and so more easily 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 changed by depart from its original lines, it is obvious that a constitution which is nowhere set forth in a written form must inevitably be more liable to change. For custom cannot so easily encrust a constitution which is ever present in black and white to those who live under it. And, again, such constitutions are rarely changeable by the ordinary process of legislation. The constitution is sovereign, not, as with us, the Parliament. Law-making is only possible within the limits 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 citizenship1. and by legislation. Omnipotence 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 When Parliament repealed the clause in the Act of Settlement which excluded placemen from the House of Commons, it was probably thought to do no more than run a certain risk of the corruption of its 147 & 48 Vict. c. 30; 48 Vict. c. 3. members and of their subservience to the Crown. It was in reality making possible our whole modern system of government. I have tried to show first that law and custom are often at variance in our constitution, and I have done this because the variance creates a difficulty in setting out the rules of our constitution in a clear form. I have also tried to show why it is that law and custom are at variance, and that one reason is the unwritten and indeterminate character of our constitution, and that another is its susceptibility to change, owing to the absolute power which Parliament possesses over every institution in the country. But I would be careful to limit this part of my subject to a statement of difficulties and an indication of their source. The fact that our constitution has to be collected from statutes, from legal decisions, from observation of the course of conduct of the business of politics; that much of what is written is of a negative sort, stating what the Crown and its ministers can not do; that there is no part of it which an omnipotent Parliament may not change at will; all this is a puzzle not only to foreign jurists who are prepared to say, with De Tocqueville, that the English constitution does not exist, but to ourselves who are prepared to maintain that it is a monument, if only we can find it, of political sagacity. Those who praise it call it flexible; those who criticise it, unstable. We are not concerned with praise or blame, but only with the difficulty of putting such a medley of political rights and duties into an intelligible form. tions on the J tence of The power of Parliament to alter the constitution by an Limitaexercise of its ordinary legislative power is perhaps the most striking instance of the 'omnipotence of Parliament.' But omnipothis omnipotence is a present power and cannot be projected Parliainto the future so as to bind the same Parliament on a future day or a future Parliament, whether differently or similarly composed. This limitation may be illustrated from the Acts of Union with Scotland and with Ireland, each of which ment. Illustrated Acts of contained provisions designed and declared to be fundamental and unalterable. In each case these fundamental conditions have been altered by subsequent legislation. The process of union is instructive in itself and is further instructive as illustrating this limitation upon the powers of Parliament. Each Act was preceded by a settlement of the terms of Union which is described as a treaty. In the first case the Parliaments of England and Scotland, in the second the Parliaments of Great Britain and Ireland, respectively, approved of terms in these treaties, which put an end to their own existence and their independent sovereignty. In each Act of Union the assenting Parliaments surrendered their sovereign powers to a new body, the United Parliament of the two countries concerned in the transaction. In each case it seems to have been forgotten that what might be a vital condition of the treaty of Union could not be made an unalterable term binding on the newly constituted Parliament. Each Parliament might have remembered that as it could not make a law unalterable by its successors, it could not make a law binding on the new Parliament; for this when constituted would possess all the powers, neither more nor less, for making, altering, and amending laws which the two extinct Parliaments had enjoyed. A Parliament which was in the act of terminating its own existence by the surrender of its sovereignty to a new body might strive in vain to limit the sovereignty of that body without altering the character of the constitution. A Parliament may surrender the whole of its sovereignty, as was done by the English and Scotch, Irish and British Parliaments at the time of the Acts of Union; or it may surrender its sovereignty over a country wherein that sovereignty was previously exercised, as did the Parliament of Great Britain in respect of Ireland in 1782. It cannot bind its successors, nor limit the power of a Parliament similarly constituted. This could only be done by the enactment of laws which would call into existence a new body, whether representative or not, to whom alone should be given the power of changing those provisions which the two countries at the moment of Union desired to make unalterable by future Parliaments. There is another matter of difficulty in understanding the English constitution arising from its gradual development and piecemeal construction. It is impossible to state in a form The relasatisfactory to the analytical jurist, it is difficult to state in a executive clear and coherent form to the practical inquirer, the relations and legis between the executive and the legislature. tions of lature. view 'It is absurd,' says Austin 1, 'to say that the Parliament has Austin's legislative sovereign powers, but that the executive sovereign powers belong to the king alone. If the Parliament be sovereign or absolute, every sovereign power must belong to that sovereign body or to one or more of its members as forming a part or parts of it.' Having thus assumed what he desires to prove-that there can be no severance, in the hands of distinct parties, of the sovereign powers of the executive and the legislature, he goes on to describe the king as merely an emanation of the sovereignty of Parliament. But it is impossible to regard the Crown either in fact or in unsuited to history as an emanation of the sovereignty of Parliament. Theoretically, there is no reason why legislative and executive duties should not be discharged by the same person or body of persons. It would be perfectly possible for such person or body to make laws binding on the whole community, to work the machinery of government, to determine the policy of the country in its foreign relations, to make peace and war. But, as M. Laveleye has pointed out 2, the construction of 1 Lectures on Jurisprudence, vol. i. p. 257. 2 'On pourrait même formuler ce principe, que plus un régime politique est simple, plus il se rapproche de l'absolutisme; au contraire, plus il donne de garanties à la liberté, plus il est compliqué. Rien n'est aussi simple que le despotisme oriental, rien n'est plus compliqué que les institutions des EtatsUnis.' Essai sur les formes de gouvernement, p. 59. complex political societies. Executive and legis lature distinct in English constitution. They are distinct powers of the Crown free and highly-organised states is complex, and the complexity increases with the guarantees for liberty which the constitution affords. Laws and taxes, which affect all, are, in such societies, agreed upon by a body large enough to be representative of the whole community, too large for prompt and united action such as is required of an executive which is to be vigorous and efficient. It would seem to follow that the picture which Austin presents of a legislature issuing commands which the executive is constrained to obey, without which it can do nothing, is remote from fact. Unless every act of the executive is to be done in obedience to a command of the legislature, the executive must be able to do things which are beyond recall, things which were never expressly ordered, perhaps never even contemplated by the legislature. That such things are daily done in free States is matter of common knowledge, and unless we are, like Austin, to be enslaved by a conception of sovereignty which can only be realised in an Oriental despotism, we must admit that there is in our constitution, as in others, a legislative sovereign or supreme law-making power, and an executive sovereign whose constitution may be changed, but whose acts are not, or cannot be, habitually controlled, by the other. In our constitution we can say not only that the executive and legislative powers are distinct to the extent above described, but that we can trace the process by which their powers have become distinct. The common element in both is the Crown; the Crown in Council once made laws and also conducted the business of government, and its powers in these matters have gradually and for different reasons passed into the hands of two different bodies. The need of money, which the Commons alone could supply, gave them, as we have seen, a hold upon legislation: while the jealousy of the great feudal lords who made up the Council, and the inevitable increase of business beyond the capacity of an individual to transact, tended to place the conduct of the executive in the hands of servants or ministers of the Crown. The legislative |