CORNELL UNIVERSITY LIBRARY FROM The Dept. of Government The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924030503720 INTRODUCTION TO THE STUDY OP THE LAW OF THE CONSTITUTION A. V. DICEY MACMILLAN AND CO., Limited LONDON • BOMBAY • CALOOTTA • MADRAS MELBOOENE THE MACMILLAN COMPANY NEW YORK • BOSTON • CUICAGO DALLAS ■ SAN FRANCISCO ■XHB MACMILLAN CO. OF CANADA, Ltd. TORONTO INTEODUCTION TO THE STUDY OF THE LAW OF THE CONSTITUTION A. V. DICEY, K.O., Hon. D.C.L. OP THE INNER TEMPLE ; POBMEELT VINERIAN PROFESSOR OP ENGLISH LAW FELLOW OP ALL SOITLS COLLEGE, OXFORD HON. LL.D. CAMBRIDGE, GLASGOW, AND EDINBURGH AUTHOR OF 'lectures ON THE RELATION BETWEEN LAW AND PUBLIC OPINION IN ENGLAND DURING THE NINETEENTH CENTURY' SaGHTH EDITION MACMILLAN AND CO., LIMITED ST. MAETIN'S STEEET LONDON 1927. COPYRIGHT Fii-si Edition 1885. Second Edition 1880 Third Edition 1889. Fourth Edition 1893. Fifth Edition 1897. Sixth Edition 1902. Seventh Edition 1908. Eighth Edition 1915. Reprinted 1920 {twice). Reprinted 1923, 1924, 1926, 1927. PRINTED IN GREAT BRITAIN BY S. & E. CLARK, LIMITED, EDINBURGH 'PEEFACE TO THE FIRST ^DITION 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, nluch 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 tkeir 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 Eepublic. Whether I have in any LA W OF THE CONSTITUTION measure attained my object must be left to the judgment of my readers. It may perhaps be allow- able 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 incomparable 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 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 constitution 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 LAW OF THE CONSTITUTION the habit of looking 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 constitution 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. PKEFACE TO THE EIGHTH EDITION The body of tliis work is the eighth edition, or rather a reprint of the seventh edition, of the Law of the Constitution first published in 1885. It is, however, accompanied by a new Introduction. This Introduction is written with two objects. The first object is to trace and comment upon the way in which the main principles of our constitution as expoimded by me may have been affected either by changes of law or by changes of the working of the constitution which have occurred during the last thirty years (1884-1914). The second object of this Introduction is to state and analyse the main con- stitutional ideas which may fairly be called new, either because they have come into existence during the last thirty years, or because (what is much more frequently the case) they have in England during that period begun to exert a new and noticeable influence. It has been my good fortune to receive in the composition of this Introduction, as in the writing of every book which I have pubUshed, untold aid from suggestions made to me by a large number both of English and "of foreign friends. To all these helpers I return my most sincere thanks. It is at once a duty and a pleasure to mention my special obUgation to. two friends, who can both be numbered as high authorities among writers, who have investigated the constitution of England from different points of view. To the friendship of the late Sir William Anson I owe a debt the amount of which it is impossible to exaggerate. He was better acquainted, as LAW OF THE CONSTITUTION his books show, with the details and the working of the whole constitution of England than any contemporary authority. Since I first endeavoured to lay down the few general priaciples which in my judgment lie at the basis of our constitution, I have, whilst engaged in that attempt, always enjoyed his sympathy and encouragement, and, especially in the later editions of my work, I have received from him corrections and suggestions given by one who had explored not only the principles but also all the minute rules of our constitutional law and practice. To my friend Professor A. Berriedale Keith I am imder obligations of a somewhat different kind. He has become already, by the publication of his Responsible Government in the Dominions, an acknowledged authority on all matters connected with the relation between England and her Colonies. I have enjoyed the great advantage of his having read over the parts of my Introduction which refer to our Colonial Empire. His knowledge of and experience in Colonial afEairs has certainly saved me from many errors into which I might otherwise have fallen. It is fair to all the friends who have aided me that I should state exphcitly that for any opinions expressed in this Intro- duction no one is responsible except myself. The care with which many persons have given me sound information was the more valued by me because I have known that with some of the inferences drawn by me from the facts on which I commented my informants probably did not agree. A. V. DICEY. Oxford, 1914. CONTENTS PAGE Introduction to Eighth Edition .... xvii OUTLINE OF SUBJECT The Tbue Nature of Constitutional Law PART I THE SOVEREIGNTY OF PARLIAMENT > CHAPTER I The Nature ov Parliamentary Sovereignty , , 37 CHAPTER n Parliament and non-Sovereign Law-Making Bodies , 83 CHAPTER m --^ Parliamentary Sovereignty and Federalism . .134 PART n THE RULE OF LAW CHAPTER IV ^^ The Rule of Law : its Nature and General Applica- tions . . . . • • .179 LA W OF THE CONSTITUTION CHAPTEE V PAGE The Eight to Personal Freedom . . . • 202 CHAPTEE VI The Eight to Freedom of Discussion . » . 234 CHAPTEE VII The Eight of Public Meeting . , . 266 CHAPTEE VIII -Martial Law .. = .,. 280 CHAPTEE IX The Armt ...,., 291 CHAPTEE X The Eevbnub ..,,-, . 308 CHAPTEE XI The Eesponsibility op Ministers . , . .321 CHAPTEE XII V EuLB OF Law compared with Droit Administratif . 324 , CHAPTEE XIII Eelation between Parliamentary Sovereignty and the EuLE of Law ...... 402 CONTENTS PART III THE CONNECTION BETWEEN THE LAW OF THE CONSTITUTION AND THE CONVENTIONS OP THE CONSTITUTION / CHAPTER XIV PAGE Natuke or Conventions of Constitution . . .413 CHAPTER XV The Sanction bt which the Conventions of the Con- stitution ARE Enforced . . . .435 APPENDIX NOTE I. — EiGiDiTY of French Constitutions . .469 „ II. — Division of Powers in Federal States . 476 „ III. — Distinction between a Parliamentary Execu- tive AND A non-Parliamentary Executive . 480 „ IV. — The Eight op Sele-Defence . . . 489 „ V. — Questions connected with the Eight op Public Meeting . . . • .497 ,^ VI. — Duty op Soldiers called upon to disperse an Unlawful Assembly . . . .512 ^ VII. — The Meaning op an "Unconstitutional" Law 516 ^^YIII. — Swiss Federalism . . . • 517 ,, IX. — Australian Federalism • • • ^29 LAW OF THE CONSTITUTION PAGE NOTE X. — Martial Law in England during Time of War OR Insurrection .... 538 „ XI. — Constitution of the Tribunal bes Conflits . 555 „ XII. — Proceedings against the Crown . . 556 „XIII. — Parliament Act, 1911 . . , .557 INDEX o . , , , . .561 ANALYSIS OF INTEODUOTION PAGE ■Aim xvii (A) The Sovebeignty of Pakliambnt .... xviii Possible changes ...... xix I. Possible change in constitution of parliamentary sovereign (Parliament Act, 1911) . . . xix State of things before passing of Act . xx Direct effects of Parliament Act .... xxi (1) Money Bill — House of Lords no veto . . xxi (2) Other public Bills — House of Lords has only suspensive veto ..... xxi (3) House of Commons has unlimited legislative power xxiii II. Practical change in area of parliamentary sovereignty (Relation of the Imperial Parliament to Dominions) xxiv Krst question — What is the difference between such relation in 1884 and 1914 ? . . . . xxv Second question — ^What changes of opinion caused the change of relation ?..... xxxii (B) The Rule or Law ..... xxxvii I. Decline in reverence for rule of law . . xxxviii II. Comparison between present official law of England and present droit administratif ot Prance . . xliii (C) Conventions oe the Constitution .... xlviii First question — -What changes ? . . . . xlviii Second question — What is the tendency of new con- ventions ? . . . . . . . Iv Third question — Does experience of last thirty years con- firm principles laid down as to connection between con- ventions and rule of law ? . . . . . Ivii (D) Development dueing the last Thirty Ybabs of New Constitutional Ideas ..... Iviii Two general observations on new constitutional ideas . Iviii Mrst observation — Slow growth of poHtical or constitu- tional inventiveness . . . . . . Ux Second observation — These new ideas take no account of one of the ends which good legislation ought to attain . . ...... lix LA W OF THE CONSTITUTION PAQK Criticism of the Four New Constitutional Ideas . . . Ixii I. Woman Suffrage ...... Ixii The causes of demand ... . Ixiii The two main lines of argument and answers . Ixiv First argument — Every citizen entitled to vote. . Ixiv Second argument — Difference of sex no ground for difference of political rights . . . Ixv II. Proportional representation .... Ixvi The three propositions on which argument in favour of proportional representation is based . . . Ixvi The truth of two first propositions admitted . Ixvi Objections to third proposition .... Ixix First objection — Comphcation of system increases power of wire-pullers ...... Ixix Second objection — House of Commons is not mere House for Debate, ...... Ixix Third objection — ^Proportional representation increases number and evil of parliamentary groups . . Ixx ni. Federalism ....... Ixiii Leading characteristics of federal government . . Ixxv Characteristics of federal government in relation to Imperial Federalism ..... Ixxx First objection — Attempt to form federal constitution for Empire full of difficulty and peril . . .Ixxxii Second objection — No real necessity for formation of any new federal constitution for Empire . .Ixxxv Characteristics of federal government in relation to Home Rule all round {i.e. federalisation of United Kingdom) Ixxxvii Vagueness of the ideas which support the policy of federalisation of United Kangdom (Home Rule all round) Ixxxvii Specific objections to Home Rule all round . Ixxxvui First objection — ^No desire for Federalism in any part of United Kingdom .... Ixxxviii Second objection — Federalisation of United Kingdom does not promote Imperial FederaKsm . . xc Third objection — Such federalisation opposed to whole history of English constitutionalism . . . xo IV. The Referendum .... xoi Meaning of referendum . . . xcj Causes for demand for referendum . . . ^cij The main argument against the referendum . . xciv The main argument in favour of the referendum , xcvii Conclusions ...... „ INTRODUCTION AIM OF INTRODUCTION The Law of the Constitution was first published in 1885. The book was based on lectures delivered by me as Vinerian Professor of Enghsh Law. The lectures were given and the book written with the sole object of explaining and illustrat- ing three leading characteristics in the existing constitution of England ; they are now generally designated as the Sovereignty of ParHament, the Eule of Law, and the Con- ventions of the Constitution. The book, therefore, dealt with the main features of our constitution as it stood in 1884r-85, that is thirty years ago. The work has already gone through seven editions ; each successive edition, including the seventh, has been brought up to date, as the expression goes, by amending it so as to embody any change in or affect- ing the constitution which may have occurred since the last preceding edition. On pubhshing the eighth and final edition of this treatise I have thought it expedient to pursue a different course. The constant amendment of a book republished in successive editions during thirty years is apt to take from it any such literary merits as it may originally have possessed. Recurring alterations destroy the original tone and spirit of any treatise which has the least claim to belong to the hterature of England. The present edition, therefore, of the Law of the Constitution is in substance a reprint of the seventh edition ; it is however accompanied by this new Introduction whereof the aim is to compare our constitution as it stood and worked in 1884 with the constitution as it now stands in 1914. It is thus possible to take a general view of the development of the constitution during a period filled with many changes xvii O INTRODUCTION both of law and of opinion.^ My readers are thus enabled to see how far either legislation or constitutional conventions have diiring the last thirty years extended or (it may be) limited the appUcation of the principles which in 1884 lay at the foundation of our whole constitutional system. This Introduction therefore is in the main a work of historical retrospection. It is impossible, however (nor perhaps would it be desirable were it possible), to prevent a writer's survey of the past from exhibiting or betraying his anticipations of the future. The topics here dealt with may be thus summed up : — The Sovereignty of Parhament,^ the Eule of Law,^ the Law and the Conventions of the Constitution,* New Constitutional Ideas,^ General Conclusions.^ (A) Sovereignty of Parliament ' The sovereignty of Parliament is, from a legal point of view, the dominant characteristic of our pohtical institutions. And my readers will remember that Parhament consists of the King, the House of Lords, and the House of Commons acting together. The principle, therefore, of parliamentary sovereignty means neither more nor less than this, namely that " Parhament " has " the right to make or unmake any law whatever ; and further, that no person or body is recog- nised by the law of England as having a right to override or set aside the legislation of Parhament," ^ and further that this 1 Compare the Introduction to the aeoond edition of Law and Public Opinion in England during the Nineteenth Century. a See Part I. Chaps. I.-III., post. 8 See Part II. Chaps. IV.-XIIL, post. * See Part III. Chaps. XIV., XV., post. ^ See p. Iviii, post. * A student who wishes to understand the statements in the Introduction should read with care that part of the book on which they are a com- ment ; thus the portions of the Introduction referring to the Sovereignty of Parliament ought to be read in connection with Part I Chapters I.-III., post. ' See Chaps. I.-III., post. * See Chap. I. p. 38, post. Parliament may itseU by Act of Parliament either expressly or imphedly give to some subordinate legislature or other body the power to modify or add to a given Act of Parliament. Thus under the Commonwealth Act, 63 & 64 Vict. c. 12, the Imperial Parliament has given to the Parliament of the Australian Commonwealth power to modify many SOVEREIGNTY OF PARLIAMENT right or power of Parliament extends to every part of the King's dominions.^ These doctrines appear in the first edition of this work, published in 1885 ; they have been repeated in each successive edition pubUshed up to the present day. Their truth has never been denied. We must now, however, consider whether they are an accurate description of parUamentary sovereignty as it now exists in 1914. And here it should be remarked that parhamentary sovereignty may possibly at least have been modified in two different directions, which ought to be distinguished. It is possible, in the first place, that the constitution or nature of the sovereign power may have undergone a change. If, for example, the King and the Houses of ParUament had passed a law aboUshing the House of Lords and leaving supreme legislative power in the hands of the King and of the House of Commons, any one would feel that the sovereign to which parhamentary sovereignty had been transferred was an essentially different sovereign from the King and the two Houses which in 1884 possessed supreme power. It is possible, in the second place, that since 1884 the Imperial Parhament may, if not in theory yet in fact, have ceased as a rule to exercise supreme legislative power in certain countries subject to the authority of the King. Let us consider carefully each of these two possibiUties. I. Possible change in constitution or character of the farlior mentary sovereign {Effect of the ParUament Act, 1911). — The matter tmder consideration is in substance whether the Parhament Act,^ has transferred legislative authority from the King ^ and the two Houses of Parhament to the King and the House of Commons 1 provisions of the Commonwealth Act, and the Imperial Parliament, under the National Insurance Act, 1911, has given power to the Insurance Com- missioners and to the Board of Trade to modify some provisions of the Insurance Act. 1 See pp. 98-116, post. " See especially the Parliament Act, 1911, ss. 1-3, and Appendix, Note Xm., the Parliament Act. ' The Parliament Act in no way diminishes the prerogatives of the King as they eidsted immediately before the passing of that Act, and it is enacted (Parliament Act. s. 6) that " nothing in this Act shall diminish or qualify " the existing rights and privileges of the House of Commons." INTRODUCTION The best mode of giving an answer to this question is first to state broadly what were the legislative powers of the House of Lords immediately before the passing of the Parha- ment Act, 18th August 1911, and next to state the main direct and indubitable effects of that Act on the legislative power of the House of Lords and of the House of Commons respectively. Tlw state of things immediately before the passing of the Parliament Act. — No Act of ParUament of any kind could be passed without the consent thereto both of the House of Lords and of the House of Commons. No doubt the House of Lords did very rarely either alter or reject any Money Bill, and though the Lords have always claimed the right to alter or reject such a Bill, they have only on very special occasions exercised this power. No doubt again their lordships have, at any rate since 1832, acknowledged that they ought to pass any Bill deliberately desired by the nation, and also have admitted the existence of a more or less strong presumption that the House of Commons in general represents the wiU of the nation, and that the Lords ought, therefore, in general to consent to a Bill passed by the House of Commons, even though their lordships did not approve of the measure. But this pre- sumption may, they have always maintained, be rebutted if any strong ground can be shown for holding that the electors did not really wish such a Bill to become an Act of Parliament. Hence Bill after Bill has been passed by their lordships of which the House of Lords did not in reaUty approve. It was however absolutely indubitable up to the passing of the Parliament Act that no Act could be passed by ParUament without obtaining the consent of the House of Lords. Nor could any one dispute the legal right or power of the House, by refusing such assent, to veto the passing of any Act of which the House might disapprove. Two considerations, however, must be taken into account. This veto, in the first place, has, at any rate since 1832, been as a rule used by the Lords as a merely suspensive veto. The passing of the Great Reform Act itself was delayed by their lordships for somewhat less than two years, and it may well be doubted whether they have, since 1832, ever by their legislative veto, delayed legislation SOVEREIGNTY OF PARLIAMENT xxi reaUy desired by the electors for as much as two years. It must again be remembered that the Lords, of recent years at least, have at times rejected Bills supported by the majority of the House of Commons which, as has been proved by the event, had not received the support of the electors. Hence it cannot be denied that the action of the House of Lords has sometimes protected the authority of the nation. Tine dvrect effects of the Parliament Act.^ — Such effects can be summed up in popular and intelligible language, rather than with technical precision, as follows : (1) In respect of any Money Bill the Act takes away all legislative power from the House of Lords. The House may discuss such a Bill for a calendar month, but cannot otherwise prevent, beyond a month, the Bill becoming an Act of Parha- ment.^ (2) In respect of any pubHc Bill (which is not a Money Bill),^ the Act takes away from the House of Lords any final veto, but leaves or gives to the House a suspensive veto.* This suspensive veto is secured to the House of Lords because under the ParUament Act, s. 2, no such Bill can be passed without the consent of the House which has not ful- filled the following four conditions : (i.) That the Bill shall, before it is presented to the King for his assent, be passed by the House of Commons and be rejected by the House of Lords in each of three successive sessions.^ (ii.) That the BiU shall be sent up to the House of Lords at least one calendar month before the end of each of these sessions.® (iii.) That in respect of such Bill at least two years shall have elapsed between the date of the second reading of the Bill in the House of Commons during the first of those sessions 1 See as to " iudireot effects," p. Ii, post. ' See Parliament Act, ss. 1 and 3. ' Except a BiU for extending the maximum duration of Parliament beyond five years. See Parliament Act, s. 2, subs. 1. 4 See s. 2. « See s. 2 (1). « Ibid. INTROD UCTION and the date on which it passes the House of Commons in the third of such sessions.^ (iv.) That the Bill presented to the King for his assent shall be in every material respect identical with the Bill sent up to the House of Lords in the first of the three successive sessions except in so far as it may .have been amended by or with the consent of the House of Lords. The history of the Government of Ireland Act, 1914, popu- larly, and throughout this Introduction generally, called the Home Rule Bill or Act, affords good illustrations of the peculiar procedure instituted by the Parhament Act. The Home Rule Bill was introduced into the House of Commons during the first of the three successive sessions on April 11, 1912 : it passed its second reading in the House of Commons during that session on May 9, 1912 ; it was rejected by the House of Lords either actually or constructively ^ in each of the three successive sessions. It could not then possibly have been presented to the King for his assent till June 9, 1914 ; it was not so presented to the King till September 18, 1914. On that day, just before the actual prorogation of Parhament in the third session, it received the royal assent without the consent of the House of Lords ; it thereby became the Govern- ment of Ireland Act, 1914. The Act as assented to by the Bang was in substance identical with the Bill sent up to the House of Lords in the first of the three sessions on January 16, 1913. But here we come across the difficulty of amending a Bill under the Parliament Act after it had once been sent up in the third session to the House of Lords. By Jime 1914 it was felt to be desirable to amend the Home Rule BiU in respect of the position of Ulster. On June 23 the Government brought into the House of Lords a Bill which should amend * S. 2 (1) Proviso. Under this enactment the House of Lords may insist upon a delay of at least two years and one calendar month, and a powerful opposition in the House of Commons may lengthen this delay. ^ Constructive rejection arises under the Parliament Act, s. 2, sub-s. 3, which runs as follows : " A Bill shall be deemed to be rejected by the " House of Lords if it is not passed by the House of Lords either without " amendment or with such amendments only as may be agreed to by both " Houses." The Home Rule BUI was actually rejected by the vote of the House of Lords in its first and second session. It was constructively rejected in the third session by the House of Lords simply by the House not passing the Bill during such session. SOVEREIGNTY OF PARLIAMENT the Home Rule Act which was still a Bill, and it is difficult to find a precedent for thus passing an Act for amending a Bill not yet on the statute-book. The attempt to carry out the Government's proposal came to nothing. On September 18, 1914, the Home Rule Bill became the Home Rule Act (or technically the Government of Ireland Act, 1914) unamended, but on the very day on which the Home Rule Act was finally passed it was in efiect amended by a Suspensory Act under which the Government of Ireland Act, 1914, cannot come into force until at any rate twelve months from September 18, and possibly will not come into force until the present war has ended. The Suspensory Act evades or avoids the effect of the Parliament Act, but such escape from the effect of a recently passed statute suggests the necessity for some amend- ment in the procedure created by the Parhament Act. (3) The House of Commons can without the consent of the House of Lords present to the King for his assent any Bill whatever which has comphed with the provisions of the Parliament Act, section 2, or rather which is certified by the Speaker of the House of Commons in the way provided by the Act to have compUed with the conditions of the Parhament Act, section 2. The simple truth is that the Parliament Act has given to the House of Commons, or, in plain language, to the majority thereof, the power of passing any Bill whatever, provided always that the conditions of the Parhament Act, section 2, are complied with. But these provisions do leave to the House of Lords a suspensive veto which may prevent a Bill from becoming an Act of Parhament for a period of certainly more, and possibly a good deal more, than two years. ^ 1 The Parliament Act leaves the existing rights and privileges of the House of Commons untouched (iiid. sect. 6). No reference whatever is therein made to the so-called " veto " of the King. Its existence is un- doubted, but the veto has not been exercised for at least two centuries. The well-known words of Burke, however, should always be borne in mind : ' • The king's negative to bills," he says, " is one of the most indisputed of the " royal prerogatives ; and it extends to all cases whatsoever. I am far from certain, that if several laws which I know had fallen under the stroke " of that sceptre, the public would have had a very heavy loss. But it ' is not the propriety of the exercise which is in question. The exercise ' itself is wisely forborne. Its repose may be the preservation of its exist- ' enoe ; and its existence may be the means of saving the constitution INTRODUCTION 111 these circumstances it is arguable that the Parliament Act has transformed the sovereignty of Parhament into the sovereignty of the King and the House of Commons. But the better opinion on the whole is that sovereignty still resides in the King and the two Houses of Parliament. The grounds for this opinion are, firstly, that the King and the two Houses acting together can most certainly enact or repeal any law whatever without in any way contravening the Parhament Act ; and, secondly, that the House of Lords, while it cannot prevent the House of Commons from, in effect, passing imder the Parhament Act any change of the constitution, provided always that the requirements of the Parhament Act are comphed with, nevertheless can, as long as that Act remains in force, prohibit the passing of any Act the effectiveness of which depends upon its being passed without delay. Hence, on the whole, the correct legal statement of the actual condition of things is that sovereignty still resides in Parhament, i.e. in the King and the two Houses acting together, but that the Parhament Act has greatly increased the share of sovereignty possessed by the House of Commons and has greatly diminished the share thereof belonging to the House of Lords. II. Practical change in the area of parliamentary sovereignty. {Relation of the Imperial Parliament to the Dominions.'^) — " itself, on an occasion worthy of bringing it forth." — Burke, Letter to tJie Sheriffs of Bristol, vol. iii., ed. 1808, pp. 180, 181 ; ed. 1872, vol. ii. p. 28. Experience has confirmed the soundness of Burke's doctrine. The existence of this " negative " has greatly facilitated the development of the present happy relation between England and her self-governing colonies. It has enabled English and colonial statesmanship to create that combination of Imperial unity with something coming near to colonial independence which may ultimately turn out to be the salvation of the British Empire. ^ For this use of the term Dominions see British Nationality & Status of Aliens Act, 1914, 4 & 5 Geo. V. o. 17, 1st Schedule. Compare especially as to British colonies with representative and responsible government pp. 98 to 116, post. The Dominions for the most part consist either of a country which was a self-governing colony, or of countries which were self-governing colonies in 1884. But this statement does not apply with perfect accuracy to every one of the Dominions. Western Australia, for instance, which is now one of the states of the Commonwealth of Australia, did not obtain responsible government till 1890, and Natal, now a state of the Union of South Africa, did not obtain such government till 1893. The Union of South Africa itself SOVEREIGNTY OF PARLIAMENT xxv The term " Dominions " means and includes the Dominion of Canada, Newfomi.dland, the Commonwealth of AustraUa, New Zealand, and the Union of South Africa. Each of the Dominions is a self-governing colony, i.e. a colony possessed both of a colonial Parliament, or representative legislature, and a responsible government, or in other words, of a govern- ment responsible to such legislature. Our subject raises two questions : First question. — ^What is the difference between the relation of the Imperial Parhament to a self-governing colony, such, e.g., as New Zealand, in 1884, and the relation of the same Parliament to the Dominion, e.g. of New Zealand, in 1914 1 Before attempting a direct answer to this inquiry it is well to point out that in two respects of considerable import- ance the relation of the Imperial Parhament ^ to the self- governing colonies, whether called Dominions or not, has in no respect changed since 1884. In the first place, the Imperial Parhament still claims in 1914, as it claimed in 1884, the possession of absolute sovereignty throughout every part of the British Empire ; and this claim, which certainly extends to every Dominion, would be admitted as sound legal doctrine by any court throughout the Empire which purported to act under the authority consists to a great extent of states which in 1884, though subject to the suzerainty of the King, were (under the government of the Boers) all but independent countries. Throughout this Introduction, unless the contrary is expressly stated, or appears from the context, no reference is made to the position either of (i.) the Crown colonies, or (ii.) the three colonies, viz. the Bahamas, Barbadoes, and Bermuda, which possess representative but not responsible government, or (iii.) British India. This Introduction, in short, in so far as it deals with the relation of the Imperial Parliament to the colonies, refers exclusively, or all but exclusively, to the relation between the Imperial Parliament and the five Dominions. 1 This term means what an English writer on our constitution would generally call simply " Parliament," that is the Parliament of the United Kingdom. The term " Imperial Parliament " is, however, a convenient one when we have to deal, as in this Introduction, with the relation between the Parliament of the United Kingdom and the Dominions, every one of which has representative legislatures of their own which are always popularly, and sometimes in Acts of Parliament, termed Parliaments. The term " Imperial Parliament " is used in colonial statutes, e.g., in the Interpretation Act of the Commonwealth of Australia, No. 2 of 1901. INTRODUCTION of the King. The constitution indeed of a Dominion in general originates in and depends upon an Act, or Acts, of the Imperial Parliament ; and these constitutional statutes are assuredly hable to be changed by the Imperial Parhament. Parhament, in the second place, had long before 1884 practically admitted the truth of the doctrine in vain pressed upon his contemporaries by Burke,^ when insisting upon the folly of the attempt made by the Parhament of England to exert as much absolute power in Massachusetts as in Middlesex, that a real limit to the exercise of sovereignty, is imposed not by the laws of man but by the nature of things, and that it was vain for a parhamentary or any other sovereign to try to exert equal power throughout the whole of an immense Empire. The completeness of this admission is shown by one noteworthy fact: the Imperial Parhament in 1884, and long before 1884, had ceased to impose of its own authority and for the benefit of England any tax upon any British colony.^ The omnipotence, in short, of Parhament, ^ " Who are you," to quote his words, " that should fret and rage, and " bite the chains of nature ? Nothing worse happens to you, than does to " all nations who have extensive empire ; and it happens in all the forms into which empire can be thrown. In large bodies, the circulation of power must be less vigorous at the extremities. Nature has said it. The Turk cannot govern Egypt, and Arabia, and Curdistan, as he governs Thrace ; nor has he the same dominion in the Crimea and in Algiers which he has at Brusa and Smyrna. Despotism itself is obliged to truck and huckster. The Sultan gets such obedience as he can. He governs with a loose rein, that he may govern at all ; and the whole of the force and vigour of his authority in the centre is derived from a prudent relaxation in all his borders. Spain, in her provinces, is, perhaps, not so well- obeyed as you are in yours. She complies too ; she submits ; she watches times. This is the immutable condition, the eternal law, of extensive and detached empire." — Burke, GoticiKation with America, vol. iii. (ed. 1808), pp. 56, 57. ^ This renunciation by the Imperial Parliament of the right to impose taxes upon a colony, whether a self-governing colony or not, has passed through two stages. Since 1783 taxation imposed by an Imperial Act has always been, even in the case of a Crown colony, imposed for the benefit of the colony, and the proceeds thereof have been paid to the colony. But until the repeal of the Navigation Laws in 1849 Parliament, in support of our whole navigation system, retained the practice of imposing duties on goods imported into the colonies, though the proceeds thereof were paid to the colonies so taxed. Since 1849 no Imperial Act has been passed for the taxation of any colony, and no colony is compelled by the Imperial Parlia- ment to contribute anything in the way of taxation towards the cost of the SOVEREIGNTY OF PARLIAMENT though theoretically admitted, has been applied in its full effect only to the United Kingdom. A student may ask what is the good of insisting upon the absolute sovereignty of Parhament in relation to the Dominions when it is admitted that Parliament never gives, outside the United Kingdom, and probably never will give, full effect to this asserted and more or less fictitious omnipotence. The answer to this suggestion is that students who do not bear in mind the claim of Parliament to absolute sovereignty through- out the whole of the British Empire, will never imderstand the extent to which this sovereign power is on some occasions actually exerted outside the hmits of the United Kingdom, nor, though this statement sounds paradoxical, will they understand the limits which, with the full assent, no less of EngUsh than of colonial statesmen, are in fact, as regards at any rate the Dominions, imposed upon the actual exercise of the theoretically hmitless authority of Parliament. It will be found further that even to the Dominions themselves there is at times some advantage in the admitted authority of the Imperial Parhament to legislate for the whole Empire. In the eyes, at any rate, of thinkers who share the moral convictions prevalent in most civihsed states, it must seem a gain that the Imperial Parhament should have been able in 1834 to prohibit the existence of slavery in any country subject to the British Crown, and should be able to-day to forbid throughout the whole Empire the revival of the Slave Trade, or of judicial torture. Let us now turn to the points wherein the relation of the Imperial Parhament to the self-governing colonies- in 1884 differed from the existing relation of the Imperial Parhament to the Dominions in 1914. The relation of the Imperial Parliament in 1884 to a self- governing colony, e.g. New Zealand. The Imperial Parhament, under the guidance of Enghsh statesmen, certainly admitted in practice thirty years ago that a self-governing colony, such as New Zealand, ought to government of the United Kingdom or towards the defence of the British Empire. The Imperial Parliament does stUl impose customs duties upon the Isle of Man. See 3 & 4 Geo. V. o. 18. INTRODUCTION be allowed in local matters to legislate for itself. Parliament did, however, occasionally legislate for New Zealand or any other self - governing colony. Thus the existing English Bankruptcy Act, 1883, as a matter of fact transferred, as it still transfers, to the trustee in bankruptcy the bankrupt's property, and even his immovable property situate in any part of the British Empire, ^ and a discharge under the EngUsh Bankruptcy Act, 1883, was, and stiH is, a discharge as regards the debts of the bankrupt contracted in any part of the British Empire,^ e.g. in New Zealand or in the Common- wealth of Australia. So again the veto of the Crown was, in one form or another * in 1884, and even later, used occasion- ally to prevent colonial legislation which, though approved of by the people of the colony and by the legislature thereof, might be opposed to the moral feeling or convictions of Enghshmen. Thus colonial Bills for legahsing the marriages between a man and his deceased wife's sister, or between a woman and her deceased husband's brother, were sometimes vetoed by the Crown, or in efEect on the advice of ministers supported by the Imperial Parhament. No doubt as time went on the unwilhngness of Enghsh statesmen to interfere, by means of the royal veto or otherwise, with colonial legislation which affected only the internal government of a self-govern- ing colony, increased. But such interference was not un- known. There was further, in 1884, an appeal in every colony from the judgments of the Supreme Court thereof to the Enghsh Privy Council. And a British Government would in 1884 have felt itself at hberty to interfere with the executive action of a colonial Cabinet when such action was inconsistent with Enghsh ideas of justice. It was also in 1884 a clear principle of Enghsh administration that Enghsh colonists should neither directly nor indirectly take part in negotiating treaties with foreign powers. Nor had either England or the self-governing colonies, thirty years ago, reahsed the general advantage of those conferences now becoming a regular part 1 See Dioey, Oonfiict of Laws {2nd ed.), pp. 329-333. " Ibid., p. 441, and Ellis v. M'Henry (1871), L. R. 6, C. P. 228, 234- 236 ; but contrast New Zealand Loan, etc. Co. v. Morrison [1898], A. C. 349 cited Conflict of Laws, p. 342. ' See pp. 111-116, post. SOVEREIGNTY OF PARLIAMENT of English public life, at which English ministers and colonial ministers could confer upon questions of colonial poHcy, and could thus practically acknowledge the interest of the colonies in everjrfching which concerned the welfare of the whole Empire. Neither certainly did Enghsh statesmen in 1884 contemplate the possibility of a colony standing neutral during a war between England and a foreign power. The relation of the Imperial Parliament in 1914 to a Dominion.^ This relation may now, it is submitted, be roughly summed up in the following rules : RviXe 1. — ^In regard to any matter which directly affects Imperial interests the Imperial Parhament will (though with constantly increasing caution) pass laws which apply to a Dominion and otherwise exercise sovereign power in such a Dominion. But this rule applies almost exclusively to matters which directly and indubitably affect Imperial interests.^ iJwZe 2. — ^Parhament does not concede to any Dominion or to the legislature thereof the right — (a) to repeal [except by virtue of an Act of the Imperial Parhament] any Act of the Imperial Parhament applying to a Dominion ; (6) to make of its own authority a treaty with any foreign power ; (c) to stand neutral in the event of a war between the King and any foreign power, or, in general, to receive any benefit from a foreign power which is not offered by such power to the whole of the British Empire.^ It must be noted that under these two rules the Imperial Parliament does retain, and sometimes exerts the right to legislate in regard to matters which may greatly concern the prosperity of a Dominion, and also does in some respects seriously curtail both the legislative power of a Dominion Parliament and the executive power of a Dominion Cabinet. As long, in short, as the present state of things continues, "■ See as to meaning of Dominion, p. xxiv, note 1, aint€. ' See Keith, Besponsible Government in the Dominions, p. 1316. » Ibid. pp. 1119-1122. INTROD UCTION the Imperial Parliament, to the extent I have laid down, still treats any Dominion as on matters of Imperial concern subordinate to the sovereignty of the Imperial Parliament. i?Mfe 3. — The Imperial Parliament now admits and acts upon the admission, that any one of the Dominions has acquired a moral right to as much independence, at any rate in regard to matters occurring within the territory of such Dominion, as can from the nature of things be conceded to any country which still forms part of the British Empire. Take the following illustration of the extent of such internal independence : ParKament does not (except at the wish of a Dominion) legislate with respect to matters which merely concern the internal interests of such Dominion, e.g. New Zealand.^ The legislature of any Dominion has within the territorial hmits of such Dominion power to legislate in regard to any matter which solely concerns the internal interests of such Dominion. The power of the Crown, i.e. of the British ministry, to veto or disallow in any way ^ any Bill passed by the legislature of a Dominion, e.g. New Zealand, is now most sparingly exercised, and will hardly be used unless the Bill directly interferes with Imperial interests or is as regards the colonial legislature ultra vires. Thus the Crown, or in other words a British ministry, will now not veto or disallow any Bill passed by the legislature of a Dominion on the ground that such Bill is indirectly opposed to the interests of the United Kingdom, or contradicts legal principles generally upheld in England, e.g. the principle of free trade. The British Government will not interfere with the executive action of the Government {e.g. of New Zealand) in the giving or the withholding of pardon for crime, in regard to transactions taking place wholly within the territory of New Zealand.^ Any Dominion has now a full and admitted right to raise mihtary or naval forces for its own defence. And the pohcy of England is in the main to withdraw the English Army from ' See Keith, Responsible Oovernment in the Dominions, pp. 1316-1328. ^ See p. Ill, post. ' See Keith, Responsible Oovernm^ni in the Dominions, p. 1583. SOVEREIGNTY OF PARLIAMENT the DoEoinions and to encourage any Dominion to provide for its own defence and to raise for itself a Navy, and thereby contribute to the defensive power of the British Empire. The Imperial Government is now ready at the wish of a Dominion to exclude from its constitution, either partially or wholly, the right of appeal from the decision of the Supreme Court of such Dominion to the Privy Council.^ The Imperial Government also is now ready at the wish of a Dominion to grant to such Dominion the power to amend by law the constitution thereof though created under an Act of the Imperial Parhament.^ iJwfe 4. — The habit has now grown up that conferences should be held from time to time in England, at which shall be present the Premier of England and the Premier of each Dominion, for consultation and discussion on all matters con- cerning the interest and the poUcy of the Empire, and that such conferences should be from time to time held may now, it is submitted, be considered a moral right of each Dominion. These conferences, which were quite unthought of thirty years ago, and which did not receive their present form imtil the year 1907, mark in a very striking manner a gradual and therefore the more important change in the relations between England and the self-governing colonies. The answer then to the question before us ^ as to the difier- ence between the relation of England (or in strictness of the Imperial ParUament) to the self-governing colonies * in 1884 and her relation to the Dominions in 1914 can thus be summed up : At the former period England conceded to the self-governing colonies as much of independence as was necessary to give to such colonies the real management in their internal or local affairs. But EngHsh statesmen at that date did intend to retain for the Imperial Par- liament, and the Imperial Government as representing such ' See Commonwealth of Australia Constitution, s. 74 ; South Africa Act. 1909, s. 106. 2 See especially South Africa Act, 1909, b. 106. » See first question, p. xxv, ante,. * The difference between the expression " self-governing colonies " and " Dominions " is worth noticing. The first is appropriate to 1884, the second is appropriate to 1914. INTRO D UCTIOJV Parliament, a real and efiective control over the action of the ministry and the legislature of each self-governing colony in so far as that control was not palpably incon- sistent with independence as regards the management of strictly local afiairs. In 1914 the colonial poHcy of England is to grant to every Dominion absolute, unfettered, complete, local autonomy,^ in so far as such perfect self-government by a Dominion does not clearly interfere with loyalty of the Dominion to the Empire. The two relations of England to the self-governing colonies — now called Dominions — are, it may be objected, simply one and the same relation described in somewhat different language. The objection is plausible, but not soimd. My effort has been to describe two different ways of looking at one and the same relation, and the results of this difference of view are of practical consequence. In 1884 it was admitted, as it is to-day, that the self-governing colonies must have rights of self-government. But in 1884 the exercise of self-government on the part of any colony was regarded as subordinate to real control by the Enghsh Parlia- ment and Crown of colonial legislation which might be opposed to Enghsh interests or to Enghsh ideals of poHtical prudence. In 1914 the self-government, e.g., of New Zealand means absolute, imfettered, complete autonomy, without considting Enghsh ideas of expediency or even of moral duty. The one hmit to this complete independence in regard to local govern- ment is that it is confined to reaUy local matters and does not trench upon loyalty to the Empire. The independence of the Dominion, in short, means nowadays as much of independence as is compatible with each Dominion remain- ing part of the Empire. Second, question. — ^What are the changes of opinion which have led up to the altered relation between England and the Dominions ? ^ " In the early Victorian era [and even in the naid- Victorian " era] there were two rough-and-ready solutions for what " was regarded, with some impatience, by the British states- * See Minutes of Proceedings of Imperial Conference, 1911 rCd. 57461 p. 22. '■ ■"' ^ See Law and Opinion, pp. 450-457. SOVEREIGNTY OF PARLIAMENT ' men of that day as the ' Colonial problem.' The one was ' centralisation — ^the government, that is, except in relatively ' trivial matters, of all the outlying parts of the Empire ' from an office in Downing Street. The other was dis- ' integration — ^the acquiescence in, perhaps the encouragement ' of, a process of successive ' hivings off ' by which, without ' the hazards or embitterments of coercion, each community, ' as it grew to pohtical manhood, would follow the example ' of the American Colonies, and start an independent and ' sovereign existence of its own. After 70 years' experience ' of Imperial eivolution, it may be said with confidence that neither of these theories commands the faintest support to-day, either at home or in any part of our self-governing Empire. We were saved from their adoption — some people would say by the favour of Providence — or (to adopt a ' more flattering hypothesis) by the poHtical instinct of our ' race. And just in proportion as centraUsation was seen to ' be increasingly absurd, so has disintegration been felt to ' be increasingly impossible. Whether in the United King- ' dom, or in any one of the great communities which you ' represent, we each of us are, and we each of us intend to ' remain, master in our own household. This is, here at ' home and throughout the Dominions, the hfe-blood of our ' polity. It is the a/rticulus stantis aut cadentis Imperii." ^ These words are a true statement of patent facts, but it will on examination be found that the change during recent years in EngUsh opinion, and also in colonial opinion, with regard to the relation between England and the Dominions presents rather more complexity than at first sight may be apparent^ to a casual reader of Mr. Asquith's address. Up to the last quarter of the nineteenth century, and even as late as 1884, many EngHshmen, including a considerable number of our older statesmen, held that the solution of the colonial problem was to be found wholly in the wilUngness of England to permit and even to promote the separation from the Empire 1 Minutes of Proceedings of the Imperial Conference, 1911 [Cd. 5745]. Opening address of the President (Mr. Asquith), p. 22. Compare " Message of King to Governments and Peoples of the Self-governing Dominions," Times, Sept. 1-0, 1914. " Compare Dicey, Law and Opinion, pp. 450-457. C INTRO D UCTION of any self-governing colony < which desired independence, provided that this separation should take place without engendering any bad feeUng between England and her so- called dependencies. No doubt there existed, at any rate till the middle of the nineteenth century, a limited body of experienced officials who held that our colonial system, as long as it was maintained, imphed the active control by England of colonial affairs. But such men in many cases doubted whether the maintenance of the Colonial Empire was of real benefit to England, and thought that on the whole, with respect at any rate to any self-governing colony, the course of prudence was to leave things alone until it should have become manifest to every one that the hour for friendly separation had struck. The self-governing colonies, on the other hand, up at any rate till 1884, just because they were more and more left alone and free to manage their own affairs, though they occasionally resented the interference of the Enghsh Government with colonial legislation, were on the whole contented with things as they stood. They certainly did not display any marked desire to secede from the Empire. Still less, however, did they show any active wish to take part in controlKng the poKcy of the Empire, or to share the cost of Imperial defence. Honest behef in the principle of laissezfaire produced its natural and, as far as it went, beneficial result. It removed causes of discontent ; it prevented the rise of ill-will between England and her self-governing colonies. But it did not of itself produce any kind of Imperial patriotism. The change which a student has to note is an alteration of feeling, which did not become very obvious till near the close of the nineteenth century. This was the growth (to use a current expression) of Imperialism. But this term, Hke all popular phrases, is from its very vague- ness certain to mislead those who use it, unless its meaning be defined with some care. In regard to the British Empire it ought to be used as a term neither of praise nor of blame, but as the name for an idea which, in so far as it is true, is of considerable importance. This idea is that the British Empire is an institution well worth maintaining, and this not on mere grounds of sentiment but for definite and assign- SOVEREIGNTY OF PARLIAMENT able reasons. Upon England and upon every country subject to the King of England the British Empire confers at least two benefits : It secures permanent peace among the in- habitants of the largest of existing states ; it again secures, or ought to secure, to the whole of this vast community absolute protection against foreign attack. The resources of the Empire are, it is felt, practically inexhaustible ; the creation of a fleet supported by revenues and also by armies drawn from every country subject to the King of England should, provided England herself stands properly armed, render invasion of the British Empire by any of the great military powers of Europe an impossibility. But then the hugeness of the Empire and the strength of the Empire, if it remains united, are enough to show that the different countries which are parts of the Imperial system would, if they each stood alone, be easily assailable by any state or combination of states which had the command of large military and naval armaments. Neither England, in short, nor any of her self-governing Dominions can fail to see that the dissolution of the Empire might take from both the mother country and the most powerful of the Dominions the means necessary for maintaining liberty and independence. Loyalty to the Empire, typified by loyalty to the King, is in short a sentiment developed by the whole course of recent history. It is a feehng or conviction which places the relation of England and the Dominions in a new light. It amply accovmts for the extraordinary difference" between the colonial poHcy accepted both by England and by the self-governing colonies in 1850, and even (to a great extent) in 1884, and the colonial pohcy acceptable both to England and to her all but inde- pendent Dominions in 1914. English statesmen on the one hand now proffer to, and almost force upon, each Dominion every Uberty compatible with the maintenance of the Empire ; but then Enghsh statesmen no longer regard with philosophie calm the dawn of the day when any one of the Dominions may desire to secede from the Empire. The Dominions, on th^ Qther hand, have no longer any reason to fear and do not desire any interference with colonial affairs either by the Jegislation of the Imperial Parliament or by the administrative gjCtipn of officia,ls a,t Downing Street whp are the servants of tb^ INTRODUCTION Imperial Parliament. But then statesmen of the Dominions show a vidlhngness to share the cost of the defence of the Empire, and at the same time express at each of the great Conferences, with more and more plainness, the desire that the Dominions should take a more active part in the deter- mination of Imperial pohcy. It is not my object, at any rate at this part of this Introduction, to consider how far it may be possible to give satisfaction to the desires of rational Imperiahsts, and still less ought any man of sense to express any confident opinion as to how far the sentiment of Im- periaHsm may in the course of time increase in force or suffer diminution. My immediate aim is to show that this new Imperialism is the natural result of historical circumstances. It is well, however, to bear in mind several considerations which Enghshmen of to-day are apt to overlook. The friendly Imperiahsm which finds expression in the Imperial Conferences is itself the admirable fruit of the old policy of laissezfaire. The system of leaving the self-governing colonies alone first appeased discontent, and next allowed the growth of friendhness which has made it possible for the English inhabitants, and even in some cases the foreign inhabitants, of the Dominions to recognise the benefits which the Empire confers upon the Dominions, and for Enghshmen at home to see that the Dominions may contribute to the safety of England and to the prosperity of the whole Empire.^ But we must at the same time recognise that the pohcy of friendly indifference to secession from the Empire, which nominally, at any rate, was favoured by many Enghsh statesmen during the nineteenth century, has come to an end. The war iu South Africa was in reahty a war waged not only by England but also by the Dominions to prevent secession; the concession further to the South African Union of the full rights of a Dominion is no more inconsistent with resistance to secession than was the restoration to the Southern States of the American Commonwealth of their full right to existence as States of the United States. It must, lastly, be noted, that while the inhabitants of England and of the Dominions express at each Conference their honest pleasure in Imperial unity, the growth 1 Aa they now [1914] are contributing. RULE OF LAW of Imperialism already causes to many patriotic men one disappointment. Events suggest that it may turn out difficult, or even impossible, to establish throughout the Empire that equal citizenship of all British subjects which exists in the United Kingdom and which Enghshmen in the middle of the nineteenth century hoped to see estabUshed throughout the length and breadth of the Empire.^ (B) The Eule of Law^ The rule of law, as described in this treatise, remains to this day a distinctive characteristic of the Enghsh constitu- tion. In England no man can be made to suffer punishment or to pay damages for any conduct not definitely forbidden by law ; every man's legal rights or habihties are almost invariably determined by the ordinary Courts of the realm, and each man's individual rights are far less the result of our constitution than the basis on which that constitution is founded. The principles laid down in this treatise with regard to the rule of law and to the nature of droit administrabif need Httle change. My object in this Introduction is first to note a ^ The kind of equality among British subjects which Englishmen, whether wisely or not, hoped to establish throughout the whole Empire is best seen by considering the sort of equality which actually exists and has for many years existed in England. Speaking broadly, every British subject has in England at the present day the same political rights as every natural- born Englishman, e.g. an Englishman bom in England and the son of English parents settled in England. Thus a British subject, whatever be the place of his birth, or the race to which he belongs, or I may now add the religion which he professes, has, with the rarest possible exceptions, the same right to settle or to trade in England which is possessed by a natural-born English- man. He has further exactly the same political rights. He can, if ho satisfies the requirements of the Enghsh electoral law, vote for a member of Parliament ; he can, if he commends himself to an English constituency, take his seat as a member of Parliament. There is no law which forbids any British subject, wherever he be born, or to whatever race he belongs, to become a member of the English Cabinet or a Prime Minister. Of course it will be said that it is^xtremely improbable that the offices I have men- tioned will, in fact, be filled by men who are not in reahty Englishmen by race. This remark to a certain extent is true, though it is not wholly true. But the possession of theoretically equal political rights does certainly give in England, or rather to be strictly accurate in the United Kingdom, to every British subject an equality which some British subjects do not possess in some of the Dominions. 2 See Part II., and especially Chap. IV., post INTRODUCTION' singular decline among modern Englishmen in their respect or reverence for the rule of law, and secondly, to call attention to certain changes in the droit administratif of France.^ I. Decline in reverence for rule of law. — The ancient veneration for the rule of law has in England suffered during the last thirty years a marked decline. The truth of this assertion is proved by actual legislation, by the existence among some classes of a certain distrust both of the law and of the judges, and by a marked tendency towards the use of lawless methods for the attainment of social or political ends. Legislation. — Recent Acts have given judicial or quasi- judicial authority to officials ^ who stand more or less in connection with, and therefore may be influenced by, the government of the day, and hence have in some cases excluded, and in others indirectly diminished, the authority of the law Courts. This tendency to diminish the sphere of the ride of law is shown, for instance, in the judicial powers conferred upon the Education Commissioners by the Education Act, 1902,^ on various officials by the National Insurance Acts, 1911 and 1913,* and on the Commissioners of Inland Revenue and other officials by the Mnance Act, 1910.^ It is also shown by the Parhament Act, 1911, s. 3, which enacts that " any certificate of the Speaker of the " House of Commons given imder this Act shall be con- " elusive for all purposes and shall not be questioned in any " Court of law." This enactment, if strictly construed, would protect any Speaker who, either from partisanship or to promote some personal interest of his own, signed a certificate which was notoriously false from being hable to punishment by any Court of law whatever.^ No doubt the House of 1 See Chap. XII. post. 2 See generally on this point Muir, Peers and Bureaucrats, especially pp 1-94. ' ^ See sect. 7, and R. v. Board of Education (Swansea Case) [1910], 2KB \6T ; Board of Educaiiomr. Rice [19U], A. C.17Q. * See National Insurance Act, 1911, ss. 66, 67, 88 (1), and generally Law and Opinion (2nd ed.), pp. 41-43. ° See especially sect. 2, sub-s. 3, ss. 33 and 96. " Would this enactment protect the Speaker against an impeachment for giving a certificate which he knew to be false ? RULE OF LA W Commons has been historically jealous of any judicial inter- ference with persons actiag under the authority of the House, and has on more than one occasion claimed ia a sense to be above the law of the land. All that can be said is that such claims have rarely been of advantage or credit to the House, and that the present time is hardly the proper season for the curtailment by the House of legitimate judicial power. It must, however, in fairness be noted that the invasion of the rule of law by imposing judicial functions upon officials is due, in part, to the whole current of legislative opinion in favour of extending the sphere of the State's authority. The in- evitable result of thus immensely increasing the duties of the Government is that State officials must more and more under- take to manage a mass of public business, e.g., to give one ex- ample only, the pubhc education of the majority of the citizens. But Courts are from the nature of things imsuited for the transaction of business. The primary duty of a judge is to act in accordance with the strict rules of law. He must shun, above all things, any injustice to individuals. The well-worn and often absurdly misapplied adage that "it is better that " ten criminals should escape conviction than that one innocent " man should without cause be found guilty of crime " does after all remind us that the first duty of a judge is not to punish crime but to punish it without doing injustice. A man of business, whether employed by a private firm or work- ing in a public office, must make it his main object to see that the business in which he is concerned is efficiently carried out. He could not do this if tied down by the rules which rightly check the action of a judge. The official must act on evidence which, though strong, may not be at all conclusive. The official must often act with severity towards subordinates whose stupidity, and not their voluntary wrong-doing, gives cause for dismissal. A judge, on the other hand, is far more concerned with seeing that the law is strictly carried out than in showing consideration to individuals. " That hard cases make bad law " is proverbial ; the transaction of business, in short, is a very different thing from the giving of judgments : The more multifarious therefore become the affairs handed over to the management of civil servants the greater will be always xl INTRODUCTION the temptation, and often the necessity, extending to the discretionary powers given to officials, and thus preventing law Coiirts from intervening in matters not suited for legal decision. Distrust of Judges and of Courts.— li the House of Commons deliberately excludes the intervention of any law Court in matters which the House may deem (with very dubious truth) to concern the House alone, we can scarcely wonder that artisans should have no love for judicial decisions. In plain truth, while every man of at all respectable instincts desires what he considers justice for himself and for the class to which he belongs, almost all men desire something more than, and different from, justice for themselves and against their neigh- bours. This is inevitably the case with persons such as the members of trade unions, who are trying, with a good deal of success, to enforce trade rules which often arouse the censuje of the pubhc, and sometimes come into absolute conffict with the law of the land. The blackleg may be, and one may suspect often is, a mean fellow who, to put money into his own pocket, breaks rules which his fellow-workers hold to be just and beneficial to the trade generally. He, for example, has no objection, if properly paid for it, to work with men who are not members of any union. The blackleg, however, all but invariably keeps within the law of the land, and proposes to do nothing which violates any principle estab- lished by common law or any enactment to be found in the Statute Book. The trade unionists whom he offends know perfectly well that the blackleg is in the eye of the law no wrong-doer ; they therefore feel that the Courts are his protectors, and that, somehow or other, trade unions must be protected against the intervention of the judges. Hence the invention of that self-contradictory idea of " peaceful picketing," which is no more capable of real existence than would be " peaceful war " or " unoppressive oppression"; hence, too, that triumph of legahsed wrong-doing sanctioned by the fouucth section of the Trade Disputes Act,^ 1906. It is however by no means to be supposed that artisans are the 1 See Law and Opinion, pp. xliv-xlvi, and compare the Trade Union Act, 1913, ibid. p. xlviii. RULE OF LAW xli only class accustomed to decry a judge or the legislature when the one gives a judgment or the other passes a law opposed to the moral convictions of a particular part of the community. Lawlessness. — Till a time well within the memory of persons now living, it would have been very difficult to find any body of men or women who did not admit that, broadly speaking, a breach of the law of the land was also an act of immorahty. No doubt at all times there have existed, as at the present day, a large number of habitual law-breakers, but though a cheat, a pickpocket, or a burglar does constantly break the law, there is no reason to surmise that cheats, pickpockets, or burglars maintain the doctrine that law-breaking is itself a praise- worthy or a moral act. Within the last thirty years, however, there has grown up in England, and indeed in many other civiHsed countries, a new doctrine as to lawlessness. This novel phenomenon, which perplexes morahsts and statesmen, is that large classes of otherwise respectable persons now hold the belief and act on the conviction that it is not only allowable, but even highly praiseworthy, to break the law of the land if the law-breaker is pursuing some end which to him or to her seems to be just and desirable. This view is not confined to any one class. Many of the EngHsh clergy (a class of men well entitled to respect) have themselves shown no great hesitation in thwarting and breaking laws which they held to be opposed to the law of the Church. Passive resisters do not scruple to resist taxes imposed for some object which they condemn. Conscientious objectors are doing a good deal to render ineffective the vaccination laws. The mihtant suffragettes glorify lawlessness ; the nobleness of their aim justifies in their eyes the hopeless and perverse illegahty of the means by which they hope to obtain votes for women. Whence arises this zeal for lawlessness ? The following reflections afford an answer, though only a partial answer, to this perplexing inquiry : In England democratic government has already given votes, if not precisely supreme power, to citizens who, partly because of the fairness and the regularity with which the law has been enforced for generations in Great Britain, hardly perceive the risk and ruin involved in a departure from the rule of law. xlii INTRODUCTION Democratic sentiment, fuither, if not democratic principle, demands that law should on the whole correspond with public opinion ; but when a large body of citizens not only are opposed to some law but question the moral right of the state to impose or maintain a given law, our honest democrat feels deeply perplexed how to act. He does not know in effect how to deal with lawlessness which is based upon a funda- mental difference of pubhc opinion.^ For such difference makes it impossible that on a given topic the law should be in reahty in accordance with pubhc opinion. Thus many Englishmen have long felt a moral difficulty in resisting the claim of a nationahty to become an independent nation, even though the concession of such a demand may threaten the ruin of a powerful state and be opposed to the wishes of the majority of the citizens thereof. So the undoubted fact that a large number of Enghshwomen desire parhamentary votes seems, in the eyes of many excellent persons, to give to Englishwomen a natural right to vote for members of Parha- ment. In each instance, and in many other cases which will occur to any intelHgent reader, Enghsh democrats entertain a considerable difficulty in opposing claims with which they might possibly on groimds of expediency or of common sense have no particular sympathy. The perplexity of such men arises from the idea that, at any rate under a democratic government, any law is unjust which is opposed to the real or dehberate conviction of a large number of citizens. But such a conviction is almost certain to beget, on the part of persons suffering under what they deem to be an unjust law, the beUef , delusive though it often is, that any kind of injustice may under a democratic government be rightly opposed by the use of force. The time has come when the fact ought to be gener- ally admitted that the amountof government, that is of coercion, of individuals or classes by the state, which is necessary to the welfare or even to the existence of a civiUsed communitv, cannot permanently co-exist with the effective behef that de- ference to pubhc opinion is in all cases the sole or the necessary basis of a democracy. The justification of lawlessness is also, in England at any rate, suggested if not caused by the misde- 1 See especially Lowell, Public Opinion and Popular Government, chap. iii. RULE OF LAW xliii velopment of party government. The rule of a party cannot be permanently identified with the authority of the nation or with the dictates of patriotism. This fact has in recent days become so patent that eminent thinkers are to be found who certainly use language which implies that the authority or the sovereignty of the nation, or even the conception of the national will, is a sort of pohtical or metaphysical fiction which wise men will do weU to discard. Happily, crises arise from time to time in the history of any great state when, because national existence or national independence is at stake, the mass of a whole people feel that the authority of the nation is the one patent and the one certain poUtical fact. To these causes of lawlessness honesty compels the addition of one cause which loyal citizens are most anxious not to bring into promin- ence. No sensible man can refuse to admit that crises occasion- ally, though very rarely, arise when armed rebellion against unjust and oppressive laws may be morally justifiable. This admission must certainly be made by any reasoner who sympathises with the principles inherited by modern Liberals from the "Whigs of 1688. But this concession is often mis- construed ; it is taken sometimes to mean that no man ought to be blamed or punished for rebellion if only he believes that he suffers from injustice and is not pursuing any private interest of his own. II. Gomfarison between the present official law of England and the present droit administratif of France.^ — The last thirty years, and especially the fourteen years which have elapsed since the beginning of the twentieth century, show a very noticeable though comparatively shght approxima- tion towards one another of what may be called the official law of England and the droit administratif of France. The extension given in the England of to-day to the duties and to the authority of state officials, or the growth, of our bureaucracy,^ to use the expression of an able writer, has, as one would naturally expect, produced in the law governing our bureaucrats some features which faintly recall 1 See Chap. XII., especially pp. 364-401, post ; Law and Opinion, pp. xxxii-liii. ^ Muir, Peers and Bureaucrats. xliv INTRODUCTION some of tte characteristics wHch mark the droit adminis- tratif of France. Our civil servants, indeed, are as yet not in any serious degree put beyond the control of the law Courts, but in certain instances, and notably vsdth regard to many questions arising under the National Insurance Act, 1911, something very hke judicial powers have been given to officials closely connected with the Government.^ And it may not be an exaggeration to say that in some directions the law of England is being " officialised," if the expression may be allowed, by statutes passed under the influence of socialistic ideas. It is even more certain that the droit administratif of France is year by year becoming more and more judicialised. The Conseil d'Etat, or, as we might term it, the Council, is (as all readers of my seventh edition of this work will know) the great administrative Court of France, and the whole relation between the judicial Courts and the Council still depends, as it has depended now for many years, upon the constitution of the Conflict Court,^ which contains members drawn in equal numbers from the Council of State and from the Court of Cassation. It would be idle to suppose that the decisions of the Council itself when deahng with questions of administrative law do not now very nearly approach to, if indeed they are not in strictness, judicial decisions. The Council, at any rate when acting in a judicial character, cannot now be presided over by the Minister of Justice who is a member of the Cabinet.* StiU it would be a grave mistake if the recognition of the growth of official law in England and the gradual judiciahsation of the Council as an administrative tribunal led any Enghshman to suppose that there exists in England as yet any true administrative tribunals or any real administrative law. No doubt the utmost care has been taken in France * to give high authority to the Council as an administrative tribunal and also to the Conffict Court. Still ^ See Law and Opinion, pp. xxxix-xliii. 2 As to the constitution of this Court see p. 360 and Appendix, Note XI. p. 555, post. " See Poinoar^, How France is Governed, Trans. B. Miall. (T. Fisher Unwin, 1913), p. 272. * Administrative law has in some other continental countries, e.g. in Germany, been far less judicialised tlian in France. RULE OF LAW xlv the members of the Coimcil do not hold their position by anything hke as certain a tenure as do the judges of the High Court in England, or as do the judges (if we may use Enghsh expressions) of the French common law Courts. A member of the Council is very rarely dismissed, but he still is dis- missible. It must be noted further that the Minister of Justice is still the legal President of the Conflict Court, though he does not generally preside over it. When, however, the members of the Conflict Court are equally divided as to the decision of any case, the Minister of Justice does preside and give his casting vote. It is indeed said that such a case, which must almost necessarily be a diflicult and probably an important one, is in truth again heard before the Minister of Justice and in effect is decided by him. A foreigner without practical acquaintance with the French legal system would be rash indeed were he to form or express an assured opinion as to the extent to which the decisions of the Council or the Conflict Court are practically independent of the wishes and the opinions of the Ministry of the day. Hesitation by a foreign critic is the more becomings because it is certain, that Frenchmen equally competent to form an opinion would differ in their answer to the inquiry, whether the Council and the Conflict Court ought to be still more completely judicial- ised. The constitution of the Council of State and of the Con- flict Coiirt may suggest to a foreign critic that while neither of these bodies may be greatly influenced by the Ministry of the day, they are more hkely to represent official or govern- mental opinion than are any of our English tribunals. It must further always be remembered that under the French Eepubhc, as under every French government, a kind of authority attaches to the Government and to the whole body of officials in the service of the state (fonctionTMvres) such as is hardly possessed by the servants of the Crown in England,^ and especially that proceedings for the enforcement of the criminal law are in France wholly under the control ^ Note, for instance, the absence of any law like the Habeas Corpus Act and the wide and arbitrary powers still left to the police under the head of the regime, de police ; Duguit, Traile de Droit Oonstitutionnel, ii. pp. 24-26, 33-45, and also the protection still extended in some instances to officials , acting under the orders of their superior. xlvi INTRODUCTION of the Government. The high repute of the Council and, as it seems to a foreigner, the popularity of administrative law, is apparently shown by the success with which the Council has of recent years extended the doctrine that the state ought to compensate persons who suffer damage not only from the errors or faults, e.g. neghgence, of officials, but also for cases in which the law is so carried out that it inflicts special damage upon iadividuals, that is damage beyond what is borne by their neighbours.^ The authority again of the Council is seen in the wide extension it has given to the principle that any act done by an official which is not justified by law will, on its illegality being proved, be declared a nullity by the Council. It ought to be noted that this extension of the hability of the state must, it would seem, in practice be a new protection for officials ; for if the state admits its own liability to pay compensation for damage suffered by individuals through the conduct of the state's servants, this admission must induce persons who have suffered wrong to forego any remedy which they may have possessed against, say, a postman or a poHceman, personally, and enfotce their claim not against the immediate wrong-doer but against the state itself. One singular fact closely connected with the influence in France of diiroil ctdministratif deseTves the notice of EngHshmen. In the treatises on the constitutional law of France produced by writers entitled to high respect will be found the advocacy of a new form of decentralisation termed decentralisation par service,^ which seems to mean the giving to diSerent depart- ments of civil servants a certain kind of independence, e.g. leaving the administration of the Post Office to the body of pubhc servants responsible for the management of the postal system. This body would, subject of course to supervision by the state, manage the office in accord- ance with their own knowledge and judgment; would, as far as I understand the proposal, be allowed to share in the gains affected by good management; and would, out of the revenue of the Post Office, make good the com- pensation due to persons who suffered by the neghgence or ^ See pp. 393-396, post. * Duguit, Traite de Droit Constitutionnel, .. pp. 460-467^ RULE OF LAW xlvii misconduct of the officials. On the other hand, the officials would, because they were servants of the state who had undertaken certain duties to the state, be forbidden either to organise a strike or in any way to interrupt the working of the Post Office. It is a Uttle difficult to see why this proposal should be called " decentraUsation," for that term has hitherto borne a very different meaning. To an Englishman the course of proceeding proposed is extremely perplexing ; it however is from one or two points of view instructive. This so-called decentralisation looks as if it were a revival under a new shape of the traditional French belief in the merit of administration. This reappearance of an ancient creed possibly shows that French thinkers who have lost all en- thusiasm for parhamentary government look for great benefits to France from opening there a new sphere for administrative capacity. It certainly shows that Frenchmen of intelKgence are turning their thoughts towards a question which perplexes the thinkers or legislators of other countries. How far is it possible for officials, e.g. railway servants and others who rmdertake duties on the due performance of which the pros- perity of a country depends, to be allowed to cease working whenever by so doing they see the possibiHty of obtaining a rise in the wages paid them ? My readers may think that this examination into the recent development of French iroit administratif digresses too far from the subject which we have in hand. This criticism is, it is submitted, unsound, for the present condition of 6/roit administratif in France sug- gests more than one reflection which is strictly germane to our subject. It shows that the shghtly increasing likeness be- tween the official law of England and the droit administratif of France must not conceal the fact that droit administratif stiU contains ideas foreign to Enghsh convictions with regard to the rule of law, and especially with regard to the supremacy of the ordinary law Courts. It shows also the possible appear- ance in France of new ideas, such as the conception of the so-called decentralisation par service which are hardly reconcil- able with the rule of law as understood in England. It shows further that the circumstances of the day have already forced upon France, as they are forcing upon England, a question xlviii INTRODUCTION to which. Englishmen have not yet found a satisfactory reply, namely, how far civil servants or others who have undertaken to perform services on the due fulfilment of which the pro- sperity of the whole country depends, can be allowed to use the position which they occupy for the purpose of obtaining by a strike or by active political agitation concessions from and at the expense of the state. Nor when once this sort of ' question is raised is it possible absolutely to reject the idea that England might gain something by way of example from the experience of France. Is it certain that the increasing power of civil servants, or, to use Mr. Muir's expression, of " bureaucrats," may not be properly met by the extension of official law ? ^ France has with undoubted wisdom more or less judicialised her highest administrative tribunal, and made it to a great extent independent of the Government of the day. It is at least conceivable that modern England would be benefited by the extension of official law. Nor is it quite certain that the ordinary law Courts are in all cases the best body for adjudicating upon the ofEences or the errors of civil servants. It may require consideration whether some body of men who combined official experience with legal knowledge and who were entirely independent of the Government of the day, might not enforce official law with more effectiveness than any Division of the High Court. (C) The Conventions of the Constitution ^ Three different points deserve consideration. They may be summed up under the following questions and the answers thereto : lirst question. — ^Have there been during the last thirty years notable changes in the conventions of the constitution ? Answer. — Important alterations have most certainly taken place ; these may, for the most part, be brought under two different heads which for the sake of clearness should be distinguished from each other, namely, first, new rules or customs which still continue to be mere constitutional ^ Consider the Official Secrets Acts. ^ See Chaps. XIV. and XV. post. CONVENTIONS OF CONSTITUTION xlix understandings or conventions, and, secondly, understand- ings or conventions which have since 1884 either been converted into laws or are closely connected with changes of law.^ These may appropriately be termed " enacted conventions." As to mere conventions. — These have arisen, without any change in the law of the land, because they meet the wants of a new time. Examples of such acknowledged under- standings are not hard to discover. In 1868 a Conservative Ministry in office sujEEered an undoubted defeat at a general election. Mr. DisraeU at once resigned office without waiting for even the meeting of ParUament. The same course was pursued by Mr. Gladstone, then Prime Minister, in 1874, and again, in his turn, by DisraeH (then Lord Beaconsfield) in 1880, and by Gladstone in 1886. These resignations, following as they each did on the result of a general election, distinctly reversed the leading precedent set by Peel in 1834. The Conservative Ministry of which he was the head, though admittedly defeated in the general election, did not resign until they suffered actual defeat in the newly-elected House of Commons. It may be added, that on the particular occasion the Conservatives gained both influence and prestige by the ability with which Peel, though in a minority, resisted in ParHament the attempt to compel his resignation from office ; for during this parHamentary battle he was able to bring home to the electors the knowledge that the Conservative minority, though defeated at the election, had gained thereby a great accession of strength. Peel also was able to show that while he and his followers were prepared to resist any further changes in the constitution, they fully accepted the Eeform Act of 1832, and, while utterly rejecting a poHcy of reaction, were ready to give the country the benefits of enhghtened administration. The new convention, which all but compels a Ministry defeated at a general election to resign office, is, on the face of it, an acknowledgment that the electorate constitutes pohtically the true sovereign power.^ It also ^ See especially the indirect effects of the Parliament Act, p. li, post. 2 See as to the possible distinction between "legal" and "political" sovereignty, pp. 70-73, post. d INTROD UCTION tends to convert a general election into a decision that a particular party shall hold office for the duration of the newly-elected Parhament and, in some instances, into the election of a particular statesman as Prime Minister for that period.^ This new convention is the sign of many minor poUtical or constitutional changes, such, for example, as the introduction of the habit, quite unknown not only to statesmen as far removed from us as Pitt, but to Peel, to Lord John Russell, or to Lord Palmerston, of constantly addressing, not only when out of office but also when in office, speeches to some body of electors and hence to the whole country. Another change in poUtical habits or conventions uncon- nected with any legal innovation or alteration has received little attention because of its gradual growth and of its vagueness, but yet deserves notice on account of its inherent importance. It is now the estabhshed habit of any reigning king or queen to share and give expression to the moral feehngs of British subjects. This expression of the desire on the part of EngUsh royalty to be in sympathy with the humane, the generous, and the patriotic feelings of the British people is a matter of recent growth. It may fairly be attributed to Queen Victoria as an original and a noble contribution towards national and Imperial statesmanship. This royal expression of sympathetic feehng, though not unknown to, was rarely practised by George III. or the sons who succeeded him on the throne.^ It belongs to, but has survived, the Victorian age. It has indeed received since the death of Victoria a wider extension than was possible during a great part of her long reign. On such a matter vagueness of statement is the best mode of enforcing a poUtical fact of immense weight but incapable of precise definition. At the moment when the United Kingdom' is conducting its ' It is certain that at the general election of 1880 the Liberal electors who gained a victory meant that Lord Beaconsfield should resign office and that Mr. Gladstone should be appointed Prime Minister. 'i As the King's speech when addressing the Houses of Parliament became more and more, and was known to have become, the utterance rather of ministerial than of royal opinion, the necessity inevitably arose of the monarch's finding some means for expressing his personal sympathy with the joy, and, above all, with the sorrow, of his people. CONVENTIONS OF CONSTITUTION It first great Imperial war it is on many gromids of import- ance to remember that the King is the typical and the only recognised representative of the whole Empire.^ Another example of new pohtical conventions is found in the rules of procedure adopted by the House of Commons since 1881 with a view to checking obstruction, and generally of lessening the means possessed by a minority for delaying debates in the House of Commons. These rules increase the possibiUty of carrying through the House in a comparatively short time BUls opposed by a considerable number of members. That the various devices popularly known as the Closure, the GuUlotine, and the Kangaroo have enabled one Govern- ment after another, when supported by a disciphned majority, to accompHsh an amount of legislation which, but for these devices could not have been passed through the House of Commons, is indisputable. Whether the price paid for this result, in the way of curtailment and discussion, has been too high, is a question which we are not called upon to consider. All that need here be said is that such rules of procedure are not in strictness laws but in reaUty are customs or agreements assented to by the House of Commons.^ As to enacted conventions. — By this term is meant a political understanding or convention which has by Act of Parliament received the force of law ^ or may arise from a change of law. The best examples of such enacted conventions* are to be iound in some of the more or less indirect effects ^ of the Parhament Act, 1911. (1) The Parhament Act in regard to the relation in legis- lative matters between the House of Lords and the House of Commons goes some way towards estabhshing in England a written or, more accurately speaking, an enacted constitution, ^ See p. xci, note 1, post. ^ As to the essential difierence between the laws and the conventions of the constitution, see pp. 23-30, post. = See Provisional Collection of Taxes Act, 1913. * A critic may indeed say, and with truth, that a convention converted by statute into a law is in strictness not a convention at all but a part of the law of the constitution. This I will not deny ; but such an enacted con- vention may indirectly so affect the working of conventional understandings or arrangements that its indirect effects are conveniently considered when dealing with the conventions of the constitution. ^ For the direct effects of the Act see p. xxi, amU. Hi INTRODUCTION instead of an unwritten or, more accurately speaking, an unenacted constitution.^ (2) The Act greatly restrains, if it does not absolutely abolish, the use of the royal prerogative to create peers for the purpose of " swamping the House of Lords " in order to force through the House a Bill rejected by the majority of the peers. Such exercise of the prerogative has never but once, namely under Queen Anne in 1712, actually taken place. The certainty, however, that Wilham IV. would use his prerogative to overcome the resistance of the House of Lords in 1832, carried the great Reform Act. The certainty that George V. would use the same prerogative carried the Parlia- ment Act, 1911. In each case the argument which told with the King in favour of an imhrnited creation of peers was that the constitution suppUed no other means than this exceptional use or abuse of the royal prerogative for compelling the Lords to obey the will of the country. The ParHament Act deprives this argument of its force. Any king who should in future be urged by ministers to swamp the House of Lords will be able to answer : " If the people really desire the passing of a " Bill rejected by the House of Lords, you can certainly in " about two years turn it into an Act of Parhament without " the consent of the Lords." ^ The Parliament Act cuts away then the sole ground which in 1832 or in 1911 could justify or even suggest the swamping of the House of Lords. (3) Under the Parhament Act it may probably become the custom that each Parhament shall endure for its full legal duration, i.e. for nearly the whole of five years. For a student of the Act must bear in mind two or three known facts. A House of Commons the majority whereof perceive that their popularity is on the wane will for that very reason be opposed to a dissolution ; for until it occurs such majority can carry any legislation it desires, and a dissolution may destroy this power. The payment to all unoflB.cial ' See aa to this distinction, p. 27, post, and note especially ParUament Act, s. 1, 3ub-s3. 2, 3, -which give a statutable definition of a Money BUI, and also contain a special provision as to the mode of determining whether a Bill is a Money Bill. ' See the Parliament Act, s. 7, " Five years shall be substituted for seven " years as the time fixed for the maximum duration of Parliament under " the Septennial Act. 1715." CONVENTIONS OF CONSTITUTION liij M.P.s of a salary of £400 a year may induce many M.P.s who belong to a ParKamentary minority to acquiesce easily enough in the duration of a ParHament which secures to each of them a comfortable income. Between the Revolution of 1688 and the year 1784 few, if any, dissolutions took place from any other cause than either the death of a Mng, which does not now dissolve a Parhament, or the lapse of time under the Septennial Act, and during that period the Whigs, and notably Burke, denied the constitutional right of the King to dissolve Parhament at his pleasure ; the dissolution of 1784 was denounced as a " penal dissolution." The Parhament of the French Republic sits for four years, but it can be dissolved at any time by the President with the consent of the Senate. This power has been employed but once during the last thirty- seven years, and this single use of the presidential prerogative gives a precedent which no French statesman is tempted to follow. It is highly probable, therefore, that the direct appeal from the House of Commons to the electorate by a sudden dis- solution may henceforward become in England almost obsolete. Yet this power of a Premier conscious of his own popularity, to destroy the House of Conmions which put him in office, and to appeal from the House to the nation, has been treated by Bagehot as one of the features in which the constitution of England excels the constitution of the United States. (4) The Parhament Act enables a majority of the House of Commons to resist or overrule the will of the electors or, in other words, of the nation. That this may be the actual effect of the Act does not admit of dispute. That the Home Rule BiU was strenuously opposed by a large number of the electorate is certaia. That this BiU was hated by a power- ful minority of Irishmen is also certain. That the rejection of a Home Rule Bill has twice within thirty years met with the approval of the electors is an admitted historical fact. But that the widespread demand for an appeal to the people has received no attention from the majority of the House of Commons is also certain. No impartial observer can therefore deny the possibility that a fiindamental change in our constitution may be carried out against the will of the nation. liv INTRODUCTION (5) The Act may deeply afEect the position and the character of the Speaker of the House of Commons. It has hitherto been the special glory of the House of Commons that the Speaker who presides over the debates of the House, though elected by a party, has for at least a century and more tried, and generally tried with success, to be the representative and guide of the whole House and not to be either the leader or the servant of a party. The most eminent of Speakers have always been men who aimed at maintaining something like a judicial and therefore impartial character. In this effort they have obtained a success unattained, it is beUeved, in any other country except England. The recognition of this moral triumph is seen in the constitutional practice, almost, one may now say, the constitutional rule, that a member once placed in the Speaker's chair shall continue to be re-elected at the commencement of each successive Parliament irrespect- ive of the poUtical character of each successive House of Commons. Thus Speakers elected by a Liberal majority have continued to occupy their office though the House of Commons be elected in which a Conservative majority pre- dominates, whilst, on the other hand, a Speaker elected by a Conservative House of Commons has held the Speakership with public approval when the House of Commons exhibits a Liberal majority and is guided by a Cabinet of Liberals. The Parliament Act greatly increases the authority of the Speaker with respect to Bills to be passed under that Act. No Bill can be so passed unless he shall have time after time certified in writing under his hand, and signed by him that the pro- visions of the Parliament Act have been strictly followed. This is a matter referred to his own knowledge and conscience. There may clearly arise cases in which a fair difference of opinion may exist on the question whether the Speaker can honestly give the required certificate. Is it not certain that a party which has a majority in the House of Commons will henceforth desire to have a Speaker who may share the opinions of such party ? This does not mean that a body of EngUsh gentlemen will wish to be presided over by a rogue ; what it does mean is that they will come to desire a Speaker who is not a judge but is an honest partisan. The Parhament Act CONVENTIONS OF CONSTITUTION Iv is a menace to the judicial character of the Speaker. In the Congress of the United States the Speaker of the House of Eepresentatives is a man of character and of vigour, but he is an avowed partisan and may abnost be called the parliamentary leader of the party which is supported by a majority in the House of Eepresentatives. Second question. — ^What is the general tendency of these new conventions ? Answer. — ^It assuredly is to increase the power of any party which possesses a parhamentary majority, i.e. a majority, how- ever got together, of the House of Commons, and, finally, to place the control of legislation, and indeed the whole government of the country, in the hands of the Cabinet which is in England at once the only instrument through which a dominant party can exercise its power, and the only body in the state which can lead and control the parhamentary majority of which the Cabinet is the organ. That the rigidity and the strength of the party system, or (to use an American expression) of the Machine, has continued with every successive generation to increase in England, is the conviction of the men who have most thoroughly analysed Bnghsh poUtical institutions as they now exist and work.^ Almost everything tends in one and the same direction. The leaders in ParUament each now control their own party mechanism. At any given moment the actual Cabinet consists of the men who lead the party which holds ofl&ce. The leading members of the Opposition lead the party which wishes to obtain office. Party warfare, in England is, in short, conducted by leading parhamentarians who constitute the actual Cabinet or the expected Cabinet. The electors, indeed, are nominally supreme ; they can at a general election transfer the govern- ment of the country from one party to another. It may be maintained with much plausibihty that under the quinquennial ParKament created by the Parhament Act the British electorate ■■ See Lowell, Oovernment of England, part ii. chaps, xxiv.-xxxvii. ; Low, The Governance of England, chaps, i. to vii. Ramaay Muir, in his essay on Bureaucracy (see Peers and Bureaucrats, pp. 1-94), would apparently agree with Mr. Lowell and Mr. Low, though he maintains that power tends at present under the English constitution to fall from the hands of the parliamentary Cabinet into the hands of the permanent civil servants. Ivi TNTRODUCTIOM will each five years do little else than elect the party or the Premier by whom the coimtry shall be governed for five years. In Parhament a Cabinet which can command a steadfast, even though not a very large majority, finds httle check upon its powers. A greater number of M.P.s than fifty years ago dehver speeches in the House of Commons. But in spite of or perhaps because of this facile eloquence, the authority of individual M.P.s who neither sit in the Cabinet nor lead the Opposition, has suffered diminution. During the Palmer- stonian era, at any rate, a few of such men each possessed an authority inside and outside the House which is hardly claimed by any member now-a-days who neither has nor is expected to obtain a seat in any Cabinet. Ajuj observer whose pohtical recollections stretch back to the time of the Crimean War, that is sixty years ago, wiU remember occasions on which the words of Koebuck, of Eoundell Palmer, of Cobden, and above all, at certain crises of Bright, might be, and indeed were, of a weight which no Government, or for that matter no Opposition, could treat as a trifle. Legislation again is now the business, one might almost say the exclusive business, of the Cabinet. Few if any, as far as an outsider can judge, are the occasions on which a private member not supported by the Ministry of the day, can carry any Bill through Parhament. Any M.P. may address the House, but the Prime Minister can greatly curtail the opportunity for discussing legislation when he deems discussion inopportune. The spectacle of the House of Commons^ which neither claims nor practices real freedom of discussion, and has no assured means of obtaining from a Ministry in power answers to questions which vitally concern the interest of the nation, is not precisely from a con- stitutional point of view, edifying or reassuring. But the plain truth is that the power which has fallen into the hands of the Cabinet may be all but necessary for the conduct of popular government in England under our existing consti- tution. There exists cause for uneasiness. It is at least arguable that important changes in the conventions, if not in the law, of the constitution may be urgently needed ; but the reason for alarm is not that the EngUsh executive is too strong, for weak government generally means CONVENTIONS OF CONSTITUTION Ivii bad administration, but that our English executive is, as a general rule, becoming more and more the representative of a party rather than the guide of the country. No fair-minded man will, especially at this moment, dispute that the passion for national independence may transform a government of partisans into a government bent on securing the honour and the safety of the nation. But this fact, though it is of immense moment, ought not to conceal from us the inherent tendency of the party system to confer upon partisanship authority which ought to be the exclusive property of the nation.^ TTmdi, question. — ^Does the experience of the last thirty years confirm the doctrine laid down in this treatise that the sanction which enforces obedience to the conventions of the constitution is to be found in the close connection between these conventions and the rule of law ? ^ Answer. — The doctrine I have maintained may be thus at once illustrated and explained. The reason why every Parlia- ment keeps in force the Mutiny Act or why a year never elapses without a Parliament being summoned to Westminster, is simply that any neglect of these conventional rules wotild entail upon every person in office the risk, we might say the necessity, of breaking the law of the land. If the law 1 Several recent occurrences show the occasional appearance of ideas or practices which may mitigate rather than increase the rigidity of the party system. In re Sir Stuart Samuel [1913], A. C. 514, shows that under the Judicial Committee Act, 1833, s. 4, a question of law on which depends the right of a Memljer of ParBament to sit in Par- liament may be referred to the Privy Council and be adequately and impartially dealt with by a body of eminent lawyers. The thought suggests itself that other questions affecting the conduct and the character of M.P.s which cannot be impartially investigated by any Committee of the House of Commons might be referred to the same high tribunal. The public statement, again, of Lord Kitchener that he took office in no way as a partisan, but simply as a general whose duty it was to provide for the carry- ing on of a war in which the welfare and honour of the nation is concerned set a precedent which might be followed in other spheres than that of military affairs. Is it of itself incredible that a Foreign Secretary of genius might without any loss of character retain office for years both in Liberal and in Conservative Cabinets 1 Is there any thing absurd in supposing that a Lord Chancellor respected for his legal eminence and for his judgment might serve the country as the highest of our judges and give his legal knowledge to Cabinets constituted of men with whose politics he did not agree ? The English people would gain rather than lose by a check being placed on the constantly increasing power of the party system. * See pp. 441-450, 'post. Iviii INTRODUCTION governing the army which is in effect an annual Act, were not passed annually, the discipUne of the army would without constant breaches of law become impossible. If a year were to elapse without a Parhament being summoned to West- minster a good number of taxes would cease to be paid, and it would be impossible legally to deal with such parts of the revenue as were paid into the Imperial exchequer. Now it so happens that recent experience fully shows the incon- venience and danger of either violating a constitutional convention or of breaking the law because custom had author- ised a course of action which rested on no legal basis. The House of Lords, in order to compel a dissolution of Parhament in 1909, rejected the Budget. Their Lordships acted within v^hat was then their legal right, yet they caused thereby great inconvenience, which, however, was remedied by the election of a new Parliament. For years the income tax had been collected in virtue not of an Act but of a resolution of the House of Commons passed long before the iacome tax for the coming year came into existence. An ingenious person wishing to place difficulties in the way of the Government's proceedings claimed repayment of the sum already deducted by the Bank of England from such part of his income as was paid to him through the Bank. The bold plaintiff at once recovered the amount of a tax levied without legal authority. No better demonstration of the power of the rule of law could be found than is given by the triumph of Mr. Gibson Bowles.^ (D) Development during the last Thirty Years of New Constitutional Ideas These ideas are (1) "Woman Suffrage, (2) Proportional Representation, (3) Federahsm, (4) The Eeferendum. Two General Observations ' The brief criticism of each of these new ideas which alone in this Introduction it is possible to give, will be facihtated by 1 Bowles V. Bank of England [1913], 1 Ch. 57. NEW CONSTITUTIONAL IDEAS lix attending to two general observations which apply more or less to each of the four proposed reforms or innovations. First observation. — Political inventiveness has in general fallen far short of the originality displayed in other fields than poUtics by the citizens of progressive or civilised States. The immense importance attached by modern thinkers to repre- sentative government is partly accounted for by its being almost the sole constitutional discovery or invention unknown to the citizens of Athens or of Rome.^ It is well also to note that neither representative government nor Roman Imperial- ism, nor indeed most of the important constitutional changes which the world has witnessed, can be strictly described as an invention or a discovery. When they did not result from imitation they have generally grown rather than been made ; each was the production of men who were not aiming at giving effect to any novel political ideal, but were trying to meet in practice the difficulties and wants of their time. In no part of English history is the tardy development of new constitu- tional ideas more noteworthy or more paradoxical than during the whole Victorian era (1837 to 1901). It was an age full of intellectual activity and achievement ; it was an age rich in works of imagination and of science ; it was an age which extended in every direction the field of historical knowledge ; but it was an age which added little to the world's scanty store of political or constitutional ideas. The same remark in one sense applies to the years which have passed since the opening of the twentieth century. What I have ventured to term new constitutional ideas are for the most part not original ; their novelty consists in the new interest which during the last fourteen years they have come to com- mand. Second observation.— These, new ideas take very Httle, one might almost say no accoimt, of one of the ends which good legislation ought, if possible, to attain. But this observation requires explanatory comment. ' It is hardly an exaggeration to say that there exist very few other modern political conceptions (except the idea of representative government) which were not criticised by the genius of Aristotle. Note however that the immense administrative system known as the Roman Empire lay beyond, or at any rate outside, the conceptions of any Greek philosopher. Ix INTRODUCTION Under every form of popular government, and certainly under the more or less democratic constitution now existing in England, legislation must always aim at the attainment of at least two different ends, which, though both of importance, are entirely distinct from one another. One of these ends is the passing or the maintaining of good or wise laws, that is laws which, if carried out, would really promote the happiness or welfare of a given country, and therefore which are desirable in themselves and are in conformity with the nature of things. That such legislation is a thing to be desired, no sane man can dispute. If, for example, the freedom of trade facihtates the acquisition of good and cheap food by the people of England, and does not produce any grave counterbalancing evil, no man of ordinary sense would deny that the repeal of the corn laws was an act of wise legislation. If vaccination banishes small-pox from the country and does not produce any tremendous coimterbalancing evil, the pubhc opinion even of Leicester would hold that a law enforcing vaccination is a wise law. The second of these two difierent ends is to ensure tlia.t no law should be passed or maintained in a given country, e.g. in England, which is condemned by the public opinion of the Enghsh people. That this where possible is desirable will be admitted by every thoughtful man. A law utterly opposed to the wishes and feelings entertained by the inhabitants of a coimtry, a rule which every one dislikes and no one will obey, is a nullity, or in truth no law at all ; and, even in cases where, owing to the power of the monarch who enacts a law opposed to the wishes of his subjects, such a law can to a certain extent be enforced, the evils of the enforcement may far overbalance the good effects of legislation in itself wise. This thought fully justifies an English Government in tolerating throughout India institu- tions, such as caste, supported by Indian opinion though condemned by the pubhc opinion and probably by the wise opinion of England. The same line of thought explained, palhated, and may even have justified the hesitation of English statesmen to prohibit suttee. Most persons, then, will acknowledge that sound legislation shoidd be in conformity with the nature of things, or, to express the matter shortly, be NEW CONSTITUTIONAL IDEAS Ixi " wise," and also be in conformity with the demands of pubKc opinion, or, in other words, be " popular," or at any rate not unpopular. But there are few Englishmen who sufficiently realise that both of these two ends cannot always be attained, and that it very rarely happens that they are each equally attainable. Yet the history of Enghsh legislation abounds with illustrations of the difficulty on which it is necessary here to insist. Thus the Reform Act, 1832,^ is in the judgment of most EngHsh historians and thinkers a wise law ; it also was at the time of its enactment a popular law. The Whigs prob- ably underrated the amount and the strength of the opposi- tion to the Act raised by Tories, but that the passing of the Reform Act was hailed with general favour is one of the best attested facts of modem history. The Act of Union passed in 1707 was proved by its results to be one of the wisest Acts ever placed on the statute-book. It conferred great benefits upon the inhabitants both of England and of Scotland. It created Great Britain and gave to the united country the power to resist in one age the threatened predominance of Louis XIV., and in another age to withstand and overthrow the tremendous power of Napoleon. The complete success of the Act is sufficiently proved by the absence in 1832 of any demand by either Whigs, Tories, or Radicals for its repeal. But the Act of Union, when passed, was unpopular in Scotland, and did not command any decided popularity among the electors of England. The New Poor Law of 1834 saved the country districts from ruin ; its passing was the wisest and the most patriotic achievement of the Whigs, but the Act itself was unpopular and hated by the country labourers on whom it conferred the most real benefit. Within two years from the passing of the Reform Act it robbed reformers of a popiilarity which they had hoped might be lasting. Indeed the wisdom of legislation has little to do with its popularity. Now all the ideas which are most dear to constitutional reformers or innovators in 1914 lead to schemes of more or less merit for giving full expression 1 See J. R. M. Butler, The Passing of the Great Reform Bill (Lpngmans. Greeu & Co., 19141. This is, an excellent piece of historical narrative and inquiry. Ixii INTRODUCTION in the matter of legislation to public opinion, i.e. for ensuring that any Jaw passed by ParUament shall be popular, or at lowest not unpopular. But these schemes make in general little provision for increasing the chance that legislation shall also be wise, or in other words that it shall increase the real welfare of the country. The singular superstition embodied in the maxim vox pojmli vox Dei has experienced in this mis- called scientific age an unexpected revival. This renewed faith in the pre-eminent wisdom of the people has probably acquired new force from its congeniahty with democratic sentiment. May we not conjecture that the new Ufe given to a popular error is in part and indirectly due to the dechne in the influence of utiUtarianism ? Faith in the voice of the people is closely connected with the doctrine of " natural rights." This dogma of natural rights was in England contemned and confuted by Bentham and his disciples.^ The dechning influence of the utilitarian school appears therefore to give new strength to this doctrine. People forget that the dogma of natural rights was confuted not only by Benthamites but by powerful thinkers of the eighteenth and of the nineteenth century who had no sympathy with utilitarianism. Gritioism of each of the Four New Constitutional Ideas ^ I. Woman Suffrage. — The claim for women of the right to vote for members of Parhament, or, as now urged, to be placed in a position of absolute political equality with men, is no new demand. It was made in England before the end of the eighteenth century,^ but no systematic, or at any rate noticeable, movement to obtain for Enghshwomen the right to vote for members of Parliament can be carried back much ' See Law and Opinion, pp. 309, 171, 172. ^ It woxild be impossible, and it is not my aim in this Introduction, to state or even summarise all the arguments for or against each of these ideas ; my sole object is to bring into light the leading thoughts or feelings which underlie the advocacy of, or the opposition to, each of these new ideas. See p. Iviii, ante. ' See the Vindication of the Bights of Women, by Mary WoUstonecraft, published 1792. Little was heard about such rights during the great French Revolution. There is no reason to suppose that Madame Roland ever claimed parliamentary votes for herself or for her sex. WOMAN SUFFRAGE Ixiii earlier than 1866-67, when it was supported in the House of Commons by J. S. Mill. Let my readers consider for a moment first the causes which have added strength to a movement which in 1866 attracted comparatively httle pubHc attention, and next the main lines of a/rgument or of feeling which really tell on the one hand with the advocates and on the other with the opponents of the claim to votes for women.'- The Causes. — These may be thus summarised. Since the beginning of the nineteenth century the number in the United Kingdom of self-supporting and also of unmarried women has greatly increased ; and this class has by success in literature, as well as in other fields, acquired year by year greater influence. In the United Kingdom there exists among the actual population an excess of women over men, and this excess is increased by the emigration of English- men to our colonies and elsewhere. The low rate of payment received by women as compared with men, for services of any kind in which men and women enter into competition, has excited much notice. The spreading behef, or, as it used to be considered, the delusion, that wages can be raised by legislation, has naturally suggested the inference that want of a parHamentary vote inflicts severe pecuniary loss upon women. The extension of the power of the state and the enormous outgrowth of social legislation results in the dailj enactment of laws which affect the very matters in which every woman ha;s a personal interest. In an era of peace and of social reform the electors themselves constantly claim the sympathy and the active co-operation of women on behalf of causes which are treated, at any rate by partisans, as raising grave moral or reUgious controversy. Hence the agitation in favour of Woman Suffrage often commends itself to ministers of rehgion and notably to the Enghsh clergy, who beheve, whether rightly or not, that the poHtical power of women would practically add to the authority in the pohtical world of the Church of England. These circumstances, and others which may be suggested by the memory or the ingenuity of ^ For an examination of all the main arguments alleged on either side see Dicey, Letters to a Friend on Votes for Women. Ixiv INTRODUCTION my readers, are enough to explain the prominence and weight acquired for the movement in favoiir of giving the parha- mentary franchise to women. The Main Lines of Argument. — These may be brought under two heads ; they are most clearly and briefly exhibited if under each head is stated the argument of the Suffragist and the answer or reasoning in reply of the Anti-Suffragist. First a/rgument. — Every citizen, or, as the point is generally put, every person who pays taxes under the law of the United Kingdom, is entitled as a matter of right to a vote for a member of ParUament. Hence the obvious conclusion that as every EngUshwoman pays taxes under the law of the United Kingdom, every Enghshwoman is at any rate 'prima facie entitled to a vote. Answer. — This hue of reasoning proves too much. It inevitably leads to the conclusion that any form of popular government ought to be based on the existence of strictly universal suffrage. An extreme suffragette wUl say that this result is not a reductio ad absurdum. But there are thousands of sensible Enghshmen and Enghshwomen who, while they doubt the advisabihty of introducing into England even manhood suffrage, refuse to admit the cogency of reason- ing which leads to the result that every Enghshman and Enghshwoman of full age must have a right to vote for a member of ParUament. But the full strength of an anti- suffragist's reply cannot be shown by any man who does not go a little further into the nature of things. A fair-minded man prepared to do this will, in the first place, admit that many democratic formulas, e.g. the dictum that " habihty to taxation involves the right to representation," do verbally cover a woman's claim to a parhamentary vote. His true answer is that many so-called democratic principles, as also many so-called conservative principles, are in reahty not principles at all but war-cries, or shibboleths which may contain a good deal of temporary or relative truth but are mixed up with a vast amount of error. The idea, he will ultimately say, that the possession of a vote is a personal right is a delusion. It is in truth the obh'gation to discharge a pubUc duty, and whether this miscalled right should be WOMAN SUFFRAGE Ixv conferred upon or withheld from Englishwomen can be decided only by determining whether their possession of the parliamentary vote wiU conduce to the welfare of England. Second, argument. — The difference of sex presents no apparent or necessary reason for denying to Enghshwomen the same political rights as are conferred upon EngUshmen. It is found by experience, as suffragists will add, that some women have in many ways even greater capacity for the exercise of government than have some men. This argu- ment may best be put in its full strength if it be placed, as it often is, in the form of a question : Was it reasonable that Florence Nightingale should not have possessed the right to vote for a member of ParHament when even in her day her footman or her coachman, if he had happened to be a ten-pound householder, or a forty-shilling freeholder, might have exercised a right denied to a lady who, as appears from her biography, possessed many statesmanlike qualities, who did in fact in some Knes of action exert more political power than most M.P.s, and who always exercised power dis- interestedly, and generally exercised it with admitted benefit to the country ? There is not the remotest doubt that the argument involved in this inquiry (in whatever form it is stated) seems to many women, to a great number of parUa- mentary electors, and also to a considerable number of M.P.S, to afford an unanswerable and conclusive reason in favour of giving parHamentary votes to women. Answer. — The claim of parHamentary votes for women as now put forward in England is in reality a claim for the absolute poUtical equality of the two sexes. Whether its advocates are conscious of the fact or not, it is a demand on behalf of women for seats in ParUament and in the Cabinet. It means that Englishwomen should^hare the jury box and should sit on the judicial bench. It treats as in- significant for most piurposes that difference of sex which, after all, disguise the matter as you will, is one of the most fundamental and far-reaching differences which can dis- tinguish one body of human beings from another. It is idle to repeat again and again reasoning which, for the last thirty years and more, has been pressed upon the attention of every Ixvi INTRODUCTION English, reader and elector. One thing is certain : the real strength (and it is great) of the whole conservative argu- ment against the demand of votes for women lies in the fact that this line of reasoning, on the face thereof, conforms to the nature of things. The anti - suffragists can re-echo the words of Burke whilst adapting them to a controversy unknown to him and practically unknown to his age : " The principles that guide us, in public and " in private, as they are not of our devising, but moulded " into the nature and the essence of things, will endure with " the sun and moon — ^long, very long after whig and tory, " Stuart and Brunswick [suffragist, sufiragette, and anti- " suffragist], and all such miserable bubbles and playthings " of the hour, are vanished from existence and from memory." ^ II. Proportional Representation/^ — The case in favour of the introduction of proportional representation into England rests on the truth of three propositions. First proposition. — The House of Commons often fails to represent with precision or accuracy the state of opinion, e.g. as to woman suffrage, existing among the electorate of England. In other words, the House of Comnaons often fails to be, as it is sometimes expressed, " the mirror of the national mind," or to exactly reflect the will of the electors. Second proposition. — ^It is quite possible by some system of proportional representation to frame a House of Conunons which would reflect much more nearly than at present the opinion of the nation, or, in other words, of the electorate. Third proposition. — It is pre-eminently desirable that every opinion hondfde existing among the electors should be repre- sented in the House of Commons in as nearly as possible the same proportion in which it exists among the electors, or, to use popular language, among the nation. Now of these three propositions the substantial truth of the first and second must, in my judgment, be admitted. No one can doubt the possibihty, and even the high pro- bability, that, for example, the cause of woman suffrage * Burke, Correspondence, i. pp. 332, 333. ' See Humplireys, Proportional Bepresentation ; Fischer Williams, Proportional Representation and British Politics; Lowell, Public Opinion and Popular Oovernment, pp. 122-124. PROPORTIONAL REPRESENTATION Ixvii may, at the present moment, obtain more than half the votes of the House of Commons while it would not obtain as many as half the votes of the electorate. Nor again is it at all inconceivable that at some other period the cause of woman suffrage should, while receiving the support of half the electorate, fail to obtain the votes of half the House of Commons. No one, in the second place, can, I think, with reason dispute that, among the numerous plans for pro- portional representation thrust upon the attention of. the pubUc, some one, and probably several, would tend to make the House of Commons a more complete mirror of what is called the mind of the nation than the House is at present ; and this concession, it may with advantage be . noted, does not involve the belief that under any system of popular government whatever, a representative body can be created which at every moment will absolutely and with complete accuracy reflect the opinions held by various classes of the people of England. Now my behef in the substantial truth of the first and the second of our three propositions makes it needless for me, at any rate for the purpose of this Intro- duction, to consider the reservations with which their absolute accuracy ought to be assumed. For the sake of argument, at any rate, I treat them as true. My essential objection to the system of proportional representation consists in my grave doubt as to the truth of the third of the above three propositions, namely, that it is desirable that any opinion existing among any large body of electors should be repre- sented in the House of Commons as nearly as possible in the same proportion in which it exists among such electors. Before, however, any attempt is made to state the specific objections which in my judgment lie against the introduction of proportional representation into the parHamentary con- stitution of England, it is essential to discriminate between two different ideas which are confused together under the one demand for proportional representation. The one of these ideas is the desirability that every opinion entertained by a substantial body of Enghshmen should obtain utterance in the House of Commons, or, to use a vulgar but efiective piece of political slang, " be voiced by " some member or members ixviii INTRODUCTION of that House. Thus it has been laid down by the leader of the Liberal party that "it was infinitely to the advantage " of the House of Commons, if it was to be a real reflection " and mirror of the national mind, that there should be no " strain of opinion honestly entertained by any substantial " body of the King's subjects which should not j&nd there " representation and speech." ^ To this doctrine any person who has been influenced by the teaching of Locke, Bentham, and Mill wiU find it easy to assent, for it is weU known that in any country, and especially in any country where popular government exists, the thoughts, even the bad or the foolish thoughts, of the people should be known to the national legislature. An extreme example will best show my meaning. If among the people of any land the hatred of the Jews or of Judaism should exist, it would certainly be desirable that this odious prejudice should find some exponent or advocate in the Parhament of such country, for the knowledge of popular errors or delusions may well be essential to the carrying out of just government or wise administration. Ignorance is never in truth the source of wisdom or of justice. The other idea or meaning attached by Proportionahsts to proportional representation is that every influential opinion should not only find utterance in the House of Commons, but, further, and above all, be represented in the House of Commons by the same proportionate number of votes which it obtains from the voters at an election. Thus the eminent man who advocated the desirabiUty of every opinion obtaining a hearing in the House of Commons, used on another occasion the following words : " It is an essential and integral feature of " our pohcy that we shall go forward with the task of making " the House of Commons not only the mouthpiece but the " mirror of the national mind." ^ Now the doctrine of pro- portional representation thus interpreted is a dogma to which a fair-minded man may well refuse his assent. It is by no means obviously true ; it is open to the following (among other) objections that admit of clear statement. 1 See Mr. Asquith's speech at St. Andrews, Feb. 19, 1906, cited by J. Fischer Williams, Propartiomal Eepresenlation, p. 17. ^ Mr. Asquith at Burnley, Deo. 5, 1910, cited by J. Fischer Williams Proportional Representation, p. 17. PROPORTIONAL REPRESENTATION Ixix Objections to the Thvrd Proposition. First objection. — The more compKcated any system of popular election is made, the more power is thrown into the hands of election agents or wire-puUers. This of itself in- creases the power and lowers the character of the party machine ; but the greatest political danger with which England is now threatened is the inordinate influence of party mechanism. This objection was long ago insisted upon by Bagehot.^ It explains, if it does not whoUy justify, John Bright's denunciation of fancy franchises. Second direction. — The House of Commons is no mere debating society. It is an assembly entrusted with great though indirect executive authority ; it is, or ought to be, con- cerned with the appointment and the criticism of the Cabinet. Grant, for the sake of argument, that every influential opinion should in the House of Commons gain a hearing. This result would be obtained if two men, or only one man, were to be found in the House who could ensure a hearing when- ever he spoke in favour of some peculiar opinion. The argu- ment for woman suSrage was never stated with more force in Parliament than when John Mill represented Westminster. The reasons in its favour would not, as far as argument went, have commanded more attention if a hundred members had been present who shared Mill's opinions but were not endowed with his logical power and his lucidity of expression. But where a body of men such as constitute the House of Commons are at aU concerned with government, unity of action is of more consequence than variety of opinion. The idea, indeed, of representation may be, and often is, carried much too far. A Cabinet which represented all shades of opinion would be a Ministry which could not act at all. No one really supposes that a Government could in ordinary circumstances be formed in which two opposite parties balanced one another. Nor can it often be desirable that an opinion held by, say, a third of a ministerial party should necessarily be represented by a third of the Cabinet. It may well be doubted whether even on commissions appointed partly, at any rate, for the purpose • Bagehot, English Constitution, pp. 148-159. Ixx INTRODUCTION of inquiry, it is at all desirable that distinctly opposite views should obtain recognition. The Commission which laid down the leading lines of Poor Law Eeform in 1834 rendered an immense service to England. Would there have been any real advantage in placing on that Com- mission men who condemned any change in the existing poor law ? TMrdi, objection. — ^Proportional representation, just because it aims at the representation of opinions rather than of persons, tends to promote the existence in the House of Commons of numerous party groups and also fosters the admitted evil of log-rolUng. The working of EngUsh parhamentary govern- ment has owed half of its success to the existence of two leading and opposed parties, and of two such parties only. Using somewhat antiquated but still intelUgible terms, let me call them by the name of Tories and Whigs. ^ These two parties have, it one may speak in very broad terms, tended, the one to uphold the rule of the well-born, the weU-to-do, and therefore, on the whole, of the more educated members of the community; the other has promoted the power of numbers, and has therefore aimed at increasing the pohtical authority of the comparatively poor, that is, of the com- paratively ignorant. Each tendency has obviously some good and some bad effects. If, for a moment, one may adopt modern expressions while divesting them of any impHed blame or praise, one may say that Conservatism and LiberaUsm each play their part in promoting the weMare of any country where popular government exists. Now, that the existence of two leading parties, and of two such parties only, in England has favoured the development of Enghsh constitutionalism is past denial. It is also certain that during the nineteenth century there has been a notable tendency in Enghsh pubHc life to produce in the House of Commons separate groups or parties which stood more or less apart from Tories and Whigs, and were all but wholly devoted to the attainment of some one definite change or reform. The Eepealers, as led by O'ConneU, ^ I choose these old expressions which have been in use, at any rate from 1689 till the present day, because they make it easier to keep somewhat apart from the burning controversies of 1914. PROPORTIONAL REPRESENTATION Ixxi and still more the Free Traders, as led by Cobdeii,^ are early examples of such groups. These groups avowedly held the success of the cause for which they fought of greater conse- quence than the maintenance in office either of Tories or of Whigs. Even in 1845 they had perplexed the working of our constitution ; they had gone far to Umit the operation of the very valuable rule that a party, which persuades ParHament to adopt the party's poUcy, should be prepared to take office and carry that poUcy into effect. The Free Traders, in fact, give the best, if not the earliest, example of an EngUsh group organised to enforce the adoption by the Enghsh ParUament of an opinion, doctrine, or theory to which that group was devoted. Now an observer of the course of events during the last sixty years wiU at once note the increasing number of such groups in the House of Commons. To-day we have Ministeriahsts and Unionists (corresponding roughly with the old Whigs and Tories), we have also Irish Nationalists and the Labour Party. These parties have each separate organisations. But one can easily observe the existence qf smaller bodies each devoted to its own movement or cause, such, for example, as the temperance reformers, as the advocates of woman sufirage, or as the members who hold that the question of the day is the disestablishment of the Church. This state of things already invalidates our con- stitutional customs. Nor is it easy to doubt that any fair system of proportional representation must increase the number of groups existing in ParHament, for the very object of ProportionaUsts is to ensure that every opinion which exists among an appreciable number of British electors shall have an amount of votes in ParHament proportionate to the number of votes it obtains among the electors. If, for example, a tenth of the electors should be anti-vaccinators, the anti-vaccinators ought, imder a perfect scheme of repre- sentation, to command sixty-seven votes in the House of 1 Cobden would have supported any Premier, whether a Tory or a Whig, who undertook to repeal the Com Laws. O'Connell would have sup- ported any Premier who had pledged himself to repeal the Act of Union with Ireland ; but O'ConneU's position was peculiar. He took an active interest in English politics, he was a Benthamite Liberal, and during a part of his career acted in alliance with the Whigs. Ixxii INTRODUCTION Commons. Sixty-seven anti- vaccinators who might accident- ally obtain seats in the House of Commons, e.g. as Con- servatives or Liberals, would, be it noted, constitute a very different body from sixty-seven members sent to the House of Commons to represent the cause of anti-vaccination. The difierence is this : In the first case each anti- vaccinator would often perceive that there were matters of more pressing import- ance than anti- vaccination ; but the sixty-seven men elected under a system of proportional representation to obtain the total repeal of the vaccination laws would, one may almost say must, make that repeal the one dominant object of their parliamentary action. That the multiplication of groups might weaken the whole system of our parUamentary govern- ment is a probable conjecture. That proportional representa- tion might tend to extend the vicious system of log-rolling is all but demonstrable. Let me suppose the sixty-seven anti- vaccinators to be already in existence ; let me suppose, as would probably be the case, that they are elected because of their firm faith in anti-vaccination, and that, both from their position and from their creed, they feel that to destroy the vaccination laws is the supreme object at which every good man should aim. They will soon find that their sixty-seven votes, though of high importance, are not enough to save the country. The course which these patriots must follow is obvious. They are comparatively indifferent about Home Rule, about Disestablishment, about the objects of the Labour Party. Let them promise their support to each of the groups advocating each of these objects in return for the help in repealing legislation which originates, say our anti-vaccinators, in the delusions of Jenner. A pohtical miracle will have been performed. A majority in favour of anti -vaccination will have been obtained ; the voice of fanatics will have defeated the common sense of the nation. Let me, as an illustration of my contention, recall to pubhc attention a forgotten fact. Some forty years ago the Claimant, now barely remembered as Arthur Orton, was a popular hero. His condemnation to im- prisonment for fourteen or fifteen years excited much indig- nation. He obtained one representative, and one repre- FEDERALISM Ixxiii sentative only, of his grievances in the Hoiise of Commons. Under a properly organised system of proportional repre- sentation, combined with our present household suSrage, he might well have obtained twenty. Does any one doubt that these twenty votes would have weighed with the Whips of any party in power ? Is it at all certain that the Claimant might not, thus supported, have obtained a mitigation of his punishment, if not a re-trial of his case ? This is an extreme illustration of popular folly. For this very reason it is a good test of a logical theory. I do not contend that proportional representation cannot be defended by weighty considerations ; my contention is that it is open to some grave objections which have not received an adequate answer.^ III. Federalism? — In 1884 the peculiarities and the merits of federal government had not attracted the attention of the English public. Here and there a statesman whose mind was turned towards the relation of England and her colonies had perceived that some of the self-governing colonies might with advantage adopt federal constitutions. In 1867 Parhament had readily assented to the creation of the Canadian Dominion and thereby transformed the colonies possessed by England on the continent of America into a federal state. In truth it may be said that the success of .the Northern States of the American Commonwealth in the War of Secession had, for the first time, impressed upon Englishmen the belief that a demo- cratic and a federal state might come with success through a civil war, carried on against states which asserted their right to secede from the Republic of which they were a part. Still in 1884 hardly a statesman whose name carried weight with Englishmen advocated the formation of a federal system as a remedy for the defects, whatever they were, of the EngUsh 1 Proportional representation was in Mill's day known as minority representation. The change of name is not without significance. In 1870 the demand for minority representation was put forward mainly as the means for obtaining a hearing for intelligent minorities whose whisper might easfly be drowned by the shouts of an unintelhgent majority. In 1914 minority representation is recommended mainly as the means of ensuring that the true voice of the nation shall be heard. It was once considered a check upon democracy ; it is now supported as the best method for gmng effect to the true will of the democracy. » Compare especially as to federal government. Chap. III. p. 134, 'post. Ixxiv INTRODUCTION constitution, or as the means for uniting the widely scattered countries which make up the British Empire. Walter Bagehot was in his day, as he still is, the most eminent of modern EngUsh constitutionalists. He compared the constitution of England with the constitution of the United States. But the result of such comparison was, in almost every case, to illustrate some hitherto unnoted merit of the Enghsh con- stitution which was not to be found in the constitution of the great American EepubUc. Sir Henry Maine was in his time the most brilHant of the writers who had incidentally turned their thoughts towards constitutional problems. Maine's Popular Government, published in 1885, expressed his admira- tion for the rigidity or the conservatism of American feder- ahsm. But he never hinted at the conviction, which he probably never entertained, that either the United Kingdom or the British Empire would gain by transformation into a federal state. Thirty years ago the nature of federaUsm had received in England very inadequate investigation.^ In this, as in other matters, 1914 strangely contrasts with 1884. The notion is now current that f ederahsm contains the solu- tion of every constitutional problem which perplexes British statesmanship. Why not, we are told, draw closer the bonds which maintain peace and goodwill between the United King- dom- and all her colonies, by constructing a new and grand Imperial federation governed by a truly Imperial Parhament, which shall represent every state, including England, which is subject to the government of the King ? Why not, we are asked, estabhsh a permanent reconcihation between England and Ireland by the conversion of the United Kingdom into a federahsed kingdom whereof England, Scotland, Ireland, and Wales, and, for aught I know, the Channel Islands and the Isle of Man, shall form separate states ? This new constitu- tional idea of the inherent excellence of federahsm is a new faith or delusion which deserves examination. My purpose, therefore, is to consider two different matters— namely, first, the general characteristics of federahsm ; secondly, the ' In Chap, in., post, federalism was analysed (1885) as illustrating by way of contrast, that sovereignty of the English ParUament which makes England one of the best examples of a unitary state. FEDERALISM Ixxv bearing of these characteristics on the proposal popularly known as Imperial federalism, for including England ^ and the five seK-goveming colonies in a federal constitution, and also the proposal (popularly known as Home Eule all round) for federahsing the United Kingdom. Leading Characteristics of Federal Government ^ Federalism is a natural constitution for a body of states which desire union and do not desire unity. Take as countries which exhibit this state of feehng the United States, the English federated colonies, the Swiss Confederation, and the German Empire, and contrast with this special condition of opinion the dehberate rejection bv all Itahan patriots of federalism, which in the case of Italy presented many apparent advantages, and the failure of union between Sweden and Norway to produce any desire for unity or even for a continued pohtical connection, though these Scandinavian lands difier httle from each other in race, in rehgion, in language, or in their common interest to maintain their independence against neighbouring and powerful countries. The physical contiguity, further, of countries which are to form a confederated state is certainly a favourable, and possibly a necessary, condition for the success of federal government. The success of federal government is greatly favoured by, if it does not absolutely require, approximate equality in the wealth, in the population, and in the historical position of the different countries which make up a confederation. The reason for this is pretty obvious. The idea which lies at the bottom of federahsm is that each of the separate states should have approximately equal poUtical rights and should thereby be able to maintain the " hmited independence " (if the term may be used) meant to be secured by the terms of ^ In treating of Imperial federalism, as often in other parts of this book, I purposely and frequently, in accordance with popular language, use " England " as equivalent to the United Kingdom. ' See especially Chap. III. p. 134, post. It is worth observing that the substance of this chapter was published before the production by Gladstone of his first Home Rule Bill for Ireland. Ixxvi INTRODUCTION federal union. Hence the provision contained in the constitu- tion of the United States under which two Senators, and no more, are given to each state, though one be as populous, as large, and as wealthy as is New York, and another be as small in area and contain as few citizens as Rhode Island. Bagehot, indeed, points out that the equal power in the Senate of a small state and of a large state is from some points of view an evil. It is, however, an arrangement obviously congenial to federal sentiment. If one state of a federation greatly exceed in its numbers and in its resources the power of each of the other states, and still more if such " dominant partner," to use a current expression, greatly exceed the whole of the other Confederated States in population and in wealth, the confederacy will be threatened with two dangers. The dominant partner may exercise an authority almost inconsistent with federal equality. But, on the other hand, the other states, if they should possess under the constitution rights equal to the rights or the poHtical power left to the dominant partner, may easily combine to increase unduly the bujrdens, in the way of taxation or otherwise, imposed upon the one most powerful state. Federalism, when successful, has generally been a stage towards unitary government. In other words, federalism tends to pass into nationahsm. This has certainly been the result of the two most successful of federal experi- ments. The United States, at any rate as they now exist, have been well described as a nation concealed under the form of a federation. The same expression might with considerable truth be appHed to Switzerland. Never was there a country in which it seemed more difficult to produce national unity. The Swiss cantons are divided by difference of race, by difference of language, by difference of religion. These distinctions till nearly the middle of the nineteenth century produced a kind of disunion among the Swiss people which in 1914 seems almost incredible. They forbade the existence of a common coinage ; they allowed any one canton to protect the financial interest of its citizens against com- petition by the inhabitants of every other canton. In 1847 the Sonderbimd threatened to destroy the very idea of FEDERALISM Ixxvii ■ ' r Swiss unity, Swiss nationality, and Swiss independence. Patriots had indeed for generations perceived that the federal union of Switzerland afforded the one possible guarantee for the continued existence of their country. But attempt after attempt to secure the unity of Switzerland had ended in failure. The victory of the Swiss federalists in the Sonderbund war gave new Ufe to Switzerland : this was the one indubitable success directly due to the movement^ of 1847-48. It is indeed happy that the A^ctory of the federal armies took place before the fall of the French Monarchy, and that the Revolution of February, combined with other movements which distracted Europe, left the Swiss free to manage their own affairs in their own way. Swiss patriotism and moderation met with their reward. Switzerland became master of her own fate. Each step in the subsequent progress of the new federal state has been a step along the path leading from confederate union to national unity. A federal constitution is, as compared with a unitary constitution, a weak form of government. Few were the thinkers who in 1884 would have denied the truth of this proposition. In 1914 language is constantly used which imphes that a federal government is in itself superior to a imitary constitution such as that of France or of England. Yet the comparative weakness of federahsm is no accident. A true federal government is based on the division of powers. It means the constant effort of statesmanship to balance one state of the confederacy against another. No one can rate more highly than myself the success with which a complicated system is worked by the members of the Swiss Council or, to use expressions famihar to Enghshmen, by the Swiss Cabinet. Yet everywhere throughout Swiss arrangements you may observe the desire to keep up a sort of balance of advantages between different states. The members of the Council are seven in number ; each member must, of necessity, belong to a different canton. The federal Parhament meets at Bern ; the federal Court sits at Lausanne in the canton of Vaud; the federal university is allotted to a third canton, namely Zurich. Now rules or practices of this kind must inevitably restrict the power of bringing into a Swiss Cabinet all the best Ixxviii INTRODUCTION political talent to be found in Switzerland. Such a system applied to an English or to a French Cabinet would be found almost unworkable. Federalism again would mean, in any country where English ideas prevail, the predominance of legaUsm or, in other words, a general willingness to yield to the authority of the law courts. Nothing is more remarkable, and in the eyes of any impartial critic more praiseworthy, than the reverence paid on the whole by American opinion to the Supreme Court of the United States. Nor must one forget that the respect paid to the opinion of their owna judges, even when deciding questions on which pohtical feeling runs high, is, on the whole, characteristic of the citizens of each particular state. The Supreme Court, e.g., of Massachusetts may be called upon to determine in effect whether a law passed by the legislature of Massachusetts is, or is not, constitutional ; and the decision of the Court will certainly meet with obedience. Now, what it is necessary to insist upon is that this legalism which fosters and supports the rule of law is not equally displayed in every country. No French court has ever definitely pronounced a law passed by the French legislature invahd, nor, it is said, has any Belgian court ever pronounced invalid a law passed by the Belgian Parliament. Whether EngUsh electors are now strongly disposed to confide to the decision of judges questions which excite strong pohtical feehng is doubtful. Yet — and this is no insignificant matter — ^under every federal system there must almost of necessity exist some body of persons who can decide whether the terms of the federal compact have been observed. But if this power be placed in the hands of the Executive, the law will, it may be feared, be made subservient to the will of any political party which is for the moment supreme. If it be placed in the hands of judges, who profess and probably desire to practise judicial impartiahty, it may be very difficult to ensure general respect for any decision which contradicts the interests and the principles of a dominant party. Pederahsm, lastly, creates divided allegiance. This is the most serious and the most inevitable of the weaknesses attaching to a form of government under which loyalty to a citizen's native state may conflict with his loyalty to the whole federated nation. FEDERALISM lxxr;> Englishmen, Scotsmen, and Irishmen have always, as soldiers, been true to the common flag. The whole history of the Sonderbund in Switzerland and of Secession in the United States bears witness to the agonised perplexity of the noblest among soldiers when called upon to choose between loyalty to their country and loyalty to their canton or state. One example of this diflGlculty is amply sufficient for my purpose. General Scott and General Lee ahke had been trained as officers of the American Army ; each was a Virginian ; each of them was determined from the outbreak of the Civil War to follow the dictates of his own conscience ; each was placed in a position as painful as could be occupied by a soldier of bravery and honour ; each was a victim of that double allegi- ance which is all but inherent in federahsm. General Scott followed the impulse of loyalty to the Union. General Lee felt that as a matter of duty he must obey the sentiment of loyalty to Virginia. In any estimate of the strength or the weakness of federal government it is absolutely necessary not to confound, though the confusion is a very common one, federalism with national- ism. A truly federal government is the denial of national independence to every state of the federation. No single state of the American Commonwealth is a separate nation ; no state, it may be added, e.g. the State of New York, has anything Uke as much of local independence as is possessed by New Zealand or by any other of the five Dominions.^ There is of course a sense, and a very real sense, in which national tradition and national feehng may be cultivated in a state which forms part of a confederacy. The French inhabitants of Quebec are Frenchmen to the core. But their loyalty to the British Empire is certain. One indisputable source of their Imperial loyalty is that the break-up of the Empire might, as things now stand, result to Canada in union with the United States. But Frenchmen would with more difficulty maintain their French character if Quebec became a state of the Union and ceased to be a province of the Dominion. In truth national character in one sense of that term has less necessary connection than Enghshmen generally 1 As to meaning of " Dominions " see p. xxiv, note 1 ante.. Ixxx INTRODUCTION suppose with political arrangements. It wotdd be simple folly to assert that Sir Walter Scott did not share the sentiment of Scottish nationalism ; yet the influence of Scott's genius throughout Europe was favoured by, and in a sense was the fruit of, the union with England. But the aspiration and the effort towards actual national independence is at least as in- consistent with the conditions of a federal as with the conditions of a unitary government. Any one wiU see that this is so who considers how patent would have been the folly of the attempt to establish a confederacy which should have left Italy a state of the Austrian Empire. Nor does historical experience countenance the idea that federahsm, which may certainly be a step towards closer national imity, can be used as a method for gradually bringing political unity to an end. Tim Characteristics of Federal Government in Relation to Imperial Federalism. Many Enghshmen of to-day advpcate the building up oi some grand federal constitution which would include the United Kingdom (or, to use popidar language, England) and at any rate the five Dominions. This splendid vision of the advan- tages to be obtained by increased unity of action between England and her self-governing colonies is suggested by obviorus and important facts. The wisdom of every step which may increase the reciprocal goodwill, strong as it now is, of England and her Dominions is proved by the success of each Imperial Conference. It is perfectly plain already, and will become every day plainer both to Englishmen and to the inhabitants of the British Empire outside England, that the existence of the Empire ought to secure both England and her colonies against even the possibihty of attack by any foreign power. It to-day in reahty secures the maintenance of internal peace and order in every country inhabited by British subjects. It is further most desirable, it may probably become in no long time an absolute necessity, that every country throughout the Empire should contribute in due measure to the cost of Imperial defence. To this it should be added that the material advantages accruing to millions of British subjects from the FEDERALISM Ixxxi Imperial power of England may more and more tend to produce that growth of loyalty and goodwill towards the Empire which in 1914 is a characteristic and splendid feature both of England and of her colonies. Any man may feel pride in an Imperial patriotism grounded on the legitimate belief that the Empire built up by England furthers the prosperity and the happiness of the whole body of British subjects.^ But, when every admission which the most ardent of Imperialists can ask for, is made of the benefits conferred in every quarter of the world upon the inhabitants of difierent countries, by the existence of England's Imperial power, it is quite possible for a calm observer to doubt whether the so- called federaUsation of the British Empire is an object which ought to be aimed at by the statesmen either of England or of the Dominions. The objections to the creed of federaUsm, in so far as it means the building up of a federal constitution for the Empire, or rather for Dngland and her Dominions, may be summed up in the statement that this beUef in a new- ^ " But this Empire of ours is distinguished from [other Empires] by " special and dominating characteristics. From the external point of view "it is made up of countries which are not geographically conterminous or " even contiguous, which present every variety of climate, soU, people, and " religion, and, even in those communities which have attained to complete " self-government, and which are representedin this room to-day, does not " draw its unifying and cohesive force solely from identity of race or of " language. Yet you have here a poUtioal organisation which, by its mere " existence, rules out the possibility of war between populations numbering " something like a third of the human race. There is, as there must be " among communities so differently situated and circumstanced, a vast " variety of constitutional methods, and of social and pohtical institutions " and ideals. But to speak for a moment for that part of the Empire which " is represented here to-day, what is it that we have in common, which " amidst every diversity of external and material conditions, makes us and " keeps us one ? There are two things in the self-governing British Empire " which are unique in the history of great poUtical aggregations. The first " is the reign of Law : wherever the King's writ runs, it is the symbol and " messenger not of an arbitrary authority, but of rights shared by every " citizen, and capable of being asserted and made effective by the tribunals " of the land. The second is the combination of local autonomy — absolute, " unfettered, complete — ^with loyalty to a common head, co-operation, "spontaneous and unforced, for common interests and purposes, and, I " may add, a common trusteeship, whether it be in India or in the Crown " Colonies, or in the Protectorates, or within oiir own borders, of the interests " and fortunes of fellow-subjects who have not yet attained, or perhaps in " some cases may never attain, to the full stature of self-government." — See speech of the Right Hon. H. H.-Asquith (President of the Conference), Minutes of Proceedings of the Imperial Conference, 1911 [Cd. 6746], p. 22. Ixxxii INTRODUCTION fangled federalism is at bottom a delusion, and a delusion perilous not only to England but to the whole British Empire. But this general statement may be best justified by the working out of two criticisms. First. — The. attemjpt to form a federal constitution for the Empire is at this nwment full of peril to England, to the Dominions, and, it may well he, to the maintenance of the British Empire. The task imposed upon British and upon colonial statesmanship is one of infinite difficidty. As we aU know, the creation of the United States was for the thirteen independent colonies a matter of absolute necessity. But the highest statesmanship of the ablest leaders whom a country ever possessed was hardly sufficient for the transformation of thirteen different states into one confederated nation. Even among countries differing Httle in race, rehgion, and history, it was found all but impossible ^o reconcile the existence of state rights with the creation of a strong central and national power. If any one considers the infinite diversity of the countries which make up the British Empire, if he reflects that they are occupied by different races whose customs and whose civiUsation are the product of absolutely different histories, that the different countries of the Empire are in no case contiguous, and in many instances are separated from England and from each other by seas extending over thousands of miles, he will rather wonder at the boldness of the dreams entertained by the votaries of federal ImperiaHsm, than beUeve that the hopes of federaUsing the Empire are likely to meet with fulfilment. I shall be reminded, however, and with truth, that Imperial federahsm, as planned by even its most sanguine advocates, means something very different from the attempt to frame a constitution of which the United Kingdom, the Dominions, the Crown colonies, and British India shall constitute different states. Our ImperiaUsts really aim, and the fact must be constantly borne in mind, at federahsing the relation not between England and the rest of the Empire, but between England and the five self-governing Dominions. But then this admission, while it does away with some of the difficulties besetting the FEDERALISM Ixxxin policy which is miscalled Imperial federalism, raises a whole body of difficult and all but unanswerable questions. Take a few of the inquiries to which sanguine reformers, who talk with easy confidence of federaUsm being the solution of all the most pressing constitutional problems, must find a reply. What is to be the relation between the new federated state (consisting of England and the five Dominions) and British India ? Will the millions who inhabit India readily obey a new and strange sovereign, or will the states of the new confederacy agree that the rest of the Empire shall be ruled by the Parhament and Government of England alone ? Is the whole expense of Imperial defence to be borne by the federated states, or wiU the new federation of its own authority impose taxes upon India and the Crown colonies for the advantage of the federated state ? Is it certain, after all, that the mutual goodwill entertained between England and the Dominions really points towards federalism ? No doubt England and the states represented at the Imperial Con- ferences entertain a genuine and ardent wish that the British Empire should be strong and be able, as against foreigners, and even in resistance to secession, to use all the resources of the whole Empire for its defence and maintenance. But then each one of the Dominions desires rather the increase than the lessening of its own independence. Is there the remotest sign that, for example. New Zealand, though thoroughly loyal to the Empire, would tolerate interference by any Imperial Parhament or Congress with the internal affairs of New Zealand which even faintly resembled the authority exerted by Congress in New York, or the authority exerted by the Parhament of the Canadian Dominion in Quebec ? But if the Dominions would not tolerate the interference with their own affairs by any Parhament, whatever its title, sitting at Westminster, is there the remotest reason to suppose that the existing Imperial Parhament will consent to become a Parhament of the Empire in which England, or rather the United Kingdom, and each of the five Dominions shall be fairly represented? But here we come to a further inquiry, to which our new federahsts hardly seem to have given a thought : What are they going to do with the old Imperial Ixxxiv INTRODUCTION Parliament which has, throughout the whole history of England, inherited the traditions and often exerted the reality of sovereign power ? Under our new federation is the Imperial Parliament to become a Federal Congress wherein every state is to have due representation ? Is this Federal Congress to be for Englishmen the English ParKament, or is there to be in addition to or instead of the ancient Parliament of England a new local BngUsh Parliament controlling theafEairs of England alone ? This question itself is one of unbounded difficulty. It embraces two or three inquiries the answers whereto may trouble the thoughts of theorists, and these repKes, if they are ever discovered, may give rise throughout England and the British Empire to infinite discord. Is it not one ex- ample of the perplexities involved in any plan of Imperial federaUsm, and of the intellectual levity with which they are met, that our FederaHsts never have given a clear and, so to speak, intelligible idea of what is to be under a federal government the real position not of the United Kingdom but of that small country Umited in size, but still of immense power, which is specifi.cally known by the august name of England ? The traditional feuds of Ireland and the ecclesiastical griev- ances of Wales, the demand of some further recognition of that Scottish nationality, for which no sensible Englishman shows or is tempted to show the least disrespect, all deserve and receive exaggerated attention. But England and English in- terests, just because Englishmen have identified the greatness of England with the prosperity of the United Kingdom and the greatness and good government of the Empire, are for the moment overlooked. I venture to assiire all my readers that this forgetfulness of England— and by England I here mean the country known, and famous, as England before the legal creation either of Great Britain or of the United Kingdom — is a fashion opposed both to common sense and to common justice, and, hke all opposition to the nature of things, will ultimately come to nothing.i The questions I have 1 Sir Joseph Ward is an eminent colonial statesman ; he is also an ardent Imperialist of the colonial type. In his plan for an Imperial Council, or in other words for an Imperial Parliament representing the United Kingdom, or rather the countries which now make it up, and also the Dominions, he calmly assumes that Englishmen will without difficulty aUow the United FEDERALISM Ixxxv mentioned are numerous and full of complexity. The present time, we must add, is intensely unfavourable to the creation of a new federaUsed and Imperial constitution. The Parha- ment and the Government of the United Kingdom may be chargeable with grave errors : they have fallen into many blunders. But they have never forgotten — they will never, one trusts, forget — that they hold " a common trusteeship, " whether it be in India or in the Crown Colonies, or in the " Protectorates, or within our own borders, of the interests " and fortunes of fellow-subjects who have not yet attained, " or perhaps in some cases may never attain, to the full stature " of self-government." ^ Is it credible that, for instance, the peoples of India will see with indifference this trusteeship pass from the hands of an Imperial Parliament (which has more or less learned to think imperially, and in England has maintained the equal pohtical rights of all British subjects) into the hands of a new-made Imperial Congress which will consist in part of representatives of Dominions which, it may be of necessity, cannot give effect to this enlarged conception of British citizenship ? ^ Secondly. — The unity of the Empire does not require theformch tion of a federal or of any other brand-new constitution. — ^I yield to no man in my passion for the greatness, the strength, the glory, and the moral unity of the British Empire.^ I am one of the thousands of EngHshmen who approved, and still approve, of the war in South Africa because it forbade secession. But I am a student of the British constitution ; my unhesitating conviction is that the constitution of the Empire ought to develop, as it is actually developing, in the Kingdom to be broken up into four countries ruled by four local Parliaments. He supposes, that is to say, as a matter of course, that Englishmen will agree to a radical change in the government of England which no sane English Premier would have thought of pressing upon the Parliaments of the self-governing colonies which now constitute the Dominion of Canada or which now constitute the Commonwealth of Australia. See Minutes of Proceedings of the Imperial Conference, 1911 [Cd. 5745], pp. 59-61. "• See Mr. Asquith's address, cited p. Ixxxi, note 1, ante. ' See p. xxxvii, and note 1, ante. ' See A Fool's Paradise, p. 24. Ixxxvi tMTRODUCTtON same way in which grew up the constitution of England.^ The relation between England and the Dominions, and, as far as possible, between England and the colonies which are not as yet self-governing countries, need not be developed by arduous feats of legislation. It should grow under the influence of reasonable understandings and of fair customs. There are, as I have intimated,^ two objects on which every Imperiahst should fix his eyes. The one is the contribution by every coimtry within the Empire towards the cost of defending the Empire. The second object is the constant consultation between England and the Dominions. The Enghsh taxpayer will not, and ought not to, continue for ever paying the whole cost of Imperial defence. The Dominions cannot for an indefinite period bear the risks of Imperial wars without having a voice in determining if such wars should begin, and when and on what terms they should be brought to an end. Imperial statesmanship is rapidly advancing in the right direction. The system of Imperial Conferences ^ and other modes of inter-communication between England and the Dominions will, we may hope, result in regulating both the contribution which the Dominions ought to make towards the defence of the Empire, and the best method for collecting colonial opinion on the poUcy of any war which may assimie an Imperial character. My full beHef is that an Imperial constitution based on goodwill and fairness may within a few years come into real existence, before most Englishmen have reaUsed that the essential foundations of Imperial unity have already been firmly laid. The ground of my assurance is that the constitution of the Empire may, hke the constitution of England, be found to rest far less on parhamentary statutes than on the growth of gradual and often unnoted customs. 1 This conviction is strengthened by the facts now daily passing before our eyes (Sept. 1914). '^ See pp. Ixxx, bcxxi, ante, ; and see A Fool's Paradise, p. 25. ' Consider the gradual, the most hopeful, and the most successful develop- ment of these conferences from 1887 to the last conference in 1911. A sort of conference was held in 1887, and the conferences of 1897 and 1902 were held in connection with some other celebration. The first regular conference for no other purpose than consultation was held in 1907, in which the Imperial Conference received by resolution a definite constitution. The conference of 1911 was held uncier the scheme thus agreed upon in 1907. FEDERALISM Ixxxvii Gha/racteristics of Federal Government in Relation to Home Rule all Round Advocates of the so-called " federal solution " apparently believe that the United Kingdom as a whole will gain by ex- changing our present unitary constitution for some unspecified form of federal government. To an Englishman who still holds, as was universally held by every English statesman tiU at the very earUest 1880, that the union between England and Scotland was the wisest and most fortunate among the achievements of British statesmanship, there is great difficulty in imderstanding the new behef that the federahsation of the United Kingdom will confer benefit upon any of the inhabitants of Great Britain.^ A candid critic may be able to account for the existence of a political creed which he does not affect to share. The faith in Home Rule all round has been stimulated, if not mainly created, by the controversy, lasting for thirty years and more, over the pohcy of Home Rule for Ireland. British Home Rulers have always been anxious to conceal from themselves that the creation of a separate Irish Parha- ment, and a separate Irish Cabinet depending for its existence on such ParUament, is a real repeal of the Act of Union between Great Britain and Ireland. This refusal to look an obvious fact in the face is facihtated by the use of that most am- biguous phrase, "Home Rule all round." Federahsm has, no doubt, during the last thirty, or one may say fifty, years acquired a good deal of new prestige. The ^ The omission of reference to the policy of Home Rule for Ireland as embodied in the Government of Ireland Act, 1914, is intentional. The true character and effect of that Act cannot become apparent until some years have passed. The Act itself stands in a position never before occupied by any statute of immense and far-reaching importance. It may not come into operation for an indefinite period. Its very authors contemplate its amendment before it shall begin to operate. The Act is at the moment detested by the Protestants of Ulster, and a binding though ambiguous pledge has been given that the Act will not be forced upon Ulster against her wiU. The people of Great Britain will insist on this pledge being held sacred. To a constitutionalist the Act at present affords better ground for wonder than for criticism. If any reader should be curious to know my views on Home Eule he will find them in a general form in England's Case against Home Rule, published in 1887 ; and as applied to the last Home Eule BilL in A FooVs Paradise, published in 1913. Ixxxviii INTRODUCTION prosperity of the United States, the miUtary authority of the German Empire, may by federaKsts be put down to the credit of federal government, though in matter of fact no two constitutions can, either in their details or in their spirit, bear less real resemblance than the democratic and, on the whole, unmihtary constitution of the United States and the autocratic Imperial and, above all, military government of Germany. Federal government has also turned out to be the form of government suitable for some of the British Dominions. It has been an undoubted success in the Canadian Dominion. It has not been long tried but has not been a failure in the AustraUan Commonwealth. It may become, EngHshmen are inclined to think it is, the best form of government for the states included in the Union of South Africa. Little reflection, however, is required in order to see that none of these federations resemble the constitution of England either in their historical development or in their actual circumstances. Then, too, it is thought that whereas Enghsh statesmen find it difficult to regulate the relation between Great Britain and Ireland, the task will become easier if the same statesmen undertake to transform, by some hocus-pocus of political legerdemain, the whole United Kingdom into a federal govern- ment consisting of at least four different states. It is sup- posed, lastly, though the grounds for the supposition are not very evident, that the federahsation of the United Kingdom is necessary for, or conducive to, the development of Imperial federaUsm. FederaUsm, in short, has at present the vague, and therefore the strong and imaginative, charm which has been possessed at one time throughout Europe by the parliamentary con- stitutionahsm of England and at another by the revolutionary repubhcanism of France. It may be well, therefore, to state with some precision why, to one who has studied the character- istics of federal government, it must seem in the highest degree improbable that Home Eule all round, or the federal solution, will be of any benefit whatever to any part of the United Kingdom. (1) There is no trace whatever of the existence of the federal spirit throughout the United Kingdom. In England, which FEDERALISM Ixxxix is after all by far the most important part of the kingdom, the idea of federalism has hitherto been totally unknown. Poli- ticians may have talked of it when it happened to suit their party interest, but to the mass of the people the idea of federation has always been, and I venture to assert at this moment is, unknown and all but incomprehensible. Scotsmen sometimes complain that Great Britain is often called England. They sometimes talk as though they were in some mysterious manner precluded from a fair share in the benefits accruing from the unity of Great Britain. To any one who investigates the actual course of British poKtics, and still more of British social life since the beginning of the nineteenth century, these complaints appear to be utterly groimdless. The prejudices which, say, in the time of Dr. Johnson, kept Scotsmen and Englishmen apart, have in reaUty vanished. To take one example of disappearing differences, we may note that while many leading Englishmen fill in Parhament Scottish seats many Scotsmen fill EngUsh seats. What is true is that the course of events, and the way in which the steam-engine and the telegraph bring the world everywhere closer together, are unfavourable to that prominence in any coimtry which at one time was attainable by particular locaUties, or by small bodies of persons hving somewhat apart from the general course of national fife. This change has, like all other alterations, its weak side. It is quite possible honestly to regret the time when Edinburgh possessed the most intellectual society to be found in Great Britain or Ireland. It is also possible honestly to wish that Lichfield and Norwich might still have, as they had at the beginning of the nineteenth century, a httle and not unfamous literary coterie of their own. There is a sense in which the growth of large states is injurious to the individual Ufe of smaller communities. The Eoman Kepubhc and the Eoman Empire did not produce thinkers or writers who did as rnuch for the progress of mankind as was done by the philosophers, the historians, and the poets of Greece, and the fruits of Greek genius were mainly due to the intellectual achievements of Athens during not much more than a century. Ireland is, as regards most of its inhabitants, discontented with the Union. But it is idle to pretend that Ireland has ever desired xe iNTRODlJCTlON federalism in the sense in which it was desired by the colonies which originally formed the United States, or by the in- habitants of what are now the provinces of the Canadian Dominion. O'Connell for a very short time exhibited a tend- ency to substitute federahsm for repeal. He discovered his mistake and reverted to repeal, which with his more revolutionary followers meant nationalism. No one who reads the last and the strangest of the biographies of ParneU can doubt that " Ireland a Nation " was the cry which met his own instinctive feehng no less than the wishes of his followers, except in so far as their desires pointed towards a revolutionary change in the tenure of land rather than towards the claim for national independence. (2) There is good reason to fear that the federahsation of the United Kingdom, stimidating as it would the disruptive force of local nationahsm, might well arouse a feeling of divided allegiance. This topic is one on which I have no wish to dwell, but it cannot be forgotten by any sensible observer who reflects upon the history of secession in the United States, or of the Sonderbund in Switzerland, or who refuses to forget the pre- eminently uneasy connection between the different parts of the Austrian Empire and the deUberate determination of Norway to sever at all costs the union with Sweden. Nor is it possible to see how the federahsation of the United Kingdom should faciUtate the growth of Imperial federahsm. (3) Federahsm, as the dissolution of the United Kingdom, is absolutely foreign to the historical and, so to speak, in- stinctive poUcy of Enghsh constitutionahsts. Each successive generation from the reign of Edward I. onwards has laboured to produce that complete pohtical imity which is repre- sented by the absolute sovereignty of the Parhament now sitting at Westminster. Let it be remembered that no constitutional arrangements or fictions could get rid of the fact that England would, after as before the estabhshment of Home Rule all round, continue, in virtue of her resources and her population, the predominant partner throughout the United Kingdom, and the partner on whom sovereignty had been conferred, not by the language of any statute or other document, but by the nature of things. It THE kMFERENDVM would be hard indeed to prevent the EngUsh Parliament sitting at Westminster from not only claiming but exercising sovereign authority ; and to all these difficulties must be added one ominous and significant reflection. To every foreign country, whether it were numbered among our allies or among our rivals, the federaUsation of Great Britain would be treated as a proof of the dechning power ahke of England and of the British Empire.^ IV. The Beferendum.^ — The word Keferendum is a foreign expression derived from Switzerland. Thirty years ago it was almost unknown to Englishmen, even though they were interested in poUtical theories. Twenty years ago it was quite unknown to British electors. The word has now obtained popular currency but is often misunderstood. It may be well, therefore, to define, or rather describe, the meaning of the " referendum " as used in this Introduction and as appHed to England. The referendum is used by me as meaning the principle that Bills, even when passed both by the House of Conamons and by the House of Lords,^ should not become Acts of Parliament imtil they have been submitted to the vote of the electors and have received the sanction or approval of the majority of the electors voting on the matter. 1 Any great change in the form of the constitution of England, e.g. the substitution of an English republic for a limited monarchy, might deeply affect the loyalty of aU the British colonies. Can any one be certain that New Zealand or Canada would, at the bidding of the Parliament of the United Kingdom, transfer their loyalty from George V. to a President chosen by the electorate of the United Kingdom, and this even though the revolution were carried out with every legal formality including the assent of the King himself, and even though the King were elected the first President of the new Commonwealth ? Is it certain that a federated union of England, Ireland, Scotland, and Wales would command in our colonies the respect paid to the present United Kingdom ? These questions may well seem strange : they are not unimportant. The King is what the Imperial Parliament has never been, the typical representative of Imperial unity throughout every part of the Empire. ^ Lowell, PvMic Opinion and Popular Government, part iii. chaps, xi.-xv., especially chaps, xii. and xiii. (best thing on the subject) ; Lowell, Govern- rmnl of England,!, p. 411 ; "The Referendum audits Critics," by A. V. Dicey, Quarterly Review, No. 423, April 1910 ; The Crisis of Liberalism, by J. A. Hobson ; Low, The Governance of England, Intro, p. xvii ; " Ought the Pveferendum to be introduced into England ? " by A. V. Dicey, GonUmporary Review, 1890, and National Review, 1894. ^ And a fortiori when passed under the Parliament Act, without the consent of the House of Lords. INTRODUCTION The referendum is sometimes described, and for general pur- poses well described, as " the people's veto." This name is a good one ; it reminds us that the main use of the refer- endum is to prevent the passing of any important Act which does not command the sanction of the electors. The expres- sion " veto " reminds us also that those who advocate the introduction of the referendum into England in fact demand that the electors, who are now admittedly the pohtical sovereign of England, should be allowed to play the part in legislation which was really played, and with popular approval, by e.g. Queen Ehzabeth at a time when the King or Queen of England was not indeed the absolute sove- reign of the country, but was certainly the most important part of the sovereign power, namely ParUament.^ In this Introduction the referendum, or the people's veto, is considered simply with reference to Bills passed by the Houses of ParKa- ment but which have not received the royal assent. The subject is dealt with by no means exhaustively, but with a view in the first place to bring out the causes of the demand in England for the referendum ; and in the next place to con- sider carefully and examine in turn first by far the strongest argument against, and secondly the strongest argument in favour of introducing the referendum into the constitution of England. Tlie causes. — During forty years faith in parliamentary government has suffered an extraordinary dechne or, as some would say, a temporary echpse.^ This change is visible in every civilised country. Depreciation of, or contempt for, representative legislatures clearly exists imder the parha- 1 The referendum, it should be noted, can be applied to legislation for different purposes and in different ways. It may, for instance, be applied only to a Bill affecting fundamental changes in the constitution, e.g. to a Bill affecting the existence of the monarchy, or to any BiU which would in popular language be called a Reform Bill, and to such BiU after it has been passed by the two Houses. In this case the object of the referendum would be to ensure that no Act of transcendent importance shall be passed without the undoubted assent of the electors. The referendum may again be applied, as it is applied in the Commonwealth of Australia, for prevent- ing " deadlocks," as they are called, arising from the fact of one House of Parliament having carried repeatedly, and the other having repeatedly rejected, a given BUI. ' Compare Law and Opinion (2nd ed.), pp. 440-443. THE REFERENDUM mentary and republican government of France, under the federal and republican constitution of the Swiss Confederacy, or of the United States, under the essential mihtarism and the superficial parliamentarism of the German Empire, and even imder the monarchical and historical constitutionaliflm of the British Empire. This condition, whether temporary or permanent, of public opinion greatly puzzles the now small body of surviving constitutionaHsts old enough to remember the sentiment of the mid- Victorian era, with its prevalent belief that to imitate the forms, or at any rate to adopt the spirit of the EngUsh constitution, was the best method whereby to confer upon the people of any civilised country the combined blessings of order and of progress. To explain in any substantial degree the alteration in popular opinion it would be necessary to produce a treatise probably longer and certainly of more profound thought than the book for which I am writing a new Introduction. Yet one or two facts may be noted which, though they do not solve the problem before us, do to some slight extent suggest the Kne in which its solution must be sought for. Parliamentary government may under favourable circumstances go a great way towards securing such blessings as the prevalence of personal hberty and the free expression of opinion. But neither parlia- mentary government nor any form of constitution, either which has been invented or may be discovered, wOl ever of itself remove all or half the sufferings of human beings. Utopias lead to disappointment just because they are Utopias. The very extension of constitutional government has itself led to the frustration of high hopes ; for constitutions have by force of imitation been set up ia states unsuited to popular government. What is even more important, parhamentary government has by its contiaued existence betrayed two defects hardly suspected by the Liberals or reformers of Europe, or at any rate of England, between 1832 and 1880. We now know for certain that while popular government may be under wise leadership a good machine for simply destroying existing evils, it may turn out a very poor instrument for the construction of new institutions or the realisation of new ideals. We know further that party government, which to INTRODUCTION many among the wisest of modern constitutionalists appears to be the essence of England's far-famed constitution, in- evitably gives rise to partisanship, and at last produces a machine which may well lead to poKtical corruption and may, when this evil is escaped, lead to the strange but acknowledged result that a not unfairly elected legislature may misrepre- sent the permanent will of the electors. This fact has made much impression on the pohtical opinion both of England and of the United States. The above considerations taken as a whole afford some explanation of a demand for that referendum which, though it originates in Switzerland, flourishes in reaUty, though not in name, in almost every state of the American Commonwealth. The main argument against the referendum. — To almost all EngUshmen the chief objection to the referendum is so obvious, and seems to many fair-minded men so conclusive, that it ought to be put forward in its full strength and to be carefully examined before the reader is called upon to consider the possible advantages of a great change in our constitution. This objection may be thus stated : In England the introduction of the referendum means, it is urged, the transfer of political power from knowledge to ignorance. Let us put this point in a concrete form. The 670 members of the House of Commons together with the 600 and odd members of the House of Lords ^ contain a far greater proportion of educated men endowed with marked intellectual power and trained in the exercise of some high pohtical virtues than would generally be found among, say, 1270 electors collected merely by chance from an electorate of more than 8,000,000. The truth of this allegation can hardly be disputed ; the inference is drawn therefrom that to substitute the authority of the electorate for the authority of the House of Commons and the House of Lords is to transfer the government of the country from the rule of inteUigence to the rule of ignorance. This line of argument can be put in various shapes. It is, in whatever form it appears, the reason- ing on which the most capable censors of the referendum rely. Oddly enough (though the matter admits of explanation) 1 Strictly, 638 members. See WhitaUr's Almanack, 1914, p. 124. THE REFERENDUM this line of reasoning is adopted at once by a thoughtful con- servative, such as Maine, and by revolutionists who wish to force upon England, through the use of authoritative legisla- tion, the ideals of socialism. Maine saw in the referendum a bar to all reasonable reforms. He impresses upon his readers that democracy is not in itself a progressive form of govern- ment, and expresses this view in words which deserve quota- tion and attention : " The delusion that democracy," he writes, " when it has once had all things put under its feet, is " a progressive form of govemmentj lies deep in the con- " victions of a particular political school ; but there can be "no delusion grosser. ... All that has made England " famous, and all that has made England wealthy, has been " the work of minorities, sometimes very small ones. It " seems to me quite certain that, if for four centuries there " had been a very widely extended franchise and a very large "electoral body in this country, there would have been no " reformation of reUgion, no change of dynasty, no toleration " of Dissent, not even an accurate Calendar. The threshing- " machine, the power-loom, the spinning- jenny, and possibly "the steam-engine, would have been prohibited. Even in " our day, vaccination is in the utmost danger, and we may " say generally that the gradual estabhshment of the masses " in power is of the blackest omen for all legislation founded " on scientific opinion, which requires tension of mind to " -understand it, and self-denial to submit to it." ^ And he thence practically infers that democracy as it now exists in England would, combined with the referendum, be probably a death-blow to all reasonable reform.^ To Maine, in short, the referendum is the last step in the development of democracy, and his censure of the referendum is part of a powerful attack by an intellectual conservative on democratic government which he distrusted and abhorred. Now revolutionists who probably think themselves democrats have of recent years attacked the referendum on grounds which might have been suggested by Maine's pages. The referendum, we are told by sociahstic writers, will work steadily to the disadvantage of thtj 1 Maine, Popular Oovernment, pp. 97-98. 2 See ibid. pp. 96-97. INTROD UCTION Liberal Party.^ Would not, we are asked, the anti-reform- ing press exhaust itself in malignant falsehoods calculated to deceive the people ? Such suggestions and others of the same quality may be summed up in an argument which from a sociaUstic point of view has considerable force. The people, it is said, are too stupid to be entrusted with the referendum ; the questions on which the electors are nominally called upon to decide must never be put before them with such clearness that they may understand the true issues submitted to their arbitrament. The party machine, think our new democrats, may be made the instrument for foisting upon the people of England changes which revolutionary radicals or enthusiasts know to be reforms, but which the majority of the electorate, if they understood what was being done, might condemn as revolution or confiscation. The attacks of conservatives and the attacks of sociaUstic democrats to a certain extent balance one another, but they contain a common element of truth. The referendum is a mere veto. It may indeed often stand in the way of salutary reforms, but it may on the other hand delay or forbid innovations condemned by the weight both of the uneducated and of the educated opinion of England. Thus it is, to say the least, highly probable that, if the demand of votes for women were submitted to the present electorate by means of a referendimi, a negative answer would be re- turned, and an answer of such decision as to check for years the progress or success of the movement in favour of woman suffrage. It must, in short, be admitted that a veto on legislation, whether placed in the hands of the King, or in the hands of the House of Lords, or of the House of Commons, or of the 8,000,000 electors, would necessarily work sometimes well and sometimes ill. It might, for example, in England forbid the enforcement or extension of the vaccination laws ; it might forbid the grant of parhamentary votes to EngUsh- women ; it might have forbidden the passing of the Govern- ment of Ireland Act, 1914 ; it might certainly have forbidden the putting of any tax whatever on the importation of corn into the United Kingdom. Now observe that if you take * See Against Oie Referendum and Quarterly Beview, April 1910, No. 423, pp. 651, 652. THE REFERENDUM any person, whether an Englishman or Englishwoman, he or she will probably hold that in some one or more of these instances the referendum would have worked ill, and that in some one or more of these instances it would have worked well. All, therefore, that can be conclusively inferred from the argument against the referendum is that the people's veto, like any other veto, may sometimes be ill, and sometimes be well employed. Still it certainly would be urged by a fair- minded opponent of the referendum that there exists a presumption that the Houses of Parliament acting together wiU exhibit something more of legislative intelligence than would the mass of the electorate when returning their answer to a question put to them by the referendum. But a reason- able supporter of the referendum, while admitting that such a presumption may exist, wiU however maintain that it is of very slight weight. The Parliament Act gives unUmited authority to a parliamentary or rather House of Commons majority. The wisdom or experience of the House of Lords is in matters of permanent legislation thereby deprived of all influence. A House of Commons majority acts more and more exclusively under the influence of party interests. It is more than possible that the referendum might, if introduced into England, increase the authority of voters not deeply pledged to the dogmas of any party. The referendum, as I have dealt with it, cannot, be it always borne in mind, enforce any law to which at any rate the House of Commons has not consented. It has the merits as also the weaknesses of a veto. Its strongest recommendation is that it may keep in check the inordinate power now bestowed on the party machine. The main argument in favour of the referendum.— Tlha referendum is an institution which, if introduced into England, would be strong enough to curb the absolutism of a party possessed of a parhamentary majority. The referendum is also an institution which in England promises some con- siderable diminution in the most patent defects of party government. Consider first the strength of the referendum. It lies in the fact that the people's veto is at once a demo- cratic institution, and, owing to its merely negative character, 9 INTRODUCTION may be a strictly conservative institution. It is democratic, for it is in reality, as also on the face thereof, an appeal to the people. It is conservative since it ensures the maintenance of any law or institution which the majority of the electors efiectively wish to preserve. Nor can any one who studies the present condition of EngUsh society seriously beHeve that, under any system whatever, an institution deUberately con- demned by the voice of the people can for a long time be kept in existence. The referendum is, in short, merely the clear recognition in its negative form of that sovereignty of the nation of which under a system of popular government every leading statesman admits the existence. But the mere consonance of a given arrangement with some received doctrine, siich as " the sovereignty of the people," must with a thoughtfid man carry little weight, except in so far as this harmony with prevalent ideas promises permanence to some suggested reform or beneficial institution. Let us then consider next the tendency of the referendum to lessen the evils of the party system. An elected legislature may well misrepresent the will of the nation. This is proved by the constant experience of Switzerland and of each of the States which make up the American Commonwealth. This danger of misrepresenting the will of the nation may exist even in the case of an honest and a fairly-elected legislative body. This misrepresentation is Ukely or even certain to arise where, as in England, a general election comes more and more to resemble the election of a given man or a given party to hold office for five years. Partisanship must, under such a system, have more weight than patriotism. The issues further to be deter- mined by the electors will year by year become, in the absence of the referendum, more compHcated and confused. But in the world of poHtics confusion naturally begets intrigue, sometimes coming near to fraud. Trust in elected legislative bodies is, as already noted, dying out under every form of popular government. The party machine is regarded with suspicion, and often with detestation, by public-spirited citizens of the United States. Coahtions, log-rolHng, and parhamentary intrigue are in England diminishing the moral and poHtical faith in the House of Commons. Some means THE REFERENDUM must, many Englishmen believe, be found for the diminution of evils which are under a large electorate the natural, if not the necessary, outcome of our party system. The obvious corrective is to confer upon the people a veto which may restrict the unbounded power of a parHamentary majority. No doubt the referendum must be used with vigilance and with sagacity. Perpetual watchfulness on the part of all honest citizens is the unavoidable price to be paid for the maintenance of sound popular government. The referendum further will promote or tend to promote among the electors a kind of intellectual honesty which, as our constitution now works, is being rapidly destroyed. For the referendimi will make it possible to detach the question, whether a particular law, e.g. a law introducing some system of so-called tariff reform, shall be passed, from the totally different question, whether Mr. A or Mr. B shall be elected for five years Prime Minister of England. Under the referendum an elector may begin to find it possible to vote for or against a given law in accordance with his real view as to its merits or demerits, without being harassed through the knowledge that if he votes against a law which his conscience and his judgment condemns, he will also be voting that A, whom he deems the fittest man in England to be Prime Minister, shall cease to hold office, and that B, whom the elector happens to distrust, shall at once become Prime Minister. And no doubt the referendum, if ever established in England, may have the effect, which it already has in Switzerland, of making it possible that a minister or a Cabinet, supported on the whole by the electorate, shall retain oflB.ce honestly and openly, though some proposal made by the Prime Minister and his colleagues and assented to by both Houses of Parliament is, through the referendum, condemned by the electorate. These possible results are imdoubtedly repulsive to men who see nothing to censure in our party system. But, as I have throughout insisted, the great recommendation of the referendum is that it tends to correct, or at lowest greatly to diminish, the worst and the most patent evils of party government. No effort has been made by me to exhaust the argimaents against or in favour of the referendum. My aim in this Intro- INTRODUCTION duction has been to place before my readers the strongest argument against and also the strongest argument in favour of the introduction of the referendum into the constitution of England. It is certain that no man, who is really satisfied with the working of our party system, will ever look with favour on an institution which aims at correcting the vices of party government. It is probable, if not certain, that any one, who realises the extent to which parliamentary government itself is losing credit from its too close connection with the increasing power of the party machine, will hold with myself that the referendum judiciously used may, at any rate in the case of England, by checking the omnipotence of partisanship, revive faith in that parUamentary government which has been the glory of English constitutional history. Conclusions (1) The sovereignty of Parliament is still the fundamental doctrine of English constitutionalists. But the authority of the House of Lords has been gravely diminished, whilst the authority of the House of Commons, or rather of the majority thereof during any one Parhament, has been immensely increased. Now this increased portion of sovereignty can be efEectively exercised only by the Cabinet which holds in its hands the guidance of the party machine. And of the party which the parhamentary majority supports, the Premier has become at once the legal head and, if he is a man of abihty, the real leader.^ This gradual development of the power of the Cabinet and of the Premier is a change in the working of the English constitution. It is due to at least two interconnected causes. The one is the advance towards democracy resulting from the estabHshment, 1867 to 1884, of Household Suffrage ; the other is the increasing rigidity of the party system. The result of a state of things which is not yet fully recognised inside or outside Parhament is that the Cabinet, under a leader who has fully studied and mastered the arts of modern parliament- 1 Lowell, Government of England, chaps, xxiv.-xxvii., and especiaUy i. pp. 441-447 ; Piiblic Opinion and Popular Oovernment, part ii dd. 67-110. ^ ^'^ CONCLUSIONS ci ary warfare, can defy, on matters of the highest importance, the possible or certain will of the nation. This growth of the authority obtained by the men who can control the party machine is the more formidable if we adopt the view pro- pounded by the ablest of the critics of the Government of England, and hold with Lowell that party government has been for generations not the accident or the corruption but, so to speak, the very foundation of our constitutional system.^ The best way to measure the extent of a hardly recognised alteration in the working of parHamentary government in England is to note the way in which a system nominally unchanged worked in the days of Palmerston, i.e. from 1855 to 1865, that is rather less than sixty years ago. He became Premier in 1855. He was in 1857 the most popular of Prime Ministers. After a contest with a coalition of all his opponents, a dissolution of ParHament gave to the old parhamentary hand a large and decisive majority. For once he lost his head. He became for the minute unpopular in the House of Commons. A cry in which there was Httle of real substance was raised against him amongst the electors. In 1858 he resigned office; in 1859 another dissolution restored to office the favourite of the people. He remained Premier with the support of the vast majority of the electors till his death in 1865. These trans- actions were natural enough in the Palmerstonian era ; they could hardly recur in 1914. Palmerston, as also Gladstone, did not hold power in virtue of the machine. The ParUament Act is the last and greatest triumph of party government. ^ (2) The increasing influence of the party system has in England, and still more throughout the British Empire, singularly coincided with the growth of the moral influence exercisable by the Crown. From the accession of Victoria to the present day the moral force at the disposal of the Crown has increased. The plain truth is that the King of England has at the present day two sources of moral authority of which writers on the constitution hardly take enough account in regard to the future. The King, whoever he be, is the only man throughout the British Empire who stands outside, if not 1 See note on preceding page. INTRO b vet ION above, the party system. The King is, in lands outside the United Kingdom, the acknowledged, and indeed the sole, representative and centre of the Empire. ^ (3) The last quarter of the nineteenth and, still more clearly, the first fourteen years of the twentieth century are, as already pointed out, marked by decHning faith in that rule of law which in 1884 was one of the two leading principles of con- stitutional government as understood in England. (4) The various ideas for the improvement of the con- stitution which now occupy the minds of reformers or inno- vators are intended, at any rate, to provide against the unpopularity of legislation, but for the most part are hardly framed with the object of promoting the wisdom of legisla- tion. No doubt some of these schemes may indirectly increase the chance that injudicious legislation may receive a check. Proportional representation may sometimes secure a hearing in the House of Commons for opinions which, though containing a good deal of truth, command httle or compara- tively Uttle popularity. The referendum, it is hoped, may diminish the admitted and increasing evil of our party system. Still, as I have insisted, the main object aimed at by the advocates of poUtical change is for the most part to ensure that legislation shall be in conformity with popular opinion.^ The conclusions I have enumerated are certainly calculated to excite anxiety in the minds of sensible and patriotic EngKsh- men. Every citizen of pubhc spirit is forced to put to himself this question : What will be the outcome of the democratic constitutionahsm now estabUshed and flourishing in England ? He is bound to remember that pessimism is as hkely to mislead a contemporary critic as optimism. He wiU find the nearest approach to the answer which his inquiry requires ia a sermon or prophecy dehvered in 1872 by a constitutionahst who even then perceived possibihties and perils to which forty-two years ago our leading statesmen were for the most part bhnd. Listen to the words of Walter Bagehot : " In the meantime," wrote Walter Bagehot, " our statesmen " have the greatest opportunities they have had for many " years, and Ukewise the greatest duty. They have to guide 1 See p. 1, ante.. » See pp. lix-lxjj, ante. CONCLUSIONS ciii " the new voters in the exercise of the franchise ; to guide " them quietly, and without sajdng what they are doing, but " still to guide them. The leading statesmen in a free country " have great momentary power. They settle the conversation " of mankind. It is they who, by a great speech or two, " determine what shall be said and what shall be written for " long after. They, in conjunction with their counsellors, '■ settle the programme of their party — the ' platform,' as ■' the Americans call it, on which they and those associated " with them are to take their stand for the pohtical campaign. " It is by that programme, by a comparison of the programmes " of different statesmen, that the world forms its judgment. " The common ordinary mind is quite unfit to fix for itself '' what pohtical question it shall attend to ; it is as much as " it can do to judge decently of the questions which drift " down to it, and are brought before it ; it almost never '■ settles its topics ; it can only decide upon the issues of these " topics. And in settling what these questions shall be, " statesmen have now especially a great responsibihty if they " raise questions which will excite the lower orders of man- " kind ; if they raise questions on which those orders are " Hkely to be wrong ; if they raise questions on which the " interest of those orders is not identical with, or is antagon- " istic to, the whole interest of the State, they will have done " the greatest harm they can do. The future of this country " depends on the happy working of a dehcate experiment, " and they will have done aU they could to vitiate that experi- " ment. Just when it is desirable that ignorant men, new to " politics, should have good issues, and only good issues, put " before them, these statesmen will have suggested bad issues. " They will have suggested topics which will biad the poor as " a class together ; topics which will excite them against the " rich ; topics the discussion of which in the only form in " which that discussion reaches their ear will be to make them " think that some new law can make them comfortable— that " it is the present law which makes them uncomfortable— " that Government has at its disposal an inexhaustible fund " out of which it can give to those who now want without also " creating elsewhere other and greater wants. If the first INTROD UCTION ' work of the poor voters is to try to create a ' poor man's ' paradise,' as poor men are apt to fancy that Paradise, and ' as they are apt to think they can create it, the great political ' trial now beginning will simply fail. The wide gift of the ' elective franchise will be a great calamity to the whole ' nation, and to those who gain it as great a calamity as to 'any."i This is the language of a man of genius, who being dead yet speaketh. Whether the warning which his words certainly contain was unnecessary, or whether his imphed prophecy of evil has not already been partially fulfilled or may not at some not distant date obtain more complete fulfilment, are inquiries which must be answered by the candour and the thoughtfulness of my readers. The complete reply must be left to the well-informed and more or less impartial historian, who in 1950 or in 2000 shall sum up the final outcome of democratic government in England. StiU it may be allowable to an author writing in 1914, though more than half blinded, as must be every critic of the age in which he Hves, by the ignorance and the partiahties of his own day, to remember that the present has its teaching no less than the past or the future. National danger is the test of national greatness. War has its lessons which may be more impressive than the lessons, valuable as they always are, of peace. The whole of a king- dom, or rather of an Empire, united for once in spirit, has entered with enthusiasm upon an arduous conflict with a nation possessed of the largest and the most highly trained army which the modern world can produce. This is in itself a matter of grave significance. England and the whole British Empire with her have taken up the sword and thereby have risked the loss of wealth, of prosperity, and even of political existence. And England, with the fervent consent of the people of every land subject to the rule of our King, has thus exchanged the prosperity of peace for the dangers and labours of war, not for the sake of acquiring new territory or of gaining additional mihtary glory, for of these things she has enough and more than enough already, but for the sake of enforcing the plainest rules of international justice and * Bagehot, English Constitution (2nd ed.) pp. xvii-xix. CONCLUSIONS the plainest dictates of common humanity. This is a matter of good omen for the happy development of popular govern- ment and for the progress, slow though it be, of mankind along the path of true fortitude and of real righteousness. These facts may rekindle among the youth of England as of France the sense that to be yoimg is very heaven ; these facts may console old men whom poKtical disillusion and disappoint- ment which they deem undeserved may have tempted towards despair, and enable them to rejoice with calmness and gravity that they have lived long enough to see the day when the solemn call to the performance of a grave national duty has united every man and every class of our common country in the determination to defy the strength, the delusions, and the arrogance of a miUtarised nation, and at all costs to secure for the civilised world the triumph of freedom, of humanityj and of justice. OUTLINE OF SUBJECT OUTLINE OP SUBJECT THE TRUE NATURE OF CONSTITUTIONAL LAW " Great critics," writes Burke in 1791, " have taught us optimistic " one essential rule. . . . It is this, that if ever we should "^l^i^l " find ourselves disposed not to admire those writers l°^f'^' " or artists, Livy and Virgil for instance, Eaphael 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." * "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 "pheenomenon 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. 3E B OUTLINE OF SUBJECT " 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 char- "acteristic 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 irre- " trievable decay, but a more expansive energy." ^ 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";^ 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 eighteenth century thaii 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 LAW Z civilised Englishmen, to buildup 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 ; no definite 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 the constitution in a spirit different from the senti- conTtitu- ment either of 1T91 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 modem 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 HaUam, 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 an eulogist, but simply of OUTLINE OF SUBJECT 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-" form of Iccturcs, Commentaries upon the Constitution Engiuh ^f ^^® United States, they knew precisely what was 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 lack absolute lucidity of expression •, 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 constitu- tion. 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 Arherican 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 could 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 OUTLINE OF SUBJECT add, vastly superior to, any commentaries on the con- ;Stitutipnal 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 m&y 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 possess any ,test by which to discriminate laws which are constitu- tional or fundamental from ordinary enactments ; he will discover that the very term " constitutional law," which is not (unless my memory deceives me) ever eraployed by Blackstone, is of comparatively modern origin ;. and in short, that before commenting on the law of the constitution he must make up his mind what is the nature and the extent of English constitu- tional law.^ Commen- His natural, his inevitable resource is to recur to help fToV -Writers of authority on the law, the history, or the wf"" practice of the constitution. He will find (it must ioSitu- ^^ admitted) no lack of distinguished guides ; he may tionai his- avail 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 1 See this point brought out with great clearness by Monsieur Boutmy,^te&s de Droit Comtitutionnel (2nd ed.), p. 8, English trans- lation, p. 8. Monsieur Boutmy well points out that the sources of English constitutional law may be considered fourfold, nainely^(J) Treaties or Qiiasi-Treaties, i.e. the Acts of Union ; (2) The Common Law; (3) Solemn Agreements (pacts), e.g. the Bill of Eights; (4) Statutes. This mode of division is not exactly that which would be naturally adopted by an English writer, but it calls attention to dis- tinctions often overlooked between the different sources of English constitutional law. THE TRUE NATURE OF CONSTITUTIONAL LAW 7 I am about to lay before you for consideration, he is 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 obtiain 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 perplexed by unreality, by antiquarianism, and by conventionalism. Let us turn first to the lawyers, and as in duty i. Law- bound to Blackstone. of con™^ Of constitutional law as such there is not a word its'un""' to be found in his Commentaries. The matters which g,^^^; appear to belong to it are dealt with by him in the stone. main under the head Rights 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 OUTLINE OF SUBJECT " 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 neduce 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 Koman 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." ^ 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 King 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. p. 260. THE TRUE NATURE OF CONSTITUTIONAL LAW 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 ^ 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 conservator " of the peace of the kingdom. ... He therefore " has alone the right of erecting courts of judicature : " for, though the constitution of the kingdom hath en- " trusted him with the whole executive power of the ^ 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 1 " Yet, when we turn our attention from the legal existence to the actual " exercise of royal authority in England, we see these formidable pre- " rogatives dwindled into mere ceremonies ; and in their stead, a sure " and commanding influence, of which the constitution, it Eeem.s,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 e:tisting prerogative of the Crown. The power of the Crown was still large, and rested in fact upon the possession of enormous patronage. OUTLINE OF SUBJECT " 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."' Here we are in the midst of unrealities or fictions. Neither the King 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 King and of the Government. No one, indeed, but a child, fancies that the King sits crowned on his throne at Westminster, and in his own person administers justice to his subjects. But the idea entertained by many educated men that an English King or Queen reigns without taking any 1 Blackstone, Commentaries, i. p. 267. THE TRUE NATURE OF CONSTITUTIONAL LAW ii part in the government of the country, is not less far from the truth than the notion that Edward VII. ever exercises judicial powers in what are called his 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 phraiseology under which they are concealed. Thus to say that the King appoints the Ministry is untrue ; it is also, of course, untrue to say that he creates courts of justice ; but these two untrue statements each bear a very diff"erent 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 Govex'nment 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 ii. msto- truthfulness of our constitutional historians. of^°onstiiu- Here a student or professor troubled about the '^tl' "! nature of constitutional law finds himself surrounded »">«"'•• OUTLINE OF SUBJECT 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 students 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 he found from the beginning ; the three classes of men, the nohle, the common freeman, and the slave ; uni- versal prevalence of slavery ; the Teutonic institutions common to the whole 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 between 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 Witenagemdt ; 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 constitution 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 14 OUTLINE OF SUBJECT Witenagemdt, 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, 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 constitu- tional 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 Witenagemot. But let us remember that antiquarianism is not law, and that the function of a trained lawyer is not to know what the law of England was yesterday, still less what it was centuries ago, or what it ought to be to-morrow, but to know and be able to state what are the principles of law which actually and at the present day exist in England. For this purpose it boots nothing to know the nature of the Landesgemeinden of Uri, or to understand, if it be understandable, the constitution 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 LAIV 1$ historians and legal constitutionalists. They are each Contrast concerned with the constitution, but from a different legai and , A 1 • j_ ■ • • '1 • 1 "ii liistoriual aspect. An historian is primarily occupied with view of con- ascertaining the steps by which a constitution has ^*''"''°°- 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 1908. 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 Witenagemdt ; 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 situa- tion of the colonies before the separation from England and the rules of common law, as well as the general 1 6 OUTLINE OF SUBJECT conceptions 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 dif- ference 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 anything as modern as the days of the Stuarts. The period of now more than two centuries which has elapsed since what used to be called the " Glorious Revolution," filled as those two centuries are with change and with growth, seems hardly to have attracted the attention of a writer whom lack, not of knowledge, but of will has alone prevented 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 obtained from Dr. Stubbs had he not surrendered to the Episcopate gifts which we hoped were dedicated to the University 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 seven- teenth 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 THE TRUE NATURE OF CONSTITUTIONAL LAW 17 legal will of the King of England, are all matters 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 pro- gress ; 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," ^ 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 ^ See Freeman, Growth of the English Constitution (1st ed.), p. 125. 1 8 OUTLINE OF SUBJECT the merits of early society. The fictions of the Courts 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 fictions or subtleties afi"ord 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 unhistorical, 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.^ But no achievement of sound argument, 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 corrupted by the technicalities of lawyers is at bottom a delusion of the legal imagination. The idea of retrogressive progress is merely one form of the appeal to precedent. 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 precedent 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 1 See 12 Ref. 64 ; Hearn, Government of England (2nd ed.), chap, iii THE TRUE NATURE OF CONSTITUTIONAL LAW 19 the Courts into the field of politics or of history. Here, then, the astuteness 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 Jhauf °' done so much to elucidate the intricate workings of "'^fi^ ^°^^'y o with con- English srovernment as Bagehot. His Enqlish Con- ventions of ... PTPi-1 constitu- stitution IS so full of brightness, originality, and wit, tion. that few students notice how full it is also of know- ledge, 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 tie 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 ex- ponents 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 OUTLINE OF SUBJECT the United Kingdom, but in the University of Melbourne. From 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 constitu- tional monarch ; what are the circumstances under which a Minister is entitled to dissolve Parliament • whether the simultaneous 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 under- standings of the constitution, we may term con- ventionalists. These inquiries 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 King's Bench Division would certainly not issue a quo warranto 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 Parliament ; their speculative solution belongs to the province of political theorists. THE TRUE NATURE OF CONSTITUTIONAL LAW 21 not ex- ain how One suggestion a mere legist may be allowed to And con- make, namely, that the authors who insist upon and viewToei explain the conventional character of the understand- "j" ings which make up a great part of the constitution, J?''^™ leave unexplained the one matter which needs ex- enforced. planation. They give no satisfactory answer to the inquiry how it happens that the understandings of politics are sometimes at least obeyed as rigorously as the commands of law/ 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 ex- plain 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 oon- which must more than once have haunted students uw reaiiy of the constitution. Is it possible that so-called ^^^ ** " 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 ? Can it be that a dark saying of Tocqueville's, "the English constitution has no real existence " {elle n'existe point ^), contains the truth of 1 See further on this point, Part III. post 2 Tocqueville, CEuvres Complies, i. 166, 167. OUTLINE OF SUBJECT 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. The other half should, as belonging to conventions which illustrate the growth of law, be transferred either to my friend the Corpus 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 Chichele 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 constitutional 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, different appears to include all rules which directly or indirectly rules. ° afi"ect the distribution or the exercise of the sovereign power in the state. ^ Hence it includes (among other things) all rules which define the members of the 1 Compare Holland, Jurisprudence (lOth ed.), pp. 138, 139, and 359- 363. " 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 whicfi it treats."— Paley, Moral Philosophy, Book vi. chap. vii. THE TRUE NATURE OF CONSTITUTIONAL LAW 23 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) Rules 1 ■ 1 /■ 1 1 • which are Since they are rules which (whether written or un- true laws written, whether enacted by statute or derived from the the°con°- mass of custom, tradition, or judge-made maxims known ^t''"*'™- 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." The other set of rules consist of conventions, under- (u.) Rules standings, habits, or practices which, though they may not laws— regulate the conduct of the several members of the tionrof the sovereign power, of the Ministry, or of other officials, tk)nf''"' 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. 24 OUTLINE OF SUBJECT 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, of Ministers, and of other persons under the constitution, are not in strictness laws at all. The contrast between the law of the constitution and the conventions of the consti- tution may be most easily seen from examples. Examples To the law of the constitution belong the followins: of rules be- . o o longing to rules : stitutio°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 King were himself 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- 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 Rights ; it is a law of the Constitution and a written law. "Some person is legally responsible for every act THE TRUE NATURE OF CONSTITUTIONAL LAW 25 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 ; ^ 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 : — " The King must assent to, or (as it is inaccurately Examples }■ ^ , , of rules expressed) cannot 'veto any bill passed by the two wUchbe- Houses of Parliament ; " — " the House of Lords does ventions°of not originate any money bill ; "— " when the House of t^yo^""'" Lords acts as a Court of Appeal, no peer who is not a law lord takes part in the decisions of the House ; " — 1 Compare Hearn, Government of England (2nd ed.), chap. iv. 2 As to the meaning of "veto," see Hearn, Government of England (2nd ed.), pp. 51, 60, 61, 63, 548, and the article on the word Veto in the last edition of the Encyclopcedia Britannica, hy Professor Orelli. 26 OUTLINE OF SUBJECT "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 ; ^ under a new or written constitu- 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. 1 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 liumber 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 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. fost. THE TRUE NATURE OF CONSTITUTIONAL LAW 27 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 impqrtant 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 . . 1))/ between noted, from the distinction between " written law (or laws and statute law) and "unwritten law" (or common law). "v^lT^ot. There are laws of the constitution, as, for example, the difference*' Bill of Eights, the Act of Settlement, the Habeas ^;^t.^«™ Corpus Acts, which are " written law," found in the a»d un- •■• ' written statute-books — in other words, are statutory enact- law. ments. There are other most important laws of the constitution (several of , which have already been men- tioned) which are " unwritten " laws, that is, not statu- tory enactments. -Some further of the laws of the constitution, such, for example, as the law regulating the descent of the Crown, which were at one time 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 28 OUTLINE OF SUBJECT 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 statu- tory constitution.^ 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 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 Presiden- tial electors. They were by the founders of the con- 1 The conventional element in the constitution of the United States is far larger than most Englishmen suppose. See on this subject Wilson, Gongressional Government, and Bryce (3rd ed.), American Commonwealth, chaps, xxxiv. and xxxv. It may be asserted without much exaggeration that the conventional element in the constitu- tion of the United States is now as large as in the English con- stitution. Under the American system, however, the line between " conventional rules " and " laws " is drawn with a precision hardly possible in England. Under the constitution of the existing French Republic, constitu- tional conventions or understandings exert a considerable amount of influence. They considerably limit, for instance, the actual exercise of the large powers conferred by the letter of the constitution on the President. See Chardon, L' Administration de la France — Les Fonctionnaires,"^]}. 79-105. THE TRUE NATURE OF CONSTITUTIONAL LAW 39 stitution intended to be what their name denotes, the persons who chose or selected the President ; the chief officer, in short, of the Eepublic 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 for 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 constitu- tion, we find in full existence the distinction between the law and the conventions of the con- stitution. Upon this difierence I have insisted at possibly constitu- needless length, because it lies at the very root of the as° subject matter under discussion. Once grasp the ambiguity °4df ^ latent in the expression "constitutional law," and ^'^J^°^j^^ evervthinff connected with the subject falls so com- of oon- J o •> n 1 stitutio; pletely into its right place that a lawyer, called upon to teach or to study constitutional law as a branch of stitution 30 OUTLINE OF SUBJECT the law of 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 genera- tion, almost from year to year. Whether a Ministry 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 pre- cedents 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 not one 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 connection (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 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- THE TRUE NATURE OF CONSTITUTIONAL LAW 31 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 tion can be constitution, to arrange them in their order, to explain iik^^any*"^ their meaning, and to exhibit where possible their ^'^^^,^0^ logical connection. He ought to expound the un- English 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 are called upon to deal partly with statute law, partly with judge-made law ; you are forced to rely on Parliamentary enactments and also on judicial decisions, on authoritative dicta, and in many cases on mere inferences drawn from judicial doctrines ; it is often difficult to discriminate between prevalent custom and acknowledged right. 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. Moreover, teachers of constitutional law enjoy at this moment one invaluable advantage. Their topic 32 OUTLINE OF SUBJECT has, of recent years/ become of immediate interest and of pressing importance. These years have brought into the foreground new constitutional questions, and have afforded 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 eighteenth century by the series of actions connected with the name of John Wilkes. The law of maintenance has been rediscovered ; the law of blasphemy has received new elucidation. Everybody now knows 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 those persons who choose to read the Law Reports. Meanwhile circumstances with which Mr. Bradlaugh had no connection have forced upon public attention all the various problems con- nected 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 1 This treatise was originally published in 1885. Since that date legal decisions and public discussion have thrown light upon several matters of constitutional law, such, for example, as the limits to the right of public meeting and the nature of martial law. 2 Written 1885. See for Bradlaugh's political career, Did. Nat. Biog., Supplement, vol. i. p. 248. THE TRUE NATURE OF CONSTITUTIONAL LAW 33 whicli kave 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 true reply to them is a matter of importance to every citizen. 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 which have gained notoriety and excite keen feelings of political partisanship may foster a serious miscon- ception. Unintelligent students may infer that the law of the constitution is to be gathered only from famous judgments which embalm the results of grand constitutional or political conflicts. This is not so. Scores of unnoticed cases, such as the Parlement Belge^ or Thomas v. The Queen,^ touch "upon or decide principles of constitutional law. Indeed every action against a constable or collector of revenue en- forces the greatest of all such principles, 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 constitution is in short to be gathered from the sources whence we collect the law of England in respect to any other topic, and forms as interesting and as distinct, 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 suflFer from the inconvenience as they enjoy the interest of exploring 1 4 P. D. 129; 5 P. D. 197. Compare Walker v. Baird [1892], A. C. 491, 497. 2 L. B., 10 Q. B. 31. 34 .. OUTLINE OF SUBJECT a province of law which has not yet been entirely reduced to order. ^ This inconYenience 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- ciples gradually become apparent. They are, first, the legislative sovereignty of Parliament ; ^ secondly, the universal rule or supremacy throughout the con- stitution of ordinary law ; ^ and thirdly (though here we tread on more doubtful and speculative ground), the dependence in the last resort of the conventions upon the law of the constitution.* 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 Since these words were written, Sir William Anson's admirable haw and Custom of the Constitution has gone far to provide a complete scheme of English constitutional law. 2 See Part I. post. 2 ggg p^pj; jj_ ^gjj_ * See Part III. post. PART I THE SOVEEBIGNTY OF PARLIAMENT 35 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 ^ institutions. My aim in this chapter is, in the first place, to Aim of explain the nature of Parliamentary sovereignty and "^ ^^ ^''' 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 con- stitution, an absolutely sovereign legislature. A. Nature of Parliamentary Sovereignty. — Par- Nature of liament means, in the mouth of a lawyer (though the mtntary word has often a different sense in ordinary conversa- re'imty. 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.^ The principle of Parliamentary sovereignty means 1 Conf. Blackatone, Convmentaries. i. p. 153. 37 38 THE SOVEREIGNTY OF PARLIAMENT Part I. neither more nor less than this, namely, that Parlia- ment thus defined has, under the English constitu- tion, 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;'^ the matter is men^ tioned here only in order to remove an obvious difficulty which might present itself to some students! 1 The reader wlio wishes for fuller information on the nature of judge-made law will find what he wants in Dicey's Law and Public Opinion in England, App. Note iv. p. 481, and in Sir Frederick Pollock's Essays in Jurisprudence and Ethics, p. 237. NATURE OF PARLIAMENTARY SOVEREIGNTY 39 It will be necessary in the course of these lectures to chapter 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 tlie law of England. I. TJnliniited legislative authority of Pcwliament. unlimited — The classical passage on this subject is the following authority extract from Blackstone's Commentaries : — ulment " The power and jurisdiction of Parliament, says " Sir Edward Coke,^ 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 antiquitatem spectes, " est vetustissima ; si dignitatem,, est honoratissimd ; si " 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, aire " within the reach of this extraordinary tribunal. It "can regulate or new-model the succession to the " Crown ; as was done in the reign of Henry VIII. and " William III. It can alter the established religion 1 Fourth Institute, j). 36. 40 THE SOVEREIGNTY OF PARLIAMENT P^'^ti " 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 evejrything that is not naturally " impossible ; and therefore some have not scrupled " to call its 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 Rome, Sparta, and Carthage have " lost their liberty and perished, so the constitution of " England will in time lose its liberty, will perish : " it will perish whenever the legislative power shall " become more corrupt than the executive." ^ 1 Blackstone, Gomrmntaries, i. pp. 160, 161. Compare as to sovereignty of Parliament, De Republica Aitglorum ; A Discourse on the Commonwealth of England, by Sir Thomas Smith, edited by L. Alston, Book ii. chap. i. p. 148. The book was originally published in 1583. NA TURE OF PARLIAMENTAR V SO VEREIGNTY 41 De Lolme Jias summed up the matter in a gro- Chapter tesque expression which has become almost proverbial. ^' " It is a fundamental principle with English lawyers, " 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, of Parii?- The descent of the Crown was varied and finally fixed ™ve-"^ underthe Act of Settlement, 12 & 13 William III., c. 2 '; "-^'S"*?- the King occupies the throne under a Parliamentary seMie- title ; his 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 dis- pute ; but a glance at the statute-book shows that not much more than 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 afiirm 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 " 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 42 THE SOVEREIGNTY OF PARLIAMENT Parti. Acts of Union. ■ Septennial Act. " settling the succession of the Crown ; and one other " Act made in England in the twelfth year of the reign "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 suiFer pains of death, and " all losses and forfeitures as in cases of high treason." ^ 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 Aet.^ The circum- stances of its enactment and the nature of the Act itself merit therefore special attention. In 1716 the duration of Parliament was under an Act of 1694 limited to three years, and a general election could not be deferred beyond 17 17. 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 ^ 6 Anne, c. 41 (otherwise 6 Anne, c. V), sec. 1. This enactment is still in force. 2 ^ George I. st. 2, c. 38. ' NATURE OF PARLIAMENTARY SOVEREIGNTY 43 Parliament then sitting, therefore, was induced by the Chapter Ministry to pass the Septennial Act by which the ^- legal duration of Parliament was extended from three to seven years, and the powers of the then existing 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 "advanced, 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." ^ " We may," says Lord Stanhope, "... cast aside " the foolish idea that the Parliament overstepped its " legitimate authority in prolonging its existence ; an 1 Hallam, Constitutioml History of England, iii. (1872 ed.), p. 236. 44 THE SOVEREIGNTY OF PARLIAMENT Part I. " 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 "treated with utter contempt by the best constitu- " tional writers." ^ constitu- These remarks miss the real point of the attack on portance of the Septennial Act, and also conceal the constitutional Heptenniai i^poj-tance 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 " corruption, do wilfully betray the trust reposed in " them ; which remedy is, to choose better men in their " places," ^ 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 ; ^ 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,* and in effect 1 Lord Mahon, History of England, i. p. 302. 2 Thorold Rogers, Protests of the Lords, i. p. 218. » 6 Wm. & M. c. 2. * See Priestley on Government (1771), p. 20. NA TURE OF PAR7JAMENTAR V SO VEREIGNTY 45 by the protesting Peers, " that Septennial Parliaments Chapter " were at first a direct usurpation of the rights of the 1^ " people ; for by the same authority that one Parlia- " ment prolonged their own power to seven years, they " 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 "ignorant assuniption" that the Septennial Act prolonged the original duration of Parliament.^ 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 oflfice 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, 1 Hallam, Constitutional Histor.y, iii. (1872 ed.), p. 236 (n.). 46 THE SOVEREIGNTY OF PARLIAMENT Part I. and the Septennial Act is at once the result and the . standing proof of such Parliamentary sovereignty. Inter- Hitherto we have looked at Parliament as legally Pariiatnent Omnipotent in regard to public rights. Let us now private consider the position of Parliament in regard to those rights. private rights which are in civilised states justly held specially secure or sacred. Coke (it should be noted) 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 " subject born. It may bastard a child that by law "is legitimate, viz. begotten by an adulterer, the "husband being within the four seas. " To legitimate one that is illegitimate, and born "before marriage absolutely. And to legitimate "secundum quid, but not simpKciter." ^ 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 1 Coke, Fourth Institute, p, 36. NA TURE OF PARLIAMENTAR V SO VEREIGNTY 47 the benefit of the community) become so much a Chapter matter of course as hardly to excite remark, and few - persons reflect what a sign this interference is of the supremacy of Parliament. The statute-book teems 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 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 penal- ties, for having accepted municipal offices without duly qualifying themselves by taking the sacrament according to the rites of the Church of England. To 48 THE SOVEREIGNTY OF PARLIAMENT PartL tli6 subject of Acts of Indemnity, however, we shall return in a later chapter/ The point to be now noted is that such enactments being as it were the legalisation 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 abseuce of any competing legislative legisMvf power. — The King, each House of Parliament, the authority. 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,^ 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,^ and (at a later period) of Proclamations. statute of These had much the force of law, and in the year Prociama- jggg ^j^^ ^^j. g^ g^^j.^ yjjj_^ ^_ g^ formally empowcred 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 1 See Chap. V. post. ^ See Stubbs, OonstituUonal History, i. pp. 126-128, and ii. pp. 245-247. ^ Stubbs, ibid. ii. chap. xv. NATURE OF PARLIAMENTARY SOVEREIGNTY 49 " such penalties and pains as to him and them shall Chapter "seem necessary, which shall be observed as though ' " they were made by Act of Parliament ; but this shall " not be prejudicial to any person's inheritance, ofl&ces, " 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." ^ 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. I 31 Henry VIII., c. 8. 50 THE SOVEREIGNTY OF PARLIAMENT Part I. The cumbersomeness and prolixity of Englisli statute law is due in no small measure to futile endeavours of 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 -^ 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.^ 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 VIIL, c. 8, rendered 1 A critic has 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 execu- tion of the laws enacted therein. Foreign laws are, what every law ought to be, statements of general principles. 2 See Duguit, Manuel de Droit Publio Frangais — Droit Constitu- tionnd, ss. 140, 141. NA TURE OF PARLIAMENTA RY SO VE REIGN TY 51 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^ 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 ^ where, in modern times, pro- 1 See Coke, 12 Rep. 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, Gommentaries (8th ed.), i. pp. 100-102. " The Channel Islands indeed claim to have conquered England, and are the sole fragments of the dukedom of Normandy which still continue attached to the British Crown. For this reason, in these islands alone of all British possessions does any doubt arise as to whether an Act of the imperial Parliament is of its own force binding law. In practice, when an Act is intended to apply to them, a section is inserted authorising the King in Council to issue an Order for the application of the Act to these islands, and requiring the registration of that Order in the islands, and the Order in Council is made by the King and registered by the States accordingly," Sir II> Jenkyns, British Jiule and Jwi-isditition leyond the 52 THE SOVEREIGNTY OF PARLIAMENT Part I. 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 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. — ment^ The Housc of Commous, 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 efiect which the Courts concede to a resolution of either House. Two points are, however, well established. Resoiu- First, The resolution of neither House is a law. ei^her"^ This is the Substantial result of the case of Stock- House. (^uf^ig y Hansard} 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 Seas, p. 37. But whatever doubt may arise in the Channel Islands, every English lawyer knows that any English court will hold that an Act of Parliament clearly intended to apply to the Channel Islands is in force there proprio vigore, whether registered by the States or not. As to the legislative power of the Crown in Colonies which are not self-governing, see further British Ride and Jurisdiction beyond the Seas, p. 95. 1 9 A. & E. 1. NATURE OF PARLIAMENTARY SOVEREIGNTY 53 control over its own proceedings, and also has the Chapter right to protect itself by committing for contempt any '__ person who commits any injury against, or oflFers 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. The practical difficulty lies in the reconciliation of the first with the second of these propositions, and is best met by following out the analogy suggested by Mr. Justice Stephen, between a resolution of the House of Commons, and the decision of a Court from which there is no appeal. " I do not say," runs his judgment, " that the ' resolution 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 dis- ' charges 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 1 See StocMale\. Hansard, 9 A. & E.l ; Case of Sheriff of Middlesex, 11 A. & E. 273 ; Burdett v. Abbot, 14 East, 1, 111, 131 ; Bradlaugh V. Gossett, 12 Q. B. D. 272. 54 THE SOVEREIGNTY OF PARLIAMENT Part I. "is no wrong without a remedy, does not mean, as it " is sometimes supposed, that there is a legal remedy " for every moral or political 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 legisla- " tion, though it may reduce men practically to "slavery; nor for the worst damage to person and " property inflicted by the most unjust and 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 resoMons Parliament has the fullest power over its own pro- 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 ^ 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 Stockdale v. 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 Sherifi" was brought by Habeas Corpus before the Queen's Bench the Judges held that they could 1 Bradlaugh v. Gossett, 12 Q. B. D. 271, 285. ^ ^ j^ ,jj ^ 273. of either House. NA TURE OF PARLIAMENTAR Y SO VEREIGNTY 5 J not inquire what were the contempts for which the Chapter SheriflF 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 under a warrant committing A for contempt; or 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 ^ as a common informer. No resolution of the House of Commons ordering or approving of Xs act could be pleaded by X as a legal defence to proceedings, either civil or criminal, against him.^ If proof of this were wanted it would be afforded by the Act 3 & 4 Vict, c. 9, The object of this Act, passed in consequence of the controversy connected with the case of Stochdale 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 1 Conf. Attorney-General v. Bradlaugh, 14 Q. B. D. (C. A.), 667. 56 THE SOVEREIGNTY OF PARLIAMENT Part I. "in the action [of Stockdalc v. Hansard], and by "not appealing against the judgment of the Court " of Queen's Bench, had, in ejffect, 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 Arnould, Memoir of Lord Denman, ii. p. VO. Nothing is harder 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 (Itfay, Parliamentary Practice (11th ed.), pp. 91, 92). 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 confine- ment on a prorogation. If they were held longer in custody they would be discharged 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 contempt. (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, 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. (9th ed.), 268 ; Wilkes's Case, 19 St. Tr. 1153 ; Burdett v. Colman, 14 East, 163 ; Eex v. Creevy, 1 M. & S. 273 ; Clarke v. Bradlauyh, 7 Q. B. D. NA TURE OF PARLIAMENTAR V SO VEREIGNTY 57 (iii.) The Vote of the Parliamentary Electors. — chapter Expressions are constantly used in tlie course of 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;^ it points to the important consideration that the wishes of the con- stituencies influence the action of Parliament. But any expressions -which attribute to Parliamentary 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 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 ^ 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 38, 8. App. Caa. 354'; The Attorn^ -General v. Bradlaugh, 14 Q. B. D. 667. 1 See pp. 70-74, post. 2 Constitution F^derale de la Gonfideration Suisse, Arts. 118-121; see Adams, The Swiss Gonfederation, chap. vi. 58 THE SOVEREIGNTY OF PARLIAMENT Part I. popular vote, and is annulled if a vote is not obtained in its favour.-' The Courts. (iv.) The Laiv Courts. — A large proportion of 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 Pollock's admirable essay on the Science of Case Law.^ The topic is too wide a one to be considered at any length in these lectures. All that we 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 limitations. gQ^g^gig^iy qJ 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.' With these 1 Gonstitution Federate de la OonfMeration Suisse, Art. 89. 2 Pollock, Essays in Jurisprudence and Ethics, p. 237, and see Dicey, Law and Opinion in England (2nd ed.), pp. 361, 483. ^ See Austin, Jurisprudence, i. (4th ed.), pp. 270-274, and Holland, Jurisprudence (10th ed.), pp. 47-52 and 359-363. The nature of NA TURE OF PARUAMENTAR Y SO VEREIGNTY 59 difficulties we have, at this moment, no concern. Nor Chapter is it necessary to examine whether it be or be not — 1_ 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 or sovereign power as, according to Austin and other jurists, must exist in every civilised state, and for 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.^ 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 sovereignty is also stated with brevity and clearness in Lewis, Use and Ahuse of Political Terms, pp. 37-53. Compare, for a different view, Bryce, Studies in History and Jurisprudence, ii., Essay ix., Obedience ; and Essay x., The Nature of Sovereignty. 1 Another limitation has been suggested more or less distinctly by judges such as Coke (12 Rep. 76 ; and Hearn, Government of England (2nd 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 Validity Act, 1865, 28 & 29 Vict. c. 63. 6o THE SOVEREIGNTY OF PARLIAMENT Part I. the " law of nature being coeval 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 ; " ^ 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 authority.^ But to words such as those of Black- stone, and to the obiter dicta of the Bench, w^e 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 afl&xed to an Act of Parliament, will presume that Parliament did not intend to violate' 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 1 Blackstone, Gommentaries, i. p. 40 ; and see Heam, Government of England (2n(l ed.), pp. 48, 49. 2 See Ex parte Slain, 12 Ch. D. (C. A.), 522, 531, judgment of Cotton, L. J. 3 See Golquhoun v. Brooks, 21 Q. B. D. (C. A.), 52 ; and compare the language of Lord Esher, pp. 57, 58, with the iudcrment of Fry L. J., ibid. pp. 61, 62. NA TURK OF PARLIAMENTAR Y SO VEREIGNTY 6 1 it was immoral, or because it went beyond the limits Chapter 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. Secondly, Doctrines have at times ^ been main- pre- tained which went very near to denying the right of ™^* '™* Parliament to touch the Prerogative. In the time of the Stuarts ^ the doctrine was main- tained, not only by the King, but by lawyers and statesmen who, like Bacon, favoured the increase of royal authority, that the Crown possessed under the 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 1 See Stubbs, Gonstitutional History, ii. pp. 239, 486, 513-515. 2 Gardiner, History, iii. pp. 1-5 ; compare, as to Bacon's view of the prei'ogative, Francis Bacon, by Edwin A. Abbott, pp. 140, 260, 279. 62 THE SOVEREIGNTY OF PARLIAMENT of Union. Parti, the same thing, that the judges might legally treat ' as invalid a statute, say, regulating the mode in which treaties are to be made, or making the assent of the Houses of Parliament necessary to the validity of a treaty.^ Preceding Thirdly, Language has occasionally been used in Pariia"-^ Acts of Parliament which implies that one 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.^ The Acts That Parliaments have more than once intended and endeavoured to pass Acts which should tie the hands of their successors is certain, but the endeavour 1 Compare tbe parliamentary practice in accordance with which the consent or recommendation of the Crown is reqiaired to the introduction of bills touching the prerogative or the interests of the Crown. 2 This doctrine was known to be erroneous by Bacon. "The " principal law that was made this Parliament was a law of a strange " nature, rather just than legal, and more magnanimous than jsrovident. " This law did ordain, That no person that did assist in arms or " otherwise the King for the time being, should after be impeached " therefor, or attainted either by the course of law or by Act of " Parliament ; for if any such act of attainder did hap to be made, it " should be void and of none effect. . . . But the force and obligation " of this law was in itself illusory, as to the latter part of it ; (by a "precedent Act of Parliament to bind or frustrate a future). For a " supreme and absolute power cannot conclude itself, neither can that " which is in nature revocable be made fixed ; no more than if a man " should appoint or declare by his will that if he made any later will "it should be void. And for the case of the Act of Parliament, there "is a notable precedent of it in King Henry the Eighth's time, who " doubting he might die in the minority of his son, provided an Act to " pass. That no statute made during the minority of a king should " bind him or his successors, except it were confirmed by the king " under his great seal at his full age. But the first Act that passed in " King Edward the Sixth's time was an Act of repeal of that former " Act ; at which time nevertheless the King was minor. But things " that do not bind may satisfy for the time." Works of Francis Bacon, vi., by Spedding, Ellis, and Heath (1861), pp. 159, 160, NATURE OF PARLIAMENTARY SOVEREIGNTY 63 has always ended in failure. Of statutes intended to Chapter arrest the possible course of future legislation, the ^' most noteworthy are the Acts which embody the treaties of Union with Scotland -^ and Ireland.^ 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 of union in all time coming.^ But this very provision has been in its main part repealed by the Universities (Scotland) Act, 1853,* which relieves most professors in the Scotch universities from the necessity of sub- scribing 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,* restoring the exercise of lay patronage, 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 history of the Act of Union with Ireland. The fifth 1 The Union with Scotland Act, 1706, 6 Anne, c. 11. 2 The Union with Ireland Act, 1800, ,39 & 40 Geo. III., c. 67. 3 See 6 Anne, c. 11, art. 25. * 16 & 17 Vict. c. 89, s. 1. 8 Compare Innes, Law of Creeds in Scotland, pp. 118-121. 64 THE SOVEREIGNTY OF PARLIAMENT Part I. Article of that Act runs as 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. Act limit- One A.ct, indeed, of the British Parliament might, M?ament loo^ed at in the light of history, claim a peculiar to tax sanctity. It is certainly an enactment of which the colonies. '' •' terms, we may safely predict, will never be repealed and the spirit will never be violated. This Act is the Taxation of Colonies Act, 1778.^ It provides that Par- liament "will not impose any dnty, tax, or assessment " 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 may 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 " plantation, in which the same shall be respectively 1 18 Geo. Ill, c 12. NA TURE OF PARLIAMENTAR Y SO VEREIGNTY 65 " levied, in such manner as other duties collected by Chapter " the authority of the respective general courts, or L_ " general assemblies, of such colonies, provinces, or " plantations, are ordinarily paid and applied."^ This language becomes the more impressive when contrasted with the American Colonies Act, 1776,^ which, being passed in that year 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 the Taxation of Colonies Act, 1778, or the enactment of any law inconsistent with its spirit, there is under our con- stitution no legal difficulty in the way of repeal- ing or overriding this Act. If Parliament were to- morrow to impose a tax, say on New Zealand 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." * 1 18 Geo. III., c. 12, s. 1. "^ & Geo. Ill, c. 12. 8 Todd, Parliamentary Government in the British Colonies, p. 192. It is a matter of curious, though not uninstructive, speculation to con- sider why it is that Parliament, though on several occasions passing Acts which were intended to be immutable, has never in reality succeeded in restricting its own legislative authority. This question may be considered either logically or historically. The logical reason why Parliament has failed in its endeavours to F 66 THE SOVEREIGNTY OF PARLIAMENT Parti. Parliamentary sovereignty is therefore an un- doubted legal fact. It is complete both on its positive and on its enact unchangeable enactments is that a sovereign power cannot, while 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. "Limited Sovereignty," in short, is in the case of a 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. This, it may be added, is the true position of the king in most constitutional monarchies. Let the reader, however, note that the impossibility of placing a limit on the exercise of sovereignty does not in any way prohibit either logically, or in matter of fact, the abdication of sovereignty. This is worth observation, because a strange dogma is sometimes put forward that a sovereign power, such as the Parliament of the United Kingdom, can never by its own act divest itself of sovereignty. This position is, however, clearly untenable. An autocrat, such as the Russian Czar, can undoubtedly abdicate ; but sovereignty or the possession of supreme power in a state, whether it be in the hands of a Czar or of a Parliament, is always one and the. same quality. If the Czar can abdicate, so can a Parliament. To argue or imply that because sovereignty is not limitable (which is true) it cannot be surrendered (which is palpably untrue) involves the confusion of two distinct ideas. It is like arguing that because no man can, while he lives, give up, do what he will, his freedom of volition, so no man can commit suicide. A sovereign power can divest itself of authority in two ways, and (it is submitted) in two ways only. 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 legally summoned. (See Bryce, AtMiican Gommonwealth, i. (.Srd ed.), p. 242, note 1.) A step 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 empowered to legislate by pro- clamation ; and though the fact is often overlooked, the Parliaments NA TURE OF PAR LI AMENTA RY SO VEREIGNTY 67 I. negative side. Parliament can legally legislate on Chapter any topic whatever which, in the judgment of Parlia- both of England and of Scotland did, at the time of the Union, each transfer sovereign power to a new sovereign body, namely, the Parlia- ment of Great Britain. This Parliament, however, just because it acquired the full authority of the two legislatures by which it was constituted, became in its turn a legally supreme or sovereign legis- lature, 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 Par- liaments of England and of Scotland, though for one purpose only, namely, to modify when necessary the Act of Union, and had con- ferred 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. The historical reason why Parliament has never succeeded in passing 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 con- stitution 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 Par- liament. Hence Parliament, or in technical terms the King in Parliament, has become — it would perhaps be better to say has always remained — 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- 68 THE SOVEREIGNTY OF PARLIAMENT Parti, ment, is a fit subject for legislation. There is no power which, under the English constitution, can come into rivalry with the legislative sovereignty of Parliament. 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. This doctrine of the legislative supremacy of Par- 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. Difficulties C. Difficulties as to the doctrine of Parliamentary as to Par- ^ . ,_, . liamentary sovereignty. — ilie reasons why many persons find reigiity. it hard to accept the doctrine of Parliamentary sovereignty are twofold. Difficulty The dogma sounds like a mere application to the from -n-'i • • p k • Austin's British constitution of Austin's theory of sovereignty, ^°^'^' 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 stitutiou 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. For a view of sovereignty which, though differing to a certain extent from the view put forward in this work, is full of interest and instruction, my readers are referred to Professor Sidgwick's Elements of Politics, ch. xxxi. " Sovereignty and Order." NA TURE OF PARUAMENTAR Y SO VEREIGNTY 69 these lectures. For while lawyers maintain that Chapter sovereignty resides in " Parliament," i.e. in the body ^- constituted by the King, the House of Lords, and the House of Commons, Austin holds ^ 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 sense that, whatever lawyers may say, the sovereign [[mUatfon^' power of Parliament is not unlimited, and that King, °f ^"^^7. Lords, and Commons united do not possess anything ™™'- like that "restricted omnipotence" — if the term may be excused — which is the utmost authority 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. As to Austin's theory of sovereignty in relation Cimoism ... . . „ • J TT <"i Austin's to the British constitution. — Sovereignty, like many theory. 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- 1 See Austin, Jurisprudence, i. (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.) 70 THE SOVEREIGNTY OF PARLIAMENT Parti, 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 of a typical law, namely, an English criminal 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 ^ 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 1 Compare Austin, Jwriiprvdtnct, i. (4th ed.), p. 268. NA TUR-E OF PARLIAMENTAR Y SO VEREIGNTY 7 1 and the Peers, the body in which sovereign power is chapter 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 ^ always enforce their will. But the Courts will take no notice of the will 1 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 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 accurately 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 1 848 have undergone consider- able modification. But though in one point of view the present con- stitution, 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 and inaccurate assertion, therefore, that England is more democratically governed than either the United States or Switzer- land, contains a certain 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. 72 THE SOVEREIGNTY OF PARLIAMENT Part I. 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 word " 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 part of his work Austin has apparently confused the one sense with the other. " Adopting the language," he writes, " of some of " the writers who have treated of the British constitu- "tion, I commonly suppose that the present parlia- " ment, or theparliament for the time being, is possessed " 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 sove- " reign 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 delega- '•' tion and representation. It were absurd to suppose "that the delegating empowers 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 repre- NATURE OF PARLIAMENTARY SOVEREIGNTY 73 " sentatives in parliament to relinquish their share in Chapter " the sovereignty to the King and the Lords." ^ L_ 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" ^ for the electors. Of such a feigned " trust " the Courts know nothing. The plain truth is that as ,a matter of law Parliament is the sovereign power in the state, and that the " supposi- tion " treated by Austin as inaccurate is the correct statement of a legal fact which forms the basis of our whole legislative 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 obediejice. 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 pre- dominant part of the politically 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 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.) 74 THE SOVEREIGNTY OF PARLIAMENT Part I. (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^) 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 Parliament. Existence As to the actual limitations on the sovereign limitations powcr of Parliament. — The actual exercise of authority not^^JIoii- ^y ^"^y sovereign whatever, and notably by Parlia- sistentwith ment, is bounded or controlled by two limitations. sovereignty ' ■' Of these the one is an external, the other is an internal limitation. External The external limit to the real power of a sovereign consists in the possibility or certainty that his subjects, or a large number of them, will disobey or resist his laws. 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 Russian 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 ^ See p. 69, ante. NATURE OF PARLIAMENTARY SOVEREIGNTY 75 absolute monarch is in general obeyed by the bulk of chapter his subjects. But it would be an error to suppose 1_ that the most absolute ruler who 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 " 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 praetorian hands, "like men, by their opinion."^ The authority, that is to say, even of a despot, iiiustra depends upon the readiness of his subjects or of some eXraai portion of his subjects to obey his behests; and this exerdseof readiness to obey must always be in reality limited, ^^wer.'^" This is shown by the most notorious facts of history. None of the early Caesars could at their pleasure have 1 Hume, Essays, i. (1875 ed.), pp. 109, 110. 76 THE SOVEREIGNTY OF PARLIAMENT Parti, subverted the worship or fundamental institutions of the Eoman 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 Mahommedanism. 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 to great changes, but even to small matters. The 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 NA TURE OF PARLIAMENTA RY SO VEREIGNTY. 77 or abolisli the monarchy ; but every one knows that Chapter 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 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. The internal limit to the exercise of sovereignty internal arises from the nature of the sovereign power itself, nhistia- 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 Mahommedan world, but if he coUld do so it is in the very highest degree improbable that the head of Mahommedahism should wish to overthrow the religion of Mahomet; 78 . THE SOVEREIGNTY OF PARLIAMENT Parti, 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 in the case of a Parliamentary sovereign as of any 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 eighteenth 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 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. NA TURK OF PARLIAMENTAR Y SO VEREIGNTY 79 " point of view, the power of the legislature is of course chapter " 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 preserva- " tion of blue-eyed babies would be illegal ; but legis- " lators must go mad before they could pass such a "law, and subjects be idiotic before they could submit "toit."i Though sovereign power is bounded by an external Limits and an internal limit, neither boundary is very de- Side. finitely marked, nor need the two precisely coincide. A sovereign may wish to do many things which he either 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 resistance to such a change w:ould become serious. Before the War of Secession the sovereign power of the United States could not have abolished slavery without provoking a civil war ; after the War of Secession the sovereign power abolished slavery 1 Leslie Stephen, /Samce o/£ f™ff '^^^ general answer to our inquiry (which of course can have no application to a country like England, ruled by a sovereign Parliament) is that two methods may be, and have been, adopted by the makers of constitutions, with a view to render- NON-SO VEREIGN LA W-MAKING BODIES 1 27 ing unconstitutional legislation, either impossible, or Chapter inoperative. L„ 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 intervention of the tribunals, and rests at bottom on the authority of the judges. This general account of the two methods by which it may be attempted to secure the rigidity of a constitution is hardly intelligible without further * illustration. 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 by°ciiiti. vital importance to the distinction between funda- comtitu- mental and other laws, and therefore have constantly """''lists- 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 128 THE SOVEREIGNTY OF PARLIAMENT Parti, 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 con- stitution. 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,^ or at any rate to political con- siderations, for inducing the legislature to respect the restraints imposed on its authority, and have usually omitted to provide machinery for annulling 1 "Aucun des pouvoirs institues par la constitution n'a le droit " Je la changer dans son ensemble ni dans ses parties, sauf les r^formes " qui pourront y etre faites par la voie de la revision, conformement " aux dispositions du titre VII. ci-dessus. "L'Assemblde nationale constituante en remet le dep6t k, la " fid^litd du Corps l^gislatif, du Roi et des juges, k la vigilance des " pferes de famille, aux Spouses et aux nitres, & I'affection des jeunes " citoyens, au courage de tous les Frangais." — Constitution de 1791, Tit. vii. Art. 8 ; Duguit et Monnier, Les Constitutions de la France depuis 17H9, p. 34. 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. 26, 28, Hdlie, Les Constitutions de la France, p. 579. NON-SOVEREIGN LA W-MAKING BODIES 129 unconstitutional enactments, or for rendering them Chapter of no effect, •"• These traits of French constitutionalism are French specially noticeable in the three earliest of French tionary political experiments. The Monarchical constitution yont''" of 1791, the Democratic constitution of 1793, the Directorial constitution of 1795 exhibit, under all their diversities, two features in common/ They each, on the one hand, confine the power of the legis- lature 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 con- stitution, 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. ^ None of these constitutions, on the other hand, contain a hint as to the mode in which a law is to be treated which is alleged to violate the con- stitution. 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 con- stitutionality, 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 consti- Existing tutions have been repeated in the works of later oonstitu- French constitutionalists. Under the present French 1 See Appendix, Note I., Rigidity of French Constitutions. 2 See Constitution of 1795, Tit. xiii. Art. 338, Hdlie, Les Consti- tutions de la France, p. 463. K I30 THE SOVEREIGNTY OF PARLIAMENT Part I. Republic there exist a certain number of laws (not it is true a very large number), which the Parlia- ment cannot change ; and what is perhaps of more consequence, the so-called Congress^ 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 on- wards to the legislation of de facto governments and the traditions of the French judicature, will assume with confidence that jan enactment passed through the Chambers, proinulgated by the Presi- dent, and published iu the Bulletin des Lois, will be held valid by every tribunal throughout the Republic. Are the This curious rcsult therefore ensues. The restric- continentai tions placcd ou the actiou of the legislature under tbas'*'^ the French constitution are not in reality laws, since "laws"? ^ijgy. a^pg jjqi- j.yjgg yf]^{Q\ in -tlig last resort will be 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 1 The term is used by French writers, but does not appear in the Lois Gonstitutionnelles, and one would rather gather that the proper title for a so-called Congress is L'AssembUe Nationale. NON-SO VE REIGN LA W-MAKING BODIES 1 3 1 influence of French ideas. The Belgian constitution, Chapter 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 constitutionalists 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 whole period of Belgian independence, 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 certainly affords some evidence that, under favourable circumstances, formal declarations of rights may, from their influence on popular feeling, possess greater weight than is gener- ally attributed to them in England ; but it also suggests the notion that in Belgium, as in France, the restrictions on Parliamentary authority are sup- ported mainly by moral or political sentiment, and are at bottom rather constitutional understandings 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 paradox. They seem to be almost equally afraid of leaving the authority of the ordinary legislature unfettered, and of taking the steps by which the legislature may be prevented from breaking through the bonds imposed upon its power. The explanation 132 THE SOVEREIGNTY OF PARLIAMENT Part I of this apparent inconsistency is to be found in two sentiments which have influenced French constitu- tion-makers from the very outbreak of the Kevolution — 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.^ We shall see, in a later chapter, that the public law of France is still radically influenced by the belief, even now almost universal among French- men, that the law Courts must not be allowed to interfere in any way whatever with matters of state, or indeed with anything affecting the machinery of government.^ Safeguards The authors of the American constitution have, by°found- for rcasous that will appear in my next chapter, been United Gvcu morc auxlous than French statesmen to limit states. ^jjg authority of every legislative body throughout the Eepublic. They have further shared the faith of continental politicians in the value possessed by general declarations of rights. But they have, unlike French constitution-makers, directed their attention, not so much to preventing Congress and other legis- latures from making laws in excess of their powers, as to the invention of means by which the effect of unconstitutional 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 1 A. de Tocqueville, CEuvres Computes, i. pp. 167, 168. 2 See Chap. XII. NON-SOVEREIGN LAW-MAKING BODIES 133 real laws, that is, of rules enforced by the Courts, chapter This system, which makes the judges the guardians ^' of the constitution, provides the only adequate safe- guard which has hitherto been invented against unconstitutional legislation. CHAPTER III PARLIAMENTARY SOVEREIGNTY AND FEDERALISM ' ^^^^ I- My present aim is to illustrate the nature of Parlia- subjeot. mentary sovereignty as it exists in England, by a comparison with the system of government known as Federalism as it exists in several parts of the civilised world, and especially in the United States of America.^ Federalism There are indeed to be found at the present time stoo/by*"^' three other noteworthy examples of federal govern- oonstitu^ ment — tie Swiss Confederation, the Dominion of tion of Canada, and the G-erman Empire.^ But while from a United ... States. study of the institutions of each of these states one may draw illustrations which throw light on our subject, it will be best to keep our attention througb- 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 by the Courts, are there exhibited in their most salient 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 vol. i. part L " To these we must now (1908) add the Commonwealth of Australia. (See Appendix, Note IX., Australian Federalism), [and see further the South Africa Act, 1909, 9 Ed. VII. c. 9]. 134 PARLIAMENTARY SOVEREIGNTY ^ FEDERALISM 135 and perfect form ; the Swiss Confederation/ moreover, Chapter and the Dominion of Canada, are more or less copied L_ 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, in the second place, holds a verj'- 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 1 Swiss federalism deserves an amount of attention which it has only of recent years begun to receive. The essential feature of the Swiss Commonwealth is that it is a genuine and natural democracy, but a democracy based on Continental, and not on Anglo-Saxon, ideas of freedom and of government. The constitution of the Commonwealth of Australia contains at least one feature apparently suggested by Swiss federalism. See Appendix, Note IX., Australian Federalism. 136 THE SOVEREIGNTY OF PARLIAMENT Part I. 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- fore between the two polities is seen in its most salient 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. Conditions A federal state requires for its formation two and aim of j ■ • 1 federalism. COndltlOUS. 1 For United States see Story, Commentaries on the Constitution of the United States (4th ed.), and Bryce, Ammcan Commonwealth. For Canada see the British North America Act, 1867, 30 Vict. c. 3 ; Bourinot, Parliamentary Procedure and Practice in the Dominion of Canada. For Switzerland see Constitution FMerale de la GonfMdration Suisse du 2 9 Mai 1874; Blumer, Handhwch des Schweizerischen Bundesstaatsrechtes ; Lowell, Governments and Parties in Continental Europe, ii. chaps. xi.-xiii. ; Sir F. 0. Adams's Swiss Confederation; and Appendix, Note VIII., Swiss Federalism. For the Commonwealth of Australia, the Constitution whereof PARLIAMENTARY SOVEREIGNTY &- FEDERALISM 137 There must exist, in the first place, a body of Chapter countries such as the Cantons of Switzerland, the Colonies of America, or the Provinces of Canada, so c^paWerf 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 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. A second condition absolutely essential to the Existence founding of a federal system is the existence of a sentiment 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 deserves careful examination, the reader should consult Quick and Garran, Annotated Constitution of the Australian Commonwealth ; Moore, The Commonwealth of Australia ; and Bryce, Studies in History and Jurisprudence, i. Essay VIII. , " The Constitution of the Commonwealth of Australia." See further, Appendix, Note IX., Australian Federalism. 138 THE SOVEREIGNTY OF PARLIAMENT Parti, 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 the sense of common interests, or common national feeling, 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 nation, yet should not wish to surrender the in- dividual existence of each man's State or Canton. 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 government. This was certainly the case in America towards the end of the eighteenth century , and in Switzerland at the middle of the nineteenth century. In 1 7 8 7 a Virginian or a citizen of Massachusetts felt a far stronger 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 PARLIAMENTARY SOVEREIGNTY FEDERALISM 143 lative bodies, whether federal or state legislatures, Chapter 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 ^ that the founders of a polity should have deliberately omitted to provide any means for lawfully changing its bases. Such an ondission 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 teirms is of merely speculative interest, for under existing federaV governments the constitution will be found to provide the means for its own improvement.^ It is, at any rate, certain that whenever the founders 1 Eminent American kwyers, 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 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 Bdchsverfasswng, 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. ' ' ' . ' - [2 See e.g. South Africa Act, 1909, s. 152.] 144 THE SOVEREIGNTY OF PARLIAMENT Part I. 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.^ For so to vest legislative sovereignty would be incon- 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 1 Under the Constitution of the German Empire the Imperial legislative body can amend the Constitution. But the character of the Federal Council (Bundegrath) 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 Prussia and to various combinations of some among the other States. The extent to which national sentiment and State patriotism respectively predominate under a federal system may be conjectured from the nature of the authority which has the right to modify the Constitution. See Appendix, Note II., Division of Powers in Federal States. PARLIAMENTARY SOVEREIGNTY (Sr- FEDERALISM 143 legal sovereignty of the United States resides in the Chapter States' governments as forming one aggregate body L represented by three-fourths of the several States at any time belonging to the Union.^ Now from the necessity for placing ultimate legislative authority in some body outside the Constitution a remarkable conse- quence 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, 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 more than a century. It needed the thunder of the Civil War to break his repose, and it may be doubted whether anything 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.^ 1 " The Congress, whenever two-thirds of both houses shall deem " it necessary, shall propose amendments to this Constitution, or, on the " application of the legislatures of two-thirds of the several States, shall ■' call a convention for proposing amendments, which, in either case, " shall be valid to aU intents and purposes, as part of this Constitution, " when ratified by the legislatures of three-fourths of the several States, " or by conventions in three-fourths thereof, as the one or the other " mode of ratification may be proposed by the Congress ; provided that " no amendments which may be made prior to the year one thousand " eight hundred and eight shall in any manner affect the first and fourth " clauses in the ninth section of the first article ; and that no State, " without its consent, shall be deprived of its equal suffrage in the " Senate." — Constitution of United States, art. 5. Compare Austin, i. p. 278, and see Bryce, AiMrican Gommonwealth, i. (3rd ed.), chap, xxxii., on the Amendment of the Constitution. [2 Note, however, the ease with which the provisions of the Con- stitution of the U.S., with regard to the election of Senators by the Legislature and the transference of such election to the people of each State, have been carried through by Amendment ivii., passed in 1913.] L 146 THE SOVEREIGNTY OF PARLIAMENT Part I. Every legislative assembly existing under a federal Every Constitution is merely^ a subordinate law-making nfder'"'* ^ody, whose laws are of the nature of bye-laws, valid federal whilst within the authority conferred upon it by the constitii- •' . tionisa constitution, but invalid or unconstitutional if they subordi- tit-pi i- nateiaw- go bcyond the limits of such authority. bod™^ There is an apparent absurdity ^ in comparing the legislature of the United States to an English railway company or a municipal corporation, 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 as " unconstitutional " ; a law passed by the Great Eastern Railway Company is called a " bye-law," 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 1 This is so in the United States, but it need not necessarily be so. The Federal Legislature may be a sovereign power but may be so constituted that the rights of the States under the Constitution are practically protected. This condition of things exists in the German Empire. 2 gee p. 88, note 1, ante. PARLIAMENTARY SOVEREIGNTY &* FEDERALISM 147 upon their being within the powers given to Con- Chapter gress or to the state legislatures by the Consti- L tution. The bye-laws of the Great Eastern Eailway 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 Com- pany by Act of Parliament, i.e. by the Company's constitution. Congress and the Great Eastern Eail- way Company are in truth each of them nothing more than subordinate law-making bodies. Their power differs not in degree, but in kind, from the authority of the sovereign Parliament of the United Kingdom.^ The distribution of powers is an essential feature Distribu. of federalism. The object for which a federal state powers. 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 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 1 See as to bye-laws made by municipal corporations, and the dependence of their validity upon the powers conferred upon the cor- poration : Johrmn v. Mayor of Groydon, 16 Q. B. D. 708; Beg. v. Powell, 51 L. T. 92; Munro v. TTaUon, 57 L. T. 366. See Bryce, American Gomrrumwecdth, i. (3rd ed.), pp. 244, 245. 148 THE SOVEREIGNTY OF PARLIAMENT Parti. States by the Constitution nor prohibited by it to the States are reserved to the States respectively or to the people." ^ Division This is all the amount of division which is essen- cLri°edTn tial to a federal constitution. But the principle of factbeyond definition and limitation of powers harmonises so well necessary '^ limit. -w-ith 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 but a limited, indeed a very limited, power of legislation, for it can make laws upon eighteen topics only; yet within its own sphere it is inde- pendent both of the President and of the Federal Courts. So, lastly, the judiciary have their own powers. They stand on a level both with the Presi- 1 Constitution of United States, Amendments, art. 10. See pro- visions of a similar character in the Swiss Constitution, Constit'ution Federals, art. 3. Compare 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. The Constitution of the Australian Commonwealth follows in effect the example of the Constitution of the United States. The powers conferred upon the Commonwealth Parliament are, though very large, definite; the powers reserved to the Parliaments of the States are indefinite. See Commonwealth Act, ss. 51, 52, and 107, and Appendix, Note II., Division of Powers in Federal States, and Note IX., Aus- tralian Federalism. PARLIAMENTARY SOVEREIGNTY 6- FEDERALISM 149 dent and with Congress, and their authority (being Chapter directly derived from the constitution) cannot, without L 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 constitu- tion 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 -^ and to the separate States ^ the passing of a bill of attainder or an ex post facto law, the grant- ing of any title of nobility, or in effect the laying of any tax on articles exported from any State,^ 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,* 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 shall not be infringed, while it also provides that no member can be expelled from either House of Con- 1 Constitution of United States, art. 1, sec. 9. 2 Hid,., art. 1, sec. 10. 8 JUd., art. 1, sec. 9. But conf. art. 1, sec 10. * iSii., art. 1, sec. 10. 1 50 The sovereignty of parliament Parti, gress without the concurrence of two-thirds of the House. Other federal constitutions go far beyond that of the United States in ascribing among con- stitutional articles either principles or petty rules which are supposed to have a claim of legal sanc- tity ; the Swiss Constitution is full of " 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 Eepublic, 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 Eepublic the tendency to clothe with constitutional immutability any rules which strike the people as important. Illinois has em- ^ Contrast with, this the indefinite powers left to State Parliaments under the Commonwealth of Australia Constitution Act, ss. 106, 107. The Constitutionalists of Australia who created the Commonwealth have been as much influenced by the traditions of English Parlia- mentary sovereignty as American legislators have in their dealings with the State Constitutions been influenced by the spirit of federalism. PARLIAMENTARY SOVEREIGNTY S^ FEDERALISM 151 bodied, among fundamental laws, regulations as to chapter elevators.-' ^^ But here, as in other cases, there is great diffi- culty in distinguishing cause and eflfect. If a federal form of government has affected, as it probably has, the constitutions of the separate States, it is certain that features originally existing in the State constitu- tions have been reproduced in the Constitution 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 Kepublic, by the relation which before 1789 already existed between the state tribunals and the state legislatures.^ The tendency of federalism to limit on every side Division of the action of government and to split up the strength tinguisiies of the state among co-ordinate and independent from uui- authorities is specially noticeable, because it forms *"".*" . E J ' system of the essential distinction between a federal system govern- , ment. such as that of America or Switzerland, and a uni- tarian system of government such as that which 1 See Munn v. Illinois, 4 Otto, 113. 2 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, Mtvdes de Droit Constitutionnel (2nd ed.), pp. 103-111. " 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. (3rd ed.), p. 35. One capital merit of Mr. Bryce's hook 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. 153 THE SOVEREIGNTY OF PARLIAMENT Parti, exists in England or Eussia, We talk indeed of the English constitution as resting on a balance of powers, and as maintaining a division between the executive, the legislative, and the judicial bodies. These expressions 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 concentrated in the Imperial Parliament, and all departments of government are legally subject to Parliamentary despotism. Our judges are inde- pendent, 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 department does not pretend to stand on a level with Parliament ; its functions might be modi- fied 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 President 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 PARLIAMENTARY SOVEREIGNTY S^ FEDERALISM 1^2, in the House of Representatives. Unitarianism, in Chapter short, means the concentration of the strength of the L state in the hands of one visible sovereign power, be 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 France, Authority a more or less rigid constitution, the articles of which ° cannot be amended by the ordinary legislature, the difficulty has to be met of guarding against legisla- tion 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 sixty years, no Belgian judge has (it is said) ever pronounced a Parliamentary enactment unconstitu- tional. 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 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 154 THE SOVEREIGNTY OF PARLIAMENT Part I. case an accident, not an essential property of their polity. Under a federal system it is otherwise. The 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 eflPect. How The principle is clearly expressed in the Constitu- ofthe tion of the United States. "The Constitution," runs 9xerted!^ article 6, " and the laws of the 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, anything in " the constitution or laws of any State to the con- "trary notwithstanding."^ The import of these expressions is unmistakable. "Every Act of Con- " gress," 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 neces- "sarily void. This is a clear and settled principle " of [our] constitutional jurisprudence." ^ 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 Congress or from the state legis- 1 Constitution of United States, art. 6. ^ Kent, Oonn/mmXarut, i. (12th ed.), p. 314, and conf. /W(f., p. 449. PARLIAMENTARY SOVEREIGNTY &• FEDERALISM 155 latures, which is inconsistent with the Constitution Chapter of the United States. His duty is as clear as that L of an English judge called upon to determine the validity of a bye-law made by the Great Eastern or any other Eailway Company. The American judge must in giving judgment obey the terms of the Con- stitution, 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 tution that the principle should be obeyed ; for there existed cre^fon of a danger that judges depending on the federal ^^1^^ 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 creation 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 supren^e be noted. The Court derives its existence from the ^°"^ 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.^ 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 oflficers without requiring the aid of state officials. 1 Constitution of United States, art. 3, sees. 1, 2. 156 THE SOVEREIGNTY OF PARLIAMENT Part I. 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 iinal Court of Appeal from the decision of every 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 frequently 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 PARLIAMENTARY SOVEREIGNTY &- FEDERALISM 157 Appeal from decisions of the Supreme Court of any chapter 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 the Supreme Court of the United States are regulated 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 " Sta,tes, 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." ^ 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 1 Kent, Commentaries, i. (12th ed.), pp. 299, 300. 158 THE SOVEREIGNTY OF PARLIAMENT Part I. lawyer can see at a glance how well devised is the arrangement to encourage state Courts in the per- formance of their duty as guardians of the Constitu- tion, and further that the Supreme Court thereby becomes the ultimate arbiter of all matters affecting the Constitution. 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 King'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,^ can lawfully incorporate a bank,^ 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,^ and that the power exercised by Congress during the War of Secession of issuing paper money was valid.* The Courts again have controlled the power of the separate States fully as ^ Kent, Gommentaries, i. (12tli ed.), pp. 244-248. 2 Ibid., pp. 248-254. 3 Ibid., pp. 262-266. * Story, Gommentaries on the Constitution (4th ed.), ii. sees. 1116, 111 v. See Hepburn v. Oriswold, 8 Wallace, 603, Dec. 1869, and Knox V. Lee, 12 Wallace, 467. PARLIAMENTARY SOVEREIGNTY &' FEDERALISM 159 vigorously as they have defined the authority of the Chapter United States. The judiciary have pronounced un- L 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. To the judiciary in short are due the maintenance of 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.^ 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 while the judges of the United States control the action of the Constitution, they nevertheless 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 directly pronounces any opinion whatever jipon 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 1 Munn V. Illinois, 4 Otto, Kep. 113. See especially the Judg- ments of Marshall, C. J., collected in The Writings of John Marshall upon the Federal Constitution (1839). i6o THE SOVEREIGNTY OF PARLIAMENT Part I. Congress is not to be taken into account, since it is an Act beyond the constitutional powers of Congress.^ The true If any one thinks this is a distinction without a the"found- difference he shows some ignorance of politics, and United''^ does not understand how much the authority of a states. Court is increased by confining its action to purely judicial business. But persons who, like Tocque- ville, have fully appreciated the wisdom of the statesmen who created the Union, have formed per- haps an exaggerated estimate of their originality. Their true merit was that they applied with extra- ordinary skill the notions which they had inTierited 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 1 See Chap. II. pp. 91-95, Ante. PARLIAMENTARY SOVEREIGNTY &» FEDERALISM i6l Couacil. It is still more certain that they had before Chapter their eyes cases in which the tribunals of particular L 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 was then, and continued till 1842, to be governed under the charter of Charles II. An Act of the legislature was declared unconstitutional by the Courts of North Carolina in 1787 "^ and by the Courts of Virginia in 1788,^ whilst the Constitution of the United States was not adopted till 1789, and Marhury v. Madison, the first case in which the Supreme Court dealt with the question of constitutionality, was decided in 1803.^ 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. The d flftl Afi 1 ATI The preamble to the British North America Act, 1867, Dominion, asserts with diplomatic inaccuracy that the Provinces 1 Martin, 421. « 1 Va, Cas. 198. 8 1 Cranch, 137. For the facts as to the early action of tie State Courts in declaring legislative enactments unconstitutional I am in- debted, aa for much other useful criticism, to that eminent constitu- tionalist my friend the late Professor Thayer of Harvard University. M 1 62 THE SOVEREIGNTY OF PARLIAMENT Part I. 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 anything like the whole truth, for the word " Kingdom " ought to have been substituted " States " : since it is clear that the Constitution of the Dominion is in its essential features modelled on that of the Union. This is indeed denied, but in my judgment without adequate grounds, by competent Canadian critics.^ The differ- ences between the institutions of the United States and of the Dominion are of course both considerable and noteworthy. 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 independent 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 difference between the judgment as to the character of the Canadian Constitution formed by myself, and the judgment of com- petent and friendly Canadian critics, may easily be summarised and explained. If we look at the federal character of the Constitution of the Dominion, we must inevitably regard it as a copy, though by no means a servile copy, of the Constitution of the United States. Now in the present work the Canadian Constitution is regarded exclusively as a federal government. Hence ray assertion, which I still hold to be correct, that the government of the Dominion is modelled on that of the Union. If, on the other hand, we compare the Canadian Executive with the American Executive, we perceive at once that Canadian govern- ment is modelled on the system of Parliamentary cabinet government as it exists in England, and does not in any wise imitate the Presidential government of America. This, it has been suggested to me by a friend well acquainted with Canadian institutions, is the point of view from which they are looked upon by my Canadian critics, and is the justifica- tion for the description of the Constitution of the Dominion given in the preamble to the British North America Act, 1867. The suggestion is a just and valuable one ; in deference to it some of the expressions used in the earlier editions of this book have undergone aslight modification. PARLIAMENTARY SOVEREIGNTY <&- FEDERALISM 163 the land ; it cannot be changed (except within narrow Chapter limits allowed by the British North America Act, ^"' 1867) either by the Dominion Parliament^ or by the Provincial Parliaments ; ^ it can be altered only by the sovereign power of the British Parliament.^ Nor does this arise from the Canadian Dominion being a de- pendency. New Zealand is, like Canada, a colony, but the New Zealand 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 powers among bodies of co-ordinate authority ; * 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 ° the Dominion Govern- ment to disallow Provincial Acts.^ 1 See, however, British North America Act, 1867 (30 Vict. 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. ^ See for an example of an amendment of the Dominion Constitu- tion by an Imperial statute, the Parliament of Canada Act, 1875. * British North America Act, 1867, sees. 91, 92. 5 IbH,., sees. 56, 90. ^ Bourinot, Parliamentary Procedure and Practice in the Dominion of Canada, p. 76. 1 64 THE SOVEREIGNTY OF PARLIAMENT Parti. 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 Jirevent any troublesome or danger- " ons conflict of authority arising between the central " and local governments." ^ 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. The Swiss Swiss federalism repeats, though with noteworthy tion.^ era- ya^j,ja_|;JQjjg^ ^jjg csscutial traits of the federal polity as it exists across the Atlantic. The Constitution is the 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 1 Bourinot, Parliamentary Procedure and Practice in the Dominion of Canada, p. 694. PARLIAMENTARY SOVEREIGNTY &' FEDERALISM 165 Federal Executive {Bundesrath), and a Federal Court Chapter (Bundesgericht) . Of the many interesting and instructive peculi- arities which give to Swiss federalism an individual character, this is not the occasion ti) 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 head of " administrative law," many functions ^ of a judicial character, and thus, for example, till 1893 dealt in effect with questions ^ having reference to the rights of religious bodies. The Federal Assembly is the final arbiter on all questions as to the respective jurisdiction of the Executive and of the Federal Court. The j udges of that Court are elected by the Federal Assembly, they are occupied greatly with questions of public law (Staatsrecht), and so experi- enced a statesman as Dr. Dubs laments that the Federal Court should possess jurisdiction in matters of private law.* When to this it 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 1 Gonstitution FM^rale, art. 113, Loi ; 27 June 1874, art. 59 ; and Dubs, Das offentliche Eecht der schweizerischen Eidgenossenschaft, iL (2nd ed.), p. 90. 2 The decision thereof belonged till 1 893 to the Assembly, guided by the Federal Council ; it now belongs to the Federal Court. See Dubs, ii. pp. 92-95; Lowell, Governments and Parties, ii. pp. 217, 218. 3 Gonstitution FMerale, art. 113 ; and Dubs, ii. (2nd ed.), pp. 92-95. m. i66 THE SOVEREIGNTY OF PARLIAMENT Part I. as American statesmanship lias 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. That tribunal cannot question the con- stitutionality of laws or decrees passed by the Federal Parliament.'' From this fact one might suppose that the Federal Assembly is (unlike Congress) a sovereign body, but this is not so. The reason why all Acts of the Assembly must be treated as constitutional by the Federal Tribunal is that the Constitution itself almost precludes the possibility of encroachment upon its articles by the federal legisla- tive 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 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 1 GonsHtution FMerale, art. 113; and Dubs, ii (2nd ed ) pu 92-95. ' ^'' PARLIAMENTARY SOVEREIGNTY S- FEDERALISM 167 the' guardians of the sovereign's will expressed in the Chapter articles of the Constitution. "^' Our survey from a legal point of view of the com- characteristics common to all federal governments between forcibly suggests conclusions of more than merely ^yftem of •'_ "=*=' J lederalism legal interest, as to the comparative merits of ^'^^ °^ p*''- »T-, -, , (•-n lianieutary lederal government, and the system of Parliamentary sove- reignty. sovereignty. Federal government means weak government.^ weakness The distribution of all the powers of the state "sm! 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 govern- ment is so to speak pitted against that of the state governments leads, on the face of it, to a certain waste of energy. A federation therefore will always 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. The statement that federal government means weak government .should be qualified or balanced by the consideration that a federal system sometimes makes it possible for different communities to be united as one state when they otherwise could not be united at all. The bond of federal union may be weak, but it may be the strongest bond which circumstances allow. The failure and the calamities of the Helvetic Republic are a warning against the attempt to force upon more or less independent states a greater degree of political unity than they will tolerate. i68 THE SOVEREIGNTY OF PARLIAMENT Parti, be at a disadvantage in a contest with unitarian states of equal resources. Nor does tlie 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 constitutional arrangements enable Switzerland to preserve her separate existence, though surrounded by powerful and at times hostile nations. The mutual jealousies moreover incident to federalism do visibly weaken the Swiss Eepublic. Thus, to take one example only, each member of the Executive must belong to a different canton." 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 ^ The latter part of statement is perhaps less true in 1908 than it was in 1885. ^ Constitution Fdd&ale, art. 96. PARLIAMENTARY SOVEREIGNTY 6- FEDERALISM 169 interference or to the activity of government. Hence Chapter a federal government can hardly render services to the L nation by undertaking for the national benefit func- tions 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 genera- tion 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. Federalism tends to produce conservatism. - conseira- This tendency is due to several causes. The con- federalism, 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 now existed for 170 THE SOVEREIGNTY OF PARLIAMENT Part I. more than one hundred years, yet to abolish or alter the House of Lords might turn out to be an 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 superstitious reverence, and thus are in fact, though not in theory, protected from change or criticism. The principle that legislation ought not to impair obligation of contracts has governed the whole course of American opinion. Of the conservative effect of such a maxim when forming an article of the constitu- tion we may form some measure by the following re- flection. 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. Legal Federalism, lastly, means legalism — the predomi- spirit of .,. . . , . . federalism, nauce of the judiciary in the constitution — the pre- valence 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 [1 See, however, note ^, p. 145, anie.] PARLIAMENTARY SOVEREIGNTY 6r- FEDERALISM 171 authority and has (so to speak) only a potential Chapter 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 at a given moment the master of the constitution.^ Nothing puts in a 1 The expression " master of the constitution " has been criticised on the ground of exaggeration (Sidgwick, Elements of Politics, p. 616). The expression, however, though undoubtedly strong, is, it is sub- mitted, justifiable, if properly understood. It is true, as my friend Mr. Sidgwick well pointed out, that the action of the Supreme Court is restrained, first, by the liability of the judges to impeachment for misconduct, and, secondly, by the fear of provoking disorder. And to these restraints a third and more efficient check must be added. The numbers of the Court may be increased by Congress, and its decision in a given case has not even in theory that force as a decisive precedent which is attributable to a decision of the House of Lords ; hence if the Supreme Court were to pronounce judgments which ran permanently counter to the opinion of the party which controlled the government of the Union, its action could be altered by adding to the Court lawyers who shared the convictions of the ruling party. (See Davis, American Constitutions; the Relations of the Three Departments as adjusted by a Century, pp. 52-54.) It would be idle therefore to maintain, what certainly cannot be asserted with truth, that the Supreme Court is the sovereign of the United States. It is. Low- ever, I conceive, true that at any given moment the Court may, on a case coming before it, pronounce a judgment which determines the working of the Constitution. The decision in the Bred Scott Case for example, and still more the judicial opinions delivered in deciding the case, had a distinct influence on the interpretation of the Constitution both by slave-owners and by Abolitionists. In term- ing the Court the "master of the constitution" it was not my intention to suggest the exercise by it of irregular or revolutionary powers. No doubt, again, the Supreme Court may be influenced in delivering its judgments by fear of provoking violence. This apprehension is admittedly a limit to the full exercise of its theoretical powers by 172 THE SOVEREIGNTY OF PARLIAMENT Parti, stronger light the inevitable 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 states- manship; the revision of 1874 greatly increased the power of the Federal Tribunal. Dangers From the fact that the judicial Bench supports from posi- under federal institutions the whole stress of the con- juSdary. stitutiou, a spccial 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 support the duties imposed upon it. No one can doubt that the varying decisions given in the legal- the most absolute of despots. It was never my intention to assert that the Supreme Court, which is certainly not the sovereign of the United States, was in the exercise of its functions free from restraints which limit the authority of even a sovereign power. It must further be noted, in considering how far the Supreme Court could in fact exert all the authority theoretically vested in it, that it is hardly con- ceivable that the opinions of the Court as to, say, the constitutional limits to the authority of Congress should not be shared by a large number of American citizens. Whenever in short the Court differed in its view of the Constitution from that adopted by the President or the Congress, the Court, it is probable, could rely on a large amount of popular support. PARLIAMENTARY SOVEREIGNTY 6- FEDERALISM 173 tender cases, or in the line of recent judgments of Chapter which Munn v. Illinois is a specimen, show that the L 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 President Jackson, according to a current story,^ " has delivered his judgment ; let him now enforce 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 easily be exaggerated.^ Laymen are apt to mistake the growth of judicial caution for a sign 1 See W. G. Sumner, Andrew Jackson, American Statesmen Series, p. 182. 2 See Davis, American Constitutions; the Relations of the Three De- paHments 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 tie Union. See Davis, American Constitutions, pp. 56-57^ 174 THE SOVEREIGNTY OF PARLIAMENT Parti, of 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 Rights. 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 working of a federal Court tell very little against such an institution 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 Republic. 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 PARLIAMENTARY SOVEREIGNTY &- FEDERALISM 175 Mr. Blaine's election was, that tie 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 " Republicans " 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 ^erfl '^ trained to reverence the law is as certain as can be '^^^^^ ^oj"* 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 176 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 expression may be allowed) in the world. Tocque- ville long ago remarked that the Swiss fell far short of the Americans in reverence for law and justice.'' The events of the last sixty 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 execu- tive, and has never fully severed the functions of the judge from those of the government. Hence Swiss federalism 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. 180-182 fosi. ^ See Appendix, Note VIII., Swiss Federalism. PAET II THE RULE OF LAW 177 ^ CHAPTER IV THE RULE OF LAW : ITS NA.TUEE AND GENERAL APPLICATIONS Two features have at all times since the Norman Chapter Conquest characterised the political institutions of L England. lil^^!^ 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, toutfuit in luy et vient de lui al commencement,^ 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.^ 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 1 Year Books, xxiv. Edward III. ; cited Gneist, Englische Ver- waltungsrecht, i. p. 454. ^ See Part I. 179 i8o THE RULE OF LA IV Part II. "inheritance, que le roy ad; car par la ley il mime " et toutes ses sujets sont rulds, et si la ley ne fuit. " nul roi, et nul inheritance sera." ■^ 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 Forcigu obscrvcrs of English manners, such for Eng^an'd example as Voltaire, De Lolme, Tocqueville, or Grneist, fOTdm^^ have been far more struck than have Englishmen observers, themselvcs 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 Tocqueville's writings, which compares the Switzerland and the England of 1836 in respect of the spirit which pervades their laws and manners. Tooque- " I am uot about," he writes, " to compare Switzer- wintrf*''* " land ' with the United States, but with Great Britain. Uw'in' ^°^ " When you examine the two countries, or even if you Switzer- " only pass through them, you perceive, in my judg- contrast " mcnt, the most astonishing differences between them, land. " " Take it all in all, England seems to be much more re- " publican than the Helvetic Republic. The principal " differences are found in the institutions of the two " countries, and especially in their customs (mceurs). " 1. In almost all the Swiss Cantons liberty of the " press is a very recent thing. ^ Year Books, xix. Henry VI., cited Gneist, Englische Verwal- tungsrecht, i. p. 455. ^ Many of Tocqueville's remarks are not applicable to the Switzer- land of 1902 ; they refer to a period before the creation in 1848 of the Swiss Federal Constitution. ITS NATURE AND GENERAL APPLICATIONS i8i " 2. In almost all of them individual liberty is by Chapter " no means completely guaranteed, and a man may '_ " be arrested administratively and detained in prison " 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 " 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 asso- " ciation is but little understood in Switzerland. " iv. The Swiss do not show the love of justice i82 THE RULE OF LA W Part II. " whicli is such, a strong characteristic of the English. " Their Courts have no place in the political arrange- "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 Repub- " 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 " Republican 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." ^ Bfaringof TocqueviUc's language has a twofold bearing on viiieTre- our prcscnt topic. His words point in the clearest meIning°of manner to the rule, predominance, or supremacy of rule of law. 1 ggg Tocqueville, CEuvres Oomplkes, viii. pp. 455-457 ITS NATURE AND GENERAL APPLICATIONS 183 law as the distinguishing characteristic of English Chapter institutions. They further direct attention to the ^ ' extreme vagueness of a trait of national character which is as noticeable as it is hard to portray. 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 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 of rule of generally include under one expression at least three 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 povve^on goods except for a distinct breach of law established in ^overn'-""^ the ordinary legal manner before the ordinary Courts ™^°*- 1 84 THE RULE OF LA W Part II. of the land. In this sense the rule of law is contrasted with every system of government based on the exer- cise by persons in authority of wide, arbitrary, or discretionary powers of constraint. Contrast Modcm Englishmen may at first feel some surprise England that the " rulc of law " (in the sense in which we are Continent 'low using the term) should be considered as in any at present ^^j ^ 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 almost every continental community the executive exercises far wider discretionary authority in the matter of arrest, of temporary imprisonment, of expulsion from its territory, and the like, than is either legally claimed or in fact exerted by the government in England ; and a study of European politics now and again reminds English readers 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 must mean insecurity for legal freedom on the part of its subjects. Contrast If, howcver, wecoufincdour observation to theEurope England of the twentieth century, we might well say that in nentdun*ng iiiost Europcan countrics the rule of law is now nearly eighteenth ^s wcU established as in England, and that private century. ... o ' ... individuals at any rate who do not meddle in politics ITS NATURE AND GENERAL APPLICATIONS 185 have little to fear, as long as they keep the law, either Chapter from the Government or from any one else ; and we L might therefore feel some difficulty in understanding 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 constitution.' Our perplexity is entirely removed by carrying back our minds to the time when the English consti- tution began to be criticised and admired by foreign thinkers. During the eighteenth century many of the continental governments w^ere 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.^ He had good reason to know the difference. 1 " La liberty est le droit de faire tout ce que les loia permettent ; " et si un citoyen pouvoit faire ce qu'elles d^fendent, il n'auroit plus de " liberty, parce que les autres auroient tout de mSme ce pouvoir." — Montesquieu, De I'Esprit des Lois, Livre XL chap. iii. " II y a aussi une nation dans le monde qui a pour objet direct de " sa constitution la liberty politique." — Ibid. chap. v. The English are this nation. 2 " Les circonstances qui contraignaient Voltaire k chercher un " refuge chez nos voisins devaient lui inspirer une grande sympathie " pour des institutions 011 il n'y avait nulle place k I'arbitraire. ' La " raison est libre ici et n'y connalt point de contrainte.' On y respire " un air plus g^n^reux, Ton se sent au milieu de citoyens qui n'ont pas " tort de porter le front haut, de marcher fierement, stirs qu'on n'efit pu 1 86 THE RULE OF LA W Part 11. 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 Regent treated the affair as a sort of joke, and, so to speak, " chaffed " the supposed author of the satire "/ Jiave seen" on being about to pay a visit to a prison which he " had not seen."^ In 1725 Voltaire, then the literary hero of his country, was lured off from the table of a Duke, and was thrashed by lackeys in the presence of their noble master ; he was unable to obtain either legal or honourable redress, and because he complained of this outrage, 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. More- over, 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 Encyclopedie 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 " toucher k uii seul oheveu de leur tete,et n'ayant a redoubter nilettres de "cachet, ni captivite immotiv^e." — Desnoiresterres, Voltaire, i. p. 365. 1 Desnoiresterres, i. pp. 344-364. JTS NATURE AND GENERAL APPLICATIONS 187 or the success of the contest bear the strongest Chapter witness to the wayward arbitrariness of the French L Government. Royal lawlessness was not peculiar to specially detestable naonarchs such as Louis the Fifteenth : it 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 t)f the assem- bling of the States General, a brave oflficer 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.^ 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 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 Gonstitutions Fran^aises, p. 10. 1 88 THE RULE OF LA W Part n. public opinion counted for a great deal more than in Spain, in the petty States of Italy, or in the Princi- palities of Germany. All the evils of despotism which 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 law- lessness of a score of petty tyrants, not because the French King ruled more despotically 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 twentieth century is at first sight hardly compre- hensible. Reflection 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 For English sentiment with reference to the servitude of the French, see GoUsmith, 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 ITS NATURE AND GENERAL APPLICATIONS 189 We mean in the second place/ when we speak of Chapter the " rule of law " as a characteristic of our country, '— not only that with us no man is above the law, but ^i^'ect°tr (what is a different thing) that here every man, la^adSni- whatever be his rank or condition, is subieet to the ^^^^^ ^^ ordinary ordinary law of the realm and amenable to the juris- tribunals, diction of the ordinary tribunals. In England the idea of legal equality, or of the universal subjection of all classes to one law admini- stered 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 without 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 payment of damages, for acts done in their official character but in excess of their lawful authority. A colonial governor,^ a secretary of state,^ a military officer,* 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 family ; and for the general state of feeling throughout Europe, Tocqueville, (Euvres OomplHes, viii. pp. 57-72. The idea of the rule of law in this sense implies, or is at any rate closely connected with, the absence of any dispensing power on the part either of the Crown or its servants. See Bill of Rights, Preamble 1, Stubbs, Select Charters (2nd ed.), p. 523. Compare Miller v. Knox, 6 Scott, 1 ; Attorney- General V. Kissane, 32 L.E. Ir. 220. 1 For first meaning see p. 183, ante. 2 Mostyn V. Fahregas, Cowp. 161 ; Musgrave v. Pulido, 5 App. Cas. 102 ; Governor Wall's Case, 28 St. Tr. 51. 3 Enticlc V. Garrington, 19 St. Tr. 1030. * Phillips V. Eyre, L. R., 4 Q. B. 225. 190 THE RULE OF LA W Part II. example as soldiers ^ 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 tri- bunals which have no jurisdiction over their fellow- countrymen ; ofl&cials, that is to say, are to a certain extent governed under what may be termed official law. But this fact 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 clergy- man 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 this respect pi/-,i • ^ • ^ • ±^ between oi law (in the scuse in which we are now using the andFrance. term) is a trait common to all 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 England emerged before the end of the sixteenth century) 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, or have been, in their official capacity, to some extent exempted from the ordinary law of the land, protected from the 1 As to the legal position of soldiers, see Chaps. VIII. and IX. 'posi. ITS NATURE AND GENERAL APPLICATIONS 191 jurisdiction of the ordinary tribunals, and subject Chapter in certain respects only to official law administered L by official bodies.^ Srd There remains yet a third and a different sense in ^J^°**fj^„ which the " rule of law" or the predominance of the are result ■■■ of ordinary legal spirit may be described as a special attribute of law of the English institutions. We may say that the constitu- tion is pervaded by the rule of law on the ground that the general principles of the constitution (as for example the right to personal liberty, or the right of public meeting) are with us the result of judicial decisions determining the rights of private persons in particular cases brought before the Courts ; ^ 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 ^ See Chapter XII. as to the contrast between the rule of law and foreign administrative law. 2 Compare Calvin's Case, 7 Coke, Rep. 1 ; Campbell v. Hall, Cowp. 204 ; Wilkes v. Wood, 19 St. Tr. 1153 ; Mostyn v. Fahregas, Cowp. 161. Parliamentary declarations of the law such as the Petition of Right and the Bill of Rights have a certain affinity to judicial decisions. 192 THE RULE OF LA W Part II. "they are made what they are by human voluntary " agency." ^ 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 legis- lation, in the ordinary sense of that term, are the fruit of contests 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 Heuce flow notcworthy distinctions between the theEngiish Constitution of England and the constitutions of most constitu- foreign countries. tion and o Foreign There is in the English constitution an absence of constitu- _ " 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 judg- ments 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 ^ Mill, Representative Oovernment, p. 4. ITS NATURE AND GENERAL APPLICATIONS 193 is the result of a legislative act, as it is in England, Chapter where the constitution itself is based upon legal L decisions. 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. 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 formulas of logic to questions of law, the difference in this matter between the constitution of Belgium and 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 194 THE RULE OF LA W Part II 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. 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 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 sufl&ces 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.-' 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 Eevolution. And an observer may well doubt whether a good number of these liberties or rights are even now so well protected under the French Eepublic as under the English Monarchy. On the other hand, there runs through tlie English constitution that inseparable connection between the means of enforcing a right and the right 1 See Plouard, ies Constitutions Frangaues, pp. 14-16 ; Duguit and Monnier, Les Constitutions de la France (2nd ed.), pp. 4, 5. ITS NATURE AND GENERAL APPLICATIONS 195 to be enforced which is the strength of judicial legis- chapter lation. The saw, uhijus ihi 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 o;i 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 any declaration of the Eights of Man or of English- 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.-' But 1 The Petition of Right, and the Bill of Eights, as also the American Declarations of Rights, 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 Rights of Man (Becla/ration des Droits de V 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 remarkable rather by way of contrast than of similarity. The Petition of Right and the Bill of Rights 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 196 THE RULE OF LA W Part II. 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 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 from 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 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 controlling the action of the legislature by the Articles of the Constitution. ITS NATURE AND GENERAL APPLICATIONS 197 rights more than the other would be to an English- Chapter man an unnatural or a senseless form of speech. In L. 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. 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, the idea readily occurs that the right is capable of being suspended or taken away. Where, on the other 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 con- stitution, as far as such a thing can be conceived possible, would mean with us nothing less than a revolution. THE RULE OF LA W Part II. That "rule of law," then, which forms a funda- summary mental principle of the constitution, has three mean- tagTof" ii^gS) o'^ ™^y ^6 regarded from three diflFerent points Rule of of ^-g^^ Law 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. 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 ofiicials 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" (iW^Mnaita? administratifs) of France.^ 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 funda- mentally inconsistent with our traditions and customs. The "rule of law," lastly, may be used as a 1 See Chap. XII. ITS NATURE AND GENERAL APPLICATIONS 199 formula for expressing the fact that with us the law Chapter of the constitution, the rules whicli in foreign ! countries naturally form part of a constitutional code, are not the source but the consequence of the rights of individuals, as defined 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 influence the rule of law carry us but a very little way. If we of Law " want to understand what that principle in all its provlsionf different aspects and developments really means, we ^0°™'''*"" must try to trace its influence throughout some of the main provisions of the constitution. The best mode of doing this is to examine with care the manner in which the law of England deals with the following topics, namely, the right to personal free- \ dom ; ^ the right to freedom of discussion ; ^ the right | of public meeting ; ^ the use of martial law ; * the ; rights and duties of the army ; ^ the collection and expenditure of the public revenue ; ^ and the respon- sibility of Ministers.'^ The true nature further of the rule of law as it exists in England will be illustrated by contrast with the idea of droit administratif, or administrative law, which prevails in many continental countries.* These topics will each be treated of in their due order. The object, however, of this treatise, 1 Chap. V. 2 Chap. VI. « Chap. VII. 4 Chap. VIII. 5 Chap. IX. » Chap. X. 1 Chap. XI. ^ Chap. XIT. THE RULE OF LA W Part II. 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 aflford 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 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 1 The rule of equal law is in England now exposed to a new peril. " The Legislature has thought fit," writes Sir F. Pollock, " by the Trade Disputes Act, 1906, to confer extraordinary immunities on combinations both of employers and of workmen, and to some extent on persons acting in their interests. Legal science has evidently nothing to do with this violent empirical operation on the body politic, and we can only look to jurisdictions beyond seas for the further judicial consideration of the problems which our Courts were endeavouring (it is submitted, not without a reasonable measure of success) to work out on principles of legal justice." — Pollock, Law of Torts (8th ed.), p. v. ITS NATURE AND GENERAL APPLICATIONS 201 reason why the law of the constitution is imperfectly Chapter understood is, that we too rarely put it side '_ by side with the constitutional provisions of other countries. Here, as elsewhere, comparison is essential to recognition. CHAPTEE V THE RIGHT TO PERSONAL PaEEDOM Part II. The seventh article of the Belgian constitution Security establishes in that country principles which have sona^Tee- long prevailed in England. The terms thereof so BeiTian'^^'^ curiously iUustratc by way of contrast some marked constitu- features of English constitutional law as to be worth tion. . ° quotation. " Art. 7. La liberie individuelle est garantie. " Nul ne peut Hre poursuivi que dans les cas " prevus par la hi, et dans la forme qu'elle prescrit. " Hors le cas de flagrant delit, nul ne peut etre " arrete qu'en vertu de I'ordonnance motivee dujuge, " qui doit itre signifiee an moment de V arrestation, on " au plus tard dans les vingt-quatre heures." ^ How The security which an Englishman enjoys for England." personal freedom does not really depend upon or 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 ^ of the Magna Charta : 1 Constitution de la Belgique, art. 7. 2 See Stubbs, Charters (2nd ed.), p. 301. THE RIGHT TO PERSONAL FREEDOM 203 " Nullus liber homo capiatur, vel imprisonetur, aut Chapter " dissaisiatur, aut utlagetur, aut exuletur, aut aliquo — ^ " modo destruatur, nee super cum ibimus, nee super " eum mitteTTVus, nisi per legale judicium parium " suorum vel per legem terrae," which should be read in combination with the declarations of the Petition of Right. 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 204 THE RULE OF LA W physical coercion in any manner that does not admit of legal justification. That anybody should sufier physical restraint is in England 'prima 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 sufiering restraint is accused of some ofi'ence and must be brought before the Courts to stand his trial, or because he has been duly con- victed of some offence and must sufi'er 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,^ 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 ; ^ 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 redress in a wide sense, we may say that a person who has suffered a wrong obtains redress either when he gets 1 See as to arrests, Stephen, Commentaries, iv. (14th ed.), pp. 303-312. 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 among legal questions. See Appendix, Note IV., Right of Self-Defence. THE RIGHT TO PERSONAL FREEDOM 205 the wrongdoer punished or when he obtains compensa- Chapter tion 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?, 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 been brought against governors of colonies, against 2o6 THE RULE OF LA W Part II. secretaries of state, against oJBficers 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 the degree of his guilt could in any way whatever be determined by any more or less 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 affi)rded 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 1 Contrast the French (7o(fo Pinal, art. 114. THE RIGHT TO PERSONAL FREEDOM 207 defence that he did it under the orders of a master Chapter 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 sufi'ered 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 actions for assault or false imprisonment have refer- ence to injuries which in themselves are trifling. If one rufl&an gives another a blow, if a policeman makes an arrest without lawful authority, if a schoolmaster keeps a scholar lo.cked up at school for half an hour after he ought to have let the child go home,^ 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 suff"erer, if he can enlist the sympathies of 1 Ennter v. Johnson, 13 Q. B. D. 225. 2o8 THE RULE OF LA W Part 11. a jury, may recover heavy damages for the injury 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.^ 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 1 Contrast with this the extraordinary remedies adopted nnder the old French monarchy for the punishment of powerful criminals. As to which see FMchier, M^moires sur les Orand-Jours tenues A Clermont en 1665-66. THE RIGHT TO PERSONAL FREEDOM 209 might when he got free have obtained redress for Chapter the wrong done him might, so far from being a — 1- benefit, have condemned him to hfelong 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. ii. Writ of Habeas Corpus} — It is not within writ of the scope of these lectures to give a history of the corpus. writ of habeas corpus or to provide the details of the legislation with regard to it. For minute informa- tion, 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 Writ. — Legal documents constantly give Nature of the best explanation and illustration of legal prin- ciples. We shall do well therefore to examine with care the following copy of a writ of habeas corpus : — 1 See Stephen, Oommmiaries ( 1 4tli ed.), iii. pp. 69 7-707 ; 1 6 Car. I.e. 1 ; 31 Car. II. C.2 ; 56 George III. c. 100 ; Forsyth, Opinions, 436-452, 481. P THE RULE OF LAW Part II. " Victoria, hy the Grace of God, of the United " Kingdom of Great Britain and Ireland Queen, " 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 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 23rd " day of December in the 8th year of our reign. " By the Court, " Robinson." ^ " 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 Gams 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." THE RIGHT TO PERSONAL FREEDOM 211 whence the name habeas corpus — before the Court to chapter 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 afiidavit 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 \i prima 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 ofiicial or a private individual, who has, or is supposed to have, another in his custody. Any disobedience to the writ exposes THE RULE OF LA W Part II. the offender to summary punishment for contempt of Court/ and also in many cases to heavy penalties recoverable by the party aggrieved.^ 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. Habeas The Habeas Corpus Acts. — The right to the writ Acts. of habeas corpus existed at common law long before ths passing in 1679 of the celebrated Habeas Corpus Act,^ 31 Car. II. c. 2, and you may wonder how it has happened that this and the subsequent Act, 56 Greo. 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 Bex V. Winton, 5 T. R. 89, and conf. 56 Geo. III. c. 100, s. 2 ; see Corner, Practice of the Crown Side of the Gourt of Queen's Bench. 3 31 Car. II. c. 2, a. 4. « See also 16 Car. I. c. 10, s. 6. THE RIGHT TO PERSONAL FREEDOM 213 same, and if necessary discharge the prisoner, or on Chapter 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. A person is imprisoned on a charge of crime. If Sabms he is imprisoned without any legal warrant for his \m^z\ imprisonment, he has a right to be set at liberty. If, '^^'■•"•''•2- 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,^ 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 oi habeas corpus would be evaded either if the Court did not examine into the validity of 1 See Stephen, Digest of the Law of Criminal Procedure, art. 276, note 1, and also art. 136 and p. 89, note 1. Compare the Indictable Offences Act, 1848 (11 & 12 Vict. c. 42), s. 23. 214 THE RULE OF LA W Part II. the warrant on which the prisoner was detained, and if the warrant were not valid release 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. saheas A persou, again, who is detained in confinement 1816, 56 ' but not on a charge of crime needs for his protection c.^ioo. " ^^6 means of readily obtaining a legal decision on the lawfulness of his confinement, and also of getting THE RIGHT TO PERSONAL FREEDOM 215 an immediate release if he has by law a right to his Chapter 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,^ 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 machineryfor obtaining thewrit 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 1 See The Queen v. Nash, 10 Q. B. D. (0. A.) 454 ; and compare Re Agar-Ellis, 24 Ch. D. (C. A.) 317. For recent instances of effect of Habeas Oorpus Act see Bamardo v. jF'or(i[1892], A. C. 326 ; Barnardo V. MeHugh [1891], A. C. 388 ; Reg. v. Jackson [1891], 1 Q. B. (C. A.) 671 ; Cox V. Hakes, 15.App. Cas. 506 ; B^g. v. Barnardo, 24 Q. B. D. (C. A.) 283 ; and 23 Q. B. D. (C. A.) 305. Compare as to power of Court of Chancery for protection of children independently of Habeas Corpus Acts, Reg. v. Gyngall [1893], 2 Q. B. (C. A.) 232. As to appeal to Privy Council, see Att. Gen. for Hong Kong v. Kwok-A-Sing (1873), L. R. 5 P. C. 179. 2 The inconvenience ultimately remedied by the Habeas Corpus Act, 1816, was in practice small, for the judges extended to all cases of unlawful imprisonment the spirit of the Habeas Corpus Act, 1679, and enforced immediate obedience to the writ of habeas cmpus, even when issued not under the statute, but under the common law authority pf the Courts. Blackstone, Comm. iii. p. 138. 2i6 THE RULE OF LAW Part II. 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 im- prisoned, has, if there exists a single individual willing to 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 1726 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 1726 as it was in 1772 to obtain by means oi 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.^ 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 1 Sommersetfs Case, 20 St. Tr. 1. THE RIGHT TO PERSONAL FREEDOM 217 are essentially procedure Acts, and simply aim at Chapter improving the legal mechanism by means of whicli _ 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 difficulties. Hence the Habeas Corpus Act of Charles the Second's reign was an imperfect or very restricted piece of legislative work, and Englishmen waited 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 legislation 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 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 Frangaises, p. 161. 2i8 THE RULE OF LA W Part II. Every critic of the constitution has observed the Ettectof effect of the Habeas Corpus Acts in securing the habeas liberty of the subject; what has received less and luXrity deserves as much attention is the way in which the of judges. j.jgij^ iQ 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- ment any person who in the opinion of the Court is unlawfully deprived of his liberty, and hence in eflFect 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 THE RIGHT TO PERSONAL FREEDOM 219 thereupon taken from prison and brought upon a writ Chapter 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.^ In 1859 an English officer serving in India was duly convicted of manslaughter and sentenced, 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.^ 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.^ Moreover, as already pointed out, the authority of the civil tribunals even 1 The Case of the Canadian Prisoners, 6 M. & W. 32. 2 In re Allen, 30 L. J. (Q. B.), 38. 3 See Case of Pressing Mariners, 18 St. Tr. 1323 ; Stephen, Com- mentaries, u. (Uth ed.), p. 574 ; conf. Corner, Forms of Writs on Crown Side of Court of Quern's Bench, for form of habeas corpus for an impressed seaman. THE RULE OF LA W Part II. 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 Guildford, 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 their being carried back to the Russian ship. Doubts arose as to the legality of the whole proceeding. The 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 con- "veyed back to the Russian ship were contrary to " law." ^ The sailors were presumably released ; they no djoubt 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 is 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 government for trial. ^ A French forger, robber, or 1 See Forsyth, Opinions, p. 468. ^ See, however, Bex v. Lundy, 2 Ventris, 314 ; Rex v. Kimberley, 2 Stra., 848 ; East India Company v. Campbell, 1 Ves. Senr., 246 ; THE RIGHT TO PERSONAL FREEDOM murderer who escapes from France to England Chapter cannot, independently of statutory enactments, be — '— sent back to his native land for trial or punishment. The absence 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, how- ever, 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 Extra- dition 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,^ Mure V. Kaye, 4 Taunt. 34 ; and Chitty, Criminal Law (1826), pp. 14, 1 6, 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. (Compare, however, Reg. v. Bernard, Annual Register for 1858, p. 328, for opinion of Campbell, C. J., cited In re Castioni [1891], 1 Q. B. 149, 153, by Sir C. Russell, arguendo.) It has, however, in any case (to use the words of a high authority) " ceased to be k,w 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 provi- " sions, the prisoner as certainly discharged upon application to one " of the superior Courts." — Clarke, Extradition (3rd ed.), p. 27. The case of Musgrove v. Ghun Teeong Toy [1891], A. C. 272, which establishes that an alien has not a kgal right, enforceable by action, to enter British territory, suggests the possible existence of a common law right on the part of the Crown to expel an alien from British territory. 1 Inre Bellencontre [1891], 2 Q. B. 122. THE RULE OF LA W Part II. and if on any ground whatever 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.^ 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 con- tinental 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 exist- ence of the conspiracy does not admit of absolute proof An English Minister, if he is not prepared to put the 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 " adpiinistrative " 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 1 In re Goppin, L. R. 2 Ch. 47 ; The Qiieeny. Wilson, 3 Q. B. D. 42. ^ Contrast the dealings of Louis Philippe's Government in 1833 with the Diwhesse de Berry, for which see Grdgoire, Histoire dfi Fr(ince, i. pp. 356-361. THE RIGHT TO PERSONAL FREEDOM 223 simple administrative act, that the Priine Minister or Chapter 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. Jf 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 acts, and as to the " separation of pow^ers," on which, as will be shown in a later chapter,^ the droit administratif of Yvance depends, and it deprives the Crown, which now means the Ministry of the day, of all discretionary authority. The actual or possible intervention, 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. We can now see why it was that the political con- o°seven- flicts of the seventeenth century often raged round *^™'^ •' o _ century the position of the judges, and why the battle might about ^ JO ./ , a position of 1 See Chap. XII. judges. 224 THE RULE OF LA W Part II. 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 repre- sentative 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 Parliament, 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 sometimes prove, was the certain road to Parliamentary sovereignty.^ Suspension Suspeusion of the Habeas Corpus Act. — Durino- co^l'^' periods of political excitement the power or duty of ^"^^ the Courts to issue a writ of habeas corpus, and 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," 1 Darnel's Case, 3 St. Tr. 1. 2 See Gardiner, History of England, ii. chap. xxiL, for an admir- able statement of the different views entertained as to the position of the judges. THE RIGHT TO PERSONAL FREEDOM 225 because if you take (as you may) the Act 34 Geo. III. Chapter 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 1 Of which s. 1 enacts " that every person or persons that are or "shall be in prison within the kingdom of Great Britain at or upon " the day on which this Act shall receive his Majesty's royal assent, "or after, by warrant of his said Majesty's most honorable Privy " Council, signed by six of the said Privy Council, for high treason, " suspicion of high treason, or treasonable practices, or by warrant, " signed by any of his Majesty's secretaries of state, for such causes " as aforesaid, may be detained in safe custody, without bail or main ■ " prize, until the first day of February one thousand seven hundred " and ninety-five ; and that no judge or justice of the peace shall bail " or try any such person or persons so committed, without order from " his said Majesty's Privy Council, signed by six of the said Privy " Council, till the said first day of Febrvary one thousand seven " hundred and ninety-five ; any law or statute to the contrary " notwithstanding." The so-called suspension of the Habeas Corpus Act under a statute such as 34 Geo. III. c. 54, produces both less and more effect than would the total repeal of the Habeas Corpus Acts. The suspension, while it lasts, makes it possible for the government to arrest and keep in prison any persons declared in effect by the government to be guilty or suspected of treasonable practices, and such persons have no means of obtaining either a discharge or a trial. But the suspension does not affect the position of persons not detained in custody under suspicion of treasonable practices. It does not therefore touch the ordinary liberty of ordinary citizens. The repeal of the Habeas Corpus Acts, on the other hand, would deprive every man in England of one security against wrongful imprisonment, but since it would leave alive the now unquestionable authority of the judges to issue and compel obedience to a writ of habeas corpus at common law, it would not, assuming the Bench to do their duty, increase the power of the government to imprison persons suspected of treasonable practices, nor materially diminish the freedom of any class of English- men. Compare Blackstone, Comm. iii. p. 138. 226 THE RULE OF LAW Part n. 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 any wise touch the claim to a writ of habeas corpus possessed by 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 sta,te of siege " ; ' 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 comparatively recent 1 See Duguit, Manuel de Droit Gonstitutionnel, pp. 510-513, and article " ^tat de Sifege" in Oh^ruel, Dictionnaire Historique des Institutions de la France (6th ed,). THE RIGHT TO PERSONAL FREEDOM 227 enactments on the Irish executive. Under the Act of Chapter 1881 (44 Vict. 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 by the Lord Lieutenant was made under the Act conclusive evidence of all matters contained 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 Vict. c. 25 — the Irish executive was armed with the following (among other) extraordinary powers. The government could in the case of certain crimes^ abolish the right to trial by jury,^ could 1 Viz. (a) treason or treason-felony ; (5) murder or manslaughter ; (c) attempt to murder .: {d) aggravated crime of violence against the person ; (e) arson, whether by common law or by statute ; (/) attack on dwelling-house. Sect. 1. 228 THE RULE OF LA W Partn. arrest strangers found out of doors at night under suspicious circumstances,^ could seize any newspaper which, in the judgment of the Lord Lieutenant, con- tained matter inciting to treason or violence,^ 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.^ Not one of these extraordinary 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 suspension is supplied by the fact that before a Habeas Corpus Suspension Act runs out its effect is, almost invariably, sup- plemented by legislation of a totally different char- acter, namely, an Act of Indemnity. Act of In- An Act of Indemnity. — Reference has already demnity. i i • ■ been made to Acts of Indemnity as the supreme instance of Parliamentary sovereignty.* 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. 1 Sect. 12. 2 Sect. 13. 3 gect. 15. * See pp. 47, 48, ante. THE RIGHT TO PERSONAL FREEDOM 229 Suppose that a Secretary of State or his subordinates Chapter should, during the suspension of the Habeas Corpus L_ 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 imagined, the Secretary of State who orders the arrest and the officials who carry out his commands have broken the law. They may have acted under the bonajide 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 may prevent 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 sufierer 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, 230 THE RULE OF LA W Part II. either by means of being put on bis 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 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 farther 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 bona fide, 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 RIGHT TO PERSONAL FREEDOM 231 the public good of that discretionary power which Chapter 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 re-enactments for seven years, from 1794 to 1801. In the latter year an Act was passed, 41 Geo. III. c. 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 eflfect, 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 that can fairly be given to an expected Act of Indemnity. The relief to be 232 THE RULE OF LA W Part II. 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 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 oifender to actions or prosecutions, and could not be justified under the terms of the Indem- nity Act. Eeckless 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 Imperial Parliament, should compare such an Act as 41 Geo. III. c. 66, with the enactment whereby the Jamaica House of Assembly THE RIGHT TO PERSONAL FREEDOM 233 attempted to cover Governor Eyre from all liability Chapter for unlawful deeds done in suppressing rebellion during L. 1865. 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. constitu- tion. CHAPTER VI THE RIGHT TO FREEDOM OF DISCUSSION Part II. The Declaration of the Rights of Man^ and the Freedom of French Constitution of 1791 proclaim freedom of discussion. (Jiscussion and the liberty of the press in terms which are still cited in text-books ^ as embodying maxims of French jurisprudence. Principles "La libve Communication des pensees et des in foreign " opinions est uu dcs droits les plus precieux de " I'homme ; tout citoyen peut done parler, ecrire, " imprimer librement, sauf d, rdpondre de I'abus de " cette liberty dans les cas determines par la loi."^ "La constitution garantit, comme droit naturel et " civil . . . la liberted, tout homme de parler, d' ecrire, " d' imprimer et publier ses pensees, sans que ses e'crits " puissent etre soumis h 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 " pourra jamais etre etablie : il ne peut etre exige 1 Duguit et Monnier, Les Constitutions de la France, p. 1. 2 Bourguignon, Elements Oeneraux de Legislation Frangaise, p. 468. 8 Ddclar. des droits, art. 11, Plouard, p. 16, Duguit et Monnier, p. 2. * Constitution de 1791, Tit. 1 ; Plouard, p. 18, Duguit et Monnier, p. 4. 234 THE RIGHT TO FREEDOM OF DISCUSSION 235 " de cautionnement des e'crivains, Miteurs ou im- Chapter " primeurs. " Lorsque Vauteur est connu et domicilie en Bel- " gique, I'editeur, rimprimeur ou le distrihuteur ne "pent Stre poursuivi." ^ Both the revolutionists of France and the con- Noprin- stitutionalists of Belgium borrowed their ideas about freedom of freedom of opinion and the liberty of the press from reoo^Tsed England, and most persons form such loose notions J'^'^'^®^'^'' 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 rarely 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. [2 It appears, however, in the Preamble to Lord Campbell's Act, 1843, 6 & 7 Vict. c. 96.] 236 THE RULE OF LA W Part II. England been any proclamation of the right to 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 :— English •' Our present law permits any one to say, write, secures " and publish what he pleases ; but if he make a bad shall te°"^ " use of this liberty he must be punished. If he e™ept for " unjustly attack an individual, the person defamed ^rOT^To* " ™^y^ ^^® ^'^^ damages ; if, on the other hand, the be breach " words bc Written or printed, or if treason or im- " morality be thereby inculcated, the offender can be " tried for the misdemeanour either by information " or indictment." ^ 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 in general no special privilege on behalf of the " press," if by that term we mean, in conformity with ordinary language, periodical literature in general, and particularly the news- papers. In truth there is little in the statute- book which can be called a " press law." ^ The law 1 Odgers, L'ihd and Slander, Introd. (3rd ed.), p. 12. ^ For exceptions to this, see e.g. 8 & 9 Vict. c. 75 ; 44 & 45 Vict. c. 60, 8. 2. It is, however, true, as pointed out by oue of my critics (see the Law of the Press, by Fisher & Strahan, 2nd ed. p. iii.), that " there is slowly growing up a distinct law of the press." The tendency 01 THE RIGHT TO FREEDOM OF DISCUSSION 237 of the press as it exists here is merely part of the Chapter 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. There are many statements with regard to in- Liteison dividuals which no man is entitled to publish in uais" ' writing or print; it is a libel (speaking generally) thus to publish 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 recent press legislation is to a certain extent to free the proprietors of newspapers from the full amount of liability which attaches to other persons for the hona fide publication of defamatory statements made at public meetings and the like. See especially the Libel Law Amend- ment Act, 1888 (51 & 52 Vict. c. 64), s. 4. Whether this deviation from the principles of the common law is, or is not, of benefit to the public, is an open question which can be answered only by experience. 238 THE RULE OF LA W Partn. 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, and which were reasonably believed to be true. Thus 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'xiJL publishes that B has told him that ^'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 irito reckless and unfair attacks merely " from the love of exercising his power of denuncia- " tion." ^ 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 1 Whistler v. Buskin, "The Times," Nov. 27, 1878,per Huddleston, B. THE RIGHT TO FREEDOM OF DISCUSSION 239 fairness has to be determined by a jury, and may be Chapter 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 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 ^'s 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. So far in very general terms of the limits placed Libels on by the law of libel on freedom of discussion as regards mJnt™ the character 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 pub- lishes (orally or otherwise) any words or any docu- ment with a seditious intention. Now a seditious intention means an intention to bring. into hatred or contempt, or to excite disaffection against the King or the government and constitution of the United 240 THE RULE OF LAW Part II. 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.^ And if the matter published is contained in a written or 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 bona 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. Expression The casc IS pretty much the same as regards the of opinion ^ . „ . . ... , on religious tree cxprcssion 01 opinion on religious or moral questions, questions.^ Of late years circumstances have recalled attention 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 1 See Stephen, Dij-esJ of the Criminal Law (6th ed.), arts. 96, 97, 98. 2 Ibid., arts. 179-183. THE RIGHT TO FREEDOM OF DISCUSSION 241 otherwise, commits the misdemeanour of publishing Chapter a blasphemous libel, and is liable to imprisonment; L_ 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 by law established, or to promote immor- ality ; and that it is at least open to grave doubt how far the publications which thus wound the feelings of mankind 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.^ 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 penal, ties.^ 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 communi- cation of thoughts and opinions which was proclaimed in France a little over a hundred years ago to 1 See especially Stephen, Diged of the Criminal Law (6tli ed.), art. 179, and contrast Odgers (3rd ed.), pp. 475-490, where a view of the law is maintained diifering from that of Sir J. F. Stephen. 2 See 9 & lOWill. III. c. 35, as altered by 53 Geo. III. c. 160, and Stephen's Digest of the Criminal Law, art. 181. Conf. Attorney- General v. Bradlaugh, 14 Q. B. D. (C. A.), 667, p. 719, judgment of Lindley, L. J. K 242 THE RULE OF LA W Part II. 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 this matter is referred to the decision of a jury. Whether in any given case a particular individual is 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.^ 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 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 " blamable, but that he ought to be punished if he publishes that "which is blamable \i.e. that which twelve of his countrymen think " is blamable]. This in plain common sense is the substance of " all that has been said on the matter." — Bex v. Cutbill, 27 St. Tr. 642, 675. THE RIGHT TO FREEDOM OF DISCUSSION 243 privilege on the part of the press. A statement Chapter which is defamatory or blasphemous, if made in a L_ 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 to say, from this point of view, that liberty of the press is not recognised in England. "Why then has the liberty of the press been long why the reputed as a special feature of English institutions ? the press The answer to this inquiry is, that for about two though™ centuries the relation between the government and ^.^giand.'" 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. First, " The liberty of the press," says Lord Mans- field, " consists in printing without any previous 244 THE RULE OF LA W Part n. " license, subject to the consequences of law." ^ " The Th^od^ " law of England," says Lord EUenborough, " is a prTssIn*''' " law of liberty, and consistently with this liberty En'^^nd " ^^ ^^^^^ ^^* what is Called an imprimatur ; there No censor- << jg j^q ^^q\ preliminary license necessary ; but if " a man publish a paper, he is exposed, to the penal " consequences, as he is in every other act, if it be " illegal." ^ These dicta show us at once that the so-called 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.^ 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- tending 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 1 Rex V. Dean of St. Asaph, 3 T. K. 431 (note). 2 Eex V. Cobbett, 29 St. Tr. 49 ; see Odgers, Libel and Slander (3rd ed.), p. 10. 8 See p. 183, ante. THE RIGHT TO FREEDOM OF DISCUSSION 245 checks and preventive measures are inconsistent with Chapter 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 ofiience. Hence, with one exception,^ 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 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 libel- lous matter. Indeed, the Courts themselves will, only under very special circumstances, 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.^ 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 publica- tion of a newspaper than the writing and sending of a letter. Indeed, the simplest way of setting forth broadly 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 ' 1 U. the licensing of plays. See the Theatres Act, 1843, 6 & 7 Vict. c. 68 ; Stephen, Commentaries (14th ed.), iii. p. 227. 2 Compare Odgeia, Lihel and Slander (3rd ed.), chap, xiii., especially pp. 388-399, with the first edition of Mr. Odgers' work, pp. 13-16. 3 Eeg.v.Pooley, cited Stephen, Digest of Criminal Law (6thed.),p. 125. 246 THE RULE OF LA W Part 11. 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 the same principles. Hence also writers in and owners of newspapers have, or rather 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 understood in England is that the press (which means, of course, the writers in it) is subject only to the ordinary law of the land. Press Secondly, Press offences, in so far as the term can deau with be used with reference to English law, are tried and aJy "courts, puuishcd Only by the ordinary Courts of the country, that is, by a judge and jury.^ Since the Eestoration,^ offences committed through 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 1 This statement must be to a certain extent qualified in view of the Libel Act, 1843, 6 & 7 Vict c. 96, the Newspaper Libel and Registration Act, 1881,44&45 Vict. c. 60, and the Law of Libel Amendment Act, 1888, 51 & 52 Vict. c. 64, which do give some amount of special protection to hona fide reports, e.g. of public meetings, in newspapers. 2 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 enforced by a special procedure. ^ 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. c. 10. THE RIGHT TO FREEDOM OF DISCUSSION 247 be libellous is the opinion of the jury, and a man may Chapter publish anything which twelve of his countrymen think L_ 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 may sympathise with the language which the ofiicers of the Crown deem worthy of punishment, and hence may hold censures which are prosecuted as libels to be fair and laudable criticism of ofiicial errors. Whether the control indirectly exercised over the ex- pression of opinion by the verdict of twelve common- place 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 diflFerent 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 348 THE RULE OF LA W Part IL offeuces," " censorship of tJbe press," and the hke, are all but 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 Revolution ; and also at the condition of the press i-n 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 spirit which now pervades every part of the English constitution. Oompari- Au Englishman who consults French authorities son with . , . , the press IS struck With amazement at two facts : press law France. 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 1 The press is now governed in France by the Loi sur la liberie de la presse, 29-30 Juill. 1881. 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 iniiicting 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, show that the enactments then in vigour under the Eepublic 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. xxivi., " Presse," pp. 384-776, and especially Tit. I. chap, i., Tit. II. chap. iv. ; Roger et Sorel, Codes et Loi Usuelles, ' Presse," 637-652 ; Duguit, Manuel de Droit Constitutionnel, pp. 575-582. THE RIGHT TO FREEDOM OF DISCUSSION 249 special class of crimes. The Acts which have been Chapter 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, tiU after the establishment of the present Kepublic, 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. 250 THE RULE OF LA W Partn. 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 current of French legislation, has been, and still to a certain extent is, that it is the function of the ad- ministration 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 state. The right to print or sell books and printed 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 ^) and of 1767 confined the right of sale and printing under the severest penalties to librarians who were duly licensed.^ 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 ' See Dalloz, Repertoire, vol. xxxvi., " Presse," Tit. I. chap. i. Compare Roger et Sorel, Codes et Lois, "Presse," pp. 6;J7-652 2 Ibid. THE RIGHT TO FREEDOM OF DISCUSSION 251 were published abroad. Montesquieu's Esprit des Chapter Lois appeared at Geneva. Voltaire's Henriade was '_ printed in England ; the most remarkable of his and of Eousseau's writings were published in London, in Geneva, or in Amsterdam. In 1775 a work entitled Philosophie 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 hides} The point, however, to remark is, not so much the severity of the punishments which under 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 EncyclopMie depended on the goodwill of the King, there was no need for establishing special restrictions on news- papers. The daily or weekly press, moreover, hardly existed in France till the opening of the States General.^ 1 See Dalloz, Repertoire, vol. xxxvi., " Presse," Tit. I. chap. i. Compare Roger et Sorel, Oodes et Lois, "Presse," pp. 637-652. 2 See Eocquain, L'Esprit B^volutionnaire avant la Revolution, for a complete list of " Livres Gondamn^s " from 1 7 1 5 to 1 7 8 9. Eocquain's book is full of information on the arbitrariness of the French Govern- ment during the reigns of Louis XV. and Louis XVI. ' 252 THE RULE OF LA W Part II. The Revolution (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 ^ 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 inspec- tion 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 Directory imitated the Convention. Under the First Empire the newspaper press became the property of the government, and the sale, printing, and publica- tion of books was wholly submitted to imperial control and censorship.^ 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 1 See p. 234, anU. 2 Dalloz, B^pertoire, xxxvi., " Presse," Tit. I. chap. i. THE RIGHT TO FREEDOM OF DISCUSSION 253 the Restoration to the present day. The attempt, chapter 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. From 1814 to 1830 the censorship was practically established (21st Oct. 1814), was partially abolished, was abolished (1819), was re- established and extended (1820), and was re-abolished (1828).^ The Revolution of July 1830 was occasioned by an attempt to destroy the liberty of the press. The Charter made the abolition of the censorship part of the constitution, and since that date no system of censor- ship has been in name re-established. But as regards newspapers, the celebrated decree of 17th February 1852 enacted restrictions more rigid than anything im- posed 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 powers, the right to suppress any newspaper without the necessity of proving the commission of any crime or oflfence by the owner of the paper or by any writer in its columns.^ 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 operations of enactments passed during the existence of the Republic of 1848, and under the Empire, was (among other things) to make the signature of newspaper articles by their authors compulsory,* to require a large deposit from 1 See Duguit, Traits de Droit Oonstitutionnel, i. pp. 91, 92. 2 D^cret, 17 Fdvrier, 1852, sec. 32, Eoger et Sorel, Codes et Lois, p. 648. 3 Eoger et Sorel, Godes et Lois, p. 646. Lois, 16 JuUiet 1850. 254 THE RULE OF LA W Part n. any person who wished to establish a paper,^ to with- draw all press offences whatever from the cognisance of a jury/ to re-establish or reaffirm the provision contained in the reglement of 1723 by which no one could carry on the trade of a librarian or printer (commerce de la lihrairie) 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,' it is true, has abolished the restraints on the liberty of the press which grew up both before and under the Empire. But though for the last twenty-seven years the ruling powers in France have favoured the liberty or license of the press, nothing is more plain than 1 Roger et Sorel, Codes et Lois, p. 646. Lois, 16 Juillet 1850. 2 Lois, 31 Die. 1851. 2 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 pervades 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. A law passed under the Republic (6th July 1871. Roger et Sorel, Codes et Lois, p. 652) 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. 652), 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. The law of 29th July 1881 establishes the freedom of the press. 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. THE RIGHT TO FREEDOM OF DISCUSSION 255 that until quite recently the idea that press oflfences Chapter 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- ance. But their recurring revival is of far more significance than their temporary abolition.^ Let us now turn to the position of the English contrast press during the sixteenth and seventeenth cen- tion of press in tunes. England The Crown originally held all presses in its own ^^^J^f hands, allowed no one to print except under special *^™*^ 1 Note the several laws passed since 1881 to repress the abuse of freedom in one form or another by the press, e.g. the law of 2nd August 1882, modified and completed by the law of 16th March 1898, for the suppression of violations of moral principles (outrages awx bonnes mceurs) by the press, the law of 28th July 1894, to suppress the advocacy of anarchical principles by the press, and the law of ICth March 1893, giving the French government special powers with regard to foreign newspapers, or newspapers published in a foreign language. Conf. Duguit, Manuel de Droit Constitutionnel, p. 582. 256 THE RULE OF LAW Part II. 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.^ 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.^ The Star Chamber indeed fell in 1641, never to be revived, but the censorship survived the Commonwealth, and was under the Kestoration (1662) given a strictly legal foundation by the statute 13 & 14 Car. II. c. 33, which by subsequent enactments was kept in force till 1695.^ Original There existed, in short, in England during the indTubse- sixteenth and seventeenth centuries every method of ukenes™ Curbing the press which was then practised in France, between and which has prevailed there almost up to the press law ■*■ ^ of England prcscut day. In England, as on the Continent, the France. book trade was a monopoly, the censorship was in full vigour, the offences of authors and printers were 1 See for the control exercised over the press down to 1695, Odgers, Lihd and Slander (3rd ed.), pp. 10-13. 2 Gardiner, History of England, vii. pp. 51, 130 ; ibid., viii. pp. 225, 234. ^ See Macaulay, History of England, iv. chaps, xix. xxi. THE RIGHT TO FREEDOM OF DISCUSSION 257 treated as special crimes and severely punished by Chapter 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." ^ 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. " 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 un- 1 See Declaration of the Rights of Man, art. 11, p. 234, ante. S 2S8 THE RULE OF LA IV Part n. "becoming, 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 unlicensed printing " be, on the whole, a blessing or a curse to society, " not a word is said. The Licensing Act is con^ " demned, 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 " mischievous 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 ofiicer 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." ^ How slight was the hold of the principle of the 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 ' Macaulay, History of England, iv. pp. 541, 542. THE RIGHT TO FREEDOM OF DISCUSSION 259 prohibit the unlicensed publication of news.^ Yet Chapter 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 maxiin 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 Restoration 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 by^oHghiai suggest themselves. How does it happen that down ''^'fl^f to the end of the seventeenth century the principles ^gti^^g^g^"" upheld by the Crown in each country were in sub- press law stance the same ? What, again, is the explanation of and of the fact that from the beginning of the eighteenth ^^^^ ' century the principles governing th6 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. 1 Macaulay, 'History of England, i v. pp. 771, 772. 26o THE RULE OF LA W Part II. 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. Eeasons The grouud of the similarity between the press simUarity! l^w 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. 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 opinion, to treat the control of literature as an aflfair 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 RIGHT TO FREEDOM OF DISCUSSION iti The reason, again, why, for nearly two centuries, chapter the press has been treated in France on principles ^^- . utterly diflFerent from those which have been accepted Reasons for in England, lies deep in the difference of the spirit similarity. which has governed the customs and laws of the two countries. In France the idea has always flourished that the government, whether Koyal, Imperial, or Republican, 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 adininistratif} 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 Revolution 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 placed in the hands of whatever power was supreme in France the means of enforcing ofl&cial 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 1 See Chap. XII. ^ost. 262 . THE RULE OF LA W Part II of French goyernments 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 K'evolution, 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 7a censure, were more stringent than has ever been any Licensing Act. Eestrictions, 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 executive harmonises with the general spirit of French law, and because the administrative machinery, which is the creation of that spirit, has always placed (as it still places) in the hands of the executive the proper means for enforcing discretionary authority. THE RIGHT TO FREEDOM OF DISCUSSION 263 In England, on the other hand, the attempt made Chapter by the Crown during the sixteenth and seventeenth L. 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 tradi- tions 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.^ 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 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 Ee volution. The passing, however, of the 1 See Seidell's remarks on the illegality of the decrees of the Star Chamber, cited Gardiner, History of England, vii. p. 51. 264 THE RULE OF LA W Part 11. 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 licensing was left in the hands of the govern- ment, 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 re- vived in France, because the exertion of discretionary 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, because the exercise of discretionary power by the 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 THE RIGHT TO FREEDOM OF DISCUSSION 265 to establish the liberty of the press in France really Chapter intended to proclaim freedom of opinion, whilst the L 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. CHAPTER VII .THE RIGHT OF PUBLIC MEETING, Part II. Eight of public meeting. Bules of Belgian constitu- tion. Principles of English law as to right of public meeting. The law of Belgium ^ with regard to public meetings is contained in the nineteenth article of the constitu- tion, which is probably intended in the main to re- produce the law of England, and runs as follows : — "Art. 19. Les Beiges ont le droit de s' assembler " paisiblement et sans armes, en se conformant aux " lois, qui peuvent r4gler I'exercice de . ce droit, " sans ndanmoins le soumettre h une autorisation " prealahle. " Cette disposition ne s'applique point aux ras- " semblements en plein air, qui restent entihrement " soumis aux lois de police." ^ The restrictions on the practice of public meeting appear to be more stringent in Belgium than in England, for the police have with us no special authority to control open-air assemblies. Yet just as it cannot with strict accuracy be asserted that 1 See generally as to the right of public meeting, Stephen, Gommentaries, iv. (14th ed.), pp. 174-178, and "Kenny, Outlines of Criminal Law (3rd ed.), pp. 280-286. See Appendix, Note V., Questions connected with the Right of Public Meeting. 2 See Law Quarterly Review, iv. p. 159. See also as to right of public meeting in Italy, ibid. p. 78 ; in France, ihid. p. 165 ; in Switzerland, ibid. p. 169 ; in United States, ibid. p. 257. See as to history of law of public meeting in France, Duguit, Manuel de Droit Constitutionnel, pp. 554-559. ^ Constitution de la Belgique, art. 19. 266 THE RIGHT OF PUBLIC MEETING 267 English law recognises the liberty of, the press, so it Chapter can hardly be said that our constitution knows of !_ such a thing as any specific right of public meeting. No better instanc'e can indeed be found of the way in which in England the . constitution is built up upon individual 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^, B, arid C to meet together either in the open air or else- where for a lawful 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, lead to the consequence that A, B, C, D, and a thousand or ten thousand other persons, may (as a general rule)^ riieet 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, D, and all their friends have the same right to go there also. In other words, A, B, C. 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 constitution 1 It is not intended here to express any opinion on the point whether an agreement on the part of A, B, and to meet together may not under exceptional circumstances be a conspiracy. 268 THE RULE OF LA W Part II. 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 substance that right of public meeting for political and other purposes which is constantly treated in foreign countries as a special privilege, to be exer- cised only subject to careful restrictions. The asser- tion, however, 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 to commit a crime by open force, or in some way or other to break the peace, in which case the meeting itself becomes an unlawful assembly.^ 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 members of it expose themselves to all the con- sequences, in the way of arrest, prosecution, and punishment, which attend the doing of unlawful acts, or, in other words, the commission of crimes. Meeting A public meeting which, from the conduct of those fill because engaged in it, as, for example, through their marching it will lawful ^ -^""^ ^^^^ meaning of the term " unlawful assembly '' see Appendix, opposition. Note V., Questions connected with the Right of Public Meeting. THE RIGHT OF PUBLIC MEETING 269 together in arms, or through their intention to excite Chapter a breach of the peace on the part of opponents/ fills L peaceable citizens with reasonable fear that the peace will be broken, is an unlawful assembly. But a meeting which is not otherwise illegal does not ^ become an un- lawful assembly solely because it will excite violent and unlawful opposition, and thus may indirectly lead to a breach of the peace. Suppose, for example, that the members of the Salvation Army propose to hold a meeting at Oxford, suppose that a so-called Skeleton Army announce that they will attack the Salvation- ists and disperse them by force, suppose, lastly, 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. This may seem at first sight a reason- able request, but the magistrates cannot, it is sub- mitted,^ legally take the course suggested to them. That under the present state of the law this must be so is on reflection pretty clear. The right of A to walk down the High Street is not, as a rule,* taken away by the threat of X to knock A down if A takes his proposed walk. It is true that ^'s going 1 Compare (JKelly v. Harvey, 14 L. E. Ir. 105, Humphries v. Connor, 17 Ir. C. L. E. 1, 8, 9, judgment of Fitzgerald, J. 2 This statement must be read subject to the limitations stated, p. 273, post. s I assume, of course, that the Salvationists meet together, as they certainly do, for a lawful purpose, and meet quite peaceably, and without any intent either themselves to break the peace or to incite others to a breach thereof. The magistrates, however, could require the members of the Skeleton Army, or perhaps even the members of the Salvation Army, to find sureties for good behaviour or to keep the peace. Compare Kenny, Outlines of Criminal Law (3rd ed.), pp. 282, 486 ; Wise v. Dunning [1902], 1 K. B. 167. * See p. 278, post, and compare Humphries v. Connor, 17 Ir. C. L. E. 1. 270 THE RULE OF LA W Part II. into the High Street may 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 w:alk down the' High Street is not affected by the threats of X, the right of A, B, and C 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, and C to take their walk. Nor does it make any difference that A, B, and C ca,ll them- seltes the Salvation Army, or that X, Y, and Z call themselves the Skeleton Army. The plain principle is that ^'s 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 case of Beatty v. Gillhanks} 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 taking part in 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. 1 9 Q. B, D. 308. THE RIGHT OF PUBLIC MEETING 271 " What has happened here," says Field, J., " is Chapter "that an tinlawful 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 miay 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." ^ The principle here laid down is thus expressed by an Irish judge in a case which has itself received the approval of the English King's, Bench Division.^ " Much has been said on both sides in the course of " the argument abbut the case qf Beatty v. Gillbanks.^ " I am not sure that I would have taken the same view " of the facts of that case as was adopted by the Coiirt " that decided it ; but I agree with both the law as laid " down by the Judges, and their application of it to the " facts as they understood them. The principle under- " lying the decision seems to me to' be that an. act " innocent in itself, done with innocent intent, and " reasonably incidental to the performance of a duty, "to the carrying on df business, to the enjoyment of 1 Beatty v. Gillbcmks, 9 Q. B. D. 308, at p. 314. Bcaty v. Glenister, W. N. 1884, p. 93 ; Beg. v. Justices of Londonderry, 28 L. K. Ir. 440 ; with which contrast Wise v. Dunning [1902], 1 K. B. 167, and the Irish cases, Humphries v. Connor, 17 Ir. C. L. E. 1 ; Beg. v. M'Naghton, 14 Cox C. C. 572 ; O'Kelly v. Harvey, 14 L. E. Ir. 105. It is to be . noted that the King's Bench Division in deciding Wise V. Dunning did not mean to overrule Beatty v. Gillbanh, and apparently- conceived that they were following Beg. v. Justices of Londonderry. See also Appendix, Note V., Questions connected with the Right of Pu))lic Meeting. 2 See Beg. v. Justices of Londonderry, 28 L. E. Ir. 440 ; Wise v. Dunning [1902], 1 K. B. 167, 179, judgment of Darling^ J. 3 9 Q. B. D. 308. 272 THE RULE OF LA W Part II " legitimate recreation, or generally to the exercise of " a legal right, does not become criminal because it " may provoke persons to break the peace, or other- " wise to conduct themselves in an illegal way." ^ Nor is it in general an answer to the claim of, e.g. the Salvationists, to exercise their right of meeting, that whilst such exercise may excite wrongdoers to break the peace, the easiest way of keeping it is to prevent the meeting, for " if danger arises from the " exercise of lawful rights resulting in a breach of the " peace, the remedy is the presence of suflBcient force " to prevent that result, not the legal condemnation of " those who exercise those rights." ^ The principle, then, that a meeting otherwise in every respect lawful and peaceable is not rendered unlawful merely by the possible or probable mis- conduct of wrongdoers, who to prevent the meeting are determined to break the peace, is, it is submitted,^ well established, whence it follows that in general an otherwise lawful public meeting cannot be forbidden 1 The Queen v. Justices of Londonderry, 28 L. R. Ir. 440, pp. 461, 462, judgment of Holmes, J. 2 Reg. V. Justices of Lorodonderry, 28 L. E. Ir. 440, p. 450, judg- ment of O'Brien, J. '^ Wise V. Dunning [1902], 1 K. B. 167, or rather some expressions used in the judgments in that case, may undoubtedly be cited as laying down the broader rule, that a public meeting in itself lawful, and carried on, so far as the promoters and the members of it are concerned, perfectly peaceably, may become unlawful solely because the natural consequence of the meeting will be to produce an unlawful act, viz. a breach of the peace on the part of opponents (see pp. 175, 176, judg- ment of Alverstone, C. J. ; p. 178, judgment of Darling, J. ; pp. 179, 1 80, j udgment of Ohannell, J.). It should be noted, however, that Wise V. Dunning has reference, not to the circumstances under which a meet- ing becomes an unlawful assembly, but to the different question, what are the circumstances under which a person may be required to find sureties for good behaviour? (see Kenny, Outlines of Criminal Law, p. 486). THE RIGHT OF PUBLIC MEETING 273 or broken up by the magistrates simply because the Chapter meeting may probably or naturally lead to a breach ^"" of the peace on the part of wrongdoers. To the application of this principle there exist certain limitations or exceptions. They are grounded on the absolute necessity for preserving the King's peace. First limitation. — If there is anything unlawful (i) where in the conduct of the persons convening or addressing {"mtethig a meeting, and the illegality is of a kind which ^™Ioh rf naturally provokes opponents to a breach of the p^*'=^- peace, the speakers at and the members of the meet- ing may be held to cause the breach of the peace, and the meeting itself may thus become an unlawful meeting. If, for example, a Protestant controver- sialist surrounded by his friends uses in some public place where there is a large Eoman Catholic popula- tion, abusive language which is in fact slanderous of Roman Catholics, or which he is by a local by-law forbidden to use in the streets, and thereby provokes a mob of Eoman Catholics to break the peace, the meeting may become an unlawful assembly. And the same result may ensue where, though there is nothing in the mode in which the meeting is carried on which provokes a breach of the peace, yet the object of the meeting is in itself not strictly lawful, and may therefore excite opponents to a breach of the peace. ^ Second limitation. — Where a public meeting, ^2) where though the object of the meeting and the conduct of meeting the members thereof are strictly lawful, provokes a but peace breach of the peace, and it is impossible to preserve or be kept by dispersing 1 Compare Wise v. Dunning [1902], 1 K. B. 167, and ffKelly v. ^ ' Harvey, 14 L. R. Ir. 105. T 274 THE RULE OF LA W Part II. restore the peace by any other means than by dispers- ing the meeting, then magistrates, constables, and other persons in authority may call upon the meeting to disperse, and, if the meeting does not disperse, it becomes an unlawful assembly.^ Let us suppose, for example, that the Salvation Army hold a meeting at Oxford, that a so-called Skeleton Army come together with a view to preventing the Salvationists from assembling, and that it is in strictness impossible for the peace to be preserved by any other means than by requiring the Salvationists to disperse. Under these circumstances, though the meeting of the Salvation Army is in itself perfectly lawful, and though the wrongdoers are the members of the Skeleton Army, yet the magistrates may, it would seem, if they can in no other way preserve the peace, require the Salvation- ists to disperse, and if the Salvationists do not do so, the meeting becomes an unlawful assembly ; and it is possible that, if the magistrates have no other means of preserving the peace, i.e. cannot protect the Salvationists from attack by the Skeleton Army, they may lawfully prevent the Salvationists from holding the meeting.^ But the only justification for prevent- ing the Salvationists from exercising their legal rights is the necessity of the ease. If the peace can be preservled, not by breaking up an otherwise lawful ^ See especially 0' Kelly v. Harvey, 14 L. R. Ir. 105. 2 It is particularly to be noted that in 0' Kelly v. Harvey, 14 L. B. Ir. 105, the case in which is carried furthest the right of magistrates to preserve the peace by dispersing a lawful meeting, X, the magistrate against whom an action for assault wa,s brought, believed that there would be a breach of the peace if the meeting broken up continued assembled, and that there was no other way by which the breach of the peace could be avoided but by stopping and dispersing the meet- ing. Ibid. p. 109, judgment of Law, C. THE RIGHT OF PUBLIC MEETING 275 meeting, but by arresting the wrongdoers — in this chapter case the Skeleton Army — the magistrates or con- L stables are bound, it is submitted, to arrest the wrong- doers and to protect the Salvationists in the exercise of their lawful rights.^ One point, however,' deserves special notice since it is apt to be overlooked. The limitations or restrictions which arise from the Limita- - . ., TT-. , tions on paramount necessity lor preservmg the Jimgs peace right of are, whatever their extent, — and as to their exact m^eetlng extent some fair doubt exists,— in reality nothing ^^l^^^H^^^ else than restraints, which, for the sake of preserving °°^i°;^j the peace, are imposed upon the ordinary freedom of freedom. individuals. Thus if .4, a religious controversialist, acting alone and unaccompanied by friends and supporters, addresses the public in, say, the streets of Liverpool, and uses language which is defamatory or abusive, or, without being guilty of defamation, uses terms of abuse which he is by a local by-law forbidden to use ■ in the streets, and thereby, as a natural result of his oratory, excites his opponents to a breach of the peace, he may be held liable for the wrongful acts of which his language is the cause though not the legal justi- fication, and this though he does not himself break the peace, nor intend to cause others to violate it. He may, certainly, be called upon to find sureties for his good behaviour, and he may, probably, be pre- vented by the police from continuing addresses which are exciting a breach of the peace, for " the cases with " respect to apprehended breaches of the peace show 1 This is particularly well brought out in Q Kelly v. Harvey, 14 L. R, Ir. 105, 276 THE RULE OF LA W Part II. " that the law does regard the infirmity of human "temper to the extent of considering that a breach of " the peace, although an illegal act, may be the natural "consequence of insulting or abusive language or " conduct." 1 So again it may, where the public peace cannot otherwise be preserved, be lawful to interfere with the legal rights of an individual and to prevent him from pursuing a course which in itself is perfectly legal. Thus A, a zealous Protestant lady, walks through a crowd of Eoman Catholics wearing a party emblem, namely, an orange lily, which under the circumstances of the case is certain to excite, and does excite, the anger of the mob. She has no inten- tion of provoking a breach of the peace, she is doing nothing which is in itself unlawful ; she exposes her- self, however, to insult, and to pressing danger of public attack. A riot has begun ; X, a constable who has no other means of protecting ^, or of restoring the peace, requests her to remove the lily. She refuses to do so. He then, without use of any need- less force, removes the flower and thereby restores the peace. The conduct of X is apparently legal, and A has no ground of action for what would otherwise have been an assault. The legal vindication of X's conduct is not that A was a wrongdoer, or that the rioters were within their rights, but that the King's peace could not be restored without compelling A to remove the lily.^ 1 Wise, V. Dunning [1902], 1 K. B. 167, at pp. 179, 180, judgment of Channell, J. 2 Humphries v. Connor, 17 Ir. C. L. R. 1. The case is very- noticeable ; it carries the right of magistrates or constables to inter- fere with the legal conduct of A, for the sake of preventing or terminat- THE RIGHT OF PUBLIC MEETING 277 No public meeting, further, which would not Chapter otherwise be illegal, becomes so (unless in virtue of L 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, prociama- for example, that the Salvationists 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 proposed 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.^ Assume that the ing a breach of the peace by X, to its very furthest extent. The inter- ference, if justifiable at all, can be justified only by necessity, and an eminent Irish judge has doubted whether it was not in this case carried too far. " I do not see where we are to draw the line. If " [X] is at liberty to take a lily from one person \A'\ because the wear- " ing of it is displeasing to others, who may make it an excuse for a " breach of the peace, where are we to stop ? It seems to me that we " are making, not the law of the land, but the law of the mob supreme, " and recognising in constables a power of interference with the rights of " the Queen's subjects, which, if carried into effect to the full extent of " the principle, might be accompanied by constitutional danger. If it " had been alleged that the lady wore the emblem with an intent to " provoke a breach of the peace, it would render her a wrongdoer ; and " she might be chargeable as a person creating a breach of the peace," Humphries v. Connor, 17 Ir. C. L. E. 1, at pp. 8, 9, per Fitzgerald, J. 1 See Bex v. Fursey, 6 C. & P. 81 ; 3 St. Tr. (n. s.) 543. 278 THE RULE OF LA W Part II. 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 circumstances as little legal effect as would have a proclamation from the Home Ofl&ce 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 appear- ance are lawful, even though they may in fact turn out when actually convened to be unlawful because of the mode in which they are conducted. This is certainly a singular instance of the way in which adher- ence to the principle that the proper function of the state is the punishment, not the prevention, of crimes, deprives the executive of discretionary authority. Meeting A meeting, lastly, may be lawful which, neverthe- Sui^ less, any wise or public-spirited person would hesitate hSg"" to convene. For A, B, and C may have a right to topuwfc ^"^^ ^ meeting, although their doing so will as a interest, matter of fact probably excite opponents to deeds of violence, and possibly produce bloodshed. Suppose a Protestant zealot were to convene a meeting for the purpose of denouncing the evils of the con- fessional, and were to choose as the scene of the open-air gathering some public place where meetings were usually held in the midst of a large town filled with a population of Eoman Catholic poor. The meeting would, it is conceived, be lawful, but no one can doubt that it might provoke violence on the part of opponents. Neither the government, however, nor the magistrates could (it is submitted), as a rule, at any rate, prohibit and prevent the meeting from THE RIGHT OF PUBLIC MEETING 279 taking place. They might, it would seem, prevent Chapter the meeting if the Protestant controversialist and his '- friends intended to pursue a course of conduct, e.g. to give utterance to libellous abuse, which would be both illegal and might naturally produce a breach of the peace, or if the circumstances were such that the peace could not be preserved otherwise than by preventing the meeting.' But neither the govern- ment nor the magistrates can, it is submitted, solely on the ground that a public meeting may provoke wrongdoers to a breach of the peace, prevent loyal citizens from meeting together peaceably and for a lawful purpose. Of the policy or of the impolicy of denying to the highest authority in the state very wide power to take in their discretion 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 the rules as to the right of public meeting illustrate both the legal Spirit' of our institutions and the process 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 constitution. 1 See p. 269, ante, and compare UKelly v. Harvey, 14 L. B. Ir. 105, with Reg. v. Justices of Lcmdonderry, 28 L. K. Ir. 440, and '(Fise V. Dunning [1902], 1 K. B. 167,, with Beatty v. Oillbanks, 9 Q. B. D. 308. And the magistrates might probably bind over the conveners of the meeting to find sureties for their good behaviour. The law on this point may, it appears, be thus summed up : " Even a person who "has not actually committed any offence at all may be required to "find sureties for good behaviour, or to keep the peace, if there be "reasonable grounds to fear that he may commit some offence, or may " incite' others to do so, or even that he may act in some manner " which would naturally tend to induce other people (against his desire) ".to commit one." — Kenny, Outlines of Criminal Law, p. 486. CHAPTER VIII MARTIAL LAW tional law. Part II. The rights already treated of in the foregoing chapter, No sharp as for example the right to personal freedom or the be drawn ^^g^^ to free expressloH of opinion, do not, it may be rui^^of suggested, properly belong to the province of consti- private tutional law at all, but form part either of private law law or of . (> 1 T ••11 criminal strictly SO Called, or of the ordinary criminal law. constitu- Thus ^'s right to personal freedom is, it may be said, only the right of A not to be 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 personal 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 Jiope 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 ; thus the right to personal freedom may, as already 280 MARTIAL LA W 281 pointed out, be looked at as the right of A not to have Chapter 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 the leader of the Opposition in a fit of anger, or were the Home Secretary to arrest him because he thought his political opponent'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 exposes himself by committing an assault. The fact that the arrest of an influential politician whose speeches might excite disturbance was a strictly administrative act, would afi"ord 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 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 foun- dation of constitutional principles, so topics which appear to belong manifestly to the law of 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, from a legal point of view, ministerial responsibility is simply one application of the doctrine which pervades English law,^ 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 ^ See Mommsen, Romische Staatsrecht, p. 672, for the existence of what seems to have been a similar principle in early Roman law. MARTIAL LA IV 283 exemption from the liabilities of ordinary citizens or Chapter from the jurisdiction of the ordinary Courts, and, 1 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 wbich runs through the whole law of torts. ^ " Martial law," ^ in the proper sense of that Martial term, in which it means the suspension of ordinary 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,"* under which the authority ordinarily vested in the civil power for the maintenance of 1 See Hearn, Government of England (2Ed ed.), chap, iv; ; and compare Gardiner, History, x. pp. 144, 145. 2 See Forsyth, Opinions, pp. 188-216, 481-563 ; Stephen, History of Criminal Law, i. pp. 201-216 ; Rex v. Pinney, 5 C. & P. 254 ; 3 St. Tr. (n. s.) 11 ; Beg. v. Vincent, 9 C. & P. 91 ; 3 St. Tr. (n. s.) 1037 ; Reg. V. NeaU, 9 C. & P. 431. 3 This statement has no reference to the law of any other country than England, even though such country may form part of the British Empire. With regard to England in time of peace the statement is certainly true. As to how far, if at all, it ought to be qualified with regard to a state of war, see Appendix, Note X., Martial Law in England during Time of War or Insurrection. 4 See Loi sur Petal de siige, 9 Aout 1849, Hoger et Sorel, Codes et Lois, p. 436 ; Loi Z Avril 1878, art. 1, and generally Duguit, Manuel de Droit Constitutionnel, s. 76, pp. 510-513, 926. See p. 288, post. 284 THE RULE OF LA W Part II. order and police passes entirely to the army {autorite militaire). 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, 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 tiai law '' the common law right of the Crown and its servants by°^gnsh *o repel force by force in the case of invasion, insur- '''"'• 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. 1 Compare Miller v. Knox, 6 Scott 1. See statement of Commis- sioners including Bowen, L.J., and R. B. Haldane, Q.C.for Inquiring into the Disturbances at Featherstone in 1893 [C. 7234], and see Appendix, Note VI., Duty of Soldiers called upon to disperse Unlawful Assembly. MARTIAL LA W 285 It is also clear that a soldier has, as such, no Chapter exemption 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, each and all of them, authorised to employ so much force, even to the taking of life, as may be necessary 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 eech, 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 propositions should study the leading case of Rex v. Pinney^ in which was fully considered the duty of the Mayor of Bristol in reference to the Reform Eiots 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 I 5 C. & P. 254 ; 3 St. Tr. (n. s.) 11. 286 THE RULE OF LA W Part II. 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.^ That stEltute 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 read- ing the Eiot Act) ordering them to disperse, he may command the troops to fire upon the rioters or charge them sword in hand.^ 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 Riot 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 iio 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 loyal 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 1 1 Geo. I. Stat. 2, c. 5. 2 See Stepheu, History of Criminal Law, i. pp. 202-205. MARTIAL LA W 287 determined by a judge and jury,^ and that the estimate Chapter of what constitutes necessiary force formed by a judge L 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. Martial law is, however, more often used as the in what name for the government of a country or a district tS'uaw'"^ by military tribunals, which more or less supersede ""sedX^ the jurisdiction of the Courts. The proclamation of ^"s"^'' martial law in this sense of the term is, as has been already pointed out,^ nearly equivalent to the state of things which in France and many other foreign countries is known as the declaration of a " state of siege," 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 : — 1 This statement does not contradict anything decided by Ex parte D. F. Marais [1902], A. C. 109, nor is it inconsistent with the language used in the judgment of the Privy Council, if that language be strictly construed, as it ought to be, in accordance with the important principles that, first, " a case is only an authority for what it actually decides " {Quinn v. Leathern [1901], A. C. 506, judgment of Halsbury, L. C), and, secondly "every judgment must be read as applicable to the particular " facts proved, or assumed to be proved, since the generality of the " expressions which may be found there are not intended to be exposi- " tions of the whole law, but governed and qualified by the particular " facts of the case in which such expressions are to be found " (ibid.). 2 See p. 283, ante. 288 THE RULE OF LA W Part II. " 7. Aussitdt I'etat de siege declare, les pouvoirs French " dout VautOTite civUe etait revetue pour le maintien itaterf*" "^^ I'ordre et de la police passent tout entiers h siege. "■I'autorite militaire. — L'autorit^ civile continue "nSanmoins 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 Repuhlique, contre la constitution, " contre Vordre et la paix puhlique, 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° U eloigner les repris de justice et "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 deprocdder d leur " recherche et a leur enlevement ; — 4° D'interdire les "publications et les reunions qu'elle juge de nature " a exciter ou a entretenir le disordre." ^ 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 whatever 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 ' Roger et Sorel, Codes et Lois, pp. 43B, 437. MARTIAL LA W 289 this may be, it is clear that in France, even under the Chaptei present Republican government, the suspension of law ^^^' involved in the proclamation 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 Eepublic than it was under the monarchy of Louis Philippe.^ Now, this kind of martial law is in England 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 punish- ment for riot or rebellion. During the efi'ort to restore peace, rebels may be lawfully killed just as enemies may be lawfully slaughtered in battle, or prisoners may be shot to prevent their escape, but ' 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 vio- lence, than Wolfe Tones Case.^ 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 sen- tenced to be hanged. He held, however, no commis- sion as an English ofiicer, his only commission being 1 See Geoffroy's Case, 24 Journal du Palais, p. 1218, cited by Forsyth, Opinions, p. 483. Conf., however, for statement of limits imposed by French law on action of military authorities during state of siege, Duguit, Manuel de Droit Gonstitutionnel, pp. 512, 513. 2 27 St. Tr. 614. TJ ago THE RULE OF LA W Part II. 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 made up of 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 the protection of Wolfe Tone by the Irish Bench. CHAPTER IX THE AtlMY^ The English army may for the purposes of this Chapter treatise be treated as consisting of the Standing Army '_ or, in technical language, the Regular Forces ^ and of "^^ ■^"'y* the Territorial Force/ which, like the Militia,* is a 1 ,See Stephen,^ (7owime?iteries, ii. book iv. chap, viii.; Gneist, Das Englische Verwaltwngsfreclit, ii. 952-966 ; Manual of Milita/ry Law. As to Standing Army, 1 "Will. & Mary, c. 5 ; see the Army Discipline and Regulation Act, 1879,r 42 & 43 Vict. c. 33 ; the Army Act, i.e. the Army Act, 1881, 44 & 45 Vict. c. 58, with the amend- ments made up to 1907. 2 " The expressions ' regular forces ' and ' His Majesty's regular forces ' mean officers and soldiers who by their commission, terms of enlistment, or otherwise, are liable to render continuously for a term military service to His Majesty in any part of the world, including, subject to the modifications in thi^ Act mentioned, the Eoyal Marines and His Majesty's Indian forces and the Royal Malta Artillery, and subject to this qualification, that when the reserve forces are subject to military law such forces become during the period of their being so subject part of the regular forces" (Army Act, s. 190 (8)). * Seethe Territorial and Reserve Forces Act,' 1907 (7 Edw. VII. c. 9), especially s. 6, s. 1, sub-s. (6), and the Army Act. * The Militia.— The Territorial and Reserve Forces Act, 1907, . does not repeal the various Militia, Acts. Until these Acts are repealed the statutory power of raising; the militia, either regular or local, and of forming thereof regiments and porps will continue to exist. (For the law regulating the militia see 13 Car. II. stat. 1. c. 6 ; 14 Car. II. c. 3 ; 15 Car. II. c. 4 ; the Militia Act, 1802, 42 Geo. m. c. 90 ; Militia Act, 1882, 45 & 46 Vict. c. 49 ; and Regula- tion of the Forces Act, 1881, 44 & 45 Vict, c 57.) The militia as long as it exists is in theory a local force levied by conscription, but 291 292 THE RULE OF LA W Part II. territorial army for the defence of the United Kingdom. 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, the terri- torial force of its day, and comparatively 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, an anomaly. the power of raising it by ballot has been for a considerable time suspended, and the militia has been in fact recruited by voluntary enlistment. Embodiment converts the militia into a regular army, but an army which cannot be called upon to serve abroad. Embodi- ment can lawfully take place only in case "of imminent national danger or of great emergency," the occasion being first communicated to Parliament if sitting, or if not sitting, proclaimed by Order in Council (Militia Act, 1882, s. 18 ; 2 Steph. Comm. (14th ed.) p. 469). The maintenance of discipline among the members of the militia when embodied depends on the passing of the Array (Annual) Act, or in popular language, on the continuance of the Mutiny Act (see p. 305, lost). The position of the militia, however, is affected by the Territorial and Eeserve Forces Act, 1907, in two ways : — (1) All the units of the general (or regular) militia may, and will, it is said, in a short time have either been transferred to the Army Eeserve (under s. 34) or have been disbanded. (2) The personnel of the regular militia will shortly, it is said, cease to exist as such. The actual position of the militia, however, until the Acts on which its existence depends have been repealed, is worth noting, as it is conceivable that Parliament may think it worth while to keep alive the historical right of the Crown t.o raise the militia. THE ARMY 293 Hence the standing army has often been treated by Chapter writers of authority as a sort of exceptional or sub- ^^' ordinate 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 territorial force is a body of secondary importance. As to the Standing Army. — A permanent army of standing paid soldiers, whose main duty is one of absolute nHxist- obedience to commands, appears at first sight to be oSea wUh an institution inconsistent with that rule of law or p*"^!'*- , . , , . . mentary submission to the civil authorities, and especially to govem- the judges, which is essential to popular or Parlia- ^Tua/ mentary government ; and in truth the existence of Aots.°^ 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.^ The belief, indeed, of our statesmen down to a time considerably later than the Eevolution of 1689 was that a standing army must be fatal to English freedom, yet very soon after the Eevolution it became apparent that the existence of a body of paid soldiers was necessary to the safety of ^ In the seventeenth century Parliament apparently meant to rely for the defence of England upon this national army raised from the counties and placed under the guidance of country gentlemen. See 14 Car. II. c. 3. 2 See, e.g. Macaulay, History, iii. pp. 42-47. " Throughout the " period [of the Civil War and the Interregnum] the military authorities " maintained with great strictness their exclusive jurisdiction over " offences committed both by officers and soldiers. More than once " conflicts took place between the civil magistrates and the commanders "of the army over this question." — -Firth, Cromwell's Army, p. 310, Mr. Firth gives several examples (pp. 310-312) of the assertion or attempted assertion of the authority of the civil power even during a period of military predominance. 294 1'HE RULE OF LA 1 Part II. the nation. Englishmen, therefore, at the end of the seventeenth and the beginning of the eighteenth centuries, found themselves placed in this dilemma. With a standing army the country could not, they feared, escape from despotism ; without a standing army the country could not, they were sure, avert invasion ; the maintenance of national liberty appeared to involve the sacrifice of national independence. Yet English statesmanship found almost by accident a pra,ctical escape from this tjieoretical 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 vhat is called the practical good sense, the political instinct, or the statesmanlike tact of Englishmen, we ought to be on our guard against two errors. We ought not, on the one hand, to fancy that Eng- lish statesnien 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 en- joyed 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 pre- vailed in other lands. The statesmen of the Revolu- tion succeeded in dealing with difficult problems, not THE ARMY 295 because they struck out new and brilliant ideas, or chapter 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 difl&culties of their time the notions which were habitual to the more thoughtful Englishmen of the day. The position of the army, in • fact, was determined by an adherence on the part of the authors of the first Mutiny Act to the funda- mental principle of English law, that a soldier may, like a clergyman, incur special obligations in his official character, but is not thereby exempted from the ordinary liabilities of citizenship. The object and principles of the first Mutiny Act * of 1689 are exactly the same as the object and principles of the Army Act,^ 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 1 1 Will. & Mary, c. 5. 2 Combined with the Army (Annual) Act, passed each year. 296 THE RULE OF LA W Part II. "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." ^ This recital states the precise difficulty which per- plexed the statesmen of 1689. Now let us observe the way in which it has been met. A soldier, whether an officer or a private, in a stand- ing army, or (to use the wider expression of modem Acts) "a person subject to military law," ^ stands in a two-fold relation : the one is his relation towards his fellow-citizens outside the army ; the other is his relation towards the members of 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. 1 See Clode, Military Forces of the Crown, i. p. 499. Compare 47 Vict c. 8. The variations in the modern Acts, though slight, are instructive. 2 Part v. of the Army Act points out who under English law are " persons subject to military law," that is to say, who are liable to be tried and punished by Court-martial for military, and in some circum- stances for civil, offences under the provisions of the Act. For our present purpose such persons (speaking broadly at any rate) appear to come within three descriptions : — first, persons belonging to the regular forces, or, in popular language, the standing army (see Army Act, ss. 175 (1), 190 (8)); secondly, persons belonging to the territorial force, in certain circumstances, viz. when they are being trained, when acting with any regular forces, when embodied, and when called out for actual military service for purposes of defence (Army Act, ss. 176, 190 (6) (a)); thirdly, persons not belonging to the regular forces or to the auxiliary forces who are either emploj'ed by, or followers of, the army on active service beyond the seas (ibid. s. 176 (9) (10)). The regular forces include the Royal Marines when on shore and the reserve forces when called out. See Army Act, sees. 175, 176 ; conf. Marks v. Frogley [1898], 1 Q. B. (C. A.) 888. THE ARMY 297 His position in each respect is under English law Chapter governed by definite principles. L A soldier's position as a citizen. — The fixed SoUier'a doctrine of English law is that a soldier, though a dtSenT ^ 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."^ 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. A soldier is subject to the same criminal liability as criminal a civilian.^ He may when in the British dominions be put on trial before any competent " civil " (i.e. non-military) Court for any offence for which he would be 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.^ 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 1 1 Will. & Mary, c. 5, s. 6 ; see Clode, Military Forces of the Grown, i. p. 500. 2 Compare Army Act, sees. 41, 144, 162. ^ Compare, however, the Jurisdiction in Homicide Act, 1862, 25 & 26 Vict. c. 65, and Clode, Military Forces of the Crown, i. pp. 206, 207. 298 THE RULE OF LAW Civil liability. Part II. save him from standing in the dock on the charge of murder or theft. A soldier cannot escape from civil liabilities, as, 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.^ No one who has entered into the spirit of con- tinental 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 ; ^ but an acquittal or conviction by a Court-martial, say for manslaughter or robbery, is no plea to an indict- ment for the same offence at the Assizes.* When a soldier is put on trial on a charge of crime, no defence obcdieuce to supcrior orders is not of itself a defence.* to cliarge ^ See Army Act, s. 144. Compare Clode, Military Forces of the Crown, i. pp. 207, 208, and Thurston v. Mills, 16 East, 254. 2 Army Act, s. 162, sub-ss. 1-6. ^ Ibid. Contrast 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 com- mitted 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. * Stephen, History of Criminal Law, i. pp. 204-206, and compare Clode, Military Forces of the Crovm, 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. Order of superiors of crime. Tit E Army 299 This is a inatter wHich requires explanation. Chapter 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 hona fide obedience to the orders (say) of the commander-in-chief Hence the position of a soldier is in theory and may be in 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 " unlesa they had officer.s 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." — Russell, Grimes and Misdemeanors (4th ed.), i. p. 823, on the authority oiRex 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. 300 THE RULE OF LA W Partn 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 who 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 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 : — THE ARMY 301 " I do not think, however, that the question how Chapter 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 captain, or in deserting to the enemy on the field of battle on the order of his immediate superior. I think it is not less monstrous to suppose that superior orders would justify a soldier in the massacre of unofi"ending 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 302 THE RULE OF LA W Part u. " 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." * 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.^ 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 whiqh a man of ordinary sense must have known to be a crime.* Soldier's A soldier' s positiou as a metnher of the army. — position as member of i ^ i ' tt-. army. , Stephen, flisi. Grimnal Law of England, i. pp. 205, 206. Com- pare language of Willea, J., in Keighly v. Bell, 4 P. & F. 763. See also opinion of Lord Bowen, cited in Appendix, Note VI., Duty of Soldiers called upon to disperse an Unlawful Assembly. 2 As also by the right of the Attorney-General as representing the Crown to enter a nolle prosequi. See Stephen, History of driminal Law, i. p. 496, and Aiclabd[A, Pleading in Criminal Cases (22nd ed.), p. 125. 3 Buron v. Benman, 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 r. The Queen, 6 B. & S. 257, 295, per Curiam. THE ARMY 303 A citizen on entering the army becomes liable to Chapter special duties as being " a person subject to military L 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 1;he army. Hence flow the following (among other) conse- quences. The civil Courts determine ^ whether a given person is or is not " a person subject to military law." ^ Enlistment, which co'nstitutes the .contract' by , ' 1 See Wolfe Tone's Casei 27 St. Tr. 614 ; Douglass Case, 3 Q. B. 825 ; Fry w. Ogle, citeA MariuM of Military Law, chap. vii. s. 41. 2 SeeArmir Act,Gr:\\a&& his topic in this very general language : ^ " Administrative law " determines (l) the constitution and the relations of " those organs of society which are charged with the 1 " On U definit orddnairement I'ensenible des rigles qui r^gissent les " rapports de I' administration ou de I'autorit^ administrative avec les " citoyens." — -Aucoc, Droit Administratif, i. s. 6. ^ " Noils prif^erions dire, pour notre part : Le droit administratif "ddermine: 1°- la constitution et les rapports des organes de la societe " charg& du soin des int&ets collectifs qui font I'objet de I' administration " publique, c'est-d-dire des differentes personnifications de la societe, dont " I'Elat est la plus importante ; S"' les rapports des autorites administra- " lives avec les citoyens." — Ibid. DROIT ADMJNJSTRATIF 329 " care of those social interests [interets collectifs) which Chapte "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 wanting in precision, and their vagueness is not without significance. As far, how- ever, as an Englishman may venture to deduce the meaning of droit administratif from foreign treatises, it may, for our present purpose, be best described as that portion of French law which determines, (i.) the position and liabilities of all State officials, (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. An English student will never, it should particu- larly be noticed, understand this branch of French law unless he keeps his eye firmly fixed upon its historical aspect, and carefully notes the changes, almost amounting to the transformation, which droit administratif hsis, undergone between 1800 and 1908, and above all during the last thirty or forty years. The fundamental ideas which underlie this department of French law are, as he will discover, permanent, but they have at various times been developed in difi"erent degrees and in difierent directions. Hence any attempt to compare the administrative law of France with our English rule of law will be deceptive unless we note carefully what are the stages in the law of each country which we bring into comparison. If, for instance, we compare the law of England and THE RULE OF LA W Part II. the law of France as they stand in 1908, we are likely to fancy (in my judgment erroneously) that, e.g. in regard to the position or privileges of the State and its servants when dealing with private citizens, there may be little essential difference between the laws of the two countries. It is only when we examine the administrative law of France at some earlier date, say between 1800 and 1815, or between the accession to the throne of Louis Philippe (1830) and the fall of the Second Empire (1870), that we can rightly appreciate the essential opposition between our existing English rule of law and the fundamental ideas which lie at the basis of adminis- trative law not only in France but in any country where this scheme of State or official law has obtained recognition. iaide^*°" The modern administrative law of France has veiopment. grown up, or at any rate taken its existing form, during the nineteenth century ; it is the outcome of more than a hundred years of revolutionary and con- stitutional conflict.-' Its development may conveni- ently be divided into three periods, marked by the names of the Napoleonic Empire and the Eestoration (1800-1830), the Orleanist Monarchy and the Second Empire (1830-1870), the Third Eepublic (1870- 1908). Napoleon pir^st Period. — Napoleon and the Eestoration, and tne •*■ ' Restora- 1800-1830. lu the opinion of Frenchmen true droit administratif Q-^es, its origin to the consular constitu- tion of the Year VIII. (1800) created by Bonaparte 1 For the history of droit administratif see especially Laferriere, i. (2nd ed.), bk. i. c. i.-iv. pp. 137-301. The Second Republic (1848- 1851) produced little permanent effect on French administrative law. I have included it in the second of our three periods. tion. DROIT ADMINISTRATIF 331 after the cowp d'etat of the 18th of Brumaire. Chapter But legists,^ no less than historians, admit that the L ideas on which droit administratif rests, may be rightly traced back, as they have been by Tocque- ville,^ to the ancien regime ; every feature of Bona- parte's governmental fabric recalls some characteristic of the ancient monarchy ; his Conseil d'Etat revives the Conseil du Roi, his Prefects are copies of the royal Intendants. Yet in this instance public opinion has come to a right conclusion. It was from Bona- parte that modern droit administratif received its form. If he was the restorer of the ancien regime, he was also the preserver of the Eevolution. What- ever he borrowed from the traditions of old France he adapted to the changed conditions of the new France of 1800. At his touch ancient ideas received a new character and a new life. He fused together what was strongest in the despotic traditions of the 1 "Aussihaut que Von remonte dans notre histoire, depuis que des " juridiclions regulieres ont ete instituees, on ne trouve pas d'epoque oil les " corps judiciaires charges d'appliquer les lois civiles et crvminelles aient " ete en mime tewps appeles a statuer sur les difficultes en matihe d'adininis- " tration puhlique." — Laferriere, i. p. 139, and compare ibid. p. 640. 2 " Ce qui apparait . . . quand on etudie les paperasses administra- " fives, c'est V intervention continuelle du pouvoir administratif dans la " sphere jvdiciaire. Les legistes administratifs nous disent sans cesse, " que le plus grand vice du gouvernement interieur de V ancien regime etait " que les juges administraient. On pourrait se plaindre avec aulant de •■' raison de ce que les administrateurs jugeaient. La seule difference est " que nous avons corrige Vancien regime sur le premier point, et I'avons " imite' sur le second. J'avais eu jusqu'a present la simplicite de croire " que ce que nous appelons la justice administrative etait une creation de •' Napoleon. C'est du pur ancien regime conserve ; et le principe que " lors mhne qu'il s'agit de contrat, c'est-drdire d'un engagernent formel et " re'gulikrement pris entre un particulier et I'JEtat, dest A I' Mat a juger la " cause, cet axiome, inconnu chez la plupart des nations modernes, etait " tenu pour aussi sacrepar un intendant de Vancien regime, qii'il pourrait " rStre de nos jours par le personnage qui ressemble le plus a celui-la, je " veux dire unprefet." — Tocqiieville, (Euvres GompUtes, vi. pp. 221, 222. 332 THE RULE OF LA W Partn. monarchy with what was strongest in the equally despotic creed of Jacobinism, Nowhere is this fusion more clearly visible than in the methods by which Bonaparte's legislation and policy gave full expres- sion to the ideas or conceptions of royal prerogative underlying the administrative practice of the ancien regime, and emphasised the jealousy felt in 1800 by every Frenchman of the least interference by the law Courts with the free action of the government. This jealousy itself, though theoretically justified by revolutionary dogma, was inherited by the Revolution from the statecraft of the monarchy. Droit Any one who considers with care the nature of tratif—iis the dvoit administratif of France, or the topics to prkidp?e™.^ which it applies, will soon discover that it rests, and always has rested, at bottom on two leading ideas alien to the conceptions of modern Englishmen. Privileges The first of thcsc idcas is that the government, state. and every servant of the government, possesses, as representative of the nation, a whole body of special rights, privileges, or prerogatives as against private citizens, and that the extent of these rights, privileges, 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 as that on which he stands in dealings with his neighbour.^ 1 " Un particulier qui n'execute pas un marche doit a I'entrepreneur " une indemnite proportionne'e au gain dont il le prive; le Code civil I'etahlit " ainsi. L' administration qui rompt un tel marche ne doit d'indemnite " qu'en raison de la perte eprouve'e. G'est la rigle de la jurisprudence " administrative. A mains que le droit ne s'y oppose, elle tient que VAat, DROIT ADMINISTRA TIF 333 The second of these general ideas is the necessity chapter of maintaining the so-called " separation of powers " ^^^" (separation des pouvoirs), or, in other words, of Separation ^ -tr IT J' > ' of powers., preventing the government, the legislature, and the Courts from encroaching upon one another's province. The expression, however, separation of powers, as applied by Frenchmen to the relations of the executive and the Courts, with which alone we are here concerned, may easily mislead. It means, in the mouth of a French statesman or lawyer, something different from what we mean in England by the "indepen- dence 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.^ 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, " c'est-a-dire la collection de tons Us citoyens, et le tresor public, c'est-a^dire '^ I' ensemble de tons les contribuables, doivent passer avant le citoyen ou le " contribuable isoles, defendant un intent individuel." — Vivien, Etudes Administrati'ves, i. pp. 141-142. This was the language of a French lawyer of high authority writing in 1853. The particular doctrine which it contains is now repudiated by French lawyers. Vivien's teaching, however, even though it be no longer upheld, illustrates the general view taken in France of the relation between the individual and the state. That Vivien's application of this view is now re- pudiated, illustrates the change which French droit administratif and the opinion of Frenchmen has undergone during the last fifty-five years. 1 See Aucoc, Droit Administratif, sf. 20, 24. 334 THE RULE OF LA W Part II. Book XI. c. 6, and is in some sort the offspring of a double misconception ; Montesquieu misunder- stood on this point the principles and practice of the English constitution, and his doctrine was in turn, if not misunderstood, exaggerated, and misapplied by the French statesmen of the Eevolution. Their judgment was biassed, at once by knowledge of the incon- veniences and indeed the gross evils which had resulted from the interference of the French " parlia- ments " in matters of State and by the belief that these Courts would offer opposition, as they had done before, to fundamental and urgently needed reforms. Nor were the leaders of French opinion uninfluenced by the traditional desire, felt as strongly by despotic democrats as by despotic kings, to increase the power of the central government by curbing the authority of the law Courts. The investigation, however, into the varying fate of a dogma which has undergone a different development on each side of 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 folio wedFrench examples, by this part of Montesquieu's teaching, and the extent to which it still underlies the political and legal institutions of the French Eepublic. Character- To the Combination of these two general ideas may be traced four distmguishing characteristics of French administrative law. . (1) Rights The first of these characteristics is, as the reader of state . , determmed Will at oucc pcrccive, that the relation of the govern- ruies. ment and its ofiicials towards private citizens must be regulated by a body of rules which are in reality DROIT ADMIN IS TRA TIF 335 laws, but which may differ considerably from the laws Chapter which govern the relation of one private person to ^ " another. This distinction between ordinary law and administrative law is one which since 1800 has been fully recognised in France, and forms an essential part of French public law, as it must form a part of the public law of any country where administrative law in the true sense exists.^ The second of these characteristics is that the (2) Law ordinary judicial tribunals which determine ordinary without questions, whether they be civil or criminal, between in^atters" man and man, must, speaking generally, have no con- t^rstate^ cern whatever with matters at issue between a private ^^^ ^li™'"- '- . _ istrative person and the State, i.e. with questions of adminis- litigation . , , , , . . r. to be deter- trative law, but that such questions, m so lar as mined by they form at all matter of litigation (contentieux traUvT administratif), must be determined by administrative ^°'"''^- Courts in some way connected with the government or the administration. No part of revolutionary policy or sentiment was more heartily accepted by Napoleon than the con- viction that the judges must never be allowed to hamper the action of the government. He gave effect to this conviction in two different ways. In the first place, he constituted, or reconstituted, two classes of Courts. The one class consisted of "judicial" or,, as we should say, "common law" Courts. They performed, speaking generally, but two functions. The one function was the decision of disputes in strictness between private persons ; this 1 Of course it is possible that rules of administrative law may exist in a country, e.g. in Belgium, where these rules are enforced only by the ordinary Courts. 336 THE RULE OF LA W Part II. duty was discharged by such Courts as the Courts of First Instance and the Courts of Appeal. The other function was the trial of all criminal cases ; this duty was discharged by such Courts as the Correctional Courts [Trihunaux Coi'rectionnels) or the Courts of A.%s,ize^ {Cours d' Assises). At the head of all these judicial tribunals was placed, and still stands, the Court of Cassation {Cour de Cassation), whereof it is the duty to correct the errors in law of the inferior judicial Courts.^ The other class of so-called Courts were and are the administrative Courts, such as the Courts of the Prefects (Conseil de Prefecture) ' and the Council of State. The function of these bodies, in so far as they acted judicially (for they fulfilled many duties that were not judicial), was to determine questions of administrative law. The two kinds of Courts stood opposed to one another. The judicial Courts had, speaking generally,* no concern with questions of administrative law, or, in other words, with cases in which the interest of the State or its servants was at issue ; to entrust any judicial Court with the decision of any administrative suit would have been deemed in 1800, as indeed it 1 The Courts of Assize are the only Courts in France where there is trial by jury. 2 The Cow de Cassation is not in strictness a Court of Appeal. 8 With the Courts, or Councils, of the Prefects an English student need hardly concern himself. * There existed even under Napoleon exceptional instances, and their number has been increased, in which, mainly from motives of immediate convenience, legislation has given to judicial Courts the decision of matters which from their nature should fall within the sphere of the administrative tribunals, just as legislation has exception- ally given to administrative tribunals matters which would naturally fall within the jurisdiction of the judicial Courts. These exceptional instances cannot be brought within any one clear principle, and may for our purpose be dismissed from consideration. DROIT ADMINISTRATIF 337 is still deemed by most Frenchmen, a violation of the Chapter doctrine of the separation of powers, and would have '^"" allowed the interference by mere judges with cases in which the interest of the State or its servants was at issue. The administrative Courts, on the other hand, had, speaking generally, no direct concern with matters which fell within the jurisdiction of the judicial tribunals, but when we come to examine the nature of the Council of State we shall find that this restriction on the authority of a body which in Napoleon's time formed part of the government itself was far less real than the strict limitations imposed on the sphere of action conceded to the common law Courts. Napoleon, in the second place, displayed towards the ordinary j udges the sentiment of contemptuous suspicion embodied in revolutionary legislation. The law of 16-24 August 1790^ is one among a score of examples which betray the true spirit of the Kevolution. The judicial tribunals are thereby for- bidden to interfere in anyway whatever with any acts of legislation. Judicial functions, it is laid down, must remain separate from administrative functions. The judges must not, under penalty of forfeiture, disturb or in any way interfere with the operations of administrative bodies, or summon before them admin- istrative officials on account of anything done by reason of their administrative duties. Napoleon had imbibed to the utmost the spirit of these enactments. He held, as even at a much later date did all persons connected with the executive government, that "the " judges are the enemies of the servants of the State, 1 Tit. ii. arts. 11-13. 338 THE RULE OF LA W ^^-^ II - " and that there is always reason to fear their attempts " to compromise the public interests by their male- " volent, or at best rash, interference in the usual "course of government business."^ This fear was during the Empire, at any rate, assuredly groundless. Administrative officials met with no resistance from the Courts. After the Kevolution the judges exhibited boundless humility and servile submission, they trembled before the power and obeyed the orders, often insolent enough, of the government.^ It is difficult, however, to see how in the days of Napoleon the ordinary judges could, whatever their courage or bold- ness, have interfered with the conduct of the govern- ment or its agents. They are even now, as a rule, without jurisdiction in matters which concern the State. They have no right to determine, for instance, the meaning and legal effect in case it be seriously disputed of official documents, as, for example, of a letter addressed by a Minister of State to a sub- ordinate, or by a general to a person under his command. They are even now in certain cases with- out jurisdiction as to questions arising between a private person and a department of the government. In Napoleon's time ^ they could not, without the con- 1 '■^ On a subi I'injluence de ce prejuge dominant chez les gouvemants, " dans I' administration et meme chez la plupart des jurisconsulies, que les " agents judiciaires sont les ennemis nes des agents administratifs, qu'il y " a toujours a crainAre lemurs tentatives de compromettre la chose publique " par leur intervention — malveillante ou tout au mains inconsideree — datis " la marche normale de I' administration." — J6ze (ed. 1904), p. 139. ^ " Les agents administratifs, dans leur arbitraire veritablement inom, " ne recontrkrent aucune resistance chez les agents judiciaires. Ceux-ci, " ap-ks la Revolution, ont montre une hv/milit^ sans limite et une soumis- " sion servile. Cest en tremhlant qu'ils ont toujours oh& aux ordres " parfois insolents du Gouvernement." — J^ze, p. 128. ^ See Constitution of Year VIII., art. 75, p. 343, post. DROIT ADMINISTRA TIF 339 sent of the government, have entertained criminal or Chapter civil proceedings against an official for a wrong done '_ or a crime committed by such official in respect of private individuals when acting in discharge of his official duties. The incompetence, however, of the judicial Courts did not mean, even under Napoleon, that a person injured by an agent of the government was without a remedy. He might bring his grievance before, and obtain redress from, the administrative tribunals, i.e. in substance the Council of State, or proceedings might, where a crime or a wrong was complained of, be, with the permission of the govern- ment, taken before the ordinary Courts. The co-existence of judicial Courts and of adminis- (3)Con- trative Courts results of necessity in raising questions jurismo- of jurisdiction. A, for example, in some judicial *'™" Court claims damages against X for a breach of contract, or it may be for what we should term an assault or false imprisonment. X's defence in sub- stance is that he acted merely as a servant of the State, and that the case raises a point of adminis- trative law determinable only by an administrative tribunal, or, speaking broadly, by the Council of State. The objection, in short, is that the judicial Court has no jurisdiction. How is this dispute to be decided? The natural idea of an Englishman is that the conflict must be determined by the judicial Courts, i.e. 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 separation of powers, since it must, if systematically 340 THE RULE OF LAW Part II. carried out, enable the Courts to encroach on the province of the administration. It contradicts the principle still recognised 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 ;^ nor can an Englishman, who recollects the cases on general warrants, deny that our judges have often inter- fered with the action of the administration. The worth of Montesquieu's doctrine is open to ques- tion, 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. Under the legislation of Napoleon the right to determine such questions of jurisdiction was in theory reserved to the head of the State, but was in effect given to the Council of State, that is, to the highest of administrative Courts. Its authority in this matter was, as it still is, preserved in two different ways. If a case before an ordinary or judicial Court clearly raised a question of administrative law, the Court was bound to see that the inquiry was referred to the Council of State for decision. Suppose, how- ever, the Court exceeded, or the government thought that it exceeded, its jurisdiction and trenched upon the authority of the administrative Court, a prefect, who, be it remarked, is a mere government official, could raise a conflict, that is to say, could, by taking the proper steps, insist upon the question of jurisdiction being referred for decision to the Council of State. We can hardly exaggerate the extent of ^ See Aucoo, Droit Administratif, s. 24. DROIT ADMINISTRATIF 341 tlie authority thus conferred upon the Council. It Chapter had the right to fix the limits of its own power, ^^^ it could in effect take out of the hands of a judicial Court a case of which the Court was already seised.^ The fourth and most despotic characteristic of (4) Protec- droit administratif lies in its tendency to protect ^ officiaL from the supervision or control of the ordinary law Courts any servant of the State who is guilty of an act, however illegal, whilst acting in honafide obedi- ence to the orders of his superiors and, as far as intention goes, in the mere discharge of his ofl&cial duties. Such an official enjoyed from 1800 till 1872 a triple protection {garantie des fonctionnaires). In the first place, he could not be made respon- Act of sible before any Court, whether judicial or adminis- trative, for the performance of any act of State {acte de gouvernemeni). The law of France has always recognised an indefinite class of acts, i.e. acts of State, which, as they concern matters of high policy or of public security, or touch upon foreign policy or the execu- tion of treaties, or concern dealings with foreigners, must be left to the uncontrolled discretion of the 1 Up to 1828 it was possible to raise a conflict {elever un conjUt) in any criminal no less than in any civil case. Nor is it undeserving of notice that, whilst a conflict could be raised in order to prevent a judicial Court from encroaching on the sphere of an administrative Court, there was in Napoleon's time and still is no legal means for raising a conflict with a view to prevent an administrative Court from encroaching on the sphere of a judicial Court. ^ This protection of officials may be displayed in parts of French law {e.g. CodeP^nal, art. 114) which do not technically belong to droit administratif, but it is in reality connected with the whole system of administrative law. 342 * THE RULE OF LAW Part 11. government, and lie quite outside the jurisdiction of any Court whatever. What may be the exact definition of an act of State is even now, it would appear in France, a moot point on which high authorities are not entirely agreed. It is therefore impossible for any one but a French lawyer to determine what are the precise qualities which turn conduct otherwise illegal into an act of State of which no French Court could take cognis- ance. Of recent years the tendency of' French lawyers has certainly been to narrow down the sense of an ambiguous term which lends itself easily to the justification of tyranny. We may feel sure, however, that during the Napoleonic era and for long after- wards any transaction on the part of the government or its servants was deemed to be an act of State which was carried out hona fide with the object of furthering the interest or the security of the country. Obedience In the sccoud placc, the French Penal Code, Art. "to orfl.fii's 114,^ protected, as it still protects, an oflS.cial from the penal consequences of any interference with the personal liberty of fellow citizens when the act com- * " Art. 114. Lorsqu'im fonctionnaire public, un agent ou un prepose "da Gouvernement, aura ordonne ou fait quelque acte arhitraire, et ^' attentatoire soit d la liberie individuelle, soit aux droits civiques d'v/n " ou de plusieurs citoyens, soit d la Charte, il sera condamne A la peine de " la degradation civique. " Si neanmoins il justifie qu'il a agi par ordre de ses supeneurs pour " des objets du ressort de ceux-ci, sur lesquels il leur etait dH obeissance " hierarchique, il sera exempte de la peine, laquelle sera, dans ce cas, " appliquee seulement aux superieurs qui auront donne I'ordre." — Oode Penal, art. 114; and Gargon, Code Penal annate, p. 245. "With, this read Garfon, Code Penal, arts. 34 aad 87, compare Gode d'instruction criminelle, art. 10 ; Duguit, Manuel, pp. 524-527, and generally Duguit, L'^tat, ch. V. s. 10, pp. 615-634. DROIT ADMINISTRATIF 343 plained of is done under the orders of his official chapter superior.^ ^^^- In the third place, under the celebrated Article 75 ^ of the Constitution of the Year VIII., i.e. of 1800, no official could, without the permission of the Council of State, be prosecuted, or otherwise be proceeded against, for any act done in relation to his official duties. The protection given was ample. Article 75 reads indeed as if it applied only to prosecutions, but was construed by the Courts so as to embrace actions for damages.^ Under the Napoleonic Constitution no servant of the State, whether a prefect, a mayor, or a policeman, whose conduct, however unlawful, met with the approval of the government, ran any real risk of incurring punishment or of paying damages for 1 None but a French criminalist can pronounce with anything like certainty on the full effect of Art. 114, but Gargon's comment thereon {GoAe Penal, pp. 245-255) suggests to an English lawyer that an offender who brings himself within the exemption mentioned in the second clause of the Article, though he may be found guilty of the offence charged, cannot be punished for it under Art. 114, or any other Article of the Penal Code, and that Art. 114 protects a very wide class of public servants. (See Gargon, comment under heads D and E, pp. 249-252, and under G, p. 253, and para. 100, p. 254. Eead also Duguit, Manuel, ss. 75-77, especially pp. 504, 527 ; Duguit, VAat, pp. 615-634.) It is difBcult for an Englishman to understand how under the God,t Pinal a prefect, a policeman, or any other servant of the State, acting hoTiafide under the orders of his proper official superior, can be in danger of punishment for crimes such as assault, unlawful imprison- ment, and the like. 2 "ies agents du Gouvernement, autres que les ministres, nepeuvent Stre " powsuivis pour des fails relatifs A leurs fonetions, qu'en vertu d'une " decision du conseil d'etat : en ce cas, la poursuite a lieu devant les " tribunaux ordinaires." — Duguit and Monnier, Les Constitutions de la France (deuxifeme ed.), p. 127. ^ See Jaoquelin, Les Prindpes Dominants du Contentieux Adminis- tralif, p. 127. 344 THE RULE OF LA W Paj^. any act which purported to be done in discharge of his official duties. The effect practically produced by the four charac- teristics of droit administratif, and especially the amount of the protection provided for officials acting ia obedience to the orders of their superiors, depends in the main on the answer to one question : What at a given time is found to be the constitution and the character of the Council of State ? Was it then under Napoleon a law Court administering judicially a particular branch of French law, or was it a department of the executive government? The answer is plain. The Council, as constituted or revived by Bonaparte, was the very centre of his whole governmental fabric. It consisted of the most eminent administrators whom Napoleon could gather round him. The members of the Council were entitled and were bound to give the supreme ruler advice. The Council, or some of the Councillors, took part in affairs of all descriptions. It is hardly an exaggeration to say that, subject to the absolute will of Napoleon, the members of the Council con- stituted the government. They held office at his pleasure. The Councillors dealt with policy, with questions of administration, with questions of adminis- trative law. In 1800 it is probable that adminis- trative suits were not very clearly separated from governmental business. The Council, moreover, even when acting judicially, was more of a Ministry than of a Court, and when the Council, acting as a Court, had given its decision, or tendered its advice, it possessed no means for compelling the executive to give effect to its decisions. As a matter of fact, years DROIT ADMINISTRATIF 345 have sometimes elapsed before the executive of the Chapter day has thought fit to put the judgments of the Council into force, and it was not till 1872 that its decisions acquired by law the character of real judg- ments. It was, moreover, as we have already pointed out, originally the final Conflict-Court. It had a right to determine whether a given case did or did not concern administrative law, and therefore whether it fell within its own jurisdiction or within the juris- diction of the ordinary Courts. Thus the state of things which existed in France at the beginning of the nineteenth century bore some likeness to what would be the condition of affairs in England if there were no, or little, distinction between the Cabinet as part of the Privy Council and the Judicial Committee of the Privy Council, and if the Cabinet, in its character of a Judicial Committee, determined all questions arising between the government on the one side, and private individuals on the other, and determined them with an admitted reference to con- siderations of public interest or of political expediency. Nor was any material change produced by the fall of Napoleon. The restored monarchy eagerly grasped the prerogatives created by the Empire. There was even a sort of return to the unrestrained arbitrariness of the Directory. It was not until 1828, that is, within two years of the expulsion of Charles X., that public opinion enforced some restriction on the methods by which the administrative authorities, i.e. the government, invaded the sphere of the judicial Courts. There are two reasons why it is worth while to study with care the droit administratif of our first 346 THE RULE OF LA IV Part II. period. The administrative law of to-day has been built up on the foundations laid by Napoleon. The Courts created by him still exist; their jurisdiction is still defined in accordance, in the main, with the lines which he laid down. True it is that machinery invented to support a scheme of rational absolutism has in later times been used by legists and reformers for the promotion of legal liberty. But it is a fact never to be forgotten that the administrative law of France originated in ideas which favour the pre- rogatives of the government as the proper defence for the interest of the nation. Monarch- Secoud Period. — The Orleans Monarchy and the ioai period. ^^^^^^ Empire 1830-1870.^ This period deserves the special attention of English students. Napoleonic Imperialism was absolutism ; the Restoration was reaction ; neither admits of satisfactory comparison with any govern- mental system known to modern England. The forty years, on the other hand, which intervened between the expulsion of Charles X. and the fall of Napoleon III., though marked by three violent changes — the Revolution of 1848, the coup d'etat of 1851, the overthrow of the Second Empire in 1870 — form, as a whole, a time of civil order. During these forty years France was, with the exception of not more than six months, governed under the established law of the land. An age of peaceful progress gives an opening for illuminative comparison between the public law of France and the public law 1 Little account need be taken of the Second Republic, 1848-1851. Its legislative reforms in administrative law did not outlive its brief and troubled duration. DROIT ADMINISTRA TIF 347 of England. This remark is particularly applicable Chapter to tlie reign of Louis Philippe. He was, in the eyes •^"" of Englishmen, above all things, a constitutional king.^ His Parliamentary ministries, his House of peers, and his House of deputies, the whole frame- work and the very spirit of his government, seemed to be modelled upon the constitution of England; under his rule the supremacy of the ordinary law of the land, administered by the ordinary law Courts, was, as Englishmen supposed, as securely established in France as in England. They learn with surprise, that during the whole of these forty years few, if any, legislative or Parliamentary reforms^ touched the essential characteristics of droit administratif as established by Napoleon. It remained, as it still does, a separate body of law, dealt with by administrative Courts. With this law the judicial Courts continued to have, as they still have, no concern. The introduction of Parliamentary government took from the Council of State, during the reign of Louis Philippe, many of its political functions. It remained, however, as it does to-day, the great administrative Court. It preserved what it does not now retain,' the right to define the juris- diction of the judicial Courts. Servants of the State 1 His accession to the throne was aided by an obvious, but utterly superficial, analogy between the course of the English Revolution in the seventeenth century and of the great French Revolution in the eighteenth and nineteenth centuries. Louis Philippe, it was supposed, was exactly the man to perform in France the part which William III. had played in England, and close the era of revolution. 2 It was, however, gradually reformed to a great extent by a process of judicial legislation, i.e. by the Council of State acting in the spirit of a law Court. 2 See as to present Conflict-Court, p. 360, ifost. 348 THE RULE OF LAW Part II. remained in possession of every prerogative or privi- lege ensured to them by custom or by Napoleonic legislation. Droit administratif, in short, retained till 1870 all its essential features. That this was so is apparent from two considerations : — ■ TheCoun- Fivst. The Council of State never, during the absolutely period with which we are concerned, became a body!^ thoroughly judicial body. This indeed is a point on which an English critic must speak with some hesitation. He will remember how easily a Frenchman, even though well acquainted with England, might at the present moment misinterpret the working of English in- stitutions, and imagine, for instance, from the relation of the Lord Chancellor to the Ministry, that the Cabinet, of which the Chancellor is always a member, could influence the judgment given in an action entered in the Chancery Division of the High Court, whereas, as every Englishman knows, centuries have passed since the Lord Chancellor, when acting as a judge in Chancery, was in the slightest degree guided by the interest or the wishes of the Cabinet. An English critic will also remember that at the present day the Council of State commands as profound respect as any Court in France, and stands in popular estimation on a level with the Court of Cassation — the highest of judicial tribunals — and further, that the repute of the Council has risen during every year since 1830. Yet, subject to the hesitation which becomes any one who comments on the working of institutions which are not those of his own country, an English lawyer must conclude that between 1830 and 1870 the Council, while acting as an administrative DROIT ADMINISTRATIF 349 ^ tribunal, though tending every year to become. Chapter more and more judicialised, was to a considerable L extent an official or governmental body, the members of which, when acting in the discharge of quasi- judicial functions, were likely to be swayed by ministerial or official sentiment. This assertion does not imply that the Council, consisting of persons of the highest eminence and character, did not aim at doing or did not constantly do justice. What is meant is that the Council's idea of justice was not likely to be exactly the same as that entertained by judicial or common law Courts. Secondly. The legaL protection of officials suffered Nodiminu- T . , ■ tion in pro- no dimmution. tection of No man could be made liable before any Court °^°^^^^- whatever for carrying out an act of State {acte de gouvernement)} And under the rule of Louis Philippe, as under the Second Empire, wide was the extension given, both in theory and in practice, to this indefinite and undefined expression. In 1832 the Duchesse de Berry attempted to raise a civil war in La Vendue. She was arrested. The king dared not let her leave the country. He would not put on trial the niece of his wife. Eepublicans and Legitimists alike wished her to be brought before a law Court. The one class desired that "Caroline Berry" should be treated as an ordinary criminal, the other hoped to turn the Duchess into a popular heroine. The case was debated in Parliament again and again. Petitions demanded that she should either be set at liberty or brought before a jury. The government refused to take 1 See p. 341, ante. 350 THE RULE OF LA W Part II. either course. She was detained in prison until private circumstances deprived her both of credit and of popularity. She was then quietly shipped off to Sicily. The conduct of the government, or in fact of the king, was illegal from beginning to end. The Ministry confessed, through the mouth of Monsieur Thiers, that the law had been violated. A vote of the Chamber of Deputies — not be it noted an act of legislation — supplied, it was held, full justi- fication for a breach of the law.-^ This was the kind of authority ascribed in 1832 by the constitutional Ministers of a constitutional monarch to an act of State. This most elastic of pleas was, it would seem, the excuse or the defence for the dealings of Napoleon III. with the property of the Orleans family ; nor is it easy to believe that even as late as 1880 some of the proceedings against the un- authorised congregations were not examples of the spirit which places an act of State above the law of the land. The Penal Code Article 114,^ protecting from punishment, though not from legal condemnation, an agent of the government who though he committed a crime acted in obedience to the commands of his official superiors, remained, as it still remains, in full force. The celebrated Article 75 of the Constitution of 1 " M. Thiers, dans la seance du 20 juin, avoua hautement tout ce " qu'il y avait eu d'ille'gal dans V arrestation, la detention, la mise en " liberty de la duchesse ; c'etait a la Chambre a decider si Von avait agi " dans I'interet hien entendu du salut public. La Chambre passa a " I'ordre du jour." — Qregoire, Histoire de France, i. p. 364. See also ibid. pp. 292-308, 356-364. ■2 See p. 342, note 1, ante DROIT ADMINISTRATIF 351 the Year YIII.,^ which made it impossible to take chaptei legal proceedings for a crime or a wrong against -^^^ any official without the permission of the Council of State, which surely in this case must have acted in accordance with the government of the day, still stood unrepealed. Public opinion refused to regard the Council as a judicial tribunal, and condemned the protection extended to official wrongdoers. Hear on this point the language of Alexis de Tocqueville : "In the Year VIII. of the French Eepublic 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- ' sell d'Etat ; in which case the prosecution takes ' place before the ordinary tribunals.' This clause ' survived the ' Constitution de I'An VIII.,' 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 concluae ' 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 1 See p. 343, ante. 2 This term was extended by legal decisions so as to cover actions for damages. See Jacquelin, Les Principes Dominants du Gontentieux Administratif, p. 127. 352 THE RULE OF LA W Part II. " 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 ; ^' when I demonstrated to them that the citizen who " has been injured by the order of the sovereign is " 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 Eevolution 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." ^ This classical passage from Tocqueville's Democracy in America was published in 1835, when, at the age of 30, he had obtained a fame which his friends compared to that of Montesquieu. His estimate of droit administratif assuredly had not changed when towards the end of his life he published L'Ancien HSgime et la Revolution, by far the most powerful and the most mature of his works. " We have, it is true," he writes, " expelled the " judicial power from the sphere of government into " which the ancien regime had most unhappily allowed 1 A. de Tocqueville, Democracy in America, i. (translation), p. 101 ; (Euvres OomplHes, i. pp. 174, 175. DROIT ADMINISTRATIF 353 ' its introduction, but at the very same time, as any Chapter ' one can see, the authority of the government has ^^ ' ' gradually been introducing itself into the natural ' sphere of the Courts, and there we have suflfered ' it to remain as if the confusion of powers was not ' as dangerous if it came from the side of the govern- ' ment as if it came from the side of the Courts, or ' even worse. For the intervention of the Courts of ' Justice into the sphere of government only impedes ' the management of business, whilst the intervention ' of government in the administration of justice ' depraves citizens and turns them at the same time ' both into revolutionists and slaves." ^ These are the words of a man of extraordinary genius who well knew French history, who was well acquainted with the France of his day, who had for years sat in Parliament, who at least once had been a member of the Cabinet, and to whom the public life of his own country was as well known as the public life of England to Macaulay. Tocqueville's language may bear marks of an exaggeration, explainable partly by his turn of mind, and partly by the line of thought which made him assiduously study and possibly overrate the closeness of the connection between the weaknesses of modern democracy and the vices of the old monarchy. Be this as it may, he ^ " Nous avons, il est vrai, chasse la justice de la sphire administrative " oil I'ancien regime I'avait laissee s'introduire fort indllment ; mais dans " le mime temps, corrnne on le voit, le gouvernement s'introduisait sans " cesse dans la sphere naturelle de la justice, et nous I'y avons laisse: " comme si la confusion des pouvoirs n'etait pas aussi dangereuse de ce " cSte que de I'autre, et mime pire ; car I'intervention de la justice dans " I' administration ne nuit qu'aux affaires, tandis que I'intervention de " P administration dans la justice deprave les hommes et tend a les rendre " tout a la fois revolutionnaires et serviles." — Tocqueville, L'Ancien Regime et la Revolution, septifeme Edition, p. 81. 2 A 354 THE RULE OF LAW Part II. assuredly expressed the educated opinion of his time. A writer who has admirably brought into view the many merits of the Council of State and the methods by which it has in matters of adminis- trative litigation acquired for itself more and more of a judicial character, acutely notes that till the later part of the nineteenth century the language of everyday life, which is the best expression of popular feeling, applied the terms " courts of justice " or "justice " itself only to the judicial or common law Courts.^ What stronger confirmation can be found of the justice of Tocqueville's judgment for the time at least in which he lived ? Effect of We can now understand the way in which from ministratif 1830 to 1870 the cxistencc of a droit administratif of French" affccted the whole legal position of French public officials, servants, and rendered it quite different from that of English officials. Persons in the employment of the government, who formed, be it observed, a more important part of the community than do the whole body of English civil servants, occupied in France a situation in some respects resembling that of soldiers in England. For the breach of official discipline they were, we may safely assume, readily punishable in one form or another. But if like English soldiers they were subject to official discipline, they enjoyed what even soldiers in England do not possess, a very large amount of protection against proceedings before the judicial Courts for wrongs done to private citizens. The position, for instance, of say a prefect or a policeman, who in the over-zealous discharge of his ^ J^ze, p. 138, note 1. DROIT ADMINISTRATIF 355 duties had broken the law by committing an assault Chapter or a trespass, was practically unassailable. He might ^^^' plead that the wrong done was an act of State. If this defence would not avail him he might shelter himself behind Article 114 of the Penal Code, and thus escape not indeed an adverse verdict but the possibility of punishment. But after all, if the Ministry approved of his conduct, he had no need for legal defences. He could not, without the assent of the Council of State, be called upon to answer for his conduct before any Court of law. Article T'S was the palladium of official privilege or irresponsi- bility. Nor let any one think that this arm of defence had grown rusty with time and could not in practice be used. Between 1852 and 1864 there were 264 applications for authorisations under Article 75 to take proceedings against officials. Only 34 were granted, or, in other words, 230 were refused.^ The manifest injustice of the celebrated Article had been long felt. Even in 1815 Napoleon had promised its modification. Third Period.— Va.^ Third Republic— 1870-1908. Within two years from the fall of the Second Empire public opinion insisted upon three drastic reforms in the administrative or official law of France. On the 19th of September 1870 Article 75 was Repeal of , 1 Art. 75. repealed. It had survived the Empire, the Restoration, the Orleans Monarchy, the Republic of 1848, and the Second Empire. The one thing which astonishes an 1 See Jacquelin, Let Principes Dominants du Gontentieux Adminis- tratif, p. 364. It is worth notice that the principle of Article 75 was, at any rate till lately, recognised in more than one State of the German Empire. 356 THE RULE OF LA W Part II. English, critic even more than the length of time during which the celebrated Article had withstood every assault, is the date, combined with the method of its abolition. It was abolished on the 19 th of September 1870, when the German armies were press- ing on to Paris. It was abolished by a Government which had come into office through an insurrection, and which had no claim to actual power or to moral authority except the absolute necessity for protecting France against invasion. It is passing strange that a provisional government, occupied with the defence of Paris, should have repealed a fundamental principle of French law. Of the motives which led men placed in temporary authority by the accidents of a revolu- tion to carry through a legal • innovation which, in appearance at least, alters the whole position of French officials, no foreign observer can form a certain opinion. It is, however, a plausible conjecture, confirmed by subsequent events, that the repeal of Article 75 was lightly enacted and easily tolerated, because, as many lawyers may have suspected, 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.^ A circumstance which fills an English lawyer with further amazement is that the repeal of Article 75 1 For some confirmation of this view, see Aucoc, Droit Administratif, 88. 419-426 ; J Acqnelm, Juridiction Administrative, -p. 427 ; Laferriere i. bk. iii. ch. vii. The admission, however, involved in the repeal of Article 75 of the general principle that officials are at any rate prima 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. DROIT ADMINISTRATIF 357 became, and still without any direct confirmation by Chapter any legislative assembly remains, part of the law of '_ the land. Here we come across an accepted principle of French constitutional law which betrays the im- mense authority conceded both by the law and by the public opinion of France to any de facto and generally accepted government. Such a body, even if like the provisional government of 1848 it is called to office one hardly knows how, by the shouts of a mob consisting of individuals whose names for the most part no one now knows at all, is deemed to possess whilst it continues in power the fullest legisla- tive authority. It is, to use French terms, not only a legislative but a constituent authority. It can issue decrees, known by the technical name of decree laws {decrets lois),^ which, until regularly repealed by some person or body with acknowledged legislative authority, are often as much law of the land as any Act passed with the utmost formality by the present French National Assembly. Contrast with this ready acceptance of governmental authority the view taken by English Courts and Parliaments of every law passed from 1642 to 1660 which did not receive the Eoyal assent. Some of them were enacted by Parliaments of a ruler acknowledged both in England and in many 1 See for the legal doctrine and for examples of such decree laws, Duguit, Manuet, pp. 1037, 1038 ; Moreau, Le Bkglement AdministraUf, pp. 103, 1 04. Such decree laws were passed by the provisional govern- ment between the 24th of February and the 4th of May 1848; by Louis Napoleon between the coup cHetat of 2nd December 1851 and 29th March 1852, that is, a ruler who, having by a breach both of the law of the land and of his oaths usurped supreme power, had not as yet received any recognition by a national vote ; and lastly, by the Government of National Defence between 4th September 1870 and 12th February 1871, that is, by an executive which might in strictness be called a government of necessity. 358 THE RULE OF LA W Part II. foreign countries as tlie head of the English State ; the Protector, moreover, died in peace, and was succeeded without disturbance \ij his son Richard. Yet not a single law passed between the outbreak of the Eebellion and the Restoration is to be found in the English Statute Book. The scrupulous legalism of English lawyers acknowledged in 1660 no Parliamentary authority but that Long Parliament which, under a law regularly passed and assented to by Charles I., could not be dissolved without its own consent. A student is puzzled whether most to admire or to condemn the sensible but, it may be, too easy acquiescence of Frenchmen in the actual authority of any de facto government, or the legalism carried to pedantic absurdity of Englishmen, who in matters of statesmanship placed technical legality above those rules of obvious ex- pediency which are nearly equivalent to principles of justice. This apparent digression is in reality germane to our subject. It exhibits the different light in which, even in periods of revolution. Frenchmen and English- men have looked upon the rule of law. The strange story of Article 75 needs a few words more for its completion. The decree law of 19th September 1870 reads as if it absolutely subjected officials accused of any breach of the law to the juris- diction of the judicial Courts. This, moreover, was in fact the view taken by both the judicial and the administrative Courts between 1870 and 1872.^ But judicial decisions can in France, as elsewhere, frustrate the operation of laws which they cannot 1 See in support of this view, Jacqnelin, i«s Principes Dominants du Contentieux Administratif, pp. 127-144. DROIT ADMINISTRA TIF 359 repeal. After 1870 proceedings against officials, and Chapter officials of all ranks, became frequent. This fact is ^^' noteworthy. The government wished to protect its own servants. It brought before the newly con- stituted Conflict-Court ^ a case raising for reconsidera- tion the effect of the decree law of 19 th September 1870. The Court held that, though proceedings against officials might be taken without the leave of the Council of State, yet that the dogma of the separation of powers must still be respected, and that it was for the Conflict- Court to determine whether any particular case fell within the juris- diction of the judicial Courts or of the administrative Courts, that is in effect of the Council of State. ^ The principle of this decision has now obtained general acceptance. Thus a judgment grounded on that doctrine of the separation of powers which embodies traditional jealousy of interference by ordinary judges in affairs of State has, according at any rate to one high authority, reduced the effect of the repeal of Article 75 almost to nothing. " To sum the matter up," writes Duguit, " the only difference between the actual system and that which existed under the Constitution of the Year VIII. is that before 1870 the prosecution of State officials was subject to the authorisation of the Council of State, whilst to-day it is subject to the authorisation of the Conflict-Court."' 1 See p. 360, 'post. 2 See Pelletier's Case, decided 26th July 1873 ; and in support of an interpretation of the law which has now received general approval, Laferrifere, i. pp. 637-654 ; Berth^lemy, p. 65 ; Duguit, Manuel, s. 67, pp. 463, 464 ; J^ze, pp. 133-135. ^ " Finalement la seule difference entre le sysUme actuel et celui de la " constitution de Van VIII., c'est qu'avant 1870 la poursuite centre les " fonctionnaires ^tait subordonn^e A I'autorisation du Conseil d!Etat, et 36o THE RULE OF LA W Part II. Under tlie law of 24th May 1872/ the decisions of (2) De- the Council of State concerning cases of administrative counoi°of law received for the first time the obligatory force become ^^ judgmcnts. They had hitherto been in theory, judgments, and from some points of view even in practice, as already pointed out,^ nothing but advice given to the head of the State. (3) crea- The Same law ^ which enhanced the authority of tion of . . , .......... indepen- the Council's decisious diminished its jurisdiction. flkt-court. The Council had, since 1800, decided whether a given case, or a point that might arise in a given case, fell within the jurisdiction of the judicial Courts or of the administrative Courts, i.e. in substance of the Council itself. This authority or power was, in 1872, transferred to a separate and newly constituted Conflict-Court* This Conflict-Court has been carefully constituted so as to represent equally the authority of the Court of Cassation — the highest judicial Court in France — and the authority of the Council of State — the highest administrative Court in France. It consists of nine members : — three members of the Court of Cassation elected by their colleagues ; three members of the Council of State, also elected by their col- leagues ; two other persons elected by the above six judges of the Conflict- Court. All these eight members of the Court hold ofiice for three years. They are re -eligible, and are almost invariably re-elected. " qu'aujourd'hui elle est subordonnee a I'autorisation dv, tribunal des " conflits." — Duguit, Manuel, p. 464. 1 Sect. 9. 2 See p. 344, ante. 3 Law of 24th May 1872, Tit. iv. art. 25-28. * Such a separate Conflict-Court had been created under the Second Republic, 1848-1851. It fell to the ground on the fall of the Republic itself in consequence of the coup d'elat of 1851. DROIT A D MINIS TRA TIF 36 1 The Minister of Justice {garde des sceaux) for the Chapter time being, who is a member of the Ministry, is ex L officio President of the Court. He rarely attends. The Court elects from its own members a Vice- President who generally presides.^ The Conflict- Court comes near to an absolutely judicial body ; it commands, according to the best authorities, general confidence. But its connection with the Government of the day through the Minister of Justice (who is not necessarily a lawyer) being its President, and the absence on the part of its members of that permanent tenure of office,^ which is the best security for perfect judicial independence, are defects, which, in the opinion of the fairest among French jurists, ought to be removed,^ and which, as long as they exist, detract from the judicial character of the Conflict-Court. An Englishman, indeed, can hardly fail to surmise that the Court must still remain a partly ofiicial body which may occasionally be swayed by the policy of a Ministry, and still more often be influenced by ofBcial or governmental ideas. Nor is this suspicion diminished by the knowledge that a Minister of Justice has within the year 1908 defended his position as President of the Court on the ground that it ought to contain some one who represents the interests of the government.* These three thorough-joiner reforms were carried The re- forms the result of 1 See Appendix, Note XI., Constitution of Tribunal des Gonjlits ; ^0!"*!°" Berth^lemy (5th ed.), pp. 880, 881 ; Chardon, p. 412. IdminL 2 A member of the Council of State does not hold his position as tratif. Councillor for life. He may be removed from the Council by the government. But no Councillor has been removed since 1875. 2 Laferrifere, i. p. 24 ; Chardon, p. 4, note 2 ; J^ze, pp. 133, 134. * See J^ze, Revue de Droit public, etc. (1908), vol. xxv. p. 257. 362 THE RULE OF LA IV Part II. out by legislative action. They obviously met the requirements of the time.^ They were rapid ; they appeared to be sudden. This appearance is delusive. They were in reality the outcome of a slow but con- tinuous revolution in French public opinion and also of the perseverance with which the legists of the Council of State, under the guidance of French juris- prudence and logic, developed out of the arbitrariness of administrative practice a fixed system of true administrative law. To understand this evolution of droit administratif during the lapse of more than a century (1800-1908) we must cast a glance over the whole development of this branch of French law and regard it in the light in which it presents itself, not so much to an historian of France as to a lawyer who looks upon the growth of French public law from an historical point of view. We shall then see that the years under consideration fall into three periods or divisions.^ They are : — (i.) The period of unnoticed growth, 1800-18 {Periode d' elaboration secrete). During these years the Council, by means of judicial precedents, created a body of maxims, in accordance with which the Council in fact acted when deciding administrative disputes. (ii.) The period of publication, 1818-60 {Periode 1 They were either tacitly sanctioned (decree law of 19th September 1870) or enacted (law of 24th May 1872) even before thje formal establishment of the Republic (1875) by a National Assembly of which the majority were so far from being revolutionists, or even reformers, that they desired the restoration of the monarchy. 2 See Hauriou, pp. 245-268. These periods do not precisely corre- spond with the three eras marked by political changes in the annals of France under which we have already considered (see p. 330, ante) the history of droit administratif. DROIT ADMINISTRATIF 363 de divulgation). During these forty-two years various Chapter reforms were carried out, partly by legislation, but, to L a far greater extent, by judge-made law. The judicial became more or less separated off from the administra- tive functions of the Council. Litigious business (Ze contentieux administratif) was in practice assigned to and decided by a special committee {section), and, what is of equal consequence, such business was decided by a body which acted after the manner of a Court which was addressed by advocates, heard arguments, and after public debate delivered judicial decisions. These decisions were reported, became the object of much public interest, and were, after a manner with which English lawyers are well ac- quainted, moulded into a system of law. The judgments, in short, of the Council acquired the force of precedent. The political revolutions of France, which have excited far too much notice, whilst the uninterrupted growth of French institu- tions has received too little attention, sometimes retarded or threw back, but never arrested the con- tinuous evolution of droit administratif; even under the Second Empire this branch of French jurisprudence became less and less arbitrary and developed more and more into a system of fixed and subtle legal rules, (iii.) The period of organisation, 1860-1908 [Periode d' organisation). During the last forty- eight years, marked as they have been in France by the change from the Empire to a Eepublic, by the German invasion, and by civil war, the development of droit administratif has exhibited a singular and tranquil regularity. Sudden innovations have been rare and have produced little effect. The reforms 364 THE RULE OF LA W Part 11. introduced by the decree law of 19th September 1870, and by the law of 24th May 1872, are, taken together, considerable ; but they in reality give effect to ideas which had since 1800 more or less guided the judicial legislation and practice both of the Council of State and of the Court of Cassation. If the legal history of France since 1800 be looked at as a whole, an Englishman may reasonably conclude that the arbitrary authority of the executive as it existed in the time of Napoleon, and even as it was exercised under the reign of Louis Philippe or of Louis Napoleon, has gradually, as far as the jurisdic- tion of the administrative Courts is concerned, been immensely curtailed, if not absolutely brought to an end. Droit administratif, though administered by bodies which are perhaps not in strictness Courts, and though containing provisions not reconcilable with the modern English conception of the rule of law, comes very near to law, and is utterly different from the capricious prerogatives of despotic power. (B)Com. A comparison between the administrative law of parison ■*■ __ _ drort'^" France and our English rule of law, if taken from the trSi"ind right point of view, suggests some interesting points law. of likeness, no less than of unlikeness. I. Likeness. It wiU bc obscrved that it is " modern " English ^ol^tad ^^*^<^^s which we have contrasted with the ideas ministratif of administrative law prevalent in France and other opposed continental states. The reason why the opposition ideas'^^'^ between the two is drawn in this form deserves notice. sixTeTnth" -^t a period which historically is not very remote temtr"" -^"^^"^ ^^' *^® '^^^^ ^® ^^ *^^ position of the Crown centuries, which werc currcut, if not predominant in England, bore a very close analogy to the doctrines which have DROIT ADMINISTRATJF 365 given rise to the droit administratif of France/ Chapter Similar beliefs moreover necessarily produced similar L 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 should not, be permanently established in England. 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 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 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. 255-259, ante. 366 THE RULE OF LA W Part II. 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 doc- trine that in matters of high policy {acte de gouvernement) the administration has a discre- • tionary 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," ^ 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 administra- tive 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 Eoyal prerogative, and it is hardly fanciful to compare 1 Gardiner, History of England, iii. p. 2. DROIT ADMINISTRATIF 367 these Courts, which were in reality portions of the chapter executive government, with the Conseil d'etat and L other Tribunaux administratifs of France. Nor is a parallel wanting to the celebrated Article 75 of the Constitution of the Year VIII.^ 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 oflSce, without a preliminary authorisation by " the Council of State. The effect of the English writ " being confined to cases where the King was him- " self 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 " that may concern your Majesty in profit or power "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- 1 See p. 343, ante. 2 Gardiner, History of England, iii. p. 7, note 2. 368 THE RULE OF LA W Part II. ''mediate dependence on the Icing; and therefore " like to he a safe and tender guardian of the " regal rights." ^ Bacon's innovation would, if successful, have formally established the funda- mental dogma of administrative law, that ad- ministrative questions must be determined by- administrative bodies. The analogy between the administrative ideas which still prevail on the Continent^ 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 Revolution or of the first Empire are to a great extent developments of the traditions and habits of the French monarchy is 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 Eng- land a strong administrative system. The endeavour had 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 augment the authority of the Crown. The attempt ended in ^ Abbot, Francis Bacon, p. 234. 2 It is worth noting that the system of "administrative law," though more fully judicialised in France than elsewhere, exists in one form or another in most of the Continental States. DROIT ADMimSTRAriF 369 failure, partly because of the personal deficiencies chapter 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. Droit administratif is in its contents utterly un- 2nd Point, like any branch of modern English law, but in the ^^^i,. method of its formation it resembles English law i!™'>»/'s ° case-law. far more closely than does the codified civil law of France. For droit administratif is, like the greater part of English law, "case-law," or "judge-made law." ^ The precepts thereof are not to be found in any code ; they are based upon precedent : French lawyers cling to the belief that droit administratif cannot be codified, just as English and American lawyers main- tain, for some reason or other which they are never able to make very clear, that English law, and especi- ally the common law, does not admit of codification. The true meaning of a creed which seems to be illogical because its apologists cannot, or will not, give the true grounds for their faith, is that the devotees of droit administratif m France, in common with the devotees of the common law in England, know that the system which they each admire is the product of judicial legislation, and dread that codification might limit, as it probably would, the essentially legislative authority of the tribunaux administratifs in France, or of the judges in England. The prominence further given throughout every treatise on droit adm/inistratif to the contentieux ^ See Dicey, Law and Opinion in England, Lect. XI. p. 359, and Appendix, Note IV. p. 481. It may be suspected that English lawyers underrate the influence at the present day exerted by precedent {Juris- prudence) in French Courts. 2 B 370 THE RULE OF LAW Part II. administratif recalls the importance in English law- books given to matters of procedure. The cause is in each case the same, namely, that French jurists and English lawyers are each dealing with a system of law based on precedent. Nor is it irrelevant to remark that the droit administratif of France, just because it is case-law based on precedents created or sanctioned by tribunals, has, like the law of England, been pro- foundly influenced by the writers of text-books and commentaries. There are various branches of English law which have been reduced to a few logical prin- ciples by the books of well-known writers. Stephen transformed pleading from a set of rules derived mainly from the experience of practitioners into a coherent logical system. Private international law, as understood in England at the present day, has been developed under the influence first of Story's Commentaries on the Conflict of Laws, and next, at a later date, of Mr. Westlake's Private International Law. And the authority exercised in every field of English law by these and other eminent writers has in France been exerted, in the field of administrative law, by authors or teachers such as Cormenin, Macarel, Vivien, Laferriere, and Hauriou. This is no accident. Wherever Courts have power to form the law, there writers of text-books will also have in- fluence. Eemark too that, from the very nature of judge-made law, Eeports have in the sphere of droit administratif an importance equal to the importance which they possess in every branch of English law, except in the rare instances in which a portion of our law has undergone codification. DROIT ADMINJSTRA TIF 371 But in the comparison between French droit Chapter administratif wi<^ the law of England a critic ought ^^' not to stop at the points of likeness arising from I'^I^i^y"*' their each of them being the creation of judicial otd/rmt . ° ■" adminis- decisions. There exists a further and very curious tratif. analogy between the process of their historical development. The Conseil d'JStat has been converted from an executive into a judicial or quasi-judicial body by the gradual separation of its judicial from its executive functions through the transference of the former to committees [sections), which have assumed more and more distinctly the duties of Courts. These "judicial committees" (to use an English expression) at first only advised the Conseil d'etat or the whole executive body, though it was soon understood that the Council would, as a general rule, follow or ratify the decision of its judicial committees. This recalls to a student of English law the fact that the growth of our whole judicial system may historically be treated as the transference to parts of the King's Council of judicial powers originally exercised by the King in Council ; and it is reasonable to suppose that the rather ill- defined relations between the Conseil d'Mat as a whole, and the Comite du contentieux^ may explain to a student the exertion, during the earlier periods of English history, by the King's Council, of hardly distinguishable judicial and executive powers; it explains also how, by a natural process which may have excited very little observation, the judicial functions of the Council became separated from its executive powers, and how this difierentiation of functions gave birth at last to Courts whose connection 1 See Jjaferri&re, i. p. 236, 372 THE RULE OF LA W Part II. xvith the political executive was merely historical. This process, moreover, of differentiation assisted at times, in France no less than in England, by legisla- tion, has of quite recent years changed the Conseil d'jStat into a real tribunal of droit administratif, as it created in England the Judicial Committee of the Privy Council for the regular and judicial decision of appeals from the colonies to the Crown in Council. Nor, though the point is a minor one, is it irrelevant to note that, as the so-called judgments of the Con- seil d'iltat were, till 1872, not strictly "judgments," but in reality advice on questions of droit adminis- tratif giYen by the Conseil d'J^tat to the head of the Executive, and advice which he was not absolutely bound to follow, so the "judgments" of the Privy Council, even when acting through its judicial com- mittee, though in reality judgments, are in form merely humble advice tendered by the Privy Council to the Crown. This form, which is now a mere survival, carries us back to an earlier period of Eno-lish constitutional history, when the interference by the Council, i.e. by the executive, with judicial functions, was a real menace to that supremacy of the law which has been the guarantee of English freedom, and this era in the history of England again is curiously illustrated by the annals of droit adminis- tratif Skitev the restoration of the Bourbons, 1815-30. At that date the members of the Conseil d'JStat, as we have seen,^ held, as they still hold, office at the pleasure of the Executive ; they were to a great extent a political body; there existed further no Conflict- Court ; or rather the Conseil d'Etat was itself the ^ See p. 344, ante. DROIT ADMINISTRATIF 373 Conflict -Court, or the body which determined the Chapter reciprocal jurisdiction of the ordinary law Courts and -^^^ of the administrative Courts, i.e. speaking broadly, the extent of the Council's own jurisdiction. The result was that the Conseil d'J^tat used its powers to withdraw cases from the decision of the law Courts, and this at a time when government functionaries were fully protected by Article 75 of the 'Constitution of the Year VIII. from being made responsible before the Courts for official acts done in excess of their legal powers. Nevertheless, the Conseil d'etat, just because it was to a great extent influenced by legal ideas, resisted, and with success, exertions of arbitrary power inspired by the spirit of Eoyalist reaction. It upheld the sales of the national domain made between 1789 and 1814 ; it withstood every attempt to in- validate decisions given by administrative authorities during the period of the Revolution or under the Empire. The King, owing, it may be assumed, to the judicial independence displayed by the Conseil d'etat, took steps which were intended to transfer the decision of administrative disputes from the Council or its committees, acting as Courts, to Councillors, acting as part of the executive. Ordi- nances of 1814 and of 1817 empowered the King to withdraw any administrative dispute which was connected with principles of public interest (toutes les affaires du contentieux de V administration qui se lieraient h des vues d'interSt general) from the juris- diction of the Conseil d'etat and bring it before the Council of Ministers or, as it was called, the Conseil d'en haut, and the general efiiect of this power and of other arrangements, which we need not follow out 374 THE RULE OF LAW Part n. jj^^Q detail, was that questions of droit administratif, in the decision of which the government were in- terested, were ultimately decided, not even by a quasi- judicial body, but by the King and his Ministers, acting avowedly under the bias of political considera- tions/ In 1828 France insisted upon and obtained from Charles X. changes in procedure which dimin- ished the arbitrary power of the Council.^ But no one can wonder that Frenchmen feared the increase of arbitrary power, or that French liberals demanded, after the Revolution of 1830, the abolition of adminis- trative law and of administrative Courts. They felt towards the jurisdiction of the Conseil d'J^tat the dread entertained by Englishmen of the sixteenth and seventeenth centuries with regard to the jurisdiction of the Privy Council, whether exercised by the Privy Council itself, by the Star Chamber, or even by the Court of Chancery. In each country there existed an appreciable danger lest the rule of the prerogative should supersede the supremacy of the law. The comparison is in many ways instructive ; it impresses upon us how nearly it came to pass that something very like administrative law at one time grew up in England. It ought, too, to make us per- ceive that such law, if it be administered in a judicial spirit, has in itself some advantages. It shows us also the inherent danger of its not becoming in strict- ness law at all, but remaining, from its close connection with the executive, a form of arbitrary power above or even opposed to the regular law of the land. It is 1 See Laferriere, i. pp. 226-234, and Comienin, Du Conseil d'Aat envisage comme conseil et comme juridiction (1818). 2 Ordinance of 1st June 1828, Laferriere, i. p. 232. DROIT ADMINISTRATIF 375 certain that in the sixteenth and seventeenth centuries Chapte: the jurisdiction of the Privy Council and even of the •^^- Star Chamber, odious as its name has remained, did confer some benefits on the public. It should always be remembered that the patriots who re- sisted the tyranny of the Stuarts were fanatics -for the common law, and could they have seen their way to do so would have abolished the Court of Chancery no less than the Star Chamber. The Chancellor, after all, was a servant of the Crown holding his office at the pleasure of the King, and certainly capable, under the plea that he was promoting justice or equity, of destroying the certainty no less than the formalism of the common law. The parallel therefore between the position of the English puritans, or whigs, who, during the seventeenth century, opposed the arbitrary authority of the Council, and the position of the French liberals who, under the Eestoration (1815-30), resisted the arbitrary authority of the Conseil d'etat and the extension of droit administratif, is a close one. In each case, it may be added, the friends of freedom triumphed. The result, however, of this triumph was, it will be said, as regards the matter we are considering, markedly difierent. Parliament destroyed, and de- stroyed for ever, the arbitrary authority of the Star Chamber and of the Council, and did not suffer any system of administrative Courts or of administrative law to be revived or developed in England. The French liberals, on the expulsion of the Bourbons, neither destroyed the trihunaux administratifs nor made a clean sweep of droit administratif. 376 THE RULE OF LA IV Part II. The diiFerence is remarkable, yet any student who looks beyond names at things will find that even here an obvious difference conceals a curious element of fundamental resemblance. The Star Chamber was abolished ; the arbitrary jurisdiction of the Council disappeared, but the judicial authority of the Chan- cellor was touched neither by the Long Parliament nor by any of the Parliaments which met yearly after the Ee volution of 1688. The reasons for this difference are not hard to discover. The law ad- ministered by the Lord Chancellor, or, in other words, Equity, had in it originally an arbitrary or dis- cretionary element, but it in fact conferred real benefits upon the nation and was felt to be in many respects superior to the common law administered by the common-law Judges. Even before 1660 acute observers might note that Equity was growing into a system of fixed law. Equity, which originally meant the discretionary, not to say arbitrary inter- ference of the Chancellor, for the avowed and often real purpose of securing substantial justice between the parties in a given case, might, no doubt, have been so developed as to shelter and extend the despotic prerogative of the Crown. But this was not the course of development which Equity actually followed ; at any rate from the time of Lord Nottingham (1673) it was obvious that Equity was developing into a judicial system for the application of principles which, though different from those of the common law, were not less fixed. The danger of Equity turning into the servant of despotism had passed away, and English statesmen, many of them lawyers, were little likely to destroy a body of law DROIT ADMINISTRA TIF 377 which, if in one sense an anomaly, was productive of Chapter beneficial reforms. The treatment of droit adminis- tratifin the nineteenth century by Frenchmen bears a marked resemblance to the treatment of Equity in the seventeenth century by Englishmen. Droit administratif has been the subject of much attack. More than one publicist of high reputation has advocated its abolition, or has wished to transfer to the ordinary or civil Courts (trihunaux judiciaires) the authority exercised by the administrative tri- bunals, but the assaults upon di-oit administratif have been repulsed, and the division between the spheres of the judicial and the spheres of the ad- ministrative tribunals has been maintained. Nor, again, is there much difficulty in seeing why this has happened. Droit administratif with all its peculiarities, and administrative tribunals with all their defects, have been suffered to exist because the system as a whole is felt by Frenchmen to be beneficial. Its severest critics concede that it has some great practical merits, and is suited to the spirit of French institutions. MeanwhUe droit administratif has developed under the influence rather of lawyers than of politicians ; it has during the last half- century and more to a great extent divested itself of its arbitrary character, and is passing into a system of more or less fixed law ad- ministered by real tribunals ; administrative tribunals indeed still lack some of the qualities, such as com- plete independence of the Government, which English- men and many Frenchmen also think ought to belong to all Courts, but these tribunals are cer- tainly very far indeed from being mere departments case-law. 378 THE RULE OF LA W Part n. of the executive government. To any person versed in tlie judicial history of England, it would therefore appear to be possible, or even probable, that droit administratif may ultimately, under the guidance of lawyers, become, through a course of evolution, as completely a branch 'of the law of France (even if we use the word " law " in its very strictest sense) as Equity has for more than two centuries become an acknowledged branch of the law of England. 4tii Point. The annals of droit administratif during the growth of nineteenth century elucidate again a point in the earlier history of English law which excites some perplexity in the mind of a student, namely, the rapidity with which the mere existence and working of law Courts may create or extend a system of law. Any reader of the History of English Law by Pollock and Maitland may well be surprised at the rapidity with which the law of the King's Court became the general or common law of the land. This legal revolution seems to have been the natural result of the vigorous exertion of judicial functions by a Court of great authority. Nor can we feel certain that the end attained was deliberately aimed at. It may, in the main, have been the almost undesigned effect of two causes : the first is the disposition always exhibited by capable judges to refer the decision of particular cases to general principles, and to be guided by precedent; the second is the tendency of inferior tribunals to follow the lead given by any Court of great power and high dignity. Here, in short, we have one of the thousand illus- trations of the principle developed in M. Tarde's Lois de Vimitation, that the innate imitativeness of DROIT ADMINISTRATIF 379 mankind explains the spread, first, throughout one Chapter country, and, lastly, throughout the civilised world, '_ of any institution or habit on which success or any other circumstance has conferred prestige. It may still, however, be urged that the creation under judicial influence of a system of law is an achieve- ment which requires for its performance a consider- able length of time, and that the influence of the King's Court in England in moulding the whole law of the country worked with incredible rapidity. It is certainly true that from the Norman Conquest to the accession of Edward. I. (1066-1272) is a period of not much over two centuries, and that by 1272 the foundations of English law were firmly laid ; whilst if we date the organisation of our judicial system from the accession of Henry II. (1154), we might say that a great legal revolution was carried through in not much more than a century. It is at this point that the history of droit administratif helps the student of comparative law. One need not, however, be greatly astonished at rapidity in the development of legal principles and of legal procedure at a period when the moral influence or the imaginative impressiveness of powerful tribunals was much greater than during the later stages of human progress. In any case it is certain — and the fact is a most instructive one — that under the conditions of modern civilisation a whole body of legal rules and maxims, and a whole system of quasi -judicial pro- cedure, have in France grown up within not much more than a century. The expression " grown up " is here deliberately used ; the development of droit administratif between 1800 and 1908 resembles a 38o THE RULE OF LA W Partn. natural process. It is as true of this branch of French law as of the English constitution that it " has not been made but has grown." II. Unlike- An intelligent student soon finds that droit isfpoint. administratif contains rules as to the status, the mitL^tif pi'ivileges, and the duties of government officials. not tote jje therefore thinks he can identify it with the identified i • n • i-i i witiiany laws, rfegulations, or customs which in England of England determine the position of the servants of the Crown, or (leaving the army out of consideration) of the Civil Service. Such "official law" exists, though only to a limited extent, in England no less than in France, and it is of course possible to identify and compare this official law of the one country with the official law of the other. But further investiga- tion shows that official law thus understood, though it may form part of, is a very different thing from droit administratif. The law, by whatever name we term it, which regulates the privileges or dis- abilities of civil servants is the law of a class, just as military law is the law of a class, namely, the army. But droit administratif is not the law of a class, but — a very different thing — a body of law which, under given circumstances, may affect the rights of any French citizen, as for example, where an action is brought by A against X in the ordinary Courts {trihunaux judiciaires), and the rights of the parties are found to depend on an administrative act (acts administratif), which must be interpreted by an administrative tribunal {tribunal administratif). In truth, droit administratif is not the law of the Civil Service, but is that part of French public law which affects every Frenchman in relation to the acts DROIT ADMINISTRA TIF 38 J of the public administration as the representative of Chapter the State. The relation indeed of droit administratif ^^^' to the ordinary law of France may be best compared not with the relation of the law governing a particu- lar class {e.g. military law) to the general law of England, but with the relation of Equity to the common law of England. The point of likeness, slight though in other respects it be, is that droit administratif in France and Equity in England each constitute a body of law which differs from the ordinary law of the land, and under certain circum- stances modifies the ordinary civil rights of every citizen. When our student finds that droit administratif cannot be identified with the law of the Civil Service, he naturally enough imagines that it may be treated as the sum of all the laws which confer special powers and impose special duties upon the administration, or, in other words, which regulate the functions of the Government, Such laws, though they must exist in every country, have till recently been few in England, simply because in England the sphere of the State's activity has, till within the last fifty or sixty years, been extremely limited. But even in England laws imposing special functions upon govern- ment officials have always existed, and the number thereof has of late vastly increased ; to take one example among a score, th« Factory legislation, which has grown up mainly during the latter half of the nineteenth century, has, with regard to the inspection and regulation of manufactories and workshops, given to the Government and its officials wide rights, and imposed upon them wide duties. If, then, droit / 382 THE RULE OF LAW P^^^^ administratif meant nothing more than the sum of all the laws which determine the functions of civil servants, droit administratif might be identified in its general character with the governmental law of England. The idea that such an identification is possible is encouraged by the wide definitions of droit administratif to be gathered from French works of authority,^ and by the vagueness with which English writers occasionally use the term " administrative law." But here, again, the attempted identification breaks down. Droit administratif, as it exists in France, is not the sum of the powers possessed or of the functions discharged by the administration ; it is rather the sum of the principles which govern the relation between French citizens, as individuals, and the administration as the representative of the State. Here we touch upon the fundamental difference be- tween English and French ideas. In England the powers of the Crown and its servants may from time to time be increased as they may also be diminished. But these powers, whatever they are, must be exer- cised in accordance with the ordinary common law principles which govern the relation of one English- man to another. A factory inspector, for example, is possessed of peculiar powers conferred upon him by Act of Parliament ; but if in virtue of the orders of his superior officials he exceeds the authority given him by law, he becomes at once responsible for the wrong done, and cannot plead in his defence strict obedience to official orders, and, further, for the tort 1 See Aucoc, Droit Administratif, i. s. 6 ; Hauriou, Precis de Droit Administratif, 3rd ed., p. 242, and 6th ed., pp. 391, 392 ; Laferriere i. pp. 1-8. ' DROIT ADMINISTRATIF 383 he has committed he becomes amenable to the ordinary Chapter Courts. In France, on the other hand, whilst the '_ powers placed in the hands of the administration might be diminished, it is always assumed that the relation of individual citizens to the State is regu- lated by principles different from those which govern the relation of one French citizen to another. Droit administratif, in short, rests upon ideas absolutely foreign to English law : the one, as I have already explained,^ is that the relation of individuals to the State is governed by principles essentially different from those rules of private law which govern the rights of private persons towards their neighbours ; the other is that questions as to the application of these principles do not. lie within the jurisdiction of the ordinary Courts. This essential difference renders the identification of droit administratif with any branch of English law an impossibility. Hence in- quiries which rightly occupy French jurists, such, for example, as what is the proper definition of the con- tentieux administratif; what is the precise difference between actes de gestion and actes de. puissance puhlique, and generally, what are the boundaries between the jurisdiction of the ordinary Courts (trihunaux judiciaires) and the jurisdiction of the administrative Courts {trihunaux administratifs) have under English law no meaning. Has droit administratif been of recent years 2nd Point. introduced in any sense into the law of England ? minUratif This is an inquiry which has been raised by ^°^\.™ writers of eminence,^ and which has caused some i"*™^^"^''^^ England. 1 See p. 332, ante. 2 See Laferriere, i. pp. 97-106. To cite such enactments as the 384 THE RULE OF LAW Part II. perplexity. We may give thereto a decided and negative reply. The povsrers of the English Government have, dur- ing the last sixty years or so, been largely increased ; the State has undertaken many new functions, such, for example, as the regulation of labour under the Factory Acts, and the supervision of public educa- tion under the Education Acts. Nor is the import- ance of this extension of the activity of the State lessened by the consideration that its powers are in many cases exercised by local bodies, such, for ex- ample, as County Councils. But though the powers conferred on persons or bodies who directly or in- directly represent the State have been greatly increased in many directions, there has been no intentional introduction into the law of England of the essential principles of droit administratif. Any official who exceeds the authority given him by the law incurs the common law responsibility for his wrongful act ; he is amenable to the authority of the ordinary Courts, and the ordinary Courts have themselves Public Authorities Protection Act 1893, which by the way does little more than generalise provisions, to be found in a lot of Acts extend- ing from 1601 to 1900, as an example of the existence of administra- tive law in England, seems to me little else than playing with words. The Act assumes that every person may legally do the act which by law he is ordered to do. It also gives a person who acts in purm- ance of his legal duty, e.g. under an Act of Parliament, special pri^- leges as to the time within which an action must be brought against him for any wrong committed by him in the course of carrying out his duty, but it does not to the least extent provide that an order from a superior official shall protect, e.g. a policeman, for any wrong done by him. There are, indeed, one or two instances in which no legal remedy can be obtained except against the actual wrong-doer for damage in- flicted by the conduct of a servant of the Crown. These instances are practically unimportant. See Appendix, Note XII., "Proceedings against the Crown." DROIT ADMINISTRATIF 385 jurisdiction to determine what is the extent of his Chapter legal power, and whether the orders under which he '_ has acted were legal and valid. Hence the Courts do in effect limit and interfere with the action of the " administration," using that word in its widest sense. The London School Board, for example, has claimed and exercised the right to tax the ratepayers for the support of a kind of education superior to the elementary teaching generally provided by School Boards ; the High Court of Justice has decided that such right does not exist. A year or two ago some officials, acting under the distinct orders of the Lords of the Admiralty, occupied some land alleged to belong to the Crown ; the title of the Crown being disputed, a court of law gave judgment against the officials as wrong-doers. In each of these cases nice and disputable points of law were raised, but no English lawyer, whatever his opinion of the judg- ments given by the Court, has ever doubted that the High Court had jurisdiction to determine what were the rights of the School Board or of the Crown. Droit administratif, therefore, has obtained no foothold in England, but, as has been pointed out by some foreign critics, recent legislation has occasionally, and for particular purposes, given to officials some- thing like judicial authority. It is possible in such instances, which are rare, to see a slight approxima- tion to droit administratif, but ' the innovations, such as they are, have been suggested merely by considerations of practical convenience, and do not betray the least intention on the part of English statesmen to modify the essential principles of 2 c 386 THE RULE OF LA W Part II. English law. There exists in England no true droit administratif. An English lawyer, however, who has ascertained that no branch of English law corresponds with the administrative law of foreign countries must be on his guard against falling into the error that the droit administratif oi Tonodem France is not "law" at all, in the sense in which that term is used in England, but is a mere name for maxims which guide the executive in the exercise if not of arbitrary yet of discretionary power. That this notion is erroneous will, I hope, be now clear to all my readers. But for its existence there is some excuse and even a certain amount of justification. The French Government does in fact exercise, especially as regards foreigners, a wide discretionary authority which is not under the control of any Court whatever. For an act of State the Executive or its servants cannot be made amenable to the jurisdiction of any tribunal, whether judicial or administrative. Writers of high authority have differed^ indeed profoundly as to the definition of an act of State [acte de gouvernement)} Where on a question of French law French jurists disagree, an English lawyer can form no opinion; he may be allowed, however, to conjecture that at times of dis- turbance a French Government can exercise discre- tionary powers without the dread of interference on the part of the ordinary Courts, and that administra- tive tribunals, when they can intervene, are likely to 1 See p. 342, ante. 2 Compare Laferrifere, ii. bk. iv. ch. ii. p. 32, and Hauriou, pp. 282-287, with Jacquelm, pp. 438-447. DROIT ADMINISTRATIF 387 favour that interpretation of the term act of State Chapter which supports the authority of the Executive, ^'^' However this may be, the possession by the French Executive of large prerogatives is apt, in the mind of an Englishman, to be confused with the character of the administrative law enforced by Courts composed, in part at any rate, of officials. The restrictions, again, placed by French law on the jurisdiction of the ordinary Courts i^r'ihunaux judiciaires) whereby they are prevented from inter- fering with the action of the Executive and its servants, seem to an Englishman accustomed to a system under which the Courts of law determine the limits of their own jurisdiction, to be much the same thing as the relegating of all matters in which the authority of the State is concerned to the discretion of the Executive. This notion is erroneous, but it has been fostered by a circumstance which may be termed accidental. The nature and the very exist- ence of droit administratif has been first revealed to many Englishmen, as certainly to the present writer, through the writings of Alexis de Tocqueville, whose works have exerted, in the England of the nineteenth century, an influence equal to the authority exerted by the works of Montesquieu in the England of the eighteenth century. Now Tocqueville by his own admission knew little or nothing of the actual working of droit administratif in his own day.^ He no doubt in his later years increased his knowledge, but to the end of his life he looked upon droit administratif, not as a practising lawyer but as the historian of the ancien regime, and even as an 1 Tocqueville, vii., (Euvres CompUtes, p. 66. 388 THE RULE OF LA W Part n, historian he studied the subject from a very peculiar point of view, for the aim of L'Ancien Regime et la Revolution is to establish the doctrine that the institutions of modern France are in many respects in spirit the same as the institutions of the ancient monarchy ; and Tocqueville, moved by the desire to maintain a theory of history which in his time sounded like a paradox, but, owing greatly to his labours, has now become a generally accepted truth, was inclined to exaggerate the similarity between the France of the Eevolution, the Empire, or the Republic, and the France of the ancien regime. Nowhere is this tendency more obvious than in his treatment of droit administratif. He demonstrates that the ideas on which droit administratif is based had been accepted by French lawyers and statesmen long before 1789 ; he notes the arbitrariness of droit administratif under the monarchy; he not only insists upon but deplores the connection under the ancien regime between the action of the Execu- tive and the administration of justice, and he certainly suggests that the droit administratif of the nineteenth century was all but as closely con- nected with the exercise of arbitrary power as was the droit administratif of the seventeenth or the eighteenth century. He did not recognise the change in the character of droit administratif which was quietly taking place in his own day. He could not by any possi- bility anticipate the reforms which have occurred during the lapse of well-nigh half a century since his death. What wonder that English lawyers who first gained their knowledge of French institutions from DROIT ADMINISTRATIF 389 Tocqueville should fa;il to take full account of that chapter judicialisation (Juridictionncdisation) of adminis- L trative law which is one of the most surprising and noteworthy phenomena in the legal history of France. It is not uninstructive to compare the merits in. Merits and defects, on the one hand, of our English demerits. rule of law, and, on the other, of French droit administratif. Rule of Our rigid rule of law has immense and un- merits. deniable merits. Individual freedom is thereby more thoroughly protected in England against oppression by the government than in any other European country ; the Habeas Corpus Acts ^ pro- tect the liberty no less of foreigners than of British subjects; martial law^ itself is reduced within the narrowest limits, and subjected to the supervision of the Courts ; an extension of judicial power which sets at nought the dogma of the separation of powers, happily combined with judicial indepen- dence, has begotten reverence for the bench -of judges. They, rather than the government, repre- sent the august dignity of the State, or, in accordance with the terminology of English law, of the Crown. Trial by jury is open to much criticism ; a dis- tinguished French thinker may be right in holding that the habit of submitting difficult problems of fact to the decision of twelve men of not more than average education and intelligence will in the near future be considered an absurdity as patent as ordeal by battle. Its success in England is wholly due to, and is the most extraordinary sign of, popular confidence 1 See p. 212, ante. ^ See p. 280, ante. 390 THE RULE OF LA W Part II. in the judicial bench. A judge is the colleague and the readily accepted guide of the jurors. The House of Commons shows the feeling of the electors, and has handed over to the High Court of Justice the trial of election petitions. When rare occasions arise, as at Sheffield in 1866, which demand inquiries of an exceptional character which can hardly be effected by the regular procedure of the Courts, it is to selected members of the bench that the nation turns for aid. In the bitter disputes which occur in the conflicts between capital and labour, employers and workmen alike will often submit their differences to the arbitration of men who have been judges of the High Court. Reverence, in short, for the supremacy of the law is seen in its very best aspect when we recog- nise it as being in England at once the cause and the effect of reverence for our judges. Defects. The blessings, however, conferred upon the nation by the rule of law are balanced by undeniable, though less obvious, evils. Courts cannot without consider- able danger be turned into instruments of government. It is not the end for which they are created ; it is a purpose for which they are ill suited at any period or in any country where history has not produced veneration for the law and for the law Courts.^ Respect for law, moreover, easily degenerates into legalism which from its very rigidity may work con- siderable injury to the nation. Thus the refusal to look upon an agent or servant of the State as standing, 1 In times of revolutionary passion trial by jury cannot secure respect for justice. The worst iniquities committed by Jeffreys at the Bloody Assize would have been impossible had he not found willing accomplices in the jurors and freeholders of the western counties. DROIT ADMINISTRATIF 391 from a legal point of view, in a different position from Chapter the servant of any other employer, or as* placed under L obligations or entitled to immunities different from those imposed upon or granted to an ordinary citizen, has certainly saved England from the development of the arbitrary prerogatives of the Crown, but it has also in more ways than one been injurious to the public service. The law, for instance, has assuredly been slow to recognise the fact that violations of duty by public officials may have an importance and deserve a punishment far greater than the same conduct on the part of an agent of an ordinary employer. Some years ago a copyist in a public office betrayed to the newspapers a diplomatic document of the highest importance. Imagination can hardly picture a more flagrant breach of duty, but there then apparently existed no available means for punishing the culprit. If it could have been proved that he had taten from the office the paper on which the communication of state was written, he might conceivably have been put on trial for larceny.^ But a prisoner put on trial for a crime of which he was in fact morally innocent, because the gross moral offence of which he was really guilty was not a crime, might have counted on an acquittal. The Official Secrets Act, 1889,^ now, it is true, renders the particular offence, which could not be punished in 1878, a misdemeanour, but the Act, after the manner of English legislation, does not establish the general principle that an official breach 1 See Annual Register, 1878, Ghronicle, p. 71. [2 Repealed and superseded by the Ofacial Secrets Act, 1911, 1 & 2 Geo. 5, c. 28, described as " An Act to re-enact the Official Secrets Act, 1889, with Amendments." See especially sec. 2,] 392 THE RULE OF LA W Part II. of trust is a crime. It is therefore more than possible that derelictidns of duty on the part of public servants which in some foreign countries would be severely punished may still in England expose the wrong-doer to no legal punishment. Nor is it at all wholly a benefit to the public that honajide obedience to the orders of superiors is not a defence-available to a subordinate who, in the discharge of his functions as a government officer, has invaded the legal rights of the humblest individual, or that officials are, like everybody else, accountable for their conduct to an ordinary 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 instructive 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 Acts since 1876 the Board have been and are bound to detain any ship which from its unsafe and unseaworthy condition cannot, proceed to sea without serious danger to human life.^ Most persons would suppose that the officials of the Board, as long as they, hona 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.^ They have never been accused of either malice or negligence, but the mere fact that the Board act in an administrative capacity 1 Merchant Shipping Act, 1894 (57 & 58 Vict. c. 60), s. 459. ^ See Thomson v. Farrer, 9 Q. B. D. (C. A.), 372. DROIT ADMINISTRATIF 393 is not a protection to the Board, nor is mere obedience Chapter to the orders of the Board an answer to an action ^^' against its servants. Any deviation, moreover, from the exact terms of the Acts — 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 vessel, and this inquiry is determined by jurymen who sympathise more keenly with the losses of a ship- owner, 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 unseaworthy ships, nugatory. Juries are often biassed against the Government. A technical question is referred for decision, from persons who know something about the subject, and are impartial, to persons who are both ignorant and prejudiced. The government, 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 Tocqueville to English ideas of government, have clung to the conviction that administrative questions ought to be referred to administrative Courts. The merits of administrative law as represented by Droit modern French droit administratif, that is, when tratif— seen at its very best, escape the attention, and do not ™^" ^" receive the due appreciation of English constitution- 354 THE RULE OF LA W Part II. alists.' No jurist can fail to admire the skill with which the Council of State, the authority and the jurisdiction whereof as an administrative Court year by year receives extension, has worked out new remedies for various abuses which would appear to be hardly touched by the ordinary law of the land. The Council, for instance, has created and extended the power of almost any individual to attack, and cause to be annulled, any act done by any administrative authority (using the term in a very wide sense) which is in excess of the legal power given' to the person or body from whom the act emanates. > Thus an order issued by a prefect or a bye-law made by a corporation which is in excess of the legal power of the prefect or of the corporate body may, on the application of a plaintiflf who has any interest in the matter whatever, be absolutely set aside or annulled for the benefit not only of the plaintiff", but of all the world, and this even though he has not himself suffered, from the act complained of, any pecuniary loss or damage. The ingenious distinction ^ again, which has been more and more carefully elaborated by the Council of State, 1 One, and not the least of them, is that access to the Council of State as an administrative Court is both easy and inexpensive. 2 French law draws an important distinction between an injury caused to a private individual by act of the administration or govern- ment which is in excess of its powers (faute de service), though duly carried out, or at any rate, carried out without any gross fault on the part of a subordinate functionary, e.g. a policeman acting in pursuance of official orders, and injury caused to a private individual by the negligent or malicious manner (faute personnelle) in which such sub- ordinate functionary carries out official orders which may be perfectlj' lawful. In the first case the policeman incurs no liability at all, and the party aggrieved must proceed in some form or other against the State in the administrative Courts (frihunaux administratifs). In the second case the policeman is personally liable, and the party aggrieved must proceed against him in the ordinary Courts {tribunaux judiciaires) DROIT ADMimsTRATiF 39S between damage resulting from the personal fault Chapter {faute personnelle), e.g. spite, violence, or negligence of an official, e.g. a prefect or a mayor, in the carrying out of official orders, and the damage resulting, with- out any fault on the part of the official, from the carrying out of official orders, illegal or wrongful in themselves {faute de service), has of recent years afforded a valuable remedy to persons who have suffered from the misuse of official power, and has also, from one point of view, extended or secured the responsibility of officials — a responsibility enforceable in the ordinary Courts — for wrongful conduct, which is in strictness attributable to their personal action. And in no respect does this judge-made law of the Council appear to more advantage than in cases, mostly I conceive of comparatively recent date, in which,(individuals have obtained compensation for governmental action, which might possibly be con- sidered of technical legality, but which involves in reality the illegitimate use of power conferred upon the government or some governmental body for one object, but in truth used for some end different from that contemplated by the law) One example explains my meaning. The State in 1872 had, as it still has, a monopoly of matches. To the government was given by law the power of acquiring existing match factories under some form of compulsory purchase. (see Hauriou, pp. 170, 171 ; Laferriere, i. p. 652), and apparently cannot proceed against the State. French authorities differ as to what is the precise criterion by which to distinguish a faute personnelle from a faute de service, and show a tendency to hold that there is no faute personnelle on the part, e.g. of a policeman, when he has hona fide attempted to carry out his official duty. See Duguit, L'Mat, pp. 638-640 ; [Duguit, Traite de Droit Oonstitutionnel, i. pp. 553-559.] 396 THE RULE OF LA W Part n. It occurred to some ingenious minister that the fewer factories there were left open for sale, the less would be the purchase-money which the State would need to pay. A prefect, the direct servant of the govern- ment, had power to close factories on sanitary grounds. Under the orders of the minister he closed a factory belonging to A, nominally on sanitary grounds, but in reality to lessen the number of match factories which the State, in the maintenance of its monopoly, would require to purchase. There was no personal fault on the part of the prefect. No action could with success be maintained against him in the judicial Courts,^ nor, we may add, in the administrative Courts.^ A, however, attacked the act itself before the Council of State, and got the order of the prefect annulled,^ and ultimately obtained, through the Council of State, damages from the State of over £2000 for the illegal closing of the factory, and this in addition to the purchase-money received from the State for taking possession of the factory.' Defects. No Englishman can wonder that the jurisdiction of the Council of State, as the greatest of adminis- trative Courts, grows apace ; the extension of its power removes, as did at one time the growth of Equity in England, real grievances, and meets the need of the ordinary citizen. Yet to an Englishman imbued with an unshakeable faith in the importance of maintaining the supremacy of the ordinary law of the land enforced by the ordinary Law Courts, the droit administratif of modern France is open to some grave criticism. 1 Dalloz, 1875, i. 495. 2 DaUoz, 1878, iii. 13. » Dalloz, 1880, iii. 41. DROIT ADMINISTRATIF 397 The high and increasing authority of the Council Chapter of State must detract, he surmises, from the dignity and respect of the judicial Courts. " The more there is of the more, the less there is of the less" is a Spanish proverb of profound wisdom and wide appli- cation. There was a time in the history of England when the judicial power of the Chancellor, bound up as it was with the prerogative of the Crown, might have overshadowed the Courts of Law, which have protected the hereditary liberties of England and the personal freedom of Englishmen. It is difficult not to suppose that the extension of the Council's jurisdiction, beneficial as may be its direct effects, may depress the authority of the judicial tribunals. More than one writer, who ought to represent the ideas of educated Frenchmen, makes the suggestion that if the members of the Council of State lack that absolute security of tenure which is universally ac- knowledged to be the best guarantee of judicial independence, yet irremovable judges, who, though they may defy dismissal, are tormented by the constant longing for advancement,^ are not more independent of the Government at whose hands they expect promotion than are members of the Council of State who, if legally removable, are by force of custom hardly ever removed from their high position. Trial by jury, we are told, is a joke, and, as far as the interests of the public are concerned, a very bad joke.^ Prosecutors and criminals alike prefer the Correctional Courts, where a jury is unknown, to the Courts of Assize, where a judge presides and a jury gives a verdict. The prosecutor knows that in the 1 See Chardon, pp. 326-328. 2 jjnU 398 THE RULE OF LAW Part II. Correctional Court proved guilt will lead to con- demnation. The criminal knows that though in the inferior Court he may lose the chance of acquittal by good-natured or sentimental jurymen, he also avoids the possibility of undergoing severe punish- ment. Two facts are certain. In 1881 the judges were deprived of the right of charging the jury. Year by year the number of causes tried in the Assize Courts decreases. Add to this that the procedure of the judicial Courts, whether civil or criminal, is antiquated and cumbrous. The procedure in the great administrative Court is modelled on modern ideas,' is simple, cheap, and effective. The Court of Cassation still commands respect. The other judicial Courts, one can hardly doubt, have sunk in popular estimation. Their members neither exercise the power nor enjoy the moral authority of the judges of the High Court. It is difficult, further, for an Englishman to believe that, at any rate where politics are concerned, the administrative Courts can from their very nature give that amount of protection to individual freedom which is secured to every English citizen, and indeed to every foreigner residing in England. However this may be, it is certain that the dis- tinction between ordinary law and administrative law (taken together with the doctrine of the separation of powers, at any rate as hitherto interpreted by French jurists), implies the general belief that the agents of the government need, when acting in hona fide dis- charge of their official duties, protection from the con- trol of the ordinary law Courts. That this is so is proved by more than one fact. The desire to protect DROIT ADMINISTRATIS 399 servants of the State has dictated the enactment of the Chapter YTT Code P4nal, Article 114. This desire kept alive for L seventy years Article 75 of the Constitution of the Year VIII. It influenced even the men by whom that Article was repealed, for the repeal itself is expressed in words which imply the intention of providing some special protection for the agents of the government. It influenced the decisions which more or less nulli- fied the effect of the law of 19th December 1870, which was at first supposed to make the judicial Courts the sole judges of the liability of civil servants to suffer punishment or make compensation for acts of dubious legality done in the performance of their ofl&cial duties. Oddly enough, the success with which administrative Courts have extended the right of private persons to obtain damages from the State itself for illegal or injurious acts done by its servants, seems, as an English critic must think, to supply a new form of protection for the agents of the govern- ment when acting in obedience to orders. There surely can be little inducement to take proceedings against a subordinate, whose guilt consists merely in carrying out a wrongful or illegal order, given him by his oflBcial superior, if the person damaged can obtain compensation from the government, or, in other words, from the State itself.^ But turn the 1 Consider, too, the extended protection offered to every servant of the State by the doctrine, suggested by at least one good authority, that he cannot be held personally responsible for any wrong (Jauie) committed whilst he is acting in the spirit of his official duty. " Si, " en effet, le fonetionnaire a agi dans I'esprit de sa fondion, c'est-a-dire en " poursuivant effectivement le hut qu'avait I' Mat en etablissant cette "fonction, il ne pent Stre responsable ni vis-d-vis de I'Etat, ni vis-d-vis des " particuliers, alors mime qu'il ait comrnis unefaute." — Duguit, L'Etat, p. 638. 400 THE RULE OF LA W Part II. matter which way you will, the personal immunities of oflficials who take part, though without other fault of their own, in any breach of the law, though con- sistent even with the modern droit administratif of France, are inconsistent with the ideas which underlie the common law of England. This essential opposition has been admirably expressed by a French jurist of eminence. " Under every legal system," writes Hauriou, " the right to proceed against a servant of the govern- " ment for wrongs done to individuals in his official "capacity exists in some form or other; the right " corresponds to the instinctive impulse felt by every " victim of a legal wrong to seek compensation from "the immediately visible wrong-doer. But on this " point the laws of different countries obey utterly " different tendencies. There are countries [such, for " example, as England or the United States] where " every effort is made to shelter the liability of the "State behind the personal responsibility of its "servant. There are other countries where every " effort is made to cover the responsibility of the "servant of the State behind the liability of the " State itself, to protect him against, and to save " him from, the painful consequences of faults com- "mitted in the service of the State. The laws of " centralised countries, and notably the law of France, "are of this type. There you will find what is "called the protection of officials" (garantie des fonctionnaries). -^ 1 " Ge principe est admis par toutes les legislations, la powrsuite du " fondionnaire exists partout, d'autant qu'elle repond d un mouvement " instinctif qui est, pour la victime d'un mefait, de s'en prendre d I'auteur DROIT ADMINISTRATIF /]oi " iTwmediatement visible. Mais les legislations ohSssent d deux tendances Chapter " Men oppos&s ; il en est qui iefforqent d'abriter I'Etat derrihe le fonetion- XJl. " naire, il en est d'autres, au contraire, qui s'efforgent de faire couvrir le " fonctionnaire par I'Etat, de le proteger, de le rassurer contre les con- " sequences fdcheuses de ses erreurs. Les legislations des pays centralises " et notamment celle de la France sont de ce dernier type ; il y a ce que "Von appelle une garantie des fonctionnaires." — Hauriou, Pricis de Droit AdmAnistratif, Troisi&me ^dit., pp. 170, 171. 2 D CHAPTER XIII EELATION BETWEEN PARLIAMENTARY SOVEREIGNTY AND THE RULE OP LAW PartiL The sovereignty of Parliament and the supremacy of ' the law of the land — the two principles which per- 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. pariia^ The Sovereignty of Parliament favours the suprem- mentary ^^ ^f ^hc law of the land. sovereignty >^ favours That this should be so arises in the main from two rule of law. .. ,... i-it 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 402 RELATION TO PARLIAMENTARY SOVEREIGNTY 403 legislation. The will of Parliament ^ can be expressed Chapter only through an Act of Parliament. L 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 I., 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 receiving the Eoyal 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 ^ 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. 404 THE RULE OF LA W Part II. I have already pointed out) to the authority of the judges and to the fixity of the law.' 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 modem 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 origin- ally, and is still regulated, by considerations and feelings belonging to a time when the "servants of 1?he Crown " were dependent upon the King, that is, upon a power which naturally excited the jealousy and vigilance of Parliament. 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 Parliament 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." RELATION TO PARLIAMENTARY SOVEREIGNTY 405 Hence several results all indirectly tending to Chapter support tlie supremacy of the law. Parliament, though sovereign, unlike a sovereign monarch who is not only a legislator but a ruler, that is, head of the executive government, has never hitherto been able to use the powers of the government as a means of interfering with the regular course of law ; ^ and what is even more important, 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 " ad- ministrative 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 re- moved 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. The idea may suggest itself to a reader that the Tendency characteristics or peculiarities of the English Parlia- rule of law ment on which I have just dwelt must now be ?ound"in common to most of the representative assemblies remfsen- which exist in continental Europe. The French tative •■• _ assemblies. National Assembly, for example, bears a consider- able external resemblance to our own Parliament. 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. 4o6 THk RULE OF LA W Part 11. It is influenced, however, by a diff"erent spirit ; it is the heir, in more ways than one, of the Bourbon Monarchy and the Napoleonic Empire. It is appar- ently, though on this point a foreigner must speak with 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 de- veloped 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. feTOw"*'' "^^^ supremacy of the law necessitates the exercise Pariia- of Parliamentary sovereignty. soye- 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 reiguty. RELATION TO PARLIAMENTARY SOVEREIGNTY 407 government can in times of disorder, or of war, Chapter keep the peace at home, or perform its duties towards •^™'" 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 exercise 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 Dovei*. 1 See, however, p. 220, note 2, anU. 4o8 THE RULE OF LA W Part II. 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 foreigner from the country ; a Foreign Enlistment Act makes it possible for the Ministry to check intervention 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. !N^or 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 ^) 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 1 See pp. 47, 48, 228-233, ante. RELATION TO PARLIAMENTARY SOVEREIGNTY 409 Crown. But this idea is erroneous. The fact that Chapter the most arbitrary powers of the English executive L must always be exercised under Act of Parliament 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. PAET III THE CONNECTION BETWEEN THE LAW OF THE CONSTITUTION AND THE CONVENTIONS OF THE CONSTITUTION 411 CHAPTEE XIV NATURE OF CONVENTIONS OF CONSTITUTION In an earlier part of this work'' stress was laid upon chapter tlie essential distinction between the "law of the ^^^- constitution," which, consisting (as it does) of rules Questions . , , , \~ remaining enforced or recognised by the Courts, makes up a to be 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. ^ 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 ^ and the Eule of Law.* But a lawyer cannot master even the legal side of the English constitution without paying some attention to the nature of those constitutional under- standings which necessarily engross the attention of 1 See pp. 22-30, ante. . ^ See pp. 29-31, ante. 3 S6e Part I. * See Part II. 413 414 LAW AND CONVENTIONS OF CONSTITUTION Part m. 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 salicut characteristics, the outward aspects so to tionai speak, of the understandings which make up the consti- "undings. 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 NATURE OF CONVENTIONS OF CONSTITUTION i,!';, "principle embodied in the Great Charter or in the Chapter " Petition of Eight. 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 consti^ "tutional or unconstitutional, he means something "wholly diflferent 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- 4i6 LA W AND CONVENTIONS OF CONSTITUTION Part III. "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." ^ The one exception which can be taken to this picture of our conventional constitution is the con- trast drawn in it between the "written law" and the " unwritten constitution " ; the true opposition, as already pointed out, is between laws properly so called, whether written or unwritten, and under- standings, 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. E^'fampies The followiug are examples^ of the precepts to tutionai which Mr. Freeman refers, and belong to the code standings, by which public life in England is (or is supposed to be) governed. "A Ministry which is outvoted in the House of Commons is 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 1 Freeman, Grovith of the English Constitution (1st ed.), pp. 109, 110, 2 See, for further examples, pp. 25, 26, ante. NATURE OF CONVENTIONS OF CONSTITUTION 417 fixed, for the appointments made by any of their Chapter number, or to speak in more accurate language, L made by the Crown under the advice of any member of the Cabinet." " The 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 influential 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, how- ever, easy to find constitutional maxims dealing with other topics. " Treaties can be made without the necessity for any Act of Parliament; 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 proclamation 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 2 E 4i8 LA W AND CONVENTIONS OF CONSTITUTION Part III. create enough new Peers to override the opposition of the House of Lords, and thus restore harmony- bet ween the two branches of the legislature." ^ " 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 convened and obtain any powers which they may need for the protection of the country. Meanwhile Ministers ought to take every step, even at the peril of breaking the law, which is necessary either for restoring order or for repelling attack, and (if the law of the land is violated) must rely for protection on Parliament passing an Act of Indemnity." Common Thcse rulcs (which I have purposely expressed in istioofcou- a lax and popular manner), and a lot more of the under- Same kind, make up the constitutional morality of standmgs. ^^ ^^^^ 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 property; they are all, or at any rate most of them, rules for determining the mode in which the discretionary 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 1 See however Hearn, Government of England (2nd ed.), p. 178, NATURE OF CONVENTIONS OF CONSTITUTION 419 not only to all the rules already enumerated, but chapter to by far the greater part (though not quite to the ^^' whole) of the conventions of the constitution. This matter, however, requires for its proper understanding some further explanation. The discretionary powers of the government mean Constitu- every kind of action which can legally be taken by ventton™' the Crown, or by its servants, without the neces- ru]e™?or^'' sity for applying to Parliament for new statutory governing •I i- i. J d ^ ^ 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 ofl&ce 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 Naturalization Act, 1870, gives to a Secretary of State the right under certain circumstances to con- vert an alien into a naturalized 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 420 LA W AND CONVENTIONS OF CONSTITUTION Part III. domain of constitutional morality into that of law properly so called. The discretionary authority ol the Crown originates generally, not in Act of Parlia- 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 wUl 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 NATURE OF CONVENTIONS OF CONSTITUTION 421 might be lopped off without serious damage to the Chapter tree.'^ The publication of Mr. Eeeves's theories '_ during a period of popular excitement may have 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 Eevolution of 1688, the Crown nossessed 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 King himself or by his Ministers. Every act which the executive government can lawfully do without the authority of the 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 Eoyal prerogative (such as the making of war or the declaration of peace) ought to be carried out. This 1 See 26 St. Tr. 530-634. 422 LA W AND CONVENTIONS OF CONSTITUTION Part III. 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 really done by the King himself in accordance with his personal wishes, to transactions (which are of more frequent occurrence than modern constitutionalists are disposed to admit) in which both the King and his Ministers take a real part, and also to that large and constantly increasing number of proceedings which, though carried out in the King'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 discretionary powers of the Crown, whether these powers are exercised by the King himself 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 NATURE OF CONVENTIONS OF CONSTITUTION 423 Parliament together at the King's pleasure must be Chapter . or XIV. SO exercised that Parliament meet once a year. 1 This analysis of constitutional understandings is gome eon- open to the one valid criticism, that, though true as conven'-"^ far as it goes, it is obviously incomplete ; for there to°exerdse are some few constitutional customs or habits which ofPfiia- mentary have no reference to the exercise of the royal power, privilege. Such, for example, is the understanding — a very vague one at best — that in case of a permanent con- flict between the will of the House of Commons and 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 understand- ing 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; 424 LA W AND CONVENTIONS OF CONSTITUTION Part III. understandings which regulate the exercise of privilege determine, or are meant to determine, the way in which the other members of the sovereign body 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," ^ 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 under- coustitution are (in the main) rules for determining standings, ^j^^^ excrcise 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 1 See p. 37, ante. NATURE OF CONVENTIONS OF CONSTITUTION 425 of the distinction already insisted upon^ between Chapter " legal " sovereignty and " political " sovereignty. L Parliament is, from a merely legal point of view, the absolute sovereign of the British Empire, since every Act of Parliament is binding on every Court through- 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 sovereign of 1 See pp. 68-73, ante. 426 LA W AND CONVENTIONS OP CONSTITUTION Part III. 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 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, through 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 efi"ect, 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 NATURE OF CONVENTIONS OP CONSTITUTION 427 and control of the government mainly to the House Chaptei XIV of Commons is at bottom a rule which gives the 1 election and ultimate control of the executive to the nation. The same thing holds good of the under- standing, or habit, in accordance with which the 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.^ 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 represents 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 1 Mr. Hearn denies, as it seems to me on inadequate grounds, the existence of this rule or understanding. See Heara, Government of England (2nd ed.), p. 178. 428 LA W AND CONVENTIONS OF CONSTITUTION Part III. 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.^ Rules as By far the most striking example of the real sense uon'ofPar- attaching to a whole mass of constitutional conven- liament. tious is fouud in a particular instance, which appears at first sight 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- 1 Compare Bageliot, English Constitution, pp. 25-27. NA TURK OF CONVENTIONS OF CONSTITUTION 429 tion is in its essence an appeal from the legal to the Chapter 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. This is the doctrine established by the celebrated The dis- contests of 1784 and of 1834. In each instance the im'and" King dismissed a Ministry which commanded the ^^^^' confidence of the House of Commons. In each case 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.^ 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 1 See Appendix, Note VII., The Meaning of an Unconstitutional Law. 430 LA W AND CONVENTIONS OF CONSTITUTION Part III. 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 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 Eevolution Families, NATURE OF CONVENTIONS OF CONSTITUTION 431 behind Parliament itself, lay what Chatham calls the Chapter " great public," and what we should call the nation, 1 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 enough) from the sovereignty of Parliament, of which he had always been the ardent champion, to that 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 aflBrmed decisively the fundamental principle of our existing constitution that not Parlia- ment 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 432 LA W AND CONVENTIONS OF CONSTITUTION Part in. represent the opinion of the nation. Now if it be constitutionally right for the Crown to appeal from Parliament 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 representatives. 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 dissolution is constitutional, whenever there is valid and reasonable ground for supposing that their Parliamentary representatives have ceased to represent their wishes. The con- stitutionality 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 dissolution of Parliament are, like other conventions of the constitution, intended to secure the ultimate supremacy 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 fundamental principle of popular sovereignty. The necessity for dissolutions stands in close connection with the existence of Parliamentary NATURE OF CONVENTIONS OF CONSTITUTION 433 sovereignty. Where, as in the United States, no Chapter legislative assembly is a sovereign power, the right of dissolution may be dispensed with ; the con- ^^f 0° °' stitution provides security that no change of vital fg^pj^'j^^'^ importance can be eflfected without an appeal to the mentary people ; and the change in the character of a legisla- reignty. tive 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 public. Where Parliament is supreme, some further 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 revolution had been necessarily preceded by an appeal to the electorate. Here, as elsewhere, the constitutionalism of America proves of a more rigid type than the constitutionalism of England. Still, under the con- ditions 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 sympathy 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 2 F 434 LA W AND CONVENTIONS OF CONSTITUTION Part III. 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 constitutional conventions which, in one way or another, are intended to produce harmony between the legal and the political sovereign power. CHAPTEE XV THE SANCTION BY WHICH THE CONVENTIONS OF THE CONSTITUTION AEE ENFORCED What is the sanction by which obedience to the Chapter conventions of the constitution is at bottom en- '_ forced ? This is bv far the most perplexing of the specula- The . , . „ . . , problem to tive questions suggested by a : study ot constitutional be solved. 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 difficulty 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 tQ 43s 436 LA W AND CONVENTIONS OF CONSTITUTION Part m. remain at the head of the government, — no one could deny that such a Prime Minister had acted uncon- 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 King should refuse his assent to the measure, or (in popular language) put his "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.^ 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. Partial The difficulty of the problem before us cannot answer, . ■, ■, ■. . , „ , that con- indeed be got rid of, but may be shifted and a good st^itutionai ^^^ lessened, by observing that the invariableness oftenT of the obedience to constitutional understand- obeyed. ings is itsclf morc or less fictitious. The special articles of the conventional code are in fact often 1 See 4 Edward III. c. 14 ; 16 Car. II. c. 1 ; and 1 Will. & 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. SANCTION OF CONVENTIONS OP CONSTITUTION 437 disobeyed. A Minister sometimes refuses to retire Chapter when, as his opponents allege, he ought constitu- L 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 dej&ed 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. Yet, though the obedience supposed to be rendered But prin- to the separate understandings or maxims of public conformity life is to a certain extent fictitious, the assertion that tL'nati^on they have nearly the force of law is not without *J,'^y^^_ 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- 438 La iV AND CONVENTIONS OF COMsTlWTlON Partm. sequence) though particular understandings are of uncertain obligatioa, neither the Crown nor any 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 the 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. In^wf "* ^ ""^P^^ "^"""^ '"^^^^ suggested than formulated in Impeach- SO many words, is that obedience to the conventions of the constitution is ultimately enforced by the fear 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, ment. SANCTION OF CONVENTIONS OF CONSTITUTION 439 and their sole peculiarity would lie in their being Chapter laws the breacli of which, could be punished only by L 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 tbe 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 the retirement from office of a modern Prime Minister, when placed in a hopeless minority, is, and has long been, 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, impeachinent, as a means for enforcing the observance of constitiitional 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 Parlia,ment 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 440 LA W AND CONVENTIONS OF CONSTITUTION Part III. if Parliament should assemble. If the fear of Parlia- mentary punishment were the only difficulty in the 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. Power of A second and current answer to the question opinion, uudcr Consideration is, that obedience to the conven- 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 SANCTION OF CONVENTIONS OF CONSTITUTION 441 going into the Gazette, nor does the universal execra- Chapter 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. What then is this "something"? My answer is. True that it is nothing else than the force of the law. The obedient dread of impeachment may have established, and *°,^°'''''°- public opinion certainly adds influence to, the pre- ^"f°™^^ vailing dogmas of political ethics. But the sanction of law. which constrains the boldest political adventurer to obey the fundamental principles of the constitution and the conventions in which these principles are 442 LA W AND CONVENTIONS OF CONSTITUTION Part III. expressed, is the fact that the breach of these principles and of these conventions will almost 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. Expiana- The meaning of the statement that the received 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. Yearly No rulc is better established than that Parliament meeting of Pariia- must assemble at least once a year. This maxim, as before pointed out, is certainly not derived from the 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 gener- ally, that any Ministry who at the present day sanctioned or tolerated this violation of the con- stitution, 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 Army (Annual) Act would in the first place expire. Hence the Army Act, on which the discipline SANCTION OP CONVENTIONS OF CONSTITUTION 443 of the army depends, would cease to be in force.^ Chapter But thereupon all means of controlling the army 1 without a breach of law would cease to exist. Either tbe 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 down- wards, who took part in the control of the army, and indeed every soldier who carried out the commands 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 compel 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 ^ In popular, though inaccurate language, " the Mutiny Act would expire." See note 2, p. 305 ante. 444 LA W AND CONVENTIONS OF CONSTITUTION Part m. the like, unconnected with the administration. None of these officials, it should be noted, could receive from the government or the Crown any protection against legal liability ; and any person, e.g. the Com- mander-in-Chief, or the colonel of a regiment, who employed force to carry out the policy of the govern- ment would be exposed to resistance supported 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-respect- ing citizens to refuse obedience to illegal commands. 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,^ or of that wide discretionary authority which is possessed by every continental government. The result is, that an administration which attempted to dispense with the annual meeting of Parliament could not ensure the obedience even of its own officials, and, unless prepared 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 enforced 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 there- ■' See chap, xii., ante. SANCTION OF CONVENTIONS OF CONSTITUTION 445 fore of the constitution is in reality based upon, and Chapter 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 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 Resigna- the effect of disobedience by the government to one Ministry of the most purely conventional among the maxims J^st'^con-'^ of constitutional morality, — the rule, that is to say, ^^^ g^^ge that a Ministry ought to retire on a vote that they ofCom- J Ibid. 8. 128. A USTRALIAN FEDERALISM 535 unless the majority of the electors voting in that State approve of the change. 1 What may be the working of new institutions no one will venture confidently to predict; but a critic of constitutions may entertain the hope that Australian statesmanship has accomplished the feat of framing a polity which shall have the merits both of a rigid and of a flexible constitution, which cannot hastily be changed, but yet admits of easy amendment, whenever alteration or reform is demanded by the deliberate voice of the nation. D, Maintenance of the Eelation toith the United Kingdom The founders of the Commonwealth have admittedly been influenced at once by a growing sense of Australian nationality, and by enduring, or even increasing loyalty to the mother- country. The one sentiment has been satisfied by the union of the Australian colonies under a federal government which secures to the people of Australia as complete power of self- government as is compatible with the position of a colony that desires to form part of the British Empire. The other sentiment has been satisfied by placing the Commonwealth itself as regards the mother-country in the position of a self-governing colony, and also by leaving the relation between each State of the Commonwealth and the United Kingdom as little disturbed as is compatible with the creation of the Australian Commonwealth. Each point is worth notice. The Commonwealth of Australia itself is, as regards the Crown and the Imperial Parliament, nothing but a large self- governing colony. Thus the Governor-General is appointed by the Crown, i.e. by the English ministry, and fills substantially the same position as, before the formation of the Commonwealth, was occupied by the Governor, e.g., of Victoria. A bill passed by the Parliament of the Commonwealth, whether it be an ordinary law or a law which, because it affects the constitution, has been submitted to the electors for their approval, requires in order that it may become an Act the assent of the Crown,^ and the Crown can negative or veto bills passed by the Parliament of the Commonwealth just as it could, and still can, veto bills passed by the Parliament, e.g., of Victoria. The Imperial Parliament, again, has the admitted right, though it is a right which, except at the wish of the Australian people, would most rarely be exercised, to legislate for Australia, or even to ' Constitution, s. 28, 2 Constitution, ss. 1, 58, 59, and 128. 536 APPENDIX modify the constitution of the Australian Commonwealth. An appeal further lies on most subjects from the decisions of the federal Supreme Court to the English Privy Council, and even the limitations placed on such appeals when certain questions as to the Commonwealth constitution are raised are themselves subject to some qualifications.^ The broad result therefore is that as regards the Commonwealth the connection with the United Kingdom is retained, and the sovereignty of the Imperial Parliament is untouched. The position of any State of the Commonwealth in regard to the United Kingdom remains pretty much what it was when the State, e.g. Victoria, was still merely a self-governing colony. The G-overnor of Victoria is now, as then, appointed by the Crown, i.e. by the English ministry. A bill passed by the Victorian Parliament still, in order that it may become an Act, requires the assent of the Crown. The Government of the Commonwealth possesses no power of putting a veto on bills passed by the Victorian Parliament. The right of appeal from a Court of Victoria to the English Privy Council stands, in most matters at any rate, substantially where it did before the passing of the Australian Commonwealth Act, except indeed that there is an alternative right of appeal to the High Court of Australia, for " the Constitution grants a new right of appeal " from the State Courts to the High Court, but does not take "away the existing right of appeal from the State Courts to " the Privy Council, which therefore remains unimpaired." ^ The peculiarities of Australian federalism receive illustration ^ See Constitution, ss. 71, 73, 74. '^ Quick and Garran, Annotated Oonstitution, p. 738. Thus an appeal lies from the Supreme Court of each of the States to the Privy Council from any decision of their Courts ; as of right in circumstances defined in the several instruments constituting the Courts ; by special leave from the Privy Council in all oases without exception. This rule applies to the exercise of any jurisdic- tion, whether State or federal, vested in the State Courts, but the State Courts have not full federal jurisdiction. Prom their power are excepted all cases involving the relation inter se of the States, and the States and the Common- wealth. Appeals lie also from the State Courts to the High Court of Australia in matters both of State and federal jurisdiction on terms defined in the Judicature Act, 1903, of the Commonwealth Parliament. The appellant has of course the choice of appeal. There is nothing to prevent an appeal from such Courts to decide whether any particular case falls under sec. 74 of the constitution or not. Nor is there any mode of preventing contradictory decisions on matters other than questions arising as to the limits inter se of the constitutional powers of the Commonwealth and those of any State or States, or to the limits inter se of the constitutional powers of any two or more States which cannot reach the Privy Council. The High Court further is not bound to accept the rulings of the Privy Council as superior to its own except in those cases where an actual appeal is successfully brought not from the Superior Court of a State, but from the High Court to the Privy Council, AUSTRALIAN FEDERALISM 537 from a comparison between the constitution of the Canadian Dominion 1 and the constitution of the Australian Common- wealth. The Dominion is from one point of view more, and from another point of view less, directly subject to the control of the Imperial Parliament than is the Commonwealth. The Dominion is more completely subject than the Commonwealth, because the greater part of the Canadian constitution - can be amended only by an Act of the Imperial Parliament, whilst the Australian con- stitution can be amended by the people of the Commonwealth ; this distinction, it is well to add, sounds more important than it is in reality, since we may feel morally certain that the Imperial Parliament would introduce any amendment into the constitution of the Dominion which was deliberately desired by the majority at once of the people and of the Provinces of the Dominion. The Dominion of Canada, on the other hand, is less subject to the Imperial Parliament than is the Commonwealth, because the Provinces of the Dominion are in a sense less directly connected with the Imperial Government and Parliament than are the States of the Commonwealth. Here however we come across the most important distinction between Canadian federalism and Australian federalism, namely, the difference of the relation of the federal power to the States, or, as in the case of Canada they are called, the Provinces, of the federation. The Dominion possesses all the residuary powers which are not under the Constitution conferred exclusively upon the Provinces ; the Commonwealth possesses only those powers which are conferred upon it by the Constitution, whilst all the residuary powers not conferred upon the Commonwealth belong to the States. The government of the Dominion, again, can exercise very considerable control over the legislation of the Provincial legis- latures and over the administration of the Provinces ; the government of the Dominion can in all cases put a veto upon laws passed by the Provincial Parliaments ; the government of the Dominion appoints the judges of the State Courts; the government of the Dominion, lastly, can appoint and dismiss the Lieutenant-Governor of any Province, who therefore is neither an Imperial official nor a Provincial official, but a Dominion official. ^ See Munro, Gonstitution of Canada. 2 But certain important though limited powers are under the constitution itself, i.e. the British North America Act, 1867, given to the Dominion Parliament and to the Provincial legislatures, enabling them from time to time to amend their con- stitutions (Munro, Gonstitution of Ganada, p. 229). See e.g. B.N.A. Act, 1867, ss. 35, 41, 45, 78, 83, 84. 538 APPENDIX NOTE X MARTIAL LAW IN ENGLAND DUKING TIME OF WAR OR INSURRECTION 1 The question for our consideration is, on what principle, and within what limits, does armed resistance to the authority of the Crown, either on the part of an invading army, or on the part of rebels or rioters, afford a legal justification for acts done in England by the Crown, its servants, or loyal citizens, which, but for the existence of war or insurrection, would be breaches of law ? In considering this question two preliminary observations must be borne in mind. The first is that this note does not treat of several topics which are often brought within the vague term, martial law. It does not refer to Military Law, i.e. the rules contained in the Army Act and the Articles of War for the government of the Army and of all persons included within the term "persons subject to military law " ; it has no reference to the laws that govern the action of an English General and his soldiers when carrying on war in a foreign country, or in their treatment of foreign invaders of England ; it has no reference to transactions taking place out of England, or to the law of any other country than England. It does not refer, e.g., to the law of Scotland oi- of Jersey. The second observation is that, in regard to the subject of this note, we must constantly bear in mind the broad and fundamental principle of English law that a British subject must be presumed to possess at all times in England his ordinary common-law rights, and especially his right to personal freedom, unless it can be conclusively shown, as it often may, that he is under given circumstances deprived of them, either by Act of Parliament or by some well-established principle of law. This ' See Law Quarterly Review, xviii., Holdsworth, Martial Law Historically Considered, pp. 117-132; Richards, Martial Law, ibid. pp. 133-142; Pollock, What is Martial Law ? ibid. pp. 152-158 ; Dodd, Tlie Case of Marais, Hid. pp. 143-151. The Case of Ship Money, 3 St. Tr. 826 ; Wall's Case, 28 St. Tr. 61 ; Expa/rte D. F. Marais [1902], A. C. 109 ; Forsyth, Cases and Opinions, ch. vi. p. 188 ; Clode, Military Forces of the Grown, ii. oh. xviii. Mx parte Milligan (Am.), 4 Wall. 2, and Thayer, Cases on Constitutional Law, ii. p. 2376. This, and the other American cases on martial law, though not authorities in an English Court, contain an exposition of the common law in regard to martial law which deserves the most careful attention. See also Note IV., Right of Self-Defence ; Note V., Right of Public Meeting ; Note VI., Soldiers and Unlawful Meeting, ante. MARTIAL LAW 539 presumption in favour of legality is an essential part of that rule of law 1 which is the leading feature of English institutions. Hence, if any one contends that the existence of a war in Eng- land deprives Englishmen of any of their common-law rights, e.g. by establishing a state of martial law, or by exempting military officers from the jurisdiction of the civil Courts, the burden of proof falls distinctly upon the person putting forward this con- tention. Our topic may be considered under three heads ; first, the nature of martial law ; secondly, the inferences which may be drawn from the nature of martial law ; thirdly, certain doctrines with regard to martial law which are inconsistent with the view propounded in this note. A. Nature of Martial Law " Martial law," in the sense in which the expression is here used, means the power, right, or duty of the Crown and its servants, or, in other words, of the Government, to maintain public order, or, in technical language, the King's peace, at what- ever cost of blood or property may be in strictness necessary for that purpose. Hence martial law comes into existence in times of invasion or insurrection when, where, and in so far as the King's peace cannot be maintained by ordinary means, and owes its existence to urgent and paramount necessity.^ This power to maintain the peace by the exertion of any amount of force strictly necessary for the purpose is sometimes described as the prerogative of the Crown, but it may more correctly be considered, not only as a power necessarily possessed by the Crown, but also as the power, right, or diity possessed by, or incumbent upon, every loyal citizen of preserving or restoring the King's peace in the case, whether of invasion or of rebellion or generally of armed opposition to the law, by the use of any amount of force whatever necessary to preserve or restore the peace. This power or right arises from the very nature of things. No man, whatever his opinions as to the limits of the prerogative, can question the duty of loyal subjects to aid, subject to the command of the Crown, in resistance, by all necessary means, to an invading army.^ Nor can it be denied 1 See chap, iv., ante. 2 See Kent, Oomm. i. p. 341, and opinion of Sir John Camptell and Sir E. M. Eolfe, Forsyth, Opinions on Constitutional Law, pp. 198, 199. s -See especially the Case of Skip Money, 3 St. Tr. 860, 905, 974, 975, 1011- 1013, 1134, 1149, 1162, and 1214. 540 APPENDIX that acts, otherwise tortious, are lawful when necessary for the resistance of invaders.'- " When enemies come against the realm to the sea coast, it is " lawful to come upon my land adjoining to the same coast, to " make trenches or bulwarks for the defence of the realm, for " every subject hath benefit by it. And, therefore, by the " common law, every man may come upon my land for the " defence of the realm, as appears 8 Ed. IV. 23. And in such " case or such extremity they may dig for gravel for the making " of bulwarks : for this is for the public, and every one hath " benefit by it. . . . And in this case the rule is true, Princeps et " respublica ex justa causa possunt rem meam auferre." ^ So to the same effect counsel for the defence in the Case of Ship Money. " My Lords, in these times of war 1 shall admit not only His " Majesty, but likewise every man that hath power in his hands, " may take the goods of any within the realm, pull down their " houses, or burn their corn, to cut off victuals from the enemy, " and do all other things that conduce to the safety of the king- " dom, without respect had to any man's property." * And though these authorities refer, as is worth noticing, to interferences with rights of property and not to. interferences with personal freedom, between which there exist considerable differences, it will not (it is submitted) be disputed that, in case of invasion, a general and his soldiers acting under the authority of the Crown may lawfully do acts which would otherwise be an interference with the personal liberty, or even, under con- ceivable circumstances, which may cause the death of British subjects, if these acts are a necessary part of military operations. The point to be borne in mind is that the power to exercise martial law, which is not ill-described by an expression known to the American Courts, viz. the " war power," as it originates in, so it is limited by, the necessity of the case.* On this matter note the opinion of Sir J. Campbell and Sir E. M. Rolfe that " martial law is merely a cessation from neces- " sity of all municipal law, and what necessity requires it " justifies " ; ^ and this description of the circumstances which justify martial law also implies the limits within which it is 1 See 1 Dyer, 366. 2 12 Rep. 12. ' Case of Ship Money, 3 St. Tr. 826, 906. Compare especially the language of Holborne in the same case at p. 975, and language of BuUer, J., in British Cast Plate Manufacturers v. Meredith, 4 T. R. at p. 797. * See especially opinion of Henley and Yorke, Forsyth, pp. 188, 189 ; opinion of Hargrave, ibid. pp. 189, 190 ; opinion of Sir John Campbell and Sir R. M. Rolfe, ibid. pp. 198, 199. » Forsyth, p. 201. MARTIAL LA W 541 justifiable ; these have been stated with truth, if not with the precise accuracy of legal argument, by Sir James Mackintosh. " The only principle on which the law of England tolerates " what is called Martial Law is necessity ; its introduction can " be justified only by necessity ; its continuance requires pre- " cisely the same justification of necessity ; and if it survives the " necessity on which alone it rests for a single minute, it becomes " instantly a mere exercise of lawless violence. When foreign " invasion or Civil War renders it impossible for Courts of Law " to sit, or to enforce the execution of their judgments, it " becomes necessary to find some rude substitute for them, and " to employ for that purpose the Military, which is the only " remaining Force in the community. While the laws are silenced " by the noise of arms, the rulers of the Armed Force must " punish, as equitably as they can, those crimes which threaten " their own safety and that of society ; but no longer." ^ The existence of martial law thus understood, taken in com- bination with the rules of the common law as to the duty of loyal subjects, gives very wide authority in England to all persons, and of course above all to a general engaged in repelling an invasion. He holds the armed forces completely under his control ; they are governed by military law ; ^ so too are all citizens who, though not in strictness soldiers, are persons subject to military law ; and in this connection it must be remembered that the King and his servants have a right to call for the help of every loyal subject in resisting an invasion,^ whence it follows that the number of persons subject to military law may be greatly, indeed almost indefinitely, increased. A general again is clearly entitled to use or occupy any land which he requires for the purpose of military operations and may, if he see fit, erect fortifications thereon, and generally he has the right to use land or any other property which is required for the conduct of the war. It is again his right, and indeed his duty, when the necessity arises, to inflict instant punishment upon, and even, if need be, put to death, persons aiding and abetting the enemy or refusing such aid to the English army as can fairly be required of them. It is indeed difficult to picture to one's self any legitimate warlike operation or measure which, while war is raging in England, a general cannot carry out without any breach of the law whatever. Let it too be noted that what is true of a general holds good of every loyal subject according to his situation and the authority which he derives from it, e.g. of a ' Cited Clode, MUUary Forces of the Crown, ii. p. 486. ^ See chaps, viii. and ix., ante. 3 See Case of Ship Money, 3 St. Tr. 826, 975. 542 APPENDIX subordinate officer, of a magistrate, or even of a private citizen who is helping to resist an invader. Eeal obvious necessity in this case not only compels but justifies conduct which would otherwise be wrongful or criminal. To this add the considera- tion, which has been strongly insisted upon by several able writers, that the conditions of modern warfare, such as the existence of the telegraph, whereby acts done, e.g., in London may affect military operations, e.g., in Northumberland, greatly extend the area of necessity, and may, conceivably at least, make it legally allowable, when war or armed insurrection exists in the north of England, to interfere summarily and without waiting for legal process with the freedom of persons residing in Loijdon or Bristol. However this may be, it is clear that the existence of the necessity which justifies the use of so-called martial law must depend on the circumstances of each case. The fact that necessity is the sole justification for martial law or, in other words, for a temporary suspension of the ordinary rights of English citizens during a period of war or insurrection, does however place a very real limit on the lawful exercise of force by the Crown or by its servants. The presence of a foreign army or the outbreak of an insurrection in the north of England, may conceivably so affect the state of the whole country as to justify measures of extra-legal force in every part of England, but neither war nor insurrection in one part of the country prima fade suspends the action of the law in other parts thereof. The fact that the Pretender's army had advanced with unbroken success to Derby did not deprive the citizens of London of the ordinary rights of British subjects. No one has ever suggested that it would have justified the summary execu- tion at Tyburn of an Englishman there found guilty of treason by a court-martial. It is not easy to believe that, without a breach of the law of England, an Englishman imprisoned in London on a charge of high treason could have been taken to a part of the country where in 1745 war was raging, in order that he might there be tried and executed under the authority of a court-martial.i Nor does the consideration that the summary execution of rebels, whose crimes could be punished by the ordinary course of law, may check the spread of treason, show that their execution is necessary or legal. We need not, more- ^ If the language in the Charge of Blackburn, J., Reg. v. Eyre, p. 84, be cited in support of the possible legality of such a transaction, it must be remembered that Blackburn's hypothetical apology for Governor Eyre was based on certain statutes passed by the legislature of Jamaica, and that the whole tendency of the Charge of Cookbnrn, C. J., in Reg. v. Ndson, is to show that the execution of Gordon was illegal. MARTIAL LA W 543 over, confine our observation to cases of punishment. It is easy to imagine circumstances under which the arrest and imprisonment on suspicion of persons who are not guilty, or cannot be proved guilty of crime, may be salutary and expedient, but such arrest or imprisonment cannot be legally justified unless it be a matter of necessity.! If it be urged, that the respect due in England to the ordinary law of the land places restrictions which may be inconvenient or even noxious on the exercise of the authority of the Crown and its servants, the truth of the observation may be admitted. The reply to it is twofold : first, that the mainten- ance of the legal rights of citizens is itself a matter of the highest expediency ; secondly, that whenever at a period of national danger a breach of law is demanded, if not by absolute necessity, yet by considerations of political expediency, the lawbreaker, whether he be a general, or any other servant of the Crown, who acts bond fide and solely with a view to the public interest, may confidently count on the protection of an Act of Indemnity. Nor is it irrelevant at this point to note the striking analogy between the right of an individual to exercise force, even to the extent of causing death, in self-defence, and the right of a general or other loyal citizen to exercise any force whatever necessary for the defence of the realm. In either case the right arises from necessity. An individual may use any amount of force necessary to avert death or grievous bodily harm at the hands of a wrongdoer,^ but, if he kills a ruflRan, he must to justify his conduct show the necessity for the force employed in self- protection. So a general, who under martial law imprisons or kills British subjects in England, must, if he is to escape punish- ment, justify his conduct by proving its necessity. The analogy between the two cases is not absolutely complete, but it is sug- gestive and full of instruction. Observe, further, that the principle which determines the limits of martial law is the principle which also determines the rights and duties of magistrates, of constables, and of loyal citizens generally when called upon to disperse or prevent unlawful assemblies or to suppress a riot. No doubt the degree and the area of the authority exercised by a general when resisting an invading army is far greater than the degree and the area of the authority exercised by a mayor, a magistrate, or a con- stable when called upon to restore the peace of a town disturbed by riot, but the authority though difi'ering in degree has the same object and has the same source. It is exercised for the ^ See specially language of Holborne, Case of Ship Money, 3 St. Tr. p. 975. "- See App., Note IV., The Eight of Self-Defence, p. 489, ante. 544 APPENDIX maintenance of the King's peace ; it is justified by necessity. So true is this, that, when you need to fix the limits of martial law, you are compelled to study the case of E. v. Pinney,'^ which refers not to the power and authority of a general in command of soldiers, but to the duty of the Mayor of Bristol to suppress a riot. In every case in which the legal right or duty arises to maintain the King's peace by the use of force, there will be found to exist two common features. The legal right, e.g. of a general or of a mayor, to override the ordinary law of the land is, in the first place, always correlative to his legal duty to do so. Such legal right or duty, in the second place, always lasts so long, and so long only, as the circumstances exist which necessitate the use of force. Martial law exists only during time of war ; the right of a mayor to use force in putting an end to a riot ceases when order is restored, just as it only begins when a breach of the peace is threatened or has actually taken place. The justification and the source of the exercise in England of extraordinary or, as it may be termed, extra-legal power, is always the necessity for the preservation or restoration of the King's peace. B. Conclusions From the nature of martial law ^ follow four conclusions : — First. — Martial law cannot exist in time of peace. This is on all hands admitted.^ What, then, is the test for determining whether a state of peace exists at a given time, in a given part of England, say London ? The answer is that no unfailing test is to be found ; the existence of a state of peace is a question of fact to be determined in any case before the Courts in the same way as any other such question.* According, indeed, to a number of old and respectable authorities, a state of war cannot exist, or, in other words, a state of peace always does exist when and where the ordinary Courts are open. But this rule cannot, it would seem, be laid down as anything like an absolute principle of law, for the fact that for some purposes some tribunals have been permitted to ^ 3 St. Tr. (n. s.) 11, with which compare Blackburn's Charge in R. t. Eyre, pp. 58, 59. ^ Cookburn's Charge, Reg. •/. Nelson, p. 85. ' Compare Ex parte D. F. Marais [1902], A. C. 109 ; Ex parte MiUigan, i Wall. 2 (Am,). ^ Whether the Courts may not take judicial notice of the existence of a state of war ? MARTIAL LAW 545 pursue their ordinary course in a district in which martial law has been proclaimed, is not conclusive proof that war is not there raging.i Yet the old maxim, though not to be accepted as a rigid rule, suggests, it is submitted, a sound principle. At a time and place where the ordinary civil Courts are open, and fully and freely exercise their ordinary jurisdiction, there exists, presumably, a state of peace, and where there is peace there cannot be martial law. " If, in foreign invasion or civil war, the Courts are actually 'closed, and it is impossible to administer criminal justice ' according to law, then, on the theatre of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to ' preserve the safety of the army and society ; and as no power ' is left but the military, it is allowed to govern by martial rule ' until the laws can have their free course. As necessity creates ' the rule, so it limits its duration ; for, if this government is ' continued after the Courts are reinstated, it is a gross usurpation ' of power. Martial rule can never exist where the Courts are ' open, and in the proper and unobstructed exercise of their ' jurisdiction. It is also confined to the locality of actual 'war." 2 Secondly. — The existence of martial law does not in any way depend upon the proclamation of martial law. The proclamation of martial law does not, unless under some statutory provision, add to the power or right inherent in the Government to use force for the repression of disorder, or for resistance to invasion. It does not confer upon the Government any power which the Government would not have possessed without it. The object and the effect of the proclamation can only be to give notice, to the inhabitants of the place with regard to which martial law is proclaimed, of the course which the Government is obliged to adopt for the purpose of defending the country, or of restoring tranquillity.* Thirdly. — The Courts have, at any rate in time of peace, jurisdic- tion in respect of acts which have been done hy military authorities and others during a state of war.^ " The justification of any particular act done in eC state of war 1 Ex parte D. F. Marais [1902], A. C. 109. ^ Ex parte Milligan, 4 Wall. 2 ; Thayer, Cases on Constitutional Law, pait iv. p. 2390. ^ See opinion of Camptell and Kolfe, Forsyth, p. 198. * See Cockbum's Charge, Reg. v. Nelson ; Blackburn's Charge, Reg. v. Eyre : Ex parte Milligan, i Wall. 2 ; and compare Wall's Case, 28 St. Tr. 51. Wright v. Fitzgerald, 27 St. Tr. 759. 2n 546 APPENDIX " is ultimately examinable in the ordinary Courts, and the prior "question, whether there was a state of war at a given time and " place, is a question of fact." ^ The truth of this statement of the law is almost self-evident. A sues X in the High Court for assault and for false imprison- men ; X justifies the alleged assault on the ground that X was at the time of the act complained of the colonel of a regiment, and that the alleged assault was the arrest and imprisonment of ^ by Z under the orders, say, of the Commander-in-Chief, during a time of war and after the proclamation of martial law. The defence may or may not be good, but it is certain that the Courts have, at any rate after the restoration of peace, jurisdic- tion to inquire into the facts of the case, and that one of the necessary inquiries is whether a state of war did exist at the time when A was arrested, though it is quite possible that the exist- ence of a state of war may be a fact of which the Courts take judicial notice. Expressions, indeed, have been used in a recent case ^ which, if taken alone, might seem to assert that the ordinary Courts have no jurisdiction in respect of acts which have been done by military authorities in time of war. But the very width of the language used by the Privy Council in Ex parte D. F. Marais warns us that it must be limited to the circumstances of the particular case. It does not necessarily assert more, and as regards transactions taking place in England, cannot be taken to mean more than that the Courts will not, as indeed they in strictness cannot, interfere with actual military operations, or, whilst war is actually raging, entertain proceedings against military men and others for acts done under so-called martial law. The judgment of the Privy Council, in short, whatever the application of its principles to England, asserts nothing as to the jurisdiction of the Courts when peace is restored in respect of acts done during time of war, and eminent lawyers have held that even in time of war the exercise of jurisdiction by the ordinary Courts is rather rendered impossible than superseded. " The question, how far martial law, when in force, super- " sedes the ordinary tribunals, can never . . . arise. Martial "law is stated by Lord Hale to be in truth no law, but some- " thing rather indulged than allowed as a law, and it can only " be tolerated because, by reason of open rebellion, the enforcing " of any other law has become impossible. It cannot be said in "strictness to supersede the ordinary tribunals, inasmuch as it 1 Sir F. Pollock, WluU is Martial Lawt L.Q.K. xvlii. pp. 156, 157. ^ Ex parte D. F. Marais [1902,] A. C. 109, 114, 116, judgment of Privy Council. MARTIAL LAW 547 " only exists by reason of those tribunals having been already " practically superseded." ^ Fowrthly. — The protection of military men and others against actions or prosecutions in respect of unlawful acts done during a time of war, bond fide, and in the service of the country, is an Act of Indemnity.^ An Act of Indemnity is a statute the object of 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. Statutes of this description have been invariably, or almost invariably, passed after the determination of a period of civil war or disturbance, e.g. after the Rebellions of 1715 and of 1745,^ and their very object has been to protect officials and others who, in the interest of the country, have in a time of danger pursued an illegal course of conduct, e.g. have imprisoned citizens whom they had no legal authority to imprison. For our present purpose it is absolutely essential to appreciate the true character of an Act of Indemnity. Such a statute has no application to conduct which, however severe, is strictly lawful. A magistrate who, under proper circumstances, causes an unlawful assembly to be dispersed by force, or an officer who, under proper circumstances, orders his troops to fire on a mob and thereby, in dispersing the mob, wounds or kills some of the crowd, neither of them require to be indemni- fied. They are sufficiently protected by the common -law justification that in discharge of their duty they used the force, and no more than the force necessary to maintain the King's peace. A general, an officer, a magistrate, or a constable, on the other hand, who, whether in time of war or in time of peace, does without distinct legal justification, any act which injures the property or interferes with the liberty of an Englishman, incurs the penalties to which every man is liable who commits a breach of the law. The law-breaker's motives may be in the highest degree patriotic, his conduct may be politically sagacious, and may confer great benefit on the ptiblic, but all this will not, in the absence of legal justification, save him from liability to an action, or, it may be, to a prosecution ; he needs for his pro- tection an Act of Indemnity. On this point note the words of a judge of the highest reputation, who was by no means inclined to minimise the authority of the Crown and its servants. "Where the inquiry is, whether an officer is guilty of ' Joint opinion of Sir J. CamplDell and Sir E. M. Eolfe, cited Forsyth, p. 199. 2 See pp. 47, 228, ante. " See Clode, Military Forces of the Crown, ii. pp. 164, 165 ; 1 Geo. I. St. 2, 0. 39, and 19 Geo. II. c. 20. 548 APPENDIX "misdemeanour from an excess beyond his duty, the principle " is very much the same, or rather it is the complement of that " laid down in the case of Rex v. Finney. If the officer does " some act altogether beyond the power conferred upon him by " law, so that it could never under any state of circumstances have "been his duty to do it, he is responsible according to the " quality of that act ; and even if the doing of that illegal act " was the salvation of the country, that, though it might be a " good ground for the Legislature afterwards passing an Act of " Indemnity, would be no bar in law to a criminal prosecution ; " that is, if he has done something clearly beyond his power. " But if the act which he has done is one which, in a proper state " of circumstances, the officer was authorised to do, so that in "an extreme case, on the principle laid down in B. v. Finney, " he might be criminally punished for failure of duty for not "doing it, then the case becomes very different." ^ This passage from Blackburn's charge suggests further the proper answer to an objection which is sometimes raised against the view of martial law maintained in this treatise. How, it is urged, can it be reasonable that a man should be liable to punishment, and therefore need an indemnity for having done an act {e.g. having by the use of force dispersed the mob) which it was his duty to do, and for the omission to do which he might have incurred severe punishment 1 The answer is, that the supposed difficulty or dilemma cannot in reality arise. The apparent or alleged unreasonableness of the law is created by the ambiguity of the word duty, and by confusing a man's " legal duty " with his " moral duty." Now, for the non-performance of a man's legal duty, he may, of course, be punished, but for the performance of a legal duty he needs no Act of Indemnity. For the performance, on the 6ther hand, of any moral duty, which is not a legal duty, a man may un- doubtedly, if he thereby infringes upon the rights of his fellow- citizens, expose himself to punishment of one kind or another, and may therefore need an Act of Indemnity to protect him from the consequences of having done what is legally wrong, though, under the peculiar circumstances of the case, morally right. But then, for the non-performance of a merely moral duty, he will not incur the risk of punishment. If the Mayor of Bristols omits, by the use of the necessary force, to put down a riot, this omission undoubtedly exposes him to punishment, since he neglects to perform a legal duty ; but if he does perform his duty, and by the use of a proper amount of force puts down ■ Blackburn's Charge, He;/, v. Eyre, p. 58. MARTIAL LAW 549 the riot, he incurs no legal liability to punishment, and needs no Act of Indemnity for his protection. If, on the other hand, at a period of threatened invasion or rebellion, a magistrate, without any legal authority, arrests and imprisons on suspicion a number of persons whom he holds to be disloyal, he may be performing a moral duty, and, if his view of the state of things turns out right, may have rendered a great service to the country ; but he assuredly needs an Act of Indemnity to protect him from actions for false imprisonment. But, and this is the point to note, if our magistrate be a man of more prudence than energy, and omits to arrest men whom ex hypothesi he has no legal right to arrest, his conduct may incur the blame of patriots, but cannot bring him before the Courts. A man, in short, may be punished for having omitted to do an act which it is his legal duty to perform, but needs no Act of Indemnity for having done his legal duty. A man, on the other hand, who does a legal wrong, whilst performing a moral which is not a legal duty does require an Act of Indemnity for his protection, but then a man will never incur punishment for the simple omission to perform a merely moral duty. C. Other Doctrines vnth regard to Martial Law In opposition to the view of martial law upheld in this treatise, which may conveniently be termed the "doctrine of immediate necessity," three other doctrines are, or have been maintained. Of these the first bases the use of martial law on the royal prerogative ; the second on the immunity of soldiers from liability to proceedings in the civil Courts as contrasted with the military Courts for any act bonafde done in the carrying out of military operations ; and the third (which extends very widely the meaning of the term necessity) on political necessity or expediency. (1) The Doctrine of the Prerogative. — It is sometimes alleged, or implied, that the Crown may, by virtue of the prerogative, in time of war proclaim martial law, and suspend or override the ordinary law of the land, and this view is supposed to derive support from the consideration that the Petition of Eight does not condemn martial law in time of war. The fatal objection to this doctrine, in so far as it means any- thing more than the admitted right of the Crown and its servants to use any amount of force necessary for the mainten- ance of the peace or for repelling invasion, is that it utterly lacks legal authority, whilst to the inference suggested from the language of the Petition of Eight no better reply can be given 550 APPENDIX than that supplied by the words of Blackburn, namely, " It " would be an exceedingly wrong presumption to say that the " Petition of Eight, by not condemning martial law in time of " war, sanctioned it," though, as he cautiously adds, " it did not " in terms condemn it." ^ (2) The Bodrine of Immunity.^ — This doctrine, it is conceived, may be thus stated. An officer in command of an army must of necessity, in carrying out military operations against an invader, override ordinary rights whether of property or of personal liberty. Decisive authorities may be produced ^ in support of the proposition that he may lawfully violate rights of property, e.g. can, without incurring any legal liability, do acts which amount to trespass. But all legal rights stand on the same level ; and if an oflBcer can lawfully occupy an Englishman's land, or destroy his property, he can also lawfully, whilst lona fide carrying on war against a public enemy, imprison Englishmen, inflict punishment upon them, or even deprive them of life, and, in short, interfere with any of the rights of Englishmen in so far as is required for the carrying out of military operations. The soundness of this view is, it is urged, confirmed by the admitted inability of a civil Court to judge of the due discharge of military duties, and by the consideration that no Court would, or in fact could, during a period of warfare interfere with a general's mode of conducting the war, or with any act done by him or by soldiers acting under his orders, whence, as it is alleged, it follows that acts lona fide done in the course of military operations fall outside the jurisdiction of the ordinary Courts, not only during war time, but also after the restoration of peace.* To put this doctrine of immunity in what appears to me to be its most plausible form, the outbreak of war is to be regarded as a suspension of the ordinary law of the land, as regards, at any rate, officers in command of troops and engaged in resisting invaders. On this view a general would occupy, during the conduct of war, a position analogous to that of a judge when engaged in the discharge of his judicial functions, and no action or other proceeding in the Courts of Common Law would lie against an officer for acts bona fide done as a part of a military operation, just as no action lies against a judge for acts done in discharge of his official duties. 1 Blackburn's Charge, R. v. Eyre, p. 73, with which should he read pp. 69-73, which suggest the reasons why the authors of the Petition of Right may have omitted all reference to martial law in time of war. ^ See for a very able statement of the theory here criticised, H. Erie Richards' Martial Law, L.Q.E. xviii. p. 133. ' See pp. 540, 541, ante. ^ See L.Q.R. xviii. p. 140. MARTIAL LAW 551 This doctrine of immunity is, however, open, it is submitted, to the very strongest objections. Most of the undoubted facts on which it rests, e.g. the right of a general when resisting an invasion to use freely the land or other property of Englishmen, are merely applications of the principle that a loyal citizen may do any act necessary for the maintenance of the King's peace, and especially for the defeat of an invading army. But for the broad inferences based on this fact and similar facts there appears to exist no sufficient ground. In support of the doctrine of immunity there can be produced no direct authority, whilst it appears to be absolutely incon- sistent, not only with the charge of Cockburn, C.J., in E. v. Nelson, but also with the principles or assumptions which are laid down or made in the charge of Blackburn, J., in R. v. Eyre. The doctrine, further, is really inconsistent with the constant passing of Acts of Indemnity with a view to covering deeds done in the course of civil war or of rebellion. Nor is it easy to follow the line of reasoning by which it is assumed that if the Courts have no power to interfere with the acts of a general or his soldiers whilst war is raging, the Courts have no jurisdiction to entertain during peace proceedings in respect of acts done by a general and his soldiers during a time of war. Here, at anyrate, we apparently come into contradiction with some of the best known facts of legal history. The Courts, not only of England, but also of the United States, have never entertained the least doubt of their jurisdiction to inquire into the character of any act done during war time which was p-i?na facie a breach of law. (3) The Doctrine of Political Necessity or Expediency.'^ — The existence of war or invasion justifies — it is maintained by eminent lawyers, whose opinion is entitled to the highest respect — the use of what is called martial law to this extent, namely, that, e.g. during an invasion, a general, a mayor, a magistrate, or indeed any loyal citizen, is legally justified in doing any act, even though 'p-ima facie a tort or a crime, as to which he can prove to the satisfaction of a jury that he did it for the public service in good faith, and for reasonable and probable cause. This doctrine, which for the sake of convenience I term the doctrine of political expediency, manifestly justifies from a legal point of view many acts not dictated by immediate necessity. The scope thereof may be best understood from an example which I give in the words of its ablest and very learned advocate. Sir Frederick Pollock : — 1 See Pollock, Whai is Martial Law ? L.Q.R. xvlii. p. 162. 552 APPENDIX " An enemy's army has landed in force in the north, and is " marching on York. The peace is kept in London and Bristol, " and the Courts are not closed. It is known that evil-disposed " persons have agreed to land at several ports for the purpose "of joining the enemy, and giving him valuable aid and in- " formation. Bristol is one of the suspected ports. What shall " the Lord Mayor of Bristol do i. I submit that it is his plain " moral duty as a good citizen (putting aside for a moment the " question of strict law) to prevent suspected persons from land- " ing, or to arrest and detain them if found on shore ; to assume " control of the railway traffic, and forbid undesirable passengers " to proceed northward, and to exercise a strict censorship and " inquisitorial power over letters and telegrams. All these things "are in themselves trespasses (except, probably, forbidding an " alien to land) ; some of them may perhaps be justifiable under " the statutory powers of the Postmaster-General, but summary " restraint by way of prevention must be justified by a common "law power arising from necessity, if at all. Observe that I " say nothing for the present about trial or punishment. The " popular (and sometimes official) notion that martial law neces- " sarily means trial by court-martial has caused much confusion. " Summary punishment may or may not be necessary. In that " respect the Mayor's authority would be like that of the master " of a ship. " Now, if the Lord Mayor of Bristol fails to do these things, " he will surely find himself in as much trouble as his predecessor " [Mr. Pinney] in the time of the Bristol riots. And I do not " think he will improve his defence by pleading that the peace " was still kept in Bristol, and the Courts were open, and there- " fore he thought he had no power to do anything beyond the " ordinary process of law. Nor yet will he mend matters if he " says that he was waiting for an Order in Council which was "never issued, or never came to his knowledge. At best it " will be a topic of slight mitigation. "^^ The objections to a view which at bottom differs essentially from what I have termed " the doctrine of immediate necessity " are these : The theory under consideration rests on little legal authority, except the case of R. v. Pinney ; ^ but that case, when its circumstances are examined, does not justify the inferences apparently grounded upon it. The charge against Mr. Pinney was in substance that, being the magistrate specially respon- sible for the maintenance of order in the town of Bristol, he ' Pollock, What is Martud Laiol L.Q.R. xviii. pp. 155, 156. ^ 3 St. Tr. (11.S.) 11. MARTIAL LA IV 553 neglected to take the proper steps to prevent the outbreak of a riot, and after the King's peace had been openly violated by rioters, the prison broken open, and the Bishop's Palace and other houses burned down, he did not take adequate steps to arrest offenders or to restore order. It is im- possible to imagine a case under which there could exist a more urgent and stringent necessity for the use of force in the restora- tion of order. K the charges brought by the Crown could have been made out, Mr. Pinney would have been guilty of as patent a neglect of duty as could have been committed by any public official placed in a position of high authority. That he acted feebly can hardly be doubted ; yet, in spite of this, he was, with the apparent approval of the Judge, held innocent of any crime. The point, however, specially to be noted is that, in Pinney's Case, no question whatever was raised as to the possible justification for acts which were prima facie tortious, but were done by a magistrate on reasonable grounds of public expediency, though lying quite outside the scope of his ordinary authority. How, in short, the case of Mr. Pinney, which at most establishes only that a magistrate who fails to make due efforts to maintain the peace is guilty of a crime, can be supposed to justify the action of the imaginary Mayor of Bristol, who because an invasion is taking place feels it to be his right or his duty to override, in a town where peace prevails, all the ordinary rules of the common law, many lawyers will find it difficult to explain. Still harder will they find it to point out why a mayor, under the circumstances so graphically described by Sir Frederick Pollock, should fear that his failure to show despotic energy should expose him to the legal charges brought against Mr. Pinney. But if Pinney's case does not go far enough to sustain the doctrine of political expediency, I know of no other case which can be produced in its support. This doctrine, however, is open to the further objection, of which its able advocate recognises the force, that it is inconsistent with the existence of Acts of Indemnity. " It may," writes Sir Frederick Pollock, " be objected that, if the view now propounded " is correct. Acts of Indemnity are superfluous. But this is not so. " An Act of Indemnity is a measure of prudence and grace. Its "office is not to justify unlawful acts ex post facto, but to quiet " doubts, to provide compensation for innocent persons in respect "of damage inevitably caused by justifiable acts which would " not have supported a legal claim." ^ The attempt to meet this objection is ingenious, but the 1 Pollock, What is Martial Lawi L.Q.R. xviii. p. 157. 554 APPENDIX endeavour rests on a very inadequate description of an Act of Indemnity. Such a statute may no doubt be in part a measure of prudence and grace, but it is usually far more than this. The Indemnity Acts, whatever their formal language, which for a century or so protected Nonconformists from penalties in- curred year by year through the deliberate breach of the Test and Corporation Acts, the Acts of Indemnity passed after the Rebellions of 1715 and of 1745, the Act of Indemnity passed by the Irish Parliament after the Eebellion of 1798 which was not wide enough to protect Mr. T. Judkin Fitzgerald ^ from actions for acts of cruelty done by him in the suppression of the Rebellion, the further Act finally passed which apparently was wide enough to place him beyond the reach of punishment, and the Act of the legislature of Jamaica which was successfully pleaded by the defendant in Phillips v. Eyre, were, it is sub- mitted, all of them enactments intended to protect men from the consequences of a breach of the law. An Act of Indemnity in short is, as is insisted upon throughout this treatise, the legalisation of illegality, and is constantly intended to protect from legal penalties men who, though they have acted in the supposed, or even real discharge of a political duty, have broken the law of the land. This is a point on which it is necessary to insist strongly, for the determination of the question at issue between the supporters of the " doctrine of immediate necessity " and the advocates of the " doctrine of political necessity," turns upon the answer to the inquiry. What is the true nature of an Act of Indemnity 1 If such an Act is essentially the legalisation of illegality, the doctrine of political necessity or expediency falls, it is submitted, to the ground. Two circumstances give an apparent but merely apparent impressiveness to the doctrine of political expediency. The first is the paradox involved' in the contention that action on behalf of the State which is morally right may be legally wrong, and, therefore, be the proper object of an Act of Indemnity. This paradox however is, as already pointed out, apparent only, and after all amounts merely to the assertion that a man's ordinary duty is to keep within the limits of the law, and that, if he is at any moment compelled, on grounds of public interest, to trans- gress these limits, he must obtain the condonation of the sovereign power, i.e. the King in Parliament. The second is the current idea that, at a great crisis, you cannot have too much energy. But this notion is a popular delusion. The fussy activity of a hundred mayors playing the part of public -spirited despots ^ Wright v. Fitzgerald, 27 St. Tr. 769 ; Lecky, History of Englamd in Eighteenth Century, viii. pp. 22-27. MARTIAL LAW 555 would increase tenfold the miseries and the dangers imposed upon the country by an invasion. NOTE XI CONSTITUTION OF THE TRIBUNAL DES CONFLITS'^ The Conflict Court consists of the following persons : — I. A President, the Minister of Justice {Garde des sceauxy He rarely attends, though he may attend, preside, and vote. II. Eight elected judges, namely : — (a) Three judges of the Court of Cassation {Conseillers A la Cour de Cassation) elected for three years by their colleagues, i.e. by the judges of the Court of Cassation. (b) Three members of the Council of State {Conseillers d'Mat en, service ordinaire) * elected for three years by their colleagues {i.e. by the Conseillers d'itat en service ordinaire). (c) Two other persons elected by the foregoing six judges of the Conflict Court, enumerated under heads {a) and (b). These two other persons ought in strictness to be elected neither from the judges of the Court of Cassation nor from the membel-s of the Council of State,' but they are in general elected one from the Court of Cassation, the other from the Council of State. These eight persons, who are re-eligible and usually re-elected, or, if we include the Minister of Justice, these nine persons, constitute the judges of the Conflict Court. Then there are two substitutes {swppleants) elected by the judges coming under the heads {a) and {h) who act only when one of the judges of the Conflict Court cannot act. There are further two so-called Commissioners of the Govern- ment {Commissaires du Gouvernement) * appointed for a year by ' See Berthelemy, Traits MSmentaire de Droit Administratif {5th ed.), pp. 880, 881 ; Chardon, 1/ Administration de la France, p. 411. ^ A Vice-President, who generally presides, is elected by and from the eight elected judges of the Conflict Court. * Conseillers d'itat en service ordinaire are permanent members of the Council of State. They are contrasted "with Conseillers en sermce extraordinaire, who are temporary members of the Council, for the discharge of some special duty. See Berthelemy, p. 126. ■* The name may be misleading. Those commissioners are, it is said, absolutely free from pressure by the Government. They are representatives of the law, they are not strictly judges, the opinions which they express often disagree with the . opinion of the representative of the Government, viz. the prefect, who has raised the conflict, i.e. has brought before the Court the question whether a, judicial court has exceeded its jurisdiction by dealing with a question of administrative law- 5S6 APPENDIX the President of the Eepublic ; the one for a year from the Masters of Requests (Mattres des requMes), who belong to the Council of State, the other from the class of public prosecutors, belonging to the Court of Cassation (avocats genSraux d, la Cour de Cassation). NOTE XII PROCEEDINGS AGAINST THE CROWN Technically it is impossible under English law to bring an action against the Crown, and this impossibility is often said to be based on the principle that the Crown can do no wrong. Hence well-informed foreign critics, and perhaps some English- men also, often think that there is in reality no remedy against the Crown, or in other words, against the Government, for injuries done to individuals by either, (1) The breach of a contract made with the Crown, or with a Grovernment department, or (2) A wrong committed by the Crown, or rather by its servants. This idea is however in substance erroneous. As to Breach of Contract For the breach of a contract made with a Government depart- ment on behalf of the Crown a Petition of Right will in general lie, which though in form a petition, and requiring the sanction of the Attorney-General (which is never refused), is in reality an action. Many Government departments, further, such for instance as the Commissioners of Works, who have the general charge of public buildings, are corporate bodies, and can be sued as such. Contracts made with Government departments or their representatives are made on the express or implied terms of payment out of monies to be provided by Parliament, but the risk of Parliament not providing the money is not one which any contractor takes into consideration. As to Wrongs Neither an action nor a Petition of Right lies against the Crown for a wrong committed by its servants. The remedy open to a person injured by a servant of the PROCEEDINGS AGAINST THE CROWN 557 Crown in the course of his service is an action against the person who has actually done or taken part in doing the wrong- ful act which has caused damage. But, speaking generally, no injustice results from this, for the Crown, i.e. the Government, usually pays damages awarded against a servant of the State for a wrong done in the course of his service. Actions, for instance, have been constantly brought against officers of the Eoyal Navy for damage done by collisions with other ships caused by the negligence of such officers. The damage recovered against the officer is almost invariably paid by the Admiralty. It would be an amendment of the law to enact that a Petition of Eight should lie against the Crown for torts committed by the servants of the Crown in the course of their service. But the technical immunity of the Crown in respect of such torts is not a subject of public complaint, and in practice works little, if any, injustice. It should be further remembered that much business which in foreign countries is carried on by persons who are servants of the State is in England transacted by corporate bodies, e.g. railway companies, municipal corporations, and the like, which are Jegally fully responsible for the contracts made on their behalf or wrongs committed by their officials or servants in the course of their service.^ NOTE XIII PARLIAMENT ACT, 1911 [1 & 2 Geo. 5. Ch. 13.] An Act to make provision with respect to the powers of the House of Lords in relation to those of the House of Commons, and to limit the duration of Parliament. [18th August, 1911.] Whereas it is expedient that provision should be made for regulating the relations between the two Houses of Parliament : And whereas it is intended to substitute for the House of Lords as it at present exists a Second Chamber constituted on a popular instead of hereditary basis, but such substitution cannot be immediately brought into operation : And whereas provision will require hereafter to be made by Parliament in a measure effecting such substitution for limiting ' See Lowell, The, Goveimwmiit of England, ii. pp. 490-494. 558 APPENDIX and defining the powers of the new Second Chamber, but it is expedient to make such provision as in this Act appears for restricting the existing powers of the House of Lords : Be it therefore enacted by the King's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and "Temporal, and Commons, in this present Parlia- ment assembled, and by the authority of the same, as follows : — 1. — (1) If a Money Bill, having been passed by the House of Commons, and sent up to the House of Lords at least one month before the end of the session, is not passed by the House of Lords without amendment within one month after it is so sent up to that House, the Bill shall, unless the House of Commons direct to the contrary, be presented to His Majesty and become an Act of Parliament on the Eoyal Assent being signified, notwithstanding that the House of Lords have not consented to the Bill. (2) A Money Bill means a Public Bill which in the opinion of the Speaker of the House of Commons contains only provisions dealing with all or any of the following subjects, namely, the imposition, repeal, remission, alteration, or regulation of taxation ; the imposition for the payment of debt or other financial purposes of charges on the Consolidated Fund, or on money provided by Parliament, or the variation or repeal of any such charges ; supply; the appropriation, receipt, custody, issue or audit of accounts of public money ; the raising or guarantee of any loan or the repayment thereof ; or subordinate matters incidental to those subjects or any of them. In this subsection the expres- sions "taxation," "public money," and "loan" respectively do not include any taxation, money, or loan raised by local authorities or bodies for local purposes. (3) There shall be endorsed on every Money Bill when it is sent up to the House of Lords and when it is presented to His Majesty for assent the certificate of the Speaker of the House of Commons signed by him that it is a Money Bill. Before giving his certificate, the Speaker shall consult, if practicable, two members to be appointed from the Chairmen's Panel at the beginning of each Session by the Committee of Selection. 2. — (1) If any Public Bill (other than a Money Bill or a Bill containing any provision to extend the maximum duration of Parliament beyond five years) is passed by the House of Commons in three successive sessions (whether of the same Parliament or not), and, having sent up to the House of Lords at least one month before the end of the session, is rejected by the House of Lords in each of those sessions, that i PARLIAMENT ACT, 191 1 559 Bill shall, on its rejection for the third time by the House of Lords, unless the House of Commons direct to the contrary, be presented to His Majesty and become an Act of Parliament on the Royal Assent being signified thereto, notwithstanding that the House of Lords have not consented to the Bill : Provided that this provision shall not take effect unless two years have elapsed between the date of the second reading in the first of those sessions of the Bill in the House of Commons and the date on which it passes the House of Commons in the third of those sessions. (2) When a Bill is presented to His Majesty for assent in pursuance of the provisions of this section, there shall be endorsed on the Bill the certificate of the Speaker of the House of Commons signed by him that the provisions of this section have been duly complied with. (3) A Bill shall be deemed to be rejected by the House of Lords if it is not passed by the House of Lords either without amendment or with such amendments only as may be agreed to by both Houses. (4) A Bill shall be deemed to be the same Bill as a former Bill sent up to the House of Lords in the preceding session if, when it is sent up to the House of Lords, it is identical with the former Bill or contains only such alterations as are certified by the Speaker of the House of Commons to be necessary owing to the time which has elapsed since the date of the former Bill, or to represent any amendments which have been made by the House of Lords in the former Bill in the preceding session, and any amendments which are certified by the Speaker to have been made by the House of Lords in the third session and agreed to by the House of Commons shall be inserted in the Bill as presented for Royal Assent in pursuance of this section : Provided that the House of Commons may, if they think fit, on the passage of such a Bill through the House in the second or third session, suggest any further amendments without inserting the amendments in the Bill, and any such suggested amendments shall be considered by the House of Lords, and, if agreed to by that House,' shall be treated as amendments made by the House of Lords and agreed to by the House of Commons; but the exercise of this power by the House of Commons shall not affect the operation of this section in the event of the Bill being rejected by the House of Lords. 3. Any certificate of the Speaker of the House of Commons given under this Act shall be conclusive for all purposes, and shall not be questioned in any court of law. 4. — (1) In every Bill presented to His Majesty under the 56o APPENDIX preceding provisions of this Act, the words of enactment shall be as follows, that is to say : — - "Be it enacted by the King's most Excellent Majesty, by and with the advice and consent of the Commons in this present Parliament assembled, in accordance with the provisions of the Parliament Act, 1911, and by authority of the same, as follows." (2) Any alteration of a Bill necessary to give effect to this section shall not be deemed to be an amendment of the Bill. 5. In this Act the expression "Public Bill" does not include any Bill for confirming a Provisional Order. 6. Nothing in this Act shall diminish or qualify the existing rights and privileges of the House of Commons. 7. Five years shall be substituted for seven years as the time fixed for the maximum duration of Parliament under the Septennial Act, 1715. 8. This Act may be cited as the Parliament Act, 1911. INDEX Act of Settlement, the, 27 ; the descent of the Crown under, 41, 42 Acta, Bankruptcy Act, 1883, xxviii, the Commonwealth of Australia Constitution Act, 113 note, 150 note, and Appendix, Note IX., 529-537 ; Deceased Husband's Brother Act, 1900 (New Zealand), 115 note ; Immigrants' Bestric- tion Act, 1907 (Transvaal), 116 note; of Congress, 24th Septem- ber 1789, 157 ; the Supreme Court of the United States and, 157, 159 ; the foundations of, 160 ; instances of unconstitutipnal, 161 ; British North America Act, 1867, 161-163 and 'ixotes; Canadian Provincial, 163 ; the Extradition, position of foreign criminals under, 220 and note ; the Ahen, of 1848, 228 ; the Press Licensing Act, discontinued, 257 ; the Mutiny, 1689, 294 J preamble of, 295; the Army Act, 1881, 296, 296 note, 298 note ; the Revenue under, 309 ; relating to Taxation, 310 ; the National Debt and Local Loans Act, 1887, 313 ; the Appropriation Act, 313 ; Public Authorities Protection Act, 1893, 384 ; the Merchant Shipping Act, 1876, 392; the AUen, 408; Foreign Enlistment, 408 ; Ex- tradition, 408; Naturalization, 419 ; the Septennial, 433 ; Parlia- ment Act, 1911, 557 Acts, Local and Private, 47 Acts of Indemnity, objects of, 47, 51, 647-549, 553, 554 ; in connection with the Habeas Corpus Suspen- sion Act, 228, 231-233 Acts of Parliament, rules of the Privy Council Under, 50; as op- posed to moral or international law, 59 ; power of Parliament in regard to preceding, 61 ; Railway 561 Companies-suTjjeot to, 91 ; practi- cal importance of, 403 Acts of Union, the (Great Britain), 62 ; the fifth Article of, 64 ; as subject to repeal, 141 Administrative Law, in England and France, 324, 325, 374; charac- teristics of, in France, 334 el seg. ; foundations of, in France, laid by Napoleon. 3 46 Alien Act of 1848, power of the Ministry under, 228, 408 Aliens, case of arrest of, 206, 220 ; position of, in England, 220 and note ; Act of 1848 relating to, 228 ; position of, in England, 407 America, the Constitution of the United States of, 4 ; the Gom- mentariea of Kent and Story on, 4 American Commonweatth, The, Bryce, 134 note American Union, the treaty-making power in the hands of the Presi- dent and Senate, 461 Ancien Segime, the, literature under,, 251 and note ; Droit Adminis- tratif and, 331 Anne, Queen, and creation of peers, lii Anson, Sir William, Law and Cits- torn of the Oonstitution referred to, 34 note Appeal to precedent, frequency of, in English history, 18 Appropriation Act, the, 313 ; pay- ments under, 314 Armed Rebellion, xliii Army, the, under the Rule of Law, 291 ; liability of soldiers as citi- zens, 282, 296 ; the forces of, 291 ; in relation to English law, 292 ; the Standing Army, 293 ; the soldier under civil and military law, 302, 303; the Territorial Force, 305-307; abolition of purchase in, 463 and note 2o 562 INDEX Army Act, the, 1881, 295, 296 note, 298 note ; in relation to the annual meeting of Parliament, 442-443 Arrest, redress for, 204 ; instance in case of aliens, 206, 220 ; maxims relating to, 206 ; under the Habeas Corpus Suspension Act, 229 Article 75 of the Constitution of the Year VIII., Tocqueville on, 351- 352 ; abolition of, 355 Asquith, Mr., xxxiii ; on the Empire, Ixxxi note 1 ; and the Parliament and Government of the United Kingdom, Ixxxv Auooc on Droit Administraiif, 328 and note Austin, theory of Parliamentary sovereignty, 68-70, 72 Australia, Western, xxiv note 1 Australian Commonwealth, powers of the Parliament in regard to changes in the Articles of the Constitution, 106 note, 533-535 ; the Immigration Act, 1901, 114 note ; in relation to the Imperial Parliament, 117, 535-537; an ex- ample of Federalism, 134 note ; its main characteristics. Appendix, Note IX., 529-537 Bacon, 16 ; on the attempt of a, Parliament to bind its successors, 62 note ; on the judges and the prerogative, 366 ; introduction of the writ De non procedendo Rege inconsulto by, 367 Bagehot, Ixxiv, Ixxvi, 6 ; English Constitution, Ixix note 1, civ note 1 ; quotation from, cii ; as a political theorist, 19 ; English Constitution by, 19 ; on powers legally exercised by the Crown, 463 ; on Cabinet and Presidential Governments, 483 Bankruptcy Act, 1883, xxviii Beaconsfield, Lord, xlix, 1 note 1 Belgium, Constitution of, in com- parison with the English, 4, 86, 122 note, 124, 131; the Courts of, and Parliamentary enact- ments, 153 ; rights of individuals in, 192, 196 ; articles of the Con- stitution, 200 ; personal freedom under, 202 ; the law of, in relation to the liberty of the Press, 234, 243 ; rules of the Constitution as to right ot public meeting, 266 ; administrative law in, 335 note Bentham and Benthamites, Ixii BiU of Eights, the, 27 Bills, procedure with regard to, xxi, xxii ; difBonlty of amending, under Parliament Act, xxii Blackburn on martial law, 547-548 Blackleg, the, xl Blackstone, 5, 6 ; Constitutional law not defined by, 7 ; on the royal prerogative, 7; on moral law, 59 e Blackstone's Commentaries, confu- sion of terms in, 7 ; misstatements in, 9 ; quoted on the authority of Parliament, 39 Board of Trade, the, under the Merchant Shipping Act, 1876, 392, 393 Boutmy, Mons., Studes de Droit Constitutionnel, 6 note 1 ; division of the English constitutional law by, 6 note Bradlaugh, Charles, actions in con- nection with, 32 Brand, The Union of South Africa. 480 note 1 Bright, Ivi British Empire, benefits conferred by, XXXV British North America Act, 1867. 161-163 and notes British Mule and Jurisdiction beyond the Seas, Sir H. Jenkyns, 51 note, 100 note British subjects, poHtioal rights of, xxxvii note 1 Bryce, Professor, 87 ; American Commonwealth by, 134 note, 151 note Budget, effect of House of Lords' rejection, Iviii Burke, liii, Ixvi ; Letter to the Sheriffs of Bristol, x^iii note \; Conciliation with America, xxvi note 1 ; Corre- spondence, Ixvi note I ; on the necessity of the study of the English Constitution, 1, 3; on the House of Commons, 82 ; opposition of, to Democracy, 431 Bute, Lord, 453 Butler, The Passing of the Great Beform BiU, Ixi note 1 Cabinet, the English, 8 ; power of, increased by Parliament Act, Iv ; subject to the will of the House of Commons, 152 ; position of, as affected by the survival of the Prerogative, 459 ; a parliamentary executive, 481, 482 ; merits and defects of, 483, 484; possibility of a change in character of, 483 INDEX 563 Cabinet Government and Presi- dential Government, forms of, 483 Cabinet members and partisanship, Ivii noU 1 Campbell, Sir J., on martial law, 540, 546 Canada, the Dominion of, 94 ; posi- tion of the Parliament in regard to changes in the Constitution, 106 rmte,; instances of Veto on Acts passed in, 114; in relation to the Imperial Parliament, 117 ; the Dominion of, an example of Federalism, 134, 148 ruote.; the British North America Act, 1867, 161-163 and notes ; the Constitu- tion of, 162 and note, compared ■with that of the Australian Commonwealth, 537 ; power of Dominion Government, 163, 164 " Case-law " or " judge-made law," 369; rapid growth of, 378 Caste in India, reason for tolerating, Ix Censorship of the Press, absence of, in England, 244, 248 ; in France, 252, 253, 261, 262, 264; under the Star Chamber, the Common- wealth, and the Eestoration, 256 ; discontinuance of the Licensing Act, 257, 259 ; the contrast between England and France as to, 264, 265 Censure, the Vote of, action of the Ministry under, 435, 445 Channel Islands, the, and Acts of the Imperial Parliament, 51 note Charles I., 16 ; the personal and the legal wiU of the King, 16 Charles II., Rhode Island under charter of, 161 Chatham, Lord, attempt of, to legislate by Proclamation, 61, 430, 431 Church, the, and the Act of Union, 63 ; the Irish Church Act, 1869, 64 ; position of the clergy with regard to the Courts, 306 note Citizens, duty of, in cases of riot, 284 Qtizenship of British subjects throughout the Empire, xxviii, xxxvi, xxxvii, Ixxxi note 1, Ixxxv, xci note 1 Civil servants and the Law Courts, xlviii Qergy, the, and lawlessness, xli; as subject to the Courts, 306 note Closure, the, li Coalition, Pitt and the, 449 Cobden, Ivi ; and the Free Traders, Ixxi Coercion Act (Ireland), 1881, power of the Irish executive under, 227 Coke, Sir Edward, 16, 18, 365, 366 ; on the power and jurisdiction of Parliament, 39 ; on private rights and parliamentary authority, 46 Colonial Acts, the sanction of the Crown to, 99 ; limit to powers of, 99 note, 117 Colonial Bills, the right of Veto, as exercised by a Governor, 111 " Colonial Laws Validity Act, 1865," the text of, 101, 105 Colonial legislatures, and the right of Veto, 109, 111 and notes, 112, 113 Colonial Parliaments, limit to powers of, 99 and note ; as " constituent bodies," 105 ; authority of, in regard to changes in Articles of Constitutions, 106 note ; con- trolled by the Imperial Parlia- ment, 108; the liberty of, in relation to Imperial Sovereignty, 108 ; power of the Governor as to assent to Bills, 111 Colonial policy in 1914, xxxii Colonies, the, in 1884, xxxiv; and growth of Imperialism, xxxiv ; Act limiting right of Parliament to tax, 1778, 64, 78; power of, as to Treaties, 115 ; policy of the Imperial Government toward, 115 Colonies, Laws relating to. Tarring, 104 note Commitment for contempt, instance of Parliamentary, 54, 66 n,ote Common, or " unwritten " law, 27 Commons, the House of, resolutions of, not law, 62; Mr. Justice Stephen on, 53 ; powers of, 54 Commonwealth Act, xviii note 8 Comptroller and Auditor General, position and powers of, 315 ; instance of the power in 1811, 317 Conciliation with America, xxvi note 1 Confederation, the Articles of, 15 Conferences with Dominions, xxxi Conflict Court, the, in France, xliv, xlv, 360, Appendix, Note XI., 566-557 Congress, Acts of, 146 ; powers of, compared with powers of English railway companies, 147; limited power of, 148; Act of 24th September 1789, 157; the Supreme Courts of the United States and, 167, 169 564 INDEX Conscientious objectors and law- lessness, xli Conseil d'Etat, xliv, 331 ; the func- tions of, 371 ; a real tribunal of Droit Administraiif, 372 Conservatism, tendency of Federal- ism to, 169 Consolidated Fund, the, 313 Constitution, the, the division of, between history and law, 22 ; rights part of the law of, 25 ; rules belonging to the conventions of, 26 ; the law of the, three prin- ciples of the study of, 34 ; Federal States subject to, 140, 142 note ; the fifth Article of the United States, 143 ; Federal Govern- ments under, 143 and Tiote ; Federal, legislature under, 145, 147, 165 Constitution, the, the Law of, and the Conventions of, xlviii, 413 ; probable changes in, xlviii ; the legal and the conventional ele- ments in, 414 ; based on the law of the land, 466 Constitution of Commonwealth of Australia, 135 note, 136 note, 148 note, 150 note, and Appendix, Note IX., 629-537; amendment of, 533 Constitution of France, 118 ; Tooqueville on, 118 ; rigidity of, 122 ; revolutionary instances in, 129 ; the existing, 129 Constitution of the German Empire, 143 note, 144 note Constitution of the United States, the Articles of, 4 ; in comparison with the English, 4, 134 ; Kent's and Story's work on, 5 ; preamble of, 139 ; the judges in relation to, 154 ; in comparison with the Canadian, 162 and note 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 constitu- tional law, 14 Constitutional idea, development of new, Iviii Constitutional Law, the true nature of, 1 ; modem origin of the term, 6 ; Mons. Boutmy's division of the English, 6 note; sources of work in, 6 ; as considered by Blaokstone, 7 ; study of the con- stitutional historians in coimeo- tion with, 11 ; antiquarian study unnecessary to the study of, 14 ; iudefinitensss of, 21 ; character of rules of, 23 ; rules of, as en- forced, 23 ; rules as conventions, 23 ; the legal and conventional elements of, 27, 28 ; importance of, to the lawyer, 29 ; different character of rules of, 30 ; in general the result of ordinary laws, 191 Constitutional laws, 84 ; no legal distinction between, and other laws, 87 Constitutional maxims, the observ- ance of, 451 Constitutional Monarchy, of Louis Philippe, 118 Constitutional understandings, 414 ; Freeman's Qrowth of the English Constitution, quoted as to, 414; examples of, 416 ; common char- acteristics of, 418 ; the aim of, 424 ; not rules enforced by the Courts, 435 ; how disobeyed, 436 ; variability of, 451 Constitutionalism, difference be- tween English and French, 121 note ; comparison necessary to the study of, 201 Constitutionalists, legal, in contrast 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 govern- ment and the theory, 9 Jioje ; of England, contrasted with that of France, 4, 118, 186 ; flexible, 122; rigid, 123, 124 and note, 169 ; the formation of foreign, 192; of the United States, 195 and woie ; main provisions of tho English, 199; rigidity of the French, Appendix, Note L, 469- 476 ; classification of, 480 Constitutions, of Belgium, in com- parison with the English, 4 ; in contrast with the English, 86; flexible and rigid, 87, 123 note Constitutions, the Swiss and the " guaranteed " rights of, 150 Contracts, law in relation to, 21 Conventions of the Constitution, xlviii ; recent important changes in, xlviii ; the lawyer in relation to, 29; and the Ministry, 30; INDEX S65 Ministers under, 321 ; and Law of the Constitution, 413 ; nature of Conventions, 413 ; and exer- cises of the prerogative, 419 ; and Parliamentary privilege, 423 ; those strictly obeyed, 437; how obedience ensured to, 440 ; obedi- ence to, enforced by law, 441 Conventions, enacted, 1 ; necessity for Parliament observing, Ivii Conventions, "mere," dix; as affecting DisraeU, Gladstone, and Peel, xlix ; effect on parties and officials, 1 ; inconvenience and danger of violating, Iviii Corporations, as non-sovereign law- making bodies, 90 ; Municipal, 147 mofe Correspondence, Burke's, Ixvi note 1 Courts, the, and Acts of Parliament, 38 ; and Parliamentary resolu- tions, 52 ; Mr. Justice Stephen on, 53 ; and Parliamentary authority, 58-61 ; and the electors, 71 ; and the bye-laws of Railway Com- panies, 92 ; and Colonial Acts, 104 ; under the Imperial Parlia- ment and under Federalism, 152 ; the authority of, 153 ; the Belgian and French, 153 ; of the United (States, 154, 155, 157 ; Canadian, 184 ; Swiss, 165 ; of the United States, 170, 171 note, 172 ; posi- tion of officials under, 189 ; as the foundation of the English Constitution, 193 ; and the Habeas Corpus Act, 212, 215, 218, 219, 224; and the Press, 246; and the right of public meeting, 271, 272, 274 note ; and Courts- martial, 298 ; and military law, 303, 644-547 ; and State matters in France, 335, 359-361 ; and Droit Administratif, 347, 395, 399 ; English Crown servants as subject to, 391, 392 ; and Parlia- ment, 405 and note Courts, Federal, 148 Courts of Australia, as interpreters of the Constitution of the Com- monwealth, 531 Courts of India, the, and the Acts of the Legislative Council, 95, 97 ; power of, as to Acts passed by the Council, 98 Courts of Justice, Blackstone's statement as to Eoyal power in connection with, 9 Courts-martial, and the CivU Courts, 298, 303, 304 Crisis of Liberalism, The, xci note 2 Criticism, fair and libellous, 238 Crown, the, power of veto in Dominion affairs, xxx; moral influence of, ci ; theory of the prerogative of 1785, 9 note ; unreality of expressions in connec- tion with, 11 ; and responsibility of Ministers, 24 ; law regulating the descent of, 27 ; the descent of, fixed under the Act of Settle- ment, 41 ; legislation by pro- clamations under, 48; la relation to proclamations, 51 ; sanction of, to Colonial Acts, 100; and the right of Veto, 110 and note ; hereditary revenue of, 308 ; responsibility of Ministers as to Acts of, 321 ; pre- rogative of, as anterior to the power of the House of Commons, 421 ; position of, in case of a conflict between the Lords and the Commons, 427 ; the personal influence of, uncertain, 457 ; the survival of the prerogatives of, 459 ; Bagehot on powers legally exercised by, 463 ; proceedings against the, Appendix, Note XII., 556-557 Crown servants in England, powers of, 382 Davis, American Constitutions, 173 note De Berry, Duohesse, and her at- tempt to raise civil war in La Vendue, 349 De Blosseville, 326 Decentralisation par service, xlvi ; as affecting the Post Office, xlvi D'Eon, the Chevalier, 187 De Lolme on the limit of English Parliamentary power, 41, 83 Declaration of the Rights of Man, freedom of discussion and liberty of the press under. 234 " Declaration of the State of Siege," the, 283 ; French law aa to, 288 ; under the Republic of France, 289 Dentists Act, the, 141 Despotism, instances of, 188 and note Discussion, the Right to Freedom of, 234 ; under foreign constitutions, 234 ; under English law, 235, 242 and Tiote Dissolution of Parliament, the rules as to, 428 ; of 1784 and 1834, 429 ; right of, in relation to Parliament- ary sovereignty, 433; the right 566 INDEX of, as the right of appeal to the people, 434, 452 Documents, Public, necessary signa- tures to, 322 Dodd, Dr., execution of, 459 " Dominions," meaning of term, xxiv, xxT ; each a self-governing colony, xxiv ; and Acts of Im- perial Parliament, xxix ; and treaties, xxix ; and war, xxix ; powers to legislate, xxix ; extent of independence, xxx ; right to raise miUtary and .naval forces, xxx ; right of appeal, xxxi ; conferences with the Mother Country a moral right, xxxi ; relations of England and the, in 1884 and 1914, xxxii ; and Eng- land in early Victorian era, xxxii, xxxiii ; willingness to share cost of defence of the Empire, xxxvi Droit Administratif, compared with present official law of England, xliii ; critical examination of, xlvi ; contrasted with the Bule of Law, 324; the term, 326; Tooqueville on, 326, 327 and note, 352, 353 note ; definition of, 328 ; position of officials and others under, 329, 337-344, 349-362, 354, 380 ; fundamental ideas perma- nent, 329 ; historical develop- ment, 330 ; leading principles, 332 ; Vivien on, 332 moie ; char- acteristics, 334 ; foundations laid by Napoleon, 335-337 ; conflicts of jurisdiction, 339 ; protection of officials, 341, 342, 349 ; the Coun- cil of State under Napoleon, 344 ; during the Monarchical period (1830-1870), 346 ; and the Third Republic, 355 ; decisions of the Council of State become judg- ments, 360 ; creation of independ- ent Conflict-court, 360 ; evolution of, 362-364, 371 ; comparison be- tween, and the Rule of Law, 364 ; not opposed to English ideas current in the sixteenth and seventeenth centuries, 364 ; " case- law " or " judge-made law," 369, 378 ; the Conseil d'Stat a real tribunal of, 372 ; felt by French- men to be beneficial, 377 ; de- velopment of, between 1800 and 1908, 379; not to be identified with any part of the law of Eng- land, 380 ; not the law of the Civil Service, 380, 381 ; compared with the law of Equity, 381 : rests upon ideas foreign to English law, 383 ; not in reality intro- duced into the law of England, 383 ; no foothold in England, 385 ; its merits, 389, 393 ; its defects, 389, 396 Dubs, Dr., on the Swiss Federal Court, 165 Duguit, Traite de Droit Constitu- tionnel, xlv note 1, xlvi note 3, 253 ; Manuel de Droit Public Francis, 50 note, 119 note ; on the position of officials under Droit Adminis- tratif, 399 note Edward VI., repeal of the Statute of Proclamations in the reign of, 49 Electorate, the true sovereign power, xlix ; power of the, Iv ; as the political power of the State, 423, 424 ; in relation to dissolution of Parliament, 428 Electors, position of, in the United States, 28 ; Parliamentary, posi- tion of, 57 ; the Courts and, 71 ; power of, politically, 73 Elizabeth, Queen, xcii Ellenborough in England, 244 Empire, British, benefits conferred by, XXXV ; citizenship of British subjects throughout, xxviii, xxxvi, xxxvii, Ixxxi note 1, Ixxxv, xci note 1 ; secures peace to Britain and the colonies, Ixxx ; and cost of Imperial defence, Ixxx ; pride in, Ixxxi England, the King of, Blackstone on the power of, 7, 9 England, Tooqueville on the respect for law in, as compared with Switzerland in 1836, 180; the Press laws of, 236, 243, 247, 248 ; law of, as to right of public meet- ing, 266 English Cabinet, the, 8 English Constitution, Ixix note 1, civ note 1, cii English Constitution, the, Burke and Hallam on the study of, 1 ; past views and ideas of, 2 ; modern view and study of, 3 ; difficulties connected with the study of, 4, 6 ; Paley quoted, on actual state and theory of government, 9 note ; Tocqueviile on, 21, 84 ; unwritten character of, 86 ; ideas of the Royal prerogative in the seven- teenth century, 365 English Constitutional law, 6 ; Mons. INDEX 567 Boutmy's division of, 6 moie ; sources of work in, 6 ; as treated by Blaokstone, 7, 141 English Parliament, the, character- istic of, 402, 403 note; the ap- pointment of the Prime Minister, 404 English Prime Minister, as head of the English Cabinet, 8, 404 Enlistment, power of the Civil Courts as to, 303, 304 and notes ; the Foreign Act, 408 Equity, the law of, in England, 376, 378 ; compared with Droit Ad- ministratif, 381 Essays in Jurisprudence and Ethics, PoUock, 38 note Etudes de Droit Oonstitutionnel, Mons. Boutmy, 6 note Executive, distinction between a parliamentary and a non-parlia- mentary, Appendix, Note III., 480-488 Extradition Acts, foreign criminals under, 220 and note ; powers under, 408 Eyre, Governor, and the Jamaica rebellion, 1865, 233, 542 note Factory legislation in England, 381 Featherstone Commission, Report of, 284 note, and Appendix, Note VI., 512-516 Federal Assemblies, the Swiss, 57 Federal Constitution, legislature under, 145, 147, 165 Federal government, leading charac- teristics of, Ixxv ; requirements for success, Ixxv ; in the United States, Ixxvi; in Switzerland, Ixxvi ; what it means, Ixxix ; in relation to Imperial Federation, Ixxx ; characteristics of, in rela- tion to Home Rule all round, Ixxxvii ; instances of, 134 ; aims of, 136 ; necessary conditions to the formation of, 136 and notes Federal States, division of Powers in. Appendix, Note XL, 476-480 Federalism, Ixxiii ; and nationalism, Ixxvi ; a weak form of govern- ment, Ixxvii ; incompatible with English ideas, Ixxviii ; divides allegiance, Ixxviii ; not to be confounded with nationalism, Ixxix; the dream of many Englishmen, Ixxx ; objections to the creed of, Ixxxi ; a peril to the British Empire, Ixxxii ; diffi- culties in the United States, Ixxxii ; its effect if applied to India, Ixxxiii, Ixxxv ; what would become of the old Imperial Parlia- ment, Ixxxiv ; new prestige gained by, Ixxxvii ; of United Kingdom and divided allegiance, xo ; foreign to English constitutionalism, xc ; would affect loyalty of colonies, xoi note 1 ; and Parliamentary sovereignty, 134 and note ; Swiss, 135 note, and Appendix, Note VIII., 465-467 ; the foundations of, 136 ; the sentiment of, 137 ; the aim of, 139 ; of the United States, 139 the leading charac- teristics of, 140 ; in relation to Constitution, 140 ; sovereignty under, 144; distribution of powers under, 147 ; limitations under, 148 and note, 149 ; in com- parison with Unitarian govern- ment, 151 and note; the Law Courts under, 152 ; the meaning of, 153 ; individual character of Swiss, 164 ; in comparison with Parliamentary sovereignty, 167 ; weakness of Swiss, 167 and note, 176 ; and Conservatism, 169 ; the legal spirit of, 170 ; success of, in the United States, 175 ; Aus- traUan, Appendix, Note IX., 529-537 ; distinction between Can- adian and Australian, 537 Field, J., on the right of public meeting, 271 Firth, Cromwell's Army, 293 note " Flexible " Constitutions, the Eng- lish, an example of, 122, 123 »ofe Foreign Enlistment Act, powers of the Ministry under, 408 Foreign Legislatures, non-sovereign, 117 Fox, support of Parliamentary sove- reignty by, 430 France, Constitution of, in compari- son with the English, 4 ; Tooque- ville on the constitution of, 118 ; the Republic of 1848, 120 ; the authority of the present Republic, 120; the Ooup d'Etat of 1851, 125, 485 ; the Revolutionary constitutions of, 129 ; the existing constitution of, 129 ; the Courts of, in relation to the National Assembly, 153 ; lawlessness in past administrations, 187 and note ; the Press law of, 248 note ; literature under the Aruiien Re- gime, 251 ; under the Revolution, 252 ; under the First Empire and 568 INDEX the Kepublic, 252, 254 note ; the law of, as to the " Declaration of the State of Siege," 287, 288; Droit Administratif in, 324 et seq. ; the " Separation of powers," 333 ; limit of jurisdiction of law courts, 335 ; judicial and administrative courts constituted by Napoleon, 336, 336 and note ; acts of State, 341, 386 ; officials under Art. 75 of Constitution of Year VIII., 343, 351 ; Tribunal des Conflits, 359, Appendix, Note XI., 556- 657 ; the Conseil d'Mtat, 371, 372 ; the National Assembly, 405, 486, 487 ; Directorial Constitution of, 485, 486 ; President of Republic, election and power of, 486, 487 ; in relation to National Assembly, 487 Frederick the Great, 80 Free Traders, Ixxi Freeman, E. A., 6, 16 ; Oroioth of the English Constitution by, 12 ; quoted on constitutional under- standings, 414 ; on appeal to precedent, 18 French in Canada, their loyalty, Ixxix French Constitutions, Rigidity of. Appendix, Note I., 469-476 French National Assembly of 1871, 76 French Republic, the, officials under Art. 75, Year VIII., 343, 351 Fundamental laws and constitu- tional laws, 85, 141 and note GarQon, Code Pencil, 343 note Gardiner, Mr., 16 ; on Bacon's writ De non procedendo Bege inconsuUo, 367 George 11., 459 George III., 1, 2, 9 ; pubUo expenses as charged in the reign of, 312 ; dissolution of Parliament by, as a constitutional act, 429 ; view of Parliamentary sovereignty, 431 ; exercise of personal wiU in matters of policy, 458 George V. and creation of peers, lii German Emperor, real head of ex- ecutive, 483 ; independent action of, 485 German Empire, the. Constitution of, 143 note, 144 note, 429 ; an example of federal government, 134 ; executive of, 482, 483 Gladstone, Mr., xlix, 1 note I Gneist, 83 Goldsmith's Citizen of the World, 2 note Gordon Riots, the, 1780, 286 Governance of England, The, Iv note I, xci note 2 Government, position of publishers of libel on, 239 ; in relation to the Press, 243 ; and the right of public meeting, 277 Government of England, Iv note 1, xci note 2, note 1 Government of Ireland Act and Home Rule, Ixxxvii note 1 Grant, General, third candidature of, as President, 28 Grattan's Constitution, 482 Great Reform Act, xx Gregoire quoted, 350 note GreuviUe, Lord, action of, in opposi- tion to Parliament, 1811, 317 Grouch of the English Constitution, Freeman, in relation to constitu- tional law, 12 ; qv/jted, 17 " Guaranteed " rights of the Swiss Constitution, 150 Guillotine, the, li Habeas Corpus Acts, the, 27, 193, 195 ; suspension of, in comparison with foreign " suspension of con- stitutional guarantees," 197, 200 ; the Writ of, 209 ; the issue of the Writ of, 211 ; power of the Courts aa to, 212 ; the Acts of Charles II. and George III., 212; rights of the individual under, 213 ; provisions of, 214, 216; the authority of the judges under Writ of, 218 ; case of aliens under, 220, the suspension of, 224 and note ; charge of High Treason under, 225 and note ; the Suspen- sion Act, as an Annual Act, 226 ; the Ministry and, 226 ; and Act of Indemnity, 228, 232 ; position of official under, 229 ; arrest under, 229 HaUam, Middle Ages, 2 note HaUam, on the prosperity of Eng- land 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, 439 Hauriou, on the position of officials under Droit Administratif, 400 and note Heam, Professor, 6 ; Government of England by, referred to, 18, 25, INDEX 569 427 rMte,; as a political theorist, 19 Henry VIIL, the Statute of Pro- clamations in the reign of, 48 High Treason, charges of, under the Habeas Corpus Acts, 225 and note ; under the Coercion Act (Ireland). 1881, 227 Historians compared with lawyers, Hobson, J. A., The Crisis of Liberal- ism, xci note 2 Holland's Jurisprudence, 22 note Home Rule, what has stimulated interest in, Ixxxvii; why not a benefit if applied all round, Ixxxviii Home Rule Bill, history of, xxii ; as viewed by the electors, liii House of Commons, the, its powers, XX, xxii ; jealousy of judicial interference, xxxix ; and obstruc- tion, li ; and freedom of discus- sion, M ; not a debating society, Ixix ; parties in, Ixxi ; Burke on, 82 ; powers of, in relation to the Ministry, 152, 429 ; and the Licensing Act, 267 ; in relation to the House of Lords, 454 House of Lords, its powers, xx, xxi, xxii Ttotes 1, 2, xxiv ; and Money Bills, XX ; veto of, xx ; legislation delayed by, xx, xxi ; in relation to the House of Commons, 427, 454 ; instances of opposition to the Commons, 454, 455 How France is Governed, xliv note 3 Hume on Sovereign power, 75 Humphreys, Proportional Bepre- aentation, Ixvi note 2 Immigrants Restriction Act, 1907 (Transvaal), 116 note Impeachment, 438 ; disuse of, 450 Imperial Government, the, right of, to veto Colonial Bills, 113 ; action of, toward the Colonies, 115 Imperial Parliament, and self-gov- erning colonies, xxv ; and taxes, xxvi ; advantages of powers of legislation by, xxvii ; relation of, to self-governing colonies in 1884, xxvii ; in 1914, xxix ; and Isle of Man, xxvii note ; and New Zealand, xxvii Imperialism, growth of, in colonies, xxxiv ; definition of term, xxxiv ; advantages of, xxxvi ; disappoint- ments in connection with, xxxvii Imperialists, what they aim at. Ixxxii ; what they ought to keep in view, Ixxxvi Income Tax, the. Act as to, annual, 311 Indemnity, Acts of, objects of, 47, 547-549, 553, 664 ; an instance of Parliamentary power, 51, and the Habeas Corpus Suspension Act, 228, 230, 231 ; officials under the Act of 1801, 232; the Ministry under Act of, 408 y India, British, the Legislative Coun- ^/ oil subordinate to the British Parliament, 95; the Acts of the Council and the Courts of India, • 96, 97, 98 Inland Revenue Office, the daily routine of, as to receipts, 312 International law. Acts of Parlia- ment and, 69 Ireland, and the Act of Union relat- ing to the United Church, 63 ; the Coercion Act of 1881, 227; the Prevention of Crime Act, 1882, 227 Irish Church Act, 1869, the, 64, 170 Irish Parliament of 1782, an ad- mittedly sovereign legislature, 482 ; power of English ministry over executive, 482 Jackson, President, 173 Jamaica, the rebellion of, 1865, 233 James II. as an instance of the limit of sovereign power, 76 Jenks's Qovernment of Victoria, 106 note Jenkyns, Sir H., British Bule and Jurisdiction beyond the Seas, 51 note, 100 note Johnson, Dr., Ixxxix Judge, primary duty of, xxxix "Judge-made law," 369, 370 Judges, English, in relation to the Imperial Parliament, 152 ; Bel- gian and French, 153 ; of the United States in relation to the Constitution, 164, 155, 174 ; and the Writ of Habeas Corpus, 218 ; position of, in the seventeenth century,' 223, 224 note ; instance of the power of, in the case of Wolfe Tone, 289, 290 ; salaries of, under George III., 312 ; position of, in France, as to matters of the State, 336 ; in relation to English Acts of Parliament, 403 ; in rela- tion to the Houses of Parliament, 405 ; and Parliamentary laws, 409 570 INDEX Judges and Courts, public distrust of, xl ; and Trade Unions, xl Kangaroo, the, li Keith, Responsible Government in the Dominions, xxix note 2, xxx notes 1, 3 ; on South African Union, 480 Kenny, Outlines of Criminal Law, 279 note Kent, Commentaries of, on the Con- stitution of the United States, 4 ; lines of -work, 5 King, the, 8 ; loyalty to and im- perial position of, xxxv, xci note 1, ci ; veto of, xxii note 1 ; the recognised representative of the whole Empire, li ; Blaokstone on the authority of, 7, 9 ; ordinances and proclamations of, 48 ; and the ministry, 422, 483 ; the per- sonal win and influence of, 458, 459 " King in Parliament," the, 37, 424 King's speech, 1 note 2 Kitchener, Lord, declaration on taking office, Ivii note 1 Laudesgemeinden of Uri, the, 14 Law, the Rule of, xxxvii ; decline in reverence for, xxxviii Law as the basis of English civilisa- tion, 18 Law, constitutional, 21 ; rules of, 23 ; an " unconstitutional," mean- ing of. Appendix, Note VII., 516 Law of the Constitution, position of a Ministry in regard to, 30 ; the three principles of, 34 ; and Con- ventions of the Constitution, 413 Law Courts, authority of, diminished by recent Acts, xxxviii ; and civil servants, xlviii ; and the powers of the Premier, 20 ; and Acts of Parliament, 38 Law of {he Press, Fisher and Strahan, 236 note Lawlessness, xli ; new doctrine as to, xli ; English clergy and, xli ; passive resisters and, xli ; con- scientious objectors, xli ; militant suffragettes and, xli ; explanation of zeal for, xli ; democratic senti- ment and, xlii Laws, and contracts, 21 ; constitu- tional and fundamental, 85 ; fundamental, 141 and note Lawyers, in comparison with his- torians, 16 ; and the rules of constitutional law, 30 Lee, General, Ixxix 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, 30-31 Legal sovereignty, limit of, 76 ; and political sovereignty, the distinc- tion between, 425 Legalism, Federalism as, 170 Legislation, what it must aim at, Ix ; judicial, and the supremacy of Parliament, 58 ; safeguards against unconstitutional, 126 Legislative authority, of Parliament, 48, 67, 68 ; in France, 50 and note Legislative bodies, limited power of, in the United States, 132 Legislatures, Foreign non-sovereign, 117 Letter to the Sheriffs of Bristol, xxiii note 1 Libel, the law of, 236 and note ; posi- tion of individuals under, 236-239 ; as to Government, 239 ; blas- phemy under, 240 ; in England, 241 ; under the Belgian Constitu- tion, 243 Liberty of individuals, in England, 193, 196 ; in Belgium, 193, 196 Liberty of the Press, foreign and English ideas as to, 235 ; the law of libel, 236, 247; control of, under French Governments, 251 Licensing Act, the, of the Press, 257, reasons for the discontinuance of, 257. 264 Limitations on right of Public Meeting, 273 ; really limitations on individual freedom, 275 Limitations on sovereignty of Parlia- ment, alleged, 58, 59 note, 68 ; in the Colonies, 64 ; Todd on, 65 and note ; actual, 69, 74 ; external, 74, 75, 79 ; internal, 77, 79 ; Leslie Stephen on, 78 Limitations under Federalism, 147, 149 Literature, in England and France, 249, 250 ; penalties connected with the production of forbidden works, 250 ; under the Ancien Begime, 251 and note ; under the Republic of 1848, 253 ; license and punishment under the Star Cham- ber, 256 Local and Private Acts, 47 Louis XIV., an instance of the limit of sovereign power, 76, 78 Louis XV., 187 Louis XVI., 187 INDEX 571 Louis Philippe, the Constitutional monarchy of, 118, 125, 347 Louis Napoleon, 80, 125, 485 Low, The. Governance of England, It note 1, xci note 2 Lowell, Public Opinion and Popular Oovernment, xlii note 1, Ixvi note 2, xci note 2, note 1 ; Government of England, Iv note 1, xci note 2, note 1 Lyndhurst, Lord, in opposition to measures of the House of Com- mons, 455 Maoaulay on the Press Licensing Act, 257-258 Macclesfield, Lord, 439 Mackintosh, Sir James, on martial law, 541 Maine, Sir Henry, Ixxiv ; on demo- cracy, xcv ; Popular Government, Ixxiv, xov note 1 Mansfield, Lord, on the liberty of the Press, 243 Martial law, 32 note, 280 ; liability of soldiers as citizens, 282 ; and the " Declaration of the State of Siege," 283 ; how recognised in England, 284 ; the proclamation of, 287 ; trial of WoUe Tone, 289, 290 ; in England during time of war or insurrection. Appendix, Note XII., 538-555 Maxims belonging to the Conven- tions of the Constitution, 25, 26 and note ; not " laws," 26 ; con- stitutional, 452 May, Sir Thomas, as a constitutional historian, 12 Melville, Lord, 439 Members of Parliament, increase in number of speakers among, Ivi ; authority of, Ivi Merchant Shipping Act, 1876, the, 392, 393 Mignet, French Revolution quoted, 486 Militia, the, 291 ; in comparison with the standing army, 292 Mill, Ixiii, Ixix ; quoted, on political institutions, 191 Ministers, responsibility of, under the Rule of Law, 321 ; as subject to the Rule of Law, 323 Ministry, the, position of, under defeat, 30; power of, regarding the Habeas Corpus Act, 226; powers of, under the Alien Act, 1848, 228 ; action of, in case of tumult or invasion, 408; dis- missal of, by the King, 429, 431 ; resignation of, under Vote of Cen- sure, 435, 445 ; and the Mutiny Act, 448 ; the withdrawal of con- fidence in, 452 Money Bills, xx, xxi Montesquieu, Esprit des Lois referred to, 185, 333 Moral law. Acts of Parliament in relation to, 59 ; Blackstone on, 59 ; and libel, 240 Moral Philosophy, Paley, quoted, 9 note, 22 note Morley's Life of Diderot, 186 Muir, Ramsay, Iv ; Peers and Bureaucrats, xxxviii note 2, xliii note 2, Iv note 1 Municipal corporations, 147 note Mutiny Act, the, 1689, preamble of, 295 ; an annual Act, 305 ; in relation to the annual meeting of Parliament, 443 note Napoleon Bonaparte, the founda- tions of modern Droit Admitds- tratif laid by, 330, 335-337 ; and ordinary judges, 337 ; Council of State under, 344 Napoleon, Louis, 80, 125, 485 Natal, xxiv note 1 National danger the test of national greatness, civ National Debt and Local Loans Act, 1887, 313 ; the interest on, 313 National Insurance Acts, xviii note 8 National Revenue, the, 309 Naturalization Act, 1870, the, 419 Newcastle, the Duke of, 453 Newspapers, position of publishers and writers, 244 ; offences treated by the ordinary Courts, 246 and note ; under the First Empire, 252 ; under the Republic of 1848, 253 New Zealand, the Supreme Court and the Foreign Offenders Appre- hension Act, 1863, 100 note ; the Deceased Husband's Brother Act, 1900, 115 note New Zealand Parliament, 99 and note ; a non-sovereign legislating body, 100 and note ; liable to the authority of the Courts and the Imperial Parliament, 100 ; laws of, opposed to English common law, 103 and moie; valid and invalid acts; 103, 104 ; laws of, as affecting other colonies, 104 ; authority of, to change Articles 572 INDEX in the Constitution, 106 and note., 163 ; power of the Governor to assent to BiUs, 111, 112 Nightingale, Florence, Ixv Non-sovereign law-making bodies, in contrast with legislative bodies, 83 ; characteristics of, 87 ; meaning of the term, 88 and note. ; the Indian Council, 95 ; the New Zealand Parliament, 105-107; Foreign, 117; the French Chamber, 120, 121 Nottingham, Lord, 376 O'ConneU and the Repealers, Ixx, Ixxi rnote, 1 ; and Federalism, xc Odgers, JAhd and Slander, quoted, 236 Official Secrets Act, 1889, 391 Officials, State, duty of, xxxix ; position of, under the Habeas Corpus Suspension Act, 229 ; protected by Act of Indemnity, 230-232 ; limited protection of, under the Act of 1801, 232 ; posi- tion of, under ordinary law, 281 ; position of, under Droit Adminis- tratif, 329, 337-344, 349-352, 354 ; powers of the English Crown, 382 ; appointment of the Prime Minister and the Cabinet of England, 404 ' Ordinances, Royal, 48 Orton, Arthur, Ixxii Paley's Moral Philosophy, the actual state and theory of government considered in, 9 note ; quoted, 22 note Palmer, Roundell, Ivi Palmerston, Lord, 1 ; career of, ci ; action of, under vote of censure, 435 Parliament, sovereignty of, xviii, ; what constitutes, xviii ; powers of, xviii, xix ; under the legal rules of constitutional law, 30 ; the constitution of, 37 ; law- making power of, 38 ; Acts of, and the Law Courts, 38 ; un- limited 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, 62 ; and the Acts of Union, 62 ; and the Colonies, 78 ; power of, to change any law, 84 ; other bodies in relation to, 87 ; the Legislative Council of India sub- ject to, 95 ; the Colonial, of New Zealand, 99 ; powers of, 99 ; the sanction of the Crown in Acts of, 100 ; the " Colonial Laws Validity Act, 1865," 101 ; valid and iu- vaUd Acts, 103; the legal supremacy of, as to Colonial legislation, 108 ; the Imperial, compared with the National Assembly of France, 120; the Courts in relation to, 152 ; the Ministry subject to the will of the House of Commons, 152 ; rules as to the dissolution of, 428 ; the dissolutions of 1784 and 1834, 429 ; non-assembly of, a breach of constitutional practice, 442 ; the Army Act in relation to the annual meeting of, 442 ; the refusal of supplies, 450 note ; the Victorian, conflict between the Upper and Lower Houses, 1878 and 1879, 456 ; a sovereign body, 482 Parliament, French, duration of, liii Parliament Act, xix note 3 ; Ap- pendix, Note XIII., 557 ; state of things before passing of, xx ; direct effects of, xxi-xxiv ; in- direct effects of, U ; as introduc- ing written constitution, li; as aboUshing necessity for emergency creation of peers, lii ; and the duration of Parliament, lii ; en- ables House of Parliament to over- rule will of electors, hii ; effect on Speaker, xxxviii, liv; increases power of the majority and the Cabinets, Iv Parliamentary authority, instanced in the Septennial Act, 44, 45 ; and the power of the Courts, 59, 60 Parliamentary executive and a non- parliamentary executive, distinc- tion between. Appendix, Note III., 480-488 Parliamentary leaders, powers of, Iv Parliamentary power, exemplified by Acts of Indemnity, 61 ; in relation to the Law Courts, 54; electors in connection with, 67 Parliamentary privilege and con- stitutional conventions, 423 Parliamentary procedure, as con- ventional law, 27 Parliamentary sovereignty, the nature of, 37 ; recognised by the INDEX 573 law, 39 ; and the Act of Settle- ment, 41 ; the Septennial Act a proof of, 45, 73, 433; and the Law Courts, 58 ; limitations on, 58 ; the Irish Church Act, 1869, 64 ; limitation of, in respect to the Colonies, 64, 65 and mote ; Austin on, 68 ; political and legal sense of, 70 ; external limit on exercise of, 75, 79 ; internal limit on, 77, 79 ; the two limitations of, 81 ; characteristics of, 83, 85 ; Tooqueville on, 84, 85 ; and Federalism, 134 and note, ; in comparison with Federalism, 167 ; and the Rule of Law, 402, 406 ; George the Third's view of, 430 ; relation of the right of dissolution to, 433 PameE and " Ireland a Nation," xo Party government, disadvantages of, xciii Party system in England, Iv Passing of the Qreat Reform Bill, The, Ixi note 1 Passive resisters and lawlessness, xU Payment of M.P.'s, effect of, liii Peel, 1 ; and the Dissolution of 1834, 429 Peers, emergency creation of, lii ; the House of, resolutions of, not law, 52 ; powers of, 54 ; the creation of new, in case of conflict of the Lords and Commons, 427 Peers and Bureaucrats, xxxviii note. 2, xliii note 2, Iv note 1 Personal Freedom, the Bight to, 202 ; under the Belgian Constitu- tion, 202 ; as secured in England, 202 ; redress for arrest, 204 ; wrongful imprisonment, 208 ; the Habeas Carpus Acts, 209 ; the securities for, 216 Pitt, 1 ; and the Dissolution of 1784, 429 ; the Vote of Censure, 1783, 445 ; and the Coalition, 449-450 Pitt, Life of, 2 note 2 Poincare, Hmo France is Ooverned, xliv note 3 Political Sovereignty and Legal Sovereignty, the distinction be- tween, 425 Political theorists, Bagehot and Pro- fessor Heam as, 19; questions for, 20 Pollock's Essays in Jurisprudence and Ethics, 38 note ; Science of Case Law referred to, 58 Pollock, Sir F., on martial law, 546, 552, 553 Poor Law of 1834, Ixi Pope, the, in relation to reforms, 78 Popular Oovemment, Ixxiv, xcv note 1 Precedent, frequency of appeal to, in English history, 18 Premier, the, power of, to dissolve Parliament, liii ; power of, to curtail freedom of discussion, Ivi ; and the Courts of Law, 20 Prerogative of the Crown, 61 ; the term, 420 ; as anterior to the power of the House of Commons, 421 ; survival of, 459 ; in relation to the Cabinet, 460 ; as increasing the authority of the Commons, 461 President of the United States, the, election of, 28, 175, 483 ; position of the Federal Judiciary in con- nection with, 152 ; independent action of, 485 President of French Kepublio, elec- tion and powers of, 486, 487 ; in relation to National Assembly, 487 Presidential Government and Cabi- net Government, forms of, 482 ; the former nominally still existing in France, 486 Press, the. Prevention of Crime Act (Ireland), 1882, in relation to, 228 ; liberty of, under the De- claration of the Rights of Man, 234 ; Belgian law as to, 234 ; the law of libel, 236 ; the Govern- ment in relation to, 243 ; present position in England, 243 ; absence of censorship in England, 244 ; the Courts and, 246 ; under the Commonwealth, 246 note ; the law of, in France, in comparison with that of England, 248 ; under the laws of France, 260 ; in England in the sixteenth and seventeenth centuries, 255 ; of England, under the Star Chamber, 256 ; law of England and of France in contrast, 257, 259 ; end of the Licensing Act, 257 Prevention of Crime Act (Ireland), 1882, 227; powers of the Irish Executive under, 227 Priestley, opinion of, on the Sep- tennial Act, 45 Prime Minister, the, as head of the English Cabinet, 8 ; the appoint- ment of, 404 Printing-presses, the control of the Star Chamber over, 256 ; the University, 256 574 INDEX Private member, impatience of, to carry BUI, Ivi Private Rights, Parliament in re- gard to, 46 ; Coke on, 46 Privy Council, the, power of, in rela- tion to Acts of Parliament, 50 and ruAe, ; jurisdiction of, in the six- teenth and seventeenth centuries, 374, 375 Proclamations, the Statute of, 48 ; repeal of, 49; Royal, in relation to common law, 51 ; modern instances of, 51 and note Proportional representation, the case for, Ixvi ; fosters log-rolling, Ixx, Ixxii; in 1870 and 1914, Ixxiii note 1 Proportional Bepresentation and British Politics, Ixvi note 2, Ixviii notes 1, 2 ProportionaUsts, object of, Ixxi Public Accounts Committee, the, 318 Public Authorities Protection Act, 1893, 384 note Public Bill, xxi Public Documents, the formality of signing, 322 Public Meeting, Right of, 32 note ; questions connected with, 32, 266 ; in Belgium and in England, 266 ; the Courts of England in rela- tion to, 267 ; unlawful assembly under, 268-269 ; decisions in oases of, 270-272 ; limitations on right of, 273-276 ; power of the Government as to, 277 ; condi- tions as to, 278-279 J Appendix, Note v., 497-512 Public Opinion and Popular Govern- ment, xlii note 1, Ixvi note 2, xoi note 2, note 1 Pubhshers of libel, position of, 238 ; on Government, 239 Railway Companies, as non-sove- reign law - making bodies, 90 ; power of, to make bye-laws, 91 ; functions of the Courts with re- gard to, 92 ; instances of illegal bye-laws, 93 Rebellion, armed, xliii Reeves, author of History of English Law, trial of, 420 Referendum, the, xci ; definition as applied to England, xoi ; the "people's veto," xcii ; what it may be applied to, xcii note 1 ; causes of demand for, xcii ; main argument against, xoiv ; as viewed by Socialists, xov ; power of veto might work for ill as well as good, xcvi ; main argument in favour of, xcvii ; the strength of, xovii ; its tendency to lessen the evils of the party system, xoviii Reform BUI, the, of 1882, Ivi, 126 Reform Riots, the, of 1831, 285 Religion, the law of libel in relation to, 240 Representation, proportional, Ixvi Representative government, causes leading to the foundation of, 81 ; two different forms of, 480 RepubUo, the, of France, 120 ; posi- tion of the President, 120 ; the existing constitutions of, 129 ; Art. 75 of the Year VIII., 351 Republican electors, in the United States, 28 Resignation of Ministry, how en- forced, 446 Resolutions of Parliament, Mr. Justice Stephen on, 53 Responsible Government in the Do- minions, xxix note 2, xxx notes 1,3 Revenue, the, 308 ; source of the public, 308 ; hereditary, of the Crown, 309 ; under permanent and annual Acts, 310; the authority for expenditure, 311, 312; the "Consolidated Fund," 313 ; security for the proper expenditure of, 314, 315 ; position of the ComptroUer General with regard to, 316 ; Lord Grenville in opposition to the Parliament in matter of, 1811, 317 ; the Public Accounts Committee, 318 ; main features of control and audit, 319 note ; as governed by law, 320 Revolution of 1830, 253 Rhode Island, under charter of Charles II., 161 Right of PubUo Meeting, the, ques- tions connected with. Appendix, Note v., 497-512 Right of Self-defence, the, Appendix, Note IV., 489-497 " Rigid " Constitution, Belgium and France examples of, 123 and note, 124, 142, 169 Rigidity of French Constitutions, Appendix, Note I., 469-476 ; of Constitution of Australian Com- monwealth, 533 Riot Act, the, substance of, 286 Riots, duties of citizens in cases of, 284; the Reform, of 1831, 285; the Gordon, 1780, 286 INDEX 575 Roebuck, Ivi Roland, Madame, Ixii nvoU 3 Rolfe, Sir R. M., on martial law, 540, 646 Roman Empire and Greece, Ixxxix Royal Prerogative, ideas as to, in the seventeenth century, 365, 368 Royal Proclamations, in relation to common law and Acts of Parlia- ment, 51 ; modem instances of, 51 and luAe, Royalty, English, in sympathy with British people, 1 Rule of Law, the nature and applica- tions of, 179-201 _; Tocqueville's comparison of Switzerland and England under, 180 ; three mean- ings of, 183 ; personal security under, 183; Continental authority under, 184, 185 and moie ; as a characteristic of England, 189; England and France in contrast, 190 ; in the United States, 195 ; equality under, 198 ; and the leading provisions of Constitution, ]99 ; Right to Personal Freedom, 202-233; Right to Freedom of Discussion, 234-265; Right of Public Meeting, 266-279 ; Martial Law, 280-290; the Army, 291- 307 ; the Revenue, 308-320 ; re- sponsibility of Ministers, 321-323 ; Ministers as subject to, 323 ; in contrast with Droit Administratif, 324-401 ; its merits, 389 ; defects, 390 ; relation between Parlia- mentary sovereignty and, 402- 409 ; tendency of foreign assem- blies to support, 405 Rules, legal, of Constitutional law, 30 ; as enforced, 23 ; as conven- tions, 23, 25 Russell, Lord John, 1 Scotch Universities in relation to the Act of Union, 63 Scotsmen, their objection to use of term England for Great Britain, Ixxxix Scott, General, Ixxix Scott, Sir Walter, Ixxx Seals necessary to the completion of Acts, 322 Secretary of State, the, position of, under ordinary law, 281 Self-defence, the Right of. Appendix, Note IV., 489-497 Septennial Act, the, 42 ; Hallam and Lord Stanhope on, 43 ; opinion of Priestley and others on, 45 ; a I proof of Parliamentary sove- reignty, 46, 73, 433 Sidgwiok, Prof., Elements o/ Politics, 68 note, 171 niote Slavery, the War of Secession in re- lation to the abolition of, 79 Soldiers, liability of, as citizens, 282 ; under the Mutiny Act, 294 ; rights of, as citizens, 295 ; civil liabihty of, 297, 298 ; under charges for crime, 298 and note ; Mr. Justice Stephen on, in relation to their officers, 300; liabilities under military law, 302 ; duty of, when called upon to disperse unlawful assembly. Appendix, Note VI., 512-516 Sommersett, James, case of, referred to, 216 South Africa, wars in, xxxvi South African Union, Keith on, 480 Sovereign power, Hume on, 75 ; limits to, in the case of absolute rulers, 75, 77 ; illustrations of the limit of, 75; under Federalism, 145 Sovereignty, the limit of legal, 76 ; legal, of the United States, 145 ; legal and political, the distinction between, 425 Sovereignty of Parliament, xviii, 37-176, 58 note; modification of, xix ; and of King, xxiv ; change in the area of, xxiv ; in relation to Colonial Acts, 100-104, 113, 465 note Speaker of House of Commons, as affected by Parliament Act, xxxviii, liv ; not the servant of a party, liv Speaker of U.S. House of Repre- sentatives, Iv Standing Army, the, of England, in comparison with the Militia, 292 ; the institution of, 292 ; legislation ' as to, 297 Stanhope, Lord, Life of Pitt, 2 Tiote 2 ; on the Septennial Act, 43 Star Chamber, the, control of printing-presses held by, 256 ; abolition of, 1641, 263, 375 State officials, position of, under the Habeas Corpus Suspension Act, 229, 230; under the In- demnity Act of 1801, 231, 232 Statesmen as affected by mere con- ventions, 1 Stationers' Company, the, formation of, 256 Statute or " written law," 27 576 INDEX Statute of Proclamations, legislation under, 48 ; repeal of, 49 Stephen's Commentariea, 8, 370 Stephen, Mr. Justice, on the resolu- tions of the Commons and the judgment of the Courts, 63 ; on the relation of soldiers to their officers, 300 Stephen, Leslie, on the limitations of Parliament, 78 ; lAfe of Faw- cett, 463 note Story, Commentaries of, on the Con- stitution of the United States, 4 ; lines of work, 5 ; Commentaries on the Conflict of Laws, 370 Stubbs, Dr. (Bishop of Oxford), as a constitutional historian, 12, 16 Suffragettes and lawlessness, xli Supplies, the refusal of, 450 and note Supreme Court, the, of the United States, American reverence for, Ixxviii ; formation and power of, 154-158 ; case of Marbury v. Madison decided by, 161 ; as " master of the Constitution," 171 note ; restraints on, 171 note ; case of Munn v. Illinois, 173 ; alleged weakness of, 173 ; source of power of, 174 Suttee, Ix / Swiss Confederation, the, 71 note ; an example of Federalism, 134, 135 note, 164, 165 ; description of, 487, 488 Swiss Constitution, the, 140, 148 note ; " guaranteed " rights of, 150 ; serious flaw in, 166 Swiss Federalism, Appendix, Note VIII., 517-529 Switzerland, the electorate of, 57 ; the Federal Assembly in relation to the Courts, 165, 172 ; weakness of Federalism, 167, 168, 176; Tooqueville'a comparison of law of, with that of England in 1836, 180 ; Federal CounoU of, 487 Tarde's Lois de Vimitation referred to, 378 Tarring, Laws relating to the Colonies, 104 note Taxation, how levied, 310 ; perma- nent and annual Acts of, 310 ; Income tax, 311 Territorial Force, 305-307 Thiers, M., 350 Tocqueville, A. de, on the English Constitution, 21 ; on the English Parliament, 84, 85 ; on the Con- stitution of France, 118, 119 and note ; on the influence of law in Switzerland and England, 176, 180 ; on Droit Adminiatratif and the institutions of the Union, 327 and note, 331 and note, 352, 353 note, 387, 388 ; on Art. 75, Year VIII. of the Republic, 351-352 Todd, on Parliamentary power, 65 ; on the passing of Colonial Bills, 112 Tone, Wolfe, the trial of, 1798, 289, 290 Tories and Whigs, Ixx Trade, the Board of, under the Mer- chant Shipp&g Act, 1876, 392 Trade Unions and judges, xl ; and "peaceful picketing," xl Traite de Droit Conetitutionnel, xlv note 1, xlvi note 3, 253 Transvaal Legislature, Immigrants Restriction Act, 1907, 116 note Treaties, power of the Colonies as to, 115 Trial by Jury, 397 Tribunal dea Conflits, the, the func- tions of, 359, 360, Appendix, Note XI., 555-556 " Unconstitutional " Law, meaning of an. Appendix, Note VII., 516 Union, the Acts of, 42 ; the Scotch Universities and, 63 ; the fifth Article of (Ireland), 64, 433 Union, the Act of, Ixi ; as subject to repeal (Scotland), 141 Union of South Africa, The, 480 note 1 Unitarian government, and Federal- ism, 151 and note; the meaning of, 153 Unitarianism in contrast with Feder- alism, 144 United States, the. Constitution of, in comparison with the English, 4 ; Kent and Story's Comment- aries on, 4 ; an instance of re- lationship of constitutional his- torians and legal constitutional- ists, 15 ; law of the constitution and conventional rules in, 28; position of electors in, 28; Con- stitution of, 71 note; the aboli- tion of slavery, 79; limited power of legislative bodies in, 132 ; the Federalism of, 134 and note ; the constitution in comparison with the English, 135 ; the union of ideas as to institutions in, and in England, 136 ; preamble of the INDEX 577 Constitution of, 139 ; the suprem- acy of the Constitution, 140 ; the War of Secession, 142 and note. ; the fifth Article of the Constitu- tion of, 143 ; the legal sovereignty of, 145 ; legislature of, 146 ; Acts of Congress, 146, 157 ; the President of, 148 ; the i"ederal Courts of, 148 ; limit of power in individual states, 149 ; the authority of the Courts of, 154, 170 ; the Supreme Court of, 155- 158, 172, 173 ; the Constitution of, in comparison with that of Canada, 162 ; success of the Federal system in, 175 ; the Con- stitution of, 195 and note ; rule of law in^l96 ^ institutions of, in contrast with Droit Administraiif, 320 ; the President in relation to the Senate, 461 ; the Constitution of, 467 and note ; the rule of law in, 467 Universities, the, legislation of Par- liament as to, 170 ; establishment of printing-presses at, 255 Unlawful assembly, 269, 272 note, 273, 274 ; duty of soldiers when called upon to disperse. Appendix, Note VI., 512-516 Veto, of Crown and Colonial legis- lation, xxviii, XXX ; the meaning of, 25 note ; the right of, in con- nection with the Crown and Colonial legislatures, 110-113 and notes ; instances of, in Canada and Australia, 114 ; non-existent in the French Chamber, 120 Victoria, Queen, 1, 451 Victorian (Colonial) Parliament, the, and laws altering the constitution, 106 note ; the struggle between the Upper and Lower Houses of, 1878 and 1879, 456 Vindication of the Rights of Women, Ixii note 3 Vivien, on Droit Administraiif, 332 Voltaire, impressions of England, 180 ; imprisonment and exUe of, 185, 186 Vote of Censure, action of the Ministry under, 435, 445 Vox populi vox Dei, revival of faith in, Ixii Walpole and the passing of the Sep- tennial Act, 45 War of Secession, the, and the abolition of slavery, 79 ; the plea for, 142 Ward, Sir Joseph, and his plan for Imperial Council, Ixxiv note 1 Washington, in connection with the constitutional articles of the United States, 15 Wellington and the Dissolution of 1834, 429 Westlake's Private International Law referred to, 370 Whigs and Tories, Ixx WUkes, John, 32, 430 WiUiam III., 459 William IV. and creation of peers, lii ; and the Dissolution of 1834, 431 Williams, Fisher, Proportional Re- presentation and British Politics, Ixvi note 2, Ixviii notes 1, 2 Witenagem6t, the, 14 Wollstonecraft, Mary, Vindication of the Rights of Women, Ixii note 3 Woman suffrage, Ixii ; woman's claim to a vote, Ixii ; causes of strength of the movement, Ixiii ; arguments for and against, Ixiv ; and proportional representation, Ixvi; John Mill's argument for, Ixix Writ of Habeas Corpus, the, 209, 210 and note ; the issue of, 210 ; in- stance of power under, 216 ; au- thority of the Judges under, 218 ; case of aliens under, 220 THE END Priuledin GrenC RritaLn by R. & R. CLARK, Limited, Edinburgh. BY A. V. DICEY, K.C. LECTURES ON THE RELATION BETWEEN LAW AND PUBLIC OPINION IN ENGLAND DURING THE NINETEENTH CENTURY. Second Edition. 8vo. 12s. 6d. net. THE r/MS5.—" Published originally in 1905, this book has occupied for some years the position of a classic. It has introduced new thoughts and new views. It has brought together the teaching of the historian and the jurist. It has shown what lies behind or under legal forms and statutes. In every univer- sity, here and in America, it has for some years been a stimulant of thought, a corrective of the narrow legal habit of never looking beyond the letter of the statute. This volume is in a sense the esprit des lois of our time. To the second edition Professor Dicey has added a long introduction, in which he carries his analysis into the twentieth century." THOUGHTS ON THE UNION BETWEEN ENGLAND AND SCOTLAND. By A. V. Dicey, K.C, Hon. D.C.L., and Robert S. Rait, C.B.E., Professor of Scottish History and Literature in the University of Glasgow. 8vo. 1 6s. net. THE SPECTATOR. — "An extremely able book. The English jurist and the Scottish historian, collaborating in an examination of the Union, its antecedents, and its consequences, have thrown new light on one of the greatest events in our history." LONDON : MACMILLAN AND CO., Ltd. MEMORIALS OF ALBERT VENN DICEY Being chiefly Letters and Diaries. Edited by ROBERT S. RAIT, C.B.E. With 2 Portraits in Photogravure. 8vo. 1 2s. 6d. net. THE TIMES. — " Prof. Rail's volume, in memory of the late Prof. A. V. Dicey, will be very welcome in the realm of letters as well as of law. Dicey was far more than a lawyer, though he brought to bear upon the most contested juridical fields a mind of singular clarity and vast capacity. ... It is no criticism of this well-compiled book and the invaluable collection of letters and papers to say that the autobiographic fragment at the begin- ning shows what a loss was sustained by Dicey's failure to write his reminiscences in full. This fragment, written in his eighty- seventh year, is full of wise comment and admirable lookings- back. His views, however, are adequately represented by the many letters on politics, law, literature, and sociology. They represent the ripe outlook of a mind and personality which, in the quietude of his study, was having more influence for good on the world that he adorned than has been vouchsafed to many able and resourceful politicians and statesmen." THE OBSER VEIi.—" In this charming volume, Professor Rait has left us a most attractive picture of his friend. Wisely enough, he has allowed Dicey, in the main, to speak for himself; and he has deftly added only the few necessary touches to give mtegrity to the whole." Sir Michael Sadler in THE MANCHESTER GUARDIAN. — "Professor Rait has portrayed skilfully and reticently not Dicey alone, but the atmosphere of Dicey's home and circle." LONDON : MACMILLAN AND CO., LTD.