Constitu tion of the colonies upon certain terms as to representation in the two Houses; And this United Kingdom, the terms of whose union have to be studied by the constitutional lawyer, has accumulated and their around itself a number of dependencies, some the result of with the conquest, some of colonisation, very variously constituted in Kingdom. themselves and standing in various relations to the central connection United government. Our work is not done until we have made CHAPTER III. SOME CHARACTERISTICS OF THE ENGLISH CONSTITUTION. stitution a of rules to ence. THE brief survey which I have made of the leading features Our conof our constitution may serve at least to bring out one gradual remarkable characteristic of the topics with which we have to adaptation deal. A constitution which began with the rude organisation conveniof a group of settlers in a hostile country has been adapted not only to the wants of a highly civilised race, but to the government of a vast empire, and has been so adapted by an insensible process of change, without any attempt to recast it as a whole, or to map it out in a written form. There are, in consequence, many features of our constitution for which it is hard to account. We find one practice prevailing at one time, and quite a different practice, in the same matter, at another; and it is sometimes difficult, if not impossible, to indicate the moment at which the change occurred. For changes have most often been unconscious adaptations of practice to convenience; where they have been deliberate they have seldom been comprehensive; they have seldom dealt with more than the matter which needed change at the time. It follows then that our constitution is a somewhat rambling structure, and that, like a house which many successive owners have altered just so far as suited their wants at the time of their possession, it bears the marks of many hands, and is convenient rather than symmetrical. Hence theory and practice diverge in the legislature: in the executive. One result of these piecemeal changes in our constitution is the divergence, in many important matters, of law and custom, of theory and practice. We are constantly embarrassed by finding power vested by law in hands which never exercise it in fact, and power exercised in fact by persons unknown to the law. A student who rose from the perusal of the latest edition of Stephen's Commentaries' to study the working of our institutions at the present day, would wonder what had become of the prerogative of the Crown, and who were meant by the Prime Minister and the Cabinet. It is necessary, therefore, before dealing with the law and custom of the Constitution, to note some of these divergences of theory and practice, that we may be prepared for them when we are confronted with them in the detailed part of our inquiries. First compare the process of legislation in theory, that is, according to the strict rules of law, and in practice. Legislation is effected by the Crown in Parliament; it is the Queen who makes laws with the assent of Lords and Commons, and by the authority of the same. But in fact the Commons have an exclusive initiative and control over one branch of legislation, the laws by which taxes are imposed; they have a preponderating influence over all other legislation; and the enacting power of the Crown has, since the reign of Henry VI, been reduced to a right to express assent or dissent when measures are submitted by Lords and Commons; even the veto which is all that custom has left to the Crown has not been exercised for nearly 200 years. Or, take again the Executive in its relations to Parliament. The Crown in Council is the executive; the Queen appoints the various ministers who conduct the business of government; legally, they are only heads of departments acting under the orders of the Queen. Ministers hold their offices during pleasure; they may be dismissed, one or all, at any moment; they are not in any way legally obliged to be in Parliament; their relations to Parliament are a matter with which the law is wholly unconcerned, except that the acceptance of office necessitates as a rule the re-election of the member taking office, and that the emoluments of ministers depend upon a Parliamentary grant. It seldom, if ever, occurs to any one but a student of constitutional law that the business of the various departments of government might be transacted by men who were not in Parliament, and that there is no legal necessity that the heads of departments should be responsible for the general policy of the country, still less that they should initiate and control it. net, the This severance, which is possible in law, between the con- The Cabitrolling executive, the departmental executive, and Parliament departis now impossible in fact. ments, and Par Practical convenience, amounting to necessity, assigns to liament. party leaders the headship of departments, and therewith a joint and general control of the policy of the country. Parliamentary criticism and the many ways in which an adverse majority in the House of Commons may thwart and embarrass the departments of government make it necessary that those who are responsible for such departments should not only act together, but should act in harmony with the majority in the House. And so it comes about that if our constitution were stripped bare of convention and displayed in its legal nakedness, it would be found not only unrecognisable, but unworkable. stitution There is another point in which our constitution differs The confrom many. It is not written, and it never has been written unwritten, out for the information of those who live under it, for the guidance of those who have to work it. Doubtless a written constitution may suffer imperceptible changes as well as one which is not written. Use alters the shape of things so pliable as political institutions: an inconvenient rule is not observed; a convenient practice creeps in. M. Boutmy, in his admirable Études de Droit Constitutionnel,' has shown how the written and so more easily changed by custom American constitution has undergone this insensible modification in some of its most important parts. He points out how not only has the whole machinery of the Presidential election, in practice, worked away from the constitutional theory; but how the Senate beginning as a council of delegates, whose duties were mainly executive, and who were bound by the instructions, when given, of those whom they represented, has come to be a Second Chamber, the members of which exercise their discretion freely as critics and moderators of the action of the House of Representatives. If a written constitution can thus by mere force of usage depart from its original lines, a constitution which is nowhere set forth in a written form must inevitably be more liable to change. For custom cannot so easily encrust institutions which are ever present in black and white to those who live under them. And, again, where a constitution is set forth in writing it is rarely changeable by the ordinary process of and by le- legislation. Law-making is only possible within the limits gislation. of the constitution, and this can only be altered by some assemblage other than the legislature. With us Parliament is omnipotent, and statute law is constantly acting upon one or another of our institutions, here removing a form once thought essential, such as the use of the Privy Seal, there extending the franchise to classes hitherto excluded from the full rights of citizenship 1. Отпіроtence of Parlia ment. The fact that Parliament can change the constitution in the ordinary course of legislation does not necessarily operate to produce a divergence of law and custom, but it tends to do so. For the constitution of a State is something like a human organism. It is difficult to change or destroy one part without producing effects not easily estimated or foretold upon the whole structure. When the clause in the Act of Settlement which excluded placemen from the House of Commons was repealed, Parliament might have seemed to do no more than run a risk of the corruption of its members and 47 & 48 Vict. c. 30; 48 Vict. c. 3. 1 |