CORRIGENDA.

P. 165, n. 1, for 12 East read 14 East.

ADDENDA.

P. 127. Certain formalities and rules respecting parliamentary elections which are omitted in the text seem to be of sufficient interest and importance to be noted here.

(a) Immediately upon making out a writ for an election of a member or members to serve in the Commons House of Parliament, it is the duty of the Clerk of the Crown to give notice to the Secretary of State for War. The War Office sends notice to the general officer in command of the district wherein the election is to be held, and it is his duty to keep all soldiers within barracks during the day, unless they go out for the purpose of mounting or relieving guard, or of recording their votes; 10 & 11 Vict. c. 21.

(b) The writs must be formally delivered by the messenger of the Great Seal or his deputy to the General Post Office, except such as are directed to the sheriffs of London or Middlesex, and must thence be despatched, free of charge, by post. This is provided by 53 Geo. III, c. 89. And this would prevent returning officers from sending to the Crown Office for the writs of their respective constituencies in order to accelerate the days of nomination and polling. [See question asked and answer given on this point in the House of Commons on the 23rd June, 1892.]

(c) The rule which guides the action of peers in respect to Parliamentary elections is nothing more than a convention resting on a sessional order to the effect that it is a high infringement of the liberties and privileges of Parliament, for any Lord of Parliament, or other Peer or Prelate... to concern himself in the election of members to serve for the Commons in Parliament.'

The convention appears to be that a peer should not address meetings or otherwise concern himself in an election after the issue of the writ; but the abstention of peers from political action during this period must be regarded as an act of courtesy extended by the one House to the other. A sessional order of the House of Commons cannot affect the legal rights of persons outside the House, and would seem to be in abeyance during a prorogation or dissolution of Parliament. The question must be regarded as distinct from that of the disability of peers to vote at parliamentary elections. This is a custom accepted by judicial decision as a rule of common-law, a custom fortified by the practice of committees of the House of Commons in the times when those committees were entitled to reject votes improperly given. See Earl Beauchamp v. Overseers of Madresfield, L. R., 8 C. P. 247, where the resolutions of the House both as to voting and taking part in elections by peers are set out.

CHAPTER I.

THE PLACE OF CONSTITUTIONAL LAW IN

JURISPRUDENCE.

Ar the outset of a treatise on the English Constitution it is well to attempt some limitation or definition of the subject. If the law and custom of the Constitution is to be laid before the reader in an intelligible form, the writer has constantly to keep in mind the fact that, though nearly every law and every custom of the Constitution has a historysometimes a long and interesting history-yet that it is the Constitution as it now exists, and not the history of Constitutional law, with which he has to deal. And, again, although the operation of these laws and customs has to be explained as a matter of present living interest, it must be borne in mind that we are dealing with law and practice, and not with political science or political criticism.

The need to

define the subject,

from con

At starting, therefore, I have to distinguish the subject as distinct of which I propose to treat from the topics dealt with on the stitutional one hand in the classical constitutional histories of Mr. Hallam history and Dr. Stubbs, and on the other in the admirable account of the practical working of the English Constitution by and politiMr. Bagehot. I have to make it clear that I am dealing with cal science. rules of law, and with customs which have grown up around

Constitutional Law

these rules, obscuring in some departments the rules themselves. It may be indeed it is-practically impossible to explain existing Law and Custom without some reference to its history, or to state existing practice without some account of the reasons for the divergence of the legal and the conventional Constitution; but such matters are illustrative and subordinate. The Laws and Customs, not their history or their political value, are what I am concerned with.

To define my subject, it is necessary to determine the place of constitutional law in the Corpus Juris of the country, prudence and to distinguish, once for all, those topics with which

in Juris

of Public

Law;

constitutional law is apt to be confused.

In order to find the place of constitutional law it is needless to go further than Dr. Holland's analysis and classification of rights. A right is 'a capacity residing in one man of controlling with the assent and assistance of the State is a branch the actions of another.' Rights which may be enforced by one citizen against another constitute the body of Private Law. Rights which the State asserts to itself against the citizens, and rights which it permits to be exercised against itself, constitute Public Law. But inasmuch as the State is an artificial person, and, as such, assumes to itself the right to maintain order, to enforce the rules of conduct which it lays down, to possess property and compel the performance of contracts made with itself, and inasmuch as it is willing to incur proprietary and contractual liabilities, we need to enquire how this artificial person is constituted, and in this enquiry lies the chief labour of the constitutional lawyer.

has to do

with rights and duties

of sovereign

and struc

ture of State.

The Sovereign body or State is the power by which rights are created and maintained, by which the acts or forbearances necessary to their maintenance are habitually enforced. This power in our community is diffused among a number of persons; in other words, our State is of complex construction. It consists of a number of persons or groups of persons who, in virtue of the part which they play in the working of the constitution, possess rights one against the other,

and against the citizens in general. Their status is coloured by the fact that they are a portion of the machinery of Government,

The Crown is not Sovereign, nor is either House of Parliament, still less are the ministers or servants through whom the Crown conducts the executive business of Government; but each of these stands in established relations to the others, and to the general body of citizens, and of these relations some are fixed by law and some by custom. For the State machinery may be said to consist of all who take part in the making or changing of the laws by which rights are created and protected, in the maintenance of order and settled rules of conduct within the community, in preserving its independence or representing it in its dealings with other communities. The connection and relations of these persons form the constitution of the country.

The analysis of this constitution, which forms the working machinery of the State, the consideration of its various parts, and the relation in which they stand to one another, is what I propose to undertake in respect of our own country.

When we

know what

we mean

by the

State.

But when we talk of the State, its rights or its structure, We need to we are necessarily led to the inquiry, What do we mean by the State? The expression is sometimes used as equivalent to an entire community or independent political society; sometimes it is limited to the sovereign body in that society. say that a man has deserved well of the State, we generally mean that all persons in the community ought to be grateful to him. When we say that such and such things should be provided or attended to by the State, we mean that the lawmaking force of the community or its administrative force should require the observance of a certain course of conduct in certain matters.

begins

It is the more important for the purposes of a consti- The State tutional lawyer to ascertain what is meant by the State, because, as I have already said, he is concerned with its structure; and further, his province cannot be precisely defined