The Growth of the English Constitution

A like witness to the importance of Parliament in this age was shown in two other very remarkable ways, whereby the power and importance of the House of Commons was acknowledged in the very act of corrupting it. One was the active interference of the Government in parliamentary elections; the other was the creation of boroughs in order to be corrupt. One needs no stronger proofs than these of the importance of the body which it was found needful thus to pack and to manage. The Crown still kept the power of summoning members from any boroughs which it thought fit, and throughout the Tudor reigns the power was freely abused by sending writs to places which were likely to return members who would be subservient to the Court128. Thus arose many of the wretched little boroughs in Cornwall and elsewhere which were disfranchised by our successive Reform Bills. These boroughs, which always were corrupt and which were created in order to be corrupt, must be carefully distinguished from another class which perished with them. Many towns to which Earl Simon and King Edward sent writs decayed in process of time; sometimes they decayed positively; more commonly they decayed relatively, by being utterly outstripped by younger towns and so losing the importance which they had once had. The disfranchisement of both classes was equally just; but the different history of the two classes should be carefully borne in mind. It was right to take away its members from Old Sarum, but there had been a time when it was right to give Old Sarum members. In the case of a crowd of Cornish boroughs, it not only was right to take away their members, but they never ought to have had members at all129.

It was in the days of Elizabeth that something of the ancient spirit again breathed forth. It is then that we come to the beginning of that long line of parliamentary worthies which stretches on in unbroken order from her days to our own. A few daring spirits in the Commons’ House now began once more to speak in tones worthy of those great Assemblies which had taught the Edwards and the Richards that there was a power in England mightier than their own130. Under the puny successor of the great Queen the voice of freedom was heard more loudly131. In the next reign the great strife of all came, and a King of England once more, as in the days of Henry and Simon, stood forth in arms against his people to learn that the power of his people was a greater power than his. But in the seventeenth century, just as in the thirteenth, men did not ask for any rights and powers which were admitted to be new; they asked only for the better security of those rights and powers which had been handed on from days of old. Into the details of that great struggle and of the times which followed it is not my purpose to enter. I have traced at some length the origin and growth of our Constitution from the earliest times to its days of special trial in the days of Tudor and Stewart despotism. Our later constitutional history rather belongs to an inquiry of another kind. It is mainly a record of silent changes in the practical working of institutions whose outward and legal form remained untouched. I will therefore end my consecutive historical sketch – if consecutive it can claim to be – at the point which we have now reached. Instead of carrying on any regular constitutional narrative into times nearer to our own, I will rather choose, as the third part of my subject, the illustration of one of the special points with which I set out, namely the power which our gradual developement has given us of retracing our steps, of falling back, whenever need calls for falling back, on the principles of earlier, often of the earliest, times. Wittingly or unwittingly, much of our best modern legislation has, as I have already said, been a case of advancing by the process of going back. As the last division of the work which I have taken in hand, I shall try to show in how many cases we have, as a matter of fact, gone back from the cumbrous and oppressive devices of feudal and royalist lawyers to the sounder, freer, and simpler principles of the days of our earliest freedom.

CHAPTER III

In my two former chapters I have carried my brief sketch of the history of the English Constitution down to the great events of the seventeenth century. I chose that point as the end of my consecutive narrative, because the peculiar characteristic of the times which have followed has been that so many and such important practical changes have been made without any change in the written Law, without any re-enactment of the Law, without any fresh declaration of its meaning. The movements and revolutions of former times, as I have before said, seldom sought any acknowledged change in the Law, but rather its more distinct enactment, its more careful and honest administration. This was the general character of all the great steps in our political history, from the day when William of Normandy renewed the Laws of Eadward to the day when William of Orange gave his royal assent to the Bill of Rights. But, though each step in our progress took the shape, not of the creation of a new right, but of the firmer establishment of an old one, yet each step was marked by some formal and public act which stands enrolled among the landmarks of our progress. Some Charter was granted by the Sovereign, some Act of Parliament was passed by the Estates of the Realm, setting forth in legal form the nature and measure of the rights which it was sought to place on a firmer ground. Since the seventeenth century things have in this respect greatly altered. The work of legislation, of strictly constitutional legislation, has never ceased; a long succession of legislative enactments stand out as landmarks of political progress no less in more recent than in earlier times. But alongside of them there has also been a series of political changes, changes of no less moment than those which are recorded in the statute-book, which have been made without any legislative enactment whatever. A whole code of political maxims, universally acknowledged in theory, universally carried out in practice, has grown up, without leaving among the formal acts of our legislature any trace of the steps by which it grew. Up to the end of the seventeenth century, we may fairly say that no distinction could be drawn between the Constitution and the Law. The prerogative of the Crown, the privilege of Parliament, the liberty of the subject, might not always be clearly defined on every point. It has indeed been said that those three things were all of them things to which in their own nature no limit could be set. But all three were supposed to rest, if not on the direct words of the Statute Law, yet at least on that somewhat shadowy yet very practical creation, that mixture of genuine ancient traditions and of recent devices of lawyers, which is known to Englishmen as the Common Law. Any breach either of the rights of the Sovereign or of the rights of the subject was a legal offence, capable of legal definition and subjecting the offender to legal penalties. An act which could not be brought within the letter either of the Statute or of the Common Law would not then have been looked upon as an offence at all. If lower courts were too weak to do justice, the High Court of Parliament stood ready to do justice even against the mightiest offenders. It was armed with weapons fearful and rarely used, but none the less regular and legal. It could smite by impeachment, by attainder, by the exercise of the greatest power of all, the deposition of the reigning King. But men had not yet reached the more subtle doctrine that there may be offences against the Constitution which are no offences against the Law. They had not learned that men in high office may have a responsibility practically felt and acted on, but which no legal enactment has defined, and which no legal tribunal can enforce. It had not been found out that Parliament itself has a power, now practically the highest of its powers, in which it acts neither as a legislature nor as a court of justice, but in which it pronounces sentences which have none the less practical force because they carry with them none of the legal consequences of death, bonds, banishment, or confiscation. 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 principle embodied in the Great Charter or in the Petition of Right. In short, by the side of our written Law there has grown up an unwritten or conventional Constitution. When an Englishman speaks of the conduct of a public man being constitutional or unconstitutional, he means something wholly different from what he means by his conduct being legal or illegal. A famous vote of the House of Commons, passed on the motion of a great statesman, 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 Constitution132. The truth of such a position, according 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 prosecution 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 cognizance, merely by keeping 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 Commons did not seem to be wise or beneficial to the nation, and that therefore, according to a conventional 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. The House made no claim to dismiss those Ministers from their offices by any act of its own; it did not even petition the Crown to remove them from their offices. It simply spoke its mind on their general conduct, and it was held that, when the House had so spoken, it was their duty to give way without any formal petition, without any formal command, on the part either of the House or of the Sovereign133. The passing by the House of Commons of such a resolution as this may perhaps be set down as the formal declaration of a constitutional principle. But though a formal declaration, it was not a legal declaration. It created a precedent for the practical guidance of future Ministers and future Parliaments, but it neither changed the Law nor declared it. It asserted a principle which might be appealed to in future debates in the House of Commons, but it asserted no principle which could be taken any notice of by a Judge in any Court of Law. It stands therefore on a wholly different ground from those enactments which, whether they changed the Law or simply declared the Law, had a real legal force, capable of being enforced by a legal tribunal. If any officer of the Crown should levy a tax without the authority of Parliament, if he should enforce martial law without the authority of Parliament, he would be guilty of a legal crime. But, if he merely continues to hold an office conferred by the Crown and from which the Crown has not removed him, though he hold it in the teeth of any number of votes of censure passed by both Houses of Parliament, he is in no way a breaker of the written Law. But the man who should so act would be universally held to have trampled under foot one of the most undoubted principles of the unwritten but universally accepted Constitution.

The remarkable thing is that, of these two kinds of hypothetical offences, the latter, the guilt of which is purely conventional, is almost as unlikely to happen as the former, whose guilt is a matter established by Law. The power of the Law is so firmly established among us that the possibility of breaches of the Law on the part of the Crown or its Ministers hardly ever comes into our heads. And conduct sinning against the broad lines of the unwritten Constitution is looked on as hardly less unlikely. Political men may debate whether such and such a course is or is not constitutional, just as lawyers may debate whether such a course is or is not legal. But the very form of the debate implies that there is a Constitution to be observed, just as in the other case it implies that there is a Law to be observed. Now this firm establishment of a purely unwritten and conventional code is one of the most remarkable facts in history. It is plain that it implies the firmest possible establishment of the power of the written Law as its groundwork. If there were the least fear of breaches of the written Law on the part of the Crown or its officers, we should be engaged in finding means for getting rid of that more serious danger, not in disputing over points arising out of a code which has no legal existence. But it is well sometimes to stop and remember how thoroughly conventional the whole of our received system is. The received doctrine as to the relations of the two Houses of Parliament to one another, the whole theory of the position of the body known as the Cabinet and of its chief the Prime Minister, every detail in short of the practical working of government among us, is a matter belonging wholly to the unwritten Constitution and not at all to the written Law. The limits of the royal authority are indeed clearly defined by the written Law. But I suspect that many people would be amazed at the amount of power which the Crown still possesses by Law, and at the many things, which in our eyes would seem utterly monstrous, but which might yet be done by royal authority without any law being broken. The Law indeed secures us against arbitrary legislation, against the repeal of any old laws, or the enactment of any new ones, without the consent of both Houses of Parliament134. But it is the unwritten Constitution alone which makes it practically impossible for the Crown to refuse its assent to measures which have passed both Houses of Parliament, and which in many cases makes it almost equally impossible to refuse the prayer of an address sent up by one of those Houses only. The written Law leaves to the Crown the choice of all its ministers and agents, great and small; their appointment to office and their removal from office, as long as they commit no crime which the Law can punish, is a matter left to the personal discretion of the Sovereign. The unwritten Constitution makes it practically impossible for the Sovereign to keep a Minister in office of whom the House of Commons does not approve, and it makes it almost equally impossible to remove from office a Minister of whom the House of Commons does approve135. The written Law and the unwritten Constitution alike exempt the Sovereign from all ordinary personal responsibility136. They both transfer the responsibility from the Sovereign himself to his agents and advisers. But the nature and extent of their responsibility is widely different in the eyes of the written Law and in the eyes of the unwritten Constitution. The written Law is satisfied with holding that the command of the Sovereign is no excuse for an illegal act, and that he who advises the commission of an illegal act by royal authority must bear the responsibility from which the Sovereign himself is free. The written Law knows nothing of any responsibility but such as may be enforced either by prosecution in the ordinary Courts or by impeachment in the High Court of Parliament. The unwritten Constitution lays the agents and advisers of the Crown under a responsibility of quite another kind. What we understand by the responsibility of Ministers is that they are liable to have all their public acts discussed in Parliament, not only on the ground of their legal or illegal character, but on the vaguest grounds of their general tendency. They may be in no danger of prosecution or impeachment; but they are no less bound to bow to other signs of the will of the House of Commons; the unwritten Constitution makes a vote of censure as effectual as an impeachment, and in many cases it makes a mere refusal to pass a ministerial measure as effectual as a vote of censure. The written Law knows nothing of the Cabinet or the Prime Minister; it knows them as members of one or the other House of Parliament, as Privy Councillors, as holders, each man in his own person, of certain offices; but, as a collective body bound together by a common responsibility, the Law never heard of them137. But in the eye of the unwritten Constitution the Prime Minister and the Cabinet of which he is the head form the main feature of our system of government. It is plain at a moment’s glance that the practical power of the Crown is not now what it was in the reign of William the Third or even in that of George the Third. But the change is due, far less to changes in the written Law than to changes in the unwritten Constitution. The Law leaves the powers of the Crown untouched, but the Constitution requires that those powers should be exercised by such persons, and in such a manner, as may be acceptable to a majority of the House of Commons. In all these ways, in a manner silent and indirect, the Lower House of Parliament, as it is still deemed in formal rank, has become the really ruling power in the nation. There is no greater contrast than that which exists between the humility of its formal dealings with the Crown and even with the Upper House138, and the reality of the irresistible power which it exercises over both. It is so conscious of the mighty force of its indirect powers that it no longer cares to claim the direct powers which it exercised in former times. There was a time when Parliament was directly consulted on questions of War and Peace. There was a time when Parliament claimed directly to appoint several of the chief officers of state139. There were much later times when it was no unusual thing to declare a man in power to be a public enemy, or directly to address the Crown for his removal from office and from the royal presence. No such direct exercises of parliamentary power are needed now, because the whole machinery of government may be changed by the simple process of the House refusing to pass a measure on which the Minister has made up his mind to stake his official being.

Into the history of the stages by which this most remarkable state of things has been brought about I do not intend here to enter. The code of our unwritten Constitution has, like all other English things, grown up bit by bit, and, for the most part, silently and without any acknowledged author. Yet some stages of the developement are easily pointed out, and they make important landmarks. The beginning may be placed in the reign of William the Third, when we first find anything at all like a Ministry in the modern sense. Up to that time the servants of the Crown had been servants of the Crown, each man in the personal discharge of his own office. The holder of each office owed faithful service to the Crown, and he was withal responsible to the Law; but he stood in no special fellowship towards the holder of any other office. Provided he discharged his own duties, nothing hindered him from being the personal or political enemy of any of his fellow-servants. It was William who first saw that, if the King’s government was to be carried on, there must be at least a general agreement of opinions and aims among the King’s chief agents in his government140. From this beginning a system has gradually grown up which binds the chief officers of the Crown to work together in at least outward harmony, to undertake the defence of one another, and on vital points to stand and fall together. Another important stage happened in much later times, when the King ceased to take a share in person in the deliberations of his Cabinet. And I may mark a change in language which has happened within my own memory, and which, like other changes of language, is certainly not without its meaning. We now familiarly speak, in Parliament and out of Parliament, of the body of Ministers actually in power, the body known to the Constitution but wholly unknown to the Law, by the name of “the Government.” We speak of “Mr. Gladstone’s Government” or “Mr. Disraeli’s Government.” I can myself remember the time when such a form of words was unknown, when “Government” still meant “Government by King, Lords, and Commons,” and when the body of men who acted as the King’s immediate advisers were spoken of as “Ministers” or “the Ministry”141.

This kind of silent, I might say stealthy, growth, has, without the help of any legislative enactment, produced that unwritten and conventional code of political rules which we speak of as the Constitution. This process I have spoken of as being characteristic of the days since the Revolution of 1688, as distinguished from earlier times. And so it undoubtedly is. At no earlier time have so many important changes in constitutional doctrine and practice won universal acceptance without being recorded in any written enactment. Yet this tendency of later times is, after all, only a further developement of a tendency which was at work from the beginning. It is simply another application of the Englishman’s love of precedent. The growth of the unwritten Constitution has much in common with the earlier growth of the unwritten Common Law. I have shown in earlier chapters that some of the most important principles of our earlier Constitution were established silently and by the power of precedent, without resting on any known written enactment. If we cannot show any Act of Parliament determining the relations in which the members of the Cabinet stand to the Crown, to the House of Commons, and to one another, neither can we show the Act of Parliament which decreed, in opposition to the practice of all other nations, that the children of the hereditary Peer should be simple Commoners. The real difference is that, in more settled times, when Law was fully supreme, it was found that many important practical changes might be made without formal changes in the Law. It was also found that there is a large class of political subjects which can be better dealt with in this way of tacit understandings than they can be in the shape of a formal enactment by Law. We practically understand what is meant by Ministers having or not having the confidence of the House of Commons; we practically recognise the cases in which, as not having the confidence of the House, they ought to resign office and the cases in which they may fairly appeal to the country by a dissolution of Parliament. But it would be utterly impossible to define such cases beforehand in the terms of an Act of Parliament. Or again, the Speaker of the House of Commons is an officer known to the Law. The Leader of the House of Commons is a person as well known to the House and the country, his functions are as well understood, as those of the Speaker himself. But of the Leader of the House of Commons the Law knows nothing. It would be hopeless to seek to define his duties in any legal form, and the House itself has, before now, shrunk from recognising the existence of such a person in any shape of which a Court of Law could take notice142.

During a time then which is now not very far short of two hundred years, the silent and extra-legal growth of our conventional Constitution has been at least as important as the actual changes in our written Law. With regard to these last, the point on which I wish chiefly to dwell is the way in which not a few pieces of modern legislation have been – whether wittingly or unwittingly I do not profess to know – a return to the simpler principles of our oldest constitution. I trust to show that, in many important points, we have cast aside the legal subtleties which grew up from the thirteenth century to the seventeenth, and that we have gone back to the plain common sense of the eleventh or tenth, and of times far earlier still. In those ancient times we had already laws, but we had as yet no lawyers. We hear in early times of men who were versed above others in the laws of the land; but such special knowledge is spoken of as the attribute of age or of experience in public business, not as the private possession of a professional class143. The class of professional lawyers grew up along with the growth of a more complicated and technical jurisprudence under our Norman and Angevin Kings. Now I mean no disrespect to a profession which in our present artificial state of society we certainly cannot do without, but there can be no kind of doubt that lawyers’ interpretations and lawyers’ ways of looking at things have done no small mischief, not only to the true understanding of our history but to the actual course of our history itself. The lawyer’s tendency is to carry to an unreasonable extent that English love of precedent which, within reasonable bounds, is one of our most precious safeguards. His virtue is that of acute and logical inference from given premisses; the premisses themselves he is commonly satisfied to take without examination from those who have gone before him. It is often wonderful to see the amazing ingenuity with which lawyers have piled together inference upon inference, starting from some purely arbitrary assumption of their own. Each stage of the argument, taken by itself, is absolutely unanswerable; the objection must be taken earlier, before the argument begins. The argument is perfect, if we only admit the premisses; the only unlucky thing is that the premisses will constantly be found to be historically worthless. Add to this that the natural tendency of the legal mind is to conservatism and deference to authority. This will always be the case, even with thoroughly honest men in an age when honesty is no longer dangerous. But this tendency will have tenfold force in times when an honest setting forth of the Law might expose its author to the disfavour of an arbitrary government. We shall therefore find that the premisses from which lawyers’ arguments have started, but which historical study shows to be unsound, are commonly premisses devised in favour of the prerogative of the Crown, not in favour of the rights of the people. Indeed the whole ideal conception of the Sovereign, as one, personally at least, above the Law, as one personally irresponsible and incapable of doing wrong, the whole conception of the Sovereign as the sole fountain of all honour, as the original grantor of all property, as the source from which all authority of every kind issues in the first instance, is purely a lawyer’s conception, and rests upon no ground whatever in the records of our early history144. In later times indeed the evil has largely corrected itself; the growth of our unwritten Constitution under the hands of statesmen has done much practically to get rid of these slavish devices of lawyers. The personal irresponsibility of the Sovereign becomes practically harmless when the powers of the Crown are really exercised by Ministers who act under a twofold responsibility, both to the written Law and to the unwritten Constitution. Yet even now small cases of hardship sometimes happen in which some traditional maxim of lawyers, some device devised in favour of the prerogative of the Crown, stands in the way of the perfectly equal administration of justice. But in several important cases the lawgiver has directly stepped in to wipe out the inventions of the lawyer, and modern Acts of Parliament have brought things back to the simpler principles of our earliest forefathers. I will wind up my sketch of our constitutional history by pointing out several cases in which this happy result has taken place.