapter 

though not absolutely, in the same manner as any 1_ 

other law. This may seem an obvious matter enough, 
but writers of eminence so often use language which 
implies or suggests that the character of a law is 
changed by its being expressed in the form of a 
statute as to make it worth while noting that a 
statutory constitution need not be in any sense an 
immutable 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 be- 
tween fundamental and non-fundamental laws which 
runs through almost all the constitutions not only of 
the Continent but also of America. The explanation 
appears to be that in England we have long been 
accustomed to consider Parliament as capable of 
changing one kind of law with as much ease as 
another. Hence when English statesmen gave Par- 
liamentary government to the colonies, they almost 
as a matter of course bestowed upon colonial legis- 
latures authority to deal with every law, whether 
constitutional or not, which affected the colony, sub- 
ject of cotirse to the proviso, rather implied than ex- 
pressed, that this power should not be used in a way 
inconsistent with the supremacy of the British Parlia- 
ment. The colonial legislatures, in short, are within 
their own sphere copies of the Imperial Parliament. 
They are within their own sphere sovereign bodies ; but 
their freedom of action is controlled by their sub- 
ordination to the Parliament of the United Kingdom. 

The question may naturally be asked how the 



io6 THE SOVEREIGNTY OF PARLIAMENT 

Part I. large amount of colonial liberty conceded to countries 

HOW ecu- like Victoria has been legally reconciled with Im- 

between perial sovereignty ? 

IncUoion The inquiry lies a little outside our subject, but is 

iai legisia- no t re ally foreign to it. and well deserves an answer. 

tion J fe 

avoided. Nor is the reply hard to find if we keep in mind the 
true nature of the difficulty which needs explanation. 

The problem is not to determine what are the 
means by which the English government keeps the 
colonies in subjection, or maintains the political 
sovereignty of Great Britain. This is a matter of 
politics with which this book has no concern. 

The question to be answered is how (assuming the 
law to be obeyed throughout the whole of the British 
Empire) colonial legislative freedom is made com- 
patible with the legislative sovereignty of Parliament ? 
How are the British Parliament and the colonial legis- 
latures prevented from encroaching on each other's 
spheres ? 

No one will think this inquiry needless who 
remarks that in confederations, such as the United 
States, or the Canadian Dominion, the Courts are con- 
stantly occupied in determining the boundaries which 
divide the legislative authority of the Central Govern- 
ment from that of the State Legislatures. 

Conflicts The assertion may sound paradoxical, but is never- 

averted by,, ., 

(L)suprem- tneless strictly true, that the acknowledged legal 

British supremacy of Parliament is one main cause of 
ment ia - ^ e w ^ e power of legislation allowed to colonial 
assemblies. 

The constitutions of the colonies depend directly 
or indirectly upon imperial statutes. No lawyer 
questions that Parliament could legally abolish any 



NON-SOVEREIGN LA W- MAKING BODIES 107 

colonial constitution, or that Parliament can at any chapter 

Tj 

moment legislate for the colonies and repeal or over- !_ 

ride any colonial law whatever. Parliament moreover 
constantly does pass Acts affecting the colonies, and 
the colonial, 1 no less than the English, Courts com- 
pletely admit the principle that a statute of the 
Imperial Parliament binds any part of the British 
dominions to which the statute is meant to apply. 
But when once this is admitted, it becomes obvious 
that there is little necessity for defining or limiting 
the sphere of colonial legislation. If an Act of the 
Victorian Parliament contravenes an imperial statute, 
it is for legal purposes void ; and if an Act of the 
Victorian Parliament, though not infringing upon any 
statute, is so opposed to the interests of the Empire 
that it ought not to be passed, the British Parliament 
may render the Act of no effect by means of an 
imperial statute. 

This course however is rarely, if ever, necessary ; (u.) right 
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 right to refuse assent to bills which 
have passed through the Houses of Parliament is 
practically obsolete. 2 The power of the Crown to 

1 See Todd, Parliamentary Government, pp. 168-192. 

2 This statement has been questioned see Hearn (2d ed.), p. 63 
but is, it is submitted, correct. The so-called "veto" has never 
been employed as regards any public bill since the accession of 
the House of Hanover. When George the Third wished to stop the 
passing of the celebrated India Bill, he abstained from using the Crown's 
right to dissent from proposed legislation, but availed himself of his 
influence in the House of Lords to procure the rejection of the measure. 
No stronger proof could be given that the right of veto was more than 



io8 THE SOVEREIGNTY OF PARLIAMENT 

Parti, 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 fre- 
quently exercised. 

This check on colonial legislation is exerted in 
two different manners. 1 

a century ago already obsolete. But the statement that a power is 
practically obsolete does not involve the assertion that it could under 
no conceivable circumstances be revived. On the whole subject of the 
veto, and the different senses in which the expression is used, the 
reader should consult an excellent article by Professor Orelli of Zurich, 
to be found under the word " Veto " in Encyclopedia Britannica (9th 
ed.), xxiv. p. 208. 

1 The mode in which the power to ' veto colonial legislation is 
exercised may be best understood from the following extract from the 
Rules and Regulations printed by the Colonial Office : 

RULES AND REGULATIONS 
CHAPTER III 

1. Legislative Councils and Assemblies 

48. In every colony the Governor has authority either to give or to withhold 
his assent to laws passed' by the other branches or members of the Legislature, 
and until that assent is given no such law is valid or binding. 

49. Laws are in some cases passed with suspending clauses ; that is, although 
assented to by the Governor they do not come into operation or take effect in the 
colony until they shall have been specially confirmed by Her Majesty, and in 
other cases Parliament has for the same purpose empowered the Governor to 
reserve laws for the Crown's assent, instead of himself assenting or refusing his 
assent to them. 

50. Every law which has received the Governor's assent (unless it contains a 
suspending clause) comes into operation immediately, or at the time specified in 
the law itself. But the Crown retains power .to disallow the law ; and if such 
power be exercised . . . the law ceases to have operation from the date at which 
such disallowance is published in the colony. 

51. In colonies having representative assemblies the disallowance of any law, 
or the Crown's assent to a reserved bill, is signified by order in council. The 
confirmation of an Act passed with a suspending clause, is not signified by 
order in council unless this mode of confirmation is required by the terms of the 
suspending clause itself, or by some special provision in the constitution of the 
colony. 

52. In Crown colonies the allowance or disallowance of any law is generally 
signified by despatch. 

53. In some cases a period is limited, after the expiration of which local 
enactments, though not actually disallowed, cease to have the authority of law in 
the colony, unless before the lapse of that time Her Majesty's confirmation of 
them shall have been signified there ; but the general rule is otherwise. 

54. In colonies possessing representative assemblies, laws purport to be made 
by the Queen or by the Governor on Her Majesty's behalf or sometimes by the 



NON-SOVEREIGN LA W-MAKING BODIES 109 

The Governor of a colony, say Victoria, may Chapter 
directly refuse his assent to a bill passed by both 



Houses of the Victorian Parliament. In this case the 
bill is finally lost, just as would be a bill which had exercised - 
been rejected by the colonial council, or as would be 
a bill passed by the English Houses of Parliament if 
the Crown were to exert the obsolete prerogative of 

Governor alone, omitting any express reference to Her Majesty, with the advice 
and consent of the council and assembly. They are almost invariably designated 
as Acts. In colonies not having such assemblies, laws are designated as ordin- 
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). 

55. In West Indian Islands or African settlements which form part of any 
general government, every bill or draft ordinance must be submitted to the 
Governor-in-Chief before it receives the assent of the lieutenant-governor or 
administrator. If the Governor-in-Chief shall consider any amendment indispens- 
able, he may either require that amendment to be made before the law is brought 
into operation, or he may authorise the officer administering to assent to the bill 
or draft on the express engagement of the legislature to give effect to the Governor - 
in-Chief's recommendation by a supplementary enactment. 

The " veto," it will be perceived, may be exercised by one of two 
essentially different methods : first, by the refusal of the Governor's 
assent ; secondly, by the exercise of the royal power to disallow laws 
even when assented to by the Governor. As further, the Governor may 
reserve bills for the royal consideration, and as colonial laws are some- 
times passed containing a clause which suspends their operation until 
the signification of the royal assent, the check on colonial legislation 
may be exercised in four different forms 

(1) The refusal of the Governor's assent to a bill. 

(2) Eeservation of a bill for the consideration of the Crown, 

followed by the refusal of the royal assent. 

(3) The insertion in a bill of a clause preventing it from coming 

into operation until the signification of the royal assent thereto, 
and the want of such royal assent. 

(4) The disallowance by the Crown of a law passed by the Colonial 

Parliament with the assent of the Governor. 

The reader should note, however, the essential difference between 
the three first modes and the fourth mode of checking colonial legislation. 
Under the three first a 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 dis- 
allowed by the Crown from the date of such disallowance. In the 
case of more than one colony, such disallowance must, under the Con- 
stitution Act or letters-patent, be signified within two years. See the 
British North America Act, 1867, sec. 56. 



1 10 THE SO VEREIGNTY OF PARLIAMENT 

Part I. refusing the royal assent. The Governor, again, may, 
without refusing his assent, reserve the bill for the 
consideration of the Crown. In such case the bill 
does not come into force until it has received the 
royal assent, which is in effect the assent of the 
English Ministry, and therefore indirectly of the 
Imperial Parliament. 

The Governor, on the other hand, may, as repre- 
senting the Crown, give his assent to a Victorian bill. 
The bill thereupon comes into force throughout Vic- 
toria. But such a bill, though for a time a valid Act, 
is not finally made law even in Victoria, since the 
Crown may, after the Governor's assent has been 
given, disallow the colonial Act. The case is thus put 
by Mr. Todd : " Although a governor as representing 
" the Crown is empowered to give the royal assent to 
" bills, this act is not final and conclusive ; the Crown 
" itself having, in point of fact, a second veto. All 
" statutes assented to by the governor of a colony go 
" into force immediately, unless they contain a clause 
" suspending their operation until the issue of a procla- 
" mation of approval by the queen in council, or some 
" other specific provision to the contrary ; but the 
" governor is required to transmit a copy thereof to the 
" secretary of state for the colonies ; and the queen in 
" council may, within two years after the receipt of 
" the same, disallow any such Act." 1 

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 im- 
perial interests to be negatived can, though passed by 

1 Todd, Parliamentary Government in the British Colonies, p. 137. 



NON-SO VEREIGN LA W-MAKING BODIES 1 1 1 

the Victorian or other colonial legislature, come finally chapter 

into force. The home government is certain to '_ 

negative or disallow any colonial law which either 
in letter, or in spirit, is repugnant to Parliamentary 
legislation, and a large number of Acts can be given 
which on one ground or another have been either 
not assented to or disallowed by the Crown. In 
1868 the Crown refused assent to a Canadian Act re- 
ducing the salary of the Governor-General. 1 In 1872 
the Crown refused assent to a Canadian Copyright 
Act because certain parts of it conflicted with imperial 
legislation. In 1873 a Canadian Act was disallowed 
as being contrary to the express terms of the British 
North America Act, 1868 ; and on similar grounds in 
1878 a Canadian Shipping Act was disallowed. 2 So 
again the Crown has in effect passed a veto upon 
Australian Acts for checking Chinese immigration. 
And Acts passed by colonial legislatures, allowing 
divorce on the ground of the husband's adultery arid 
legalising marriage with a deceased wife's sister, have 
(though not consistently with the general tenor of 
our colonial policy) been disallowed by the Crown, 
that is, in effect by the home government. 

The general answer therefore to the inquiry, how 
colonial liberty of legislation is made legally recon- 
cilable with imperial sovereignty, is that the complete 
recognition of the supremacy of Parliament obviates 
the necessity for carefully limiting the authority of 
colonial legislatures, and that the home government, 
who in effect represent Parliament, retain by the use 
of the Crown's veto the power of preventing the 
occurrence of conflicts between colonial and imperial 

1 See Todd, p. 144. 2 Ibid., pp. 147, 150. 



112 



Part I. laws. To tins it must be added that imperial treaties 
legally bind the colonies, and that the "treaty-making 
power," to use an American expression, resides in the 
Crown, and is therefore exercised by the home govern- 
ment in accordance with the wishes of the Houses of 
Parliament, or more strictly of the House of Commons ; 
whilst the authority to make treaties is, except where 
expressly allowed by Act of Parliament, not possessed 
by any colonial government. 1 

It should, however, be observed that the legisla- 
ture of a self-governing colony is free to determine 
whether or not to pass laws necessary for giving effect 
to a treaty entered into between* the imperial govern- 
ment and a foreign power ; and further, that there 
might in practice be great difficulty in enforcing 
within the limits of a colony the terms of a treaty, 
e.g. as to the extradition of criminals, to which 
colonial sentiment was opposed. But this does not 
affect the principle of law that a colony is bound by 
treaties made by the imperial government, and does 
not, unless under some special provision of an Act of 
Parliament, possess authority to make treaties with 
any foreign power. 

Policy of Any one who wishes justly to appreciate the 
goS- 1 nature and the extent of the control exerted by Great 
mentnot Britain over colonial legislation should keep two 

to interfere 

with action points carefully in mind. The tendency, in the first 

of colonies. r . J . . 

place, of the imperial government is as a matter of 
policy to interfere less and less with the action of the 
colonies, whether in the way of law-making or other- 
wise. Colonial Acts, in the second place, even when 

1 See Todd, Parliamentary Government in the [British Colonies, pp. 
192-218. 



NON-SO VEREIGN LA W-MAKING BODIES 1 1 3 

finally assented to by the Crown, are, as already chapter 
pointed out, invalid if repugnant to an Act of Parlia- n 
ment applying to the colony. The imperial policy 
therefore of non-intervention in the local affairs of 
British dependencies combines with the supreme 
legislative authority of the Imperial Parliament to 
render encroachments by the British Parliament on 
the sphere of colonial legislation, or by colonial 
Parliaments on the domain of imperial legislation, of 
rare occurrence. 1 

II. Foreign Non-sovereign Legislatures. 

We perceive without difficulty that the Parlia- Non- 
ments of even those colonies, such as the Dominion ic^iatures 
of Canada, which are most nearly independent states, pendent 
are not in reality sovereign legislatures. This is nations - 
easily seen, because the sovereign Parliament of 
Great Britain, which legislates for the whole British 
Empire, is visible in the background, and because the 
colonies, however large their practical freedom of 
action, do not act as independent powers in relation 
to foreign states ; the Parliament of a dependency 
cannot itself be a sovereign body. It is harder for 
Englishmen to realise that the legislative assembly 
of an independent nation may not be a sovereign 
assembly. Our political habits of thought indeed are 
so based upon the assumption of Parliamentary om- 
nipotence, 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 ex- 
ceptional or anomalous. Yet whoever examines the 

1 See note 3, p. 97, ante. 
I 



U4 THE SOVEREIGNTY OF PARLIAMENT 

Part i. constitutions of civilised countries, will find that the 
legislative assemblies of great nations are, or have 
been, in many cases legislative without being con- 
stituent bodies. To determine in any given case 
whether a foreign legislature be a sovereign power or 
not we must examine the constitution of the state to 
which it belongs, and ascertain whether the legislature 
whose position is in question bears any of the marks of 
subordination. Such an investigation will in many or in 
most instances show that an apparently sovereign as- 
sembly is in reality a non-sovereign law-making body. 
France. France has within the last hundred years made 

trial of at least twelve constitutions. 1 

These various forms of government have, amidst 
all their differences, possessed in general one common 
feature. They have most of them been based upon 
the recognition of an essential distinction between 
constitutional or " fundamental " laws intended to 
be either immutable or changeable only with great 
difficulty, and "ordinary" laws which could be 
changed by the ordinary legislature in the common 
course of legislation. Hence under the constitutions 
which France has from time to time adopted the 
common Parliament or legislative body has not been 
a sovereign legislature. 

Constitu- The constitutional monarchy of Louis Philippe, in 

monarchy u t war( l appearance at least, was modelled on the 

Phiir^e 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 

1 Demombynes, Les Constitutions EuropJennes, ii. (2d ed.), pp. 
1-5. See Appendix, Note 1, Kigidity of French Constitutions. 



NON-SO VERE1GN LA W-MAKING BODIES 1 1 5 

would seem certainly arguable that under the Orleans Chapter 

dynasty the Parliament was possessed of sovereignty. '_ 

This, however, was not the view accepted among French 
lawyers. The " immutability of the Constitution of 
" France," writes De 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 ; where, then, could they take their 
" stand to effect a change in its provisions ? The alter- 
" native is clear : either their efforts are powerless 
" against the Charter, which continues to exist in spite 
" of them, in which case they only reign in the name 
" of the Charter ; or they succeed in changing the 
" Charter, and then the law by which they existed 
" being annulled, they themselves cease to exist. By 
" destroying the Charter, they destroy themselves. 
" This is much more evident in the laws of 1830 than 
" in those of 1814. In 1814 the royal prerogative 
" took its stand above and beyond the Constitution ; 
" but in 1830 it was avowedly created by, and de- 
" pendent on, the 'Constitution. A part, therefore, of 
" the French Constitution is immutable, because it is 
" united to the destiny of a family ; and the body of 
" the Constitution is equally immutable, because there 
" appear to be no legal means of changing it. These 
" remarks are not applicable to England. That country 
" having no written Constitution, who can assert when 
" its Constitution is changed ? " * 

1 De Tocqueville, Democracy in America, ii. (translation), App. pp. 
322, 323. (Euvres Completes, i. p. 311. 



u6 THE SOVEREIGNTY OF PARLIAMENT 

Parti. De Tocqueville's reasoning 1 may not carry con- 
viction to an Englishman, but the weakness of his 
argument is of itself strong evidence of the influence 
of the hold on French opinion of the doctrine which 
it is intended to support, namely, that Parliamentary 
sovereignty was not a recognised part of French con- 
stitutionalism. The dogma which is so naturally 
assented to by Englishmen contradicts that idea of 
the essential difference between constitutional and 
other laws which appears to have a firm hold on most 
foreign statesmen and legislators. 

Republic of The Republic of 1848 expressly recognised this 
distinction ; no single article of the constitution pro- 
claimed on 4th November 1848 could be changed in 
the same way as an ordinary law. The legislative 
assembly sat for three years. In the last year of its 
existence, and then only, it could by a majority of 
three-fourths, and not otherwise, convoke a constituent 
body with authority to modify the constitution. This 
constituent and sovereign assembly differed in num- 
bers, and otherwise, from the ordinary non-sovereign 
legislature. 

Present The National Assembly of the existing Republic 

>hc ' exerts more direct authority than the English Houses 
of Parliament ; for the French Chamber of Deputies 
exercises more immediate influence on the appoint- 
ment of Ministers, and assumes a larger share in the 
executive functions of government, than does our 
House of Commons. The President, moreover, does 
not possess even a theoretical right of veto. For all 

1 His view is certainly paradoxical, for as a matter of fact one 
provision of the Charter, namely, art. 23, regulating the appointment of 
Peers, was changed by the ordinary process of legislation. See Law of 
29th December 1831, Helie, Les Constitutions de la France, p. 1006. 



NON-SO VE REIGN LA W-MAKING BODIES 1 1 7 

this, however, the French Parliament is not .a sove- chapter 
reign assembly, but is bound by the laws of the 
constitution in a way in which no law binds our 
Parliament. The articles of the constitution, or 
"fundamental laws," stand in a totally different 
position from the ordinary law of the land. Under 
article 8 of the constitution, no one of these funda- 
mental enactments can be legally changed otherwise 
than subject to the following provisions : 

"8. Les Chambres auront le droit, par delibera- 
" tions separees, prises dans chacune a la majorite 
" absolue des voix, soit spontanement, soit sur la 
" demande du President de la Republique, de declarer 
" qu'il y a lieu de reviser les lois constitutionnelles. 
" Apres que chacune des deux Chambres aura pris 
" cette resolution, elles se reuniront en Assemblee 
" nationale pour proceder a la revision. Les de- 
" liberations portant revision des lois constitution- 
" nelles, en tout ou en partie, devront etre prises a la 
" majorite absolue des membres composant I Assemblee 
" nationale." * 

Supreme legislative power is therefore under the 
Republic vested not in the ordinary Parliament of 
two Chambers, but in a " national assembly," or con- 
gress, composed of the Chamber of Deputies and the 
Senate sitting together. 

The various constitutions, in short, of France, Distinction 
which are in this respect fair types of continental 
polities, 2 exhibit, as compared with the expansiveness or 

tions. 

1 Plouard, Les Constitutions Fran$aises, p. 280. See La Constitution 

Frangaise de 1875, par MM. Alphonse Bard et Robiquet (2d ed.), 
p. 374. 

2 No constitution better merits study in this as in other respects 
than the constitution of Belgium. Though formed after the English 



constitu- 
tions. 



118 THE SOVEREIGNTY OF PARLIAMENT 

Part I. " flexibility " of English institutions, that characteristic 
which may be conveniently described as " rigidity." l 
And here it is worth while, with a view to under- 
standing the constitution of our own country, to make 
perfectly clear to ourselves the distinction already 
referred to between a " flexible " and a " rigid " con- 
stitution. 

Flexible A " flexible " constitution is one under which every 

law 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- 
tion consists in the right of the Crown and the two 
Houses to modify or repeal any law whatever ; they 
can alter the succession to the Crown or repeal the 
Acts of Union in the same manner in which they 
can pass an Act enabling a company to make a new 
railway from Oxford to London. With us, laws there- 
fore are called constitutional, because they refer to sub- 
jects supposed to affect the fundamental institutions of 
the state, and not because they are legally more sacred 
or difficult to change than other laws. And as a matter 
of fact, the meaning of the word " constitutional " is 
in England so vague that the term " a constitutional 
law or enactment" is rarely applied to any English 
statute as giving a definite description of its character. 
A "rigid" constitution is one under which certain 

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 fo? changing a particular constitutional provision, and having 
done so is ipso facto dissolved (aprks cette declaration les deux chambres 
sont dissoutes de plein droit}. The new Parliament thereupon elected 
has a right to change the constitutional article which has been declared 
subject to change (Constitution de La Belgique, Arts. 131, 71). 
1 See Appendix, Note 1, Rigidity of French Constitutions. 



NON-SO VE REIGN LA W-MAKING BODIES \ 19 

laws generally known as constitutional or fundamental chapter 
laws cannot be changed in the same manner as 
ordinary laws. The " rigidity " of the constitution, Ri gid con- 

J & J . stitutions. 

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- 
tutional or fundamental. Under a rigid constitution 
the term "constitutional" as applied to a law has a 
perfectly definite sense. It means that a particular 
enactment belongs to the articles of the constitution, 
and cannot be legally changed with the same ease and 
in the same manner as ordinary laws. The articles of 
the constitution will no doubt generally, though by no 
means invariably, be found to include all the most 
important and fundamental laws of the state. But it 
certainly cannot be asserted that where a constitution 
is rigid all its articles refer to matters of supreme 
importance. The rule that the French Parliament 
must meet at Versailles was at one time one of the 
constitutional laws of the French Kepublic. Such 
an enactment, however practically important, would 
never in virtue of its own character have been termed 
constitutional ; it was constitutional simply because 
it was included in the articles of the constitution. 1 

1 The terms " flexible " and " rigid " (originally suggested by my 
friend, Mr. Bryce) are, it should be remarked, used throughout this 
work without any connotation either of praise or of blame. The 
flexibility and expansiveness of the English constitution, or the rigidity 
and immutability of, e.g., the constitution of the United States, may 
each be qualities which according to the judgment of different critics 
deserve either admiration or censure. With such judgments this 
treatise has no concern. My whole aim is to make clear to my readers 
the exact difference between a flexible and a rigid constitution. It is 
not my object to pronounce any opinion on the question whether the 
flexibility or rigidity of a given polity be a merit or a defect. 



120 THE SOVEREIGNTY OF PARLIAMENT 

Part I. The contrast between the flexibility of the English 
and the rigidity of almost every foreign constitution 
suggests two interesting inquiries. 

whether First. Does the rigidity of a constitution secure 

const?tu- f its permanence and invest the fundamental institu- 
tion secures tions of the state with practical immutability ? 

perman- * * 

ence? To this inquiry historical experience gives an 

indecisive answer. 

In some instances the fact that certain laws or 
institutions of a state have been marked off as placed 
beyond the sphere of political controversy, has, ap- 
parently, prevented that process of gradual innovation 
which in England has, within not much more than 
sixty years, transformed our polity. The constitution 
of Belgium has existed for more than half a century ; 
the constitution of the United States will soon have 
endured for a hundred years ; neither of them has 
during its existence undergone one tithe of the 
changes which have been experienced by the constitu- 
tion of England since the death of George the Third. 
But if the inflexibility of constitutional laws has in 
certain instances checked the gradual and unconscious 
process of innovation by which the foundations of a 
commonwealth are undermined, the rigidity of 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 De Tocqueville pointed out that no 
power existed legally capable of altering the articles 
of the Charter. In one notorious instance at least 
and other examples of the same phenomenon might be 



NON-SO VE 'REIGN LA W-MAKING BODIES 1 2 1 

produced from the annals of revolutionary France chapter 
the immutability of the constitution was the ground 
or excuse for its violent subversion. The best plea for 
the Coup d'etat of 1851 was, that while the French 
people wished for the re-election of the President, the 
article of the constitution requiring a majority of 
three-fourths of the legislative assembly in order to 
alter the law which made the President's re-election 
impossible, thwarted the will of the sovereign people. 
Had the Eepublican Assembly been a sovereign Parlia- 
ment, 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 
December. 

Nor ought the perils in which France was involved 
by the immutability with which the statesmen of 
1848 invested the constitution to be looked upon as 
exceptional ; they arose from a defect which is in- 
herent in every rigid constitution. The endeavour to 
create laws which cannot be changed is an attempt to 
hamper the exercise of sovereign power ; it therefore 
tends to bring the letter of the law into conflict with 
the will of the really supreme power in the state. The 
majority of French electors were under the constitu- 
tion the true sovereign of France ; but the rule which 
prevented the legal re - election of the President in 
effect brought the law of the land into conflict with 
the will of the majority of the electors, and produced, 
therefore, as a rigid constitution has a natural ten- 
dency to produce, an opposition between the letter of 
the law and the wishes of the sovereign. If the 
inflexibility of French constitutions has provoked 
revolution, the flexibility of English institutions has, 



122 THE SOVEREIGNTY OF PARLIAMENT 

Part I. once at least, saved them from violent overthrow. To 
a student, who at this distance of time calmly studies 
the history of the first Keform Bill, it is apparent, that 
in 1832 the supreme legislative authority of Parlia- 
ment enabled the nation to carry through a political 
revolution 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, occa- 
sion or provoke revolution. 

what are Secondly. What are the safeguards which under a 
gutrd?" rigid constitution can be taken against unconstitu- 
againstun- tional legislation? 

constitu- 
tional The general answer to our inquiry (which of course 

legislation? _. TI -r. n i 

can have no application to a country like Jimglana, 
ruled by a sovereign Parliament) is that two methods 
may be, and have been, adopted by the makers of con- 
stitutions, with a view to rendering unconstitutional 
legislation, either impossible, or inoperative. 

Reliance may be placed upon the force of public 
opinion and upon the ingenious balancing of political 
powers for restraining the legislature from passing 
unconstitutional enactments. This system opposes 
unconstitutional legislation by means of moral sanc- 
tions, which resolve themselves into the influence of 
public sentiment. 

Authority, again, may be given to some person 
or body of persons, and preferably to the Courts, to 
adjudicate upon the constitutionality of legislative 
acts, and treat them as void if they are inconsistent 
with the letter or the spirit of the constitution. This 
system attempts not so much to prevent unconstitu- 
tional legislation as to render it harmless through the 



NON-SO VE REIGN LA W-MAKING BODIES 1 23 

intervention of the tribunals, and rests at bottom on Chapter 
the authority of the judges. IL 

This general account of the two methods by which 
it may be attempted to secure the rigidity of a consti- 
tution is hardly intelligible without further illustra- 
tion. Its meaning may be best understood by a 
comparison between the different policies in regard to 
the legislature pursued by two different classes of 
constitutionalists. 

French constitution-makers and their continental Safeguards 
followers have, as we have seen, always attached vital by conti- 
importance to the distinction between fundamental constitu- 
and other laws, and therefore have constantly tlonallsts - 
created legislative assemblies which possessed " legis- 
lative" without possessing "constituent" powers. 
French statesmen have therefore been forced to 
devise means for keeping the ordinary legislature 
within its appropriate sphere. Their mode of pro- 
cedure has been marked by a certain uniformity ; 
they have declared on the face of the constitution 
the exact limits imposed upon the authority of the 
legislature ; they have laid down as articles of the 
constitution whole bodies of maxims intended to 
guide and control the course of legislation : they 
have provided for the creation, by special methods 
and under special conditions, of a constituent body 
which alone should be entitled to revise the consti- 
tution. They have, in short, directed their attention 
to restraining the ordinary legislature from attempting 
any inroad upon the fundamental laws of the state ; 
but they have in general trusted to public sentiment, 1 

1 "Aucun des pouvoirs institutes par la constitution n'a le droit 
" de la changer dans son ensemble ni dans ses parties, sauf les r4formes 



124 THE SOVEREIGNTY OF PARLIAMENT 

Parti, or at any rate to political considerations, for in- 
ducing the legislature to respect the restraints im- 
posed on its authority, and have usually omitted to 
provide machinery for annulling unconstitutional 
enactments, or for rendering them of no effect. 

French These traits of French constitutionalism are spe- 

c i a lly noticeable in the three earliest of French political 



tions itU experiments. The Monarchical constitution of 1791, 
the Democratic constitution of 1793, the Directorial 
constitution of 1795 exhibit, under all their diversi- 
ties, two features in common. 1 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. 2 None of these 

" qui pourront y etre faites par la voie de la revision, conformement 
" aux dispositions du titre VII ci-dessus. 

" L' Assembles nationals constituante en remet le de"p6t a la 
" fidelite" du Corps legislatif, du Roi et des juges, a la vigilance des 
" peres de famille, aux epouses et aux meres, a 1'affection des jeunes 
" citoyens, au courage de tous les Frangais." Constitution de 1791, 
Tit. vii Art. 8. 

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. Under the Constitution of the Year VIII. the senate 
had authority to annul unconstitutional laws. But this was rather a 
veto on what in England we should call Bills than a power to make 
void laws duly enacted. See Constitution of Year VIII. Tit. ii. Arts. 
20, 28, Helie, Les Constitutions de la France, 579. 

1 See Appendix, Note 1, Rigidity of French Constitutions. 

2 See Constitution of 1795, Tit. xiii. Art. 338, Helie, Les Constitu- 
tions de la France, p. 463. 



NON-SOVEREIGN LAW-MAKING BODIES 125 

constitutions, on the other hand, contain a hint as to Chapter 
the mode in which a law is to be treated which 
is alleged to violate the constitution. Their framers 
indeed hardly seem to have recognised the fact that 
enactments of the legislature might, without being 
in so many words opposed to the constitution, yet 
be of dubious constitutionality, and that some means 
would be needed for determining whether a given law 
was or was not in opposition to the principles of the 
constitution. 

These characteristics of the revolutionary constitu- Existing 
tions have been repeated in the works of later French constitu- 
constitutionalists. Under the present French Re- tlon ' 
public there exist a certain number of laws (not it is 
true a very large number), which the Parliament can- 
not change ; and what is perhaps of more consequence, 
the so-called Congress 1 could at any time increase the 
number of fundamental laws, and thereby greatly 
decrease the authority of future Parliaments. The 
constitution however contains no article providing 
against the possibility of an ordinary Parliament 
carrying through legislation greatly in excess of its 
constitutional powers. Any one in fact who bears 
in mind the respect paid in France from the time of 
the Revolution onwards to the legislation of de facto 
governments and the traditions of the French judica- 
ture, will assume with confidence that an enactment 
passed through the Chambers, promulgated by the Pre- 
sident, and published in the Bulletin des Lois, will be 
held valid by every tribunal throughout the Republic. 

1 The term is used by French writers, but does not appear in the 
Lois Constitutionnelles, and one would rather gather that the proper 
title for a so-called Congress is L' Assemble Nationale. 



126 THE SOVEREIGNTY OF PARLIAMENT 

Part I. This curious result therefore ensues. The restric- 
Are~the~ tions placed on the action of the legislature under the 
Sntinentei French constitution are not in reality laws, since 
constitu- they are not rules which in the last resort will be 

tions * 

"laws"? enforced by the Courts. Their true character is that 
of maxims of political morality, which derive what- 
ever strength they possess from being formally in- 
scribed in the constitution and from the resulting 
support of public opinion. What is true of the con- 
stitution of France applies with more or less force to 
other polities which have been formed under the in- 
fluence of French ideas. The Belgian constitution, 
for example, restricts the action of the Parliament no 
less than does the Eepublican constitution of France. 
But it is at least doubtful whether Belgian con- 
stitutionalists have provided any means .whatever 
for invalidating laws which diminish or do away 
with the rights (e. g. the right of freedom of 
speech), "guaranteed" to Belgian citizens. The 
jurists of Belgium maintain, in theory at least, that 
an Act of Parliament opposed to any article of the 
constitution ought to be treated by the Courts as void. 
But during the fifty-eight years of Belgian independ- 
ence, 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 cer- 
tainly affords some evidence that, under favourable cir- 
cumstances, 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 



NON-SO VEREIGN LA W-MAKING BODIES 1 27 

are supported mainly by moral or political sentiment, chapter 
and are at bottom rather constitutional understand- 
ings than laws. 

To an English critic, indeed, the attitude of con- 
tinental and especially of revolutionary statesmen 
towards the ordinary legislature bears an air of para- 
dox. They seem to be almost equally afraid of 
leaving the authority of the ordinary legislature un- 
fettered, and of taking the steps by which the 
legislature may be prevented from breaking through 
the bonds imposed upon its power. The explanation 
of this apparent inconsistency is to be found in two 
sentiments which have influenced French constitution- 
makers from the very outbreak of the Eevolution 
an over-estimate of the effect to be produced by 
general declarations of rights, and a settled jealousy 
of any intervention by the judges in the sphere of 
politics. 1 We shall see, in a later chapter, that the 
public law of France is radically influenced by the 
belief, almost universal among Frenchmen, that the 
Courts must not be allowed to interfere in any 
way whatever with matters of state, or indeed 
with anything affecting the machinery of govern- 
ment. 2 

The authors of the American constitution (to- safeguards 
gether with their Swiss imitators) have, for reasons ^found- 
that will appear in my next chapter, been even more ^^ d 
anxious than French statesmen to limit the authority states - 
of every legislative body throughout the Eepublic. 
They have further shared the faith of continental 
politicians in the value possessed by general declara- 

1 De Tocqueville, (Humes Completes, i. pp. 167, 168. 
2 See chap. xii. 



128 THE SOVEREIGNTY OF PARLIAMENT 

Part I. tions of rights. But they have, unlike French con- 
stitution-makers, directed their attention, not so 
much to preventing Congress and other legislatures 
from making laws in excess of their powers, as to the 
invention of means by which the effect of unconsti- 
tional laws may be nullified ; and this" result they 
have achieved by making it the duty of every judge 
throughout the Union to treat as void any enactment 
which violates the constitution, and thus have given 
to the restrictions contained in the constitution on 
the legislative authority either of Congress or the 
State legislatures the character of real laws, that is, 
of rules enforced by the Courts. This system, which 
makes the judges the guardians of the constitution, 
provides the only adequate safeguard which has 
hitherto been invented against unconstitutional legis- 
lation. 



CHAPTER III 

PARLIAMENTARY SOVEREIGNTY AND FEDERALISM 

MY present aim is to illustrate the nature of Chapter 
Parliamentary sovereignty as it exists in England, by 



a comparison with the system of government known Sub J ect - 
as Federalism as it exists in several parts of the civil- 
ised world, and especially in the United States of 
America. 1 

There are indeed to be found at the present time Federal- 
three other noteworthy examples of federal govern- understood 
ment the Swiss Confederation, the Dominion of i 
Canada, and the German Empire. But while from a 
study of the institutions of each of these states one states 
may draw illustrations which throw light on our 
subject, it will be best to keep our attention through- 
out this chapter fixed mainly on the institutions of 
the great American Republic. And this for two 
reasons. The Union, in the first place, presents 
the most completely developed type of federalism. 
All the features which mark that scheme of govern- 
ment, and above all the control of the legislature 

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 chaps. 
i. to iv. and chaps, xxii. to xxxv. 

K 



130 THE SOVEREIGNTY OF PARLIAMENT 

Parti, by the Courts, are there exhibited in their most 
salient and perfect form ; the Swiss Confederation, 
moreover, and the Dominion of Canada, are copied 
from the American model, whilst the constitution of 
the German Empire is too full of anomalies, springing 
both from historical and from temporary causes, to be 
taken as a fair representative of any known form of 
government. The Constitution of the United States, 

o 

in the second place, holds a very peculiar relation 
towards the institutions of England. In the principle 
of the distribution of powers which determines its 
form, the Constitution of the United States is the 
exact opposite of the English constitution, the very 
essence of which is, as I hope I have now made 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 
institutions of England. The principle, in short, 
which gives its form to our system of government is 
(to use a foreign but convenient expression) " uni- 
tarianism," or the habitual exercise of supreme legis- 
lative authority by one central power, which in the 
particular case is the British Parliament. The prin- 
ciple which, on the other hand, shapes every part of 
the American polity, is that distribution of limited, 
executive, legislative, and judicial authority among 
bodies each co-ordinate with and independent of the 
other which, we shall in a moment see, is essential to 
the federal form of government. The contrast there- 



PARLIAMENTAR Y SO VEREIGNTY &> FEDERALISM 131 

fore between the two polities is seen in its most salient Chapter 
form, and the results of this difference are made all 
the more visible because in every other respect the 
institutions of the English people on each side the 
Atlantic rest upon the same notions of law, of justice, 
and of the relation between the rights of individuals 
and the rights of the government, or the state. 

We shall best understand the nature of federalism 
and the points in which a federal constitution stands 
in contrast with the Parliamentary constitution of 
England if we note, first, the conditions essential to 
the existence of a federal state and the aim with 
which such a state is formed ; secondly, the essential 
features of a federal union ; and lastly, certain 
characteristics of federalism which result from its 
very nature, and form points of comparison, or con- 
trast, between a federal polity and a system of 
Parliamentary sovereignty. 

A federal state requires for its formation two Conditions 

j' , i and aim of 

Conditions. 1 federalism. 

There must exist, in the first place, a body of Countries 
countries such as the Cantons of Switzerland, the e 
Colonies of America, or the Provinces of Canada, so 
closely connected by locality, by history, by race, or 
the like, as to be capable of bearing, in the eyes of 
their inhabitants, an impress of common nationality. 
It will also be generally found (if we appeal to 

1 For United States see Story, Commentaries on the Constitution of 
the United States (4th ed.), and Bryce, American Commonwealth. 

For Canada see the British North America Act, 1867, 30 Viet. c. 3 ; 
Bourinot, Parliamentary Procedure and Practice in the Dominion of Canada. 

For Switzerland see Constitution Fede'rale de la Confederation Suisse du 
29 Mai 1874; Blumer, Handbuch des Schweizerischen Bundesstaatsrechtes ; 
Dubs, Das oeffentliche Becht der Schweizerischen Eidgenossenschaft ; and 
Sir F. 0. Adams's Swiss Confederation. 



132 THE SOVEREIGNTY OF PARLIAMENT 

Parti, experience) that lands which now form part of a 
federal state were at some stage of their existence 
bound together by close alliance or by subjection to 
a common sovereign. It were going further than 
facts warrant to assert that this earlier connection is 
essential to the formation of a federal state. But it 
is certain that where federalism flourishes it is in 
general the slowly -matured fruit of some earlier and 
looser connection. 

Existence A second condition absolutely essential to the 
sentiment, founding of a federal system is the existence of a 
very peculiar state of sentiment among the inhabit- 
ants of the countries which it is proposed to unite. 
They must desire union, and must not desire unity. 
If there be no desire to unite, there is clearly no basis 
for federalism ; the wild scheme entertained (it is 
said) under the Commonwealth of forming a union 
between the English Republic and the United Pro- 
vinces was one of those dreams which may haunt 
the imagination of politicians but can never be trans- 
formed into fact. If, on the other hand, there be a 
desire for unity, the wish will naturally find its 
satisfaction, not under a federal, but under a uni- 
tarian constitution ; the experience of England and 
Scotland in the eighteenth and of the states of 
Italy in the nineteenth century shows that common 
national feeling or the sense of common interests 
may be too strong to allow of that combination of 
union and separation which is the foundation of 
federalism. The phase of sentiment, in short, which 
forms a necessary condition for the formation of a 
federal state is that the people of the proposed state 
should wish to form for many purposes a single 



PARLIAMENTAR Y SO VEREIGNTY &* FEDERALISM 133 

nation, yet should not wish to surrender the in- Chapter 
dividual existence of each man's State or Canton. IIL 
We may perhaps go a little farther, and say, that 
a federal government will hardly be formed unless 
many of the inhabitants of the separate States feel 
stronger allegiance to their own State than to the 
federal state represented by the common govern- 
ment. This was certainly the case in America 
towards the end of the last century, and in Switzer- 
land at the middle of the present century. In 1787 
a Virginian or a citizen of Massachusetts felt more 
attachment to Virginia or to Massachusetts than to 
the body of the confederated States. In 1848 the 
citizens of Lucerne felt far keener loyalty to their 
Canton than to the confederacy, and the same thing, 
no doubt, held true in a less degree of the men of 
Berne or of Zurich. The sentiment therefore which 
creates a federal state is the prevalence throughout 
the citizens of more or less allied countries of two 
feelings which are to a certain extent inconsistent 
the desire for national unity and the determination 
to maintain the independence of each man's separate 
State. The aim of federalism is to give effect as far 
as possible to both these sentiments. 

A federal state is a political contrivance intended The aim of 
to reconcile national unity and power with the main- 
tenance of "state rights." The end aimed at fixes 
the essential character of federalism. For the method 
by which Federalism attempts to reconcile the ap- 
parently inconsistent claims of national sovereignty 
and of state sovereignty consists of the formation of 
a constitution under which the ordinary powers l of 

1 See Appendix, Note 2, Division of Powers in Federal States. 



134 THE SOVEREIGNTY OF PARLIAMENT 

Part I. sovereignty are elaborately divided between the 
common or national government and the separate 
states. The details of this division vary under every 
different federal constitution, but the general prin- 
ciple on which it should rest is obvious. Whatever 
concerns the nation as a whole should be placed 
under the control of the national government. All 
matters which are not primarily of common interest 
should remain in the hands of the several States. 
The preamble to the Constitution of the United 
States recites that "We, the people of the United 
" States, in order to form a more perfect union, 
" establish justice, ensure domestic tranquillity, pro- 
" vide for the common defence, promote the general 
" welfare, and secure the blessings of liberty to our- 
" selves 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 altera- 
tion in the constitution of the Swiss Confederation, 1 
point out the aim and lay down the fundamental idea 
of federalism. 

Essential From the notion that national unity can be recon- 
of ciled with state independence by a division of powers 



federal- un( j er a common constitution between the nation on 

lolll* 

united ^he one hand and the individual States on the other, 

States. 

flow the three leading characteristics of federalism, 
the supremacy of the constitution the distribution 
among bodies with limited and co-ordinate authority 

1 Constitution FJdJrale, Preamble, and art. 3. 



PARLIAMENTAR Y SO VEREIGNTY & FEDERALISM 1 35 

of the different powers of government the authority Chapter 

of the Courts to act as interpreters of the constitu- 

tion. 

A federal state derives its existence from the supremacy 

... . . i . ., , of consti- 

constitution, just as a corporation derives its exist- 
ence from the grant by which it is created. Hence, 
every power, executive, legislative, or judicial, 
whether it belong to the nation or to the individual 
States, is subordinate to and controlled by the con- 
stitution. Neither the President of the United 
States nor the Houses of Congress, nor the Governor 
of Massachusetts, nor the Legislature or General 
Court of Massachusetts, can legally exercise a single 
power which is inconsistent with the articles of the 
Constitution. This doctrine of the supremacy of the 
constitution is familiar to every American, but in 
England even trained lawyers find a difficulty in 
following it out to its legitimate consequences. The 
difficulty arises from the fact that under the English 
constitution no principle is recognised which bears 
any real resemblance to the doctrine (essential to 
federalism) that the Constitution constitutes the 
"supreme law of the land." 1 In England we have 
laws which may be called fundamental 2 or consti- 
tutional because they deal with important principles 
(as, for example, the descent of the Crown or the 
terms of union with Scotland) lying at the basis of 
our institutions, but with us there is no such thing as 
a supreme law, or law which tests the validity of 
other laws. There are indeed important statutes, 

1 See Constitution of United States, art. 6, cL 2. 

2 The expression " fundamental laws of England " became current 
during the controversy as to the payment of ship-money (1635). 
See Gardiner, History of England, viii. pp. 84, 85. 



136 THE SOVEREIGNTY OF PARLIAMENT 

Part I. such as the Act embodying the Treaty of Union with 
Scotland, with which it would be political madness 
to tamper gratuitously; there are utterly unimport- 
ant 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 pro- 
visions of which control every authority existing 
under the constitution. 1 

conse- In the supremacy of the constitution are involved 

three consequences : 

Written The constitution must almost necessarily be a 

constitu- ,, ,, ), , ., .. 

tion. written constitution. 

The foundations of a federal state are a compli- 
cated contract. This compact contains a variety of 
terms which have been agreed to, and generally after 
mature deliberation, by the States which make up the 
confederacy. To base an arrangement of this kind 

1 Compare especially Kent, Commentaries, i. pp. 447-449. 



PARLIAMENTAR Y SO VEREIGNTY & FEDERALISM 137 

upon understandings or conventions would be certain Chapter 

ill 
to generate misunderstandings and disagreements. L_ 

The articles of the treaty, or in other words of the 
constitution, must therefore be reduced to writing. 
The constitution must be a written document, and, if 
possible, a written document of which the terms are 
open to no misapprehension. The founders of the 
American Union left at least one great question 
unsettled. This gap in the Constitution gave an 
opening to the dispute which was the plea, if not the 
justification, for the War of Secession. 1 

The constitution must be what I have termed a Eigid con- 

x, -i j> o ,, . . ... , . stitution. 

rigid 2 or mexpansive constitution. 

The law of the constitution must be either legally 
immutable, or else capable of being changed only by 
some authority above and beyond the ordinary legis- 
lative bodies, whether federal or state legislatures, 
existing under the constitution. 

In spite of the doctrine enunciated by some jurists 
that in every country there must be found some 
person or body legally capable of changing every 
institution thereof, it is hard to see why it should 
be held inconceivable 3 that the founders of a polity 

1 No doubt it is conceivable that a federation might grow up by 
the force of custom, and under agreements between different States 
which were not reduced into writing, and it appears to be questionable 
how far the Achaean League was bound together by anything equiva- 
lent to a written constitution. It is, however, in the highest degree 
improbable, even if it be not practically impossible, that in modern 
times a federal state could be formed without the framing of some 
document which, whatever the name by which it is called, would be 
in reality a written constitution, regulating the rights and duties of 
the federal government and the States composing the Federation. 

2 See pp. 118-120, ante. 

3 Eminent American lawyers, whose opinion is entitled to the 
highest respect, maintain that under the Constitution there exists no 
person, or body of persons, possessed of legal sovereignty, in the sense 



138 THE SOVEREIGNTY OF PARLIAMENT 

Parti, should have deliberately omitted to provide any 
means for lawfully changing its bases. Such an 
omission would not be unnatural on the part of the 
authors of a federal union, since one main object of 
the States entering into the compact is to prevent 
further encroachments upon their several state rights ; 
and in the fifth article of the United States Constitu- 
tion may still be read the record of an attempt to 
give to some of its provisions temporary immutability. 
The question, however, whether a federal constitu- 
tion necessarily involves the existence of some ulti- 
mate sovereign power authorised to amend or alter 
its terms is of merely speculative interest, for under 
existing federal governments the constitution will be 
found to provide the means for its own improvement. 
It is, at any rate, certain that whenever the founders 
of a federal government hold the maintenance of a 
federal system to be of primary importance, supreme 
legislative power cannot be safely vested in any 
ordinary legislature acting under the constitution. 1 

given by Austin to that term, and it is difficult to see that this opinion 
involves any absurdity. Compare Constitution of United States, art. 
5. It would appear further that certain rights reserved under the 
Constitution of the German Empire to particular States cannot under 
the Constitution be taken away from a State without its assent. (See 
Reichsverfassung, art. 78.) The truth is that a Federal Constitution 
partakes of the nature of a treaty, and it is quite conceivable that the 
authors of the Constitution may intend to provide no constitutional 
means of changing its terms, except the assent of all the parties to the 
treaty. 

1 Under the Constitution of the German Empire the Imperial 
legislative body can amend the Constitution. But the character of the 
Federal Council (Bundesrath) gives ample security for the protection of 
State rights. No change in the Constitution can be effected which is 
opposed by fourteen votes in the Federal Council. This gives a veto 
on change to any one of three States and to combinations of minor 
States. The extent to which national sentiment and State patriotism 
respectively predominate under a federal system may be conjectured 



PARLIAMENTARY SO VEREIGNTY &- FEDERALISM 139 

For so to vest legislative sovereignty would be in con- chapter 
sistent with the aim of federalism, namely, the per- 
manent division between the spheres of the national 
government and of the several States. If Congress 
could legally change the Constitution, New York and 
Massachusetts would have no legal guarantee for the 
amount of independence reserved to them under the 
Constitution, and would be as subject to the sovereign 
power of Congress as is Scotland to the sovereignty 
of Parliament ; the Union would cease to be a federal 
state, and would become a Unitarian republic. If, on 
the other hand, the legislature of South Carolina 
could of its own will amend the Constitution, the 
authority of the central government would (from a 
legal point of view) be illusory ; the United States 
would sink from a nation into a collection of inde- 
pendent countries united by the bond of a more or 
less permanent alliance. Hence the power of amend- 
ing the Constitution has been placed, so to speak, 
outside the Constitution, and one may say, with 
sufficient accuracy for our present purpose, that the 
legal sovereignty of the United States resides in the 
majority of a body constituted by the joint action of 
three-fourths of the several States at any time belong- 
ing to the Union. 1 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, 

from the nature of the authority which has the right to modify the 
Constitution. See Appendix, Note 2, Division of Powers in Federal 
States. 

1 See Constitution of United States, art. 5. 



140 



Parti, like the English Parliament, an ever-wakeful legis- 
lator, 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 ninety 
years. It needed the thunder of the Civil War to 
break his repose, and it may be doubted whether any- 
thing short of impending revolution will ever again 
arouse him to activity. But a monarch who slumbers 
for years is like a monarch who does not exist. A 
federal constitution is capable of change, but for all 
that a federal constitution is apt to be unchangeable. 
Every Every legislative assembly existing under a federal 

under tuie constitution is merely a subordinate law-making 
constitu- body, whose laws are of the nature of bye-laws, valid 
tion is a whilst within the authority conferred upon it by the 

subordm- J J 

ate law- constitution, but invalid or unconstitutional if they 
body. go beyond the limits of such authority. 

There is an apparent absurdity l in comparing the 
legislature of the United States to an English railway 
company or a school-board, but the comparison is 
just. Congress can, within the limits of its legal 
powers, pass laws which bind every man throughout 
the United States. The Great Eastern Eailway Com- 
pany can, in like manner, pass laws which bind every 
man throughout the British dominions. A law passed 
by Congress which is in excess of its legal powers, as 
contravening the Constitution, is invalid ; a law passed 
by the Great Eastern Eailway Company in excess of 
the powers given by Act of Parliament, or, in other 
words, by the legal constitution of the company, is 
also invalid ; a law passed by Congress is called an 
" Act " of Congress, and if ultra vires is described 

1 See p. 87, note, ante. 



PARLIAMENTAR Y SO VEREIGNTY & FEDERALISM \ 4 1 

as " unconstitutional ; " a law passed by the Great chapter 
Eastern Railway Company is called a " bye -law," m " 
and if ultra vires is called, not " unconstitutional," 
but "invalid." Differences however of words must 
not conceal from us essential similarity in things. 
Acts of Congress, or of the Legislative Assembly 
of New York or of Massachusetts, are at bottom 
simply "bye -laws," depending for their validity 
upon their being within the powers given to Con- 
gress or to the state legislatures by the Consti- 
tution. The bye-laws of the Great Eastern Railway 
Company, imposing fines upon passengers who travel 
over their line without a ticket, are laws, but they 
are laws depending for their validity upon their being 
within the powers conferred upon the Company by 
Act of Parliament, i.e. by the Company's constitution. 
Congress and the Great Eastern Railway Company 
are in truth each of them nothing more than sub- 
ordinate law-making bodies. Their power differs not 
in degree, but in kind, from the authority of the 
sovereign Parliament of the United Kingdom. 1 

The distribution of powers is an essential feature 
of federalism. The object for which a federal state 
is formed involves a division of authority between 
the national government and the separate States. 
The powers given to the nation form in effect so many 
limitations upon the authority of the separate States, 
and as it is not intended that the central government 
should have the opportunity of encroaching upon the 

1 See as to bye-laws made by municipal corporations, and the 
dependence of their validity upon the powers conferred upon the cor- 
poration : Johnson v. Mayor of Croydon, 16 Q. B. D. 708 ; Reg. v. 
Powell, 51 L. T. 92 ; Munro v. Watson, 57 L. T. 366. See Bryce, 
American Commonwealth, i. pp. 327-329. 



tion of 
powers. 



142 THE SOVEREIGNTY OF PARLIAMENT 

Parti, rights retained by the States, its sphere of action 
necessarily becomes the object of rigorous definition. 
The Constitution, for instance, of the United States 
delegates special and closely-defined powers to the 
executive, to the legislature, and to the judiciary of 
the Union, or in effect to the Union itself, whilst it 
provides that the powers " not delegated to the United 
States by the Constitution nor prohibited by it to 
the States are reserved to the States respectively or 
to the people." l 

Division This is all the amount of division which is essen- 

caSIS tial to a federal constitution. But the principle of 
nTcessJry 11 * 1 definition and limitation of powers harmonises so well 
Umit - with the federal spirit that it is generally carried 
much farther than is dictated by the mere logic of the 
constitution. Thus the authority assigned to the 
United States under the Constitution is not concen- 
trated in any single official or body of officials. The 
President has definite rights, upon which neither 
Congress nor the judicial department can encroach. 
Congress has a limited (indeed a very limited) power 
of legislation, for it can make laws upon eighteen 
topics only; but within its own sphere it is inde- 
pendent both of the President and of the Federal 

1 Constitution of United States, Amendments, art. 10. Compare 
provisions of a similar character in the Swiss Constitution, Constitution 
Fdddrale, art. 3, and in the Constitution of the Canadian Dominion, 
British 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 sub- 
stance reserves to the separate States all powers not expressly conferred 
upon the national government. The Canadian Constitution in sub- 
stance 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. 



PARLIAMENTARY SOVEREIGNTY & FEDERALISM 143 

Courts. So, lastly, the judiciary have their own Chapter 
powers. They stand on a level both with the Presi- UL 
dent and with Congress, and their authority (being 
directly derived from the constitution) cannot, without 
a distinct violation of law, be trenched upon either by 
the executive or by the legislature. Where, further, 
States are federally united, certain principles of policy 
or of justice must be enforced upon the whole con- 
federated body as well as upon the separate parts 
thereof, and the very inflexibility of the constitution 
tempts legislators to place among constitutional 
articles maxims which (though not in their nature 
constitutional) have special claims upon respect and 
observance. Hence spring additional restrictions on 
the power both of the federation and of the separate 
states. The United States Constitution prohibits 
both to Congress 1 and to the separate States 2 the 
passing of a bill of attainder or an ex post facto law, 
the granting of any title of nobility, or the laying of 
any tax on articles exported from any State, 3 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, 4 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 
length and breadth of the Union. It further ensures 
that the right of the people to keep and bear arms 

1 Constitution of United States, art. 1, sec. 9. 
2 Ibid., art. 1, sec. 10. 3 Hid., art 1, sec. 9. 

4 Ibid., art. 1, sec. 10. 



144 THE SOVEREIGNTY OF PARLIAMENT 

Part I. shall not be infringed, while it also provides that no 
member can be expelled from either House of Con- 
gress without the concurrence of two-thirds of the 
House. Other federal constitutions go far beyond 
that of the United States in inscribing among con- 
stitutional articles either principles or petty rules 
which are supposed to have a claim of legal sanctity ; 
the Swiss Constitution teems with " guaranteed " 
rights. 

Nothing, however, would appear to an English 
critic to afford so striking an example of the con- 
nection between federalism and the " limitation of 
powers " as the way in which the principles of the 
federal Constitution pervade in America the constitu- 
tions of the separate States. In no case does the 
legislature of any one State possess all the powers of 
" state sovereignty " left to the States by the Consti- 
tution of the Republic, and every state legislature is 
subordinated to the constitution of the State. The 
ordinary legislature of New York or Massachusetts 
can no more change the state constitution than it can 
alter the Constitution of the United States itself; 
and, though the topic cannot be worked out here in 
detail, it may safely be asserted that state govern- 
ment throughout the Union is formed upon the 
federal model, and (what is noteworthy) that state 
constitutions have carried much further than the 
Constitution of the Republic the tendency to clothe 
with constitutional immutability any rules which 
strike the people as important. Illinois has em- 
bodied, among fundamental laws, regulations as to 
elevators. 1 

1 See Munn v. Illinois, 4 Otto, 113. 



PARLIAMENTARY SOVEREIGNTY '& FEDERALISM 145 

But here, as in other cases, there is great diffi- Chapter 
culty in distinguishing cause and effect. If a federal - L_ 
form of government has affected, as it probably has, 
the constitutions of the separate States, it can hardly 
be doubted that features originally existing in the 
state constitutions have been reproduced in the Con- 
stitution of the Union ; 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 least to the founders of the Re- 
public, by the relation which before 1789 already 
existed between the state tribunals and the state 
legislatures. 1 

The tendency of federalism to limit on every side Division of 
the action of government and to split up the strength la 
of the state among co-ordinate and independent 



authorities is specially noticeable, because it forms tarian 

i system of 

the essential distinction between a federal system govem- 
such as that of America or Switzerland, and a uni- 
tarian system of government such as that which exists 
in England or Russia. We talk indeed of the Eng- 
lish constitution as resting on a balance of powers, 

1 European critics of American federalism have, as has been well 
remarked by an eminent French writer, paid in general too little atten- 
tion to the working and effect of the state constitutions, and have over- 
looked the great importance of the action of the state legislatures. 
See Boutmy, Etudes de Droit Constitwtionnel (1st ed.), pp. 105-113. 

" 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. p. 
43. One capital merit of Mr. Bryce's book is that it for the 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. 

L 



146 THE SOVEREIGNTY OF PARLIAMENT 

Part I. and as maintaining a division between the executive, 
the legislative, and the judicial bodies. These ex- 
pressions 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 con- 
centrated in the Imperial Parliament, and all depart- 
ments of government are legally subject to Parlia- 
mentary despotism. Our judges are independent, in 
the sense of holding their office by a permanent 
tenure, and of being raised above the direct influence 
of the Crown or the Ministry ; but the judicial de- 
partment does not pretend to stand on a level with 
Parliament ; its functions might be modified at any 
time by an Act of Parliament; and such a statute 
would be no violation of the law. The Federal 
Judiciary, on the other hand, are co-ordinate with 
the President and with Congress, and cannot without 
a revolution be deprived of a single right by Presi- 
dent 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 
Congress. 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 
important functions even though his bitterest oppo- 
nents command majorities both in the Senate and in 
the House of Eepresentatives. Unitarianism, in 
short, means the concentration of the strength of the 



PARLIAMENTAR Y SO VEREIGNTY & FEDERALISM 147 

state in the hands of one visible sovereign power, be Chapter 

that power Parliament or Czar. Federalism means _ 

the distribution of the force of the state among a 
number of co-ordinate bodies each originating in and 
controlled by the constitution. 

Whenever there exists, as in Belgium or in Authority 

T-i . n . . . i e> Of Courts. 

.b ranee, an inflexible constitution the articles 01 
which cannot be amended by the ordinary legislature, 
the difficulty has to be met of guarding against legis- 
lation inconsistent with the constitution. As Belgian 
and French statesmen have created no machinery for 
the attainment of this object, we may conclude that 
they considered respect for the constitution to be 
sufficiently secured by moral or political sanctions, 
and treated the limitations placed on the power of 
Parliament rather as maxims of policy than as true 
laws. During a period, at any rate of more than fifty 
years, no Belgian judge has (it is said) ever pro- 
nounced a Parliamentary enactment unconstitutional. 
No French tribunal, as has been already 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, as De 
Tocqueville certainly did think, that in France 
possible Parliamentary invasions of the constitution 
were a less evil than the participation of the judges 
in political conflicts. France, in short, and Belgium 
being governed under Unitarian constitutions, the 
non-sovereign character of the legislature is in each 
case an accident, not an essential property of their 
polity. Under a federal system it is otherwise. The 



148 THE SOVEREIGNTY OF PARLIAMENT 

Part I. legal supremacy of the constitution is essential to the 
existence of the state ; the glory of the founders of 
the United States is to have devised or adopted 
arrangements under which the Constitution became 
in reality as well as name the supreme law of the 
land. This end they attained by adherence to a very 
obvious principle, and by the invention of appropriate 
machinery for carrying this principle into effect. 
HOW The principle is clearly expressed in the Constitu- 

of the nty ti n of the United States. " The Constitution," runs 
article 6 > " and tne laws of tne 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, any thing in the consti- 
" tution or laws of any State to the contrary notwith- 
" standing." * The import of these expressions is 
unmistakable. " Every Act of Congress," writes 
Chancellor Kent, " and every Act of the legislatures 
" of the States, and every part of the constitution of 
" any State, which are repugnant to the Constitution 
" of the United States, are necessarily void. This is a 
" clear and settled principle of [our] constitutional 
" jurisprudence." 2 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 bound to treat as void 
every legislative act, whether proceeding from Con- 
gress or from the state legislatures, which is incon- 
sistent with the Constitution of the United States. 
His duty is as clear as that of an English judge 
called upon to determine the validity of a bye-law 

1 Constitution of United States, art. 6. 
2 Kent, Commentaries, i. (12th ed.), p. 314, and conf. Ibid., p. 449. 



PARLIAMENTAR Y SO VEREIGNTY fr FEDERALISM 149 

made by the Great Eastern or any other Railway chapter 
Company. The American judge must in giving judg- IIL 
ment obey the terms of the Constitution, just as his 
English brother must in giving judgment obey every 
Act of Parliament bearing on the case. 

To have laid down the principle with distinctness supremacy 
is much, but the great problem was how to ensure 
that the principle should be obeyed ; for there existed 
a danger that judges depending on the federal 
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 
interests. This problem has been solved by the crea- 
tion of the Supreme Court and of the Federal Judiciary. 

Of the nature and position of the Supreme Court Nature and 
itself thus much alone need for our present purpose supreme 
be noted. The Court derives its existence from the c 
Constitution, and stands therefore on an equality 
with the President and with Congress ; the members 
thereof (in common with every judge of the Federal 
Judiciary) hold their places during good behaviour, at 
salaries which cannot be diminished during a judge's 
tenure of office. 1 The Supreme Court stands at the 
head of the whole federal judicial department, which, 
extending by its subordinate Courts throughout the 
Union, can execute its judgments through its own 
officers without requiring the aid of state officials. 
The Supreme Court, though it has a certain amount 
of original jurisdiction, derives its importance from its 
appellate character ; it is on every matter which con- 
cerns the interpretation of the Constitution a supreme 
and final Court of Appeal from the decision of every 

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



ISO THE SOVEREIGNTY OF PARLIAMENT 

Part I. Court (whether a Federal Court or a State Court) 
throughout the Union. It is in fact the final inter- 
preter of the Constitution, and therefore has authority 
to pronounce finally as a Court of Appeal whether a 
law passed either by Congress or by the legislature of 
a State, e.g. New York, is or is not constitutional. 
To understand the position of the Supreme Court we 
must bear in mind that there exist throughout the 
Union two classes of Courts in which proceedings can 
be commenced, namely, the subordinate federal Courts 
deriving their authority from the Constitution, and 
the state Courts, e.g. of New York or Massachusetts, 
created by and existing under the state constitutions; 
and that the jurisdiction of the federal judiciary and 
the state judiciary is in many cases concurrent, for 
though the jurisdiction of the federal Courts is mainly 
confined to cases arising under the Constitution and 
laws of the United States, it is also occasionally 
dependent upon the character of the parties, and 
though there are cases with which no state Court can 
deal, such a 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 
federal tribunals is a matter which excites no surprise. 
The point to be noted is that it is also a Court of 
Appeal from decisions of the Supreme Court of any 
State, e.g. New York, which turn upon or 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 



PARLIAMENTAR Y SO VEREIGNTY &- FEDERALISM 1 5 1 

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, may be brought up on 
" error in point of law, to the Supreme Court of the 
" United States, provided the validity of a treaty, or 
" statute of, or authority exercised under the United 
" States, was drawn in question in the state court, and 
" the decision was against 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." l Strip this enactment of its techni- 
calities and it comes to this. A party to a case in 
the highest Court, say of New York, who bases his 
claim or defence upon an article in the Constitution 
or law made under it, stands in this position : If 
judgment be in his favour there is no further appeal ; 
if judgment goes against him, he has a right of appeal 
to the Supreme Court of the United States. Any lawyer 
can see at a glance how well devised is the arrangement 
to encourage state Courts in the performance of their 
duty as guardians of the Constitution, and further that 
the Supreme Court thereby becomes the ultimate 
arbiter of all matters affecting the Constitution. 

1 Kent, Commentaries, i. (12th ed.), pp. 299, 300. 



152 THE SOVEREIGNTY OF PARLIAMENT 

Part I. 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 rights possessed by different authorities 
under the Constitution is one rarely exercised, for it 
is in fact a right which is constantly exerted with- 
out exciting any more surprise on the part of the 
citizens of the Union than does in England a judg- 
ment of the Queen's Bench Division treating as 
invalid the bye - law of a railway company. The 
American tribunals have dealt with matters of 
supreme consequence ; they have determined that 
Congress has the right to give priority to debts due 
to the United States, 1 can lawfully incorporate a 
bank, 2 has a general power to levy or collect taxes 
without any restraint, but subject to definite prin- 
ciples of uniformity prescribed by the Constitution ; 
the tribunals have settled what is the power of 
Congress over the militia, who is the person who has 
a right to command it, 3 and that the power exercised 
by Congress during the War of Secession of issuing 
paper money was valid. 4 The Courts again have 
controlled the power of the separate States fully as 
vigorously as they have defined the authority of the 
United States. The judiciary have pronounced un- 
constitutional every ex post facto law, every law 
taxing even in the slightest degree articles exported 
from any State, and have again deprived of effect 
state laws impairing the obligation of contracts. 

1 Kent, Commentaries, i. (12th ed.), pp. 244-248. 

2 Ibid., pp. 248-254. 3 Ibid., pp. 262-266. 

4 Story, Commentaries on the Constitution (4th ed.), ii. sees. 1116, 
1117. See Hepburn v. Griswold, 8 Wallace, 603, Dec. 1869, and 
Knox v. Lee, 12 Wallace, 457. 



PARLIAMENTAR Y SO VEREIGNTY &- FEDERALISM 153 

To the judiciary in short is due the maintenance of Chapter 
justice, the existence of internal free trade, and the 



general respect for the rights of property ; whilst a 
recent decision shows that the Courts are prepared 
to uphold as consistent with the Constitution any 
laws which prohibit modes of using private property, 
which seem to the judges inconsistent with public 
interest. 1 The power moreover of the Courts which 
maintains the articles 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 con- 
tinental critics. The explanation is that the judges 
of the United States control the action of the Con- 
stitution, but they perform purely judicial functions, 
since they never decide anything but the cases before 
them. It is natural to say that the Supreme Court 
pronounces Acts of Congress invalid, but in fact 
this is not so. The Court never pronounces any 
opinion whatever upon an Act of Congress. What 
the Court does do is simply to determine that in a 
given case A is or is not entitled to recover judgment 
against X\ but in determining that case the Court 
may decide that an Act of Congress is not to be 
taken into account, since it is an Act beyond the 
constitutional powers of Congress. 2 

If any one thinks this is a distinction without a The true 
difference he shows great ignorance of politics, and ^"found- 
does not understand how much the authority of a 
Court is increased by confining its action to purely states 

1 Munn v. Illinois, 4 Otto, Rep. 113. See especially the Judg- 
ments of Marshall, C. J., collected in the Writings of John Marshall 
upon the Federal Constitution (1839). 

2 See chap. ii. pp. 90-94, ante. 



154 THE SOVEREIGNTY OF PARLIAMENT 

Parti, judicial business. But persons who, like De Tocque- 
ville, have fully appreciated the wisdom of the 
statesmen who created the Union, have formed 
perhaps an exaggerated estimate of their originality. 
Their true merit was that they applied with extra- 
ordinary skill the notions which they had inherited 
from English law to the novel circumstances of the 
new republic. To any one imbued with the traditions 
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 
in given cases 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 
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 
Council. It is still 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 declaring a law unconstitutional dates (it is said) 
from 1786, and took place in Rhode Island, which 



PARLIAMENTAR Y SO VEREIGNTY & FEDERALISM 1 5 5 

was then, and continued till 1842, to be governed chapter 
under the charter of Charles II. An Act of the 
legislature was declared unconstitutional by the 
Courts of North Carolina in 1787 l and by the Courts 
of Virginia in 1788, 2 whilst the Constitution of the 
United States was not adopted till 1789, and Marbury 
v. Madison, the first case in which the Supreme 
Court dealt with the question of constitutionality, was 
decided in 1803. 3 

But if their notions were conceptions derived from 
English law, the great statesmen of America gave to 
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 federalism the supremacy 
of the constitution the 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. TheCan- 
The preamble to the British North America Act, 1867, 
asserts with official mendacity that the Provinces of 
the present Dominion have expressed their desire to 
be united into one Dominion "with a constitution 
similar in principle to that of the United Kingdom" 
If preambles were intended to express the truth, for 
the word " Kingdom " ought to have been substituted 
" States " ; since it is clear that the Constitution of the 

1 Martin, 421. 2 1 Va. Gas. 198. 

3 1 Cranch, 137. For the facts as to the early action of the State 
Courts in declaring legislative enactments unconstitutional I am in- 
debted, as for much other useful criticism, to my friend Professor 
Thayer, of Harvard University. 



156 THE SOVEREIGNTY OF PARLIAMENT 

Part I. Dominion is modelled on that of the Union. This is 
indeed denied, but in my judgment without adequate 
grounds, by competent Canadian critics. The differences 
between the institutions of the United States and of the 
Dominion are of course both considerable and note- 
worthy. 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 in- 
dependent country it would be a Confederacy governed 
under a Constitution very similar to that of the United 
States. The Constitution is the law of the land ; it 
cannot be changed (except within narrow limits allowed 
by the British North America Act, 1867) either by 
the Dominion Parliament 1 or by the Provincial Par- 
liaments ; 2 it can be altered only by the sovereign 
power of the British Parliament. 3 Nor does this arise 
from the Canadian Dominion being a dependency. 
Victoria is, like Canada, a colony, but the Victorian 
Parliament can with the assent of the Crown do what 
the Canadian Parliament cannot do change the 
colonial constitution. Throughout the Dominion, 
therefore, the Constitution is in the strictest sense the 
immutable law of the land. Under this law again, 
you have, as you would expect, the distribution of 

1 See, however, British North America Act, 1867 (30 Viet. c. 3), 
s. 94, which gives the Dominion Parliament a limited power (when 
acting in conjunction with a Provincial legislature), of changing to a 
certain extent the provisions of the British North America Act, 1867. 

2 The legislatures of each Province have, nevertheless, authority 
to make laws for " the amendment from time to time, notwithstanding 
"anything" [in the British North America Act, 1867] "of the 
" Constitution of the Province, except as regards the office of Lieutenant 
" Governor." See British North America Act, 1867, s. 92. 

3 See for an example of an amendment of the Dominion Con- 
stitution by an Imperial statute, the Parliament of Canada Act, 1875. 



PARLIAMENTAR Y SO VEREIGNTY 6- FEDERALISM 1 57 

powers among bodies of co-ordinate authority ; l Chapter 
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 2 the Dominion Government to 
disallow Provincial Acts. 3 

This right was possibly given with a view to 
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 prevent any troublesome or danger- 
" ous conflict of authority arising between the central 
" and local governments." 4 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 constitu- 
tionality of legislative enactments, and by a long list 
of decisions as to the respective powers possessed by 
the Dominion and by the Provincial Parliaments 
judgments given by the true Supreme Court of the 
Dominion, namely, the Judicial Committee of the 
Privy Council. In Canada, as in the United States, 
the Courts inevitably become the interpreters of the 
Constitution. 

1 British North America Act, 1867, sees. 91, 92. 

2 Ibid., sees. 56, 90. 

3 Bourinot, Parliamentary Procedure and Practice in the Dominion 
of Canada, p. 76. 

4 Ibid., p. 694. 



158 THE SOVEREIGNTY OF PARLIAMENT 

Part I. Swiss federalism repeats, though with noteworthy 

r^ Swiss variations, the essential traits of the federal polity as 
Confedera- ft ex [ s ^ s across the Atlantic. The Constitution is the 

tiou. 

law of the land, and cannot be changed either by the 
federal or by the cantonal legislative bodies ; the 
Constitution enforces a distribution of powers 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 has in Switzerland, as in 
America, three organs a Federal Legislature, a 
Federal Executive (Bundesrath), and a Federal Court 
(Bundesgericht). 

Of the many interesting and instructive pecu- 
liarities which give to Swiss federalism an individual 
character, this is not the occasion to write in detail. 
It lies 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 judicial departments of government which 
exists both in America and in Canada ; the Executive 
exercises, under the name of "administrative law," 
many functions l of a judicial character, and thus, for 
example, deals with questions having reference to the 
rights of religious bodies. 2 The Federal Assembly is 
the final arbiter on all questions as to the respective 
jurisdiction of the Executive and of the Federal Court. 
The judges of that Court are elected by the Federal 

1 Constitution Federate, art. 113, Loi; 27 June 1874, art. 59; and 
Dubs, Oeffentliche Recht, ii. (2nd ed.), p. 90. 

2 See article on the Swiss Federal Court, by W. A. B. Coolidge, 
Law Quarterly Review, v. p. 166. 



PARLTAMENTAR Y SO VEREIGNTY fr FEDERALISM 1 59 

Assembly, they are occupied greatly with questions of chapter 
public law (Staatsrecht), and so experienced a states- 
man as Dr. Dubs laments that the Federal Court 
should possess jurisdiction in matters of private law. 1 
When to this is added that the judgments of the 
Federal Court are executed by the government, it at 
once becomes clear that, according to any English 
standard, Swiss statesmanship has failed as distinctly 
as American statesmanship has succeeded in keeping 
the judicial apart from the executive department of 
government, and that this failure constitutes a serious 
flaw in the Swiss Constitution. That Constitution, 
in the second place, does not in reality place the 
Federal Court on an absolute level with the Federal 
Assembly. In many cases that tribunal cannot ques- 
tion the constitutionality of laws or decrees passed by 
the federal Parliament. 2 From this fact one might 
suppose that the Federal Assembly is (unlike Con- 
gress) a sovereign body, but this is not so. The reason 
why all Acts of the Assembly are treated as con- 
stitutional by the Federal Tribunal is that the 
Constitution itself almost precludes the possibility of 
encroachment upon its articles by the federal legislative 
body. 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 may be legally 
annulled by a popular veto. The authority of the 
Swiss Assembly nominally exceeds the authority of 
Congress, because in reality the Swiss legislative body 
is weaker than Congress. For while in each case 

1 Constitution Federate, art 113, and Dubs, Oeffentliche Recht, ii. 
(2d ed.), pp. 92-95 2 Ibid. 



160 THE SOVEREIGNTY OF PARLIAMENT 

Parti, there lies in the background a legislative sovereign 
capable of controlling the action of the ordinary 
legislature, the sovereign power is far more easily 
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 
rights ; when, as in America, the same power acts but 
rarely and with difficulty, the Courts naturally become 
the guardians of the sovereign's will expressed in the 
articles of the Constitution. 

Our survey from a legal point of view of the. 
characteristics common to all federal governments 



federalism forcibly suggests conclusions of more than merely 
and of par- leggj interest, as to the comparative merits of 

liamentary o 

soye- federal government, and the system of Parliamentary 

sovereignty. 

Weakness Federal government means weak government. 1 
m> e e The distribution of all the powers of the state 

among co-ordinate authorities necessarily leads to the 
result that no one authority can wield the same amount 
of 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 gov- 
ernment is so to speak pitted against that of the state 

1 This weakness springs from two different causes : first, the 
division of powers between the central government and the States ; 
secondly, the distribution of powers between the different members 
(e.g. the President and the Senate) of the national government. The 
first cause of weakness is inherent in the federal system ; the second 
cause of weakness is not (logically at least) inherent in federalism. 
Under a federal constitution the whole 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 enter- 
tained by the separate States of encroachments by the central 
government on their State rights will prohibit such a concentration 
of authority. 



PARLIAMENTARY SO VEREIGNTY 6- FEDERALISM 161 

governments leads, on the face of it, to a certain Chapter 
waste of energy. A federation therefore will always 
be at a disadvantage in a contest with Unitarian 
states of equal resources. Nor does the experience 
either of the United States or of the Swiss con- 
federation invalidate this conclusion. The Union is 
threatened by no powerful neighbours and needs no 
foreign policy. Circumstances unconnected with con- 
stitutional arrangements enables Switzerland to pre- 
serve her separate existence, though surrounded by 
powerful and at times hostile nations. The mutual 
jealousies moreover incident to federalism do visibly 
weaken the Swiss Republic. Thus, to take one 
example only, each member of the Executive must 
belong to a different canton. 1 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 palpably absurd. Yet this absurdity is forced 
upon Swiss politicians, and affords one among num- 
erous instances in which the efficiency of the public 
service is sacrificed to the requirements of federal 
sentiment. Switzerland, moreover, is governed under 
a form of democratic federalism which tends towards 
unitarianism. Each revision increases the authority 
of the nation at the expense of cantonal independence. 
This is no doubt in part due to the desire to strengthen 
the nation against foreign attack. It is perhaps also 
due to another circumstance. Federalism, as it de- 
fines, and therefore limits, the powers of each depart- 
ment of the administration, is unfavourable to the 

1 Constitution FJde'rale, art. 96. 
M 



1 62 THE SOVEREIGNTY OF PARLIAMENT 

Part i. interference or to the activity of government. Hence 
a federal government can hardly render services to 
the nation by undertaking for the national benefit 
functions which may be performed by individuals. 
This may be a merit of the federal system; it is, 
however, a merit which does not commend itself to 
modern democrats, and no more curious instance can 
be found of the inconsistent currents of popular 
opinion which may at the same time pervade a nation 
or a generation than the coincidence in England of a 
vague admiration for federalism alongside with a far 
more decided feeling against the doctrines of so-called 
laissez faire. A system meant to maintain the status 
quo in politics is incompatible with schemes for wide 
social innovation. 

conserva- Federalism tends to produce conservatism. 
{Sena- This tendency is due to several causes. The con- 

ism - stitution of a Federal state must, as we have seen, 
generally be not only a written but a rigid constitu- 
tion, that is, a constitution which cannot be changed 
by any ordinary process of legislation. Now this 
essential rigidity of federal institutions is almost 
certain to impress on the minds of citizens the idea 
that any provision included in the constitution is im- 
mutable and, so to speak, sacred. The least observa- 
tion of American politics shows how deeply the notion 
that the Constitution is something placed beyond the 
reach of amendment has impressed popular imagina- 
tion. The difficulty of altering the Constitution 
produces conservative sentiment, and national con- 
servatism doubles the difficulty of altering the 
Constitution. The House of Lords has lasted for 
centuries ; the American Senate has existed for about 



PARLIAMENTA RY SO VEREIGNTY & FEDERALISM 163 

one hundred years, yet to abolish or alter the House chapter 
of Lords would be a far 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 super- 
stitious reverence, and thus are in fact, though not 
in theory, protected from change or criticism. The 
principle that legislation ought not to impair obliga- 
tion of contracts has governed the whole course of 
American opinion. Of the conservative effect of such 
a maxim when forming an article of the constitution 
we may form some measure by the following reflection. 
If any principle of the like kind had been recognised 
in England as legally binding on the Courts, the 
Irish Land Act would have been unconstitutional and 
void; the Irish Church Act, 1869, would, in great 
part at least, have been from a legal point of view so 
much waste paper, and there would have been great 
difficulty in legislating in the way in which the 
English Parliament has legislated for the reform of 
the Universities. One maxim only among those 
embodied in the Constitution of the United States 
would, that is to say, have been sufficient if adopted 
in England to have arrested the most vigorous efforts 
of recent Parliamentary legislation. 

Federalism, lastly, means legalism the predomi- Legal 
nance of the judiciary in the constitution the preva- federai- 
lence of a spirit of legality among the people. 

That in a confederation like the United States the 
Courts become the pivot on which the constitutional 
arrangements of the country turn is obvious. Sove- 
reignty is lodged in a body which rarely exerts its 



164 THE SOVEREIGNTY OF PARLIAMENT 

Parti, authority and has (so to speak) only a potential 
existence ; no legislature throughout the land is more 
than a subordinate law-making body capable in strict- 
ness of enacting nothing but bye-laws ; the powers of 
the executive are again limited by the constitution ; 
the interpreters of the constitution are the judges. 
The Bench therefore can and must determine the 
limits to the authority both of the government and 
of the legislature ; its decision is without appeal ; the 
consequence follows that the Bench of judges is not 
only the guardian but also the master of the consti- 
tution. Nothing puts in a stronger light the inevit- 
able connection between federalism and the prominent 
position of the judicial body than the history of 
modern Switzerland. The statesmen of 1848 desired 
to give the Bundesgericht a far less authoritative 
position than is possessed by the American Supreme 
Court. They in effect made the Federal Assembly for 
most what it still is for some purposes, a final Court 
of Appeal. But the necessities of the case were too 
strong for Swiss statesmanship; the revision of 1874 
greatly increased the power of the Federal Tribunal. 
Dangers From the fact that the judicial Bench supports 

frorTposi- under federal institutions the whole stress of the con- 
jidicfery. stitution, a special danger arises lest the judiciary 
should be unequal to the burden laid upon them. In 
no country has greater skill been expended on con- 
stituting an august and impressive national tribunal 
than in the United States. Moreover, as already 
pointed out, the guardianship of the Constitution is 
in America confided not only to the Supreme Court 
but to every judge throughout the land. Still it is 
manifest that even the Supreme Court can hardly 



PARLIAMENTAR Y SO VEREIGNTY &* FEDERALISM 165 

support the duties imposed upon it. No one can chapter 
doubt that the varying decisions given in the legal- 
tender cases, or in the line of recent judgments of 
which Munn v. Illinois is a specimen, show that the 
most honest judges are after all only honest men, and 
when set to determine matters of policy and states- 
manship will necessarily be swayed by political feeling 
and by reasons of state. But the moment that this 
bias becomes obvious a Court loses its moral authority, 
and decisions which might be justified on grounds of 
policy excite natural indignation and suspicion when 
they are seen not to be fully justified on grounds of 
law. American critics indeed are to be found who 
allege that the Supreme Court not only is proving 
but always has proved too weak for the burden it is 
called upon to bear, and 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 
Federal Executive. These allegations undoubtedly 
hit a weak spot in the constitution of the great 
tribunal. Its judgments are without force, at any 
rate as against a State if the President refuses the 
means of putting them into execution. " John 
Marshall," said Jefferson, "has delivered his judg- 
" ment ; let him now execute it, if he can ; " and the 
judgment was never put into force. But the weight 
of criticisms repeated from the earliest days of the 
Union may be easily exaggerated. 1 Laymen are apt 
to mistake the growth of judicial caution for a sign of 

1 See Davis, American Constitutions ; the Relations of the Three De- 
partments as adjusted by a century. Mr. Davis is distinctly of opinion 
that the power of the Courts both of the United States and of the 
separate States has increased steadily since the foundation of the 
Union. 



1 66 THE SOVEREIGNTY OF PARLIAMENT 

Parti, judicial weakness. Foreign observers moreover 
should notice that in a federation the causes which 
bring a body such as the Supreme Court into existence, 
also supply it with a source of ultimate power. The 
Supreme Court and institutions like it are the pro- 
tectors of the federal compact, and the validity of 
that compact is, in the long run, the guarantee for 
the rights of the separate States. It is the interest 
of every man who wishes the federal constitution to 
be observed, that the judgments of the federal 
tribunals should be respected. It is therefore no bold 
assumption that, as long as the people of the United 
States wish to keep up the balanced system of 
federalism, they will ultimately compel the central 
government to support the authority of the federal 
Court. Critics of the Court are almost driven to 
assert that the American people are indifferent to 
State Eights. 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 woiking 
of a federal Court tell very little against such an in- 
stitution, if they establish nothing more than the 
almost self-evident proposition that a federal tribunal 
will be ineffective and superfluous, when the United 
States shall have ceased to be in reality a federation. 
A federal Court has no proper place in a Unitarian 
Kepublic. 

Judges, further, must be appointed by some 
authority which is not judicial, and where decisions 
of a Court control the action of government there 
exists an irresistible temptation to appoint magis- 
trates who agree (honestly it may be) with the views 
of the executive. A strong argument pressed against 



PARLIAMENTAR Y SO VEREIGNTY 6- FEDERALISM 167 

Mr. Elaine's election was, that he would have the Chapter 
opportunity as President of nominating four judges, 
and that a politician allied with railway companies 
was likely to pack the Supreme Court with men 
certain to wrest the law in favour of mercantile cor- 
porations. The accusation may have been baseless ; 
the fact that it should have been made, and that even 
" Eepublicans " 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 evils which must be weighed 
against the undoubted benefits of making the Courts 
rather than the legislature the arbiters of the consti- 
tution. 

That a federal system again can flourish only Federalism 
among communities imbued with a legal spirit and 



trained to reverence the law is as certain as can be |f gal 

does not 

any conclusion of political speculation. Federalism prevail. 
substitutes litigation for legislation, and none but a 
law -fearing people will be inclined to regard the 
decision of a suit as equivalent to the enactment of a 
law. The main reason why the United States has 
carried out the federal system with unequalled success 
is that the people of the Union are more thoroughly 
imbued with legal ideas than any other existing 
nation. 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. Hence the 
citizens become a people of constitutionalists, and 
matters which excite the strongest popular feeling, 
as for instance the right of Chinese to settle in the 
country, are determined by the judicial Bench, and 



168 THE SOVEREIGNTY OF PARLIAMENT 

Parti, the decision of the Bench is acquiesced in by the 
people. This acquiescence or submission is due to the 
Americans inheriting the legal notions of the common 
law, i.e. of the " most legal system of law " (if the ex- 
pression may be allowed), in the world. De Tocque- 
ville long ago remarked that the Swiss fell far short 
of the Americans in reverence for law and justice. 1 
The events of the last forty years suggest that he 
perhaps underrated Swiss submission to law. But 
the law to which Switzerland is accustomed recognises 
wide discretionary power on the part of the executive, 
and has never fully severed the functions of the judge 
from those of the government. Hence Swiss fed- 
eralism fails, just where one would expect it 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. 172-174, post. 



PART II 
THE EULE OF LAW 



CHAPTER IV 

THE RULE OF LAW I ITS NATURE AND GENERAL 
APPLICATIONS 

Two features have at all times since the Norman Con- chapter 
quest characterised the political institutions of England . L 

The first of these features is the omnipotence or 
undisputed supremacy throughout the whole country 
of the central government. This authority of the 
state or the nation 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 
of order. The maxim of the Courts, tout fuit in luy 
et vient de lui al commencement, 1 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 
the foregoing chapters. 2 

The second of these features, which is closely con- 
nected with the first, is the rule or supremacy of law. 
This peculiarity of our polity is well expressed in the 
old saw of the Courts, "La ley est le plus haute in- 

1 Year Books, xxiv. Edward III. ; cited Gneist, Englische Ver- 
waUungsrecht, i. p. 454. 

2 See Part I. 



172 THE RULE OF LA W 

Part ii. " heritance, que le roy ad; car par la ley il meme et 
" toutes ses sujets sont rules, et si la ley ne fuit, nul 
" roi, et nul inheritance sera." 1 

This supremacy of the law, or the security given 
under the English constitution to the rights of indi- 
viduals looked at from various points of view, forms 
the subject of this part of this treatise. 

The rule Foreign observers of English manners, such for 

example as Voltaire, De Lolme, De Tocqueville, or 
Gneist, have been far more struck than have English- 
observers. men themselves 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 De Tocqueville's writings, which compares 
the Switzerland and the England of 1836 in respect 
of the spirit which pervades their laws and manners. 
DeTocque- " I am not about," he writes, " to compare Switzer- 
wantof e " land with the United States, but with Great Britain. 
r " When you examine the two countries, or even if you 
" on ty P ass through them, you perceive, in my judg- 
contrast " ment, the most astonishing; differences between them. 

with Eng- & 

land. ' Take it all in all, England seems to be much more re- 
" publican than the Helvetic Eepublic. The principal 
" differences are found in the institutions of the two 
" countries, and especially in their customs (moeurs). 

" 1. In almost all the Swiss Cantons liberty of the 
" press is a very recent thing. 

"2. In almost all of them individual liberty is by 
;< no means completely guaranteed, and a man may be 

1 Year Books, xix. Henry VL, cited Gneist, Englische Verwal- 
tungsrecht, i. p. 455. 



ITS NATURE AND GENERAL APPLICATIONS 173 

" arrested administratively and detained in prison chapter 
" without much formality. 

" 3. The Courts have not, generally speaking, a 
" perfectly independent position. 

" 4. In all the Cantons trial by jury is unknown. 

"5. In several Cantons the people were thirty - 
" eight years ago entirely without political rights. 
" Aargau, Thurgau, Tessin, Vaud, and parts of the 
" Cantons of Zurich and Berne were in this condition. 

" The preceding 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 
te 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 the same point of view as the 
" French, that is to say, they consider them as a 
" means of revolution, and not as a slow and sure 
" method for obtaining redress of wrongs. The art of 
" associating and of making use of the right of associa- 
" tion is but little understood in Switzerland. 

" iv. The Swiss do not show the love of justice 
" which is such a strong characteristic of the English. 
" Their Courts have no place in the political arrange- 



174 THE RULE OF LA W 

Part ii. " ments of the country, and exert no influence on 
" public opinion. The love of justice, the peaceful 
" and legal introduction of the judge into the domain 
" of politics, are perhaps the most standing character- 
" istics of a free people. 

" v. Finally, and this really embraces all the rest, 
" the Swiss 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 
" that the spirit of liberty and the taste for it have 
" pervaded all the habits of the American people, that 
" he cannot conceive of them under any but a Eepub- 
" 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 
" Eepublican institutions in most of the Swiss Cantons, 
" it would be by no means certain that after rather a 
" 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." 1 
Bearing of De Tocqueville's language has a twofold bearing 
SiXTrT 5 on our present topic. His words point in the clearest 
meaning n f manner to the rule, predominance, or supremacy of 
law as the distinguishing characteristic of English 
institutions. They further direct attention to the 

1 See De Tocqueville, (Euvres Completes, viii. pp. 455-457. 



ITS NATURE AND GENERAL APPLICATIONS 175 

extreme vagueness of a trait of national character chapter 
which is as noticeable as it is hard to portray. De IV ' 
Tocqueville, we see, is clearly perplexed how to define 
a feature of English manners of which he at once re- 
cognises the existence ; he mingles or confuses together 
the habit of self-government, the love of order, the 
respect for justice and a legal turn of mind. All 
these sentiments are intimately allied, but they cannot 
without confusion be identified with each other. If 
however a critic as acute as De Tocqueville found a 
difficulty in describing one of the most marked pecu- 
liarities of English life, we may safely conclude that 
we ourselves, whenever we talk of Englishmen as 
loving the government of law, or of the supremacy of 
law as being a characteristic of the English constitu- 
tion, are using words which, though they possess a 
real significance, are nevertheless to most persons who 
employ them full of vagueness and ambiguity. If 
therefore 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- 
cisely what we mean by such expressions when we 
apply them to the British constitution. 

When we say that the supremacy or the rule of Three 
law is a characteristic of the English constitution, we 
generally include under one expression at least three law ' 
distinct though kindred conceptions. 

We mean, in the first place, that no man is punish- Absence of 
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 ment - 
of the land. In this sense the rule of law is contrasted 
with every system of government based on the exer- 



176 THE RULE OF LA W 

Part ii. else by persons in authority of wide, arbitrary, or dis- 

cretionary powers of constraint. 

Contrast Modern Englishmen may at first feel some surprise 

England that the " rule of law" (in the sense in which we are 
Continent now using the term) should be considered as in any 
at present wav a peculiarity of English institutions, since, at the 
present day, it may seem to be not so much the pro- 
perty of any one nation as a trait common to every 
civilised and orderly state. Yet, even if we confine 
our observation to the existing condition of Europe, 
we shall soon be convinced that the "rule of law" 
even in this narrow sense is peculiar to England, 
or to those countries which, like the United States of 
America, have inherited English traditions. In every 
continental community the executive exercises far 
wider discretionary authority in the matter of arrest, 
of temporary imprisonment, of expulsion from the 
territory, and the like, than is either legally claimed 
or in fact exerted by the government in England ; 
and recent events in Switzerland, which by the way 
strikingly confirm De Tocqueville's judgment of the 
national character, remind us that wherever there is 
discretion there is room for arbitrariness, and that in a 
republic no less than under a monarchy discretionary 
authority on the part of the government means inse- 
curity for legal freedom on the part of subjects. 
contrast If however we confined our observation to the 

Sand Europe of the year 1889, we might well say that in 
r- mos t European countries the rule of law is now nearly 



ing last as we n established as in England, and that private 
individuals at any rate who do not meddle in politics 
have little to fear, as long as they keep the law, either 
from the Government or from any one else ; and we 



ITS NATURE AND GENERAL APPLICATIONS 177 

might therefore feel some difficulty in understanding chapter 
how it ever happened that to foreigners the absence 
of arbitrary 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 the essential characteristic, of the English con- 
stitution. 1 

Our perplexity is entirely removed by carrying 
back our minds to the time when the English constitu- 
tion began to be criticised and admired by foreign 
thinkers. During the eighteenth century many of 
the continental governments were far from oppressive, 
but there was no continental country where men were 
secure from arbitrary power. The singularity of Eng- 
land 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. 2 He had good reason to know the difference. 

1 " La libert^ est le droit de faire tout ce que les lois permettent ; 
et si un citoyen pouvoit faire ce qu'elles defendant, il n'auroit plus de 
liberte, parce que les autres auroient tout de meme ce pouvoir." 
Montesquieu, De VEsprit Des Lois, Livre XL chap. iii. 

" II y a aussi une nation dans le monde qui a pour objet direct de 
" sa constitution la liberte politique." Ibid. chap. v. The English are 
this nation. 

2 " Les circonstances qui contraignaient Voltaire a chercher un 
refuge chez nos voisins devaient lui inspirer une grande sympathie 
pour des institutions ou il n'y avait nulle place & 1'arbitraire. ' La 
raison est libre ici et n'y connait point de contrainte.' On y respire 
un air plus ge'neieux, 1'on se sent au milieu de citoyens qui n'ont pas 
tort de porter le front haut, de marcher fierement, surs qu'on n'eut pu 
toucher a un seul cheveu de leur tete, et n'ayant a redoubter ni lettres de 
cachet, ni captivit immotivee." Desnoiresterres, Voltaire, i. p. 365. 

N 



178 THE RULE OF LA W 

Part ii In 1717 Voltaire was sent to the Bastille for a poem 
which he had not written, of which he did not know 
the author, and with the sentiment of which he did 
not agree. What adds to the oddity, in English eyes, 
of the whole transaction is that the Kegent treated the 
affair as a sort of joke, and, so to speak, " chaffed " the 
supposed author of the satire " 1 have seen " on being 
about to pay a visit to a prison which he " had not 
seen." 1 In 1725 Voltaire, then the literary hero of 
his country, was lured off from the table of a Duke, 
was thrashed by lackeys in the presence of their noble 
master, was unable to obtain either legal or honour- 
able redress ; and because he complained of this out- 
rage, 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 life was a series 
of contests 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. Moreover, the price 
at which Voltaire saved his property and his life was 
after all exile from France. Whoever wants to see 
how exceptional a phenomenon was that supremacy of 
law which existed 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 Encyclopedic published was a struggle on the 
part of all the distinguished literary men in France to 
obtain utterance for their thoughts. It is hard to say 
whether the difficulties or the success of the contest 
bear the strongest witness to the wayward arbitrari- 
ness of the French Government. 

1 Desnoiresterres, i. pp. 344-364. 



ITS NATURE AND GENERAL APPLICATIONS 179 

Koyal lawlessness was not peculiar to specially chapter 
detestable monarchs such as Louis the Fifteenth : it T ^' 
was inherent in the French system of administration. 
An idea prevails that Louis the Sixteenth at least was 
not an arbitrary, as he assuredly was not a cruel ruler. 
But it is an error to suppose that up to 1789 anything 
like the supremacy 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 
in our own day. The memory of these things is not 
in itself worth reviving. What does deserve to be 
kept in remembrance is that in 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 of the assem- 
bling of the States General, a brave officer and a dis- 
tinguished diplomatist could for some offence still 
unknown, without trial and without conviction, be 
condemned to undergo a penance and disgrace which 
could hardly be rivalled by the fanciful caprice of the 
torments inflicted by Oriental despotism. 1 

Nor let it 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 
the condition of the continent. In France, law and 
public opinion went for a great deal more than in 
Spain, the petty States of Italy, or the Principalities 
of Germany. All the evils of despotism which 

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 Constitutions Fran$aises, p. 10. 



i8o THE RULE OF LA W 

Part ii. attracted the notice of the world in a great kingdom 
such as France existed under worse forms in countries 
where, just because the evil was so much greater, it 
attracted the less attention. The power of the French 
monarch was criticised more severely than the lawless- 
ness of a score of petty tyrants, not because the 
French King ruled more tyrannically than other 
crowned heads, but because the French people ap- 
peared 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 thrill of enthusiasm 
with which all 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 popu- 
lace with a fervour which to Englishmen of the nine- 
teenth century is at first sight hardly comprehensible. 
Eeflection makes clear enough the cause of a feeling 
which spread through the length and breadth of the 
civilised world. The Bastille was the outward and 
visible sign of lawless power. Its fall was felt, and 
felt truly, to herald in for the rest of Europe that rule 
of law which already existed in England. 1 

We mean in the second place, 2 when we speak of 
the "rule of law" as a characteristic of our country, 

1 For English sentiment with reference to the servitude of the 
French, see Goldsmith, Citizen of the World, iii. Letter iv. ; and see 
Ibid., Letter xxxvii., p. 143, for a contrast between the execution of 
Lord Ferrers and the impunity with which a French nobleman was 
allowed to commit murder because of his relationship to the Royal 
family ; and for the general state of feeling throughout Europe, De 
Tocqueville, CEuvres Completes, viii. pp. 57-72. 

2 For first meaning see p. 175, ante. 



ITS NATURE AND GENERAL APPLICATIONS 181 

not only that with us no man is above the law, but Chapter 
(what is a different thing) that here every man, what- '_ 



ever be his rank or condition, is subject to the 
ordinary law of the realm and amenable to the juris- ordinary 

* T M i law admin- 

diction of the ordinary tribunals. istered by 

In England the idea of legal equality, or of the tribunals. 
universal subjection of all classes, to one law admin- 
istered by the ordinary Courts, has been pushed to its 
utmost limit. With us every official, from the Prime 
Minister down to a constable or a collector of taxes, is 
under the same responsibility for every act done with- 
out 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 pay- 
ment of damages, for acts done in their official char- 
acter but in excess of their lawful authority. A 
colonial governor, 1 a secretary of state, 2 a military 
officer, 3 and all subordinates, though carrying out the 
commands of their official superiors, are as responsible 
for any act which the law does not authorise as is any 
private and unofficial person. Officials, such for ex- 
ample as soldiers 4 or clergymen of the Established 
Church, are, it is true, in England as elsewhere, subject 
to laws which do not affect the rest of the nation, and 
are in some instances amenable to tribunals which 
have no jurisdiction over their fellow-countrymen; 
officials, that is to say, are to a certain extent governed 
under what may be termed official law. But this fact 

1 Mostyn v. Fabregas, Cowp. 161 ; Musgrave v. Pulido, 5 App. 
Gas. 102 ; Governor Wall's Case, 28 St. Tr. 51. 

2 Entick v. Carrington, 19 St. Tr. 1030. 

3 Phillips v. Eyre, L. R, 4 Q. B. 225. 

4 As to the legal position of soldiers, see chaps, viii. and ix. 



1 82 THE RULE OF LA W 

Part ii. is in no way inconsistent with the 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 An Englishman naturally imagines that the rule of 
law (in the sense in which we are now using the term) 
^ s a tra ^ common * a ll civilised societies. But this 
supposition is erroneous. Most European nations had 
indeed, by the end of the eighteenth century, passed 
through that stage of development (from which Eng- 
land emerged before the end of the sixteenth cen- 
tury) when nobles, priests, and others could defy the 
law. But it is even now far from universally true 
that in continental countries all persons are subject to 
one and the same law, or that the Courts are supreme 
throughout the state. If we take France as the type 
of a continental state, we may assert, with substantial 
accuracy, that officials under which word should be 
included all persons employed in the service of the 
state are, in their official capacity, protected from the 
ordinary law of the land, exempted from the jurisdiction 
of the ordinary tribunals, and subject in many respects 
only to official law administered by official bodies. 1 
General There remains yet a third and a different sense in 

constitu- which the "rule of law" or the predominance of the 
tionai law w a i spirit may be described as a special attribute of 

are result 

of ordinary English institutions. We may say that the constitu- 

law of the . . J J 

land. tion is pervaded by the rule 01 law on the ground that 
the general principles of the constitution (as for 

1 See chapter xii. as to the contrast between the rule of law and 
foreign administrative law, or droit administratif. 



ITS NATURE AND GENERAL APPLICATIONS 183 

example the right to personal liberty, or the right of Chapter 

public meeting) are with us the result of judicial '_ 

decisions determining the rights of private persons 
in particular cases brought before the Courts ; l whereas 
under many foreign constitutions the security (such 
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 they are 
" made what they are by human voluntary agency." 2 

Yet, though this is so, the dogma that the form of 
a government is a sort of spontaneous growth so 
closely bound up with the life of a people that we can 
hardly treat it as a product of human will and 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 at one 
stroke, and, far from being the result of legislation, in 
the ordinary sense of that term, are the fruit of con- 

1 Compare Calvin's Case, 7 Coke, Rep. 1 ; Campbell v. Hall, Cowp. 
204 ; Wilkes v. Wood, 19 St.Tr. 1153 ; Mostynv. Fabregas, Cowp. 161. 
Parliamentary declarations of the law such as the Petition of Eight 
and the Bill of Rights have a certain affinity to judicial decisions. 

2 Mill, Representative Government, p. 4. 



184 THE RULE OF LA W 

Part ii. tests carried on in the Courts on behalf of the rights 
of individuals. Our constitution, in short, is a judge- 
made constitution, and it bears on its face all the 
features, good and bad, of judge-made law. 

contrast Hence flow noteworthy distinctions between the 

tSngiish constitution of England and the constitutions of most 

constitu- foreign countries. 

tion and 

Foreign There is in the English constitution an absence of 

constitu- . T . . f - ^ 

tions. those declarations or definitions of rights so dear to 
foreign constitutionalists. Such principles, moreover, 
as you can discover in the English constitution are, 
like all maxims established by judicial legislation, 
mere generalisations drawn either from the decisions 
or dicta of judges, or from statutes which, being 
passed to meet special grievances, bear a close resem- 
blance 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 
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 
is the result of a legislative act, as it is in England, 
where the constitution itself is based upon legal de- 
cisions. 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 
that the rights of individuals to personal liberty flow 
from or are secured by the constitution. 1 In England 
the right to individual liberty is part of the constitu- 
tion, because it is secured by the decisions of the 
Courts, extended or confirmed as they are by the 
Habeas Corpus Acts. If it be allowable to apply the 

1 See p. 193, post. 



ITS NATURE AND GENERAL APPLICATIONS 185 

formulas of logic to questions of law, the difference in Chapter 
this matter between the constitution of Belgium and IV ' 
the English constitution may be described by the 
statement that in Belgium individual rights are de- 
ductions drawn from the principles of the constitution, 
whilst in England the so-called principles of the con- 
stitution are inductions or generalisations based upon 
particular decisions pronounced by the Courts as to 
the rights of given individuals. 

This is of course a merely formal difference. 
Liberty is as well secured in 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 arbi- 
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 arbi- 
trary arrest, forms part of the constitution because it 
is secured by the ordinary law of the land. But 
though this merely formal distinction is in itself of no 
moment, 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 
likely to be secure does depend a good deal upon the 
answer to the inquiry whether the persons who con- 
sciously or unconsciously build up the constitution of 
their country begin with definitions or declarations of 
rights, or with the contrivance of remedies by which 
rights may be enforced or secured. Now, most foreign 
constitution-makers have begun with declarations of 
rights. 1 For this 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 

1 Compare pp. 123-128, ante. 



1 86 THE RULE OF LA W 

Part II. circumstances, and by the consideration that to lay 
down general principles of law is the proper and natural 
function of legislators. But any knowledge of history 
suffices to show that foreign constitutionalists have, 
while occupied in defining rights, given insufficient 
attention to the absolute necessity for the provision 
of adequate remedies by which the rights they pro- 
claimed might be enforced. The Constitution of 
1791 proclaimed liberty of conscience, liberty of the 
press, the right of public meeting, the responsibility 
of government officials. 1 But there never was a 
period in the recorded annals of 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 Revolution. And an observer 
may well doubt whether a good number of these 
liberties or rights are even now so well protected 
under the French Republic as under the English 
Monarchy. On the other hand, there runs through 
the English constitution that inseparable connection 
between the means of enforcing a right and the right 
to be enforced which is the strength of judicial legis- 
lation. The saw, ubi jus ibi 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 English- 
men whose labours gradually framed the complicated 
set of laws and institutions which we call the Consti- 
tution, fixed their minds far more intently on providing 
remedies for the enforcement of particular rights or 
(what is merely the same thing looked at from the 
other side) for averting definite wrongs, than upon 

1 See Plouard, Les Constitutions Frangaises, pp. 14-16. 



ITS NATURE AND GENERAL APPLICATIONS 187 

any declaration of the Rights of Man or of English- Chapter 

men. The Habeas Corpus Acts declare no principle '_ 

and define no rights, but they are for practical pur- 
poses worth a hundred constitutional articles guaran- 
teeing individual liberty. Nor let it be supposed that 
this connection between rights and remedies which 
depends upon the spirit of law pervading English 
institutions is inconsistent with the existence of a 
written constitution, or even with the existence of 
constitutional 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. 1 But 
the statesmen of America have shown unrivalled skill 
in providing means for giving legal security to the 
rights declared by American constitutions. The rule 
of law is as marked a feature of the United States as 
of England. 

The fact, again, that in many foreign countries the 

1 The Petition of Eight, and the Bill of Eights, as also the 
American Declarations of Eights, 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 Eights of Man (Declaration des Droits de L'homme 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 rather by way 
of contrast than of similarity. The Petition of Eights and the Bill of 
Eights are not so much " declarations of rights " in the foreign sense 
of the term, as judicial condemnations of claims or practices on the 
part of the Crown, which are thereby pronounced illegal. It will be 
found that every, or nearly every, clause in the two celebrated docu- 
ments 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 de- 
clarations of rights. They are the product of eighteenth century ideas ; 
they have, however, it is submitted, the distinct purpose of legally con- 
trolling the action of the legislature by the Articles of the Constitution. 



1 88 THE RULE OF LA W 

Part ii. rights of individuals, e.g. to personal freedom, depend 
upon the constitution, whilst in England the law of 
the constitution is little else than a generalisation of 
the rights which the Courts secure to individuals, has 
this important result. The general rights guaranteed 
by the constitution may be, and in foreign countries 
constantly are, suspended. They are something ex- 
traneous to and independent of the ordinary course of 
the law. The declaration of the Belgian constitution, 
that individual liberty is " guaranteed/' betrays a way 
of looking at the rights of individuals very different 
to 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- 
tion for libellous or to suffer 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 
say that the " constitution guaranteed " one class of 
rights more than the other would be to an English- 
man an unnatural or a senseless form of speech. In 
the Belgian constitution the words have a definite 
meaning. They imply that no law invading personal 
freedom can be passed without a modification of the 
constitution made in the special way in which alone 
the constitution can be legally changed or amended. 1 
This however is not the point to which our immediate 
attention should be directed. The matter to be noted 
is, that where the right to individual freedom is a 
result deduced from the principles of the constitution, 

1 See pp. 113-128, ante. 



ITS NATURE AND GENERAL APPLICATIONS 189 

the idea readily occurs that the right is capable of Chapter 
being suspended or taken away. Where, on the other L_ 



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- 
stitutions 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 
countries " suspending the constitutional guarantees." 
But, after all, a statute suspending the Habeas Corpus 
Act falls very far short of what its popular name 
seems to imply ; and though a serious measure enough, 
is not, in reality, more than a suspension of one 
particular remedy for the protection of personal 
freedom. The Habeas Corpus Act may be suspended 
and yet Englishmen may enjoy almost all the rights 
of citizens. The constitution being based on the rule 
of law, the suspension of the constitution, as far as 
such a thing can be conceived possible, would mean 
with us nothing less than a revolution. 

That " rule of law " then, which forms a funda- Summary 
mental principle of the constitution, has three mean- 
ings, or may be regarded from three different points Law * 
of view. 

It 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- 
ment. Englishmen are ruled by the law, and by 
the law alone ; a man may with us be punished for 
a breach of law, but he can be punished for nothing else. 



190 THE RULE OF LA W 

Part II. It means, again, equality before the law, or the 
equal subjection of all classes to the ordinary law of 
the land administered by the ordinary Law Courts ; 
the " rule of law " in this sense excludes the idea of 
any exemption of officials 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" (tribunaux administratifs) 
of France. 1 The notion which lies at the bottom of 
the " administrative law " known to foreign countries 
is, that affairs or disputes in which the government 
or its servants are concerned are beyond the sphere 
of the civil Courts and must be dealt with by special 
and more or less official bodies. This idea is 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 
formula for expressing the fact that with us the law 
of the constitution, the rules which in foreign 
countries naturally form part of a constitutional code, 
are not the source but the consequence of the rights 
of individuals, as denned and enforced by the Courts : 
that, in short, the principles of private 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 

1 See chap. xii. 



ITS NATURE AND GENERAL APPLICATIONS 191 

the rule of law carry us but a very little way. If we Chapter 
want to understand what that principle in all its 
different aspects and developments really means, we Jj?^J of 
must try to trace its influence throughout some of Law" on 
the main provisions of the constitution. The best provisions 
mode of doing this is to examine with care the " 8 
manner in which the law of England deals with the 
following topics, namely, the right to personal free- 
dom ; l the right to freedom of discussion ; 2 the right 
of public meeting ; 3 the use of martial law ; 4 the 
rights and duties of the army ; 5 the collection and 
expenditure of the public revenue ; 6 and the respon- 
sibility of Ministers. 7 These topics will each be 
treated of in their due order. The object, however, 
of this treatise, as the reader should remember, is not 
to provide minute and full information, e.g. as to the 
Habeas Corpus Acts, or other enactments protecting 
the liberty of the subject ; but simply to show that 
these leading heads of constitutional law, which have 
been enumerated, these " articles," so to speak, of the 
constitution, are both governed by, and afford illus- 
trations of, the supremacy throughout English institu- 
tions 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 
by the sections of the code. Many of these subjects 
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 

1 Chap. v. 2 Chap, vi 3 Chap. vii. 

4 Chap. viii. 5 Chap. ix. 6 Chap. x. 

7 Chap. xi. 



192 THE RULE OF LA W 

Part ii. of English constitutionalism. It will therefore often 
be a convenient method of illustrating our topic to 
take the article of the Belgian, or it may be of some 
other constitution, which bears on the matter in 
hand, as for example the right to personal freedom, 
and to consider how far the principle therein em- 
bodied is recognised by the law of England ; and if 
it be so recognised, what are the means by which it 
is maintained or enforced by our Courts. One reason 
why the law of the constitution is imperfectly under- 
stood is, that we too rarely put it side by side 
with the constitutional provisions of other countries. 
Here, as elsewhere, comparison is essential to recog- 
nition. 



CHAPTER V 

THE RIGHT TO PERSONAL FREEDOM 

THE seventh article of the Belgian constitution chapter 
establishes in that country principles which have v - 
long prevailed in England. The terms thereof so Security 
curiously illustrate by way of contrast some marked sonai free- 
features of English constitutional law as to be worth Belgian 



quotation. 

" Art. 7. La liberte individuelle est garantie. 

" Nul ne pent Stre poursuivi que dans les cas 
" prevus par la loi, et dans la forme qu'elle prescrit. 

" Hors le cas de flagrant delit, nul ne pent etre 
" arrete qu'en vertu de I'ordonnance motivee dujuge, 
" qui doit etre signifiee au moment de I'arrestation, on 
11 au plus tard dans les vingt-quatre heures." 1 

The security which an Englishman enjoys for HOW 
personal freedom does not really depend upon or England" 1 
originate in any general proposition contained in any 
written document. The nearest approach which our 
statute-book presents to the statement contained in 
the seventh article of the Belgian constitution is the 
celebrated thirty-ninth article 2 of the Magna Charta : 

1 Constitution de la Belgique, art. 7. 

2 See Stubbs, Charters, p. 301. 





194 THE RULE OF LA W 

Part ii. " Nullus liber homo capiatur, vel imprisonetur, aut 
" dissaisiatur, aut utlagetur, aut exuletur, aut aliquo 
" modo destruatur, nee super eum ibimus, nee super 
" eum mittemus, nisi per legale judicium parium 
" suorum vel per legem terrae," which should be read 
in combination with the declarations of the Petition 
of Eight. And these enactments (if such they can 
be called) are rather records of the existence of a 
right than statutes which confer it. The expression 
again, " guaranteed," is, as I have already pointed 
out, extremely significant ; it suggests the notion 
that personal liberty is a special privilege insured to 
Belgians by some power above the ordinary law of 
the land. This is an idea utterly alien to English 
modes of thought, since with us freedom of person is 
not a special privilege but the outcome of the ordinary 
law of the land enforced by the Courts. Here, in 
short, we may observe the application to a particular 
case of the general principle that with us individual 
rights are the basis not the result of the law of the 
constitution. 

The 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 
legal methods by which its exercise is secured. 

The right to personal liberty as understood in 
England means in substance a person's right not 
to be subjected to imprisonment, arrest, or other 



THE RIGHT TO PERSONAL FREEDOM 195 

physical coercion in any manner that does not admit chapter 
of legal justification. That anybody should suffer v ' 
physical restraint is in England primd facie illegal, 
and can be justified (speaking in very general terms) 
on two grounds only, that is to say, either because 
the prisoner or person suffering restraint is accused of 
some offence and must be brought before the Courts 
to stand his trial, or because he has been duly con- 
victed of some offence and must suffer punishment 
for it. 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 im- 
prisoned except in due course of law, i.e. (speaking 
again in very general terms indeed) under some legal 
warrant or authority, 1 and, what is of far more con- 
sequence, it is secured by the provision of adequate 
legal means for the enforcement of this principle. 
These methods are twofold ; 2 namely, redress for 
unlawful arrest or imprisonment by means of a pro- 
secution 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. If we use the term P 

-,..-, , ings for 

redress in a wide sense, we may say that a person wrongful 
who has suffered a wrong obtains redress either ai 

1 See as to arrests, Stephen, Commentaries, iv. (8th ed.), pp. 
340-349. 

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 
rights by the use of a person's own force," is one of the obscurest legal 
questions. See Appendix, Note 3, Right of Self-Defence. 



196 THE RULE OF LA W 

Partn. when he gets the wrongdoer punished or when he 
obtains compensation for the damage inflicted upon 
him by the wrong. 

Each of these forms of redress is in England open 
to every one whose personal freedom has been in any 
way unlawfully interfered with. Suppose, for ex- 
ample, that X without legal justification assaults A, 
by knocking him down, or deprives A of his freedom 
as the technical expression goes, " imprisons " him 
whether it be for a length of time, or only for five 
minutes ; A has two courses open to him. He can 
have X convicted of an assault and thus cause him to 
be punished for his crime, or he can bring an action 
of trespass against X and obtain from X such com- 
pensation for the damage which A has sustained from 
X's conduct as a jury think that A deserves. Sup- 
pose that in 1725 Voltaire had at the instigation of 
an English lord been treated in London as he was 
treated in Paris. He would not have needed to 
depend for redress upon the goodwill of his friends 
or upon the favour of the Ministry. He could have 
pursued one of two courses. He could by taking 
the proper steps have caused all his assailants to be 
brought to trial as criminals. He could, if he had 
preferred it, have brought an action against each and 
all of them : he could have sued the nobleman who 
caused him to be thrashed, the footmen who thrashed 
him, the policemen who threw him into gaol, and the 
gaoler or lieutenant who kept him there. Notice 
particularly that the action for trespass, to which 
Voltaire would have had recourse, can be brought, 
or, as the technical expression goes, " lies " against 
every person throughout the realm. It can and has 



THE RIGHT TO PERSONAL FREEDOM 197 

been brought against governors of colonies, against Chapter 

secretaries of state, against officers who have tried 

by Court-martial persons not subject to military law, 
against every kind of official high or low. Here 
then we come across another aspect of the " rule of 
law." No one of Voltaire's enemies would, if he had 
been injured in England, have been able to escape 
from responsibility on the plea of acting in an official 
character or in obedience to his official superiors. 
Nor would any one of them have been able to say 
that because he was a government officer he must be 
tried by an 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 that official zeal or the 
orders of official superiors were either a legal or a 
moral excuse for breaking the law. 

Before quitting the subject of the redress afforded 
by the Courts for the damage caused by illegal inter- 
ference with any one's personal freedom, we shall do 
well to notice the strict adherence of the judges in 
this as in other cases to two maxims or principles 
which underlie the whole law of the constitution, and 
the maintenance of which has gone a great way both 
to ensure the supremacy of the law of the land and 
ultimately to curb the arbitrariness of the Crown. 
The first of these maxims or principles is that every 
wrongdoer is individually responsible for every unlaw- 
ful or wrongful act in which he takes part, and, what 
is really the same thing looked at from another point 
of view, cannot, if the act be unlawful, plead in his 



198 THE RULE OF LA W 

Part ii. defence that he did it under the orders of a master 
or superior. Voltaire, had he been arrested in Eng- 
land, could have treated each and all of the persons 
engaged in the outrage as individually responsible for 
the wrong done to him. Now this doctrine of indi- 
vidual responsibility is the real foundation of the 
legal dogma that the orders of the King himself are 
no justification for the commission of a wrongful or 
illegal act. The ordinary rule, therefore, that every 
wrongdoer is individually liable for the wrong he has 
committed, is the foundation on which rests the 
great constitutional doctrine of Ministerial responsi- 
bility. 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. 
The assaults and imprisonment from which Voltaire 
suffered were serious wrongs ; but it would be an 
error to fancy, as persons who have no experience in 
the practice of the Courts are apt to do, that pro- 
ceedings for trespass or for false imprisonment can be 
taken only where personal liberty is seriously inter- 
fered with. Ninety-nine out of every hundred of 
actions for assault or false imprisonment have refer- 
ence to injuries which in themselves are trifling. If 
one ruffian gives another a blow, if a policeman makes 
an arrest without lawful authority, if a schoolmaster 
keeps a scholar locked up at school for half an hour 
after he ought to have let the child go home, 1 if 
in short X interferes unlawfully to however slight a 
degree with the personal liberty of A, the offender 
exposes himself to proceedings in a Court of Law, 
and the sufferer, if he can enlist the sympathies of 

1 Hunter v. Johnson, 13 Q. B. D. 225. 



THE RIGHT TO PERSONAL FREEDOM 199 

a jury, may recover heavy damages for the injury Chapter 

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 
gravest invasions of personal freedom. This seems to 
us so much a matter of course as hardly to call for 
observation, but it may be suspected that few features 
in our legal system have done more to maintain the 
authority of the law than the fact that all 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. 1 

The right of a person who has been wrongfully 
imprisoned on regaining his freedom to put his 
oppressor on trial as a criminal, or by means of an 
action to obtain pecuniary compensation for the 
wrong which he has endured, affords a most insuffi- 
cient security for personal freedom. If X keeps A 
in confinement, it profits A little to know that if he 
could recover his freedom, which he cannot, he could 
punish and fine X. What A wants is to recover his 
liberty. Till this is done he cannot hope to punish 
the foe who has deprived him of it. It would have 
been little consolation for Voltaire to know that if he 
could have got out of the Bastille he could recover 
damages from his enemies. The possibility that he 
might when he got free have obtained redress for 

1 Contrast with this the extraordinary remedies adopted under the 
old French monarchy for the punishment of powerful criminals. 



200 THE RULE OF LA W 

Part II. the wrong done him might, so far from being a 
benefit, have condemned him to lifelong incarcera- 
tion. 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 is placed in 
confinement shall be able to get free. This security 
is provided by the celebrated writ of habeas corpus 
and the Habeas Corpus Acts, 
writ of ii. Writ of Habeas Corpus. 1 It is not within 

t r 

cor^s. the scope of these lectures to give a history of the 
writ of habeas corpus or to provide the details of the 
legislation with regard to it. For minute information 
both about the writ and about the Habeas Corpus 
Acts you should consult the ordinary legal text-books. 
My object is solely to explain generally the mode in 
which the law of England secures the right to per- 
sonal freedom. I shall therefore call attention to 
the following points : first, the nature of the writ ; 
secondly, the effect of the so-called Habeas Corpus 
Acts ; thirdly, the precise effect of what is called 
(not quite accurately) the Suspension of the Habeas 
Corpus Act; and, lastly, the relation of any Act 
suspending the operation of the Habeas Corpus Act 
to an Act of Indemnity. Each of these matters has 
a close bearing on the law of the constitution. 

Nature of Nature of Writ. Legal documents constantly 
give 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 See Stephen, Commentaries, iii. 627-636; 16 Car. I. c. 10 ; 31 
Car. II. c. 2; 56 George IIL c. 100; Forsyth, Opinions, 436-452, 481. 



THE RIGHT TO PERSONAL FREEDOM 201 

" Victoria, by the Grace of God, of the United Chapter 
" Kingdom of Great Britain and Ireland, Queen, v ' 
" 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 be called or known, in our Court before 
" us, at Westminster, on the 18th day of January next, 
" to undergo and receive all and singular such matters 
11 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 2Srd day of December in the 8th 
" year of our reign. 

"By the Court, 

"Robinson." 1 
"At the instance of C. C. W. 

" R. M. R" 

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

The character of the document is patent on its 
face. It is an order issued, in the particular instance, 
by the Court of Queen's Bench, calling upon a person 
by whom a prisoner is alleged to be kept in confine- 
ment to bring such prisoner to " have his body," 

1 Carus 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." 



202 THE RULE OF LA W 

Part ii. whence the name habeas corpus before the Court to 
let the Court know on what ground the prisoner is 
confined, and thus to give the Court the opportunity 
of dealing with the prisoner as the law 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 why he is 
imprisoned; and then having him before the Court, 
either then and there set him free or else see that he 
is dealt with in whatever way the law requires, as, 
for example, brought speedily to trial. 

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 believes him to be 
unlawfully imprisoned. It is issued by the High 
Court or during vacation by any judge thereof; and 
the Court or a judge should and will always cause 
it to be issued on being satisfied by affidavit that 
there is reason to suppose a prisoner to be wrongfully 
deprived of his liberty. You cannot say with strict- 
ness that the writ is issued " as a matter of course," 
for some ground must be shown for supposing that a 
case of illegal imprisonment exists. But the writ is 
granted "as a matter of right," that is to say, the 
Court will always issue it if primd facie ground is 
shown for supposing that the person on whose behalf 
it is asked for is unlawfully deprived of his liberty. 
The writ or order of the Court can be addressed to 
any person whatever, be he an official or a private 
individual, who has, or is supposed to have, another 
in his custody. Any disobedience to the writ exposes 



THE RIGHT TO PERSONAL FREEDOM 203 

the offender to summary punishment for contempt of Chapter 

Court, 1 and also in many cases to heavy penalties 

recoverable by the party aggrieved. 2 To put the 
matter therefore, in the most general terms, the case 
stands thus. The High Court of Justice possesses, 
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 
in unlawful confinement to be brought before the 
Court. 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 
of his liberty. 

The Habeas Corpus Acts. The right to the Habeas 
writ of habeas corpus existed at common law long 
before the passing in 1679 of the celebrated Habeas 
Corpus Act, 3 31 Car. II. cap. 2, and you may wonder 
how it has happened that this and the subsequent 
Act, 56 Geo. III. c. 100, are treated, and (for practical 
purposes) rightly treated, as the basis on which rests 
an Englishman's security for the enjoyment of his 
personal freedom. 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 Rex v. Winton, 5 T. R. 89, and conf. 56 Geo. III. c. 100, s. 2 ; 
see Corner, Practice of the Crown Side of the Court of Queen's Bench. 

2 31 Car. II. c. 2, s. 4. 3 See also 16 Car. I. c. 10, s. 6. 



204 THE RULE OF LA W 

Part II. same, and if necessary discharge the prisoner, or on 
the part of the gaoler or other person who has the 
prisoner in custody. The earlier Act of Charles the 
Second applies to persons imprisoned on a charge of 
crime ; the later Act of George the Third applies to 
persons deprived of their liberty otherwise than on a 
criminal accusation. 

Take these two classes of persons separately, 
si Car. ii. A person is imprisoned on a charge of crime. If 
he is imprisoned without any legal warrant for his 
imprisonment he has a right to be set at liberty. If 
on the other hand he is imprisoned under a legal 
warrant, the object of his detention is to ensure his 
being brought to trial. His position in this case 
differs according to the nature of the offence with 
which he is charged. In the case of the lighter 
offences known as misdemeanours he has, generally 
speaking, 1 the right to his liberty on giving security 
with proper sureties that he will in due course sur- 
render 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 
admitted to bail. In the case, on the other hand, of 
the more serious offences, such as felonies or treasons, 
a person who is once committed to prison is not en- 
titled to be let out on bail. The right of the prisoner 
is in this case simply the right to a speedy trial. 
The effect of the writ of habeas corpus would be 
evaded either if the Court did not examine into the 

1 See Stephen, Digest of the Law of Criminal Procedure, art. 276, 
note 1, and also art. 136 and p. 89, note 1. Compare 11 & 12 
Viet. c. 42, s. 23. 



THE RIGHT TO PERSONAL FREEDOM 205 

validity of the warrant on which the prisoner was Chapter 
detained, and if the warrant were not valid release V- 
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 
of justice. The law as to persons imprisoned under 
accusations of crime stands through the combined 
effect of the rules of the common law and of the 
statute in substance as follows. The gaoler who has 
such person in custody is bound when called upon to 
have the prisoner before the Court with the true 
cause of his commitment. If the cause is insufficient 
the prisoner must of course be discharged ; if the 
cause is sufficient the prisoner, in case he is charged 
with a misdemeanour, can in general insist upon 
being bailed till trial ; in case on the other hand the 
charge is one of treason or felony he can insist upon 
being tried at the first sessions after his committal, 
or if he is not then tried, upon being bailed, unless 
the witnesses for the Crown cannot appear. If 
he is not tried at the second sessions after his 
commitment he can insist upon his release without 
bail. The net result, therefore, appears to 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 upon bail or else 
of being brought to a speedy trial. 

A person, again, who is detained in confinement 56 GCO. 
. \ f - j f i,- A - m. c. 100. 

but not on a charge 01 crime needs ior his protection 

the means of readily obtaining a legal decision on 



206 THE RULE OF LA W 

Part II. the lawfulness of his confinement, and also of getting 
an immediate release if he has by law a right to his 
liberty. This is exactly what the writ of habeas 
corpus affords. Whenever any Englishman or foreigner 
is alleged to be wrongfully deprived of liberty, 
the Court will issue the writ, have the person 
aggrieved brought before the Court, and if he has 
a right to liberty set him free. Thus if a child is 
forcibly kept apart from his parents, 1 if a man is 
wrongfully kept in confinement as a lunatic, if a nun 
is alleged to be prevented from leaving her convent, 
if, in short, any man, woman, or child is, or is 
asserted on apparently good grounds to be deprived 
of liberty, the Court will always issue a writ of 
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 with- 
out lawful cause, set him free. Till, however, the year 
1816(56 Geo. III.) the machinery for obtaining the writ 
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 
substance to apply to non-criminal cases the machinery 
of the great Habeas Corpus Act, 31 Car. II. c. 2. 

At the present day, therefore, the securities for 
personal freedom are in England as complete as 
laws can make them. The right to its enjoyment is 
absolutely acknowledged. Any invasion of the right 
entails either imprisonment or fine upon the wrong- 
doer ; and any person, whether charged with crime or 
not, who is even suspected to be wrongfully imprisoned, 

1 See The Queen v. Nash, 10 Q. B. D. (C. A.), 454 ; and compare 
Re Agar-Ellis, 24 Ch. D. (C.A.), 317. 



THE RIGHT TO PERSONAL FREEDOM 207 

has, if there exists a single individual willing to chapter 
exert himself on the victim's behalf, the certainty of 
having his case duly investigated, and, if he has been 
wronged, of recovering his freedom. Let us return 
for a moment to a former illustration, 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 1725 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 
1725 as it was in 1773 to obtain by means of habeas 
corpus the freedom of the slave James Sommersett 
when actually confined in irons on board a ship lying 
in the Thames and bound for Jamaica. 1 

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 
are essentially procedure Acts, and simply aim at 
improving the legal mechanism by means of which 
the acknowledged right to personal freedom may be 
enforced. They are intended, as is generally the case 
with legislation which proceeds under the influence of 
lawyers, simply to meet actual and experienced diffi- 
culties. Hence the Habeas Corpus Act of Charles 
the Second's reign was an imperfect or very restricted 
piece of legislative work, and Englishmen waited 

1 Sommersett' s Case, 20 St. Tr. 1. 



208 THE RULE OF LA W 

Part II. nearly a century and a half (1679-1816) before the 
procedure for securing the right to discharge from 
unlawful confinement was made complete. But this 
lawyer-like mode of dealing with a fundamental right 
had with all its defects the one great merit that legis- 
lation was directed to the right point. There is no 
difficulty, and there is often very little gain, in 
declaring the existence of a right to personal freedom. 
The true difficulty is to secure its enforcement. The 
Habeas Corpus Acts have achieved this end, and 
have therefore done for the liberty of Englishmen 
more than could have been achieved by any declara- 
tion 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 
Habeas Corpus Act that the law of the English 
constitution is at bottom judge-made law. 1 
Effect of Every critic of the constitution has observed the 

JJS^f effect of the Habeas Corpus Acts in securing the 
corpus liberty of the subject ; what has received less and 

on author- J 

ity of deserves as much attention is the way in which the 

judges. 

right to issue a writ of habeas corpus, strengthened 
as that right is by statute, determines the whole 
relation of the judicial body towards the executive. 
The authority to enforce obedience to the writ is 
nothing less than the power to release from imprison- 

1 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 Constitu- 
tions Francises, p. 161. 



THE RIGHT TO PERSONAL FREEDOM 209 

merit any person who in the opinion of the Court is chapter 
unlawfully deprived of his liberty, and hence in effect 
to put an end to or to prevent any punishment which 
the Crown or its servants may attempt to inflict in 
opposition to the rules of law as interpreted by the 
judges. The judges therefore are in truth, though 
not in name, invested with the means of hampering 
or supervising the whole administrative action of the 
government, 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 its existence governs the con- 
duct of the administration. An example or two will 
best show the mode in which the "judiciary" (to use 
a convenient Americanism) can and do by means 
of the writ of habeas corpus keep a hold on the acts 
of the executive. In 1839 Canadian rebels, found 
guilty of treason in 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 
thereupon taken from prison and brought upon a writ 
of habeas corpus before the Court of Exchequer. 
Their whole position having been considered by the 
Court, it was ultimately held that the imprisonment 
was legal. But had the Court taken a different view, 
the Canadians would at once have been released from 
confinement. 1 In 1859 an English officer serving in 
India was duly convicted of manslaughter and sent- 

1 The Case of the Canadian Prisoners, 5 M. & W. 32. 
P 



THE RULE OF LA IV 



Part ii. enced to four years' imprisonment : he was sent 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 
technical ground set at liberty. 1 So, to take a very 
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. 2 Moreover, as already 
pointed out, the authority of the civil tribunals even 
when not actually put into force regulates the action 
of the government. In 1854 a body of Russian sailors 
were found wandering about the streets of G-uildford, 
without any visible means of subsistence ; they were 
identified by a Russian naval officer as deserters from 
a Russian man-of-war which had put into an English 
port ; they were thereupon, under his instructions 
and with the assistance of the superintendent of 
police, conveyed to Portsmouth for the purpose of 

1 In re Allen, 30 L. J. (Q. B.), 38. 

2 See Case of Pressing Mariners, 18 St. Tr. 1323 ; Stephen, Com- 
mentaries, ii. p. 595 ; Conf. Corner, Forms of Writs on Grown Side of 
Court of Queen's Bench, for form of habeas corpus for an impressed 
seaman. 



THE RIGHT TO PERSONAL FREEDOM 211 

their being carried back to the Russian ship. Doubts Chapter 
arose as to the legality of the whole proceeding. The v ' 
law officers were consulted, who thereupon gave it as 
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 conveyed 
" back to the Russian ship were contrary to law." : 
The sailors were presumably released ; they no doubt 
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 will be 
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 govern- 
ment for trial. 2 A French forger, robber, or murderer 
who escapes from France to England cannot, inde- 
pendently of statutory enactments, be sent back to 
his native land for trial or punishment. The absence 

1 See Forsyth, Opinions, p. 468. 

2 See, however, Rex v. Lundy, 2 Ventris, 314 ; Rex v. Kimberley, 
2 Stra., 848 ; East India Company v. Campbell, 1 Ves. Senr., 246 ; 
Mure v. Kaye, 4 Taunt, 34 ; and Chitty, Criminal Law (1826), pp. 14, 
16, in support of the opinion that the Crown possessed a common law 
right of extradition as regards foreign criminals. This opinion may 
possibly once have been correct, but has (to use the words of a high 
authority) " ceased to be law now. If any magistrate were now to 
" arrest a person on this ground, the validity of the commitment would 
" certainly be tested, and, in the absence of special legislative provisions, 
" the prisoner as certainly discharged upon application to one of the 
" superior Courts." Clarke, Extradition (3d ed.), p. 27. 



212 THE RULE OF LA W 

Part ii. of any power on the part of the Crown to surrender 
foreign criminals to the authorities of their own state 
has been found so inconvenient, that in recent times 
Extradition Acts have empowered the Crown to make 
treaties with foreign states for the mutual extradition 
of criminals or of persons charged with crime. The 
exercise of this authority is, however, hampered by 
restrictions which are imposed by the statute under 
which alone it exists. It therefore 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 within 
the precise terms of any Extradition Act. He applies 
for a writ of habeas corpus ; he is brought up before 
the High Court ; every technical plea he can raise 
obtains full consideration, and if on any ground what- 
ever it can be shown that the terms of the Extradition 
Act have not been complied with, or that they do not 
justify his arrest and surrender, he is as a matter of 
course at once set at liberty. 1 It is easy to perceive that 
the authority of the judges, exercised, as it invariably 
must be, in support of the strict rules of law, cuts 
down the discretionary powers of the Crown. It 
often prevents the English government from meeting 
public danger by measures of precaution which would 
as a matter of course be taken by the executive of 
any continental country. Suppose, 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 

1 In re Coppin, L. R. 2 Ch. 47 ; The Queen v. Wilson, 3 Q. B. D. 42. 



THE RIGHT TO PERSONAL FREEDOM 213 

the conspiracy does not admit of absolute proof. An Chapter 
English Minister, if he is not prepared to put the v ' 
conspirators on their trial, has no means 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 
set at liberty. Of the political or, to use foreign 
expressions, of the " administrative " reasons which 
might make the arrest or expulsion of a foreign 
refugee highly expedient, the judges would hear 
nothing ; that he was arrested by order of the 
Secretary of State, that his imprisonment was a 
simple administrative act, that the Prime Minister or 
the Home Secretary was prepared to make affidavit 
that the arrest was 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 of 
habeas corpus. All that any judge could inquire 
into would be, whether there was any rule of common 
or of statute law which would authorise interference 
with a foreigner's personal freedom. If none such 
could be found, the applicants would assuredly obtain 
their liberty. The plain truth is that the power 
possessed by the judges of controlling the administra- 
tive conduct of the executive has been, of necessity, 
so exercised as to prevent the development with us 
of any system corresponding to the " administrative 
law " of continental states. It strikes at the root of 
those theories as to the nature of " administrative 



214 THE RULE OF LA W 

Part H. acts," and as to the " separation of powers," on which, 
as will be shown in a later chapter, 1 the droit adminis- 
tratif of France depends, and it deprives the Crown, 
which now means the Ministry of the day, of all dis- 
cretionary authority. The actual or possible interven- 
tion, 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. 
Contests We can now see why it was that the political 

teenth n ~ conflicts of the seventeenth century often raged round 
position of the judges, and why the battle might 



position of 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 work- 
ing of our institutions. To supporters on the one 
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 representa- 
tive in Coke. The Parliamentary leaders, on the other 
hand, saw, more or less distinctly, that the independence 
of the Bench was the sole security for the maintenance 
of the common law, which was nothing else than the rule 
of established customs modified only by Acts of Parlia- 
ment, and that Coke in battling for the power of the 
judges was asserting the rights of the nation ; they 
possibly also saw, though this is uncertain, that the 
maintenance of rigid legality, inconvenient as it might 

1 See chap. xii. 2 Darnel's Case, 3 St. Tr. 1. 



THE RIGHT TO PERSONAL FREEDOM 215 

sometimes prove, was the certain road to Parliamentary Chapter 
sovereignty. 1 

Suspension of the Habeas Corpus Act. During suspension 
periods of political excitement the power or duty of 
the Courts to issue a writ of habeas corpus, and Act - 
thereby compel the speedy trial or release of persons 
charged with crime, has been found an inconvenient 
or dangerous limitation on the authority of the 
executive government. Hence has arisen the occa- 
sion for statutes which are popularly called Habeas 
Corpus Suspension Acts. I say " popularly called," 
because if you take (as you may) the Act 34 Geo. III. 
c. 54 as a type of such enactments, you will see 
that it hardly corresponds with its received name. 
The whole effect of the Act, which does not even 
mention the Habeas Corpus Act, is to make it im- 
possible 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 
personal freedom provided by the Habeas Corpus 
Acts ; but it falls very far short of anything like a 
general suspension of the right to the writ of habeas 
corpus; it in no way affects the privileges of any 
person not imprisoned on a charge of high treason ; 
it does not legalise any arrest, imprisonment, or 
punishment which was not lawful before the Sus- 
pension Act passed ; it does not in anywise touch 
the claim to a writ of habeas corpus possessed by 

1 See Gardiner, History of England, ii. chap, xxii., for an admir- 
able statement of the different views entertained as to the position of 
the judges. 



2i6 THE RULE OF LA W 

Part ii. every one, man, woman, or child, who is held in 
confinement otherwise than on a charge of crime. 
The particular statute, 34 Geo. III. c. 54 is, and (I 
believe) every other Habeas Corpus Suspension Act 
affecting England has been, an annual Act, and must 
therefore, if it is to continue in force, be renewed 
year by year. The sole, immediate, and direct 
result therefore of suspending the Habeas Corpus 
Act is this : the Ministry may for the period 
during which the Suspension Act continues in force 
constantly defer the trial of persons imprisoned on 
the charge of treasonable practices. This increase in 
the power of the executive is no trifle, but it falls 
far short of the process known in some foreign coun- 
tries as " suspending the constitutional guarantees," 
or in France as the "proclamation of a state of 
siege ; " l it, indeed, extends the arbitrary powers 
of the government to a far less degree than many 
so-called Coercion Acts. That this is so may be 
seen by a mere enumeration of the chief of the 
extraordinary powers which were conferred by recent 
enactments on the Irish executive. Under the Act of 
1881 (44 Viet. c. 4) the Irish executive obtained the 
absolute power of arbitrary and preventive arrest, 
and could without breach of law detain in prison any 
person arrested on suspicion for the whole period for 
which the Act continued in force. It is true that 
the Lord Lieutenant could arrest only persons 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 

1 See p. 279, post. Conf. ^tat de Siege" in Cheruel, Diction- 
naire Historique des Institutions de la France (6th ed.) 



THE RIGHT TO PERSONAL FREEDOM 217 

by the Lord Lieutenant was made under the Chapter 

Act conclusive evidence of all matters contained L_ 

therein, and therefore (inter alia) of the truth 
of the assertion that the arrested person or "sus- 
pect" was reasonably suspected, e.g. of treason- 
able practices, and therefore liable to arrest, the 
result clearly followed that neither the Lord Lieu- 
tenant nor any official acting under him could by any 
possibility be made liable to any legal penalty for 
any arrest, however groundless or malicious, made in 
due form within the words of the Act. The Irish 
government therefore could arrest any person whom 
the Lord Lieutenant thought fit to imprison, pro- 
vided only that the warrant was in the form and 
contained the allegations required by the statute. 
Under the Prevention of Crime (Ireland) Act, 1882 
45 & 46 Viet. c. 25 the Irish executive was armed 
with the following (among other) extraordinary 
powers. The government could abolish the right 
to trial by jury, 1 could arrest strangers found out 
of doors at night under suspicious circumstances, 2 
could seize any newspaper which in the judgment of 
the Lord Lieutenant contained matter inciting to 
treason or violence, 3 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. 4 Not one of these extraordinary 

1 Sect. 1. 2 Sect. 12. 3 Sect 13. 4 Sect. 15. 



2i8 TJfE RULE OF LA W 

Part ii. 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 " suspen- 
sion" is supplied by the fact that before a Habeas 
Corpus Suspension Act runs out its effect is, almost 
invariably, supplemented by legislation of a totally 
different character, namely, an Act of Indemnity. 

Act of in- An Act of Indemnity. Reference has already 
111 y ' been made to Acts of Indemnity as the supreme 
instance of Parliamentary sovereignty. 1 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 com- 
mitted 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 criminal liability for a violation of the law. 
Suppose that a Secretary of State or his subordinates 
should, during the suspension of the Habeas Corpus 
Act, arrest and imprison a perfectly innocent man 
without any cause whatever, except (it may be) 
the belief that it is conducive to the public safety, 
that the particular person say, an influential party 
leader such as Wilkes, Fox, or O'Connell should be 
at a particular crisis kept in prison, and thereby 
deprived of influence. Suppose, again, that an arrest 
should be made by orders of the Ministry under 
circumstances which involve the unlawful breaking 
into a private dwelling - house, the destruction of 
private property, or the like. In each of these in- 
stances, and in many others which might easily be 

1 See pp. 47, 48, ante. 



THE RIGHT. TO PERSONAL FREEDOM 219 

imagined, the Secretary of State who orders the arrest chapter 

and the officials who carry out his commands have 1_ 

broken the law. They may have acted under the 
bond fide belief that their conduct was justified by 
the necessity of providing for the maintenance of 
order. But this will not of itself, whether the 
Habeas Corpus Act be suspended or not, free the 
persons carrying out the arrests from criminal and 
civil liability for the wrong they have committed. 
The suspension indeed of the Habeas Corpus Act 
prevents the person arrested from taking at the 
moment any proceedings against a Secretary of State 
or the officers who have acted under his orders. For 
the sufferer is of course imprisoned on the charge of 
high treason or suspicion of treason, and therefore 
will not, while the suspension lasts, be able to get him- 
self 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, 
either by means of being put on his trial or otherwise, 
his arbitrary imprisonment shall be brought to an end. 
In the cases we have supposed the prisoner has been 
guilty of no legal offence. The offenders are in reality 
the Secretary of State and his subordinates. The 
result is that on the expiration of the Suspension Act 
they are liable to actions or indictments for their 
illegal conduct, and can derive no defence whatever 
from the mere fact that, at the time when the unlaw- 
ful arrest took place, the Habeas Corpus Act was, 
partially at any rate, not in force. It is however 
almost certain that when the suspension of the Habeas 
Corpus Act makes it possible for the government to 
keep suspected persons in prison for a length of time 



220 THE RULE OF LA W 

Part II. 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 further 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 post- 
poned to considerations of state. A Suspension Act 
would, in fact, fail of its main object, unless officials 
felt assured that, as long as they bond jide, 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 
which, though it might be technically a breach of 
law, was nothing more than the free exertion for 
the public good of that discretionary power which 
the suspension of the Habeas Corpus Act was in- 
tended to confer upon the executive. This assurance 
is derived from the expectation that, before the 
Suspension Act ceases to be in force, Parliament 
will pass an Act 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 
which reference has already been made, 34 Geo. 
III. c. 54, was continued in force by successive annual 



THE RIGHT TO PERSONAL FREEDOM 221 

re-enactments for seven years, from 1794 to 1801. In Chapter 

the latter year an Act was passed, 41 Geo. III. 1_ 

cap. 66, "indemnifying such persons as since the first 
" 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 effect, 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 importance which can fairly be given 
to an expected Act of Indemnity. The relief to be 
obtained from it is prospective and uncertain. Any 
suspicion on the part of the public, that officials had 
grossly abused their powers, might make it difficult 
to obtain a Parliamentary indemnity for things done 
while the Habeas Corpus Act was suspended. As 
regards, again, the protection to be derived from the 
Act by men who have been guilty of irregular, illegal, 
oppressive, or cruel conduct, everything depends on 
the terms of the Act of Indemnity. These may 
be either narrow or wide. The Indemnity Act, for 
instance, of 1801, gives a very limited amount of 
protection to official wrongdoers. It provides indeed 
a defence against actions or prosecutions in respect 
of anything done, commanded, ordered, directed, or 



222 THE RULE OF LA W 

Part ii. advised to be done in Great Britain for apprehend- 
ing, imprisoning, or detaining in custody any person 
charged with high treason or treasonable practices. 
And no doubt such a defence would cover any irregu- 
larity, or 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 offender to actions or prosecutions, and 
could not be justified under the terms of the Indem- 
nity Act. Reckless cruelty to a political prisoner, or, 
still more certainly, the arbitrary punishment or the 
execution of a political prisoner, between 1793 and 
1801, would, in spite of the Indemnity Act, have left 
every 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 British Parliament, should compare 
such an Act as 41 Geo. III. cap. 66, with the 
enactment whereby the Jamaica House of Assembly 
attempted to cover Governor Eyre from all liability 
for unlawful deeds done in suppressing rebellion during 
1866. An Act of Indemnity again, though it is the 
legalisation of illegality, is also, it should be noted, itself 
a law. It is something in its essential character there- 
fore 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 assume the form of regular legislation, 
and this fact of itself maintains in no small degree 
the real no less than the apparent supremacy of law. 



CHAPTER VI 

THE RIGHT TO FREEDOM OP DISCUSSION 

THE Declaration of the Eights of Man 1 and the Chapter 
French Constitution of 1791 proclaim freedom of VL 
discussion and the liberty of the press in terms which Freedom of 

f L discussion. 

are still cited in text-books 2 as embodying maxims of 
French jurisprudence. 

"La libre communication des pensees et des Principles 
" opinions est un des droits les plus precieux de in foreign 



" I'homme ; tout citoyen peut done parler, ecrire, l^ 
" imprimer librement, sauf a repondre de I'abus de 
" cette liberte dans les cas determines par la loi." 3 

" La constitution garantit, comme droit naturel et 
"civil . . . la liber tea tout hommede parler, d' ecrire, 
" d'imprimer et publier ses pensees, sans que ses ecrits 
" puissent Stre soumis a aucune censure ou inspection 
" avant leur publication." * 

Belgian law, again, treats the liberty of the press 
as a fundamental article of the constitution. 

"Art. 18. La presse est libre; la censure ne 

1 Plouard, Les Constitutions Frangaises, p. 16. 

2 Bour.guign.on, filaments Gtntfraux de Legislation Fran$aise, p. 468. 

3 D&lar. des droits, art. 11, Plouard, p. 16. 

4 Constitution de 1791, Tit. 1 ; Plouard, Constitutions Francises, 
p. 18. 



224 THE RULE OF LA W 

Part ii. " pourra jamais etre etablie : il ne pent etre exige 
" de cautionnement des ecrivains, editeurs ou im- 
" primeurs. 

" Lorsque I'auteur est connu et domicilie en Bel- 
" gique, I'editeur, I'imprimeur ou le distributeur ne 
" pent etre poursuivi." l 

Both the revolutionists of France and the con- 



do^ of ee stitutionalists of Belgium borrowed their ideas about 
recoiled freedom of opinion and the liberty of the press from 
b a w Englisb England, and most persons form such loose notions 
as to English law that the idea prevails in England 
itself that the right to the free expression of opinion, 
and especially that form of it 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 man to say and write what he 
pleases, especially on social, political, or religious 
topics, without fear of legal penalties. Yet this 
notion, justified though it be, to a certain extent, 
by the habits of modern English life, is essentially 
false, and conceals from students the real attitude of 
English law towards what is called " freedom of 
thought," and is more accurately described as the 
" right to the free expression of opinion." As every 
lawyer knows, the phrases "freedom of discussion" 
or " liberty of the press " are not to be found in any 
part of the statute-book nor among the maxims of the 
common law. As terms of art they are indeed quite 
unknown to our Courts. At no time has there in 

1 Constitution de la Belgique, art. 18. 



THE RIGHT TO FREEDOM OF DISCUSSION 225 

England been any proclamation of the right to chapter 

liberty of thought or to freedom of speech. The _ 

true state of things cannot be better described than 
in these words from an excellent treatise on the law 
of libel :- 

" Our present law permits any one to say, write, English 
" and publish what he pleases ; but if he make a bad secures that 
" use of this liberty, he must be punished. If he 
" unjustly attack an individual, the person defamed 
" may sue for damages ; if, on the other hand, the statements 

J . proved to 

' words be written or printed, or if treason or im- be breach 
" morality be thereby inculcated, the offender can be 
" tried for the misdemeanour either by information 
" or indictment." l 

Any man may therefore say or write whatever 
he likes, subject to the risk of, it may be, severe 
punishment if he publishes any statement (either 
by word of mouth, in writing, or in print) which 
he is not legally entitled to make. Nor is the 
law of England specially favourable to free speech 
or to free writing in the rules which it maintains in 
theory and often enforces in fact as to the kind of 
statements which a man has a legal right to make. 
Above all, it recognises no special privilege on behalf 
of the "press," if by that term we mean, in con- 
formity with ordinary language, periodical literature 
in general, and particularly the newspapers. In truth 
there is nothing or scarcely anything in the statute- 
book which can be called a " press law." 2 The law 
of the press as it exists here is merely part of the 

1 Odgers, Libel and Slander, Introd. (1st ed.), p. 12. 

2 For exceptions to this, see e.g. 8 & 9 Viet. c. 75 ; 44 & 45 Viet, 
c. 60, a. 2. 

Q 



226 THE RULE OF LA W 

Part II. 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. 

Libels on There are many statements with regard to in- 
uais. dividuals which no man is entitled to publish in 
writing or print. It is a libel (speaking generally) to 
circulate any untrue statement about another which 
is calculated to 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 
libel and is liable to an action for damages. The 
person who makes a defamatory statement and 
authorises its publication in writing, the person who 
writes, the publisher who brings out for sale, the 
printer who prints, the vendor who distributes a libel, 
are each guilty of publication, and may each severally 
be sued. The gist of the offence being the making 
public, not the writing of the libel, the person who 
having read a libel sends it on to a friend, is a libeller ; 
and it would seem that a man who reads aloud a 
libel, knowing it to be such, may be sued. This 
separate liability of each person concerned in a wrong- 
ful act is, as already pointed out, a very noticeable 
characteristic of our law. Honest belief moreover, 
and good intentions on the part of a libeller, are no 
legal defence for his conduct. Nor will it avail him 
to show that he had good reason for thinking the 
false statement which he made to be true. Persons 
often must pay heavy damages for giving currency to 
statements which were not meant to be falsehoods, 



THE RIGHT TO FREEDOM OF DISCUSSION 227 

and which were reasonably believed to be true. Thus Chapter 

it is libellous to publish of a man who has been con- 

victed of felony but has worked out his sentence that 
he " is a convicted felon." It is a libel on the part of 
X if X publishes that B has told him that A's bank 
has stopped payment, if, though B in fact made the 
statement to X, and X believed the report to be true, 
it turns out to be false. Nor, again, are expressions 
of opinion when injurious to another at all certain not 
to expose the publisher of them to an action. A 
" fair" criticism, it is often said, is not libellous ; but 
it would be a grave mistake to suppose that critics, 
either in the press or elsewhere, have a right to 
publish whatever criticisms they think true. Every 
one has a right to publish fair and candid criticism. 
But " a critic must confine himself to criticism, and 
" not make it the veil for personal censure, nor allow 
" himself to run into reckless and unfair attacks merely 
" from the love of exercising his power of denuncia- 
" tion." l 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 cen- 
sure" at very different points. And when on this 
matter there is a difference of opinion between a critic 
and his victim, the delicate question what is meant by 
fairness has to be determined by a jury, and may be 
so answered as greatly to curtail the free expression 
of critical judgments. Nor let it be supposed that 
the mere " truth " of a statement is of itself sufficient 
to protect the person who publishes it from liability 
to punishment. For though the fact that an assertion 
is true is an answer to an action for libel, a person 

1 See Odgers, Libel and Slander, (1st ed.), p. 38. 



228 . THE RULE OF LA W 

Part ii. may be criminally punished for publishing statements 
which, though perfectly true, damage an individual 
without being of any benefit to the public. To write 
for example and with truth of A that he many years 
ago committed acts of immorality may very well 
expose the writer X to criminal proceedings, and X 
if put on his trial will be bound to prove not only 
that A was in fact guilty of the faults imputed to 
him, but also that the public had an interest in the 
knowledge of As misconduct. If X cannot show 
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. 

Libels on So far in very general terms of the limits placed by the 
mint. law of libel on freedom of discussion as regards the char- 
acter of individuals. Let us now observe for a moment 
the way in which the law of libel restricts in theory at 
least the right to criticise the conduct of the government. 
Every person commits a misdemeanour who 
publishes (verbally or otherwise) any words or any 
document with a seditious intention. Now a seditious 
intention means an intention to bring into hatred or 
contempt or to excite disaffection against the Queen 
or the government and constitution of the United 
Kingdom as by law established, or either House of 
Parliament, or the administration of justice, or to 
excite British subjects to attempt otherwise than by 
lawful means the alteration of any matter in Church 
or State by law established, or to promote feelings of 
illwill and hostility between different classes. 1 And 

1 See Stephen, Digest of the Criminal Law, arts. 91, 92, and note 
also art. 95 as to spreading false news. 



THE RIGHT TO FREEDOM OF DISCUSSION 229 

if the matter published is contained in a written or Chapter 
printed document the publisher is guilty of publish- 
ing a seditious libel. The law, it is true, permits the 
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 bond fide 
intended to recommend the reform of existing institu- 
tions by legal methods. But any one will see at once 
that the legal definition of a seditious libel might 
easily be so used as to check a great deal of what is 
ordinarily considered allowable discussion, and would 
if rigidly enforced be inconsistent with prevailing 
forms of political agitation. 

The case is pretty much the same as regards the Expression 

,, . . , . . , of opinion 

free expression 01 opinion on religious or moral on religiou 
questions. 1 Kecent circumstances have recalled at- 
tention to the forgotten law of blasphemy. But it 
surprises most persons to learn that, on one view of 
the law, any one who publishes a denial of the truth 
of Christianity in general or of the existence of God, 
whether the terms of such publication are decent or 
otherwise, commits the misdemeanour of publishing 
a blasphemous libel and is liable to imprisonment ; 
that, according to another view of the law, any one is 
guilty of publishing a blasphemous libel who publishes 
matter relating to God, Jesus Christ, or the Book of 
Common Prayer intended to wound the feelings of 
mankind, or to excite contempt against the Church 

1 See Stephen, Digest of the Criminal Law, ss. 161-164. 



230 THE RULE OF LA W 

Part n. by law established, or to promote immorality ; and 
that it is at least open to grave doubt how far the 
publications which thus wound the feelings of man- 
kind are exempt from the character of blasphemy 
because they are intended in good faith to propagate 
opinions which the person who publishes them regards 
as true. 1 Most persons, again, 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 penalties. 2 When once, 
however, the principles of the 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 communication of thoughts 
and opinions which was proclaimed in France nearly 
a hundred years ago to be one of the most valuable 
Eights of Man. It is 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 upon the answer to the question who are to 
determine whether a given publication is or is not a 
libel. The reply (as we all know) is, that in substance 

1 See especially Stephen, Digest of the Criminal Law, art. 161, for 
two different expositions of the nature of " blasphemy " as a legal 
offence. 

2 See 9 & 10 Will. III. c. 35, as altered by 53 Geo. III. c. 
160, and Stephen's Digest of the Criminal Law, art. 163. Conf. 
Attorney-General v. Bradlaugh, 14 Q. B. D. (C. A.), 667, p. 719, Judg- 
ment of Lindley, L. J. 



THE RIGHT TO FREEDOM OF DISCUSSION 231 

this matter is referred to the decision of a jury. Chapter 
Whether in any given case a particular individual is VL 
to be convicted of libel 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. 1 

Freedom of discussion is, then, in England little 
else than the right to write or say anything which a 
jury, consisting of twelve shopkeepers, think it ex- 
pedient should be said or written. Such "liberty" 
may vary at different times and seasons from unre- 
stricted license to very severe restraint, and the 
experience of English history during the last two 
centuries shows that under the law of libel the 
amount of latitude conceded to the expression of 
opinion has in fact differed greatly according to the 
condition of popular sentiment. Until very recent 
times the law, moreover, has not recognised any 
privilege on the part of the press. A statement 
which is defamatory or blasphemous, if made in a 
letter or upon a card, has exactly the same character 
if made in a book or a newspaper. The protection 
given by the Belgian constitution to the editor, 
printer, or seller of a newspaper involves a recognition 
of special rights on the part of persons connected with 
the press which is quite inconsistent with the general 
theory of English law. It is hardly an exaggeration 

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 blam- 
able, but that he ought to be punished if he publishes that which is 
blamable [i.e. that which twelve of his countrymen think is blani- 
able]. This in plain common sense is the substance of all that has 
been said on the matter." Rex v. Cutbill, 27 St. Tr. 642, 675. 



232 THE RULE OF LA W 

Part II. to say, from this point of view, that liberty of the 

press is not recognised in England. 
why the Why then has the liberty of the press been long 

liberty of . 

the press 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 has in England been marked by all those 
characteristics 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 discussion, 
the press, and especially the newspaper press, has 
practically enjoyed with us a freedom which till 
recent years was unknown in continental states. 
Any one will see that this is so who examines care- 
fully the situation of the press in modern England, 
and then contrasts it 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. 

Theposi- First. "The liberty of the press," says Lord 

tionof the . * . 

press in " Mansfield, consists in printing without any pre- 
" vious license, subject to the consequences of law/' 1 
" The law of England," says Lord Ellenborough, " is 
" a law of liberty, and consistently with this liberty 
" we have not what is called an imprimatur ; there is 
" no such preliminary license necessary ; but if a man 
" publish a paper, he is exposed to the penal conse- 
" quences, as he is in every other act, if it be illegal." : 

1 Rex. v. Dean of St. Asaph, 3 T. R 431 (note). 

2 Rex v. Cobbett, 29 St. Tr. 49 ; see Odgers, Libel and Slander (1st 
ed.), p. 10. 



THE RIGHT TO FREEDOM OF DISCUSSION 233 

These dicta show us at once that the so-called Chapter 

liberty of the press is a mere application of the '_ 

general principle, that no man is punishable except 
for a distinct breach of the law. 1 This principle is 
radically inconsistent with any scheme of license or 
censorship by which a man is hindered from writing 
or printing anything which he thinks fit, and is hard 
to reconcile even with the right on the part of the 
Courts to restrain the circulation of a libel, until 
at any rate the publisher has been convicted of 
publishing it. It is also opposed in spirit to any 
regulation requiring from the publisher of an in- 
tended 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 
the proprietor. No sensible person will argue that 
to demand a deposit from the owner of a newspaper 
or to impose other limitations upon the right of 
publishing periodicals is of necessity inexpedient or 
unjust. All that is here insisted upon is, that such 
checks and preventive measures are inconsistent with 
the pervading principle of English law, that men are 
to be interfered with or punished, not because they 
may or will break the law, but only when they have 
committed some definite assignable legal offence. 
Hence, with one exception, 2 which is a quaint sur- 
vival from a different system, no such thing is known 
with us as a license to print, or a censorship either 

1 See p. 175, ante. 

2 i.e. the licensing of plays. See 6 & 7 Viet. c. 68 ; Stephen, 
Commentaries, iii. p. 202. 



234 THE RULE OF LAW 

Part ii. 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 opinion of the government contain 
seditious or libellous matter. Indeed, it is question- 
able how far the Courts themselves will, 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 and 
it has been established by their verdict that the 
words complained of are libellous. 1 Writers in the 
press are in short, like every other person, subject to 
the law of the realm, and nothing else. Neither the 
government nor the Courts have (speaking generally) 
any greater power to prevent or oversee the publi- 
cation of a newspaper than the writing of a letter. 
Indeed, the simplest way of setting forth briefly the 
position of writers in the press is to say that they 
stand in substantially the same position as letter- 
writers. A man who scribbles blasphemy on a gate 2 
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 exactly the same principles. 
Hence also writers in newspapers have, or had until 
very recently, no special privilege protecting them 
from liability. Look at the matter which way you 
will, the main feature of liberty of the press as under- 
stood in England is that the press (which means of 
course the writers in it) is subject only to the ordinary 
law of the land. 

1 Prudential Assurance Co. v.Knott, L. R 10 Ch. 142 ; Saxby v. Easter- 
brook, 3 C. P. D. 339 ; Odgers, Libel and Slander (1st ed.), pp. 13-16. 

2 Beg. v. Pooley, cited Stephen, Digest of Criminal Law, art. 161. 



THE RIGHT TO FREEDOM OF DISCUSSION 235 

Secondly. Press offences, in so far as the term can Chapter 
be used with reference to English law, are tried and 
punished only by the ordinary Courts of the country, 



that is, by a judge and iury. 1 dealt with 

J J . . byordin- 

Since the Kestoration, 2 offences committed through ary Courts. 
the newspapers, or, in other words, the publication 
therein of libels whether defamatory, seditious, or 
blasphemous, have never been tried by any special 
tribunal. Nothing to Englishmen seems more a 
matter of course than this. Yet nothing has in reality 
contributed so much to free the periodical press from 
any control. If the criterion whether a publication 
be libellous is the opinion of a jury, and a man may 
publish anything which twelve of his countrymen think 
is not blamable, it is impossible that the Crown or 
the Ministry should exert any stringent control over 
writings in the press, unless (as indeed may sometimes 
happen) the majority of ordinary citizens are entirely 
opposed to attacks on the government. The times 
when persons in power wish to check the excesses of 
public writers are times at which a large body of 
opinion or sentiment is hostile to the executive. But 
under these circumstances it must, from the nature of 
things, be at least an even chance that the jury called 
upon to find a publisher guilty of printing seditious 
libels sympathise with the language which the officers 

1 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 with a special procedure. 

2 See, as to the state of the press under the Commonwealth, Masson, 
Life of Milton, iii. pp. 265-297. Substantially the possibility of trying 
press offences by special tribunals was put an end to by the abolition 
of the Star Chamber in 1641, 16 Car. I. cap. 10, 



236 THE RULE OF LA W 

Part H. of the Crown deem worthy of punishment, and hence 
may hold censures which are prosecuted as libels to 
be fair and laudable criticism of official errors. 
Whether the control indirectly exercised over the 
expression of opinion by the verdict of twelve com- 
monplace Englishmen is 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 different from the prevalent feeling of the 
class from which jurymen were chosen, is an interest- 
ing speculation into which there is no need to enter. 
What is certain is, that the practical freedom of the 
English press arose in great measure from the trial 
with us of "press offences," like every other kind of 
libel, by a jury. 

The liberty of the press then is in England simply 
one result of the universal predominance of the law 
of the land. The terms " liberty of the press," " press 
offences," " censorship of the press," and the like, are 
all 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 Eevolution ; and also at the 
condition of the press in 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 



THE RIGHT TO FREEDOM OF DISCUSSION 237 

spirit which now pervades every part of the English Chapter 
constitution. 

An Englishman who consults French authorities 
is struck with amazement at two facts : press law l 
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 govern- 
ment which has existed in France, a more or less 
special class of crimes. The Acts which have been 
passed in England with regard to the press since the 
days of Queen Elizabeth do not in number equal one- 
tenth, or even one -twentieth, of the laws enacted 
during the same period on the same subject in 
France. The contrast becomes 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 
press code consisted till long after the establishment 

1 The press is now governed in France wholly by the Loi sur la 
liberte de la presse, 29-30 Juill. 1881 ; D. P. 1881, iv. 65. This 
law repeals all earlier edicts, decrees, laws, ordinances, etc., on the 
subject. Immediately before this law was passed there were in force 
more than thirty enactments regulating the position of the French 
press and inflicting penalties on offences which could be committed 
by writers in the press ; and the three hundred and odd closely 
printed pages of Dalloz treating of laws on the press showed that 
the enactments then in vigour under the Republic 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. 
xxxvi., "Presse," pp. 384-776, and especially Tit. I. chap, i., Tit. II. 
chap. iv. ; Roger et Sorel, Codes et Lois Usuelles, "Presse," 637-651. 



238 THE RULE OF LA W 

Part n. of the present Bepublic of over thirty enactments, 
whilst the English Acts about the press passed since 
the beginning of the last century do not exceed a 
dozen, and, moreover, have gone very little way 
towards touching the freedom of writers. 

The ground of this difference lies in the opposite 
views taken in the two countries of the proper rela- 
tion of the state to literature, or, more strictly, to the 
expression of opinion in print. 

In England the doctrine has since 1700 in sub- 
stance 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) exer- 
cised no special control over literature, and the law of 
the press, in so far as it can be said to have existed, 
has been nothing else than a branch or an application 
of the law of libel. 

In France, literature has for centuries been con- 
sidered as the particular concern of the state. The 
prevailing doctrine, as may be gathered from the cur- 
rent of French legislation, has been, and still to a 
certain extent is, that it is the function of the admin- 
istration not only to punish defamation, slander, or 
blasphemy, but to guide the course of opinion, or, at 
any rate, to adopt preventive measures for guarding 
against the propagation in print of unsound or danger- 
ous doctrines. Hence the huge amount and the special 
and repressive character of the press laws which have 
existed in France. 

Up to the time of the Revolution the whole litera- 
ture of the country was avowedly controlled by the 



THE RIGHT TO FREEDOM OF DISCUSSION 239 

state. The right to print or sell books and printed Chapter 

publications of any kind was treated as a special !_ 

privilege or monopoly of certain libraries ; the regu- 
lations (reglements) of 1723 (some part of which was 
till quite recently in force 1 ) and of 1767 confined the 
right of sale and printing under the severest penalties 
to librarians who were duly licensed. 2 The right to 
publish, again, was submitted to the strictest censor- 
ship, exercised partly by the University (an entirely 
ecclesiastical body), partly by the Parliaments, partly 
by the Crown. The penalties of death, of the galleys, 
of the pillory, were from time to time imposed upon 
the printing or sale of forbidden works. These 
punishments were often evaded; but they after all 
retained practical force till the very eve of the Eevolu- 
tion. The most celebrated literary works of France 
were published abroad. Montesquieu's Esprit des 
Lois appeared at Geneva. Voltaire's Henriade was 
printed in England ; the most remarkable of his and 
of Rousseau's writings were published in London, in 
Geneva, or in Amsterdam. In 1775 a work entitled 
Philosophic de la Nature was destroyed by the order 
of the Parliament of Paris, the author was decreed 
guilty of treason against God and man, and would 
have been burnt if he could have been arrested. In 
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 
Indes. 3 The point, however, to remark is, not so 
much the severity of the punishments which under 

1 See Dalloz, Repertoire, voL xxxvi., " Presse" Tit. I. chap. i. 
Compare Roger et Sorel, Codes et Lois, "Presse," pp. 637-651. 
2 Ibid. 3 Ibid. 



240 THE RULE OF LA W 

Part II. the Ancien Regime were intended to suppress the 
expression of heterodox or false beliefs, as the strict 
maintenance down to 1789 of the right and duty of 
the state to guide the literature of the country. It 
should further be noted that down to that date the 
government made no marked distinction between 
periodical and other literature. When the Lettres 
Philosophiques could be burnt by the hangman, when 
the publication of the Henriade and the Encyclopedic 
depended on the goodwill of the King, there was no 
need for establishing special restrictions on newspapers. 
The daily or weekly press, moreover, hardly existed 
in France till the opening of the States General. 1 

The Kevolution (it may be fancied) put an end to 
restraints upon the press. The Declaration of the 
Rights of Man proclaimed the right of every citizen 
to publish and print his opinions, and the language 
has been cited 2 in which the Constitution of 1791 
guaranteed to every man the natural right of speaking, 
printing, and publishing his thoughts without having 
his writings submitted to any censorship or inspection 
prior to publication. But the Declaration of Rights 
and this guarantee were practically worthless. They 
enounced a theory which for many years was utterly 
opposed to the practice of every French government. 

The Convention did not establish a censorship, 
but under the plea of preventing the circulation of 
seditious works it passed the law of 29th March 1793, 
which silenced all free expression of opinion. The 

1 See Rocquain, U Esprit Rdvolutionnaire avant la Revolution, 
for a complete list of "Livres Condamnds" from 1715-1789. Rocquain's 
book is full of information on the arbitrariness of the French Govern- 
ment during the reigns of Louis XV and Louis XVI. 

2 See p. 223, ante. 



241 



Directory imitated the Convention. Under the First Chapter 

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. 1 

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 inter- 
ference. Any one, however, who wants to see how 
consonant to the ideas which have permanently 
governed French law and French habits is the notion 
that the administration should by some means keep 
its hand on the national literature of the country, 
ought to note with care the course of legislation from 
the Restoration to the present day. The attempt 
indeed to control the publication of books has been by 
slow degrees given up ; but one government after 
another has, with curious uniformity, proclaimed 
the freedom and ensured the subjection of the news- 
paper press. Between 1814 and 1830 the censorship 
was established (21st Oct. 1814), was partially 
abolished, was re-extended (1817), was re-abolished 
(1819), was re-established and extended (1820), and 
was re-abolished (1828). In 1830 the Charter made 
the abolition of the censorship part of the constitution, 
and since that date no system of censorship has been 
in name re-established. But as regards 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 Napoleon I. The government took to itself 
under this law, in addition to other discretionary 

1 Dalloz, Repertoire, xxxvi., " Presse" Tit. I. chap. i. 
R 



242 THE RULE OF LA W 

Part ii. powers, the right to suppress any newspaper without 
the necessity of proving the commission of any crime 
or offence by the owner of the paper or by any writer 
in its columns. 1 No one, further, could under this 
decree set up a paper without official authorisation. 
Nor have different forms of the censorship been the 
sole restrictions imposed in France on the liberty of 
the press. The combined operation of enactments 
passed during the existence of the Eepublic of 1848, 
and under the Empire, was (among other things) to 
make the signature of newspaper articles by their 
authors compulsory, 2 to require a large deposit from 
any person who wished to establish a paper, 3 to with- 
draw all press offences whatever from the cognisance 
of a jury, 4 to re-establish or reaffirm the provision con- 
tained in the reglement of 1723 by which no one 
could carry on the trade of a librarian or printer 
(commerce de la librairie) without a license. It may 
in fact be said with substantial truth that between 
1852 and 1870 the newspapers of France were as 
much controlled by the government as was every 
kind of literature before 1789, and that the Second 
Empire exhibited a retrogression towards the despotic 
principles of the Ancien Regime. The Eepublic, 5 it 

1 De'cret, 17 Fevrier, 1852, sec. 32, Roger et Sorel, Codes et Lois 
p. 648. 

2 Roger et Sorel, Codes et Lois, p. 646. Lois, 16 Juillet 1850. 

3 Ibid. 4 Lois, 31 Dec. 1851. 

5 One thing is perfectly clear and deserves notice. The legislation 
of the existing Republic was not till 1881, any more than that of the 
Restoration or the Empire, based on the view of the press which per- 
vades the modern law of England. " Press law " still formed a 
special department of the law of France. "Press offences" were a 
particular class of crimes, 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. 



THE RIGHT TO FREEDOM OF DISCUSSION 243 

is true, has recently abolished the restraints on the Chapter 

liberty of the press which grew up both before and !_ 

under the Empire. But though for the last few years 
the ruling powers in France have favoured the liberty 
or license of the press, nothing is more plain than that 
until quite recently the idea that press offences were 
a peculiar class of offences to be dealt with in a 
special way and punished by special courts was 
accepted by every party in France. This is a matter 
of extreme theoretical importance. It shows how 
foreign to French notions is the idea that every 
breach of law ought to be dealt with by the ordinary 
law of the land. Even a cursory survey (and no 
other is possible in these lectures) of French 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 been exercised by an official censor- 
ship by restrictions on the right to print or sell 
books and by the subjection of press offences to 
special laws administered by special tribunals. The 
occasional relaxation of these restrictions is of import- 

A law passed under the Eepublic (6th July 1871. Koger et Sorel, 
Codes et Lois, p. 651) 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. 651), 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. 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. 



244 THE RULE OF LA W 

Part ii. ance. But their recurring revival is of far more 

significance than their temporary abolition. 
Contrast Let us now turn to the position of the English 

tiono? 08 ' press during the sixteenth and seventeenth cen- 

press in t llr i P a 
England bUTlCS. 

seven? ^e ^ rown originally held all presses in its own 

teenth hands, allowed no one to print except under special 

century. 

license, and kept all 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 ninety-seven London stationers and 
their successors, who, as the Stationers' Company, 
constituted a guild with power to seize all publications 
issued by outsiders ; the printing-presses ultimately 
conceded to the Universities existed only by a decree 
of the Star Chamber. 

Side by side with the restrictions on printing 
which appear to have more or less broken down 
there grew up a system of licensing which constituted 
a true censorship. 1 

Press offences constituted a special class of crimes 
cognisable by a special tribunal the Star Chamber 
which sat without a jury and administered severe 
punishments. 2 The Star Chamber indeed fell in 
1641, never to be revived, but the censorship sur- 
vived the Commonwealth, and was under the 
Eestoration (1662) given a strictly legal foundation 
by the statute 13 & 14 Car. II. cap. 33, which by 
subsequent enactments was kept in force till 1695. 8 

1 See for the control exercised over the press down to the 
Restoration, Odgers, Libel and Slander (1st ed.), pp. 10, 11. 

2 Gardiner, History of England, vii. pp. 51, 130 ; Ibid., viii. pp. 
225, 234. 

3 See Macaulay, History of England, iv. chaps, xix. xxi. 



THE RIGHT TO FREEDOM OF DISCUSSION 245 

There existed, in short, in England during the Chapter 

sixteenth and seventeenth centuries every method of '_ 

curbing the press which was then practised in France, "J^ 
and which has prevailed there almost up to the andsubse- 

quent un- 

present day. In England, as on the Continent, the likeness 
book trade was a monopoly, the censorship was in full pre ss la 
vigour, the offences of authors and printers were 
treated as special crimes and severely punished by 
special tribunals. This similarity or identity of the 
principles with regard to the treatment of literature 
originally upheld by the government of England and 
by 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 
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 enter- 
tained the belief that the "free communication of 
" thoughts and opinions was one of the most valuable 
" of the rights of man." l 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 
to renew the Act. 

1 See Declaration of the Eights of Man, art. 11, p. 223, ante. 



246 THE RULE OF LA W 

Part II. " This paper completely vindicates the resolution 
" to which the Commons had come. But it proves at 
" the same time that they knew not what they were 
" doing, what a revolution they were making, what a 
" power they were calling into existence. They pointed 
" out concisely, clearly, forcibly, and sometimes with a 
" grave irony which is not unbecoming, the absurdities 
" and iniquities of the statute which was about to 
" expire. But all their objections will be found to 
" relate to matters of detail. On the great question of 
" principle, on the question whether the liberty of un- 
" licensed printing be, on the whole, a blessing or a 
" curse to society, not a word is said. The Licensing 
" Act is condemned, not as a thing essentially evil, but 
" on account of the petty grievances, the exactions, the 
" jobs, the commercial restrictions, the domiciliary visits 
" which were incidental to it. It is pronounced mis- 
" chievous because it enables the Company of Stationers 
" to extort money from publishers, because 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 Custom 
" House till the pages are mildewed. The Commons 
" complain that the amount of the fee which the licenser 
" may demand is not fixed. They complain that it is 
" made penal in an officer of the Customs to open a box 
" of books from abroad, except in 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." 1 

1 Macaulay, History of England, iv. pp. 541, 542. 



THE RIGHT TO FREEDOM OF DISCUSSION 247 

How slight was the hold of the principle of the Chapter 
liberty of the press on the statesmen who abolished 



the censorship is proved by their entertaining, two 
years later, a bill (which, however, never passed) to 
prohibit the unlicensed publication of news. 1 Yet 
while the solemn declaration by the National Assembly 
of 1789 of the right to the free expression of thought 
remained a dead letter, or at best a speculative maxim 
of French jurisprudence which, though not without 
influence, 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 Eestoration in France. But the 
censorship once abolished in England was never re- 
vived, 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 little inconvenience that 
their existence is forgotten. 

To a student who surveys the history of the liberty Questions 
of the press in France and in England two questions 
suggest themselves. How does it happen that down 
to the end of the seventeenth century the principles 

between 

upheld by the Crown in each country were in sub- press law 
stance the same ? What, again, is the explanation of and of c 
the fact that from the beginning of the eighteenth England - 

1 Macaulay, History of England, iv. pp. 771, 772. 



248 THE RULE OF LA W 

Part n. century the principles governing the law of the press 
in the two countries have been, as they still continue 
to be, essentially different ? The similarity and the 
difference each seems at first sight equally perplexing. 
Yet both one and the other admit 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. 

Reasons The ground of the similarity between the press 

similarity, law 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 similar administrative notions and by similar 
ideas as to the relation between the state and indi- 
viduals. 1 In England again, as in every European 
country, the belief prevailed that a King was respon- 
sible for the religious belief of his subjects. This 
responsibility involves the necessity for regulating 
the utterance and formation of opinion. But this 
direction or control cannot be exercised without 
governmental interference 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. During the 
sixteenth and seventeenth centuries, in short, the 
Crown was in England, as in France, extending its 
administrative powers ; the Crown was in England, 
as in France, entitled, or rather required by public 

1 See chap. xii. post. 



THE RIGHT TO FREEDOM OF DISCUSSION 249 

opinion, to treat the control of literature as an affair Chapter 
of state. Similar circumstances produced similar !_ 



results ; in each country the same principles pre- 
vailed ; in each country the treatment of the press 
assumed therefore a similar character. 

The reason, again, why, for nearly two centuries, Reasons for 
the press has been treated in France on principles similarity, 
utterly different from those which have been accepted 
in England, lies deep in the difference of the spirit 
which has governed the customs and laws of the two 
countries. 

In France the idea has always flourished that the 
government, whether Eoyal, Imperial, or Eepublican, 
possesses, as representing the state, rights and powers 
as against individuals superior to and independent of 
the ordinary law of the land. This is the real basis 
of that whole theory of a droit administratif, 1 which 
it is so hard for Englishmen fully to understand. 
The increase, moreover, in the authority of the central 
government has at most periods both before and since 
the Kevolution been, or appeared to most Frenchmen 
to be, the means of removing evils which oppressed 
the mass of the people. The nation has in general 
looked upon the authority of the state with the same 
favour with which Englishmen during the sixteenth 
century regarded the prerogative of the Crown. The 
control exercised in different forms by the executive 
over literature has therefore in the main fully har- 
monised 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 

1 See chap. xii. post. 



250 THE RULE OF LA W 

Part II. placed in the hands of whatever power was supreme 
in France the means of enforcing official surveillance 
of literature. Hence the censorship (to speak of no 
other modes of checking the liberty of the press) has 
been on the whole in keeping with the general action 
of French governments 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 
of the Great Revolution, as at other periods since, 
efforts were made in favour of free discussion. Hence 
flowed the abolition of the censorship, but this attempt 
to limit the powers of the government in one par- 
ticular direction was quite out of harmony with the 
general reverence for the authority of the state. 
As long, moreover, as the whole scheme of French 
administration was left in force, the government, in 
whatever hands it was placed, always retained the 
means of resuming its control over the press, when- 
ever popular feeling should for a moment favour the 
repression of free speech. Hence arose the constantly 
recurring restoration of the abolished censorship or of 
restraints, which though not called by the unpopular 
name of la censure, were more stringent than has ever 
been any Licensing Act. Restrictions, in short, on 
what Englishmen understand by the liberty of the 
press have continued to exist in France and are 
hardly now abolished, because the exercise of pre- 
ventive and discretionary authority on the part of 



THE RIGHT TO FREEDOM OF DISCUSSION 251 

the executive harmonises with the general spirit of Chapter 
French law, and because the administrative machin- VL 
ery which is the creation of that spirit, has always 
placed (as it still places) in the hands of the exe- 
cutive the proper means for enforcing discretionary 
authority. 

In England, on the other hand, the attempt made 
by the Crown during the sixteenth and seventeenth 
centuries to form a strong central administration, 
though it was for a time attended with success, 
because it met some of the needs of the age, was at 
bottom repugnant to the manners and traditions of 
the country, and even at a time when the people 
wished the Crown to be strong, they hardly liked the 
means by which the Crown exerted its strength. 

Hundreds of Englishmen who hated toleration and 
cared little for freedom of speech, entertained a keen 
jealousy of arbitrary power, and a fixed determination 
to be ruled in accordance with the law of the land. 1 
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 
direct connection with any desire for the uncontrolled 
expression of opinion. The Parliament which would 

1 See Selden's remarks on the illegality of the decrees of the Star 
Chamber, cited Gardiner, History of England, vii. p. 51. 



252 THE RULE OF LA W 

Part H. 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 
after the Eevolution. The passing, however, of the 
statute, though not a triumph of toleration, was a 
triumph of legality. The power of licensing depended 
henceforward, not on any idea of inherent executive 
authority, but on the statute law. The right of licens- 
ing 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 the 
ordinary Courts. The fall of the Star Chamber 
deprived the executive of the means for exercising 
arbitrary power. Hence the refusal of the House of 
Commons in 1695 to continue the Licensing Act was 
something very different from the proclamation of 
freedom of thought contained in the French Declara- 
tion of Rights, or from 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 
though constantly abolished has been constantly 
revived in France, because the exertion of discretion- 
ary powers by the government has been and still is in 
harmony with French laws and institutions. The 
abolition of the censorship was final in England, 



THE RIGHT TO FREEDOM OF DISCUSSION 253 

because the exercise of discretionary power by the Chapter 

Crown was inconsistent with our system of adminis- '_ 

tration 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 
to establish the liberty of the press in France really 
intended to proclaim freedom of opinion, whilst the 
statesmen who would not pass the Licensing Act, and 
thereby founded the liberty of the press in England, 
held theories of toleration which fell far short of 
favouring unrestricted liberty of discussion. This 
contrast is not only striking in itself, but also affords 
the strongest illustration that can be found of English 
conceptions of the rule of law. 



CHAPTEE VII 

THE RIGHT OF PUBLIC MEETING 

Part ii. THE law of Belgium 1 with regard to public meetings 
Right of is contained in the nineteenth article of the constitu- 
meetlng. tion, which is probably intended in the main to 

reproduce the law of England and runs as follows : 
Rules of "Art. 19. Les Beiges ont le droit de s 'assembler 

confE- " paisiblement et sans armes, en se conformant aux 
11 lois, qui peuvent regler I'exercice de ce droit, sans 
" neanmoins le soumettre a une autorisation prealable. 
" Cette disposition ne s' applique point aux ras- 
" semblements en plein air, qui restent entierement 
" soumis aux lois de police." 2 

Principles The restrictions on the practice of public meeting 

law as 8 to appear to be more stringent in Belgium than in Eng- 

pubHc f land, for the police have with us no special authority 

meeting. control open-air assemblies. Yet just as it cannot 

with strict accuracy be asserted that 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. No better 

1 See Law Quarterly Review, iv. p. 159. See also as to right of public 
meeting in Italy, Ibid., p. 78; in France, Ibid., p. 165; in Switzerland, 
Ibid., p. 169 ; in United States, Ibid., p. 257. See Appendix, Note 4, 
Questions connected with the Right of Public Meeting. 

2 Constitution de la Belgique, art. 19. 



THE RIGHT OF PUBLIC MEETING 255 

instance can indeed be found of the way in which in Chapter 
England the constitution is built up upon individual vn - 
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 speech. There 
is no special law allowing A, B and C to meet 
together either in the open air or elsewhere for a law- 
ful purpose, but the right of A to go where he pleases 
so that he does not commit a trespass, and to say 
what he likes to B so that his talk is not libellous 
or seditious, the right of B to do the like, and the 
existence of the same rights of C, D, E and F, and 
so on ad infinitum, leads to the consequence that 
A, B, C, .D, and a thousand or ten thousand other 
persons, may (as a general rule) meet together in any 
place where otherwise they each have a right to be 
for a lawful purpose and in a lawful manner. A has 
a right to walk down the High Street or to go on to 
a common. B has the same right. C, Z>, and all 
their friends have the same right to go there also. 
In other words, A, B, (7, and D, and ten thousand such 
have a right to hold a public meeting ; and as A may 
say to B that he thinks an Act ought to be passed 
abolishing the House of Lords, or that the House of 
Lords are bound to reject any bill modifying the con- 
stitution of their House, and as B may make the same 
remark to any of his friends, the result ensues that A 
and ten thousand more may hold a public meeting 
either to support the government or to encourage the 
resistance of the Peers. Here then you have in sub- 
stance that right of public meeting for political and 
other purposes which is constantly treated in foreign 



256 THE RULE OF LA W 

Part II. countries as a special privilege, to be exercised only 
subject to careful restrictions. The assertion, how- 
ever, that A, B, C, and D, and a hundred thousand 
more persons, just because they may each go where 
they like, and each say what they please, have a right 
to hold meetings for the discussion of political and 
other topics, does not of course mean that it is impossible 
for persons so to exercise the right of meeting as to break 
the law. The object of a meeting may be unlawful, e.g. 
the aim of the meeting may be to commit a crime by 
open force, in which case the meeting itself becomes an 
unlawful assembly. 1 The mode in which a meeting is 
held may threaten a breach of the peace on the part 
of those holding the meeting, and therefore inspire 
peaceable citizens with reasonable fear ; in which case, 
again, the meeting will be unlawful. In either instance 
the meeting may lawfully be broken up, and the mem- 
bers of it expose themselves to all the consequences, in 
the way of arrest, prosecution, and punishment, which 
attend the doing of unlawful acts, or, in other words, 
the commission of crimes. 

Conse- The law of public meetings involves some practical 

consequences which, though logically deduced from 
it, are found by many persons, magistrates and 
others, somewhat startling, and are not of invariable 
benefit to the nation. 

Meeting A public meeting which from the conduct of those 

fuib^caule engaged in it, as for example from their marching 
2te uniaw- together in arms, threatens a breach of the peace on 
t?!n 0pposi ' the part of those holding the meeting, and therefore 
fills peaceable citizens with reasonable fear, is an 

1 For the meaning of the term "unlawful assembly," see Appendix, 
Note iv., Questions connected with the Eight of Public Meeting. 



THE RIGHT OF PUBLIC MEETING 257 

unlawful assembly. But no meeting which would Chapter 

not otherwise be illegal becomes unlawful because it L 

will excite opposition which is itself unlawful, and 
thus will indirectly lead to a breach of the peace. 
Suppose, for example, that the members of the Salva- 
tion Army propose to hold a meeting at Oxford ; 
suppose that a so-called Skeleton Army announce 
that they will attack the Salvationists and disperse 
them by force. Suppose that thereupon peaceable 
citizens, who do not like the quiet of the town to be 
disturbed, and who dread riots, urge the magistrates 
to stop the meeting of the Salvationists, or if there is 
any row, to arrest the members of both armies. This 
may seem at first sight a reasonable request, but the 
magistrates cannot legally take the course suggested 
to them. That under the present state of the law 
this must be so is on reflection clear. The right of A 
to walk down the High Street is not taken away by 
the threat of X to knock A down if A takes his pro- 
posed walk. It is true that As going into the High 
Street will lead to a breach of the peace, but A no 
more causes the breach of the peace than a man 
whose pocket is picked causes the theft by wearing a 
watch. A is the victim, not the author of a breach 
of the law. Now if the right of A to walk down the 
High Street is not affected by the threats of X, the 
right of A, B, C, and D 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, C, 
and D to take their walk. Nor does it make any 
difference that A, B, and C call themselves the 
Salvation Army, or that X, Y, and Z call themselves 
the Skeleton Army. The plain principle is that A's 

8 



258 THE RULE OF LA W 

Part ii. right to do a lawful act, namely, walk down the High 
Street, cannot be diminished by X's threat to do an 
unlawful act, namely, to knock A down. This is the 
principle established, or rather illustrated, by the 
recent case of Beatty v. Gillbanks.^ 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 Salva- 
tionists, 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 subse- 
quently with others convicted by the magistrates of 
holding an unlawful assembly. It was an undoubted 
fact that the meeting of the Salvation Army was 
likely to lead to an attack by the Skeleton Army, 
and in this sense cause a breach of the peace. The 
conviction, however, of X by the magistrates was 
quashed on appeal to the Queen's Bench Division. 

" What has happened here," say the Court, " is 
" that an unlawful 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 
" a man may be convicted for doing a lawful act if 
" he knows that his doing it may cause another to do 
" an unlawful act. There is no authority for such 
" a proposition." 1 

1 9 Q. B. D. 308. 

2 Beatty v. Gillbanks, 9 Q. B. D. 308, p. 314, per Field, J. Beatty 
v. Glenister, W. N., 1884, p. 93. See, however, the Irish cases, Reg. 
v. M'Naghton, 14 Cox, C. C. 572 ; O'Kelly v. Harvey, 15 Cox, C. C. 435 ; 
and Appendix, Note 4, Questions connected with the Eight of Public 
Meeting. 



259 



No public meeting, further, which would not Chapter 

VTT 

otherwise be illegal, becomes so (unless in virtue of 1 



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, 

. i i - - i 11 tionofits 

for example, that the balvatiomsts advertise through- illegality. 
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 
with banners flying and bands playing to their pro- 
posed place of worship. Suppose that the Home 
Secretary thinks that, for one reason or another, it is 
undesirable that the meeting should take place, and 
serves formal notice upon every member of the army, 
or on the officers who are going to conduct the so- 
called "campaign" at Oxford, that the gathering 
must not take place. This notice does not alter the 
character of the meeting, though, if the meeting be 
illegal, the notice makes any one who reads it aware of 
the character of the assembly, and thus affects his 
responsibility for attending it. 1 Assume that the 
meeting would have been lawful if the notice had not 
been issued, and it certainly will not become unlawful 
because a Secretary of State has forbidden it to take 
place. The proclamation has under these circum- 
stances as little legal effect as would have a proclama- 
tion from the Home Office forbidding me or any other 
person to walk down the High Street. It follows 
therefore that the government has little or no power 
of preventing meetings which to all appearance are 
lawful, even though they may in fact turn out when 
actually convened to be unlawful because of the mode 

1 See Rex v. Fursey, 6 C. & P. 81. 



260 THE RULE OF LA W 

Part II. in which they are conducted. This is certainly a 
singular instance of the way in which adherence to 
the principle that the proper function of the state is 
the punishment, not the prevention, of crimes, de- 
prives the executive of discretionary authority. 1 
Meeting A meeting, lastly, may be perfectly lawful which 

!Sui e nevertheless any wise or public-spirited person would 
holding its nesitate to convene. For A, B, and C may have the 
to^ubiL right to hold a meeting, although their doing so will 
interest. a s a matter of fact certainly excite others to deeds of 
violence, and may probably produce bloodshed. Sup- 
pose that a zealous Protestant were to convene a 
meeting for the purpose of denouncing the evils of 
the. confessional, and were to choose as the scene of 
the gathering the midst of a large town filled with a 
population of Roman Catholic poor. The meeting 
would be lawful, 2 but no one can doubt that it would 
provoke violence. Neither the government, however, 
nor the magistrates, could prohibit it. Wise men 
might condemn, but the law would sanction an ex- 
treme exercise of the right of public meeting which 
would probably not be tolerated in any other 
European country. Of the policy or impolicy of 
denying to the highest authorities in the state the 
power to take precautionary measures against the 
evils which may flow from the injudicious exercise of 
legal rights it is unnecessary here to say anything. 
The matter which is worth notice is the way in which 

1 Recent events in Switzerland suggest that the officials of a demo- 
cratic Republic claim, whether rightly or not, an authority in regard 
to the restraint of public meetings which is not conceded in England 
to the Crown or its servants. This curiously illustrates the remarks 
cited from De Tocqueville, pp. 172-174, ante, in reference to the non- 
existence in Switzerland of a spirit of legality. 

2 See, however, the Irish cases referred to, p. 258, note 2, ante. 



THE RIGHT OF PUBLIC MEETING 261 

the rules as to the right of public meeting illustrate Chapter 
both the legal spirit of our institutions and the pro- n ' 
cess 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 con- 
stitution. 1 

1 See generally as to the right of meeting, Stephen, Commentaries, 
iv. 213-217, and Stephen, History of Criminal Law, i. pp. 202-205. See 
Appendix, note 4, Questions connected with the Eight of Public 
Meeting. 



CHAPTER VIII 

MARTIAL LAW 



Part ii. THE rights already treated of in the foregoing chapter, 
as f r example the right to personal freedom or the 



bedrawn r ig n * to free expression of opinion, do not, it may be 

between suggested, properly belong to the province of consti- 

private tutional law at all, but form part either of private law 

criminal strictly so called, or of the ordinary criminal law. 



Thus A's right to personal freedom is, it may be said, 
tionai law. on j v ^ pjgjj^ o f ^ no ^ ^ ^g assaulted, or imprisoned, 

by X, or (to look at the same thing from another 
point of view) is nothing else than the right of A, if 
assaulted by X, to bring an action against X, or to 
have X punished as a criminal for the assault. Now 
in this suggestion there lies an element of important 
truth, yet it is also undoubted that the right to per- 
sonal freedom, the right to free discussion, and the 
like, appear in the forefront of many written constitu- 
tions, and are in fact the chief advantages which 
citizens hope to gain by the change from a despotic to 
a constitutional form of government. 

The truth is that these rights may be looked upon 
from two points of view. They may be considered 
simply parts of private or, it may be, of criminal law ; 



MARTIAL LAW 263 



thus the right to personal freedom may, as already chapter 
pointed out, be looked at as the right of A not to have VIIL 
the control of his body interfered with by X. But in 
so far as these rights hold good against the governing 
body in the state, or, in other words, in so far as these 
rights determine the relation of individual citizens 
towards the executive, they are part, and a most im- 
portant 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 
generally) the 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 con- 
stitution is part of the ordinary law of the land. The 
fact that a Secretary of State cannot at his discretion 
and for reasons of state arrest, imprison, or punish any 
man, except of course where special powers are con- 
ferred upon him by statute, as by an Alien Act or by 
an Extradition Act, is simply a result of the principle 
that a Secretary of State is governed in his official as 
in his private conduct by the ordinary law of the 
realm. Were the Home Secretary to assault Mr. 
Parnell in a fit of anger, or were he to arrest Mr. 
Parnell in England because he thought the Home 
Eule leader'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 ex- 
poses himself by committing an assault. The fact 
that Mr. Parnell's arrest was a strictly administrative 
act would afford no defence to the Minister, or to the 
constables who obeyed his orders. 

The subjects treated of in this chapter and in the 
next three chapters clearly belong to the field of 



264 THE RULE OF LA W 

Part ii. constitutional law, and no one would think of object- 
ing to their treatment in a work on the law of the 
constitution that they are really part of private law. 
Yet, if the matter be looked at carefully, it will be found 
that, just as rules which at first sight seem to belong 
to the domain of private law are in reality the founda- 
tion, of constitutional principles, so topics which ap- 
pear to belong manifestly to the law of the constitu- 
tion depend with us at bottom on the principles of 
private or of criminal law. Thus the position of a 
soldier is in 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, in a legal 
point of view, ministerial responsibility is simply one 
application of the doctrine which pervades English 
law, 1 that no one can plead the command of a superior, 
were it the order of the Crown itself, in defence of 
conduct otherwise not justified by law. 

Turn the matter which way you will, you come 
back to the all-important consideration on which we 
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 Eng- 
land the law of the constitution is the result not the 
source of the rights of individuals. It becomes, too, 
more and more apparent that the means by which the 
Courts have maintained the law of the constitution 
have been the strict insistence upon the two principles, 
first of " equality before the law," which negatives 

1 See Mommsen, Romische Staatsrecht, p. 672, for the existence of 
what seems to have been a similar principle in early Roman law. 



MARTIAL LA W 265 



exemption from the liabilities of ordinary citizens or Chapter 

from the jurisdiction of the ordinary Courts, and '_ 

secondly of " personal responsibility of wrongdoers/' 
which excludes the notion that any breach of law on 
the part of a subordinate can be justified by the orders 
of his superiors ; the legal dogma, as old at least as 
the time of Edward the Fourth, that, if any man arrest 
another without lawful warrant, even by the King's 
command, he shall not be excused, but shall be liable 
to an action for false imprisonment, is not a special 
limitation imposed upon the royal prerogative, but 
the application to acts done under royal orders of 
that principle of individual responsibility which runs 
through the whole law of torts. 1 

" Martial law," 2 in the proper sense of that Martial 
term, in which it means the suspension of ordinary Law ' 
law and the temporary government of a country 
or parts of it by military tribunals, is unknown to 
the law of England. We have nothing equivalent 
to what is called in France the "Declaration of the 
State of Siege," 3 under which the authority ordinarily 
vested in the civil power for the maintenance of order 
and police passes entirely to the army (autorite mili- 
taire). This is an unmistakable proof of the per- 
manent supremacy of the law under our constitution. 

The assertion, however, that no such thing as 
martial law exists under our system of government, 

1 See Hearn, Government of England (2d ed.). chap. iv. ; and 
compare Gardiner, History, x. pp. 144, 145. 

2 See Forsyth, Opinions, pp. 188-216, 481-563 ; Stephen, History 
of Criminal Laiv, i. pp. 201-216 ; Rex v. Pinney, 5 C. & P. 254 ; Reg. 
v. Vincent, 9 C. & P. 91; Reg. v. Neale, 9 C. & P. 431. 

3 See Loi sur I'&at de sie'ge, 9 Aout 1849, Roger et Sorel, Codes et 
Lois, p. 436. See p. 269, post. 



266 THE RULE OF LA W 

Part ii. though perfectly true, will mislead any one who does 
not attend carefully to the distinction between two 
utterly different senses in which the term " martial 
law " is used by English writers. 

in what Martial law is sometimes employed as a name for 

tiaTiaw* 1 the common law right of the Crown and its servants 
byEngfafc * re P e l force by force in the case of invasion, insur- 
iaw. rection, riot, or generally of any violent resistance to 
the law. This right, or power, is essential to the very 
existence of orderly government, and is most assuredly 
recognised in the most ample manner by the law of 
England. It is a power which has in itself no special 
connection with the existence of an armed force. The 
Crown has the right to put down breaches of the 
peace. Every subject, whether a civilian or a soldier, 
whether what is called a " servant of the govern- 
ment/' such for example as a policeman, or a person 
in no way connected with the administration, not 
only has the right, but is, as a matter of legal duty, 
bound to assist in putting down breaches of the peace. 
No doubt policemen or soldiers are the persons who, 
as being specially employed in the maintenance of 
order, are most generally called upon to suppress a 
riot, but it is clear that all loyal subjects are bound to 
take their part in the suppression of riots. 

It is also clear l that a soldier has, as such, no ex- 
emption from liability to the law for his conduct in 
restoring order. 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, 

1 See further, pp. 276-282, post. 



MARTIAL LA W 267 



each and all of them, authorised to employ so much chapter 

force, even to the taking of life, as may be necessary 1 

for that purpose, and they are none of them entitled 
to use more ; they are, each and all of them, liable to 
be called to account before a jury for the use of ex- 
cessive, that is, of unnecessary force ; they are each, 
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 down riots, 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, soldier, 
or ordinary civilian. Whoever doubts these proposi- 
tions should study the leading case of Rex v. Pinney, 1 
in which was fully considered the duty of the Mayor 
of Bristol in reference to the Eeform Riots of 1831. 

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 
unlimited is the amount of force which he is bound to 
employ in support of the law. A student, further, 
must be on his guard against being misled, as he well 
might be, by the language of the Eiot Act. 2 That 
statute provides, in substance, that if twelve rioters 
continue together for an hour after a magistrate has 
made a proclamation to them in the terms of the Act 
(which proclamation is absurdly enough called reading 
the Riot Act) ordering them to disperse, he may 

1 5 C. & P. 254. 2 1 Geo. I. stat. 2, c. 5. 



268 THE RULE OF LAW 

Part ii. command the troops to fire upon the rioters or charge 
them sword in hand. 1 This, of course, is not the 
language, but it is the effect of the enactment. Now 
the error into which an uninstructed reader is likely 
to fall, and into which magistrates and officers have 
from time to time (and notably during the Gordon 
riots of 1780) in fact fallen, is to suppose that the 
effect of the Kiot Act is negative as well as positive, 
and that therefore the military cannot be employed 
without the fulfilment of the conditions imposed by 
the statute. This notion is now known to be erro- 
neous ; the occasion on which force can be employed, 
and the kind and degree of force which it is lawful 
to 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 legal citizens to maintain public 
order, at whatever cost of blood or property may be 
necessary, martial law is assuredly part of the law of 
England. Even, however, as to this kind of martial 
law one should always bear in mind that the question 
whether the force employed was necessary or excessive 
will, especially where death has ensued, be ultimately 
determined by a judge and jury, and that the estimate 
of what constitutes necessary force formed by a judge 
and jury, sitting in quiet and safety after the sup- 
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. 

1 See Stephen, History of Criminal Law, i. pp. 202-205. 



MARTIAL LA W 269 



Martial law is, however, more often used as the chapter 
name for the government of a country or a district by _ L 



military tribunals, which more or less supersede the 
jurisdiction of the Courts. The proclamation of tiallaw 

x ^ not recog- 

martial law in this sense of the term is, as has been nised by 
already pointed out, 1 nearly equivalent to the state of law. 
things which in France and many other foreign 
countries is known as the declaration of a " state of 
seige," 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 regu- 
lates the state of siege in France : 

" 7. Aussitdt I'etat de siege declare, les pouvoirs French 
" dont I'autorite civile etait revetuepour le maintien de 
" I'ordre et de la police passent tout entiers a I'autorite siege> 
" militaire. L'autorite civile continue neanmoins 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 de la Republique, contre la constitution, contre 
" I'ordre et la paix publique, quelle que soit la 
" qualite des auteurs principaux et des complices. 

"9. L'autorite militaire a le droit, 1 Defaire 
" des perquisitions, de jour et de nuit, dans le domicile 
" des citoyens; 2 D'eloigner les repris de justice et 
11 les individus qui n'ont pas leur domicile dans les 
" lieux, soumis a I'etat de siege; 3 D'ordonner la 
" remise des armes et munitions, et de proceder ti leur 

1 See p. 265, ante. 



270 THE RULE OF LA W 

Part ii. " recherche, et a leur enl&vement; k D' inter dire les 
" publications et les reunions qu'ellejuge de nature a 
" exciter ou a entretenir le desordre." l 

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 shall 
hardly go far wrong if we assume that during 
this suspension of ordinary law any man what- 
ever is liable to arrest, imprisonment, or execution at 
the will of a military tribunal consisting of a few 
officers who are excited by the passions natural to 
civil war. However this may be, it is clear that in 
France, even under the present Republican govern- 
ment, the suspension of law involved in the proclama- 
tion of a state of siege is a thing fully recognised by 
the constitution, and (strange though the fact may 
appear) the authority of military Courts during a 
state of siege is greater under the Republic than it 
was under the monarchy of Louis Philippe. 2 

Now, this kind of martial law is in England 

' O 

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 they have no right under the law to 
inflict punishment for riot or rebellion. During the 
effort to restore peace, rebels may be lawfully killed 

1 Roger et Sorel, Codes et Lois, pp. 436, 437. 

2 See Geoffrey's Case, 24 Journal du Palais, p. 1218, cited by 
Forsyth, Opinions, p. 483. 



MARTIAL LAW 271 



just as enemies may be lawfully slaughtered in battle, chapter 
or prisoners may be shot to prevent their escape, but VIIL 
any execution (independently of military law) in- 
flicted 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 of revolutionary violence, 
than Wolfe, Tone's Case. 1 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 a Court- 
martial in Dublin. He was thereupon sentenced to 
be hanged. He held, however, no commission as an 
English officer, his only commission being one from 
the French Eepublic. On the morning when his 
execution 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 
filled with 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 that then made by the Irish Bench. 

1 27 St. Tr. 614. 



CHAPTER IX 

THE ARMY l 

Part ii. THE English army consists of the Standing (or 
The Army. Regular) army, and of the Militia. 

Each of these forces has been rendered subordinate 
to the law of the land. My object is not to give 
even an outline of the enactments affecting the 
army, but simply to explain the legal principles on 
which this supremacy of the law throughout the 
army has been secured. 

It will be convenient in considering this matter to 
reverse the order pursued in the common text-books ; 
these contain a great deal about the militia, and com- 
paratively little about the regular forces, or 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, 

1 See Stephen, Commentaries, ii. book iv. chap. viii. ; Gneist, Das 
Englische Verwaltungsrecht, ii. 952-966 ; Manual of Military Law 
(2d ed.) 

As to Standing Army, 1 Will. & Mary, c. 5 ; see the Army 
Discipline and Regulation Act, 1879, 42 & 43 Viet. c. 33 ; the 
Army Act, 1881, 44 & 45 Viet. c. 58. 

As to Militia, 13 Car. II. stat. 1, c. 6 ; 14 Car. II. c. 3 ; 15 Car. 
II. c. 4 ; 42 Geo. III. c. 90 ; Militia Act, 1882, 45 & 46 Viet, 
c. 49 ; and Regulation of the Forces Act, 1881, 44 & 45 Viet. c. 57. 



THE ARMY 273 



an anomaly. Hence the standing army is often Chapter 
treated by writers of authority as a sort of exceptional L 



or subordinate topic, a kind of excrescence so to speak 
on the national and constitutional force known as the 
militia. As a matter of fact, of course, the standing 
army is now the real national force, and the militia 
is a body of comparatively small importance. 

As to the Standing Army. A permanent army of standing 
paid soldiers, whose main duty is one of absolute 
obedience to commands, appears at first sight to be 



an institution inconsistent with that rule of law or Parl | a - 

mentary 

submission to the civil authorities, and especially to govem- 

i i i i T- T nient by 

the judges, which is essential to popular or Parha- annual 
mentary government ; and in truth the existence of Acts" 17 
permanent paid forces has often in most countries and 
at times in England notably under the Common- 
wealth been found inconsistent with the existence of 
what, by a lax though intelligible mode of speech, is 
called a free government. 1 The belief indeed of our 
statesmen down to a time considerably later than the 
Kevolution of 1689 was that a standing army must be 
fatal to English freedom, yet very soon after the 
Revolution it became apparent that the existence of a 
body of paid soldiers was necessary to the safety of 
the nation. Englishmen, therefore, at the end of the 
seventeenth and the beginning of the eighteenth 
century, found themselves placed in this dilemma. 
With a standing army the country could not, they 
thought, escape from despotism ; without a standing 
army the country could not, they perceived, avert 
invasion ; the maintenance of national liberty appeared 
to involve the sacrifice of national independence. 

1 See e.g. Macaulay, History, iii. pp. 42-47. 
T 



274 THE RULE OF LA W 

Part ii. Yet English statesmanship found almost by accident 
a practical escape from this theoretical 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 what is called the practical good - sense, the 
political instinct, or the statesman-like tact of English- 
men, we ought to be on our guard against two errors. 

We ought not on the one hand to fancy that 
English statesmen acted with some profound sagacity 
or foresight peculiar to themselves, and not to be 
found among the politicians of other countries. 
Still less ought we on the other to imagine that 
luck or chance helps Englishmen out of difficulties 
with which the inhabitants of other countries cannot 
cope. Political common -sense, or political instinct, 
means little more than habitual training in the 
conduct of affairs ; this practical acquaintance with 
public business was enjoyed by educated Englishmen 
a century or two earlier than by educated Frenchmen 
or Germans, hence the early prevalence in England 
of sounder principles of government than have till 
recently prevailed in other lands. The statesmen of 
the Revolution succeeded in dealing with difficult 
problems, not because they struck out new and 
brilliant ideas, or because of luck, but because the 
notions of law and government which had grown up 
in England were in many points sound, and because 
the statesmen of 1689 applied to the difficulties of 
their time the notions which were habitual to the 
more thoughtful Englishmen of the day. The posi- 
tion of the army in fact was determined by an 



THE ARMY 



adherence on the part of the authors of the first Mutiny Chapter 

Act to the fundamental principle of English law, that !_ 

a soldier may, like a clergyman, incur special obliga- 
tions in his official character, but is not thereby 
exempted from the ordinary liabilities of citizenship. 

The object and principles of the first Mutiny Act 1 
of 1689 are exactly the same as the object and prin- 
ciples of the Army Act, 1881, under which the 
English army is in substance now governed. A 
comparison of the two statutes shows at a glance 
what are the means by which the maintenance of 
military discipline has been reconciled with the 
maintenance of freedom, or, to 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 
" manner than by the judgment of his peers, and 
" according to the known and established laws of 
" this realm; yet, nevertheless, it" [is] "requisite for 
" retaining such forces as are, or shall be raised 
" during this exigence of affairs, in their duty an 
" exact discipline 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." 2 

This recital states the precise difficulty which per- 

1 1 Will, and Mary, c. 5. 

2 See Clode, Military Forces of the Crown, i. p. 499. Compare 47 
Viet. c. 8. The variations in the modern Acts, though slight, are 
instructive. 



276 THE RULE OF LA W 

Part II. plexed the statesmen of 1689. Now let us observe 
the way in which it has been met. 

A person who enlists as a soldier in a standing 
army, or (to use the wider expression of modern Acts) 
" a person subject to military law/' stands in a twofold 
relation : the one is his relation towards his fellow- 
citizens outside the army ; the other is his relation 
towardsthe membersof 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. His position in each re- 
spect is under English law governed by definite principles. 

Soldier's A soldier's position as a citizen. The fixed doc- 

cSSen. n!S trine of English law is that a soldier, though a 
member of a standing army, is in England subject 
to all the duties and liabilities of an ordinary citizen. 
"Nothing in this act contained" (so runs the first 
Mutiny Act) " shall extend or be construed to exempt 
" any officer or soldier whatsoever from the ordinary 
" process of law." l These words contain the clue 
to all our legislation with regard to the standing 
army whilst employed in the United Kingdom. A 
soldier by his contract of enlistment undertakes 
many obligations in addition to the duties incumbent 
upon a civilian. But he does not escape from any 
of the duties of an ordinary British subject. 

The results of this principle are traceable through- 
out the Mutiny Acts. 

Criminal A soldier is subject to the same criminal liability as 

1 y ' a civilian. 2 He may when in the British dominions 

1 1 Will, and Mary, c. 5, s. 6 ; see Clode, Military Forces of the 
Grown, i. p. 500. 

2 Compare Army Act, 1881 (44 & 45 Viet. c. 58), sees. 41, 144, 
162. 



THE ARMY 277 



be put on trial before any competent " civil " (i.e. non- Chapter 

military) Court for any offence for which he would be L 

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. 1 
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 save 
him from standing in the dock on the charge of 
murder or theft. 

A soldier cannot escape from civil liabilities, as, cmi 
for example, responsibility for debts ; the only exemp- 
tion 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. 2 

No one who has entered into the spirit of conti- 
nental 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 between a military 
and a civil Court the authority of the civil Court 
prevails. Thus, if a soldier is acquitted or convicted 
of an offence by a competent civil Court, he cannot 
be tried for the same offence by a Court-martial ; 3 but 
an acquittal or conviction by a Court-martial, say for 

1 Compare, however, the Jurisdiction in Homicide Act, 1862, 
25 & 26 Viet. c. 65, and Clode, Military Forces of the Crown, i. 
pp. 206, 207. 

2 See Army Act, 1881 (44 & 45 Viet. c. 58), s. 144. Compare 
Clode, Military Forces of the Crown, i. pp. 207, 208, and Thurston 
v. Mills, 16 East, 254. 

3 Army Act, 1881 (44 & 45 Viet. c. 58), s. 162, sub-ss. 
1-6. 



278 



THE RULE OF LA W 



Order of 

sup 

no 



Part ii. manslaughter or robbery, is no plea to an indictment 
for the same offence at the Assizes. 1 

When a soldier is put on trial on a charge of crime, 
obedience to superior orders is not of itself a defence. 2 

This is a matter 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 law by pleading that he broke the 
law in bond fide obedience to the orders (say) of the 

1 Army Act, 1881 (44 & 45 Viet. c. 58), s. 162, sub-ss. 1-6. Con- 
trast the position of the army in relation to the law of the land in 
France. The fundamental principle of French law is, as it apparently 
always has been, that every kind 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. 

2 Stephen, History of Criminal Law, i. pp. 204-206, and compare 
Clode, Military Forces of the Crown, ii. pp. 125-155. The position of 
a soldier is curiously illustrated by the following case. X was a 
sentinel on board the Achille when she was paying off. " The 

orders to him from the preceding sentinel were, to keep off all boats, 
unless they had officers 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." Eussell, Crimes 
and Misdemeanours (4th ed.), i. p. 823, on the authority of Bex v. Thomas, 
East, T., 1816, MS., Bay ley, J. The date of the decision is worth 
noticing ; no one can suppose that the judges of 1816 were disposed 
to underrate the rights of the Crown and its servants. The judgment 
of the Court rests upon and illustrates the incontrovertible principle of 
the Common Law that the fact of a person being a soldier and of 
his acting strictly under orders, does not of itself exempt him from 
criminal liability for acts which would be crimes if done by a civilian. 



THE ARMY 279 



commander-in-chief. Hence the position of a soldier .Chapter 

may be, both in theory and 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 
be sufficient 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 
to obey the command of their officer. It is a lawful 
order, and the men who carry it out are performing 
their duty both as soldiers and as citizens. 

An officer orders his soldiers in a time of political 
excitement then and there to arrest and shoot without 
trial a popular leader against whom no crime has 
been proved, but who is suspected of treasonable 
designs. In such a case there is (it is conceived) no 
doubt that the soldiers who obey, no less than the 
officer who gives the command, are guilty of murder, 
and liable to be hanged for it when convicted in due 
course of law. In such an extreme instance as this 
the duty of soldiers is, even at the risk of disobeying 
their superior, to obey the law of the land. 

An officer orders his men to fire on a crowd whom 
he thinks could not be dispersed without the use of 
firearms. As a matter of fact the amount of force 
which he wishes to employ is excessive, and order 
could be kept by the mere threat that force would be 



280 THE RULE OF LA W 

Part ii. used. The order therefore to fire is not in itself a 
lawful order, that is, the colonel, or other officer, who 
gives it, is 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, from a legal point of view, the duty of the 
soldiers ? The matter is one which has never been 
absolutely decided ; the following answer, given by 
Mr. Justice Stephen, is, it may fairly be assumed, as 
nearly correct a reply as the state of the authorities 
makes it possible to provide : 

" I do not think, however, that the question how 
" far superior orders would justify soldiers or sailors 
" in making an attack upon civilians has ever 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 in- 
" feriors in executing any orders for giving which they 
" might fairly suppose their superior officer to have 
" good reasons. Soldiers might reasonably think 
" that their officer had good grounds for ordering 
" them to fire into a disorderly crowd which to them 
" might not appear to be at that moment engaged in 
" acts of dangerous violence, but soldiers could hardly 
" suppose that their officer could have any good 
" grounds for ordering them to fire a volley down a 
" crowded street when no disturbance of any kind 
" was either in progress or apprehended. The doc- 
" trine 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 



THE ARMY 281 



" captain, or in deserting to the enemy on the field of Chapter 

" battle on the order of his immediate superior. I L_ 

" think it is not less monstrous to suppose that 
" superior orders would justify a soldier in the 
" massacre of unoffending civilians in time of peace, 
" or in the exercise of inhuman cruelties, such as the 
" slaughter of women and children, during a rebellion. 
" The only line that presents itself to my mind is 
" that a soldier should be protected by orders for 
" which he might reasonably believe his officer to 
" have good grounds. The inconvenience of being 
" 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." 1 

The hardship of a soldier's position resulting from 
this inconvenience is much diminished by the power 
of the Crown to nullify the effect of an unjust con- 
viction by means of a pardon. 2 While however a 
soldier runs no substantial risk of punishment for 
obedience to orders which a man of common sense 
may honestly believe to involve no breach of law, he 
can under no circumstances escape the chance of his 
military conduct becoming the subject of inquiry 
before a civil tribunal, and cannot avoid liability on 
the ground of obedience to superior orders for any act 

1 Stephen, Hist. Criminal Law of England, i. pp. 205, 206. Com- 
pare language of Willes, J., in Keighly v. Bell, 4 F. & F. 763. 

2 As also by the right of the Attorney-General as representing 
the Crown to enter a nolle prosequi. See Stephen, History of Criminal 
Law, i. p. 496, and Archbold, Pleading in Criminal Cases (17th ed.), 
p. 105. 



282 THE RULE OF LA W 

Part ii. which a man of ordinary sense must have known to 

be a crime. 1 

Soldier's A soldier's position as a member of the army. 

member" A citizen on entering the army becomes liable to 
army. special duties as being " a person subject to military 
law." Hence acts which if done by a civilian would 
be either no offence at all or only slight misdemeanours, 
e.g. an insult or a blow offered to an officer, may 
when done by a soldier become serious crimes and 
expose the person guilty of them to grave punish- 
ment. A soldier's offences moreover can be tried and 
punished by a Court-martial. He therefore in his 
military character of a soldier occupies a position 
totally different 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 
military law : but though this is so, it is not to be 
supposed that, even as regards a soldier's own position 
as a military 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 by the rules of law which 
govern the army. 

1 Buron v. Denman, 2 Ex. 167, is sometimes cited as showing 
that obedience to the orders of the Crown is a legal justification to an 
officer for committing a breach of law, but the decision in that case 
does not, in any way, support the doctrine erroneously grounded upon 
it. What the judgment in Buron v. Denman shows is that an act 
done by an English military or naval officer in a foreign country to a 
foreigner in discharge of orders received from the Crown may be an 
act of war, but does not constitute any breach of law for which an 
action can be brought against the officer in an English Court. Com- 
pare Feather v. The Queen, 6 B. & S. 257, 295, per Curiam. 



THE ARMY 283 



Hence flow the following (among other) conse- chapter 
quences. Ix ' 

The civil Courts determine 1 whether a given 
person is or is not " a.person subject to military law." 2 

Enlistment, which constitutes the contract 3 by 
which a person becomes subject to military law, is 
a civil proceeding, and a civil Court may have to 
inquire whether a man has been duly enlisted, or 
whether he is or is not entitled to his discharge. 4 

If a Court-martial exceeds its jurisdiction, or an 
officer, whether acting as a member of a Court-martial 
or not, does any act not authorised by law, the action 
of the Court, or of the officer, is subject to the super- 
vision of the Courts. " 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 may either 
" be preventive, i.e., to restrain the commission 
" or continuance of an injury ; or remedial, i.e., to 

1 See Wolfe Tone's Case, 27 St. Tr. 614 ; Douglas's Case, 3 Q. B. 
825 ; Fryv. Ogle, cited Manual of Military Law (2d ed.), pp. 188-190. 

2 See Army Act, 1881 (44 & 45 Viet. c. 58), ss. 175-184. 

3 " The enlistment of the soldier is a species of contract between 
" the sovereign and the soldier, and 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 man was 
" enlisted cannot be varied without his consent." Manual of Military 
Law (2d ed.), pp. 260, 261. 

4 See Army Act, 1881 (44 & 45 Viet. c. 58), s. 96, for special 
provisions as to the delivering to a master of an apprentice who, being 
under twenty-one, has enlisted as a soldier. Under the present law at 
any rate it can very rarely happen that a Court should be called upon 
to consider whether a person is improperly detained in military custody 
as a soldier. See Army Act, 1881, s. 1, and s. 100, sub-ss. 2, 3. 
The Courts used to interfere, when soldiers were impressed, in cases of 
improper impressment. See Clode, Military forces, ii. pp. 8 and 587. 



284 THE RULE OF LA W 

Part IT. " 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 
" in his custody any person alleged to be improperly 
" 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 an annual Mutiny Act. If a 
Mutiny 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. 

Militia. As to the Militia. 2 The militia is the constitutional 

force existing under the law of the land for the defence 
of the country, and the older Militia Acts, especially 
14 Car. II. c. 3, show that in the seventeenth cen- 
tury Parliament meant to rely for the defence of 
England upon this national army raised from the 
counties and placed under the guidance of country 
gentlemen. The militia may still be raised by ballot, 
and is in theory a local force levied by conscription. 
But the power of raising by ballot has been for a 
considerable time suspended, 3 and the militia, like the 
regular army, is in fact recruited by voluntary en- 
listment. 

1 Manual of Military Law, pp. 177, 178. 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. 

2 See Militia Act, 1882, 45 & 46 Viet. c. 49. 

3 See 28 & 29 Viet. c. 46. 



THE ARMY 285 



The militia is from its nature a body hardly Chapter 

capable of being used for the purpose of overthrowing '_ 

Parliamentary government. But even with regard 
to the militia, care has been taken by the legislature 
to ensure that it shall be subject to the rule of 
law. The members of the local army are (speaking 
in general terms) subject to military law only 
when in training or when the force is embodied. 
Embodiment indeed converts the militia for the time 
being into a regular army, though an army which 
cannot be required to serve abroad. But the em- 
bodiment can lawfully take place only in " case of 
imminent national danger or of great emergency." 
If Parliament is sitting, the occasion for embodying 
the militia must be communicated to Parliament 
before the proclamation for embodying it is issued. 
If Parliament is not sitting, a proclamation must be 
issued for the meeting of Parliament within ten days 
after the Crown has ordered the militia to be em- 
bodied. 1 Add to this, that the maintenance of 
discipline among the members of the militia when 
it is embodied depends on the continuance of the 
annual Mutiny Act. 2 

1 Militia Act, 1882 (45 & 46 Viet. c. 49), s. 18. 

2 There exists an instructive analogy between the position of 
persons subject to military law, and the position of the clergy of the 
Established Church. 

A clergyman of the National Church, like a soldier of the 
National Army, is subject 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 



286 THE RULE OF LAW 

Part II. 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 
overcome with more completeness in England than in some other 
countries. We may plausibly conjecture that this triumph of law 
was due to the acknowledged supremacy of the King in Parliament, 
which itself was due to the mode in which the King, acting together 
with the two Houses, manifestly represented the nation, and therefore 
was able to wield the whole moral authority of the state. 



CHAPTER X 

THE REVENUE l 

As in treating of the army my aim was simply to chapter 
point out what were the principles determining the 
relation of the armed forces of the country to the law Revenue, 
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 appropriation 
of the public revenue, that is, for its being expended 
in the exact manner which the law directs. 

Source of Public Revenue. It is laid down by Source. 
Blackstone and other authorities that the revenue 
consists of the hereditary or "ordinary" revenue of the 
Crown and of the " extraordinary " revenue depending 
upon taxes imposed by Parliament. Historically this 

1 Stephen, Commentaries, ii. pp. 530-583 ; Hearn, Government of 
England. (2d ed.), c. 13, pp. 351-388 ; May, Parliamentary Practice, 
(8th ed.), chap. xxi. ; see Exchequer and Audit Act, 1866, 29 & 30 
Viet. c. 39, and 1 & 2 Viet. c. 2, s. 2. 



288 THE RULE OF LA W 

Part ii. distinction is of interest. But for our purpose 
we need hardly trouble ourselves at all with the 
hereditary revenue of the Crown, arising from Crown 
lands, droits of admiralty, and the like. It forms an 
insignificant portion of the national resources, amount- 
ing to not much more than 500,000 a year. It 
does not moreover at the present moment belong 
specially to the Crown, for it was commuted at the 
beginning of the reign of the present Queen as it 
was at the beginning of the reign of William IV. 
for a fixed " civil list," or sum payable yearly for the 
support of the dignity of the Crown. The whole 
then of the hereditary revenue is now paid into 
the national exchequer and forms part of the income 
of the nation. We may therefore, putting the hered- 
itary revenue out of our minds, direct our whole 
attention to what is oddly enough called the " extra- 
ordinary," but is in reality the ordinary or Parlia- 
mentary revenue of the nation. 

The whole of the national revenue amounts in 
round numbers to somewhere about 89,000,000 l 
annually. It is (if we put out of sight the small 
hereditary revenue of the Crown) 2 raised wholly by 
taxes imposed by law. The national revenue there- 
fore depends wholly upon law, and upon statute-law ; 
it is the creation of Acts of Parliament. 

1 The Chancellor of the Exchequer in his Budget speech, as reported 
in the Times of 27th March 1888, gave the total revenue for the year 
at 89,287,000. 

2 It is worth noting that the beer duties are still a portion of the 
hereditary revenues of the Crown, and that, though they are not now 
levied, the claim of the Crown to them would revive, if at any time the 
right to the hereditary revenues were not surrendered. See Dowell, 
History of Taxation, iv. p. 132 ; 12 Car. II. c. 24 ; 11 Geo. IV. & 1 
Will. IV. c. 51 ; and 1 & 2 Viet. c. 2, s. 7. 



THE REVENUE 289 



While no one can nowadays fancy that taxes Chapter 

can be raised otherwise than in virtue of an Act of !_ 

Parliament, there prevails, it may be suspected, with 
many of us a good deal of confusion of mind as to 
the exact relation between the raising of the revenue 
and the sitting of Parliament. People often talk as 
though, if Parliament did not meet, no taxes would 
be legally payable, and the assembling of Parliament 
were therefore secured by the necessity of filling the 
national exchequer. This idea is encouraged by the 
study of periods, such as the reign of Charles L, during 
which the Crown could not legally obtain necessary 
supplies without the constant intervention of Parlia- 
ment. But the notion that at the present 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 Parliament, it is far from being the case that all 
taxation now depends upon annual or temporary 
Acts. 

Taxes are made payable in two different ways, i.e. 
either by permanent or by yearly Acts. 

Taxes, the proceeds of which amount to nearly 
four-fifths of the whole yearly revenue are imposed by 
permanent Acts ; such taxes are the land tax, 1 the 
excise, 2 the stamp duties, 3 and the like. These taxes 
would continue to be payable even though Parlia- 
ment should not be convened for years. We should 
all, to take an example which comes home to every 

1 38 George III. c. 5. 

2 See Stephen, Commentaries, ii. pp. 566-569. 
3 Stamp Act, 1870, 33 & 34 Viet. c. 97. 
U 



290 THE RULE OF LA W 

Part IT. one, be legally compellable to buy the stamps for our 
letters even though Parliament did not meet again till 
(say) A.D. 1900. 

Other taxes, and notably the income tax, the pro- 
ceeds of which make up the remaining fifth of the 
national income, are imposed by yearly Acts. If by 
any chance Parliament should not be convened for a 
year, no one would be under any legal obligation to 
pay income tax. 1 

This distinction between revenue depending upon 
permanent Acts and revenue depending upon tempo- 
rary Acts is worth attention, but the main point of 
course to be borne in mind is that all taxes are 
imposed by statute, and that no one can be forced 
to pay a single shilling by way of taxation which 
cannot be shown to the satisfaction of the judges 
to be due from him under Act of Parliament. 
Authority Authority f or expending revenue. At one time, 
revenue once raised by taxation was in truth and in 
reality a grant or gift by the Houses of Parliament 
to the Crown. Such grants as were made to Charles 
the First or James the First were 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 ; and the gifts made to the King by Parliament 
were never intended to be " money to put into his 
own pocket," 2 as the expression goes. Still it was in 
truth money of which the King or his Ministers 
could and did regulate the distribution. One of 

1 The income tax and the tea duties are imposed by annual Acts. 
The receipts of these taxes for the year 1887-88 amounted, in round 
numbers, to about 18,000,000. 

2 See the Preamble, 1 Anne, c. 1. 



THE REVENUE 291 



the singularities which mark the English constitu- Chapter 

tion is the survival of mediaeval notions, which more 1_ 

or less identified the King's property with the national 
revenue, after the passing away of the state of society 
to 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 
day, however, the whole public revenue is treated 
not as the King's property but as public income ; and 
as to this two matters deserve special observation. 

First. The whole revenue of the nation is paid 
into the Bank of England l to the " account of Her 
Majesty's Exchequer," 2 mainly through the Inland 
Revenue Office. 3 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 Revenue 
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 De- 
partments Act, 1866 (29 & 30 Viet. c. 39), s. 10. 

2 Ibid, and Control and Audit of Public Receipts and Expenditure, 
pp. 7, 8. But a system of appropriations in aid has been introduced 
during the last two 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. 

3 55,916,974 were collected in the year 1887-88 by the Inland 
Revenue establishment. 



292 THE RULE OF LA W 

Part ii. all the money received, and drive off with it and pay 
it into the Bank of England. 

Secondly. Not a penny of revenue can be legally 
expended except under the authority of some Act of 
Parliament. 

This authority may be given by a permanent Act, 
as for example by the Civil List Act, 1 & 2 Viet. c. 
2, or by the National Debt and Local Loans Act, 
1887 ; or it may be given by the Appropriation Act, 
that is, the annual Act by which Parliament "ap- 
propriates" or fixes the sums payable to objects (the 
chief of which is the support of the army and navy) 
which are not provided for, as is the payment of the 
National Debt, by permanent Acts of Parliament. 

The whole thing, to express it in general terms, 
stands thus. 

There is paid into the Bank of England a national 
income raised by different taxes amounting to about 
89,000,000 per annum. This 89,000,000 con- 
stitutes 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 the supplies granted by Parliament 
(and not otherwise appropriated by permanent Acts) 
are to be spent. In either case, and this is the point 
to bear in mind, payments made out of the national 



THE REVENUE 293 



revenue are made by and under the authority of the Chapter 

law, namely, under the directions of some special Act 

of Parliament. 

The details of the method according to which 
supplies are annually voted and appropriated by 
Parliament are amply treated of in works which deal 
with Parliamentary practice. 1 The matter which 
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 
prior to the Appropriation Act and are enumerated 
therein. The expenditure therefore, no less than the 
raising of taxation, depends wholly and solely upon 
Parliamentary enactment. 

Security for the proper appropriation of the Security 
revenue. What, it may be asked, is the real security 
that moneys paid by the taxpayers are expended by ture ' 
the Government in accordance with the intention of 
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 under legal authority. To 
the same officials ultimately comes the knowledge of 
the way in which money thus paid out is actually 
expended, and they are bound to report to Parliament 

1 See especially May, Parliamentary Practice, chap. xxi. 



294 THE RULE OF LA W 

Part ii. upon any expenditure which is or may appear to be 
not authorised by law. 

The centre of this system of Parliamentary control 
is the Comptroller and Auditor General. 1 

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. He in common with his sub- 
ordinate the Assistant Comptroller and Auditor 
General is appointed by a patent under the Great 
Seal, holds his office during good behaviour, and can 
be removed only on an address from both Houses of 
Parliament. 2 He is head of the Exchequer and Audit 
Department. He thus combines in his own person 
two characters which formerly belonged to differ- 
ent officials. He is controller of the issue of public 
money ; he is auditor of public accounts. He is 
called upon, therefore, to perform two different func- 
tions, which the reader ought, in his own mind, to 
keep carefully distinct from each other. 

In exercise of his duty of control the Comptroller 
General is bound, with the aid of the officials under 
him, to see that the whole of the national revenue, 
which, it will be remembered, is lodged in the Bank 
of England to the account of the Exchequer, is paid 
out under legal authority, that is, under the provisions 
of some Act of Parliament. 

The Comptroller General is enabled to do this 
because, whenever the Treasury (through which office 
alone the public moneys are drawn out from the Bank) 

1 Control and Audit of Public Receipts and Expenditure, 1885. 

2 The Exchequer and Audit Departments Act, 1866 (29 & 30 
Viet. c. 39), sec. 3. 



THE REVENUE 295 



needs to draw out money for the public service, the chapter 
Treasury must make a requisition to the Comptroller 
General authorising the payment from the public 
moneys at the Bank of the definite sum required. 1 

The payments made by the Treasury are, as 
already pointed out, made either under some per- 
manent Act, for what are technically called " consoli- 
dated fund services," as, for example, to meet the 
interest on the National Debt, or under the yearly 
Appropriation Act, for what are technically called 
" supply services," as, for example, to meet the ex- 
penses of the army or the navy. 

In either case the Comptroller General must, 
before granting the necessary credit, satisfy himself 
that he is authorised in doing so by the terms of the 
Act under which it is demanded. He must also 
satisfy himself that every legal formality, necessary 
for obtaining public money from the Bank, has been 
duly complied with. Unless, and until, he is satisfied 
he ought not to grant, and will not grant, a credit for 
the amount required ; and until this credit is obtained, 
the money required cannot be drawn out of the 
Bank. 

The obtaining from the Comptroller General of a 
grant of credit may appear to many readers a mere 
formality, and we may suppose that it is in most 
cases given as a matter of course. It is however a 
formality which gives an opportunity to an official, 
who has no interest in deviating from the law, for 
preventing the least irregularity on the part of the 
Government in the drawing out of public money. 

1 See Control and Audit of Public Receipts and Expenditure, 1885, 
pp. 61-64, and Forms No. 8 to No. 12. 



296 THE RULE OF LA W 

Part ii. The Comptroller's power of putting a check on 
government expenditure has, oddly enough, been 
pushed to its extreme length in comparatively recent 
times. In 1811 England was in the midst of the 
great war with France ; the King was a lunatic, a 
Regency Bill was not yet passed, and a million pounds 
were required for the payment of the navy. Lord 
Grenville, the then Auditor of the Exchequer, whose 
office corresponded to a certain extent with that of 
the present Comptroller and Auditor General, refused 
to draw the necessary order on the Bank, and thus 
prevented the million, though granted by Parliament, 
from being drawn out. The ground of his lordship's 
refusal was that he had received no authority under 
the Great Seal or the Privy Seal, and the reason why 
there was no authority under the Privy Seal was that 
the King was incapable of affixing the Sign Manual, and 
that the Sign Manual not being affixed, the clerks of 
the Privy Seal felt, or said they felt, that they could 
not consistently with their oaths allow the issue of 
letters of Privy Seal upon which the warrant under 
the Privy Seal was then prepared. All the world 
knew the true state of the case. The money was 
granted by Parliament, and the irregularity in the 
issue of the warrants was purely technical, yet the law 
officers members themselves of the Ministry ad- 
vised that Lord Grenville and the clerks of the Privy 
Seal were in the right. This inconvenient and, as it 
seems to modern readers, unreasonable display of 
legal scrupulosity masked, it may be suspected, a good 
deal of political by-play. If Lord Grenville and his 
friends had not been anxious that the Ministry should 
press on the Regency Bill, the officials of the 



THE REVENUE 297 



Exchequer would perhaps have seen their way through Chapter 

the technical difficulties which, as it was, appeared '__ 

insurmountable, and it is impossible not to suspect 
that Lord Grenville acted rather as a party leader than 
as Auditor of the Exchequer. But be this as it may, 
the debates of 1811 l prove to demonstration that a 
Comptroller General can if he chooses put an im- 
mediate check on any irregular dealings with public 
moneys. 

In exercise of his duty as Auditor the Comptroller 
General audits all the public accounts ; 2 he reports 
annually to Parliament upon the accounts of the past 
year. Accounts of the expenditure under the Ap- 
propriation Act are submitted by him at the beginning 
of every session to the Public Accounts Committee of 
the House of Commons a Committee appointed for 
the examination of the accounts showing the appro- 
priation 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 irregu- 
larity, even if amounting only to a pound or two, are 
gone into and discussed by the Committee. The 
results of their discussions are published in reports 
submitted to Parliament. 

The general result of this system of control and 
audit is, that in England we possess accounts of the 
national expenditure of an accuracy which cannot be 
rivalled by the public accounts of other countries, and 

1 Cobbett's Parl. Debates, xviii. pp. 678, 734, 787. 

2 In auditing the accounts he inquires into the legality of the pur- 
poses for which public money has been spent, and in his report to 
Parliament calls attention to any expenditure of doubtful legality. 



298 THE RULE OF LA W 

Part ii. that every penny of the national income is expended 
under the authority and in accordance with the pro- 
visions of some Act of Parliament. 1 

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 
sphere of politics, have no wish or temptation to 
hinder the progress of public business ; the Auditor 
of the Exchequer was in 1811, be it noted, a peer 
and a statesman. The more technical reply is, that 
the law provides two means of overcoming the per- 
versity or factiousness of any Comptroller who should 

1 The main features of the system for the control and audit 
of national expenditure have been authoritatively summarised as 
follows : 

" The gross revenue collected is paid into the Exchequer. 

" Issues from the Exchequer can only be made to meet expenditure 
" 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- 
" ture is insured. 

" 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 service, 
" must receive legislative sanction." Control and Audit of Public 
Receipts and Expenditure, 1885, pp. 24, 25. 



THE REVENUE 299 



without due reason refuse his sanction to the issue Chapter 

v 

of public money. He can be removed from office on 1_ 

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 l from the 
High Court of Justice. The worth of this suggestion, 
made by a competent lawyer, has never been, and 
probably never will be, tested. But the possibility 
that the executive might have to seek the aid of the 
Courts in order to get hold of moneys granted by 
Parliament, is itself a curious proof of the extent to 
which the expenditure of the revenue is governed by 
law, or, what is the same thing, may become depend- 
ent on the decision of the judges upon the meaning 
of an Act of Parliament. 

1 See Bowyer, Commentaries on Constitutional Law, p. 2 1 ; Hearn, 
Government of England (2d ed.), p. 375. 



CHAPTER XI 



Part ii. MINISTERIAL responsibility means two utterly dif- 



Ministerial ferent things. 

butty? 81 ' It means in ordinary parlance the responsibility 

of Ministers to Parliament, or, the liability of 
Ministers to lose their offices if they cannot retain 
the confidence of the House of Commons. 

This is a matter depending on the conventions 
of the constitution with which law has no direct 
concern. 

It means, when used in its strict sense, the legal 
responsibility of every Minister for every act of the 
Crown in which he takes part. 

This responsibility, which is a matter of law, rests 
on the following foundation. There is not to be 
found in the law of England, as there is found in 
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 
must, when expressed in writing, as they generally 
are, be countersigned by a Minister. Practically, 
however, the rule exists. 

In order that an act of the Crown may be re- 



THE RESPONSIBILITY OF MINISTERS 301 

cognised as an act of the Crown or have any legal Chapter 

effect, it must in general be done through a Minister '_ 

or be done under some seal, as, for example, the 
Great Seal or the Privy Seal, which is in the keeping 
of a Minister. Thus the " Secretaries of State are 
" the channels which convey the Royal pleasure 
" throughout the body politic both at home and 
" abroad. The countersignature of one of them is 
" necessary to give effect to the Royal sign-manual. 
" The patronage of the Crown both in Church and 
" State is administered under this safeguard. To 
" every public document signed by the Sovereign the 
" signature of a Secretary of State is appended, and the 
" Minister must answer for what the Crown has done." 1 

Numerous acts, again, can be commanded by the 
Crown only under particular seals, such as the Signet, 
the Privy Seal, or the Great Seal ; and in many 
instances for the due giving of a royal order, e.g. for 
the making of a grant, several of these seals are 
required. 2 Now, as each of these seals is in the 
keeping of separate officials, and can be affixed only 
with the sanction of the Minister who keeps it, the 
result is that at least one Minister, and often more, 
must take part in any act of the Crown, which has 
any legal effect, e.g. the making of a grant, the giving 
an order, or the signing of a treaty. 

The Minister or servant of the Crown who thus 
takes part in giving expression to the Royal will is 
legally responsible for the act in which he is con- 
cerned, and he cannot get rid of his liability by 

1 Clode, Military Forces of the Crown, ii. pp. 320, 321, citing the 
words of Sir James Graham in the Military Organisation Report, 1860, 
p. 1 ; The Elsebe, 5 Rob. 173, 177 ; Buron v. Denman, 2 Ex. 167, 189. 

2 See however the Great Seal Act, 1884, 47 & 48 Viet. c. 30. 



302 THE RULE OF LA W 

Part ii. pleading that he acted in obedience to royal orders. 
Now suppose that the act done is illegal, the Minister 
concerned in it 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 
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 
almost out of date is partly that Ministers are now 
rarely in a position where there is even a temptation 
to commit the sort of crimes for which impeachment 
is 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 
Court. The point however which should never be 
forgotten is this ; it is now well established law that 
the Crown can act only through Ministers and accord- 
ing to certain prescribed forms which absolutely 
require the co-operation of some Minister, such as 
a Secretary of State or the Lord Chancellor, who 
thereby becomes not only morally but legally respon- 
sible for the legality of the act in which he takes 
part. Hence, indirectly but surely, the action of 
every servant of the Crown, and therefore in effect 
of the Crown itself, is brought under the supremacy 
of the law of the land. Behind Parliamentary re- 
sponsibility lies legal liability, and the acts of 
Ministers no less than the acts of subordinate 
officials are made subject to the rule of law. 



CHAPTER XII 



IT has been already pointed out 1 that in many chapter 
countries, and especially in France, servants of the 1 



State are in their official capacity to a gr.eat extent 
protected from the ordinary law of the land, exempted trati f- 
from the jurisdiction of the ordinary tribunals, and 
subject to official law, administered by official bodies. 
This scheme of so-called administrative law is opposed 
to all English ideas, and by way of contrast admir- 
ably illustrates the full meaning of that rule of law 
which is an essential characteristic of our Constitution. 
A student therefore will do well to try and under- 
stand the general characteristics of that administrative 
law which under one name or another 2 prevails in 
most continental States, and this end is most easily 
attained by a survey (which for our present purpose 
must be a cursory one) of the nature and principles 
of the system known to Frenchmen as droit 
administratif. 

The term droit administratif 3 is one for which 

1 See p. 182, ante. 

2 As for instance in Germany, Verwaltungsrecht. 

3 On this topic see Aucoc, Conferences sur V administration et le 
droit administratif (3d ed.) ; Vivien, Etudes Administrates ; Bceuf, 
Droit Administratif (4th ed.) 



304 THE RULE OF LA W 

Part ii. English legal phraseology supplies no proper equiva- 
lent. The words " administrative law," which are its 
most natural rendering, are unknown to English 
judges and counsel, and are in themselves hardly 
intelligible without further explanation. 

This absence from our language of any satisfactory 
equivalent for the expression droit administratif is 
significant ; 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 prin- 
ciples on which it rests are in truth unknown. This 
absence from the institutions of the Union of any- 
thing answering to droit administratif arrested the 
observation of De Tocqueville from the first moment 
when he began his investigations into the character- 
istics of American democracy. In 1831 he writes to 
an experienced French judge (magistral), Monsieur 
De Blosseville, to ask both for an explanation of the 
contrast in this matter between French and American 
institutions, and also for an authoritative explanation 
of the general ideas (notions generates} governing the 
droit administratif of his country. 1 He grounds his 

1 De Tocqueville's language is so remarkable and bears so closely 
on our topic that it deserves quotation : " Ge qui m'empdche le plus, je 
vous avoue, de savoir ce qui se fait sur ces differents points en Ame'rique, 
c'est d'ignorer, a peu pres complement, ce qui existe en France. Vous 
savez que, chez nous, le droit administratif et le droit civil forment 
comme deux mondes se'pards, qui ne vivent point toujours en paix, mais 
qui ne sont ni assez amis ni assez ennemis pour se bien connavtre. J*ai 
toujours vecu dans Vun et suis fort ignorant de ce qui se passe dans 
I'autre. En m$me temps que j'ai senti le besoin d'acque'rir les notions 
ge'ne'rales qui me manquent a cet e'gard, j'ai pense que je ne pouvais 
mieux faire que de m'adresser a vous." De Tocqueville, (Euvres 
CompUtes, vii. p. 66. 



DROIT ADMINISTRATE 305 

request for information on his own ignorance about Chapter 
this special branch of French jurisprudence, and 
clearly implies that this want of knowledge is not 
uncommon among French lawyers. 

When we know that a legist of De Tocqueville's 
ability found it necessary to ask for instruction in the 
" general ideas " of administrative law, we may safely 
assume that the topic is one which, even in the eyes 
of a French lawyer, bears an exceptional character, 
and need not wonder that Englishmen find it difficult 
to appreciate the nature of rules which are, admittedly, 
foreign to the spirit and traditions of our institutions. 
It is however this very contrast between adminis- 
trative law as it prevails in France, and the notions 
of equality before the law of the land which are firmly 
established in modern England, that makes it worth 
while to study, not of course the details, but what 
De Tocqueville calls the notions generates of French 
droit administratif. Our aim should be to seize the 
general nature of administrative law and the prin- 
ciples on which the whole system of droit adminis- 
tratif depends, to note the salient characteristics by 
which this system is marked, and, lastly, to make clear 
to ourselves how it is that the existence of a scheme of 
administrative law makes the legal situation of every 
government official in France totally different from the 
legal situation of servants of the state in England, 
and in fact establishes a condition of things funda- 
mentally inconsistent with what Englishmen regard 
as the due supremacy of the ordinary law of the land. 

Droit administratif, or " administrative law," has 
been defined by French authorities in general terms 
as " the body of rules which regulate the relations of 

x 



306 THE RULE OF LA W 

Part ii. " the administration or of the administrative authority 
" towards private citizens ; " l and Aucoc in his 
work on droit administratif describes his topic in 
its nature, ^jg verv g enera i language : 2 " Administrative law 
" determines (1) the constitution and the relations of 
" those organs of society which are charged with the 
" care of those social interests (inter ts collectifs)v?hich 
11 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 obviously wanting in pre- 
cision, and their vagueness is not without significance. 
As far, however, as an Englishman may venture to 
deduce the meaning of droit administratif from 
foreign treatises and Keports, it may (at any rate for 
our present purpose) be best described, as that portion 
of French law which determines, (i.) the position and 
liabilities of all state officials, and (ii.) the civil rights 
and liabilities of private individuals in their dealings 
with officials as representatives of the state, and (iii.) 
the procedure by which these rights and liabilities 
are enforced. 

The effect of this description is most easily made 
intelligible to English students by giving examples of 

1 " On le de'finit ordinairement V ensemble des regies qui regissent Us 
' rapports de P administration ou de I'autorite administrative avec les 
' citoyens." Aucoc, Droit Administratif, i. s. 6. 

2 " Nous prefe'rerions dire, pour notre part : Le droit administratif 
' determine: 1' la constitution et les rapports des organes de la socie'te' 
' charge's du soin des inte'rets collectifs qui font I'objet de I' administration 
' publique, c'est-a-dire des differentes personnifications de la socie'te', dont 
' VEtat est la plus importante ; 2- les rapports des autorite's adminis- 

" tratives avec les citoyens." Ibid. 



DROIT AD MINIS TRA TIP 307 

the sort of matters to which the rules of administrative Chapter 

"Y"TT 

law apply. If a Minister, a Prefect, a policeman, or _ 1 
any other official commits acts in excess of his legal 
authority (exces de pouvoirs), as, for example, if a 
police officer in pursuance of orders, say from the 
Minister of the Interior, wrongfully arrests a private 
person, the rights of the individual aggrieved and the 
mode in which these rights are to be determined is a 
question of administrative law. If, again, a contractor 
enters into a contract with any branch of the adminis- 
tration, e.g. for the supply of goods to the government, 
or for the purchase of stores sold off by a public office, 
and a dispute arises as to whether the contract has 
been duly performed, or as to the damages due from 
the government to the contractor for a breach of it, 
the rights of the contracting parties are to be de- 
termined in accordance with the rules of administrative 
law, and to be enforced (if at all) by the methods of 
procedure which that law provides. All dealings, in 
short, in which the rights of an individual in re- 
ference to the state or officials representing the state 
come in question, fall within the scope of adminis- 
trative law. 

Any one who considers with care the nature of the 



droit administratif of France, or the kind of topics to 



which it applies, will soon discover that it rests at 
bottom on two leading ideas alien to the conceptions ciples> 
of modern Englishmen. 

The first of these notions is that the government, 



and every servant of the government, possesses, as the state. 
representative of the nation, a w T hole body of special 
rights, privileges, or prerogatives as against private 
citizens, and that the extent of these rights, privileges, 



308 THE RULE OF LA W 

Part II. or prerogatives is to be determined on principles 
different from the considerations which fix the legal 
rights and duties of one citizen towards another. An 
individual in his dealings with the state does not, 
according to French ideas, stand on anything like the 
same footing on which he stands in dealings with his 
neighbour. 

A, for example, being a private person, enters into 
a contract with X, also a private person. X breaks 
the contract. A has a right to recover from X 
damages equivalent to the gain which A would have 
made if X had kept to his bargain. 

A enters into an exactly similar contract with N, 
an official acting on behalf of some department of the 
government. N, or in fact the department, breaks 
the contract. A has a right to claim from the 
government, not, as in the case of the action against 
X, damages equivalent to the gain which he would 
have made if the contract had been kept, but only 
damages equivalent to the loss (if any) which A may 
have actually suffered by the breach of contract. 1 
In other words, the state when it breaks a contract 
ought, according to French ideas, to suffer less than 
would a private wrong-doer. In the example here 
given, which is merely 'one among a hundred, the 
essential character of droit administratif becomes 

1 ' ' Un particulier qui n execute pas un marche* doit a V entrepreneur 
" une indemnity proportionnee au gain dont il le prive ; le Code civil 
' Ve'tablit ainsi. L' administration qui rompt un tel marche' ne doit 
' d'indemnite' qu'en raison de la perte eprouve'e. G'est la regie de la 
' jurisprudence administrative. A mains que le droit ne s j y oppose, elle 
' tient que VEtat, c'est-a-dire la collection de tous les citoyens, et le trdsor 
1 public, c'est-a-dire I'ensemble de tous les contribuabks, doivent passer 
' avant le citoyen ou le contribuable isoUs, defendant un inte'rfo individuel." 
Vivien, Etudes Administrates, i. pp. 140-142. 



DROIT ADMINISTRATE 309 

apparent it is a body of law intended to preserve Chapter 
the privileges of the state. 



o 

The second of the general ideas on which rests separation 

..,..._., .of powers. 

the system of administrative law is the necessity 
of maintaining the so-called separation of powers 
(separation des pouvoirs), or, in other words, of pre- 
venting the government, the legislature, and the 
Courts from encroaching upon one another's province. 
The expression " separation of powers," as applied 
by Frenchmen to the relations of the executive 
and the Courts, with which alone we are here con- 
cerned, 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 interpreted 
by French history, by French legislation, and by the 
decisions of French tribunals, it means neither more 
nor less than the maintenance of the principle that 
while the ordinary judges ought to be irremovable and 
thus independent of the executive, the government 
and its officials ought (whilst acting officially) to be 
independent of and to a great extent free from the 
jurisdiction of the ordinary Courts. 1 It were curious to 
follow out the historical growth of the whole theory as 
to the "separation of powers." It rests apparently upon 
Montesquieu's Esprit des Lois, Book XI. c. 6, and is 
in some sort the offspring of a double misconception ; 
Montesquieu misunderstood on this point the principles 
and practice of the English constitution, and his doc- 
trine was in turn,if not misunderstood, exaggerated and 
misapplied by the French statesmen of the Eevolution, 
whose judgment was biassed, at once by knowledge of 

1 See Aucoc, Droit Administratif, ss. 20, 24. 



310 THE RULE OF LA W 

Part II. the inconveniences which had resulted from the inter- 
ference of the Parliaments in matters of state, and by 
the characteristic and traditional desire to increase the 
force of the central government. The investigation, 
however, into the varying fate of a dogma which has 
undergone a different development on each side the 
Atlantic would lead us too far from our immediate 
topic. All that we need note is the extraordinary 
influence exerted in France, and in all countries which 
have followed French examples, by this part of 
Montesquieu's teaching, and the extent to which it 
underlies the political and legal institutions of the 
French Eepublic. 

character- To the combination of these two ideas may be 
traced the distinguishing characteristics of French 
administrative law. 

Eights The first of these characteristics is (as the reader 

determined must already have perceived) that the relations of the 
government and its officials towards private citizens 
are regulated by a whole body of special rules, which 
are in reality laws, but which differ from the laws 
which govern the relation of one private person to- 
wards another. Nor is it unimportant to remark that 
the maxims of administrative law are not reduced 
to a code, but are what we should call in England 
" case law," and therefore possess that element of 
expansiveness which, whether it be counted a merit 
or a defect, is inherent in case law. Add to this that 
these maxims are " case law " made not by judges, 
but by government officials. 

The second of these leading characteristics is that 
the ordinary tribunals have, speaking generally, no 
concern with any matter of administrative law. 



DROIT ADMINISTRA TIP 3 1 1 

Questions of private right as between private citizens Chapter 

" 

and all accusations of crime fall within the jurisdiction 
of the civil tribunals or (as we should say) of the 



common law Courts. But the ordinary judges are J"" 8 ^- 

. tionin 

incompetent to pronounce judgment on any adminis- matters 
trative act (acte administratif), that is, on any act 
done by any official, high or low, bond fide in his 
official character. The judges cannot pronounce upon 
the legality of decrees issued by the President of the 
Republic, as for example the decrees with reference to 
the " unauthorised congregations," nor upon the way 
in which these decrees have been put into execution 
by the government ; l the judges cannot determine the 
meaning and legal effect, in case it be seriously dis- 
puted, of official documents, as for example of a letter 
addressed by a Minister of State to a subordinate or 
by a General to a person under his command ; 2 the 
judges have, speaking generally, no jurisdiction as to 
questions arising on a contract made between a private 
person and a department of the government ; the 
judges have no right to entertain an action brought 
by a private individual against an official for a wrong 
done in discharge of his official duties ; thus if X, a 
cavalry officer, when under orders rides from one place 
to another at a review and negligently knocks down 
A a spectator, A cannot bring an action against X in 
the ordinary Courts. 3 

The assertion, however, that where an official in the 
discharge of his official duty injures a private indi- 
vidual, the person wronged cannot claim redress from 

1 Dalloz, Jurisprudence Generate, 1883, ii. p. 212. 

2 Ibid. iii. p. 94. 
3 Ibid. 1884, i. p. 220. This recalls the sixteenth Satire of Juvenal. 



312 THE RULE OF LAW 

Part II. the ordinary judges, does not mean or imply that a 
person who is thus aggrieved, say who is wrongfully 
arrested by a policeman acting under orders, or libelled 
in an official notice issued by a mayor, is without a 
remedy. The incompetence of the civil tribunals 
means only that, where any wrong has been done in 
the course of an official proceeding, redress must be 
sought from the proper official authorities, or, as they 
are called, the administrative tribunals (tribunaux 
administt -atifs) . 

Questions ]? or the third salient feature of French droit 

concerning . . t 

state de- admimstrcitif is that it is administered by adminis- 
by admm- trative Courts, at the head of which stands the 
Council of State. These so-called " Courts " have of 
comparatively recent times acquired to a certain 
extent a quasi-judicial character, and have adopted a 
quasi-judicial procedure. 1 We must take care how- 
ever not to be deceived by names. The administra- 
tive authorities which decide all disputes in regard to 
matters of administrative law (contentieux adminis- 
tratif) may be called " tribunals," and may adopt 
forms moulded on the procedure of a Court, but they 
all of them, from the Council of the Prefect (conseil 
de prefecture) up to the Council of State, bear the 
more or less definite impress of an official or govern- 

1 This change in the constitution and procedure of the adminis- 
trative Courts is an act of deference to the gradual spread of ideas like 
those which prevail in England. It is a change which is very far from 
universally approving itself to the judgment of Frenchmen. There 
has always existed a school of French publicists who have objected to 
referring administrative matters to bodies which had anything what- 
ever of a judicial character and who have maintained that where the 
rights of the state are concerned the administration as representing the 
state should be the sole judge in its own cause. See Vivien, Etudes 
Administratives, i. p. 129. 



DROIT ADMINISTRA TIP 3 1 3 

mental character ; they are composed of official per- Chapter 
sons, and, as is implied by the very pleas advanced in XEL 
defence of withdrawing questions of administrative 
law from the civil Courts, look upon the disputes 
brought before them from a governmental point of 
view, and decide them in a spirit different from the 
feeling which influences the ordinary judges. 1 Since 
1789 it has been once and again proposed that in 
France, as in England, rights against the government 
should, like rights against private persons, be deter- 
mined by the judges. But French statesmen of all 
schools have invariably rejected such proposals, on 
the avowed ground that it is only from administrative 
tribunals that the interests of the state will receive 
due consideration. Official Courts are, in short, sup- 
ported because they have an official bias. 

The separation between j udicial and administrative 
powers, combined with the coexistence of "ordinary" 
Courts and " administrative " Courts, results of neces- 
sity in conflicts of jurisdiction. A policeman acting 
under the orders of his superiors breaks into a monas- 
tery, seizes the property of the inmates, and expels 
them from the house he is thereupon charged by the 
parties aggrieved with offences which English lawyers 
would call trespass and assault. He pleads that he 
is acting under government orders in execution of the 
decree which dissolved certain religious societies. The 
plaintiffs bring him before a civil Court. The ques- 
tion at once arises whether redress ought not to have 
been sought before the administrative tribunals ; the 
objection is raised that the civil Court has no jurisdic- 

1 Aucoc, Droit Administratif, ss. 269-272 ; Vivien, Etudes Admin- 
istratives, i. p. 140. 



314 THE RULE OF LA W 

Part ii. tion. Here we have a " conflict." The natural idea 
of an Englishman is that this conflict must be deter- 
mined by the ordinary judges ; for that the judges of 
the land are the proper authorities to define the limits 
of their own jurisdiction. This view, which is so 
natural to an English lawyer, is radically opposed to 
the French conception of the due " separation of 
powers," since it must, if systematically carried out, 
enable the Courts to encroach on the province of the 
administration ; it contradicts the principle laid down 
in the earlier stages of the Eevolution and still recog- 
nised as valid by French law, that " administrative 
bodies must never be troubled in the exercise of their 
functions by any act whatever of the judicial power;" 1 
nor can an Englishman, who recollects the cases 
on general warrants, deny that the judges have 
often interfered with the action of the administra- 
tion. The worth of Montesquieu's doctrine is open 
to question, but, if his theory be sound, it is clear 
that judicial bodies ought not to be allowed to pro- 
nounce a final judgment upon the limits of their own 
authority. 

Conflicts of Hence arises the fourth and for our purpose the 
determined most noticeable feature of administrative law. 

There exists in France a Tribunal des Confiits, or 
C our t for deciding conflicts of jurisdiction. The special 
function of this body is to determine finally whether 
a given case, say an action against a policeman for an 
assault, comes within the jurisdiction of the civil 
Courts, or of the administrative Courts. On this 
matter of jurisdiction judges and officials are certain 
to form different opinions ; a glance moreover at the 

1 See Aucoc, Droit Administratif, s. 24. 



DROIT AD MINIS TRA TIP 3 1 5 

head Competence administrative, in the Recueil chapter 
Periodique de Jurisprudence by Dalloz, shows at XIL 
once the constant occurrence of cases which make it 
necessary to fix the limits which divide the spheres 
of the judicial and of the administrative authorities. 

The true nature therefore of administrative law 
depends in France upon the constitution of the 
Tribunal des Conflits. Is this " tribunal" a judicial 
body or an official body ? An English critic will be 
slow to give a decisive answer to this question. He 
will remember how easily a Frenchman might misin- 
terpret the working of English institutions, and might, 
for instance, suppose from the relation of the Chan- 
cellor to the Ministry that the Cabinet could influence 
the decision of an action entered in the Chancery 
Division of the High Court. But, subject to the 
hesitation 1 that becomes any one who comments 
upon the effect of institutions, which are not those 
of his own country, an observer may assert with some 
confidence that the Tribunal des Conflits is at least as 
much of an official as of a judicial body. It follows 
therefore that the jurisdiction of the civil tribunals is 
in all matters which concern officials determined by 
persons who, if not actually part of the executive, are 
swayed by official sympathies, and who are inclined 
to consider the interest of the state, or of the govern- 
ment, more important than strict regard to the legal 
rights of individuals. 

That this view is correct may be inferred from 
several considerations. Till a recent date the Council 
of State, a certainly more or less official body, was the 
final authority on questions of jurisdiction. So strong 
moreover was the bias of French law in favour of the 



316 THE RULE OF LA W 

Part II. administration, that up to 1870 all servants of the 
government possessed a kind of exemption from the 
jurisdiction of the Courts absolutely inconsistent with 
every English notion of equality before the law. 

De Tocqueville has given us an account of the 



ville's 

account of protection extended over French functionaries in the 
constitu following passage, which may be considered class- 

tionofYear i 
VIII. 

"In the Year VIII of the French Kepublic a 
" constitution was drawn up in which the following 
" clause was introduced : ' Art. 75. All the agents of 
" the government below the rank of ministers can 
" only be prosecuted for offences relating to their 
" several functions by virtue of a decree of the Con- 
" seil d'Etat ; in which case the prosecution takes 
" place before the ordinary tribunals.' This clause 
" survived the ' Constitution de 1'An VIII, 1 and it is 
" still maintained in spite of the just complaints of 
" the nation. I have always found the utmost diffi- 
" culty in explaining its meaning to Englishmen or 
"Americans. They were at once led to conclude 
" that the Conseil d'etat in France was a great 
" tribunal, established in 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 sense of the term, 
" but an administrative council composed of men 
" 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; 



DROIT ADMINISTRATIF 317 

" when I demonstrated to them that the citizen who Chapter 

" has been injured by the order of the sovereign is XIL 

" 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 Revolution that a Parliament issued a warrant 

" against a public officer who had committed an 

" offence, and sometimes the proceedings were stopped 

" by the authority of the Crown, which enforced 

" compliance with its absolute and despotic will. It 

" is painful to perceive how much lower we are sunk 

" than our forefathers, since we allow things to pass 

" under the colour of justice and the sanction of the 

" law which violence alone could impose upon them." 1 

Our author's subsequent investigations make it its subse- 
doubtful whether Article 75 of the Constitution of 
the Year VIII (1799) does more than reproduce in a 
stringent shape a principle inherited from the ancien 
regime ; 2 it at any rate represents the permanent 

1 De Tocqueville, Democracy in America, i. (Translation), p. 101 ; 
(Euvres Completes, i. pp. 174, 175. 

2 " Ce qui apparait . . . quand on etudie les paper asses administra- 
" tires, c'est ^intervention continuelle du pouvoir administratif dans la 
" sphere judiciaire. Les le'gistes administratif s nous disent sans cesse, 
" que le plus grand vice du gouvernement inte'rieur de I'ancien re'gime e'tait 
" que les juges administraient. On pourrait se plaindre avec autant de 
" raison de ce que les administratews jugeaient. La seule difference est 
" que nous avons corrigtf I'ancien re'gime sur le premier point, et I'avons 
" vmit sur le second. J'avais eu jusqu'a present la simplicite' de croire 
" que ce que nous appelons la justice administrative e'tait une cre'ation de 
" Napoleon. C'est dupui ancien regime conserve" ; et la principe que 
" lors rnSme qu'il s'agit de contrat, c'est-a-dire d'un engagement formel et 
" re'guli^rement pris entre un particulier et I'Etat, c'est a I'Etat a juger la 
" cause, cet axiome, inconnu chez la plupart des nations modernes, e'tait 
" tenu pour aussi sacre' par un intendant de I'ancien regime, qu'il pourrait 
" I'etre de nos jours par lepersonnage qui ressemble le plus a celui-la, je veux 
" dire un prefet." De Tocqueville, (Euvres Completes, vi. pp. 221, 222. 



318 THE RULE OF LAW 

Part II. sentiment of French governments with regard to the 
protection due to officials. This is what gives to a 
repealed article of a forgotten constitution a curious 
speculative importance. If any one wants a proof of 
the essential difference between French and English 
ideas as to the relation between individuals and the 
state, he will find it in the fact that under the 
monarchy of Louis Philippe, which was supposed to 
be a copy of the English constitution, every official 
in France was entitled to a kind of exemption from 
ordinary legal process which never has existed in 
England, and which could not be established here 
without a revolution in the feelings of the English 
people. 

The one thing, however, which to an Englishman 
is more astonishing than the existence of Article 75 is 
the date and mode of its abolition. It survived the 
Consulate, the Napoleonic Empire, the Restoration, 
the Orleans Monarchy, the Republic of 1848, and the 
Second Empire ; it was abolished on the 19th Sep- 
tember 1870, by a government which had come into 
power through an insurrection, and which laid no 
claim to existence except the absolute necessity of 
protecting the nation against invasion. It is certainly 
strange that a provisional government occupied with 
the defence of Paris should have repealed a funda- 
mental principle of French law. It is equally curious 
that the repeal has been subsequently treated as 
valid. Of the motives which led men placed in 
temporary authority by the accidents of a revolution 
to carry through a legal innovation which, in appear- 
ance at least, alters the whole position of French 
officials, no foreign observer can form a certain 



DROIT ADMINISTRATE 319 

opinion. It is however a plausible conjecture that Chapter 
the repeal of Article 75 was lightly enacted and 



easily tolerated, because it effected a change more 
important in appearance than in reality, and did 
not after all gravely touch the position of French 
functionaries or the course of French administration. 1 

We can now understand the way in which the Effect of 
existence of a droit administratif affects the whole 



legal position of French public servants, and renders of IrencT 
it quite different from that of English officials. officials. 

Persons in the employment of the government, 
who form, be it observed, a much larger and more 
important part of the community than do the whole 
body of the servants of the English Crown, occupy 
in France a position in some respects resembling that 
of soldiers in England. For the breach of official 
discipline they are, we may safely assume, readily 
punishable in one form or another. But if like 
English soldiers they are subject to official discipline, 
they have what even soldiers in England do not 
possess, a very large amount of protection against 
legal proceedings for wrongs done to private citizens. 
The party wronged by an official must certainly seek 
relief, not from the judges of the land, but from some 
official Court. Before such a body the question which 
will be mainly considered is likely to be, not whether 
the complainant has been injured, but whether the 

1 For some confirmation of this view see Aucoc, Droit Administratif, 
ss. 419-426. 

The admission, however, involved in the repeal of Article 75 of 
the general principle that officials are at any rate primd facie liable 
for illegal acts, in the same way as private persons, marks, it is said 
by competent authorities, an important change in the public opinion of 
France, and is one among other signs of a tendency to look with 
jealousy on the power of the state. , 



320 THE RULE OF LA W 

Part ii. defendant, say a policeman, has acted in discharge of 
his duties and in bond fide obedience to the com- 
mands of his superiors. If the defendant has so 
acted he will, we may almost certainly assume, be 
sure of acquittal, even though his conduct may have 
involved a technical breach of law. On this assump- 
tion, and on this assumption alone, we can under- 
stand the constant and successful efforts of the 
French administration to withdraw from the cognis- 
ance of the civil Courts the long list of actions 
brought against officials by members of the " un- 
authorised congregations " which were dissolved under 
the celebrated decrees of 29th March 1880. 1 We 
may further draw the general conclusion that under 
the French system no servant of the government 
who, without any malicious or corrupt motive, 
executes the orders of his superiors, can be made 
civilly responsible for his conduct. He is exempted 
from the jurisdiction of the civil Courts because he is 
engaged in an administrative act; he is safe from 
official condemnation because the act complained of 
is done in pursuance of his official duties. 

To this must be added a further consideration, to 
which for the sake of clearness no reference has 
hitherto been made. French law appears to recognise 
an indefinite class of " acts of state," acts, that is to 
say, which are done by the government, as matters of 
police, of high policy, of public security, and the like, 
and acts of this class do not fall within the control 
either of the administrative or of any other Courts. 2 

1 See Dalloz, Jurisprudence GJndrale, 1880, iii. p. 121 ; ibid. 1881, 
iii. pp. 81, 91 ; ibid. 1881, ii. pp. 32, 33 ; ibid. 1883, ii. p. 212 ; 
ibid. 1880, iv. p. 23. 

2 See, however, p. 211, note 2, ante. 



DROIT ADMINISTRA TIP 32 1 

It would, for example, appear that in questions of Chapter 

extradition, as regards persons who are not French '_. 

citizens, the government can act freely on its own dis- 
cretion, and that a foreigner threatened with expulsion 
or expelled from French territory by orders of the 
government will not be able to obtain protection or 
redress in any French Court whatever ; the executive 
possesses under the French constitution "prerogatives" 
no other word so well expresses the idea which 
are above and beyond, rather than opposed to, the 
law of the land. 

What may be the precise limits which the system Effect of 
of administrative law taken together with the authority 
ascribed in France to the executive in matters of 
state imposes on the jurisdiction of the civil tribunals, 
no foreigner can pronounce with certainty. These 
limitations are however, as we have seen, in many 
instances very strict, and are certainly sufficient to 
prevent the judges of the land from pronouncing 
judgment on wrongs, not amounting to actual 
crimes, done by officials to private citizens. These 
restrictions on the authority of the Courts must, at 
any rate as an Englishman would think, diminish the 
moral influence of the whole judicial body, and deprive 
the French judicature of that dignity which the Eng- 
lish Bench have derived from their undoubted power 
to intervene, indirectly indeed, but none the less 
efficiently, in matters of state. The condemnation of 
general warrants a condemnation which, whatever 
be the French law of arrest, could not (it would seem) 
be at the present day pronounced by any Court in 
France did as much in the last century to raise the 
reputation of the Bench as to protect the freedom of 

Y 



322 THE RULE OF LA W 

Part II. the subject. Our judges would with difficulty retain 
the reverence with which their traditions surround 
them if the decisions, even of the House of Lords, were, 
whenever they were alleged to interfere with the pre- 
rogative of the Crown or the discretionary powers 
of the Ministry, liable to be invalidated by some 
official body. The separation of powers, as the 
doctrine is interpreted in France, means, it would 
seem to an Englishman, the powerlessness of the 
Courts in any conflict with the executive. How- 
ever this may be, it assuredly means the protection 
of official persons from the liabilities of ordinary 
citizens. 
Contrast Compare for a moment with the position of French 

with posi- rv* i n i 7 i / i 

tionof omciais under the system 01 droit admimstratij the 
c^own in situation of servants of the Crown in England. 

Among modern Englishmen the political doctrines 
which have in France created the system of droit 
administratif are all but unknown. Our law bears 
very few traces indeed of the idea that when ques- 
tions arise between the state or, as we should say, 
the Crown or its servants and private persons, the 
interests of the government should be in any sense 
preferred or the acts of its agents claim any special 
protection. 1 Our laws, again, lend no countenance 
to the dogma of the " separation of powers " as that 

1 There are some faint traces of some such principle in the 
existence of proceedings by "petition of right" and in the statutory 
advantages of notice of action and the like, which under many Acts 
of Parliament are given to constables and others " acting in pursuance 
of" some statutory power. The extent to which even these very 
limited advantages often prevent actions against subordinate omciais 
may give us some slight conception of the way in which civil proceed- 
ings must be restrained in France by the incompetence of the Courts 
to deal with any " administrative act." 



DROIT ADMINISTRA TIP 323 

doctrine is understood by Frenchmen. The common Chapter 

XTT 

law Courts have constantly hampered the action of '_ 

the executive, and by issuing the writ of habeas corpus 
as well as by other means do in fact exert a strict 
supervision over the proceedings of the Crown and 
its servants. 

Hence in modern England the civil servants of the 
Crown are not, even as regards their official duties, 
subject to any peculiar kind of law or amenable to 
special tribunals. They are persons employed and 
paid to do work for the government ; they do not 
constitute anything like what foreigners call an 
" official hierarchy." 

This absence of amenability to special tribunals is 
not wholly beneficial. Gross violations of duty by 
public servants are frequently not punishable. A 
copyist in a public office sells to the newspapers a 
secret diplomatic document of the highest importance. 
Imagination can hardly picture a more flagrant breach 
of duty. But there are apparently no means avail- 
able for punishing the culprit. He may perhaps be 
put on trial for larceny on the ground of his having 
stolen the paper on which the communication of state 
is written ; but a prisoner tried for a crime which he 
has in fact not committed, because the offence of 
which he is really guilty is not a crime, may count 
upon acquittal. But if a civil servant may with us 
escape legal punishment for breach of his duties to 
the state, the fact that he serves the Crown gives 
him in general no protection against actions for 
wrongs to private persons. Bond fide obedience to 
the orders of superiors is not a defence available to a 
subordinate who, in the discharge of his functions as a 



324 THE RULE OF LA W 

Part ii. government officer, has invaded the legal rights of the 
humblest individual. Officials, like everybody else, 
are accountable for their conduct to a Court of Law, 
and to a Court, be it noted, where the verdict is given 
by a jury. 

In this point of view few things are more in- 
structive 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 Act, 1876, the Board 
are bound to detain any ship which from its unsafe 
and unseaworthy condition cannot proceed to sea 
without serious danger to human life. 1 Most per- 
sons would suppose that the officials of the Board, 
as long as they, bond fide, and without malice or 
corrupt motive, endeavoured to carry out the pro- 
visions 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 have more than 
once been sued with success. 2 They have never 
been accused of either malice or negligence, but the 
mere fact that the Board act in an administrative 
capacity is not a protection to the Board, nor is mere 
obedience to the orders of the Board an answer to an 
action against its servants. Any deviation moreover 
from the exact terms of the Act the omission of the 
most unmeaning formality may make every person, 
high and low, concerned in the detention of the ship, 
a wrong-doer. The question, on the answer to which 
the decision in each instance at bottom depends, is 
whether there was reasonable cause for detaining the 



Merchant Shipping Act, 1876 (39 & 40 Viet. c. 80), s. 6. 
2 See Thompson v. Farrer, 9 Q. B. D. (C. A.), 372. ' 



DROIT ADMINISTRATE 325 

vessel, and this inquiry is determined by a jury who Chapter 

sympathise more with the losses of a shipowner, L 

whose ship may have been unjustly detained, than 
with the zeal of an inspector anxious to perform his 
duty and to prevent loss of life. The result has (it is 
said) been to render the provisions of the Merchant 
Shipping Acts, with regard to the detention of un- 
seaworthy ships, nugatory. Courts and juries are 
biassed against the government. A technical question 
is referred for decision, from persons who know some- 
thing about the subject, and are impartial, to persons 
who are both ignorant and prejudiced. The govern- 
ment moreover, which has no concern but the 
public interest, is placed in the false position of a 
litigant fighting for his own advantage. These things 
ought to be noticed, for they explain, if they do not 
justify, the tenacity with which statesmen, as partial 
as De Tocqueville to English ideas of government, 
have clung to the conviction that administrative 
questions ought to be referred to administrative 
Courts. With the practical results however of the 
different positions assigned to officials under French 
and under English law, and with the merits or de- 
merits of either system, we need not greatly concern 
ourselves ; the one point which should be impressed 
upon every student is that the droit administratif of 
France rests upon political principles at variance 
with the ideas which are embodied in our existing 
constitution, and contradicts modern English convic- 
tions as to the rightful supremacy or rule of the law 
of the land. 

It will be observed that it is " modern " English 
notions which are contrasted with the ideas now 



326 THE RULE OF LA W 

Part ii. prevalent in continental states. The reason why the 
ad- opposition between the two is drawn in this form 
deserves notice. At a period which historically is 
no * ver y rem te from us, the ideas as to the 
notions, position of the Crown which were current, if not 

but not . . 

to ideas predominant in England, bore a very close analogy to 
sixteenth the doctrines which have given rise to the droit 



administratif of France. 1 

Similar beliefs moreover necessarily produced 
similar results, and there was a time when it must 
have seemed possible that what we now call adminis- 
trative 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 
century. A lawyer who regards the matter from an 
exclusively legal point of view 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 
administration of the continental type should or 

1 This is illustrated 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. 244, 245, 
ante. 



DROIT ADMINISTRA TIP 327 

should not be permanently established in England. Chapter 
Bacon and men like him no doubt underrated the 
risk that an increase in the power of the Crown 
should lead to the establishment of a despotism. 
But advocates of the prerogative did not (it may be 
supposed) intend to sacrifice the liberties or invade 
the ordinary private rights of citizens ; they were 
struck with the evils flowing from the conservative 
legalism of Coke, and with the necessity for enabling 
the Crown as head of the nation to cope with the 
selfishness of powerful individuals and classes. They 
wished, in short, to give the government the sort of 
rights conferred on a foreign executive by the prin- 
ciples of administrative law. Hence for each feature 
of French droit administratif one may find some 
curious analogy either in the claims put forward or 
in the institutions favoured by the Crown lawyers of 
the seventeenth century. 

The doctrine propounded under various metaphors 
by Bacon that the prerogative was something beyond 
and above the ordinary law is like the foreign doctrine 
that in matters of high policy the administration has 
a discretionary 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," x 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 administration, and would, if logically worked 
out, have led to the exemption of every administrative 

1 Gardiner, History of England, iii. p. 2. 



328 THE RULE OF LA W 

Part ii. act, or, to use English terms, of every act alleged to 
be done in virtue of the prerogative from judicial 
cognisance. The constantly increasing power of the 
Star Chamber and of the Council gave practical 
expression to prevalent theories as to the Royal 
prerogative, and it is hardly fanciful to compare 
these Courts, which were in reality portions of the 
executive government, with the Conseil d'etat and 
other Tribunaux administratifs of France. Nor is a 
parallel wanting to the celebrated Article 75 of the 
Constitution of the Year VIII. 1 This parallel is 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 
of the Crown were concerned. " The working of this 
" 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 many French constitutions, according to 
" which no agent of the Government can be sum- 
" moned before a tribunal, for acts done in the exercise 
" of his office, without a preliminary authorisation of 
" the Council of State. The effect of the English 
" writ being confined to cases where the King himself 
" was supposed to be injured, would have been of less 
" universal application, but the principle on which it 
" rested would have been equally bad." : The prin- 
ciple moreover admitted of unlimited extension, and 
this, 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 

* 

1 See p. 316, ante. 
2 Gardiner, History of England, p. 7, note 2. 



DROIT ADMINISTRATE 329 

" that may concern your Majesty in profit or power Chapter 

" from the ordinary Benches, to be tried and judged !_ 

" before the Chancellor of England, by the ordinary 
" and legal part of this power. And your Majesty 
" knoweth your Chancellor is ever a principal 
" counsellor and instrument of monarchy, of im- 
" mediate dependence on the king ; and therefore like 
"to be a safe and tender guardian of the regal 
" rights." * Bacon's innovation would, if successful, 
have formally established the fundamental dogma of 
administrative law that administrative questions must 
be determined by administrative bodies. 

The analogy between the administrative ideas 
which still prevail on the Continent 2 and the con- 
ception of the prerogative which was maintained by 
the English Crown in the seventeenth century has 
considerable speculative interest. That the adminis- 
trative ideas supposed by many French writers to 
have been originated by the statesmanship of the 
great Eevolution or of the first Empire are to a great 
extent developments of the traditions and habits of 
the French monarchy is almost 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, 
is a problem for historians. A 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 

1 Abbott, Francis Bacon, p. 234. 

2 It is worth noting that the system of "administrative law," 
though more fully developed in France than elsewhere, exists in one 
form or another in most of the Continental States. 



330 THE RULE OF LA W 

Part II. a partial success, because circumstances, similar to 
those which made French monarchs ultimately' 
despotic, tended in England during the sixteenth 
and part of the seventeenth century to increase the 
influence of the Crown. The attempt ended in 
failure, partly because of the personal deficiencies of 
the Stuarts, but chiefly because the whole scheme of 
administrative law was opposed to those habits of 
equality before the law which had long been essential 
characteristics of English institutions. 



CHAPTER XIII 



THE sovereignty of Parliament and the supremacy of Chapter 
the law of the land the two principles which per- __ 1 
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. 

The sovereignty of Parliament favours the supre- 



macy of the law of the land. sovereignty 

That this should be so arises in the main from two 
characteristics or peculiarities which distinguish the 
English Parliament from other sovereign powers. 

The first of these characteristics is that the com- 
mands of Parliament (consisting as it does of the 
Crown, the House of Lords, and the House of Com- 
mons) can be uttered only through the combined 
action of its three constituent parts, and must there- 
fore always take the shape of formal and deliberate 



332 THE RULE OF LAW 

Part ii. legislation. The will of Parliament l can be expressed 
only through an Act of Parliament. 

This is no mere matter of form ; it has most 
important practical effects. It prevents those inroads 
upon the law of the land which a despotic monarch, 
such as Louis XIV., Napoleon L, 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 
resolutions. The principle that Parliament speaks 
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 
interpretation, 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 re- 
ceiving the Koyal assent. All this, which seems 
natural enough to an English lawyer, would greatly 
surprise many foreign legists, and no doubt often does 
give a certain narrowness to the judicial construction 
of statutes. It contributes greatly however both (as 

1 A strong, if not the strongest, argument in favour of the so- 
called "bi-cameral" system, is to be found in the consideration that 
the coexistence of two legislative chambers prevents the confusion of 
resolutions passed by either House with laws, and thus checks the 
substitution of the arbitrary will of an assembly for the supremacy of 
the ordinary law of the land. Whoever wishes to appreciate the force 
of this argument should weigh well the history, not only of the French 
Convention but also of the English Long Parliament. 



RELATION TO PARLIAMENTARY SOVEREIGNTY 333 

I have already pointed out) to the authority of the Chapter 
judges and to the fixity of the law. 1 

The second of these characteristics is that the 
English Parliament as such has never, except at periods 
of revolution, exercised direct executive power or 
appointed the officials of the executive government. 

No doubt in modern times the House of Commons 
has in substance obtained the right to designate for 
appointment the Prime Minister and the other mem- 
bers of the Cabinet. But this right is, historically 
speaking, of recent acquisition, and is exercised in a 
very roundabout manner ; its existence does not affect 
the truth of the assertion that the Houses of Parlia- 
ment do not directly appoint or dismiss the servants 
of the state ; neither the House of Lords nor the 
House of Commons, nor both Houses combined, could 
even now issue a direct order to a military officer, a 
constable, or a tax-collector ; the servants of the state 
are still in name what they once were in reality 
" servants of the Crown ; " and, what is worth careful 
notice, the attitude of Parliament towards government 
officials was determined originally, and is still regu- 
lated, by considerations and feelings belonging to a 
time when the "servants of the Crown" were dependent 
upon the King, that is, upon a power which naturally 
excited the jealousy and vigilance of Parliament. 

Hence several results all indirectly tending to sup- 
port the supremacy of the law. Parliament, though 

1 The principle that the sovereign legislature can express its com- 
mands 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 Par- 
liament 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." 



334 THE RULE OF LA W 

Part II. sovereign, unlike a sovereign monarch who is not only 
a legislator but a ruler, that is, head of the executive 
government, has never been able to use the powers of 
the government as a means of interfering with the 
regular course of law ; l and what is even more im- 
portant, Parliament has looked with disfavour and 
jealousy on all exemptions of officials from the 
ordinary liabilities 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 a priori grounds it might be 
expected to end. The judges are not in strictness 
irremovable ; they can be removed from office on an 
address of the two Houses ; they have been made by 
Parliament independent of every power in the state 
except the Houses of Parliament. 

Tendency The idea may suggest itself to a reader that the 
characteristics or peculiarities of the English Parlia- 
ment on which I have just dwelt must now be 



foreign common to most of the representative assemblies 

representa- ^ * 

tiye assem- which exist in continental Europe. The French 
National Assembly, for example, bears a consider- 
able external resemblance to our own Parliament. 
It is influenced however by a different spirit ; it is the 
heir, in more ways than one, of the Bourbon Mon- 

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. 



RELATION TO PARLIAMENTARY SOVEREIGNTY 335 

archy and the Napoleonic Empire. It is apparently, Chapter 

though on this point a foreigner must speak with 1 

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. What is true 
of France is true under a different form of many other 
continental states, such, for example, as Switzerland 
or Prussia. The sovereignty of Parliament as devel- 
oped in England supports the supremacy of the law. 
But this is certainly not true of all the countries 
which now enjoy representative or Parliamentary 
government. 

The supremacy of the law necessitates the exercise Rule of law 
of Parliamentary sovereignty. 

The rigidity of the law constantly 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 govern- 
ment can escape only by obtaining from Parliament 
the discretionary authority which is denied to the 
Crown by the law of the land. Note with care the 
way in which the necessity for discretionary powers 
brings about the recourse to exceptional legislation. 
Under the complex conditions of modern life no 
government can in times of disorder or of war 
keep the peace at home, or perform its duties towards 



THE RULE OF LAW 



Part ii. foreign powers, without occasional use of arbitrary 
authority. During periods, for instance, of social 
disturbance. you need not only to punish conspirators, 
but also to arrest men who are reasonably suspected 
of conspiracy ; foreign revolutionists are known to be 
spreading sedition throughout the land ; order can 
hardly be maintained unless the executive can expel 
aliens. When two foreign nations are at war, or 
when civil contests divide a friendly country into two 
hostile camps, it is impossible for England to perform 
her duties as a neutral unless the Crown has legal 
authority to put a summary check to the attempts of 
English sympathisers to help one or other of the 
belligerents. Foreign nations, again, feel aggrieved if 
they are prevented from punishing theft and homicide, 
if, in short, their whole criminal law is weakened 
because every scoundrel can ensure impunity for his 
crimes by an escape to England. But this result 
must inevitably ensue if the English executive has 
no authority to surrender French or German offenders 
to the government of France or of Germany. The 
English executive needs therefore the right to exer- 
cise discretionary powers, but the Courts must 
prevent, and will prevent at any rate where personal 
liberty is concerned, the exercise by the government 
of any sort of discretionary power. The Crown 
cannot, except under statute, expel from England 
any alien whatever, even though he were a murderer 
who, after slaughtering a whole family at Boulogne, 
had on the very day crossed red-handed to Dover. 
The executive therefore must ask for, and always 
obtains, aid from Parliament. An Alien Act enables 
the Ministry in times of disturbance to expel any 



RELATION TO PARLIAMENTARY SOVEREIGNTY 337 

foreigner from the country ; a Foreign Enlistment Act Chapter 

makes it possible for the Ministry to check intervention 1 

in foreign contests or the supply of arms to foreign 
belligerents. Extradition Acts empower the govern- 
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 re- 
pression of crime in which the whole civilised world 
has an interest. Nor have we yet exhausted the 
instances in which the rigidity of the law necessitates 
the intervention of Parliament. There are times of 
tumult or invasion when for the sake of legality itself 
the rules of law must be broken. The course which 
the government must then take is clear. The Ministry 
must break the law and trust for protection to an Act 
of Indemnity. A statute of this kind is (as already 
pointed out l ) the last and supreme exercise of Parlia- 
mentary sovereignty. It legalises illegality ; 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 govern- 
ment of every civilised country. 

This solution may be thought by some critics a 
merely formal one, or at best only a substitution of 
the despotism of Parliament for the prerogative of the 
Crown. But this idea is erroneous. The fact that 
the most arbitrary powers of the English executive 
must always be exercised under Act of Parliament 

1 See pp. 47, 48, 218-222, ante. 
Z 



338 THE RULE OF LA W 

Part ii. 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 
unlimited, for they are confined by the words of the 
Act itself, and, what is more, by the interpretation 
put upon the statute by the judges. Parliament is 
supreme legislator, but from the moment Parliament 
has uttered its will as lawgiver, that will becomes 
subject to the interpretation put upon it by the 
judges of the land, and the judges, who are influenced 
by the feelings of magistrates no less than by the 
general spirit of the common law, are disposed to 
construe statutory exceptions to common law prin- 
ciples in a mode which would not commend itself 
either to a body of officials or to the Houses of 
Parliament, if the Houses were called upon to in- 
terpret their own enactments. In foreign countries, 
and especially in France, administrative ideas 
notions derived from the traditions of a despotic 
monarchy have restricted the authority and to a 
certain extent influenced the ideas of the judges. In 
England judicial notions have modified the action and 
influenced the ideas of the executive government. By 
every path we come round to the same conclusion, 
that Parliamentary sovereignty has favoured the rule 
of law, and that the supremacy of the law of the 
land both calls forth the exertion of Parliamentary 
sovereignty, and leads to its. being exercised in a 
spirit of legality. 



PAKT III 

THE CONNECTION BETWEEN 

THE LAW OF THE CONSTITUTION AND THE 

CONVENTIONS OF THE CONSTITUTION 



CHAPTER XIV 

NATUKE OF CONVENTIONS OF CONSTITUTION 

IN the Introduction to this work stress was laid upon Chapter 

"5TTV 

the essential distinction between the "law of the _ 1 



constitution," which, consisting (as it does) of rules 
enforced or recognised by the Courts, makes up a 

swered. 

body of "laws" in the proper sense of that term, 
and the "conventions of the constitution," which, 
consisting (as they do) of customs, practices, maxims, 
or precepts which are not enforced or recognised by 
the Courts, make up a body not of laws, but of con- 
stitutional or political ethics ; and it was further urged 
that the law, not the morality of the constitution, 
forms the proper subject of legal study. 1 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 2 and the Rule of Law. 3 

But a lawyer cannot master even the legal side of 
the English constitution without paying some at- 
tention to the nature of those constitutional under- 
standings which necessarily engross the attention of 

1 See pp. 30, 31, ante. 2 See Part I. 3 See Part II. 



342 LA W AND CONVENTIONS OF CONSTITUTION 

Part in. historians or of statesmen. He ought to ascertain, at 
any rate, how, if at all, the law of the constitution 
is connected with the conventions of the constitu- 
tion ; and a lawyer who undertakes this task will soon 
find that in so doing he is only following one stage 
farther the path on which we have already entered, and 
is on the road to discover the last and most striking 
instance of that supremacy of the law which gives to 
the English polity the whole of its peculiar colour. 

My aim therefore throughout the remainder of 
this book is to define, or ascertain, the relation or 
connection between the legal and the conventional 
elements in the constitution, and to point out the way 
in which a just appreciation of this connection throws 
light upon several subordinate questions or problems 
of constitutional law. 

This end will be attained if an answer is found to 
each of two questions : What is the nature of the 
conventions or understandings of the constitution? 
What is the force or (in the language of jurisprudence) 
the " sanction" by which is enforced obedience to the 
conventions of the constitution ? These answers will 
themselves throw light on the subordinate matters to 
which I have made reference. 
Nature of The salient characteristics, the outward aspects so to 

constitu- 

tionai speak of the understandings which make up tne consti- 
tutional morality of modern England, can hardly be 
better described than in the words of Mr. Freeman : 
" We now have a whole system of political 
" morality, a whole code of precepts for the guidance of 
" public men, which will not be found in any page 
" of either the statute or the common law, but which 
" are in practice held hardly less sacred than any 



NA TURK OF CONVENTIONS OF CONSTITUTION 343 

" principle embodied in the Great Charter or in the Chapter 

" Petition of Right. In short, by the side of our XIV ' 

" 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 means something 

" wholly different from what he means by conduct 

" being legal or illegal. A famous vote of the House 

" of Commons, passed on the motion of a great states- 

" man, once declared that the then Ministers of the 

" Crown did not possess the confidence of the House 

" of Commons, and that their continuance in office 

" was therefore at variance with the spirit of the 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 

" doctrines in any page of our written Law. The 

" proposer of that motion did not mean to charge the 

" existing Ministry with any illegal act, with any act 

" which could be made the subject either of a 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, appointed 

" during the pleasure of the Crown, committed 

" any breach of the Law of which the Law could 

" take cognisance, by retaining possession of their 

" offices till such time as the Crown should think 

" good to dismiss them from those offices. What he 

" meant was that the general course of their policy 

" was one which to a majority of the House of Com- 

" mons did not seem to be wise or beneficial to the 

" nation, and that therefore, according to a conven- 



344 LA W AND CONVENTIONS OF CONSTITUTION 

Part in. " tional code as well understood and as effectual as 
" the written Law itself, they were bound to resign 
" offices of which the House of Commons no longer 
" held them to be worthy." l 

The one exception which can be taken to this 
picture of our conventional constitution is the contrast 
drawn in it between the " written law " and the " un- 
written constitution ; " the true opposition, as already 
pointed out, is between laws properly so called, whether 
written or unwritten, and understandings, or practices, 
which, though commonly observed, are not laws in any 
true sense of that word at all. But this inaccuracy is 
hardly more than verbal, and we may gladly accept Mr. 
Freeman's words as a starting-point whence to inquire 
into the nature or common quality of the maxims 
which make up our body of constitutional morality. 
Examples The following are examples 2 of the precepts to 
tutionai which Mr. Freeman refers, and belong to the code by 
standings, which public life in England is (or is supposed to be) 
governed. " A Ministry which is outvoted in the 
House of Commons are in many cases bound to retire 
from office/' "A Cabinet, when outvoted on any 
vital question, may appeal once to the country by 
means of a dissolution/' " If an appeal to the electors 
goes against the Ministry they are bound to retire 
from office, and have no right to dissolve Parliament 
a second time." " The Cabinet are responsible to 
Parliament as a body, for the general conduct of 
affairs." " They are further responsible to an extent, 
not however very definitely fixed, for the appoint- 
ments made by any of their number, or to speak in 

1 Freeman, Growth of the English Constitution (1st ed.), pp. 109, 110. 
2 See, for further examples, pp. 25-27, ante. 



NATURE OF CONVENTIONS OF CONSTITUTION 345 

more accurate language, made by the Crown under Chapter 

the advice of any member of the Cabinet." " The 1 

party who for the time being command a majority in 
the House of Commons, have (in general) a right to 
have their leaders placed in office." " The most influ- 
ential of these leaders 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 however easy to find constitutional 
maxims dealing with other topics. " Treaties can be 
made without the necessity for any Act of Parlia- 
ment ; but the Crown, or in reality the Ministry 
representing the Crown, ought not to make any 
treaty which will not command the approbation of 
Parliament." " The foreign policy of the country, 
the proclamation of war, and the making of peace 
ought to be left in the hands of the Crown, or in truth 
of the Crown's servants. But in foreign as in domestic 
affairs, the wish of the two Houses of Parliament or 
(when they differ) of the House of Commons ought to 
be followed." " The action of any Ministry would be 
highly unconstitutional if it should involve the pro- 
clamation of war, or the making of peace, in defiance of 
the wishes of the House." " If there is a difference of 
opinion between the House of Lords and the House of 
Commons, the House of Lords ought, at some point, 
not definitely fixed, to give way, and should the 
Peers not yield, and the House of Commons continue 
to enjoy the confidence of the country, it becomes the 
duty of the Crown, or of its responsible advisers, to 
create or to threaten to create enough new Peers to 
override the opposition of the House of Lords, and 
thus restore harmony between the two branches of the 



346 LA W AND CONVENTIONS OF CONSTITUTION 

Part m. legislature." 1 "Parliament ought to be summoned 
for the despatch of business at least once in every 
year." " If a sudden emergency arise, e.g. through 
the outbreak of an insurrection, or an invasion by a 
foreign power, the Ministry ought, if they require 
additional authority, at once to have Parliament con- 
vened and obtain any powers which they may need 
for the protection of the country. Meanwhile Min- 
isters ought to take every step, even at the peril of 
breaking the law, which is necessary either for restor- 
ing order or for repelling attack, and (if the law of the 
land is violated) must rely for protection on Parlia- 
ment passing an Act of Indemnity." 

Common These rules (which I have purposely expressed in 

character- x f c <i 

istic of con- a lax and popular manner), and a lot more of the 

stitutional i T i 

under- same kind, make up the constitutional morality 01 the 
day. 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 one common quality or pro- 
perty ; they are all, or at any rate most of them, 
rules for determining the mode in which the dis- 
cretionary powers of the Crown (or of the Ministers 
as servants of the Crown) ought to be exercised ; 
and this characteristic will be found on examination 
to be the trait common not only to all the rules 
already enumerated, but to by far the greater part 
(though not quite to the whole) of the conventions 
of- the constitution. This matter however requires 

1 See however Hearn, Government of England (2d ed.), p. 178. 



NA TURK OF CONVENTIONS OF CONSTITUTION 347 

for its proper understanding some further explana- Chapter 

"5TTV 

, . -A..L V . 

tion. 

The discretionary powers of the government mean constitu- 
every kind of action which can legally be taken by 
the Crown, or by its servants, without the neces- 
sity for applying to Parliament for new statutory g ve in g 

J r r j o J exercise of 

authority. Thus no statute is required to enable preroga- 
the Crown to dissolve or to convoke Parliament, to 
make peace or war, to create new Peers, to dismiss 
a Minister from office or to appoint his successor. 
The doing of all these things lies legally at any 
rate within the discretion of the Crown ; they belong 
therefore to the discretionary authority of the govern- 
ment. This authority may no doubt originate in 
Parliamentary enactments, and in a limited number 
of cases actually does so originate. Thus the 
Naturalisation Act, 1870, gives to a Secretary of 
State the right under certain circumstances to con- 
vert an alien into a naturalised British subject ; and 
the Extradition Act, 1870, enables a Secretary of 
State (under conditions provided by the Act) to over- 
ride the ordinary law of the land and hand over a 
foreigner to his own government for trial. With the 
exercise however of such discretion as is conferred on 
the Crown or its servants by Parliamentary enact- 
ments we need hardly concern ourselves. The mode 
in 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 
domain of constitutional morality into that of law 
properly so called. The discretionary authority-. of 
the Crown originates generally, not in Act of Parlia- 



348 LAW AND CONVENTIONS OF CONSTITUTION 

Part in. ment, but in the " prerogative " a term which has 
caused more perplexity to students than any other 
expression referring to the constitution. The " pre- 
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 is legally left in the hands of the Crown. 
The King was originally in truth what he still is 
in name, "the sovereign," or, if not strictly the 
" sovereign " in the sense in which jurists use that 
word, at any rate by far the most powerful part 
of the sovereign power. In 1791 the House of 
Commons compelled the government of the day, 
a good deal against the will of Ministers, to put 
on trial Mr. 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. Among other statements for the publica- 
tion of which he was indicted, was a lengthy com- 
parison of the Crown to the trunk, and the other 
parts of the constitution to the branches and leaves 
of a great tree. This comparison was made with the 
object of drawing from it the conclusion that the 
Crown was the source of all legal power, and that 
while to destroy the authority of the Crown was to 
cut down the noble oak under the cover of which 
Englishmen sought refuge from the storms of 
Jacobinism, the House of Commons and other 
institutions were but branches and leaves which 
might be lopped off without serious damage to the 
tree. 1 The publication of Mr. Reeves' s theories 

1 See 26 St. Tr. 530-534. 



NATURE OF CONVENTIONS OF CONSTITUTION 349 

during a period of popular excitement may have Chapter 

y TT7" 

been injudicious. But a jury, one is happy to know, '_ 

found that it was not seditious ; for his views un- 
doubtedly rested on a sound basis of historical fact. 

The power of the Crown was in truth anterior to 
that of the House of Commons. From the time of 
the Norman Conquest down to the Revolution of 
1688, the Crown possessed in reality many of the 
attributes of sovereignty. The prerogative is the 
name for the remaining portion of the Crown's 
original authority, and is therefore, as already 
pointed out, the name for the residue of discretionary 
power left at any moment in the hands of the Crown, 
whether such power be in fact exercised by the Queen 
herself or by her Ministers. Every act which the 
executive government can lawfully do without the 
authority of an Act of Parliament is done in virtue of 
this prerogative. If therefore we omit from view (as 
we conveniently may do) powers conferred on the 
Crown or its servants by Parliamentary enactments, 
as for example under an Alien Act, we may use the 
term "prerogative" as equivalent to the discretionary 
authority of the executive, and then lay down that 
the conventions of the constitution are in the main 
precepts for determining the mode and spirit in which 
the prerogative is to be exercised, or (what is really 
the same thing) for fixing the manner in which any 
transaction which can legally be done in virtue of the 
Royal prerogative (such as the making of war or the 
declaration of peace) ought to be carried out. This 
statement holds good, it should be noted, of all the 
discretionary powers exercised by the executive, other- 
wise than under statutory authority ; it applies to acts 



350 LA W AND CONVENTIONS OF CONSTITUTION 

Part in. really done by the Queen herself in accordance with 
her personal wishes, to transactions (which are of more 
frequent occurrence than modern constitutionalists 
are disposed to admit) in which both the Queen and 
her Ministers take a real part, and also to that large 
and constantly increasing number of proceedings 
which, though carried out in the Queen's name, are 
in truth wholly the acts of the Ministry. The con- 
ventions of the constitution are in short rules intended 
to regulate the exercise of the whole of the remaining 

o o 

discretionary powers of the Crown, whether these 
powers are exercised by the Queen herself or by the 
Ministry. That this is so may be seen by the ease 
and the technical correctness with which such conven- 
tions may be expressed in the form of regulations in re- 
ference to the exercise of the prerogative. Thus, to say 
that a Cabinet when outvoted on any vital question 
are bound in general to retire from office, is equivalent 
to the assertion, that the prerogative of the Crown to 
dismiss its servants at the will of the King must be 
exercised in accordance with the wish of the Houses of 
Parliament; the statement that Ministers ought not 
to make any treaty which will not command the ap- 
probation of the Houses of Parliament, means that the 
prerogative of the Crown in regard to the making of 
treaties what the Americans call the " treaty-making 
power" ought not to be exercised in opposition to 
the will of Parliament. So, again, the rule that Par- 
liament must meet at least once a year, is in fact the 
rule that the Crown's legal right or prerogative to call 
Parliament together at the monarch's pleasure must 
be so exercised that Parliament meet once a year. 
This analysis of constitutional understandings is 



NATURE OF CONVENTIONS OF CONSTITUTION 351 

open to the one valid criticism, that, though true as Chapter 

If TV 

far as it goes, it is obviously incomplete ; for there _ 1 



are some few constitutional customs or habits which 
have no reference to the exercise of the royal power. c . oiivei1 - 

* tions refer 

Such, for example, is the understanding a very to exercise 

' * ofParlia- 

vague one at best that in case ot a permanent con- mentary 
flict between the will of the House of Commons and p 
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- 
charged solely by the Law Lords, or the understanding 
under which Divorce Acts were treated as judicial 
and not as legislative, proceedings. Habits such as 
these are at bottom customs or rules meant to 
determine the mode in which one or other or both of 
the Houses of Parliament shall exercise their dis- 
cretionary powers, or, to use the historical term, their 
"privileges." The very use of the word "privilege" 
is almost enough to show us how to embrace all the 
conventions of the constitution under one general 
head. Between " prerogative " and " privilege " there 
exists a close analogy : the one is the historical name 
for the discretionary authority of the Crown ; the 
other is the historical name for the discretionary 
authority of each House of Parliament. Understand- 
ings then which regulate the exercise of the prerogative 
determine, or are meant to determine, the way in 
which one member of the sovereign body, namely, the 
Crown, should exercise its discretionary authority; 
understandings which regulate the exercise of privilege 
determine, or are meant to determine, the way in 
which the other members of the sovereign body 



352 LA W AND CONVENTIONS OF CONSTITUTION 

Part in. 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 the several members 
of the sovereign legislative body, which, as it will be 
remembered, is the " King in Parliament," l should 
each exercise their discretionary authority, whether it 
be termed the prerogative of the Crown or the 
privileges of Parliament. Since, however, by far the 
most numerous and important of our constitutional 
understandings refer at bottom to the exercise of the 
prerogative, it will conduce to brevity and clearness 
if we treat the conventions of the constitution, as 
rules or customs determining the mode in which the 
discretionary power of the executive, or in technical 
language the prerogative, ought (i.e. is expected by 
the nation) to be employed. 

Aim of con- Having ascertained that the conventions of the 

stitutional ,-, / i \ i / i 

under- constitution are (m the mam) rules for determining 
the exercise of the prerogative, we may carry our 
analysis of their character a step farther. They 
have all one ultimate object. Their end is to secure 
that Parliament, or the Cabinet which is indirectly 
appointed by Parliament, shall in the long run give 
effect to the will of that power which in modern 
England is the true political sovereign of the state 
the majority of the electors or (to use popular though 
not quite accurate language) the nation. 

At this point comes into view the full importance 
of the distinction already insisted upon 2 between 
" legal " sovereignty and " political " sovereignty. 
Parliament is, from a merely legal point of view, the 

1 See p. 37, ante. 2 See pp. 69, 70, ante. 



NATURE OF CONVENTIONS OF CONSTITUTION 353 

absolute sovereign of the British Empire, since every chapter 

Act of Parliament is binding on every Court through- 1 

out the British dominions, and no rule, whether of 
morality or of law, which contravenes an Act of Par- 
liament, binds any Court throughout the realm. But 
if Parliament be in the eye of the law a supreme 
legislature, the essence of representative government 
is, that the legislature should represent or give effect 
to the will of the political sovereign, i.e. of the 
electoral body, or of the nation. That the conduct of 
the different parts of the legislature should be deter- 
mined by rules meant to secure harmony between the 
action of the legislative sovereign and the wishes of 
the political sovereign, must appear probable from 
general considerations. If the true ruler or political 
sovereign of England were, as was once the case, the 
King, legislation might be carried out in accordance 
with the King's will by one of two methods. The 
Crown might itself legislate, by royal proclamations, 
or decrees ; or some other body, such as a Council of 
State or Parliament itself, might be allowed to legis- 
late as long as this body conformed to the will of the 
Crown. If the first plan were adopted, there would 
be no room or need for constitutional conventions. 
If the second plan were adopted, the proceedings of 
the legislative body must inevitably be governed by 
some rules meant to make certain that the Acts of 
the legislature should not contravene the will of the 
Crown. The electorate is in fact the sovereio-n of 

o 

England. It is a body which does not, and from its 
nature hardly can, itself legislate, and which, owing 
chiefly to- historical causes, has left in existence a 
theoretically supreme legislature. The result of this 

2A 



354 LA W AND CONVENTIONS OF CONSTITUTION 

Part in. state of things would naturally be that the conduct 
of the legislature, which (ex hypothesi) cannot be 
governed by laws, should be regulated by understand- 
ings of which the object is to secure the conformity 
of Parliament to the will of the nation. And this is 
what has actually occurred. The conventions of the 
constitution now consist of customs which (whatever 
their historical origin) are at the present day maintained 
for the sake of ensuring the supremacy of the House 
of Commons, and ultimately, thro ugh the elective House 
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 this is so becomes apparent if we examine 
into the effect of one or two among the leading 
articles of this code. The rule that the powers of the 
Crown must be exercised through Ministers who are 
members of one or other House of Parliament and who 
" command the confidence of the House of Commons/' 
really means, that the elective portion of the legisla- 
ture in effect, though by an indirect process, appoints 
the executive government ; and, further, that the 
Crown, or the Ministry, must ultimately carry out, 
or at any rate not contravene, the wishes of the 
House of Commons. But as the process of repre- 
sentation is nothing else than a mode by which the 
will of the representative body or House of Commons 
is made to coincide with the will of the nation, it 
follows that a rule which gives the appointment 
and control of the government mainly to the House 
of Commons is at bottom a rule which gives the 
election and ultimate control of the executive to the 
nation. The same thing holds good of the under- 



NATURE OF CONVENTIONS OF CONSTITUTION 355 

standing, or habit, in accordance with which the Chapter 
House of Lords are expected in every serious political 
controversy to give way at some point or other to the 
will of the House of Commons as expressing the 
deliberate resolve of the nation, or of that further 
custom which, though of comparatively recent growth, 
forms an essential article of modern constitutional 
ethics, by which, in case the Peers should finally re- 
fuse to acquiesce in the decision of the Lower House, 
the Crown is expected to nullify the resistance of the 
Lords by the creation of new Peerages. 1 How, it 
may be said, is the " point " to be fixed at which, in 
case of a conflict between the two Houses, the Lords 
must give way, or the Crown ought to use its pre- 
rogative in the creation of new Peers ? The question 
is worth raising, because the answer throws great 
light upon the nature and aim of the articles which 
make up our conventional code. This reply is, that the 
point at which the Lords must yield or the Crown 
intervene is properly determined by anything which 
conclusively shows that the House of Commons re- 
presents on the matter in dispute the deliberate 
decision of the nation. The truth of this reply will 
hardly be questioned, but to admit that the deliberate 
decision of the electorate is decisive, is in fact to 
concede that the understandings as to the action of 
the House of Lords and of the Crown are, what we 
have found them to be, rules meant to ensure the 
ultimate supremacy of the true political sovereign, or, 
in other words, of the electoral body. 2 

1 Mr. Hearn denies, as it seems to me on inadequate grounds, the 
existence of this rule or understanding. See Hearn, Government of 
England (2d ed.), p. 178. 

2 Compare Bagehot, English Constitution, pp. 25-27. 



356 LA W AND CONVENTIONS OF CONSTITUTION 

Part m. By far the most striking example of the real sense 
Rules as attaching to a whole mass of constitutional conven- 
tion'ofPar- tions is found in a particular instance, which appears 
liament. ^ fa^ s ig n t to present a marked exception to the 
general principles of constitutional morality. A 
Ministry placed in a minority by a vote of the 
Commons have, in accordance with received doctrines, 
a right to demand a dissolution of Parliament. On 
the other hand, there are certainly combinations of 
circumstances under which the Crown has a right 
to dismiss a Ministry who command a Parliamentary 
majority, and to dissolve the Parliament by which the 
Ministry are supported. The prerogative, in short, of 
dissolution may constitutionally be so employed as to 
override the will of the representative body, or, as it 
is popularly called, " The People's House of Parlia- 
ment." This looks at first sight like saying that in 
certain cases the prerogative can be so used as to set 
at nought the will of the nation. But in reality it 
is far otherwise. The discretionary power of the 
Crown occasionally may be, and according to con- 
stitutional precedents sometimes ought to be, used to 
strip an existing House of Commons of its authority. 
But the reason why the House can in accordance 
with the constitution be deprived of power and of 
existence is that an occasion has arisen on which 
there is fair reason to suppose that the opinion of the 
House is not the opinion of the electors. A dissolu- 
tion is in its essence an appeal from the legal to the 
political sovereign. A dissolution is allowable, or 
necessary, whenever the wishes of the legislature are, 
or may fairly be presumed to be, different from the 
wishes of the nation. 



NATURE OF CONVENTIONS OF CONSTITUTION 357 

This is the doctrine established bv the celebrated chapter 

" XIV 

contests of 1784 and of 1834. In each instance the _ L 



King dismissed a Ministry which commanded the 
confidence of the House of Commons. In each case 

Ioo4. 

there was an appeal to the country by means of a 
dissolution. In 1784 the appeal resulted in a decisive 
verdict in favour of Pitt and his colleagues, who had 
been brought into office by the King against the will 
of the House of Commons. In 1834 the appeal led 
to a verdict equally decisive against Peel and Wel- 
lington, who also had been called to office by the 
Crown against the wishes of the House. The essential 
point to notice is that these contests each in effect 
admit the principle that it is the verdict of the political 
sovereign which ultimately determines the right or 
(what in politics is much the same thing) the power 
of a Cabinet to retain office, namely, the nation. 

Much discussion, oratorical and literary, has been 
expended on the question whether the dissolution of 
1784 or the dissolution of 1834 was constitutional. 1 
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 
a very unusual step in dismissing a Ministry which 
commanded a majority in the House of Commons. If 
by " constitutional " we mean " in conformity with 
the fundamental principles of the constitution/' we 
must without hesitation pronounce the conduct of 
George the Third constitutional, i.e. in conformity 

1 See Appendix, Note v., The Meaning of an Unconstitutional Law. 



358 LA W AND CONVENTIONS OF CONSTITUTION 

Part in. 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 Com- 
mons. He was right in this belief. No modern con- 
stitutionalist will dispute that the authority of the 
House of Commons is derived from its representing 
the will of the nation, and that the chief object of a 
dissolution is to ascertain that the will of Parliament 
coincides with the will of the nation. George the 
Third then made use of the prerogative of dissolution 
for the very purpose for which it exists. His conduct, 
therefore, on the modern theory of the constitution, 
was, as far as the dissolution went, in the strictest 
sense constitutional. But it is doubtful whether in 
1784 the King's conduct was not in reality an inno- 
vation, though a salutary one, on the then prevailing 
doctrine. Any one who studies the questions con- 
nected with the name of John Wilkes, or the disputes 
between England and the American colonies, will see 
that George the Third and the great majority of 
George the Third's statesmen maintained up to 1784 
a view of Parliamentary sovereignty which made Par- 
liament in the strictest sense the sovereign power. 
To this theory Fox clung, both in his youth as a Tory 
and in his later life as a Whig. The greatness of 
Chatham and of his son lay in their perceiving that 
behind the Crown, behind the Revolution Families, 
behind Parliament itself, lay what Chatham calls the 
" great public," and what we should call the nation, 
and that on the will of the nation depended the 
authority of Parliament. In 1784 George the Third 
was led by the exigencies of the moment to adopt the 
attitude of Chatham and Pitt. He appealed (oddly 



NATURE OF CONVENTIONS OF CONSTITUTION 359 

enough) from the sovereignty of Parliament, of which Chapter 

he had always been the ardent champion, to that 1 

sovereignty of the people, which he never ceased to 
hold in abhorrence. Whether this appeal be termed 
constitutional or revolutionary is now of little moment ; 
it affirmed decisively the fundamental principle of our 
existing constitution that not Parliament but the 
nation is, politically speaking, the supreme power in 
the state. On this very ground the so-called " penal" 
dissolution was consistently enough denounced by 
Burke, who at all periods of his career was opposed 
to democratic innovation, and far less consistently by 
Fox, who blended in his political creed doctrines of 
absolute Parliamentary sovereignty with the essentially 
inconsistent dogma of the sovereignty of the people. 

Of William the Fourth's action it is hard to speak 
with decision. The dissolution of 1834 was, from a 
constitutional point of view, a mistake ; it was 
justified (if at all) by the King's belief that the 
House of Commons did not represent the will of the 
nation. The belief itself turned out erroneous, but 
the large minority obtained by Peel, and the rapid 
decline in the influence of the Whigs, proved that, 
though the King had formed a wrong estimate of 
public sentiment, he was not without reasonable 
ground for believing that Parliament had ceased to 
represent the opinion of the nation. Now if it be con- 
stitutionally right for the Crown to appeal from Parlia- 
ment to the electors when the House of Commons has 
in reality ceased to represent its constituents, there is 
great difficulty in maintaining that a dissolution is 
unconstitutional simply because the electors do, when 
appealed to, support the opinions of their representa- 



360 LA W AND CONVENTIONS OF CONSTITUTION 

Part m. tives. Admit that the electors are the political 
sovereign of the state, and the result appears naturally 
to follow, that an appeal to them by means of a dissolu- 
tion is constitutional, whenever there is valid and reason- 
able ground for supposing that their Parliamentary re- 
presentatives have ceased to represent their wishes. The 
constitutionality therefore of the dissolution in 1834 
turns at bottom upon the still disputable question of 
fact, whether the King and his advisers had reasonable 
ground for supposing that the reformed House of 
Commons had lost the confidence of the nation. 
Whatever may be the answer given by historians 
to this inquiry, the precedents of 1784 and 1834 are 
decisive ; they determine the principle on which the 
prerogative of dissolution ought to be exercised, and 
show that in modern times the rules as to the dissolu- 
tion of Parliament are, like other conventions of the 
constitution, intended to secure the ultimate supre- 
macy of the electorate as the true political sovereign of 
the state ; that, in short, the validity of constitutional 
maxims is subordinate and subservient to the funda- 
mental principle of popular sovereignty. 

Relation of The necessity for dissolutions stands in close con- 
nection with the existence of Parliamentary sove- 



mentar ia ^eignty. Where, as in the United States, no legislative 
so . ve - assembly is a sovereign power, the right of dissolution 
may be dispensed with ; the constitution provides 
security that no change of vital importance can be 
effected without an appeal to the people ; and the 
change in the character of a legislative body by the re- 
election of the whole or of part thereof at stated periods 
makes it certain that in the long run the sentiment of 
the legislature will harmonise with the feeling of the 



NATURE OF CONVENTIONS OF CONSTITUTION 361 

public. Where Parliament is supreme, some further chapter 

security for such harmony is necessary, and this '_ 

security is given by the right of dissolution, which 
enables the Crown or the Ministry to appeal from the 
legislature to the nation. The security indeed is not 
absolutely complete. Crown, Cabinet, and Parliament 
may conceivably favour constitutional innovations 
which do not approve themselves to the electors. 
The Septennial Act could hardly have been passed 
in England, the Act of Union with Ireland would 
not, it is often asserted, have been passed by the 
Irish Parliament, if, in either instance, a legal revolu- 
tion had been necessarily preceded by an appeal to 
the electorate. Here, as elsewhere, the constitution- 
alism of America proves of a more rigid type than 
the constitutionalism of England. Still, under the 
conditions of modern political life, the understandings 
which exist with us as to the right of dissolution 
afford nearly, if not quite, as much security for sym- 
pathy between the action of the legislature and the 
will of the people, as do the limitations placed on 
legislative power by the constitutions of American 
States. In this instance, as in others, the principles 
explicitly stated in the various constitutions of the 
States, and in the Federal Constitution itself, are im- 
pliedly involved in the working of English political 
institutions. The right of dissolution is the right of 
appeal to the people, and thus underlies all those con- 
stitutional conventions which, in one way or another, 
are intended to produce harmony between the legal 
and the political sovereign power. 



CHAPTER XV 

THE SANCTION BY WHICH THE CONVENTIONS OF THE 
CONSTITUTION ARE ENFORCED 

Part in. WHAT is the sanction by which obedience to the 
conventions of the constitution is at bottom en- 
forced ? 

The prob- This is by far the most perplexing of the specu- 

lemtobe . / 

solved. lative questions suggested by a study of constitutional 
law. Let us bear in mind the dictum of Paley, that 
it is often far harder to make men see the existence of 
a difficulty, than to make them, when once the diffi- 
culty is perceived, understand its explanation, and in 
the first place try to make clear to ourselves what is 
the precise nature of a puzzle of which most students 
dimly recognise the existence. 

Constitutional understandings are admittedly not 
laws ; they are not (that is to say) rules which will 
be enforced by the Courts. If a Premier were to 
retain office after a vote of censure passed by the 
House of Commons ; if he were (as did Lord Pal- 
merston under like circumstances) to dissolve, or 
strictly speaking to get the Crown to dissolve, Parlia- 
ment, but, unlike Lord Palmerston, were to be again 
censured by the newly elected House of Commons, 
and then, after all this had taken place, were still to 



SANCTION OF CONVENTIONS OF CONSTITUTION 363 

remain at the head of the government, no one could Chapter 
deny that such a Prime Minister had acted uncon- 1 



stitutionally. Yet no Court of Law would take 
notice of his conduct. Suppose, again, that on the 
passing by both Houses of an important bill, the 
Queen should refuse her assent to the measure, or 
(in popular language) put her " 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. Yet 
there is no Court in the land before which one could 
go with the complaint that Parliament had not been 
assembled. 1 Still the conventional rules of the con- 
stitution, though not laws, are, as it is constantly 
asserted, nearly if not quite as binding as laws. 
They are, or appear to be, respected quite as much 
as most statutory enactments, and more than many. 
The puzzle is to see what is the force which habitually 
compels obedience to rules which have not behind 
them the coercive power of the Courts. 

The difficulty of the problem before us cannot Partial 
indeed be got rid of, but may be shifted and a good 
deal lessened, by observing that the invariable obe- 
dience which is assumed to be paid to constitutional 

often dis- 

understandings is itself more or less fictitious. The obeyed, 
special articles of the conventional code are frequently 

1 See 4 Edward III. c. 14 ; 16 Car. II. c. 1 ; and 1 Will, and 
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. 



364 LA W AND CONVENTIONS OF CONSTITUTION 

Part in. disobeyed; a Minister sometimes refuses to retire 
when, as his opponents allege, he ought constitu- 
tionally to resign office. Not many years have 
passed since the Opposition of the day argued, if not 
convincingly yet with a good deal of plausibility, that 
the Ministry had violated a rule embodied in the Bill 
of Rights; in 1784 the House of Commons main- 
tained, not only by argument but by repeated votes, 
that Pitt had deliberately defied more than one 
constitutional precept, and the Whigs of 1834 
brought a like charge against Wellington and Peel. 
Nor is it doubtful that any one who searches through 
the pages of Hansard will find other instances in 
which constitutional maxims of long standing and 
high repute have been set at nought. The uncertain 
character of the deference paid to the conventions 
of the constitution is concealed under the current 
phraseology, which treats the successful violation of a 
constitutional rule as a proof that the maxim was not 
in reality part of the constitution. If a habit or 
precept which can be set at nought is thereby shown 
not to be a portion of constitutional morality, it 
naturally follows that no true constitutional rule is 
ever disobeyed. 

But prin- Yet, though the obedience supposed to be rendered 
conformity to the separate understandings or maxims of public 



^ e * s to a certam extent fictitious, the assertion that 



always they have nearly the force of law is not without 

obeyed. 

meaning. Some few of the conventions of the 
constitution are rigorously obeyed. Parliament, for 
example, is summoned year by year with as much 
regularity as though its annual meeting were provided 
for by a law of nature ; and (what is of more con- 



SANCTION OF CONVENTIONS OF CONSTITUTION 365 

sequence) though particular understandings are of Chapter 

uncertain obligation, neither the Crown nor any 1_ 

servant of the Crown ever refuses obedience to the 
grand principle which, as we have seen, underlies all 
the conventional precepts of the constitution, namely, 
that government must be carried on in accordance 
with the will of the House of Commons, and ulti- 
mately with the will of the nation as expressed 
through that House. This principle is not a law ; it 
is not to be found in the statute-book, nor is it a 
maxim of common law ; it will not be enforced by 
any ordinary judicial body. Why then has the 
principle itself, as also have certain conventions or 
understandings which are closely connected with it, 
the force of law ? This, when the matter is reduced 
to its simplest form, is the puzzle with which we 
have to deal. It sorely needs a solution. Many 
writers, however, of authority, chiefly because they do 
not approach the constitution from its legal side, 
hardly recognise the full force of the difficulty which 
requires to be disposed of. They either pass it by, 
or else apparently acquiesce in one of two answers, 
each of which contains an element of truth, but 
neither of which fully removes the perplexities of 
any inquirer who is determined not to be put off 
with mere words. 

A reply more often suggested than formulated in insufficient 

,.,-,,. , . answers. 

so many words, is that obedience to the conventions impeach- 
of the constitution is ultimately enforced by the fear n 
of impeachment. 

If this view were tenable, these conventions, it 
should be remarked, would not be " understandings " 
at all, but " laws " in the truest sense of that term, 



366 LA W AND CONVENTIONS OF CONSTITUTION 

Part in. and their sole peculiarity would lie in their being 
laws the breach of which could be punished only by 
one extraordinary tribunal, namely, the High Court of 
Parliament. But though it may well be conceded 
and the fact is one of great importance that the 
habit of obedience to the constitution was originally 
generated and confirmed by impeachments, yet there 
are insuperable difficulties to entertaining the belief 
that the dread of the Tower and the block exerts any 
appreciable influence over the conduct of modern 
statesmen. No impeachment for violations of the 
constitution (since for the present purpose we may 
leave out of account such proceedings as those taken 
against Lord Macclesfield, Warren Hastings, and Lord 
Melville) has occurred for more than a century and a 
half. The process, which is supposed to ensure Mr. 
Gladstone's or Lord Salisbury's retiring from office 
when placed in a hopeless minority, is obsolete. The 
arm by which attacks on freedom were once repelled 
has grown rusty by disuse ; it is laid aside among the 
antiquities of the constitution, nor will it ever, we 
may anticipate, be drawn again from its scabbard. 
For, in truth, impeachment, as a means for enforcing 
the observance of constitutional morality, always 
laboured under one grave defect. The possibility of 
its use suggested, if it did not stimulate, one most 
important violation of political usage ; a Minister who 
dreaded impeachment would, since Parliament was 
the only Court before which he could be impeached, 
naturally advise the Crown not to convene Parliament. 
There is something like a contradiction in terms in 
saying that a Minister is compelled to advise the 
meeting of Parliament by the dread of impeachment 



SANCTION OF CONVENTIONS OF CONSTITUTION 367 

if Parliament should assemble. If the fear of Parlia- Chapter 

XV 

mentary punishment were the only difficulty in the 1 

way of violating the constitution, we may be sure 
that a bold party leader would, at the present day, as 
has been done in former centuries, sometimes suggest 
that Parliament should not meet. 

A second and current answer to the question Power of 
under consideration is, that obedience to the conven- opinion. 
tional precepts of the constitution is ensured by the 
force of public opinion. 

Now that this assertion is in one sense true, stands 
past dispute. The nation expects that Parliament 
shall be convened annually ; the nation expects that 
a Minister who cannot retain the confidence of the 
House of Commons, shall give up his place, and no 
Premier even dreams of disappointing these expecta- 
tions. The assertion, therefore, that public opinion 
gives validity to the received precepts for the conduct 
of public life is true. Its defect is that, if taken 
without further explanation, it amounts to little else 
than a re-statement of the very problem which it is 
meant to solve. For the question to be answered is, 
at bottom, Why is it that public opinion is, apparently 
at least, a sufficient sanction to compel obedience to 
the conventions of the constitution ? and it is no 
answer to this inquiry to say that these conventions 
are enforced by public opinion. Let it also be noted 
that many rules of conduct which are fully supported 
by the opinion of the public are violated every day of 
the year. Public opinion enjoins the performance of 
promises and condemns the commission of crimes, but 
the settled conviction of the nation that promises 
ought to be kept does not hinder merchants from 



368 LA W AND CONVENTIONS OF CONSTITUTION 

Part in. going into the Gazette, nor does the universal execra- 
tion of the villain who sheds man's blood prevent the 
commission of murders. That public opinion does to 
a certain extent check extravagance and criminality 
is of course true, but the operation of opinion is in 
this case assisted by the law, or in the last resort by 
the physical power at the disposal of the state. The 
limited effect of public opinion when aided by the 
police hardly explains the immense effect of opinion 
in enforcing rules which may be violated without any 
risk of the offender being brought before the Courts. 
To contend that the understandings of the con- 
stitution derive their coercive power solely from 
the approval of the public, is very like maintaining 
the kindred doctrine that the conventions of inter- 
national law are kept alive solely by moral force. 
Every one, except a few dreamers, perceives that the 
respect paid to international morality is due in great 
measure, not to moral force, but to the physical force 
in the shape of armies and navies, by which the com- 
mands of general opinion are in many cases supported ; 
and it is difficult not to suspect that, in England at 
least, the conventions of the constitution are supported 
and enforced by something beyond or in addition to 
the public approval. 



True What then is this " something" ? My answer is, 

answer, 
Obedience 
to conven 
tions en- 



that it is nothing else than the force of the law. The 
to conven- ^ O f impeachment may have established, and 
forced by public opinion certainly adds influence to, the pre- 
law, vailing dogmas of political ethics. But the sanction 
which constrains the boldest political adventurer to 
obey the fundamental principles of the constitution 
and the conventions in which these principles are 



SANCTION OF CONVENTIONS OF CONSTITUTION 369 

expressed, is the fact that the breach of these Chapter 

principles and of these conventions will almost 1 

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 raised, but it is an answer which undoubtedly 
requires both explanation and defence. 

The meaning of the statement that the received Expiana- 
precepts of the constitution are supported by the law 
of the land, and the grounds on which that statement 
is based, can be most easily made apparent by con- 
sidering what would be the legal results which would 
inevitably ensue from the violation of some indis- 
putable constitutional maxim. 

No rule is better established than that Parliament Yearly 
must assemble at least once a year. This maxim, as 
before pointed out, is certainly not derived from the ment ' 
common law, and is not based upon any statutory 
enactment. Now suppose that Parliament were pro- 
rogued once and again for more than a year, so that 
for two years no Parliament sat at Westminster. Here 
we have a distinct breach of a constitutional practice 
or understanding, but we have no violation of law. 
What, however, would be the consequences which 
would ensue ? They would be, speaking generally, 
that any Ministry who at the present day sanctioned 
or tolerated this violation of the constitution, and 
every person connected with the government, would 
immediately come into conflict with the law of the 
land. 

A moment's reflection shows that this would be so. 

The Mutiny Act would in the first place expire, but 
on the expiration of the Mutiny Act all means of 

2B 



370 LAW AND CONVENTIONS OF CONSTITUTION 

Part in. controlling the army without a breach of law would 
cease. Either the army must be discharged, in which 
case the means of maintaining law and order would 
come to an end, or the army must be kept up 
and discipline must be maintained without legal 
authority for its maintenance. If this alternative were 
adopted, every person, from the Commander-in-Chief 
downwards, who took part in the control of the army, 
and indeed every soldier who carried out the com- 
mands of his superiors, would find that not a day passed 
without his committing or sanctioning acts which 
would render him liable to stand as a criminal in the 
dock. Then, again, though most of the taxes would 
still come into the Exchequer, large portions of the 
revenue would cease to be legally due and could not 
be legally collected, whilst every official, who acted as 
collector, would expose himself to actions or prosecu- 
tions. The part, moreover, of the revenue which came 
in, could not be legally applied to the purposes of the 
government. If the Ministry laid hold of the revenue 
they would find it difficult to avoid breaches of 
definite laws which would expose them to appear 
before the Courts. Suppose however that the Cabinet 
were willing to defy the law. Their criminal daring 
would not suffice for its purpose ; they could not get 
hold of the revenue without the connivance or aid 
of a large number of persons, some of them indeed 
officials, but some of them such as the Comptroller- 
General, the Governors of the Bank of England, and 
the like, unconnected with the administration. None 
of them, it should be noted, could receive from the 
government or the Crown any protection against 
legal liability, and any of them the moment he 



SANCTION OF CONVENTIONS OF CONSTITUTION 371 

employed force would be exposed to resistance sup- chapter 

ported by the Courts. For the law (it should always '_ 

be borne in mind) operates in two different ways. It 
inflicts penalties and punishment upon law-breakers, 
and (what is of equal consequence) it enables law- 
respecting citizens to refuse obedience to illegal com- 
mands. It legalises passive resistance. The efficacy 
of such legal opposition is immensely increased by 
the non-existence in England of anything resembling 
the droit administratif of France, 1 or of that wide 
discretionary authority which is possessed by every 
continental government. The result is, that an ad- 
ministration which attempted to dispense with the 
annual meeting of Parliament could not ensure the 
obedience even of its own officials, and, unless pre- 
pared distinctly to violate the undoubted law of the 
land, would find itself not only opposed but helpless. 

The rule, therefore, that Parliament must meet 
once a year, though in strictness a constitutional 
convention which is not a law and will not be en- 
forced by the Courts, turns out nevertheless to be 
an understanding which cannot be neglected without 
involving hundreds of persons, many of whom are by 
no means specially amenable to government influence, 
in distinct acts of illegality cognisable by the tribunals 
of the country. This convention therefore of the 
constitution is in reality based upon, and secured by, 
the law of the land. 

This no doubt is a particularly plain case. I have 
examined it fully, both because it is a particularly 
plain instance, and because the full understanding of 
it affords the clue which guides us to the principle on 

1 See chap. xii. ante. 



372 LA W AND CONVENTIONS OF CONSTITUTION 

Part in. which really rests such coercive force as is possessed 
by the conventions of the constitution. 

To see that this is so let us consider for a moment 



Ministry the effect of disobedience by the government to one 



mons. 



f tne most purely conventional among the maxims 
^ cons titutional morality, the rule, that is to say, 
of com- that a Ministry ought to retire on a vote that 

mnna <* 

they no longer possess the confidence of the House 
of Commons. Suppose that a Ministry, after the 
passing of such a vote, were to act in 1889 as Pitt 
acted in 1783, and hold office in the face of the cen- 
sure passed by the House. There would clearly be a 
primd facie breach of constitutional ethics. What 
must ensue is clear. If the Ministry wished to keep 
within the constitution they would announce their 
intention of appealing to the constituencies, and the 
House would probably assist in hurrying on a disso- 
lution. All breach of law would be avoided, but the 
reason of this would be that the conduct of the 
Cabinet would not be a breach of constitutional 
morality ; for the true rule of the constitution admit- 
tedly is, not that a Ministry cannot keep office when 
censured by the House of Commons, but that under 
such circumstances a Ministry ought not to remain in 
office unless they can by an appeal to the country 
obtain the election of a House which will support 
the government. Suppose then that, under the cir- 
cumstances I have imagined, the Ministry either 
would not recommend a dissolution of Parliament, or, 
having dissolved Parliament and being again censured 
by the newly elected House of Commons, would not 
resign office. It would, under this state of things, be 
as clear as day that the understandings of the consti- 



SANCTION OF CONVENTIONS OF CONSTITUTION 373 

tution had been violated. It is however equally clear Chapter 

"VT7" 

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 
Mutiny Act or the Appropriation Act, and the House 
by refusiDg to pass either of these enactments would 
involve the Ministry in all the inextricable embarrass- 
ments which (as I have already pointed out) immedi- 
ately follow upon the omission to convene Parliament 
for more than a year. The breach, therefore, of a 
purely conventional rule, of a maxim utterly unknown 
and indeed opposed to the theory of English law, 
ultimately entails upon those who break it direct 
conflict with the undoubted law of the land. We 
have then a right to assert that the force which 
in the last resort compels obedience to constitutional 
morality is nothing else than the power of the law 
itself. The conventions of the constitution are not 
laws, but, in so far as they really possess binding force, 
derive their sanction from the fact that whoever 
breaks them must finally break the law and incur the 
penalties of a law-breaker. 

It is worthwhile to consider one or two objections objections, 
which may be urged with more or less plausibility 
against the doctrine that the obligatory force of con- 
stitutional morality is derived from the law itself. 

The government, it is sometimes suggested, may Law may 
by the use of actual force carry through a coup d'etat powered by 
and defy the law of the land. force> 

This suggestion is true, but is quite irrelevant. 
No constitution can be absolutely safe from revolution 
or from a coup d'etat ; but to show that the laws may 



374 LA W AND CONVENTIONS OF CONSTITUTION 

Part in. be defied by violence does not touch or invalidate the 
statement that the understandings of the constitution 
are based upon the law. They have certainly no more 
force than the law itself. A Minister who, like the 
French President in 1851, could override the law 
could of course overthrow the constitution. The 
theory propounded aims only at proving that when 
constitutional understandings have nearly the force of 
law they derive their power from the fact that they 
cannot be broken without a breach of law. No one is 
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 
sovereignty of Parliament tends to prevent violent 
attacks on the constitution. Eevolutionists or con- 
spirators generally believe themselves to be supported 
by the majority of the nation, and, when they suc- 
ceed, this belief is in general well founded. But in 
modern England, a party, however violent, who count 
on the sympathy of the people, can accomplish by 
obtaining a Parliamentary majority all that could be 
gained by the success of a revolution. When a spirit 
of reaction or of innovation prevails throughout the 
country, a reactionary or revolutionary policy is en- 
forced by Parliament without any party needing to 
make use of violence. The oppressive legislation of 
the Restoration in the seventeenth century, and the 
anti-revolutionary legislation of the Tories from the 
outbreak of the Eevolution till the end of George the 
Third's reign, saved the constitution from attack. A 
change of spirit averted a change of form ; the flexi- 
bility of the constitution proved its strength. 



SANCTION OF CONVENTIONS OF CONSTITUTION 375 

If the maintenance of political morality, it may Chapter 
with some plausibility be asked, really depends on the xv ' 
right of Parliament to refuse to pass laws such as the J^JJJJ!* 
annual Mutiny Act, which are necessary for the main- reused 

* to pass 

tenance of order, and indeed for the very existence of Mutiny 

Act 

society, how does it happen that no English Parlia- 
ment has ever employed this extreme method of 
enforcing obedience to the constitution ? 

The true answer to the objection thus raised 
appears to be that the observance of the main and the 
most essential of all constitutional rules, the rule, that 
is to say, requiring the annual meeting of Parliament, 
is ensured, without any necessity for Parliamentary 
action, by the temporary character of the Mutiny Act, 
and that the power of Parliament to compel obedience 
to its wishes by refusing to pass the Act is so complete 
that the mere existence of the power has made its use 
unnecessary. In matter of fact, no Ministry has since 
the Revolution of 1689 ever defied the House of Com- 
mons, unless the Cabinet could confide in the support 
of the country, or, in other words, could count on the 
election of a House which would support the policy of 
the government. To this we must add, that in the 
rare instances in which a Minister has defied the 
House, the refusal to pass the Mutiny Act has been 
threatened or contemplated. Pitt's victory over the 
Coalition is constantly cited as a proof that Parliament 
cannot refuse to grant supplies or to pass an Act 
necessary for the discipline of the army. Yet any 
one who studies with care the great " Case of the 
Coalition " will see that it does not support the 
dogma for which it is quoted. Fox and his friends 
did threaten and did intend to press to the very 



376 LA W AND CONVENTIONS OF CONSTITUTION 

Part in. utmost all the legal powers of the House of Com- 
mons. They failed to carry out their intention solely 
because they at last perceived that the majority of the 
House did not represent the will of the country. 
What the "leading case" shows is, that the Cabinet, 
when supported by the Crown, and therefore possess- 
ing the power of dissolution, can defy the will of a 
House of Commons if the House is not supported by 
the electors. Here we come round to the fundamental 
dogma of modern constitutionalism ; the legal sove- 
reignty of Parliament is subordinate to the political 
sovereignty of the nation. This is the conclusion in 
reality established by the events of 1784. 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 ; he might in all probability have 
in case of necessity broken the law itself with im- 
punity. For had the Coalition pressed their legal 
rights to an extreme length, the new Parliament of 
1784 would in all likelihood have passed an Act of 
Indemnity for illegalities necessitated, or excused, by 
the attempt of an unpopular faction to drive from 
power a Minister supported by the Crown, by the 
Peers, and by the nation. However this may be, the 
celebrated conflict between Pitt and Fox lends no 
countenance to the idea that a House of Commons 
supported by the country would not enforce the 
morality of the constitution by placing before any 
Minister who defied its precepts the alternative of 
resignation or revolution. 1 

1 It is further not the case that the idea of refusing supplies is un- 
known to modern statesmen. In 1868 such refusal was threatened in 



SANCTION OF CONVENTIONS OF CONSTITUTION 377 

A clear perception of the true relation between the Chapter 

XV 

conventions of the constitution and the law of the 



land supplies an answer to more than one sub- 
ordinate question which has perplexed students and <i uiries - 
commentators. 

How is it that the ancient methods of enforcing why has 
Parliamentary authority, such as impeachment, the ^enTgone 
formal refusal of supplies, and the like, have fallen into out of use ? 
disuse ? 

The answer is, that they are disused because ulti- 
mate 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 ex- 
traordinary remedies, which were once necessary for 
enforcing the deliberate will of the nation, having 
become unnecessary, have fallen into desuetude. If 
they are not altogether abolished, the cause lies partly 
in the conservatism of the English people, and partly 
in the valid consideration that crimes may still be 
occasionally committed for which the ordinary law of 
the land hardly affords due punishment, and which 
therefore may well be dealt with by the High Court 
of Parliament. 

Why is it that the understandings of the constitu- why are 
tion have about them a singular element of vagueness 



and variability ? under - 

. . standings 

Why is it, to take definite instances of this uncer- variable? 

order to force an early dissolution of Parliament ; in 1886 the disso- 
lution took place before the supplies were fully granted, and the 
supplies granted were granted for only a limited period. 



378 LA W AND CONVENTIONS OF CONSTITUTION 

Part in. tainty 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 resist- 
ance of the House of Lords to the will of the House 
of Commons becomes unconstitutional ? and how does 
it happen that the Peers could at one time arrest 
legislation in a way which now would be generally 
held to involve a distinct breach of constitutional 
morality? What is the reason why no one can describe 
with precision the limits to the influence on the con- 
duct 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 has ever attempted to 
exercise personal influence over matters of state ? 

The answer in general terms to these and the like 
inquiries is, that the one essential principle of the 
constitution is obedience by all persons to the delibe- 
rately expressed will of the House of Commons in the 
first instance, and ultimately to the will of the nation 
as expressed through Parliament. The conventional 
code of political morality is, as already pointed out, 
merely a body of maxims meant to secure respect for 
this principle. Of these maxims some indeed such, 
for example, as the rule that Parliament must be con- 
voked at least once a year are so closely connected 
with the respect due to Parliamentary or national 
authority, that they will never be neglected by any 
one who is not prepared to play the part of a revolu- 
tionist ; such rules have received the undoubted stamp 



SANCTION OF CONVENTIONS OF CONSTITUTION 379 

of national approval, and their observance is secured Chapter 
by the fact that whoever breaks or aids in breaking xv " 
them will almost immediately find himself involved in 
a breach of law. Other constitutional maxims stand 
in a very different position. Their maintenance up to 
a certain point tends to secure the supremacy of Par- 
liament, but they are themselves vague, and no one 
can say to what extent the will of Parliament or the 
nation requires their rigid observance ; they therefore 
obtain only a varying and indefinite amount of 
obedience. 

Thus the rule that a Ministry who have lost the with- 
confidence of the House of Commons should retire confidence 
from office is plain enough, and any permanent neglect 
of the spirit of this rule would be absolutely incon- 
sistent with Parliamentary government, and would 
finally involve the Minister who broke the rule in 
acts of undoubted illegality. But when you come to 
inquire what are the signs by which you are to know 
that the House has withdrawn its confidence from a 
Ministry, whether, for example, the defeat of an 
important Ministerial measure or the smallness of 
a Ministerial majority are a certain proof that a 
Ministry ought to retire, you ask a question which 
admits of no absolute reply. 1 All that can be said 
is, that a Cabinet ought not to continue in power 
(subject of course to the one exception on which I 
have before dwelt 2 ) after the expression by the House 
of Commons of a wish for the Cabinet's retirement. 
Of course therefore a Minister or a Ministry must 

1 See Hearn, Government of England, chap, ix., for an attempt 
to determine the circumstances under which a Ministry ought or 
ought not to keep office. 

2 See pp. 356-360, ante. 



380 LA W AND CONVENTIONS OF CONSTITUTION 

Part in. resign if the House passes a vote of want of confi- 
dence. But there are a hundred signs of Parlia- 
mentary disapproval which, according to circum- 
stances, either may or may not be a sufficient notice 
that a Minister ought to give up office. The essential 
thing is that the Ministry should obey the House as 
representing the nation. But the question whether 
the House of Commons has or has not indirectly inti- 
mated its will that a Cabinet should give up office is 
not a matter as to which any definite principle can be 
laid down. The difficulty which now exists, in settling 
the point at which a Premier and his colleagues are 
bound to hold that they have lost the confidence of 
the House, is exactly analogous to the difficulty which 
often perplexed statesmen of the last century, of de- 
termining the point at which a Minister was bound to 
hold he had lost the then essential confidence of the 
King. The ridiculous efforts of the Duke of New- 
castle to remain at the head of the Treasury, in spite 
of the broadest hints from Lord Bute that the time 
had come for resignation, are exactly analogous to the 
undignified persistency with which later Cabinets have 
occasionally 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. And if 
there be sometimes a difficulty in determining what is 
the will of Parliament, it must often of necessity be 
still more difficult to determine what is the will of the 
nation, or, in other words, of the majority of the 
electors. 



SANCTION OF CONVENTIONS OF CONSTITUTION 381 

The general rule that the House of Lords must in Chapter 

~\r~\r 

matters of legislation ultimately give way to the _ '_ 
House of Commons is one of the best established 



maxims of modern constitutional ethics. But if any Lords 

i i -r should give 

inquirer asks how the point at which the Peers are to way to 

. -i i , i 1*1 Commons. 

give way is to be determined, no answer which even 
approximates to the truth can be given, except the 
very vague reply that the Upper House must give 
way whenever it is clearly proved that the will of the 
House of Commons represents the deliberate will of 
the nation. The nature of the proof differs under 
different circumstances. 

When once the true state of the case is perceived, 
it is easy to understand a matter which, on any cut 
and dried theory of the constitution, can only with 
difficulty be explained, namely, the relation occupied 
by modern Cabinets towards the House of Lords. It 
is certain that for more than half a century Ministries 
have constantly existed which did not command the 
confidence of the Upper House, and that such Minis- 
tries have, without meeting much opposition on the 
part of the Peers, in the main carried out a policy of 
which the Peers did not approve. It is also certain 
that while the Peers have been forced to pass many 
bills which they disliked, they have often exercised 
large though very varying control over the course 
of legislation. Between 1834 and 1840 the Upper 
House, under the guidance of Lord Lyndhurst, re- 
peatedly and with success opposed Ministerial mea- 
sures which had passed the House of Commons. For 
many years Jews were kept out of Parliament simply 
because the Lords were not prepared to admit them. 
If you search for the real cause of this state of things, 



382 LAW AND CONVENTIONS OF CONSTITUTION 

Part m. you will find that it was nothing else than the fact, 
constantly concealed under the misleading rhetoric of 
party warfare, that on the matters in question the 
electors were not prepared to support the Cabinet 
in taking the steps necessary to compel the submission 
of the House of Lords. On any matter upon which 
the electors are firmly resolved, a Premier, who is in 
effect the representative of the House of Commons, 
has the means of coercion, namely, by the creation of 
Peers. In a country indeed like England, things are 
rarely carried to this extreme length. The knowledge 
that a power can be exercised constantly prevents its 
being actually put in force. This is so even in private 
life ; most men pay their debts without being driven 
into Court, but it were absurd to suppose that the 
possible compulsion of the Courts and the sheriff has 
not a good deal to do with regularity in the payment 
of debts. The acquiescence of the Peers in measures 
which the Peers do not approve arises at bottom from 
the fact that the nation, under the present constitution, 
possesses the power of enforcing, through very cum- 
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 
House of Commons. But the rule itself is vague, and 
the degree of obedience which it obtains is varying, 
because the will of the nation is often not clearly ex- 
pressed, 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 constitu- 
tion is kept working, we may with advantage consult 



SANCTION OF CONVENTIONS OF CONSTITUTION 383 

the experience of English colonies. No better example Chapter 

can be given of the methods by which a Representa- '_ 

tive Chamber attempts in the last resort to compel the 
obedience of an Upper House than is afforded by the 
varying phases of the conflict which raged in Victoria 
during 1878 and 1879 between the two Houses of the 
Legislature. There the Lower House attempted to 
enforce upon the Council the passing of measures 
which the Upper House did not approve, by, in effect, 
inserting the substance of a rejected bill in the 
Appropriation Bill. The Council in turn threw out 
the Appropriation Bill. The Ministry thereupon dis- 
missed officials, magistrates, county court judges, and 
others, whom they had no longer the means to pay, 
and attempted to obtain payments out of the Treasury 
on the strength of resolutions passed solely by the 
Lower House. At this point however the Ministry 
came into conflict with an Act of Parliament, that is, 
with the law of the land. The contest continued 
under different forms until a change in public opinion 
finally led to the election of a Lower House which 
could act with the Council. With the result of the 
contest we are not concerned. Three points however 
should be noticed. The conflict was ultimately 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 
did not possess any means of producing harmony be- 
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 



384 LA W AND CONVENTIONS OF CONSTITUTION 

Part in. Lower, in the same way in which the Peers always 
in the last resort bow to the will of the House of 
Commons. 

why is the How is it, again, that all the understandings 
SJuence which are supposed to regulate the personal relation 
crown un- f * ne Crown to the actual work of government are 
certain ? mar k e d by the utmost vagueness and uncertainty ? 

The matter is, to a certain extent at any rate, 
explained by the same train of thought as that which 
we have followed out in regard to the relation 
between the House of Lords and the Ministry. The 
revelations of political memoirs and the observation of 
modern public life make quite 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 
every act of state is done in the name of the Crown, 
the real executive government of England is the 
Cabinet. The second is, that though the Crown 
has no real concern in a vast number of the trans- 
actions which take place under the Royal name, no 
one of Queen Victoria's predecessors, nor, it may be 
presumed, the Queen herself, has ever acted upon 
or affected to act upon the maxim originated by 
Thiers, that " the King reigns but does not govern." 
George the Third took a leading part in the work 
of administration ; his two sons, each in different 
degrees and in different ways, made their personal 
will and predilections tell on the government of the 
country. No one really supposes that there is not 
a sphere, though a vaguely denned sphere, in which 
the personal will of the Queen has under the consti- 
tution very considerable influence. The strangeness 



SANCTION OF CONVENTIONS OF CONSTITUTION 385 

of this state of things is, or rather would be to any one Chapter 

YAT 

who had not been accustomed from his youth to the '_ 

mystery and formalism of English constitutionalism, 
that the rules or customs which regulate the personal 
action of the Crown are utterly vague and undefined. 
The reason of this will however be obvious to any one 
who has followed these chapters. The personal in- 
fluence of the Crown exists, not because acts of state 
are done formally in the Crown's name, but because 
neither the legal sovereign power, namely, Parliament, 
nor the political sovereign, namely, the nation, wishes 
that the reigning monarch should be without personal 
weight in the government of the country. The 
customs or understandings which regulate or control 
the exercise of the Queen's personal influence are 
vague and indefinite, both because statesmen feel that 
the matter is one hardly to be dealt with by pre- 
cise rules, and because no human being knows how far 
and to what extent the nation wishes that the voice 
of the reigning monarch should command attention. 
All that can be asserted with certainty is, that on this 
matter the practice of the Crown and the wishes of 
the nation have from time to time varied. George 
the Third made no use of the so-called veto 
which had been used by William the Third ; but he 
more than once insisted upon his will being obeyed 
in matters of the highest importance. None of his 
successors have after the manner of George the 
Third made their personal will decisive as to general 
measures of policy. In small things as much as in 
great one can discern a tendency to transfer to the 
Cabinet powers once actually exercised by the King. 
The scene between Jeanie Deans and Queen Caroline 

2c 



386 LA W AND CONVENTIONS OF CONSTITUTION 

Part in 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 by the Cabinet. 

The effect What, again, is the real effect produced by the 

ing pre- survival of prerogative powers ? 

Here we must distinguish two different things, 
namely, the way in which the existence of the 
prerogative affects the personal influence of the Queen, 
and the way in which it affects the power of the 
executive government. 

The fact that all important acts of state are done 
in the name of the Queen and in most cases with the 
cognisance of the Queen, and that many of these acts, 
such, for example, as the appointment of judges or the 
creation of bishops, or the conduct of negotiations 
with foreign powers and the like, are exempt from 
the direct control or supervision of Parliament, gives 
the reigning monarch an opportunity for exercising 
great influence on the conduct of affairs ; and 
Bagehot has marked out, with his usual subtlety, the 
mode in which the mere necessity under which 
Ministers are placed of consulting with and giving 
information to the Queen secures a wide sphere for the 
exercise of the legitimate influence of a constitutional 
ruler. 

But though it were a great error to underrate the 
extent to which the formal authority of the Crown 



SANCTION OF CONVENTIONS OF CONSTITUTION 387 

confers real power upon the Queen, the far more Chapter 

important matter is to notice the way in which the '_ 

survival of the prerogative affects the position of the 
Cabinet. It leaves in the hands of the Premier and 
his colleagues, large powers which can be exercised, 
and constantly are exercised, free from Parliamentary 
control. This is especially the case in all foreign 
affairs. Parliament may censure a Ministry for 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 cases override the law of the land. 1 How- 
ever this may be, it is not Parliament, but the Ministry, 
who direct the diplomacy of the nation, and virtually 
decide all questions of peace or war. The founders of 
the American Union showed their full appreciation of 
the latitude left to the executive government under 
the English constitution by one of the most remark- 
able of their innovations upon it. They lodged the 
treaty -making power in the hands, not of the 
President, but of the President and the Senate ; and 
further gave to the Senate a right of veto on 
Presidential appointments to office. These arrange- 
ments supply a valuable illustration of the way in 
which restrictions on the prerogative become re- 
strictions on the discretionary authority of the 
executive. Were the House of Lords to have con- 
ferred 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 

1 See the Parlement Beige, 4 P. D. 129 ; 5 P. D. (C. A.), 197. 



388 LA W AND CONVENTIONS OF CONSTITUTION 

Part in. prerogative of the Crown as regards the making of 
treaties and of official appointments. But the true 
effect of the constitutional innovation would be to 
place a legal check on the discretionary powers of 
the Cabinet. 

The survival of the prerogative, conferring as it 
does wide discretionary authority upon the Cabinet, 
involves a consequence which constantly escapes 
attention. It immensely increases the authority of 
the House of Commons, and ultimately of the con- 
stituencies by which that House is returned. Minis- 
ters must in the exercise of all discretionary powers 
inevitably obey the predominant authority in the 
state. When the King was the chief member of 
the sovereign body, Ministers were in fact no less than 
in name the King's servants. At periods of our 
history when the Peers were the most influential 
body in the country, the conduct of the Ministry 
represented with more or less fidelity the wishes of 
the Peerage. Now that the House of Commons 
has become by far the most important part of the 
sovereign body, the Ministry in all matters of dis- 
cretion carry out, or tend to carry out, the will of the 
House. When however the Cabinet cannot act except 
by means of legislation, other considerations come 
into play. A law requires the sanction of the House 
of Lords. No government can increase its statutory 
authority without obtaining the sanction of the Upper 
Chamber. Thus an Act of Parliament when passed 
represents, not the absolute wishes of the House of 
Commons, but these wishes as modified by the in- 
fluence of the House of Lords. The Peers no doubt 
will in the long run conform to the wishes of the 



SANCTION OF CONVENTIONS OF CONSTITUTION 389 

electorate. But the Peers may think that the electors chapter 
will disapprove of, or at any rate be indifferent to, a 
bill which meets with the approval of the House of 
Commons. Hence while every action of the Cabinet 
which is done in virtue of the prerogative is in fact 
though not in name under the direct control of the 
representative chamber, all powers which can be 
exercised only in virtue of a statute are more or less 
controlled in their creation by the will of the House 
of Lords ; they are further controlled in their exercise 
by the interference of the Courts. One example, 
taken from the history of recent years, illustrates the 
practical effect of this difference. 1 In 1872 the 
Ministry of the day carried a bill through the House 
of Commons abolishing the system of purchase in the 
army. The bill was rejected by the Lords : the 
Cabinet then discovered that purchase could be 
abolished by Royal warrant, i.e. by something very 
like the exercise of the prerogative. 2 The system 
was then and there abolished. The change, it will 
probably be conceded, met with the approval, not 
only of the Commons, but of the electors. But it will 
equally be conceded that had the alteration required 
statutory authority the system of purchase might 
have continued in force up to the present day. 
The existence of the prerogative enabled the Ministry 
in this particular instance to give immediate effect to 
the wishes of the electors, and this is the result which, 

1 On this subject there are remarks worth noting in Stephen's 
Life of Fawcett, pp. 271, 272. 

2 Purchase was not abolished by the prerogative in the ordinary 
legal sense of the term. A statute prohibited the sale of offices 
except in so far as might be authorised in the case of the army by 
royal warrant. When therefore the warrant authorising the sale was 
cancelled the statute took effect. 



390 LA W AND CONVENTIONS OF CONSTITUTION 

Part in. under the circumstances of modern politics, the survival 
of the prerogative will in every instance produce. The 
prerogatives of the Crown have become the privileges 
of the people, and any one who wants to see how widely 
these privileges may conceivably be stretched as the 
House of Commons becomes more and more the direct 
representative of the true sovereign, should weigh well 
the words in which Bagehot describes the powers 
which can still legally be exercised by the Crown with- 
out consulting Parliament ; and should remember that 
these powers can now be exercised by a Cabinet who 
are really servants, not of the Crown, but of a represent- 
ative 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 astonish- 
" ment. 

" But this is nothing to what the Queen can by law 
" do without consulting Parliament. Not to mention 
" other things, she could disband the army (by law 
" she cannot engage more than a certain number of 
" men, but she is not obliged to engage any men) ; 
" she could dismiss all the officers, from the General 
" commanding -in -chief downwards; she could dis- 
" miss all the sailors too ; she could sell off all our 
" ships -of -war and all our naval stores; she could 
" make a peace by the sacrifice of Cornwall, and begin 
" a war for the conquest of Brittany. She could make 



SANCTION OF CONVENTIONS OF CONSTITUTION 391 

" every citizen in the United Kingdom, male or Chapter 

" female, a peer; she could make every parish in L 

"the United Kingdom a 'university'; she could 
" dismiss most of the civil servants ; she could pardon 
" all offenders. In a word, the Queen could by 
" prerogative upset all the action of civil 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." 1 

If government by Parliament is ever transformed 
into government by the House of Commons, the 
transformation will, it may be conjectured, be 
effected by use of the prerogatives of the Crown. 

Let us cast back a glance for a moment at the Conclusion, 
results which we have obtained by surveying the 
English constitution from its legal side. 

The constitution when thus looked at ceases to 
appear a " sort of maze ; " it is seen to consist of two 
different parts ; the one part is made up of under- 
standings, customs, or conventions which, not being 
enforced by the Courts, are in no true sense of the word 
laws ; the other part is made up of rules which are 
enforced by the Courts, and which, whether embodied 
in statutes or not, are laws in the strictest sense 
of the term, and make up the true law of the 
constitution. 

This law of the constitution is, we have further 
found, in spite of all appearances to the contrary, 
the true foundation on which the English polity 
rests, and it gives in truth even to the conventional 

1 Bagehot, English Constitution, Introd. pp. xxxv. and xxxvi. 



392 LA W AND CONVENTIONS OF CONSTITUTION 

Part in. element of constitutional law such force as it really 
possesses. 1 

The law of the constitution, again, is in all its 
branches the result of two guiding principles, which 
have been gradually worked out by the more or less 
conscious efforts of generations of English statesmen 
and lawyers. 

The first of these principles is the sovereignty of 
Parliament, which means in effect the gradual transfer 
of power from the Crown to a body which has come 
more and more to represent the nation. 2 This curious 
process, by which the personal authority of the King 

1 See pp. 362-376, ante. 

2 A few words may be in place as to the method by which this 
transfer was accomplished. The leaders of the English people in 
their contests with royal power never attempted, except in periods 
of revolutionary violence, to destroy or dissipate the authority of 
the Crown as head of the state. Their policy, continued through 
centuries, was to leave the power of the King untouched, but to 
bind down the action of the Crown to recognised modes of procedure 
which, if observed, would secure first the supremacy of the law, and 
ultimately the sovereignty of the nation. The King was acknowledged 
to be supreme judge, but it was early established that he could act 
judicially only in and through his Courts ; the King was recognised 
as the only legislator, but he could enact no valid law except as King 
in Parliament ; the King held in his hands all the prerogatives of the 
executive government, but, as was after long struggles determined, he 
could legally exercise these 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 
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 constitu- 
tionalists had nominally checked the encroachments while really 
diminishing the sphere, of the royal prerogative. Legal statesmanship 
bears everywhere the same character. See Bocquain, L'Esprit Rdvolu- 
tionnaire avant la Revolution. 



SANCTION OF CONVENTIONS OF CONSTITUTION 393 

has been turned into the sovereignty of the King in Chapter 

Parliament, has had two effects : it has put an end to 1 

the arbitrary powers of the monarch ; it has preserved 
intact and undiminished the supreme authority of the 
state. 

The second of these principles is what I have 
called the " rule of law," or the supremacy throughout 
all our institutions of the ordinary law of the land. 
This rule of law, which means at bottom the right of 
the Courts to punish any illegal act by whomsoever 
committed, is of the very essence of English institu- 
tions. 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- 
stitution in short, which appears when looked at 
from one point of view to be a mere collection of 
practices or customs, turns out, when examined in 
its legal aspect, to be more truly than any other 
polity in the world, except the Constitution of the 
United States, 1 based on the law of the land. 

When we see what are the principles which truly 
underlie the English polity, we also perceive how 
rarely they have been followed by statesmen who 
more or less intended to copy the constitution of 
England. The sovereignty of Parliament is an idea 
fundamentally inconsistent with the notions which 
govern the inflexible or rigid constitutions existing in 

1 It is well Avorth notice that the Constitution of the United 
States, as it actually exists, rests to a very considerable extent on 
judge-made law. Chief-Justice Marshall, as the "Expounder of the 
Constitution," may almost be reckoned among the builders if not the 
founders of the American polity. See for a collection of his judgments 
on constitutional questions, The Writings of John Marshall, late Chief- 
Justice of the United States, on the Federal Constitution. 



394 LA W AND CONVENTIONS OF CONSTITUTION 

Part in. by far the most important of the countries which 
have adopted any scheme of representative govern- 
ment. 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 co-exist 
with the system of droit administratif as it prevails 
in France. We may perhaps even go so far as to say 
that English legalism is hardly consistent with the 
existence of an official body which bears any true 
resemblance to what foreigners call "the administra- 
tion." 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 
with the institutions of foreign countries, is, that the 
English constitution is still marked, far more deeply 
than is generally supposed, by peculiar features, and 
that these peculiar characteristics may be summed up 
in the combination of Parliamentary Sovereignty with 
the Rule of Law. 



APPENDIX 

NOTE I 

RIGIDITY OF FRENCH CONSTITUTIONS 

TWELVE constitutions l have been framed by French constitution- 
makers since the meeting of the States General in 1789. 

A survey of the provisions (if any) contained in these Con- 
stitutions for the revision thereof leads to some interesting 
results. 

First. With but two exceptions, every French Constitution 
has been marked by the characteristic of " rigidity." French- 
men of all political schools have therefore agreed in the assump- 
tion, 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 re- 
flecting over any proposed innovation. 

In this respect the Monarchical Constitution of 1791 is note- 
worthy. That Constitution formed a legislature consisting of 1 
one Assembly, but did not give this Assembly or Parliament any 
authority to revise the Constitution. The only body endowed 
with such authority was an Assembly of Eevision (Assemble de 
Revision), and the utmost pains were taken to hamper the con- 

1 Viz. (1) The Monarchical Constitution of 1792 ; (2) the Republican Con- 
stitution of 1793 ; (3) the Republican Constitution of 1795 (Directory), 5 
Fruct. An. III. ; (4) the Consular Constitution of the Year VIII. (1799) ; (5) 
the Imperial Constitution, 1804 ; (6) the Provisional Constitution, 1814 ; (7) 
the Constitutional Charter, 1814 (Restoration) ; (8) the Additional Act (Acte 
Additionnel), 1815, remodelling the Imperial Constitution; (9) the Constitu- 
tional Charter of 1830 (Louis Philippe) ; (10) the Republic of 1848 ; (11) the 
Second Imperial Constitution, 1852 ; (12) the present Republic, 1870-75. See 
Helie, Les Constitutions de la France, and Plouard, Les Constitutions Franyaises. 

It is possible either to lengthen or to shorten the list of French Constitutions 
according to the view which the person forming the list takes of the extent of 
the change in the arrangements of a state necessary to form a new Constitution. 



396 APPENDIX 

vening and to limit the action of the Assembly of Revision. 
The provisions enacted with this object were in substance as 
follows : An ordinary Legislative Assembly was elected for two 
years. No change in the Constitution could take place until 
three successive Legislative Assemblies should have expressed 
their wish for a change in some article of the Constitution. 
On a resolution in favour of such reform having been carried in 
three successive legislatures or Parliaments, the ensuing Legisla- 
tive Assembly was to be increased by the addition of 249 
members, and this increased Legislature was to constitute an 
Assembly of Revision. 

This Assembly of Revision was tied down, as far as the end 
could be achieved by the words of the Constitution, to debate on 
those matters only which were submitted to the consideration of 
the Assembly by the resolution of the three preceding legislatures. 
The authority, therefore, of the Assembly was restricted to a 
partial revision of the Constitution. The moment this revision 
was finished the 249 additional members were to withdraw, and 
the Assembly of Revision was thereupon to sink back into the 
position of an ordinary legislature. If the Constitution of 1791 
had continued in existence, no change in its articles could, under 
any circumstances, have been effected in less than six years. 
But this drag upon hasty legislation was not, in the eyes of the 
authors of the Constitution, a sufficient guarantee against in- 
considerate innovations. 1 They specially provided that the two 
consecutive legislative bodies which were to meet after the pro- 
clamation 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. 2 

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 legisla- 
ture, but on the will of the people. Upon the demand of a 
tenth of the primary assemblies in more than half of the Depart- 
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 Con- 

1 A resolution was proposed, though not carried, that the articles of the 
Constitution should be unchangeable for a period of thirty years. Helie, Les 
Constitutions de la France, p. 302. 

2 See Constitution of 1791, Tit. vii. 



RIGIDITY OF FRENCH CONSTITUTIONS 397 

stitution. The vote of these Assemblies thereupon decided for 
or against the meeting of a convention, and therefore whether a 
revision should take place. 

Assuming that they decided in favour of a revision, a con- 
vention, elected in the same manner as the ordinary legislature, 
was to be forthwith convened, and to occupy itself as regards 
the Constitution with those subjects only which should have 
caused (out motiv) the convention to be assembled. On the 
expressed wish, in short, of the majority of the citizens, a 
legislature was to be convoked with a limited authority to 
reform certain articles of the Constitution. 1 

The Republican and Directorial Constitution again, of 1795, 
rested, like its predecessors, on the assumption that it was of 
primary importance to make constitutional changes difficult, and 
also recognised the danger of again creating a despotic sovereign 
assembly like the famous, and hated, Convention. 

The devices by which it was sought to guard against both 
sudden innovations, and the tyranny of a constituent assembly, 
can be understood only by one who remembers that, under 
the Directorial Constitution, the legislature consisted of two 
bodies, namely, the Council of Ancients, and the Council of Five 
Hundred. A proposal for any change in the Constitution was 
necessarily to proceed from the Council of Ancients, and to be 
ratified by the Council of Five Hundred. After such a pro- 
posal had been duly made and ratified thrice in nine years, at 
periods distant from each other by at least three years, an 
Assembly of Revision was to be convoked. This Assembly 
constituted what the Americans now term a "constitutional 
Convention." It was a body elected ad hoc, whose meeting did 
not in any way suspend the authority of the ordinary legislature, 
or of the Executive. The authority of the Assembly of Revision 
was further confined to the revision of those articles submitted 
to its consideration by the legislature. It could in no case sit 
for more than three months, and had no other duty than to 
prepare a plan of reform (projet de reforme) for the consideration 
of the primary Assemblies of the Republic. When once this 
duty had been performed, the Assembly of Revision was ipso 
facto dissolved. The Constitution not only carefully provided 
that the Assembly of Revision should take no part in the 
government, or in ordinary legislation, but also enacted that until 
the changes proposed by the Assembly should have been accepted 
by the people the existing Constitution should remain in force. 

1 Constitution du 5 Fructidor, An. III., articles 336-350, H&ie, pp. 436 t 
463, 464. 



398 APPENDIX 

The Consular and Imperial Constitutions, all with more or less 
directness, made changes in the Constitution depend, first, upon 
a senatus consultum or resolution of the Senate; and, next, on 
the ratification of the change by a popular vote or plebiscite. 1 
This may be considered the normal Napoleonic system of consti- 
tutional reform. It makes all changes dependent on the will of 
a body, in effect, appointed by the Executive, and makes them 
subject to the sanction of a popular vote taken in such a manner 
that the electors can at best only either reject or, as in fact they 
always have done, affirm the proposals submitted to them by the 
Executive. No opportunity is given for debate or for amendments 
of the proposed innovations. We may assume that even under 
the form of Parliamentary Imperialism sketched out in the Addi- 
tional Act of 23rd April 1815, the revision of the Constitution 
was intended to depend on the will of the Senate and the ratifi- 
cation of the people. The Additional Act is however in one 
respect very remarkable. It absolutely prohibits any proposal 
which should have for its object the Restoration of the Bourbons, 
the re-establishment of feudal rights, of tithes, or of an established 
Church, or which should in any way revoke the sale of the 
national domains, or, in other words, should unsettle the title of 
French landowners. This attempt to place certain principles be- 
yond the influence, not only of ordinary legislation but of consti- 
tutional 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 " funda- 
mentals " not to be touched by Parliament, nor, as far as would 
appear, by any other body in the State. 

The Republic of 1848 brought again into prominence the 
distinction between laws changeable by the legislature in its 
ordinary legislative capacity, and articles of the Constitution 
changeable only with special difficulty, and by an assembly 
specially elected for the purpose of revision. The process of 
change was elaborate. The ordinary legislative body was elected 
for three years. This body could not itself modify any constitu- 
tional article. It could however, in its third year, resolve that 
a total or partial revision of the Constitution was desirable ; such 
a resolution was invalid unless voted thrice at three sittings, each 
divided from the other by at least the period of a month, unless 
500 members voted, and unless the resolution were affirmed by 
three-fourths of the votes given. 

On the resolution in favour of a constitutional change being 
duly carried, there was to be elected an assembly of revision. 

1 See Helie, Les Constitutions de la France, pp. 696-698. 



RIGIDITY OF FRENCH CONSTITUTIONS 399 

This assembly, elected for three months only, and consisting of a 
larger number than the ordinary legislature, was bound to occupy 
itself with the revision for which it was convoked, but might, if 
necessary, pass ordinary laws. It was therefore intended to be 
a constituent body superseding the ordinary legislature. 1 

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. 2 

The existing Republic is, in many respects, unlike any pre- 
ceding 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 by 
the ordinary legislature the Senate and the Chamber of 
Deputies acting in its ordinary legislative character. The two 
Chambers, in order to effect a change in the constitutional 
manner, must, in the first place, each separately resolve that a 
revision of the Constitution is desirable. When each have passed 
this resolution, the two Chambers meet together, and when thus 
assembled and voting together as a National Assembly, or Con- 
gress, have power to change any part, as they have in fact 
changed some parts, of the constitutional laws. 3 

I have omitted to notice the constitutional Charter of 1814, 
granted by Louis XVIII., and the Charter of 1830, accepted by 
Louis Philippe. The omission is intentional. Neither of these 
documents contains any special enactments for its amendment 
An Englishman would infer that the articles of the Charter 
could be abrogated or amended by the process of ordinary legis- 
lation. 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 how- 
ever, as already pointed out, 4 is by no means certain. Louis 
XVIII. may have meant that the articles of a constitution granted 
as a charter by the Crown, should be modifiable only at the will 
of the grantor. Louis Philippe may certainly have wished that 
the foundations of his system of government should be legally 
immutable. However this may have been, one thing is clear, 
namely, that French constitutionalists have, as a rule, held firmly 
to the view that the foundations of the Constitution ought not 

1 See Constitution, 1848, art. 111. 

2 Ibid. 1852, arts. 31, 32, Helie, p. 1170. 

3 See Constitutional Law, 1875, art. 8. 

4 See pp. 115, 116, ante. 



400 APPENDIX 

to be subject to sudden changes at the will of the ordinary 
legislature. 

Secondly. French statesmen have never fully recognised 
the inconveniences and the perils which may arise from the 
excessive rigidity of a constitution. They have hardly perceived 
that the power of a minority to place a veto for a period of many 
years on a reform desired by the nation provides an excuse or a 
reason for revolution. 

The authors of the existing Republic have, in this respect, 
learnt something from experience. They have indeed preserved 
the distinction between the Constitution and ordinary laws, but 
they have included but a small number of rules among constitu- 
tional articles, and have so facilitated the process of revision as 
to make the existing chambers all but a sovereign Parliament. 
Whether this is on the whole a gain or not, is a point on which 
it were most unwise to pronounce an opinion. All that is here 
insisted upon is that the present generation of Frenchmen have 
perceived that a constitution may be too rigid for use or for 
safety. 

Thirdly. An English critic smiles at the labour wasted in 
France on the attempt to make immutable Constitutions which, 
on an average, have lasted not quite ten years a piece. The 
edifice, he reflects, erected by the genius of the first great 
National Assembly, could not, had it stood, have been legally 
altered till 1801 that is, till the date when, after three consti- 
tutions had broken down, Bonaparte was erecting a despotic 
Empire. The Directorial Republic of 1795 could not, if it had 
lasted, have been modified in the smallest particular till 1804, at 
which date the Empire was already in full vigour. 

But the irony of fate does not convict its victims of folly, and, 
if we look at the state of the world as it stood when France 
begun 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 Parlia- 
ment was theoretically able to modify any institution whatever, 
the Parliaments of George III. were at least as little likely to 
change any law which could be considered constitutional as a 
modern Parliament to abolish the Crown. In fact it was not 
till nearly forty years after the meeting of the States General 
(1829) that any serious modification was made in the form of the 



RIGIDITY OF FRENCH CONSTITUTIONS 401 

government of England. No one in France or in England could 
a century ago foresee the condition of pacific revolution to which 
modern Englishmen had become so accustomed as hardly to feel 
its strangeness. The newly founded Constitution of the United 
States showed every sign of stability, and has lasted more than a 
century without undergoing any material change of form. It was 
reasonable enough therefore for the men of 1789 to consider that 
a well-built constitution might stand for a long time without 
the need of repair. 

Fourthly. The errors committed by French constitutionalists 
have been, if we may judge by the event, in the main, twofold. 
Frenchmen have always been blind to the fact that a constitu- 
tion may be undermined by the passing of laws which, without 
nominally changing its provisions, violate its principles. They 
have therefore failed to provide any adequate means, such as 
those adopted by the founders of the United States, for rendering 
unconstitutional legislation inoperative. They have in the next 
place, generally, though not invariably, underrated the dangers 
of convoking a constituent assembly, which, as its meeting sus- 
pends 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 mini- 
mising the perils involved in revisions of the constitution. In 
entrusting the task of revision to an assembly elected ad hoc, 
which met for no other purpose, and which had no authority to 
interfere with or suspend the action of the established legislative 
bodies or of the Executive, they formed a true Constitutional 
Convention in the American sense of that term, 1 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 Revision must be referred 
to a popular vote, and could not come into force until accepted 
by the people, was an anticipation of the Referendum which has 
now taken firm root in Switzerland, and may, under one shape or 
another, become in the future a recognised part of all democratic 
polities. It is worth while to direct the reader's attention to the 

1 See the word " Convention " in the American Encyclopaedia of American 
Science, and Bryce, American Commonwealth, i., App. on Constitutional Conven- 
tions, p. 539. 

2D 



402 APPENDIX 

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 atten- 
tion from the skill displayed by the founders of the Directorate 
in some parts of their constitutional creation. 



NOTE II 

DIVISION OF POWERS IN FEDERAL STATES 

A STUDENT who wishes to understand the principles which, 
under a given system of federalism, determine the division of 
authority between the nation or the central government on the 
one hand, and the States on the other, should examine the 
following points : -first, whether it is the national government or 
the States to which belong only " definite " powers, i.e. only the 
powers definitely assigned to it under the Constitution ; secondly, 
whether the enactments of the federal legislature can be by any 
tribunal or other authority nullified or treated as void ; thirdly, 
to what extent the Federal government can control the legislation 
of the separate States ; and fourthly, the relation of the national 
government, and to the States respectively, of the body, if such 
there be, having authority to amend the Constitution. 

It is interesting to compare on these points the provisions of 
four different federal systems. 

A. The United States. 1. The powers conferred by the Con- 
stitution on the United States are strictly " definite " or defined ; 
the powers left to separate the States are "indefinite" or undefined. 
"The powers not delegated to the United States by the Con- 
" stitution, nor prohibited by it to the States, are reserved to 
" the States respectively, or to the people." 1 The consequence 
is that the United States (that is, the national government) 
can claim no power not conferred upon the United States either 
directly or impliedly by the Constitution. Every State in the 
Union can claim to exercise any power belonging to an inde- 
pendent nation which has not been directly or indirectly taken 
away from the States by the Constitution. 

1 Constitution of United States, Amendment 10. 



DIVISION OF PO WERS IN FEDERAL STA TES 403 

2. The legislation of the Federal government is as much 
subject to the Constitution as the legislation of the States. An 
enactment, whether of Congress or of a State legislature, which is 
opposed to the Constitution, is void, and will be treated as such by 
the Courts. 1 

3. The Federal government has no power to annul or disallow 
State legislation. The State Constitutions do not owe their 
existence to the Federal government, nor do they require its 
sanction. The Constitution of the United States, however, 
guarantees to every State a Republican Government, and has, 
it is submitted, the right to put down, or rather is under the 
duty of putting down, any State Constitution which is not 
" Republican," whatever be the proper definition of that term. 

4. Changes in the Constitution require for their enactment 
the sanction of three-fourths of the States, and it would appear 
that constitutionally no State can be deprived of its equal 
suffrage in the Senate without its consent. 2 

B. Swiss Confederation. *!. The authority of the national 
government or Federal power is definite, the authority of each 
of the Cantons is indefinite. 3 

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 
popular vote for approval or rejection. It would appear that 
the Federal Court can treat as invalid Cantonal laws which 
violate the Constitution. 

3. The Federal authorities have no power of disallowing or 
annulling a Cantonal law. But the Cantonal Constitutions, and 
amendments thereto, need the guarantee of the Confederacy. 
This guarantee will not be given to articles in a Cantonal 
Constitution which are repugnant to the Federal Constitution, and 
amendments to a Cantonal Constitution do not, I am informed, 
come into force until they receive the Federal guarantee. 

4. The Federal Constitution can be revised only by a com- 
bined 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. Canadian Dominion. 1. The authority of the Dominion, 
or Federal, government is indefinite or undefined ; the authority 
of the States or Provinces is definite or defined, and indeed 
defined within narrow limits. 4 

1 See pp. 140, 141, 147-155, ante. 

2 Constitution of United States, art 5. 

3 See Constitution FedeVale, art. 3. 

4 See British North America Act, 1867, ss. 91, 92. 



404 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 
exclusively assigned to the Provincial legislatures. The Provincial 
or State Legislatures can legislate only on certain matters 
exclusively assigned to them. Congress, on the other hand, 
or the Swiss Federal Assembly, can legislate only on certain 
definite matters assigned to it by the Constitution ; the States 
or Cantons retain all powers exercised by legislation or other- 
wise not specially taken away from them by the Constitu- 
tion. 

2. The legislation of the Federal, or Dominion, Parliament 
is as much subject to the Constitution (i.e. the British North 
America Act, 1867) as the legislation of the Provinces. Any 
Act passed, either by the 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 
Acts passed by a Provincial legislature. This disallowance may 
be exercised even in respect of Provincial Acts which are con- 
stitutional, i.e. within the powers assigned to the Provincial 
legislatures under the Constitution. 1 

4. The Constitution of the Dominion depends on an Imperial 
statute ; it can, therefore, except as provided by the statute 
itself, be changed only by an Act of the Imperial Parliament. The 
Parliament of the Dominion cannot, as such, change any part of 
the Canadian Constitution. It may, however, to a limited extent, 
by its action when combined with that of a Provincial legislature, 
modify the Constitution for the purpose of producing uniformity 
of laws in the Provinces of the Dominion. 2 

But a Provincial legislature can under the British North 
America Act, 1867, s. 92, sub-s. 1, amend the Constitution of 
the Province. The law, however, amending the Provincial Con- 
stitution is, in common with other Provincial legislation, subject 
to disallowance by the Dominion government. 

D. German Empire. 1. The authority under the Constitution 
of the Imperial (Federal) power is apparently finite or denned, 
whilst the authority of the States making up the Federation is 
indefinite or undefined. 

This statement however must be understood subject to two 

1 See British North America Act, 1867, s. 90, and Bourinot, Parliamentary 
Practice and Procedure, pp. 76-81. 

2 British North America Act, 1867, s. 94. 



THE RIGHT OF SELF-DEFENCE 405 

limitations : first, the powers assigned to the Imperial govern- 
ment are very large ; secondly, the Imperial legislature can change 
the Constitution. 1 

2. Imperial legislation at any rate, if carried through in a 
proper form, cannot be " unconstitutional," but it would appear 
that State legislation is void, if it conflicts with the constitution, 
or with Imperial legislation. 2 

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 exists under the Imperial constitution. 3 The internal 
constitutional conflicts which may arise within any State may, 
under certain circumstances, be ultimately determined by Imperial 
authority. 4 

4. The Constitution may be changed by the Imperial (Federal) 
legislature in the way of ordinary legislation. But no law 
amending the Constitution can be carried, if opposed by fourteen 
votes in the Federal Council (Bundesrath). This gives in 
effect a " veto " on constitutional changes to Prussia and to two 
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. 4 



NOTE III 

THE RIGHT OF SELF-DEFENCE 

How far has an individual a right to defend his person, liberty, 
and property against unlawful violence by force, or (if we use 
the word " self-defence " in a wider sense than that usually 
assigned to it) what are the principles which, under English law, 
govern the right of self-defence ? 5 

The answer to this inquiry is confessedly obscure and in- 
definite, and does not admit of being given with dogmatic 

1 See Reichsverfassung, arts. 3 and 4. 2 Ibid. arts. 7 and 78. 

3 Ibid. arts. 17, 18, 19. 4 Ibid. art. 76. 

5 Report of Criminal Code Commission, 1879, pp. 43-46 [C. 2345], Notes A 
and B ; Stephen, Criminal Digest, p. 200 ; 1 East, P. C. 271-294 ; Foster, Dis- 
course II. ss. 2, 3, pp. 270, 271. 



406 APPENDIX 

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 suppress- 
ing private warfare. Discourage self-help and loyal subjects 
become the slaves of ruffians. Over-stimulate self-assertion, and 
for the arbitrament of the Courts you substitute the decision of 
the sword or the revolver. 

Let it further be remarked that the right of natural self- 
defence, even when it is recognised by the law, " does not imply 
" a right of attacking, for instead of attacking one another for 
" injuries past or impending, men need only have recourse to the 
" proper tribunals of justice." 1 

A notion is current, 2 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 
protection of his legal rights. This notion, however popular, is 
erroneous. If pushed to its fair consequences, it would at 
times justify the shooting of trespassers, and would make it 
legal for a schoolboy, say of nine years old, to stab a hulking 
bully of eighteen who attempted to pull the child's ears. Some 
fifty years ago a worthy Captain Moir carried this doctrine out 
in practice to its extreme logical results. His grounds were in- 
fested by trespassers. He gave notice that he should fire at any 
wrongdoer who persisted in the offence. He executed his threat, 
and, after fair warning, shot a trespasser in the arm. The 
wounded lad was carefully nursed at the captain's expense. He 
unexpectedly died of the wound. The captain was put on his 
trial for murder ; he was convicted by the jury, sentenced by the 
judge, and, on the following Monday, hanged by the hangman. 
He was, it would seem, a well-meaning man, imbued with too 
rigid an idea of authority. He perished from ignorance of law. 
His fate is a warning to theorists who incline to the legal heresy 
that every right may lawfully be defended by the force necessary 
for its assertion. 

The maintainable theories as to the legitimate use of force 
necessary for the protection or assertion of a man's rights, or in 

1 Stephen, Commentaries (8th ed. ), iv. pp. 53, 54. 

2 This doctrine is attributed by the Commissioners, who in 1879 reported on 
the Criminal Code Bill, to Lord St. Leonards. As a matter of criticism it is 
however open to doubt whether Lord St. Leonards held precisely the dogma 
ascribed to him. See Criminal Code Bill Commission, Report [C. 2345], p. 44, 
note B. 



THE RIGHT OF SELF-DEFENCE 407 

other words the possible answers to our inquiry, are, it will be 
found, twofold. 

First Theory. In defence of a man's liberty, person, or pro- 
perty, he may lawfully use any 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 inflict 
upon the wrongdoer mischief out of proportion to the injury 
or mischief which the force used is intended to prevent ; and no 
man may use in defending his rights an 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 : 

" We take [they write] one great principle of the common law to 
be, that though it sanctions the defence of a man's person, liberty, and 
property against illegal violence, and permits the use of force to pre- 
vent 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 prevented by less violent means ; and that the mischief done by, or 
which might reasonably be anticipated from the force used is not dis- 
proportioned 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." 1 

The use of the word " necessary " is, it should be noted, 
somewhat peculiar, since it includes the idea both of necessity 
and of reasonableness. When this is taken into account, the 
Commissioners' view is, it is submitted, as already stated, that 
a man may lawfully use in defence of his rights such 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 doc- 
trine is eminently rational. It comes to us recommended by the 
high authority of four most distinguished judges. It certainly re- 
presents the principle towards which the law of England tends to 
approximate. But there is at least some ground for the sugges- 
tion that a second and simpler view more accurately represents 
the result of our authorities. 

Second Theory. A man in repelling an unlawful attack upon 

1 C. C. B. Commission, Report, p. 11. 



408 APPENDIX 

his person or liberty, is justified in using against his assailant so 
much force, even amounting to the infliction of death, as is 
necessary for repelling the attack i.e. as is needed for self- 
defence ; but the infliction upon a wrongdoer of grievous bodily 
harm, or death, is justified, speaking generally, only by the 
necessities of self-defence i.e. the defence of life, limb, or per- 
manent liberty. 1 

This theory may be designated as the doctrine of " the 
legitimacy of force necessary for self-defence." Its essence is 
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. 

The doctrine of the " legitimacy of necessary and reasonable 
force " and the doctrine of the "legitimacy of force necessary for 
self-defence" conduct in the main, and in most instances, to the 
same practical results. 

On either theory A, when assaulted by X, and placed in peril 
of his life, may, if he cannot otherwise repel or avoid the assault, 
strike X dead. On the one view, the force used by A is both 
necessary and reasonable ; on the other view, the force used by 
A is employed strictly in self-defence. According to either doc- 
trine A is not justified in shooting at X because X is wilfully 
trespassing on A's land. For the damage inflicted by A upon 
X namely, the risk to X of losing his life is unreasonable, that 
is, out of all proportion to the injury done to A by the trespass, 
and A in firing at a trespasser is clearly using force, not for the 
purpose of self-defence, but for the purpose of defending his pro- 
perty. 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. 2 The gist of these rules 
is that no man must slay or severely injure another until he has 
done everything he possibly can to avoid the use of extreme 

1 See Stephen, Commentaries, i. (8th ed.), p. 139 ; iii. pp. 243, 244 ; iv. 
pp. 53-55. 

2 See Stephen, Criminal Digest, art. 200, but compare Commentaries, iv. (8th 
ed. ), pp. 54-56 ; and 1 Hale, P. C. 479. The authorities are not precisely in 
agreement as to the right of A to wound X before he has retreated as far as he 
can. But the general principle seems pretty clear. The rule as to the necessity 
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 the 
law as nearly equivalent to the defence of his person. " If a thief assaults a true 
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. 
481. See as to defence of house, 1 East, P. C. 287. 



THE RIGHT OF SELF-DEFENCE 409 

force. A is struck by a ruffian, X ; A has a revolver in his 
pocket. He must not then and there fire upon X, but, to avoid 
crime, must first retreat as far as he can. X pursues ; A is 
driven up against a wall. Then, and not till then, A, if he has no 
other means of repelling attack, may justifiably fire at X. Grant 
that, as has been suggested, the minute provisos as to the cir- 
cumstances 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 par- 
ticular place e.g. in a particular part of a public square, where 
he has a lawful right to stand. 1 Both theories, in short, have 
reference to the use of " necessary " force, and neither counte- 
nances the use of any force which is more than is necessary for its 
purpose. A is assaulted by X, he can on neither theory justify 
the slaying or wounding of X, if A can provide for his own 
safety simply by locking a door on X. Both theories equally 
well explain how it is that as the intensity of an unlawful assault 
increases, so the amount of force legitimately to be used in self- 
defence 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 
" possession, yet in the end it is the defence of the person." 2 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. 3 

Whether the two doctrines may not under conceivable circum- 
stances lead to different results, is 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 

1 Stephen, Commentaries, iv. pp. 53, 54 ; compare 1 Hale, P. C. 481, 482 ; 
Stephen, Criminal Digest, art. 201 ; 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. 

3 Rolle's Ab. Trespass, g 8. 

3 Stephen, Commentaries, iv. (8th ed.), pp. 53, 54. 



4 io APPENDIX 

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 griev- 
ous 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, 
restricts too narrowly a citizen's power to protect himself against 
wrong. 

The weight of this objection is diminished by two reflections. 

For the advancement of public justice, in the first place, every 
man is legally justified in using, and indeed is often bound to 
use, force, which may, under some circumstances, amount to the 
infliction 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. 1 Hence, too, 
any private person who is present when any felony is committed, 
is bound by law to arrest the felon, on pain of fine and imprison- 
ment if he negligently permit him to escape. 2 "Where a felony 
' is committed and the felon flyeth from justice, or a dangerous 
' wound is given, it is the duty of every man to use his best 
' endeavours for preventing an escape. And if in the pursuit the 
' party flying is killed, where he cannot be otherwise overtaken, this 
' will be deemed justifiable homicide. For the pursuit was not 
' barely warrantable ; it is what the law requireth, and will punish 
' the wilful neglect of." 3 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, for example, the 
" picking of pockets ; nor to the breaking open of a house in the 
" day-time, unless such entry carries with it an attempt of robbery, 

1 See Timothy v. Simpson, 1 C. M. and R. 757. 

2 Stephen, Commentaries, iv. pp. 336, 347 ; Hawkins, P. C. book ii. cap. 12. 

3 Foster, Discourse II. of Homicide, pp. 271, 272, and compare pp. 273, 274. 



THE RIGHT OF SELF-DEFENCE 411 

" arson, murder, or the like." l 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 com- 
mission 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 pre- 
venting their escape, knocks down one of them, X, who dies of the 
blow ; A, it would seem, not only is innocent of guilt, but has 
also discharged a public duty. 

Let it be added that where A may lawfully inflict grievous 
bodily harm upon X e.g. in arresting him X acts unlawfully 
in resisting A, and is responsible for the injury caused to A by 
X's resistance. 2 

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. 

A is walking along a public path on his way home, X tries 
to stop him ; A pushes X aside, X has a fall and is hurt. A has 
done no wrong ; he has stood merely on the defensive and re- 
pelled an attempt to interfere with his right to go along a public 
way. X thereupon draws a sword and attacks A again. It is 
clear that if A can in no other way protect himself e.g. by 
running away from X, or by knocking X down he may use any 
amount of force necessary for his self-defence. He may stun X 
or fire at X. 

Here, however, comes into view the question of real diffi- 
culty. How far is A bound to give up the exercise of his rights, 
in this particular instance the right to walk along a particular 
path, rather than risk the maiming or the killing of X ? 

Suppose, for example, that A knows perfectly well that X 
claims, though without any legal ground, a right to close the par- 
ticular footpath, and also knows that, if A turns down another 
road which will also bring him home, though at the cost of a 
slightly longer walk, he will avoid all danger of an assault by 
X, or of 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 
for his purpose may be put in this way. A has a right to push 
X aside. As X's violence grows greater, A has a right to repel 
it. He may thus turn a scuffle over a right of way into a struggle 

1 Stephen, Commentaries, iv. (8th ed.), pp. 49, 50. 
2 Foster, Discourse II. p. 272. 



412 APPENDIX 

for the defence of As life, and so justify the infliction even of 
death upon X. But this manner of looking at the matter is 
unsound. Before A is justified in, say, firing at X or stabbing 
X, he must show distinctly that he comes within one at least of 
the two principles which justify the use of extreme force 
against an assailant. But if he can avoid X's violence by 
going a few yards out of his way, he cannot justify his 
conduct under either of these principles. The firing at X is 
not "reasonable," for the damage inflicted by A upon X in 
wounding him is out of all proportion to the mischief to 
A which it is intended to prevent namely, his being forced 
to go a few yards out of his way on his road home. The firing 
at X, again, is not done in strict self-defence, for A could have 
avoided all danger by turning into another path. A uses force 
not for the defence of his life, but for the vindication of his 
right to walk along a particular pathway. That this is the true 
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 
grievously wounds his assailant. 

Reg. v. Hewlett, a case tried as late as 1858, contains judicial 
doctrine pointing in the same direction. A was struck by X, 
A 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." x The essence of this 
dictum is, that the force used by A was not justifiable, because, 
though it did ward off danger to A namely, the peril of 
being knocked down it was not necessary for the defence of A's 
life or limb. The case is a particularly strong one, because 
X was not a person asserting a supposed right, but a simple 
wrongdoer. 

Let the last case be a little varied. Let X be not a ruffian 
but a policeman, who, acting under the orders of the Commissioner 
of Police, tries to prevent A from entering the Park at the Marble 
Arch. Let it further be supposed that the Commissioner has 
taken an erroneous view of his authority, and that therefore the 
attempt to hinder A from going into Hyde Park at the parti- 
cular entrance does not admit of legal justification. X, under 
these circumstances, is therefore legally in the wrong, and A may, 
it would seem, 2 push by X. But is there any reason for saying 
that if A cannot simply push X aside he can lawfully use the 

1 1 Foster and Finlasou, 91, per Crowder, J. 

2 It is of course assumed in this imaginary case that Acts of Parliament are 
not in force empowering the Commissioner of Police to regulate the use of the 



QUESTIONS AS TO RIGHT OF PUBLIC MEETING 413 

force necessary e.g. by stabbing X to effect an entrance ] 
There clearly is none. 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 Sovereign and his Courts are the vindices in- 
" juriam, and will give to the party wronged all the satisfaction 
" he deserves ; " l no one is allowed to vindicate the strength of 
his disputed rights by the force of his arm. Legal controversies 
are not to be settled by blows. A bishop who in the last cen- 
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 
fallacies of Erskine. 2 

From whatever point therefore the matter be approached, we 
come round to the same conclusion. The only undoubted justi- 
fication for the use of extreme force in the assertion of a man's 
rights is, subject to the exceptions or limitations already men- 
tioned, to be found in, as it is limited by, the necessities of strict 
self-defence. 



NOTE IV 

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 1 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 ? 

For the proper understanding of the matters under discussion, 

right to enter into the Park. It is not my intention to discuss the effect of the 
Metropolitan Police Acts, or to intimate any opinion as to the powers of the ^Com- 
missioner of Police. 

1 Stephen, Commentaries, iv. (8th ed.), p. 55. 

2 The Bishop ofBangor's Case, 26 St. Tr. 463. 



414 APPENDIX 

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. 1 

The right of assembling is nothing more than the result of 
the view taken by our Courts of individual liberty of person and 
individual liberty of speech. 

Interference therefore with a lawful meeting -is not an in- 
vasion of a public right, but an attack upon the individual rights 
of A or B, 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. 2 
Hence further the answer to the question how far a lawful 
meeting may resist any attempt to disperse the assembly, de- 
pends at bottom on a determination of the methods prescribed 
by law to a given citizen A, for punishing or repelling an 
assault. 

The second of these preliminary observations is that the 
most serious of the obscurities which beset the law of public 
meetings arise from the difficulty of determining how far a citizen 
is legally justified in using force for the protection of his person, 
liberty, or property, or, if we may use the word " self-defence " 
in its widest sense, from uncertainty as to the true principles 
which govern the right of self-defence. 3 

The close connection of these introductory remarks with the 
questions to be considered will become apparent as we proceed. 

I. Does there exist any general right of meeting in public places ? 

The answer is easy. No such right is known to the law of 
England. 

Englishmen, it is true, meet together for political as well as 
for other purposes, in parks, on commons, and in other open 
spaces accessible to all the world. It is also true that in England 
meetings held in the open air are not subject, as they are in other 
countries for instance, Belgium to special restrictions. A 
crowd gathered together in a public place, whether they assemble 
for amusement or discussion, to see an acrobat perform his somer- 
saults, or to hear a statesman explain his tergiversations, stand 
in the same position as a meeting held for the same purpose in a 

1 See chap. vii. ante. 

2 See Redford v. Birley, 1 St. Tr. N. S. 1071. 
3 See Note iii. ante. 



QUESTIONS AS TO RIGHT OF PUBLIC MEETING 415 

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 Hawarden, 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 
not, speaking generally, provide that there shall be spaces where 
the public can meet in the open air, either for political dis- 
cussion or for amusement. There may of course be, and indeed 
there are, special localities which by statute, by custom or other- 
wise, 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 
that end. In this respect, again, a crowd of a thousand people 
stand in the same position as an individual person. If A wants 
to deliver a lecture, to make a speech, or to exhibit a show, he 
must obtain some room or field which he can legally use for his 
purpose. He must not invade the rights of private property i.e. 
commit a trespass. He must not interfere with the convenience 
of the public i.e. create a nuisance. 

The notion that there is such a thing as a right of meeting 
in 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 be 
for any lawful purpose, and especially for political discussion is 
confounded with the totally different 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 different, and in many countries are regulated 
by totally different rules. It is assumed again that squares, streets, 
or roads, which every man may lawfully use, are necessarily avail- 
able for the holding of a meeting. The assumption is false. A 
crowd blocking up a highway will probably be a nuisance in the 
legal, no less than in the popular, sense of the term, for they in- 
terfere 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 
along them, 1 and the legal mode of use negatives the claim of 
politicians to use a highway as a forum, just as it excludes the 
claim of actors to turn it into an open-air theatre. The crowd 

1 Dovaston v. Payne, 2 Hy. Bl. 527. 



416 APPENDIX 

who collect, and the persons who cause a crowd, for whatever 
purpose, to collect in a street, create a nuisance. 1 The claim on 
the part of persons so minded to assemble in any numbers and 
for so long a time as they please, to remain assembled " to the 
" 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 
" it." 2 The general public cannot make out a right to hold meet- 
ings even on a common. 3 The 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 
when the law allows a right it provides the means for its exercise. 
No ideas can be more unfounded. English law no more favours 
or provides for the holding of political meetings than for the 
giving of public concerts. A man has a right to hear an orator 
as he has a right to hear a band, or to eat a bun. But each 
right must be exercised subject to the laws against trespass, 
against the 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 
their political wishes. The remark is true, but, from a lawyer's 
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 excel- 
lent citizens must forego their right to hear music. Every man has 
a right to worship God after his own fashion, but if all the land- 
owners of a parish refuse ground for the building of a Wesleyan 
chapel, parishioners must forego attendance at a Methodist place 
of worship. 

II. IfHiat is the meaning of the term " an unlawful assembly " ? 

The expression " 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 

1 Rex v. Carlile, 6 C. and P. 628, 636 ; the Tramways Case, the Times, 7th 
September 1888. 

2 Ex parte Lewis, 21 Q. B. D. 191, 197 ; per Curiam. 

3 Bailey v. Williamson, L. B. 8 Q. B. 118 ; De Morgan v. Metropolitan 
Board of Works, 5 Q. B. D. 155. 



QUESTIONS AS TO RIGHT OF PUBLIC MEETING 417 

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 l with varying degrees of precision. The 
definitions vary, for the most part, rather in words than in 
substance. Such differences as exist have, however, a twofold 
importance. They show, in the first place, that the circumstances 
which may render a meeting an unlawful assembly have not been 
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 determining 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 con- 
sider carefully the tendency, as well as the words, of reported 
judgments. 

The general and prominent characteristic of an unlawful 
assembly (however defined) is, to any one who candidly studies 
the authorities, clear enough. It is a meeting of persons who 
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 by 
the term " unlawful assembly." A careful examination, however, 
of received descriptions or definitions and of the authoritative 
statements contained in Sir James Stephen's Digest and in the 
Draft Code drawn by the Criminal Code Commissioners, enables 
an inquirer to frame a more or less accurate definition of an 
" unlawful assembly." 

It may (it is submitted) be defined as any meeting of three 
or more persons who 

(i.) Assemble to commit, or, when assembled do commit, a 

breach of the peace ; or 
(ii.) Assemble with intent to commit a crime by open 

force ; or 
(iii.) Assemble for any common purpose, whether lawful or 

unlawful, in such a manner as to give firm and courageous 

1 See Hawkins, P. C. book L cap. 65, ss. 9, 11 ; Blackstone, iv. p. 146 ; 
Stephen, Commentaries (8th ed. ), iv. p. 213 ; Stephen, Criminal Digest, art. 70 ; 
Criminal Code Bill Commission, Draft Code, sec. 84, p. 80 ; Rex v. Pinney, 5 C. 
and P. 254 ; Rex v. Hunt, 1 St. Tr. N. S. 171 ; Redford v. Birley, ibid. 1071 ; 
Rex v. Morris, ibid. 521 ; BeaMy v. Gilttanks, 9 Q. B. D. 308 ; Reg. v. 
M'Naughton (Irish) 14 Cox, C. C. 576 ; 0' 'Kelly v. Harvey (Irish), 15 Cox, C. C. 
435. 

2E 



418 APPENDIX 

persons in the neighbourhood of the assembly reasonable 
cause to fear a breach of the peace, in consequence of the 
aesembly ; or 

[(iv.) Assemble with intent to excite disaffection among the 
Crown's subjects, to bring the Constitution and Govern- 
ment of the realm, as by law established, into contempt, 
and generally to carry out, or prepare for carrying out, 
an unlawful conspiracy. 1 ] 

The following points require notice: 

1. A meeting is 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 
of the peace will ensue. But the lawfulness of their object does 
not of itself make the meeting lawful. 

3. A meeting for an unlawful purpose is not, as already 
pointed out, necessarily an unlawful assembly. 

The test of the character of the assembly is whether the 
meeting does or does not contemplate the use of unlawful force, 
or does or does not inspire others with reasonable fear that un- 
lawful force will be used ie. that the Queen'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 facto an unlawful assembly, 2 and that a meeting to pro- 

1 'Kelly v. Harvey (Irish), 15 Cox C. C. 435. The portion of this definition 
contained in brackets must be considered as, in England, of doubtful authority. 

2 See Bedford 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. 



QUESTIONS AS TO RIGHT OF PUBLIC MEETING 419 

mote an unlawful conspiracy of a public character, even though 
it does not directly menace a breach of the peace, is also an un- 
lawful assembly. 

This is a matter on which it is prudent to speak with reserve 
and hesitation, and to maintain a suspended judgment until the 
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 un- 
lawful assembly. 

5. Two questions certainty 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 poli- 
tical leaders address a meeting in terms which it is reason- 
ably supposed may, after the meeting has broken up, excite 
insurrection ? 

The answer to this inquiry is doubtful. 1 

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? 

The one English authority 2 on the subject answers this 
inquiry in the affirmative. A meeting is not an unlawful 
assembly because it excites persons who dislike the meeting to 
break the peace. Thus a meeting held by a handful of 
Protestants for the denunciation of the confessional or of saint- 
worship, in the midst of a poor and excited Roman Catholic 
population, is not an unlawful meeting, though every one knows 
that its consequence is likely to be riot and bloodshed. To this 
view the Irish Courts, which no less than the English tribunals 
are exponents of the common law, do not assent. It is possible 
that common sense may also refuse its sanction to the doctrine 
now laid down by the English Queen's Bench Division. Here, 
again, an inquirer may be recommended to suspend his judg- 
ment. 

1 See Rex v. Hunt, 1 St. Tr. N. S. 171 ; Rex v. Dewhurst, ibid. 530, 599. 
' Upon 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 your 
' finding in the shape of what I should then take it to be, a special verdict " : per 
Bailey, J. 2 Beatty v. GillbanTcs, 9 Q. B. D. 308. 



420 APPENDIX 

III. Wlwd, are the rights of the Crown or its servants in dealing 
with an unlawful assembly ? 

1. Every person who takes part in an unlawful assembly is 
guilty of a misdemeanour, and the Crown may therefore prosecute 
every such person for his offence. 

Whether a given man A, who is present at a particular 
meeting, does thereby incur the guilt of " taking part " in an 
unlawful assembly, is in each case a question of fact. 

A, though present, may not be a member of the meeting ; he 
may be there accidentally ; he may know nothing of its character ; 
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 A 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 peril. If it turns out 
in fact an unlawful assembly, he cannot plead ignorance of its 
character as a defence against the charge of taking part in the 
meeting. 1 

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 Eiot Act has been read. 2 The pre- 
valence 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 pro- 
clamation which is popularly known as "reading the Riot Act." 3 

The consequences are as follows: first, that any twelve 
rioters who do not disperse within an hour thereafter, are guilty 
of felony ; and, secondly, that the magistrate and those acting 
with him may, after such hour, arrest the rioters and disperse the 

1 Reg. v. Fursey, 6 C. and P. 81. 

2 Reg. v. Neale, 9 C. and P. 431 ; Burdet v. Abbot, 4 Taunt. 401, 449. See 
pp. 267, 268, ante. 

3 1 Geo. I. stat. 2, cap. 5, s. 2. 



QUESTIONS AS TO RIGHT OF PUBLIC MEETING 421 

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 Riot 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. 1 It is particularly to be noticed that the powers 
given to magistrates for dealing with riots under the Riot Act 
in no way lessen the common law right of a magistrate, and 
indeed of every citizen, to put an end to a breach of the peace, 
and hence to disperse an unlawful assembly. 

IV. What are the rights possessed by the members of a lawful 
assembly when the meeting is interfered with or dispersed by force 1 

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 
sermon. Certain persons who think the meeting either objection- 
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. 2 

An attempt, whether successful or not, to disperse a lawful 
assembly involves assaults of more or less violence upon the 
persons A, B, and C who have met together. The wrong thus 
done by the assailants is, as already pointed out, a wrong done, 
not to the meeting a body which has legally no collective 
rights but to A, B, or C, an individual pushed, hustled, struck, 
or otherwise assaulted. 

Our problem is, then, in substance What are the rights of 
A, the member of a meeting, when unlawfully assaulted ? And this 
inquiry, in its turn, embraces two different questions, which, for 
clearness sake, ought to be carefully kept apart from each other. 

First. What are the remedies of A for the wrong done to him 
by the assault ] 

The answer is easy. A has the right to take civil, or (subject 
to one reservation) criminal proceedings against any person, be 
he an officer, a soldier, a commissioner of police, a magistrate, a 
policeman, or a private ruffian, who is responsible for the assault 

1 See Stephen, Hist. Crim. Law, i. 203 ; Criminal Code Bill Commission, 
Draft Code, ss. 88, 89. 

2 For the sake of convenience, I have taken a meeting of the Salvation Army 
as a typical instance of a lawful public meeting. It should, however, be con- 
stantly remembered that the rights of the Salvationists are neither more nor less 
than those of any other crowd lawfully collected together e.g. to hear a band of 



422 APPENDIX 

upon A. If, moreover, A be killed, the person or persons by 
whom his death has been caused may be indicted, according to 
circumstances, for manslaughter or murder. 

This statement as to A's rights, or (what is, however, the 
same thing from another point of view) as to the liabilities of 
A's assailants, is made subject to one reservation. There exists 
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 fire 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. 

" I hope [says Willes, J.] I may never have to determine that 
difficult question, how far the orders of a superior officer are a 
justification. Were I compelled to determine that question, I should 
probably hold that the orders are an absolute justification in time of 
actual war at all events, as regards enemies or foreigners and, I 
should think, even with regard to 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." 1 

A critic were rash who questioned the suggestion of a jurist 
whose dicta are more weighty than most considered judgments. 
The words, moreover, of Mr. Justice Willes enounce a principle 
which is in itself pre-eminently reasonable. If its validity be 
not admitted, results follow as absurd as they are unjust : every 
soldier is called upon 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 
commanding officer to take part in the suppression of a riot runs 
the risk, if he disobeys, of being shot by order of a court-martial, 
and, if he obeys, of being hanged under the sentence of a judge. 
Let it further be carefully noted that the doctrine of Mr. Justice 
Willes, which is approved of by the Criminal Code Commissioners, 2 
applies, it 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. How far is A entitled to maintain by force against 

1 Keighly v. Bell, 4 F. and F. 763, 790, per Willes, J. 
2 See C. C. B. Commission, Draft Code, ss. 49-53. 



QUESTIONS AS TO RIGHT OF PUBLIC MEETING 423 

all assailants his right to take part in a lawful public meeting, 
or, in other words, his right to stand in a place where he 
lawfully may stand e.g. ground opened to A by the owner, for 
a purpose 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 self- 
defence, 1 an'd should further consider what may be the different 
circumstances under which an attempt may be made without 
legal warrant to disperse a meeting of the Salvation Army. The 
attack upon the meeting, or in other words upon A, may be made 
either by mere wrongdoers, or by persons who believe, however 
mistakenly, that they are acting in exercise of a legal right or in 
discharge of a legal duty. Let each of these cases be examined 
separately. 

Let us suppose, in the first place, that the Salvationists, and 
A among them, are attacked by the so-called Skeleton Army or 
other roughs, and let it further be supposed that the object of the 
assault is simply to break up the meeting, and that therefore, if 
A and others disperse, they are in no peril of damage to life or 
limb. 

A and his friends may legally, it would seem, stand their 
ground, and use such moderate force as amounts to simple 
assertion of the right to remain where they are. A and 
his companions may further give individual members of the 
Skeleton Army in charge for a breach of the peace. It 
may, however, happen that the roughs are in large numbers, 
and press upon 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 Salva- 
tionists cannot hold their meeting without employing it. Is the 
use of such force legal 1 The strongest way of putting the case 
in favour of A and his friends is that, in firing upon their 
opponents, they are using force to put down a breach of the 
peace. On the whole, however, there can, it is submitted, be 
no doubt that the use of firearms or other deadly weapons, to 
maintain their right of meeting, is under the circumstances not 
legally justifiable. The principle on which extreme acts of self 
defence against a lawless assailant cannot be justified until the 
person assaulted has retreated as far as he can, is applicable to 
A, B, C, etc., just as it would be to A singly. Each of the 
Salvationists is defending, under the supposed circumstances, not 
his life, but his right to stand on a given plot of ground. 

1 See Note iii. p. 405, ante. 



424 APPENDIX 

Next, suppose that the attempt to disperse the Salvationists 
is made, not by the Skeleton Army, but by the police, who act 
under the order of magistrates who hold bond fide, though 
mistakenly, 1 that a notice from the Home Secretary forbidding 
the Army to meet, makes its meeting an unlawful assembly. 

Under these circumstances, the police are clearly in the 
wrong. A policeman who assaults A, E, or C^does an act not 
admitting of legal justification. Nor is it easy to maintain that 
the mere fact of the police acting as servants of the Crown in 
supposed discharge of their duty makes it of itself incumbent 
upon A to leave the meeting. 

The position, however, of the police differs in two important 
respects from that of mere wrongdoers. Policeman X, when he 
tells A to move on, and compels him to do so, does not put A 
in peril of life or limb, for A knows for certain that, if he leaves 
the meeting, he will not be further molested, or that if he allows 
himself to be peaceably arrested, he has nothing to dread but 
temporary imprisonment and appearance before a magistrate, 
who will deal with his rights in accordance with law. Policeman 
X, further, asserts bond fide a supposed legal right to make A 
withdraw from a place where X believes A has no right to stand ; 
there is a dispute between A and X as to a matter of law. This 
being the state of affairs, it is at any rate fairly arguable that 
A, , and C have a right to stand simply on the defensive, and 
remain where they are as long as they can do so without inflict- 
ing grievous bodily harm upon X 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 have 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 
he wishes to avert. A, therefore, if he stabs or stuns X, can on 
no theory plead the right of self-defence. A and X further 
are, as already pointed out, at variance on a question of legal 
rights. This is 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 
unfavourable for the police which can be imagined. They may 
well, though engaged in hindering what turns out to be a lawful 
meeting, stand in a much better situation than that of assailants. 

1 See Beatty v. OiUbanks, 9 Q. B. D. 308. 



QUESTIONS AS TO RIGHT OF PUBLIC MEETING 425 

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 
where they can meet. Nothing but the use of force, and 
indeed of extreme force, can drive the police away. This force 
the Salvation Army cannot use ; if they did, they would be using 
violence not on any show of self-defence, but to obtain possession 
of a particular piece of land. Their only proper course is the 
vindication of their rights by proceedings in Court. 

Of the older cases, 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, 1 for in 
these cases the matter discussed seems often to have been not 
whether As resistance was justifiable, but whether it amounted 
to murder or only to manslaughter. There are, however, one or 
two more or less recent decisions which have a real bearing on 
the right of the members of a public meeting to resist by force 
attempts to disperse it. And these cases are, on the whole, 
when properly understood, not inconsistent with the inferences 
already drawn from general principles. The doctrine laid down 
in Reg. v. Hewlett? that A ought not to inflict grievous bodily 
harm even upon X a wrongdoer unless in the strictest self- 
defence, is of the highest importance. Rex v. Fursey, B a decision 
of 1833, has direct reference to the right of meeting. At a 
public meeting held that year in London, A carried an American 
flag which was snatched from him by X, a policeman, whereupon 
A stabbed X. He was subsequently indicted under 9 Geo. I. 
c. 31, s. 12, and it appears to have been laid down by the judge 
that though, if the meeting was a legal one, X had no right to 
snatch away A's flag, still that even on the supposition that the 
meeting was a lawful assembly, A, if X had died of his wound, 
would have been guilty either of manslaughter, or very possibly 
of murder. Quite in keeping with Rex v. Fursey is the recent 
case of Reg. v. Harrison. 4 ' Some of the expressions attributed, 
in a very 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 

1 See, e.g. Dixon's Case, 1 East, P. C. 313 ; Borthwick's Case, ibid. ; Wither' s 
Case, 1 East, P. C. 233, 309 ; Tooley's Case, 2 Lord Raymond, 1296. 

2 1 F. and F. 91. 

3 6 C. and P. 81, 86, 87, summing up of Gaselee, J., and compare Criminal 
Code Commission Report, pp. 43, 44. 

4 The Tunes, 19th December 1887. 



426 APPENDIX 

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 to assert legal rights by recourse to 
pistols or bludgeons receive countenance from two decisions 
occasionally adduced in its support. 

The one is Beatty v. Gillbanks}- 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 be a breach 
caused by the members of the meeting, and not by wrongdoers 
who wish to prevent its being held. 2 

The second is M'Clenaghan v. Waters. 3 The case may 
certainly be so explained as to lay down the doctrine that the 
police when engaged under orders in dispersing a lawful meeting 
are not engaged in the "execution of their duty," and that 
therefore the members of the meeting may persist in holding it in 
spite of the opposition of the police. Whether this doctrine be 
absolutely sound is open to debate. It does not necessarily, 
however, mean more than that a man may exercise a right, 
even though he has to use a moderate amount of force, against a 
person who attempts to hinder the exercise of the right. But 
M'Clenaghan 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 right of public 
meeting. It is, however, doubtful whether M'Clenaghan v. 
Waters really supports even the doctrine that moderate resist- 
ance to the police is justifiable in order to prevent the dispersing 
of a lawful assembly. The case purports to follow Beatty v. 
Gillbanks, and therefore the Court cannot be taken as intentionally 
going 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 
Salvationists was a lawful assembly ? To this question, in the 
face of Beatty v. Gillbanks, but one reply was possible. This 
answer the Court gave : they determined " that in taking part 
" in a procession the appellants were doing only an act strictly 
" lawful, and the fact that that act was believed likely to cause 

1 9 Q. B. D. 308. 

2 As already pointed out, the principle maintained in Beatty v^ Gillbanks is 
itself open to some criticism. 3 The Times, 18th July 1882. 



QUESTIONS AS TO RIGHT OF PUBLIC MEETING 427 

" others to commit such as were unlawful, was no justification for 
" interfering with them." Whether the Court determined any- 
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 incon- 
sistent 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 
unjustifiable assault on those who oppose its exercise, is a fine 
one, and that many nice problems concerning the degree of 
resistance which the members of a lawful meeting may offer to 
persons who wish to break it up are at present unsolved. The 
next patriot or ruffian who kills or maims a policeman rather 
than compromise the right of public meeting will try what, from 
a speculative point of view, may 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 V 

THE MEANING OF AN "UNCONSTITUTIONAL" LAW 

THE expression " unconstitutional " has, as applied to a law, 
at least three different meanings varying according to the nature 
of the constitution with reference to which it is used : 

(i.) The expression as applied to an English Act of Parlia- 
ment, means simply that the Act in question, as, for instance, the 
Irish Church Act, 1869, is, in the opinion of the speaker, opposed 
to the spirit of the English constitution ; it cannot mean that 
the Act is either a breach of law or is void. 

(ii.) The expression as applied to a law passed by the 
French Parliament, means that the law, e.g. extending the 
length of the President's tenure of office, is opposed to the 
articles of the constitution. The expression does not neces- 
sarily 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, 



428 APPENDIX 

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 
and void. 



INDEX 



ACT OF SETTLEMENT, the, 27 ; the 
descent of the Crown under, 41, 
42 

Acts, the Copyright Act, 1886, an 
instance of extended power of 
Colonial legislation, 98 note; of 
Congress, 24th September 1789, 151 ; 
the Supreme Court of the United 
States and, 151, 153 ; the foundations 
of, 154 ; instances of unconstitutional, 
155 ; British North America Act, 
1867, 155, 156 note; Canadian Pro- 
vincial, 157 ; the Extradition, posi- 
tion of foreign criminals under, 211 
and note; the Alien, of 1848, 217 ; 
the Press Licensing Act, discontinued, 
245 ; the Mutiny, 1689, 274, pre- 
amble of, 275 ; the Army Act, 1881, 
275 ; the Revenue under, 288 ; re- 
lating to Taxation, 289 ; the National 
Debt and Local Loans Act, 1887, 
292 ; the Appropriation Act, 292 ; 
The Merchant Shipping Act, 1876, 
324 ; the Alien, 336 ; Foreign En- 
listment, 337 ; Extradition, 337 ; 
Naturalisation, 347 ; the Septennial, 
361 

Acts Local and Private, 47 

Acts of Indemnity, objects of, 47, 51 ; 
in connection with the Habeas Corpus 
Suspension Act, 218, 220-222 

Acts of Parliament, rules of the Privy 
Council under, 50 ; as opposed to 
moral or international law, 59 ; 
power of Parliament in regard to pre- 
ceding, 61 ; Railway Companies 
subject to, 90 ; practical importance 
of, 332 

Acts of Union, the (Great Britain), 
62 ; the fifth Article of, 63 ; as 
subject to repeal, 136 

Administrative Law, in England and 
France, 305 ; characteristics of in 
France, 310, 315 



Alien Act of 1848, power of the 
Ministry under, 217, 336 

Aliens, case of arrest of, 197, 210 ; 
position of, in England, 211 ; Act of 
1848 relating to, 217 ; position of in 
England, 336 

America, the Constitution of the United 
States of, 4 ; the Commentaries of 
Kent and Story on, 4 

American Commonwealth The, Bryce, 
129 note 

American Union, the treaty - making 
power in the hands of the President 
and Senate, 387 

Ancien Regime, the, literature under, 
240 and note 

Appeal to precedent, frequency of in 
English History, 18 

Appropriation Act, the, 292 ; payments 
under, 293 

Army, the, xmder the Rule of Law, 272 ; 
liability of soldiers as citizens, 264, 
276 ; the forces of, 272 ; in relation to 
English law, 272 ; the Standing Army 
and the Militia, 273 ; the soldier 
under civil and military law, 282 ; 
abolition of purchase in, 389 and note 

Army Act, the, 1881, 275, 278 note 

Arrest, redress for, 195 ; instance in 
case of aliens, 197, 210 ; maxims 
relating to, 197 ; under the Habeas 
Corpus Suspension Act, 219 

Article 75 of the Constitution of the 
Year VIII., De Tocqueville on, 316 ; 
abolition of, 318 

Aucoc on Droit Administratif, 306, 
319 note 

Austin, theory of Parliamentary sove- 
reignty, 67, 68, 71 

BACON, 16 ; on the judges and the 
prerogative, 327 ; introduction of 
the writ De non procedendo Rege 
inconsulto by, 328 



43 



INDEX 



Bagehot, 6 ; as a political theorist, 19 ; 
English Constitution by, 19 ; on 
powers legally exercised by the 
Crown, 390 

Belgium, Constitution of, in comparison 
with the English, 4, 84, 117 note, 
126 ; the Courts of, and Parlia- 
mentary enactments, 147 ; rights 
of individuals in, 184, 185, 188 ; 
articles of the Constitution, 191 ; 
personal freedom under, 193 ; the 
law of, in relation to the liberty of 
the Press, 223, 231 ; rules of the 
Constitution as to Right of Public 
Meeting, 254 

Bill of Rights, the, 27 

Blackstone, 5, 6 ; Constitutional law 
not denned by, 7 ; on the royal 
prerogative, 7 ; on moral law, 59 

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, 324 

Boeuf, M. F., Droit Administrate/, 50 
note 

Boutmy, Mons., division of the English 
constitutional law by, 6 note 

Bradlaugh, Charles, actions in connec- 
tion with, 32 

British North America Act, 1867, 155, 
156 note 

Bryce, Professor, 86 ; American Com- 
monwealth, by, 129, 145 note 

Burke, on the necessity of the study of 
the English Constitution, 1, 3 ; on 
the House of Commons, 80 ; opposi- 
tion of, to Democracy, 359 

Bute, Lord, 380 

CABINET, the English, subject to the 
will of the House of Commons, 146 ; 
position of, as affected by the 
survival of the Prerogative, 387 

Canada, the Dominion of, 93 ; instances 
of Veto on Acts passed in, 111 ; in 
relation to the Imperial Parliament, 
113 ; the Dominion of, an example 
of Federalism, 129, 142 note; the 
British North America Act, 1867, 
155 ; the Constitution of, 156, 156 
note; power of Dominion Govern- 
ment, 157 

Censorship of the Press, absence of in 
England, 232, 236 ; in France, 240, 
242, 250, 252 ; under the Star 
Chamber, the Commonwealth, and 
the Restoration, 244 ; discontinuance 



of the Licensing Act, 245, 247 ; the 
contrast between England and France 
as to, 252 

Censure, the Vote of, action of the 
Ministry under, 362, 372 

Charles I., 16 ; the personal and the 
legal will of the King, 16 

Charles II., Rhode Island under charter 
of, 154 

Chatham, Lord, attempt of, to legislate 
by Proclamation, 51, 358 

Church, the, and the Act of Union, 
63 ; the Irish Church Act, 1869, 
63 ; position of the clergy with 
regard to the Courts, 285 note 

Citizens, duty of, in cases of riot, 
266 

Clergy, the, as subject to the Courts, 
285 note 

Coalition, the, Pitt and, 375, 376 

Coercion Act (Ireland), 1881, power of 
the Irish executive under, 216 

Coke, Sir Edward, 16, 18 ; on the 
power and jurisdiction of Parliament, 
39 ; on private rights and parlia- 
mentary authority, 46 

Colonial Acts, the sanction of the 
Crown to, 98 ; limit to powers of, 

98, 112 

Colonial Bills, the right of Veto, as 

exercised by a Governor, 109 
" Colonial Laws Act, 1865," the text of, 

99, 104 

Colonial legislatures, and the right of 
Veto, 107, 109, and notes, 110, 
111 

Colonial Parliaments, limit to powers 
of, 97 note, 98 ; as " constituent 
bodies," 103 ; controlled by the 
Imperial Parliament, 105 ; the liberty 
of, in relation to Imperial Sove- 
reignty, 106 ; power of the Governor 
as to assent to Bills, 109 

Colonies, the, Act limiting right of 
Parliament to tax, 1778, 63, 77; 
power of as to Treaties, 112 ; policy 
of the Imperial Government toward, 
112 

Colonies, Laws Relating to, Tarring, 
102 note 

Commitment for contempt, instance of 
Parliamentary, 54, 56 note 

Common, or " unwritten " law, 27 

Commons, the House of, resolutions of, 
not law, 52 ; Mr. Justice Stephen 
on, 53 ; powers of, 54 

Comptroller and Auditor Genernl, posi- 
tion and powers of, 294 ; instance of 
the power in 1811, 296 



INDEX 



Confederation, the Articles of, 15 

Congress, Acts of, 140 ; powers of, 
compared with powers of "English 
railway companies, 140 ; limited 
power of, 142 ; Act of 24th Septem- 
ber 1789, 151 ; the Supreme Courts 
of the United States and, 151, 
153 

Conservatism, tendency of Federalism 
to, 162 

Consolidated Fund, the, 292 

Constitution, the, the division of, 
between history and law, 22 ; rights 
part of the law of, 25 ; rules belong- 
ing to the conventions of, 26 ; the 
law of the, three principles of the 
study of, 34 ; Federal States subject 
to, 135, 137 note; the fifth Article 
of the United States, 138 ; Federal 
Governments under, 138 and note; 
Federal, legislature under, 140, 142, 
158 

Constitution, the, the Law of, and the 
Conventions of, 341 ; the legal and 
the conventional elements in, 342 ' 
based on the law of the land, 
393 

Constitution of France, 114 ; De 
Tocqueville on, 115 ; rigidity of, 
117 ; revolutionary instances in, 
124 ; the existing, 125 

Constitution of the German Empire, 
138 note 

Constitution of the United States, the 
Articles of, 4 ; in comparison with 
the English, 4, 129 ; Kent's and 
Story's work on, 5 ; preamble of, 
134 ; the judges in relation to, 
148 ; in comparison with the 
Canadian, 156 

Constitutional freedom, confusion as to 
the origin of, 17 

Constitutional historians, in con- 
trast with legal constitutionalists, 
15 

Constitutional history, research in, in 
relation to modern constitutional 
law, 14 

Constitutional Law, the true nature of, 
1 ; modern origin of the term, 6 ; 
Mons. Boutmy's division of the 
English, 6 note ; sources of work 
in, 6 ; as considered by Blackstone, 
7 ; study of the constitutional his- 
torians in connection with, 11 ; 
antiquarian study unnecessary to 
the study of, 14 ; indefiniteness of, 
21 ; character of rules of, 23 ; rules 
of, as enforced, 23 ; rules as con- 



ventions, 24 ; the legal and con- 
ventional elements of, 27, 28 ; 
importance of to the lawyer, 30 ; 
different character of rules of, 31 ; 
in general the result of ordinary 
laws, 182 

Constitutional laws, 83 ; no legal dis- 
tinction between, and other laws, 
86 

Constitutional Maxims, the observance 
of, 378 

Constitutional Monarchy, of Louis 
Philippe, 114 

Constitutional Understandings, 342 ; 
Freeman's Growth of the English 
Constitution, quoted as to, 342 ; 
examples of, 344 ; common charac- 
teristics of, 346 ; the aim of, 352 ; 
not rules enforced by the Courts, 
362 ; how disobeyed, 363 ; vari- 
ability of, 377 

Constitutionalism, comparison neces- 
sary to the study of, 192 

Constitutionalists, legal, in con- 
trast 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 note ; of England, con- 
trasted with that of France, 4, 115, 
184 ; flexible, 118 ; rigid, 119 
note, 120, 162 ; the formation of 
foreign, 185 ; of the United States, 
187 and note ; main provisions of 
the English, 191 ; rigidity of 
the French, Appendix, Note I., 
395-402 

Constitutions, of Belgium, in compari- 
son with the English, 4 ; in contrast 
with the English, 85 ; flexible and 
rigid, 86, 117 note 

Constitutions, the Swiss and the " guar- 
anteed " rights of, 144 

Contracts, law in relation to, 21 

Conventions of the Constitution, the 
lawyer in relation to, 30 ; and the 
Ministry, 30 ; Ministers under, 300 ; 
and Law of the Constitution, 341; 
nature of Conventions, 341 ; and 
exercises of the prerogative, 347 ; 
and Parliamentary privilege, 351 ; 
those strictly obeyed, 364 ; how 
obedience ensured to, 367 ; obedience 
to, enforced by law, 368 

Copyright Act, the, 1886, an instance 



432 



INDEX 



of extended power of Colonial legis- 
latures, 98 note 

Corporations, as non - sovereign law- 
making bodies, 89 ; Municipal, 141 
note 

Courts, the, and Acts of Parliament, 
38 ; and Parliamentary resolutions, 
52 ; Mr. Justice Stephen on, 53, 
57 ; and Parliamentary authority, 
59, 60 ; and the electors, 70 ; 
and the bye-laws of Railway Com- 
panies, 91 ; and Colonial Acts, 
103 ; under the Imperial Parlia- 
ment and under Federalism, 146 ; 
the authority of, 147 ; the Belgian 
and French, 147 ; of the United 
States, 148, 149, 152 ; Canadian, 
156 ; Swiss, 158 ; of the United 
States, 163, 164 ; position of officials 
under, 181 ; as the foundation of the 
English Constitution, 184 ; and the 
Habeas Corpus Act, 203, 206, 208, 
209, 215 ; and the Press, 235 ; and 
Courts - martial, 277 ; and military 
law, 282 ; and State matters in 
France, 311, 313 ; and Droit Ad- 
ministratif, 321 ; English Crown 
servants as subject to, 323 ; and 
Parliament, 334 and note 

Courts, Federal, 142 

Courts of India, the, and the Acts of 
the Legislative Council, 94, 96 ; 
power of as to Acts passed by the 
Council, 97 

Courts of Justice, Blackstone's state- 
ment as to Royal power in connec- 
tion with, 9 

Courts-martial, and the Civil Courts, 
277, 283 

Criticism, fair and libellous, 227 

Crown, the,' theory of the prerogative 
of 1785, 9 ; unreality of expressions 
in connection with, 11 ; and re- 
sponsibility of Ministers, 25 ; law 
regulating the descent of, 27 ; the 
descent of, fixed under the Act of 
Settlement, 41 ; legislation by pro- 
clamations under, 48 ; in relation to 
proclamations, 51 ; sanction of to 
Colonial Acts, 98 ; and the right of 
Veto, 107 and note; hereditary re- 
venue of, 288 ; responsibility of 
Ministers as to Acts of, 301 ; pre- 
rogative of, as anterior to the power 
of the House of Commons, 349 ; 
position of in case of a conflict be- 
tween the Lords and the Commons, 
355 ; the personal influence of, un- 
certain, 384 ; the survival of the 



prerogatives of, 386 ; Bagehot on 
powers legally exercised by, 390 
Crown servants in England, in contrast 
with French officials, 322 ; under the 
Courts, 323 

DAVIS, American Constitutions, 165 
note 

De Blosseville, 304 

D'Eon, the Chevalier, 179 

De Lolme, on the limit of English Par- 
liamentary power, 41, 82 

De Toqueville, on the English Consti- 
tution, 21 ; on the English Parlia- 
ment, 83, 84 ; on the Constitution 
of France, 115, 116 note, 168 ; on 
the influence of law in Switzerland 
and England, 172 ; on Droit Ad- 
ministratif and the institutions of 
the Union, 304 and note; on Art. 
75, Year VIII. of the Republic, 316 

Declaration of the Rights of Man, free- 
dom of discussion and liberty of 
the press under, 223 

"Declaration of the State of Siege," 
the, 265 ; French law as to, 269 ; 
under the Republic of France, 270 

Dentists' Act, the, 136 

Despotism, instances of, 180 and note 

Discussion, the Right to Freedom of, 
223 ; under foreign constitutions, 
223 ; under English law, 224, 231 
and note 

Dissolution of Parliament, the, rules as 
to, 356 ; of 1784 and 1834, 357 ; 
right of, in relation to Parliamentary 
sovereignty, 360 ; the right of, as the 
right of appeal to the people, 361, 
379 

Documents, Public, necessary signa- 
tures to, 301 

Dodd, Dr., execution of, 386 

Droit Administratif, M. F. Bceuf, 50 
note, 249 ; contrasted with the Rule 
of Law, 303 ; the term, 303 ; De 
Tocqueville on, and the institutions 
of the Union, 304 and note ; defini- 
tion of, 305 ; position of officials 
and others under, 307, 317 ; lead- 
ing principles of, 307 ; Tribunal 
des Conflits, 314 ; effect of posi- 
tion of judges, 321 ; at variance 
with modern constitutional ideas in 
England, 325 ; in comparison with 
ideas in England in the sixteenth 
and seventeenth centuries, 326, 
329 

Dubs, Dr., on the Swiss Federal Court, 
159 



INDEX 



433 



EDWARD VI., repeal of the Statute of 
Proclamations in the reign of, 
49 

Electorate, the, as the political power 
of the State, 352, 353 ; in relation 
to dissolution of Parliament, 361 

Electors, position of, in the United 
States, 29 ; Parliamentary, position 
of, 56 ; the Courts and, 70 ; power 
of, politically, 72 

Ellenborough, Lord, on the Press, in 
England, 232 

England, the King of, Blackstone on 
the power of, 7, 9 

England, De Tocqueville on the respect 
of law in, as compared with Switzer- 
land in 1836, 172 ; the Press laws 
of, 225, 232, 235, 237 ; law of as to 
right of Public Meeting, 254 

English Cabinet, the, 8 

English Constitution, the, Burke and 
Hallam on the study of, 1 ; past 
views and ideas of, 2 ; modern view 
and study of, 3 ; difficulties con- 
nected with the study of, 4, 6 ; Paley 
quoted, on actual state and theory 
of government, 9 note ; De Tocque- 
ville on, 21, 83 ; unwritten character 
of, 85 ; ideas of the Royal pre- 
rogative in the seventeenth century, 
329 

English Constitutional law, 6 ; Mons. 
Boutmy's division of, 6 note; sources 
of work in, 6 ; as treated by Black- 
stone, 7, 136 

English Parliament, the, characteristic 
of, 331, 332 note ; the appointment 
of the Prime Minister, 332 

English Prime Minister, as head of the 
English Cabinet, 8, 333 

Enlistment, power of the Civil Courts 
as to, 283 and notes ; the Foreign 
Act, 337 

Essays in Jurisprudence and Ethics, 
Pollock, 38 note 

Etudes de Droit Constitutionnel, Mons. 
Boutmy, 6 note 

Extradition Acts, foreign criminals 
under, 211 and note; powers under, 
337 

Eyre, Governor, and the Jamaica re- 
bellion, 1866, 226 

FEDERAL Assemblies, the Swiss, 57 
Federal Constitution, legislature under, 

140, 142, 158 

Federal Government, (instances of, 129 ; 
aims of, 131 : necessary condition to 
the formation of, 131 and notes 



Federal States, division of Powers in, 
Appendix, Note II., 402-405 

Federalism, and Parliamentary sove- 
reignty, 129 and note; the founda- 
tions of, 131 ; the sentiment of, 
132 ; the aim of, 133 ; of the United 
States, 134 ; the leading character- 
istics of, 134 ; in relation to Consti- 
tution, 135 ; sovereignty under, 139 ; 
distribution of powers under, 141 ; 
limitations under, 142 and note, 144 ; 
in comparison with Unitarian govern- 
ment, 145 and note ; the Law Courts 
under, 146 ; the meaning of, 147 ; 
individual character of Swiss, 158 ; 
in comparison with Parliamentary 
sovereignty, 160 ; weakness of Swiss, 
160 note, 168 ; and Conservatism, 
162 ; the legal spirit of, 163 ; success 
of in the United States, 167 

" Flexible " Constitutions, the English 
an example of, 1-18, 119 note 

Foreign Enlistment Act, powers of the 
Ministry under, 337 

Foreign Legislatures, non - sovereign, 
113 

Fox, support of Parliamentary sove- 
reignty by, 358 

France, Constitution of, in comparison 
with the English, 4 ; De Tocqueville 
on the constitution of, 115 ; the Re- 
public of 1848, 116 ; the authority 
of the present Republic, 116 ; the 
Coup d'etat of 1851, 121 ; the Re- 
volutionary constitutions of, 124 ; 
the existing constitution of, 125 ; 
the Courts of, in relation to the 
National Assembly, 147 ; lawless- 
ness in past administrations, 179, 
and note; the Press law of, 236, 237 
note ; literature under the Ancien 
Regime, 240, under the Revolution, 
240, under the First Empire and 
the Republic, 241, 242 note; the 
law of as to the " Declaration of the 
State of Siege," 269 ; Droit Adminis- 
tratif in, 303 ; the " Separation of 
powers," 309, 313, 322 ; limit of 
jurisdiction of law courts, 311 ; 
official character of the "tribunals," 
312 and note ; the Tribunal des Con- 
flits, 314 ; officials under Art. 75 of 
Constitution of Year VIII., 316 ; 
the National Assembly, 334 

Frederick the Great, 78 

Freeman, E. A., 6, 16 ; Growth of the 
English Constitution, by, 12, quoted 
on constitutional understandings, 
342 ; on appeal to precedent, 18 



2F 



434 



INDEX 



French Constitutions, Eigidity of, 

Appendix, Note I., 395-402 
French National Assembly of 1871, 

75 
French Republic, the, officials under 

Art. 75, Year VIII., 316 
Fundamental laws, and constitutional 

laws, 84, 135 and note 

GARDINEK, Mr., 16 ; on Bacon's writ 
De non procedendo Rege inconsulto, 
328 

George II., 386 

George III., 9 ; public expenses as 
charged in the reign of, 291 ; dis- 
solution of Parliament by, as a con- 
stitutional act, 357 ; view of Parlia- 
mentary sovereignty, 358 ; exercise 
of personal will in matters of policy, 
385 

German Empire, the, Constitution of, 
138 note; an example of federal 
government, 129 

Gneist, 82 

Goldsmith's Citizen of the World, 2 
note 

Gordon Riots, the, 1780, 268 

Government, position of publishers of 
libel on, 228 ; in relation to the 
Press, 232 ; and the Right of Public 
Meeting, 259 

Grant, General, third candidature of, 
as President, 29 

Grenville, Lord, action of, in opposition 
to Parliament, 1811, 296 

Growth of the English Constitution, 
Freeman, in relation to constitutional 
law, 12 ; quoted, 17 

"Guaranteed rights," of the Swiss 
Constitution, 144 

Habeas Corpus Acts, the, 27, 184, 187 ; 
suspension of, in comparison with 
foreign " suspension of constitutional 
guarantees," 189, 191; the Writ of, 
200 ; the issue of the Writ of, 202 ; 
power of the Courts as to, 203 ; the 
Acts of Charles II. and George III., 

203 ; rights of the individual under, 

204 ; provisions of, 205 ; 207 ; the 
authority of the judges under Writ 
of, 208 ; case of aliens under, 210 ; 
the suspension of, 215 ; charge of 
High Treason under, 215 ; the Sus- 
pension Act, as an Annual Act, 216 ; 
the Ministry and, 216 ; and Act of 
Indemnity, 218, 222 ; position of 
officials under, 218 ; arrest under, 
219 



Hallam, Middle Ages, 2 note 

Hallam, 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, 366 

Hearn, Professor, 6 ; Government of 
England referred to by, 18, 26, 
355 note; as a political theorist, 
19 

Henry VIII., the Statute of Proclama- 
tions in the reign of, 48 

High Treason, charges of, under the 
Habeas Corpus Acts, 215 ; under 
the Coercion Act (Ireland), 1881, 
216 

Historians, compared with lawyers, 16 

Holland's Jurisprudence, 23 note 

House of Commons, the, Burke on, 80 ; 
powers of in relation to the Ministry, 
146 ; and the Licensing Act, 245 ; 
in relation to the House of Lords, 
381 

House of Lords, in relation to the 
House of Commons, 354, 381 ; in- 
stances of opposition to the Com- 
mons, 381 

Hume, on Sovereign power, 73 

IMPEACHMENT, 365 ; disuse of, 377 

Imperial Government, the, right of to 
veto Colonial Bills, 110 ; action of, 
toward the Colonies, 112 

Income Tax, the, Act as to, annual, 
290 and note 

Indemnity, Acts of, objects of, 47 ; 
an instance of Parliamentary power, 
51 ; and the Habeas Corpus Sus- 
pension Act, 218, 220, 221; officials 
under the Act of 1801, 221, 222 ; 
the Ministry under Act of, 337 

India, British, the Legislative Council 
subordinate to the British Parlia- 
ment, 94 ; the Acts of the Council 
and the Courts of India, 95, 96, 
97 

Inland Revenue Office, the daily routine 
of, as to receipts, 291 

International law, Acts of Parliament 
and, 59 

Ireland, and the Act of Union relating 
to the United Church, 63 ; the Co- 
ercion Act of 1881, 216 ; the Preven- 
tion of Crime Act, 1882, 217 

Irish Church Act, 1869, the, 63, 163 

JAMAICA, the rebellion of 1866, 222 



INDEX 



435 



James II., as an instance of the limit 
of sovereign power, 74 

Jefferson, President, 165 

Judges, English, in relation to the Im- 
perial Parliament, 146 ; Belgian and 
French, 147 ; of the United States 
in relation to the Constitution, 148, 
166 ; and the Writ of Habeas Corpus, 
208, 209 ; position of in the seven- 
teenth century, 21 4, 21 5 note; instance 
of the power of in the case of Wolfe 
Tone, 271 ; salaries of under 
George III., 291 ; position of, in 
France, as to matters of the State, 
311 ; effect of Droit Administratif 
on position of, 321 ; in relation to 
English Acts of Parliament, 332 ; in 
relation to the Houses of Parliament, 
334 ; and Parliamentary laws, 338 

KENT, Commentaries of, on the Con- 
stitution of the United States, 4 ; 
lines of work, 5 

King, the, Blackstone on the authority 
of, 7, 9 ; ordinances and proclama- 
tions of, 48 

" King in Parliament," the, 37, 352 

LANDESOEMEINDEN of Uri, the, 14 

Law, as the basis of English civilisa- 
tion, 18 

Law, constitutional, 21 ; rules of, 23 ; 
an "unconstitutional," meaning of, 
Appendix, Note V., 427, 428 

Law of the Constitution, position of a 
Ministry in regard to, 30 ; the three 
principles of, 34 ; and Conventions 
of the Constitution, 341 

Law Courts, and the powers of the 
Premier, 20 ; and Acts of Parlia- 
ment, 38 

Laws, and contracts, 21 ; constitutional 
and fundamental, 84 ; fundamental, 
135 and note 

Lawyers, in comparison with historians, 
16 ; and the rules of constitutional 
law, 30 

Legal authority, liable to prosecution 
in cases of excess, 33 

Legal constitutionalists, in contrast 
with constitutional historians, 15 

Legal rules of constitutional law, 
30 ; the Peers and Commons under, 
31 

Legal sovereignty, limit of, 75 ; and 
political sovereignty, the distinction 
between, 352 

Legalism, Federalism as, 163 

Legislation, judicial, and the supremacy 



of Parliament, 58 ; safeguards against 
unconstitutional, 122 
Legislative authority, of Parliament, 
48, 66, 67 ; in France, 50 and note 

Legislative bodies, limited power of in 
the United States, 127 

Legislatures, Foreign non-sovereign, 
113 

Libel, the law of, 225 ; position of 
individuals under, 225 - 227 ; as to 
Government, 228 ; blasphemy under, 
229 ; in England, 230 ; under 
the Belgian Constitution, 231 

Liberty of individuals, in England, 184, 
188 ; in Belgium, 184, 188 

Liberty of the Press, foreign and Eng- 
lish ideas as to, 224 ; the law of 
libel, 225, 236 ; control of, under 
French Governments, 240 

Licensing Act, the, of the Press, 245 ; 
reasons for the discontinuance of, 
246, 252 

Limitations, under Federalism, 141, 
144 

Limitations on sovereignty of Parlia- 
ment, alleged, 58, 59 note, 66 ; in 
the Colonies, 63 ; Todd on, 64 and 
note; actual 67, 72 ; external, 74, 78 ; 
internal, 76, 78 ; Leslie Stephen on, 
77,80 

Literature, in England and France, 
238 ; penalties connected with the 
production of forbidden works, 239 ; 
under the Ancien Regime, 240 and 
note ; under the Republic of 1848, 
242 ; license and punishment under 
the Star Chamber, 244 

Local and Private Acts, 47 

Louis XIV. , an instance of the limit of 
sovereign power, 74, 76 

Louis XV., 179 

Louis XVI., 179 

Louis Philippe, the Constitutional mon- 
archy of, 114, 120 

Lyndhurst, Lord, in opposition to 
measures of the House of Commons, 
381 

MACAULAT, on the Press Licensing Act, 
246 

Macclesfield, Lord, 366 

Mansfield, Lord, on the liberty of the 
Press, 232 

Martial law, 262 ; liability of soldiers 
as citizens, 264 ; and the " Declara- 
tion of the State of Siege," 265 ; how 
recognised in England, 266 ; the 
proclamation of, 269 ; trial of Wolfe 
Tone, 271 



436 



INDEX 



Maxims, belonging to the Conventions 
of the Constitution, 26 and note ; 
not "laws," 27 ; constitutional, 378 

May, Sir Thomas, as a constitutional 
historian, 12 

Melville, Lord, 366 

Merchant Shipping Act, 1876, the, 324 

Militia, the, 272 ; in comparison with 
the, Standing Army, 273; as a con- 
stitutional force, 284 

Mill, quoted, on political institutions, 
183 

Ministers, responsibility of, under the 
Rule of Law, 300 ; as subject to the 
Rule of Law, 302 

Ministry, the, position of under defeat, 
30 ; power of regarding the Habeas 
Corpus Act, 216 ; powers of, under 
the Alien Act, 1848, 217 ; action of 
in case of tumult or invasion, 337 ; 
dismissal of, by the King, 357, 359 ; 
resignation of under Vote of Censure, 
362, 372 ; and the Mutiny Act, 
375 ; the withdrawal of confidence 
in, 379 

Moral law, Acts of Parliament in rela- 
tion to, 59 ; Blackstone on, 59 ; and 
libel, 229 

Moral Philosophy, Paley, quoted, 9 
note 

Morley's Life of Diderot, 178 

Montesquieu, Esprit des Lois referred 
to, 309, 314 

Municipal corporations, 141 note 

Mutiny Act, the, 1689, preamble of, 
275 ; an annual Act, 284 ; in 
relation to the annual meeting of 
Parliament, 369, 375 

NAPOLEON, Louis, 78, 121 

National Debt and Local Loans Act, 
1887, 292 ; the interest on, 292 

National Revenue, the, 288 

Naturalisation Act, 1870, the, 347 

Newcastle, the Duke of, 380 

Newspapers, position of publishers and 
writers, 233 ; oifences treated by the 
ordinary Courts, 235 and note; under 
the First Empire, 241 ; under the 
Republic of 1848, 242 

Non-sovereign law-making bodies, in 
contrast with legislative bodies, 82 ; 
characteristics of, 86; meaning of the 
term, 87 and note; the Indian Council, 
94 ; the Victorian Parliament, 104 ; 
Foreign, 1 1 3 ; the French Chamber, 1 1 7 

ODGERS, Libel and Slander, quoted, 
225, 227 



Officials, State, position of under the 
Habeas Corpus Suspension Act, 218 ; 
protected by Act of Indemnity, 220, 
221 ; limited protection of, under 
the Act of 1801, 221 ; position of 
under ordinary law, 263 ; position 
of, under Droit Administratif, 306, 
307, 319 ; French in contrast with 
English Crown, 322 ; appointment 
of the Prime Minister and the 
Cabinet of England, 333 

Ordinances, Royal, 48 

PALEY'S Moral Philosophy, the actual 
state and theory of Government 
considered in, 9 note 

Palmerston, Lord, action of, under 
vote of censure, 362 

Parliament, under the legal rules of 
constitutional law, 31 ; the constitu- 
tion of, 37 ; law-making power of, 
38 ; Acts of, and the Law Courts, 
38 ; unlimited 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 ; rules 
under Acts of, 50 and note ; the 
Courts in relation to the Resolutions 
of, 52 ; the legislative authority of, 
58 ; and preceding Acts, 61 ; and 
the Acts of Union, 62 ; and the 
Colonies, 77 ; power of to change 
any law, 83 ; other bodies in relation 
to, 86 ; the Legislative Council of 
India subject to, 94 ; the Colonial, 
of Victoria, 97 ; powers of, 98 ; the 
sanction of the Crown in Acts of, 

98 ; the " Colonial Laws Act, 1865," 

99 ; valid and invalid Acts, 102 ; 
the legal supremacy of, as to Colonial 
legislation, 106 ; the Imperial, com- 
pared with the National Assembly of 
France, 116, the Courts in relation 
to, 146 ; the Ministry subject to the 
will of the House of Commons, 146 ; 
rules as to the dissolution of, 356 ; 
the dissolutions of 1784 and 1834, 
357 ; non-assembly of, a breach of 
constitutional practice, 369 ; the 
Mutiny Act in relation to the annual 
meeting of, 369 ; the re/usal of sup- 
plies, 376 note ; the Victorian, con- 
flict between the Upper and Lower 
Houses, 1878 and 1879, 383 

Parliamentary authority, instanced in 
the Septennial Act, 44, 45 ; and the 
power of the Courts, 59, 60 

Parliamentary power, exemplified by 



INDEX 



437 



Acts of Indemnity, 51, 54 ; in rela- 
tion to the Law Courts, 54 ; electors 
in connection with, 56 

Parliamentary privilege, and constitu- 
tional conventions, 351 

Parliamentary procedure, as conven- 
tional law, 28 

Parliamentary sovereignty, the nature 
of, 37 ; recognised by the law, 39 ; 
and the Act of Settlement, 41 ; the 
Septennial Act a proof of, 45 ; and 
the Law Courts, 58 ; limitations on, 
58; the Irish Church Act, 1869, 
63 ; limitation of in respect to 
the Colonies, 63, 65 and 'note; 
Austin on, 67 ; political and legal 
sense of, 69 ; external limit on exer- 
cise of, 75, 78 ; internal limit on, 
76, 78 ; the two limitations of, 80 ; 
characteristicsjof, 82, 84 ; De Tocque- 
ville (on, 83, 84 ; and Federalism, 
129 and note; in comparison with 
Federalism, 160 ; and the Rule of 
Law, 331, 335 ; George the Third's 
view of, 358 ; relation of the right 
of dissolution to, 360 

Peel, and the Dissolution of 1834, 357 

Peers, the House of, resolutions of, not 
law, 52 ; powers of, 54 ; the creation 
of new, in case of conflict of the Lords 
and Commons, 355 

Personal Freedom, the Eight to, 193 ; 
under the Belgian Constitution, 193 ; 
as secured in England, 193 ; redress 
for arrest, 195 ; wrongful imprison- 
' ment, 199 ; the Habeas Corpus Acts, 
200 ; the securities for, 206 

Pitt, and the Dissolution of 1784, 357 ; 
the Vote of Censure, 1783, 372; 
and the Coalition, 375, 376 

Plouard, Les Constitutions Franchises, 
quoted, 117 

Political Sovereignty, and Legal Sove- 
reignty, the distinction between, 352 

Political theorists, Bagehot, and Pro- 
fessor Hearn, as, 19 ; questions for, 20 

Pollock's Essays in Jurisprudence and 
Ethics, 38 note ; Science of Case 
Law referred to, 57 

Pope, the, in relation to Reforms, 76 

Precedent, frequency of appeal to, in 
English history, 18 

Premier, the, and the Courts of Law, 20 
Prerogative, of the Crown, 60 ; the 
term, 348 ; as anterior to the power 
of the House of Commons, 349 ; sur- 
vival of, 386 ; in relation to the 
Cabinet, 387 ; as increasing the 
authority of the Commons, 388 



President of the United States, the, 
election of, 28, 29, 167 ; position of 
the Federal Judiciary in connection 
with, 146 

Press, the, Prevention of Crime Act 
(Ireland), 1882, in relation to, 217 ; 
liberty of, under the Declaration of 
the Rights of Man, 223 ; Belgian 
law as to, 223 ; the law of libel, 
225 ; the Government in relation to, 
232 ; present position in England, 
232 ; absence of censorship in 
England, 232 ; the Courts and, 235 ; 
under the Commonwealth, 235 note; 
the law of in France, in comparison 
with that of England, 237 ; under 
the laws of France, 239 ; in England 
in the sixteenth and seventeenth cen- 
turies, 244 ; of England, under the 
Star Chamber, 244 ; law of England 
and of France in contrast, 245, 248 ; 
end of the Licensing Act, 245 

Prevention of Crime Act (Ireland), 
1882, 217; powers of the Irish 
Executive under, 217 

Priestley, opinion of, on the Septennial 
Act, 45 

Prime Minister, the,as head of the English 
Cabinet, 8 ; the appointment of, 333 

Printing-presses, the control of the 
Star Chamber over, 244 ; the Uni- 
versity, 244 

Private Rights, Parliament in regard 
to, 46 ; Coke on, 46 

Privy Council, the, power of, in rela- 
tion to Acts of Parliament, 50 and 
note 

Proclamations, the Statute of, 48 ; re- 
peal of, 49 ; Royal, in relation to 
common law, 51, modern instances 
of, 51 and note 

Public Accounts Committee, the, 297 

Public Documents, the formality of 
signing, 301 

Public Meeting, Right of, questions 
connected with, 32, 254 ; in Belgium 
and in England, 254 ; the Courts of 
England in relation to, 255 ; unlaw- 
ful assembly under, 256, 257 ; de- 
cision in case of, 259 ; power of the 
Government as to, 259 ; conditions 
as to, 260, 261 ; Appendix, Note 
IV, 413-428 

Publishers of libel, position of, 227 ; 
on Government, 228 

QUEEN, the, 8 ; and the Ministry, 350, 
378 ; the personal will and influence 
of, 384, 386 



438 



INDEX 



RAILWAY COMPANIES, as non-sovereign 
law-making bodies, 89 ; power of, to 
make bye-laws, 90 ; functions of the 
courts with regard to, 91 ; instances 
of illegal bye-laws, 92 

Reeves, author of History of English 
Law, trial of, 348 

Reform Bill, the, of 1832, 122 

Reform Riots, the, of 1831, 267 

Religion, the law of libel in relation 
to, 229 

Representative government, causes 
leading to the foundation of, 79 

Republic, the, of France, 116 ; posi- 
tion of the President, 116 ; the ex- 
isting constitutions of, 125 ; Art. 75 
of the Year VIII. , 316 

Republican electors, in the United 
States, 29 

Resignation of Ministry, how enforced, 
373 

Resolutions of Parliament, Mr. Justice 
Stephen on, 53 

Revenue, the, 287 ; source of the 
public, 287 ; hereditary, of the 
Crown, 288 and note ; under per- 
manent and annual Acts, 289 ; the 
authority for expenditure, 290, 292 ; 
the "Consolidated Fund," 292; 
security for the proper expenditure 
of, 293, 294 ; position of the Comp- 
troller-General with regard to, 295 ; 
Lord Grenville in opposition to 
the Parliament in matter of, 1811, 
296 ; the Public Accounts Com- 
mittee, 297 ; main features of con- 
trol and audit, 298 note; as gov- 
erned by law, 299 

Rhode Island, under charter Charles 
II., 155 

Right of Public Meeting, the, questions 
connected with, Appendix, Note IV., 
413-428 

Right of Self-defence, the, Appendix, 
Note III., 405-413 

" Rigid " Constitutions, Belgium and 
France, examples of, 119 and note, 
120, 137, 162 

Rigidity of French Constitutions, Ap- 
pendix, Note I., 395-402 

Riot Act, the, substance of, 267 

Riots, duties of citizens in cases of, 
266 ; the Reform, of 1831, 261 ; the 
Gordon, 1780, 268 

Royal Prerogative, ideas as to in the 
seventeenth century, 329 

Royal Proclamations, in relation to 
common law and Acts of Parliament, 
51 ; modern instances of, 51 and note 



Rule of Law, De Tocqueville's compari- 
son of Switzerland and England 
under, 172 ; three meanings of, 
175 ; personal security under, 175 ; 
Continental authority under, 176, 
177 and note ; as a characteristic of 
England, 180 ; England and France 
in contrast, 182 ; in the United 
States, 187 ; equality under, 190 ; 
and the leading provisions of Con- 
stitution, 191 ; Right to Personal 
Freedom, 193-222 ; Right to Freedom 
of Discussion, 223 - 253 ; Right of 
Public Meeting, 254-261; Martial 
Law, 262-271 ; the Army, 272-286 ; 
the Revenue, 287-299J; responsibility 
of Ministers, 300-302 ; the nature 
and applications of, 171-192 ; Minis- 
ters as subject to, 302 ; in contrast 
with Droit Administratif, 303, 
383-330 ; relations between Par- 
liamentary sovereignty and, 331- 
335 ; tendency of foreign assem- 
blies to support, 334 ; Parliamentary 
sovereignty and, 331-338 

Rules, legal, of Constitutional law, 30 ; 
as enforced, 23 ; as conventions, 24, 
26 

SCOTCH UNIVERSITIES, in relation to 
the Act of Union, 62 

Seals, necessary to the completion of 
Acts, 301 

Secretary of State, the, position of 
under ordinary law, 263 

Self-defence, the Right of, Appendix, 
Note III., 405-413 

Septennial Act, the, 42 ; Hallam and 
Lord Stanhope on, 43 ; opinion of 
Priestley and others, on, 45 ; a proof 
of Parliamentary sovereignty, 45, 71, 
361 

Slavery, the war of secession in rela- 
tion to the abolition of, 78 

Soldiers, liability of as citizens, 264 ; 
under the Mutiny Act, 275 ; rights 
of as citizens, 276 ; civil liability of, 
277 ; under charges for crime, 278 
and note; Mr. Justice Stephen 
on, in relation to their officers, 
280 ; liabilities under military law, 
282 

Sommersett, James, case of, referred 
to, 207 

Sovereign power, Hume on, 73 ; limits 
to, in the case of absolute rulers, 74, 
77 ; illustrations of the limit of, 74 ; 
under Federalism, 139 

Sovereignty, the limit of legal, 75 ; 



INDEX 



439 



legal of the United States, 139 ; 
legal and political, the distinction 
between, 352 

Sovereignty of Parliament, 37-168, 58 
note; in relation to Colonial Acts, 
99, 101, 110, 392 note 

Standing Army, the, of England, in 
comparison with the Militia, 273 ; 
the institution of, 273 ; legislation 
as to, 276 

Stanhope, Lord, on the Septennial Act, 
43 

Star Chamber, the, control of printing- 
presses held by, 244 ; abolition of, 
1641, 251 

State officials, position of, under the 
Habeas Corpus Suspension Act, 218, 
220 ; under the Indemnity Act of 
1801, 221, 222 

Stationers' Company, the, formation of, 
244 

Statute, or " written law," 27 

Statute of Proclamations, legislation 
under, 48 ; repeal of, 49 

Stephen's Commentaries, 8 

Stephen, Mr. Justice, on the resolutions 
of the Commons and the judgment 
of the Courts, 53 ; on the relation of 
soldiers to their officers, 280 

Stephen, Leslie, on the limitations of 
Parliament, 77 ; Life ofFawcett, 389 
note 

Story, Commentaries of, on the Con- 
stitution of the United States, 4 ; 
lines of work, 5 

Stubbs, Dr. (Bishop of Oxford), as a 
constitutional historian, 12, 16 

Supplies, the refusal of, 376 note, 
377 

Supreme Court, the, of the United 
States, formation and power of, 149, 
151 ; case of Marbury v. Madison 
decided by, 155 ; case .of Munn v. 
Illinois, 165 ; alleged weakness of, 
165 and note; source of power of, 
166 

Swiss Confederation, the, 70 note; an 
example of Federalism, 129, 158 

Swiss Constitution, the, " guaranteed " 
rights of, 144 

Switzerland, the electorate of, 57 ; the 
Federal Assembly in relation to the 
Courts, 158, 164 ; weakness of 
Federalism, 161, 168 ; De Tocque- 
ville's comparison of law of, with 
that of England in 1836, 172 

TARRING, Laws Relating to tlie 
Colonies, 102 note 



Taxation, how levied, 289 ; permanent 
and annual Acts of, 289 ; Income 
tax and tea duties, 290 and note 

Tea duties, imposed by annual Act, 
290 note 

Todd, on Parliamentary power, 64 ; 
on the passing of Colonial Bills, 
110 

Tone, Wolfe, the trial of, 1798, 271 

Trade, the Board of, under the Mer- 
chant Shipping Act, 1876, 324 

Treaties, power of the Colonies as to, 
112 

Tribunal des Conftits, the, the functions 
of, 314, 315 

"UNCONSTITUTIONAL" Law, meaning 
of an, Appendix, Note V., 427, 428 

Union, the Acts of, 42 ; the Scotch 
Universities and, 62 ; the fifth 
Article of (Ireland), 63, 361 

Union, the Act of, as subject to 
repeal (Scotland), 136 

Unitarian government, and Federalism, 
145 and note ; the meaning of, 146 

Unitarianism, in contrast with Federal- 
ism, 139 

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 and conventional rules 
in, 28 ; position of electors in, 29 ; 
Constitution of, 70 note; the aboli- 
tion of slavery, 78 ; limited power 
of legislative bodies in, 127 ; the 
Federalism of, 129 and note; the 
constitution in comparison with the 
English, 130 ; the union of ideas as 
to institutions in, and in England, 
131 ; preamble of the Constitution 
of, 134 ; the supremacy of the Con- 
stitution, 135 ; the War of Seces- 
sion, 137 and note; the fifth Article 
of the Constitution of, 138 ; the 
legal sovereignty of, 139 ; legisla- 
ture of, 140 ; Acts of Congress, 
141 and 151 ; the President of, 142 : 
the Federal Courts of, 142 ; limit of 
power in individual states, 144 ; the 
authority of the Courts of, 148, 
164 ; the Supreme Court of, 149, 
152, 164 ; the Constitution of in 
comparison with that of Canada, 
156 ; success of the Federal system 
in, 167.'; the Constitution of, 187 
and note ; rule of law in, 187 ; in- 



440 



INDEX 



stitutions of, in contrast with Droit 
Administratif, 304 ; the President 
in relation to the Senate, 387 ; the 
Constitution of, 393 and note; the 
rule of law in, 394 

Universities, the, legislation of Parlia- 
ment as to, 163 ; establishment of 
printing-presses at, 244 

VETO, the meaning of, 26 note; 
the right of, in connection with the 
Crown and Colonial legislatures, 
107, 109 and notes ; instances of, in 
Canada and Australia, 111 ; non- 
existent in the French Chamber, 
116 

Victorian (Colonial) Parliament, the, 
97 ; a non-sovereign legislative body, 
99, 104 ; liable to the authority of 
the Courts, and the Imperial Parlia- 
ment, 99 ; laws of, opposed to Eng- 
lish common law, 101 and note; 
valid and invalid Acts, 102 ; laws 
of, as affecting other Colonies, 103 ; 
authority of, to change the articles 
of constitution, 104 ; power of the 
Governor as to assent to Bills, 109, 
110 ; the struggle between the 



Upper and Lower Houses of, 1878 

and 1879, 383 
Voltaire, impressions of England, 177 

and note ; imprisonment and exile 

of, 178 
Vote of Censure, action of the Ministry, 

under, 362, 372 

WALPOLE, and the passing of the Sep- 
tennial Act, 45 

War of Secession, the, and the aboli- 
tion of slavery, 78 ; the plea for, 
137 

Washington, in connection with the 
constitutional articles of the United 
States, 15 

Wellington, and the Dissolution of 
1834, 357 

Wilkes, John, 32, 358 

William III., 385 

William IV., and the Dissolution of 
1834, 359 

Witenagemot, the, 14 

Writ of Habeas Corpus, the, 200, 201 
and note; the issue of, 201 ; in- 
stance of power under, 207 ; au- 
thority of the Judges under, 208, 
209 ; case of aliens under, 210 



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