The English constitution: a commentary on its nature and growth
Macy, Jesse, 1842-1919
^rf Vrf' dW i 4*4 i * 4 4 4 t W^l 4 4 4 A^£ r<^^4 CAA 4 t r< V r< <N < < < :«<y,o i<;<;sr«i««« VA m. .Mm yXwiviwA i^^t^iii t-- ■■'■ fy^->- ■>?«2 \l^ f> THE ENGLISH CONSTITUTION A COMMENTARY ON ITS NATUEE AND GEOWTH •T^2yf^° THE ENGLISH CONSTITUTION A COMMENTARY ON ITS NATURE AND GROWTH BY JESSE MACY, M.A., PROFESSOR OF POLITICAL, SCIENCE IN IOWA COLLEGE WeJn f orfe THE MACMILLAN COMPANY LONDON: MACMILLAN & CO., Ltd. 1897 All rights renewed COPTEIGHT, 1896, bt the macmillan company. NoriDoolJ 5tt8S J. S. Cushing & Co. — Berwick & Smith Norwood Masi. U.S.A. J/V) /n3 TO Jig Witt MY MOST CONSTANT AND EFFICIENT COLABORER THIS WORK IS GRATEFULLY DEDICATED Digitized by the Internet Arciiive in 2007 witii funding from IVIicrosoft Corporation littp://www.arcliive.org/details/englisliconstitutOOmacyiala PREFACE My knowledge of the present English Constitution has been derived primarily from the study of standard works upon the subject, but that has been supplemented by two periods of personal observation. A year's residence in England, from July, 1887, to July, 1888, gave opportunity for an acquaint- ance with British politics at a most interesting and important juncture of affairs. It covered the later month of the Queen's Jubilee year, and the time when, the Liberals having been defeated on the Home Rule Bill for Ireland, the Conservatives were inducted into office through the cooperation of the Liberal Unionists. Eight years later, I passed the months from Feb- ruary to July, 1896, in London, when the same party had again just returned to power after the failure of the secoud Home Rule Bill. In the prosecution of the work of direct observation, I have been the recipient of innumerable courtesies and favours in the form of gifts of books and papers, access to records, and per- sonal information of great value. Among those thus further- ing my plans, I take pleasure in mentioning Mr. James Bryce, M.P. ; the late Professor Edward A. Freeman; Mr. Sam: Tim- mins, of Birmingham ; Mr. H. H. Ho worth, M.P., of Manches- ter; Mr. Joseph Wilkinson, of York; the late Canon Raine, of York Cathedral ; Judge Chalmers, of Leamington ; Mr. Alexan- der Ure, of Edinburgh ; and the late Mr. Henry Richards, M.P. For more direct aid, I gratefully acknowledge deep obliga- tions to Professor John Kirkpatrick, of Edinburgh University, who revised a portion of my manuscript; to Sir Frederick Pollock, Bart., who read the entire manuscript and gave me the benefit of his criticisms and advice. To Professor J. W. Ashley, of Harvard University, Cambridge, Mass., I am espe- viii PREFACE cially indebted for assistance both in the preparation of the manuscript and in the reading of the proof. For a like service, I also owe thanks to Professor 0. F. Emerson, of Adelbert College, Cleveland, 0. ; to Mr. F. I. Herriott, of Des Moines, la.; to Professor George Huntington, of Carleton College, Northfield, Minn. ; and to Mr. I . B. Eichman, United States Consul-General at St. Gall, Switzerland. It is not an empty- form of words when I say that whatever merits may be found in this book are due in no small degree to the kindness of generous friends ; while for its inaccuracies and defects the author is alone responsible. In the introductory chapter, the statement is made that one object of the book is to enable American readers to gain a better knowledge of the American government. It may be an advantage to some readers for me to add that Part I. was prepared specifically in order that Americans might be able to read with greater profit Bryce's The American Common- wealth. To fully appreciate that great work, the American needs to be well grounded in English politics. He must know the present Constitution in its theory and in its practice. Part II. is designed to answer certain questions often raised in an attempt to understand the present English Constitution. Americans should never forget that, until the founding of the colonies, English history is our history. Nor should they fail to remember that for a hundred years after, there was a per- sistent effort to establish in England a government according to what would now be called the American model, — that is, a government based upon an artificial constitution whereby the Legislature and the Executive should be balanced one against the other. It was not until the coming in of the House of Hanover, in 1715, that English constitution-making became of a distinctly different character. If this book shall prove to be of interest to English readers, it will be by reason of the presentation of the subject treated from an American point of view, rather than from any dis- play of superior knowledge. jAxrAKT, 1S97. CONTENTS PAGB Introduction 1 Part I THE NATURE: OF THE CONSTITUTION CHAPTER I A Comparative View of the English and American ConstI' TDTIONS ........ Sovereignty in the United States and in England Simplicity and brevity of the English Constitution Meaning of the term " Constitution " Sources of the Constitution .... 9 9 13 14 16 CHAPTER II The House of Commons and the Cabinet ..... 17 Meaning of the term " Parliament " 17 The House of Lords and the Crown subject to the will of the nation . • 18 Election of the Commons 19 Choosing of the Executive 20 Importance of political parties 24 Law-making in the House of Commons ..... 27 Financiering 29 The daily questions in  Commons .... 33 Distinct sources of power and influence in the House and the electorate 34 Enforcement of the Constitution 36 Parliamentary procedure as a check 37 IX CONTENTS CHAPTER IV Th« House op Lords .... Composition of the House. Creation and duration of Peerages Non-democratic character of the House Attendance of members Organization and politics of the House The Lords a legal check upon the Commons Lords have coordinate power over non-Cabinet legislation When the Lords must yield to the Commons Relation of the Lords to a Conservative Cabinet Relation of the Lords to a Liberal Cabinet Lords may force a Liberal Cabinet to resign Methods of securing acquiescence of the Lords The House of Lords as a revisory body The " Sick Man " of the Constitution CHAPTER V The Crown The high prerogatives of the Crown mere forms of law Five terms used in describing the Executive Monarch acts only through Ministers Royal prerogative in the hands of the Cabinet strengthens the democracy ....... Forms of law contradict facts of the Constitution House of Lords and the Senate of the United States Power and influence remaining to the Monarch Royal right to information The Monarch must not betray his Ministers The royal correspondence. Influence of the Monarch still great. Democracy jealous of secret influence Sentimental devotion to the Monarch Dicey's plan for royal referendum CHAPTER VI The Ministry 77 Cabinet of 1896 77 Ministers not in this Cabinet 78 Permanent administrative force 79 CONTENTS Jd PAOK Four classes of Executive oflBcers 80 The Prime Minister 80 Relation of Cabinet officers to each other 82 Unity of the Cabinet 84 Ministers are partisans . 85 Lower civil-service officers non-partisan . . . . .86 The Privy Council 86 Its relation to the Cabinet 86 Its duties 87 CHAPTER VII The Courts 89 American courts interpret this Constitution . . . . 89 Legislative acts modified by the courts 91 Common law of judicial origin 93 English courts protect the citizen against the Executive ; Amer- ican, against the Legislature 93 Personal rights of Englishmen dependent on judicial decisions . 94 House of Lords as a court 96 Judicial Committee of the Privy Council 98 The Supreme Court of Judicature 99 The County Courts 100 Quarter Sessions . . . 101 CHAPTER VIII The Church -- . 103 Bishops in the House of Lords .103 The Established Church and other churches .... 104 Disestablishment , 105 CHAPTER IX Sources of the Constitution The courts as one source. Blackstone's view .... Changes in the Constitution Conflict between law and Constitution In what sense is the Constitution old ? An outgrowth of English history 107 107 108 109 110 111 112 zU CONTENTS Part II GROWTH OF THE CONSTITUTION CHAPTER X PAOE Sources op Power and Influence in the Norman Period . 117 Comparison with the present Constitution 117 Crown overshadowed all .118 Conditioned by the barons 119 By the Church 121 By the people 122 Importance of local government 124 The Crown described . . 124 Nobility 125 Church 126 Teaching function of the Church 127 The people 128 Towns and cities ......... 129 Origin of juries 129 Thefyrd 130 Political parties . 131 CHAPTER XI Early Contention and Strife The King and the national assembly Feudal dues Danegeld and other taxes Revenues of the Church William II. crowned. Supported by the English Weakness of the Great Council Anselm and the King Henry I. and the national assembly 133 133 135 136 137 138 139 140 141 143 CHAPTER XII RoTAL Rule by Means of the Council 145 The Curia Begis . 145 Stephen and the Church 147 Henry II. crowned 148 CONTENTS XllI PAOE Development of the Curia Regis 149 Becket resists the King 150 Constitutions of Clarendon 151 Death of Becket 151 Notable barons' war 152 Comparison with earlier and later Constitution . . . 154 Justices of the Peace 157 CHAPTER Xni * Magna Charta .... Ten years of strife The appointing of an archbishop John becomes the Pope's vassal At Runnymede .... The Charter as a harmonizing agency Items in the Charter. Its practical nature Meaning of terms used Fifteen years of Charter privilege 158 159 160 161 162 162 163 164 164 167 CHAPTER XIV The Power of the Crown regained bt Means of Parliament 169 Alliance between Henry III. and the Pope Efforts to control the ministers. The Provisions of Oxford .... Parliament as a field for contending factions Edward I. regains confidence of the people Organization of courts .... The Model Parliament .... Earlier and later Parliament The King defies the clergy and yields to the barons 169 170 171 172 173 174 176 177 179 CHAPTER XV Parliament as an Agency of Faction Edward II. and the Ordainers. The Commons share in legislation Edward III. and the militia Separation of Parliament into two Houses The Good Parliament of 1376. 247 247 248 250 252 253 254 xvi CONTENTS PAOK Divine-right theories of King and Church 255 Pretensions of the Commons 256 Their position strengthened by the divine-right theory . . 259 Conflicting theories reconciled in the Cabinet .... 260 CHAPTEE XXII The Early Stuarts and the Courts 261 The Bates case 261 Naturalization of Scottish residents 262 Chief Justice Coke . . .262 The Star Chamber and other courts 263 The House of Commons a court 264 Impeachment 265 Ministerial responsibility 266 Bills of attainder 266 CHAPTER XXIII A Sovereign King versus x Sovereign Parliament . . . 268 The power of the purse 268 James's theory of finance 269 The theory of the Commons 269 Superior position of the Commons 270 Petition of Eight 271 The King as a law-breaker 272 The Petition compared with Magna Charta .... 273 CHAPTER XXIV Religious Controversy 274 Puritans and Presbyterians 275 Attempted compromise . 276 James's friendship for Spain 277 The Puritans and the Bible 277 Archbishop Laud 278 Thomas Wentworth 279 Scottish policy of Charles 280 Ship-money 281 Parliament of 1640 282 CONTENTS xvH CHAPTER XXV PAOK 283 283 284 285 286 287 288 288 289 Toleration and Democracy Self-restraint of the common people. Democracy an unattained ideal .... Toleration in the Church of the Middle Ages The Covenant adopted by Parliament Toleration and the army Presbyterian Church government not democratic Independents and Baptists democratic Political debate favourable to democracy. CHAPTER XXVI The Rebellion and the Commonwealth 291 First acts of the Long Parliament 291 The Grand Remonstrance 292 Beginning of war 292 Oliver Cromwell and his army 293 Contributions of the Commonwealth to the Constitution. 294 Permanent division in the Church 297 CHAPTER XXVII The Monarchy of the Restoration 299 Difficulty between King and Parliament unsettled. 299 Charles II. and James II. refuse to limit Royal Prerogative. 300 Reaction from Puritan restraints 301 The Commons of England versus the common people. 302 Non-conformists become Dissenters 303 Acts against Dissenters 303 Ministers of Charles II. 304 CHAPTER XXVIII The Beginnings of Political Parties 306 Early divisions 306 Principles of the two parties 307 Conflict between Danby and Shaftesbury 308 "Petitioners" and "Abhorrers" 309 Triumph of the King 310 Reorganization of municipal corporations 310 Rye Howse Plot 311 xvUi CONTENTS CHAPTER XXIX PAOK The Tyranny of James II 312 James a high Tory 312 He secures obedient courts 313 Fails to secure an obedient Parliament 314 Declaration of Indulgence 314 Acquittal of the bishops 315 William of Orange invited by Tories and Whigs to deliver them from their King 316 CHAPTER XXX The Great Revolution 317 William and Mary crowned 317 Why the revolution was great 318 Monarchy as developed by Tudors and Stuarts survives the revolution 319 Acts favourable to reign of Cabinet system analyzed. 321 CHAPTER XXXI The Act of Settlement. 323 Its chief provisions 323 Permanent Judiciary 324 Privy Council 324 Pensioners excluded from Parliament 325 Failure in efforts to control the Executive 326 CHAPTER XXXII The Composition of Political Parties 327 The great Whig families 328 Townsfolk Whig 329 Tory party homogeneous 330 Division of parliamentary party in 1641 331 Persecution of Dissenters 332 CHAPTER XXXIII Other Acts following the Revolution ..... 333 The Jacobites 333 Freedom of the Press 334 Mutiny Act of 1689 335 Denial of the right of petition 336 Absolutism in the two Houses ....... 336 CONTENTS CHAPTER XXXrV PAOS Origin of the Cabinet 338 Meaning of the term 338 Allied institutions 339 All dependent on the King 340 Growth of legislation by the two Houses 340 Conflict between King and Parliament 341 Sir William Temple's plan of government 342 Cabinets of William III 344 CHAPTER XXXV Queen Anne and the Cabinet 346 Marlborough 346 Party government gains 347 Tories triumphant 348 George I. Early instances " Society of the Friends of the People " Long period of repression Macaulay's speech on the Reform Bill 421 422 422 423 423 CHAPTER XLIV The Great Reform 425 The Duke of Wellington 425 Changes in the law 425 Crown made subject to the Cabinet 426 The Cabinet and the early Hanoverians 426 William IV. yields to the Democracy 430 The mob gives place to Democracy 431 The Reform of 1832 a greater revolution than that of 1688 . 432 Coercion of the Lords 434 Changes in party names 435 CHAPTER XLV Later Reform Movements The Chartist agitation. The natural and convenient corrective to these errone- ous impressions and false beliefs is a study of the English origin of our own political institutions. And to keep the American citizen alive to the fact that he is subject to a living and ever-changing constitution nothing is more effective than a study, by way of comparison and contrast, of the latest developments of the Constitution of the mother-country. In a recent work on Sir Robert Walpole, Mr. John Morley observes : " The great constitutional question of the eighteenth century, as every reader knows, was whether •the government of the realm should be parliamentary or monarchical. Was it to be an absolute rule of the king ; or, as Cromwell sought, a Parliament making laws and voting money, coordinate with the Chief Person, and not meddling with the Executive ; or a Parliament contain- S INTRODUCTION ing, nominating, guiding, and controlling its own Executive ? " ^ Apart from the absolute monarchy there are here recog- nized two distinct forms of free government. America to-day represents one form, and England is the best repre- sentative of the other form. The Chief Person in the United States is the President of the Republic, and it is the business of Congress to make laws, to vote money, and not to meddle with the Executive ; while in each State the Chief Person is the Governor of the State, and it is the business of the State Legislature to make laws, vote sup- plies, and not meddle with the Executive. The American colonies were founded during the cen- tury in which there was continuous discussion of the nature of the English Constitution — the century in which there were many efforts made to change in an artificial way the English government. All such efforts at conscious arti- ficial alteration failed, and the English Constitution, as Americans would say, was allowed to drift. Or, as the English are wont to say, after the century of debate and attempted revolution the English Constitution went on growing and developing in its characteristic, normal way. In America the normal way for a constitution to be made or changed is by a conscious act of the people, and this idea has been emphasized in such a way as to tend to ob- scure the equally important fact of the unconscious growth and development of the American Constitution. In no way can the American citizen so conveniently and so profitably gain the needed sense of the natural growth of his own Constitution independently of all efforts at con-* scious amendment, as by following out and studying the results of such change in the other branch of the common constitutional stem. This work on the English Constitution has grown out 1 Walpole, p. 139. INTRODUCTION 8 of efforts to assist American students to a better under- standing of the constitution of their own government. In order to secure in the mind of an American student a continued interest in a , constitution he must at least be made to believe that it is being explained. It is a funda- mental element in his notion of a constitution that it is something to be commented upon and explained. To the Englishman the Constitution of his country is simply an undistinguished part of that universe of which he is him- self a part. He has no acute sense of the need of an explanation of the one more than of the other. Many feritish writers have done admirable and useful work in explaining the present English Constitution, just as many of them have taken a leading part in the scientific ex- planation of the universe. But it is not to be expected that an English author would furnish such a commentary upon his own government as would be in all respects suited to the needs of the average American. In the same chapter of Mr. Morley's life of Walpole, from which I have already quoted, are found the words : " To-day it is correct to say that the Cabinet has drawn to itself all, and more than all, of the royal power over legislation, as well as many of the most important legisla- tive powers of Parliament." How is it that a Parliament " contains, nominates, guides, and controls its own Execu- tive," while at the same time the Executive has drawn to itself all, and more than all, the royal power over legisla- tion, as well as many of the most important legislative powers of Parliament ? To the English statesman, or to the American, whose acquaintance with the political liter- ature of England has enabled him to use words in the English sense, the question suggests no difficulty — he sees nothing to be explained. Parliament is the name of the imited government exercising sovereign power — legislative and executive as well. It is, however, a cus- 4 INTRODUCTION tomary form of speech to use the word in a more limited sense as applied to the two Houses apart from the Execu- tive. So to the Briton there is an obvious sense in which the Cabinet controls the two Houses, and likewise an obvious sense in which the two Houses control the Cab- inet. But to the ordinary American reader Parliament is but one of a multitude of names for a legislative body, and with him it is a cardinal principle that a legis- lature shall not meddle with the Executive. There is, of course, no difficulty in understanding the bare fact that the Parliament contains the chief executive officers. But the American sense of the word Parliament, and the American sympathy with and prejudice in favour of the parliamentary party, as presented in English history and in the political writings of Englishmen which Americans read with approval, all tend to give undue emphasis to the importance of the two Houses apart from the Execu- tive, and to obscure the actual relations of the Cabinet and the Crown to the Houses. Only since the formation of the American Union can it be said that Parliament has in any proper sense habitu- ally nominated, guided, and controlled the Executive. Parliament has always in a manner contained the Execu- tive ; but until recent years it would be much nearer the truth to say that the Executive habitually nominated, guided, and controlled the House of Commons, than that the House chose and controlled the Executive. The dominance of the House of Commons has been attained only after centuries of political conflict ; centuries of contention that Parliament, or the nation as represented in Parliament, ought to rule. The triumph of Parlia- ment has been secured in large part because of the fact that the English political writing with which Americans are most familiar has emphasized, often beyond the line of accurate statement, the powers of Parliament as INTRODUCTION 6 compared with those of the Crown. And the peculiar difficulty which the American reader experiences in understanding the executive side of Parliament is there- fore rather increased by his acquaintance with this parti- san political literature. Those who read attentively such books as Bagehot's English Constitution^ Anson's Law and Custom of the Constitution^ and Dicey's Introduction to the Study of the Law of the Constitution^ get a clear idea of the work- ing of the present Constitution. But an American reader is not satisfied with knowing what a constitution is; he wants also to know how it was made. In this work I have undertaken first to translate into American forms of speech English descriptions of the English Constitution, and second to explain the origin of the present Constitution. I have not intended to furnish in any sense a substitute for English works on the same subject, but rather to facilitate their use. The work is in fact the result of experience in the effort to interest American college students in the study of stand- ard authorities on the English government. The Second Part of my book is not a constitutional history of England in the accepted meaning of the term. It is rather a commentary on that history. It is a selection of such facts, incidents, and opinions as I believe to be helpful to an understanding of the present Constitution. In the ordinary constitutional history the point of view is from the contemporary society of each period described. In such a history events are recorded without especial reference to their obvious bearing upon present political experience. In this work the point of view is present facts and experience. Events in the past not having obvious bearing upon the present Constitution are intentionally omitted. This plan necessitates " tracing history backwards," It is a use of political literature for 6 INTRODUCTION the single purpose of explaining present political institu- tions in their practical workings. The aim is to make the existing Constitution thinkable. A thinkable consti- tution must necessarily precede a correctly understood constitution. It is by no means expected that all the views and opinions here expressed will be accepted as correct by that class of readers who take the trouble to think for themselves upon the subjects discussed. I have written the book without attempting a formal, technical definition of the principal term. It may, how- ever, be helpful to the reader to accept the following as a convenient working definition : A political constitution is that whereby the instrumentalities and powers of govern- ment are distributed and harmonized. If there is any peculiar merit in this definition apart from its brevity, it is found in the words "that whereby." The phrase being entirely general will admit of the substitution of anything that has ever been called a constitution, whether it be a written document proceeding direct from the body politic, or whether it be a body of customs, habits, and under- standings, or a body of fundamental laws proceeding from a sovereign ruler or a sovereign legislature ; or whether it be a mere matter-of-fact government without reference to origin. Almost anything which is called a constitution in current political writing may be described as that whereby the powers of government are distributed and harmonized. Viewed in an active sense it is the object of a constitution to secure harmony in the exercise of governmental power; that is, to prevent encroachments of the various parts one upon another. Part I NATURE OF THE CONSTITUTION CHAPTER I A COMPARATIVE VIEW OF THE ENGLISH AND AIMERICAN CONSTITUTIONS XT is difficult to adhere to a technical definition of the -*- word " sovereignty " in a prolonged discussion of actual political institutions. It is a favourite theory of some writers that in all cases true sovereignty rests with the people ; that he who is called sovereign, or the body of persons who are regarded as exercising sovereign power, should be viewed, not as the real sovereigns, but rather as agents of the sovereign people. According to this theory the Czar of Russia rules by the permis- sion, or by the will, of the Russian nation. ^ Whatever may be the value of this theory as applied to other nations, it seems to be the only theory that is applicable in the case of the United States. If there is anywhere in this country a supreme and ultimate authority, it is vested in the people. When our forefathers ceased to acknowledge English authority, they began to create agencies for a general government, and, at the same time, to adopt written constitutions for the government of the separate states. A few years later, the people ordained and established a written Constitution for the general government. According to all these constitu- tions, there is no one officer who does not act under limitations and restrictions, not one who may not be 1 Rousseau, Social Contract, Bk, II. 9 10 NATURE OF THE ENGLISH CONSTITUTION chap, i removed from office and punished for official wrong- doing. There are no officers whom we call sovereign, or whom we are accustomed to think of and speak of as exercising sovereign power. It may be accepted as a fundamental principle of our Constitution that every exercise of the power of government shall be limited. If, in the strict sense of tlie word, sovereignty exists in such a government, it must be in the people that enact the written constitutions, define the sphere of gov- ernment, and determine the powers of the agents or officers of the government. The people of the United States have ordained, through their constitutions, that a part of the business of govern- ment shall be transacted by federal officers, and part shall be left in the hands of the states. This peculiarity of the government has led to a novel use of the word " sovereign." We say that the federal government exer- cises sovereign authority over certain matters, such as foreign relations and the postal service, while the states exercise sovereign authority over certain other matters, such as general police regulations. This has been called "divided sovereignty." In one sense this is an absurd expression ; yet the thing which the term describes is not absurd. We live under the authority of two govern- ments, each acting through separate and, for the most part, independent agencies. In our famous controversy respecting the conflict of these two sovereignties, the most extreme of the state-rights party admitted that there were some things which the federal government alone had the authority to do. On the other hand, the most extreme advocate of federal authority admitted that there were some things which the states alone could do. The Civil War may be said to have settled the principle that hereafter a state or a group of states intending to form a separate and independent govern- CHAP. I A COMPARATIVE VIEW U ment must obtain tlie consent of the general government or pursue the old-fashioned plan of revolution, and not attempt to accomplish the object by the exercise of an alleged guaranteed constitutional right. Undoubtedly the War served to emphasize in the public mind the importance of federal authority ; yet, in its main feat- ures, the Constitution remains unchanged. We are still subject to a "divided sovereignty." At the time of the formation of the Constitution of the United States, a discussion of the various theories of sovereignty was carried on by a number of philoso- phers and statesmen, and these theories undoubtedly had some influence upon the result, but they were not the con- trolling factors. Besides the form of words embodying the notion that all power is derived from the people, there is little in our constitutions or laws to remind us of any theory or peculiar view concerning the nature of sovereignty. But when we come to the study of the English Con- stitution, the case is different. The substance of the English Constitution is in large part a matter of theory or opinion. It is worth while for the American student to take some pains to get out of the matter-of-fact state of mind which is necessary to enable him to under- stand his own Constitution, and get himself into a state of mind whereby he can contemplate and consider the inflaence of theories and weigh the effect of vague and varying opinions and mere conventions in the formation of constitutions. In the study of the English Constitution we are con- fronted on every hand with facts and fictions which can be explained only by a knowledge of certain theories of 12 NATURE OF THE ENGLISH CONSTITUTION chap, i sovereignty. According to the views of the leading writers and publicists of the present day, sovereignty in England is vested in Parliament, and the ruling branch of Parliament is elected by the people. In America, the people in their sovereign capacity, at the beginning adopted written constitutions for the general and for the state governments, and, on rare occasions, they act in the same capacity when they amend their constitutions or enact new ones. Only thus does sovereign action appear in America. In England, the people act in their sov- ereign capacity when they choose members of Parliament, and a newly elected Parliament in England embodies in itself all the powers of sovereignty.^ Here is one great contrast between the English and the American constitutions. Abolish all our state gov- ernments ; in the separate and independent federal executive let there be a Cabinet composed of members of the Congress, who at the same time control both legis- lative and executive business ; remove from our Supreme Court its power to refuse to give effect to a law of Con- gress ; leave every power of government, local and general, in the hands of a Congress controlled by a Cabinet and of such agencies as the Congress may choose to create ; and we should have in this country a counterpart of the English Constitution : we should then know more about the sovereignty of a government in action than we can ever learn from a study of our actual institutions. The Englishman votes for officers who exercise sovereign power, because in voting for members of Parliament he virtually chooses the party leaders who form the Cabinet which directs and manages Parliament, the sovereign body ; the American can only vote for officers who exercise restricted powers. The American electorate has chosen to exhaust its sovereign acts in the creation 1 Dicey, The Law of the Constitution., Lect. II. CHAP. I A COMPARATIVE VIEW 13 of constitutions whicli make it impossible for any one person or body except the people to exercise sover- eign powers ; the English electorate is brought into im- mediate contact with the agency of sovereign power. Parliament exercises the full sovereignty of the nation.^ Every governmental act is authorized or permitted by Parliament. According to this view the English Consti- tution is simplicity itself when compared with our own. Mr. Bryce, in his American Commonwealth, tells us just how many minutes it takes to complete the reading of the Constitution of the United States. But when we have finished this reading there are many state consti- tutions which call for a reading. Then there are the decisions of the courts, state and federal, in which provi- sions of the constitutions are subjected to interpretation. One would not proceed far with this task without dis- covering that our constitutions with the interpretations thereof furnish reading enough for a lifetime. Yet every word is really a part of the Constitution. It is this partitioning of governmental business between two sets of governmental agencies, and still farther the placing of legislative, executive, and judicial business in the hands of independent agencies, which has so complicated and lengthened the literature of the American Constitution. Leave out of the American Constitution this parcelling out and balancing of powers, and nearly all would be left out. Note then the simplicity of the English Constitution, in which we are relieved from that nice adjusting of powers which has so many times been the despair of our courts. If we adopt to its full extent the now generally accepted theory of the English Constitution, and apply to ^ " So long, therefore, as the English Constitution lasts, we may vent- ure to aflBrm that the power of Parliament is absolute and without con- trol." Cooley's Blackstone, 1871, Vol. I., p. 161. 14 NATURE OF THE ENGLISH CONSTITUTION chap, i it the American method of description, we shall have a constitution very short and very simple. The substance of it may be summed up in the one sentence, " All the powers of government are in the hands of Parliament." It is well for the American student firmly to grasp this simple but complete notion of the English Con- stitution. If he constantly bears in mind its sim- plicity, its brevity, and its comprehensiveness, it will be greatly to his advantage. Mr. Bagehot, in a book of three hundred and fifty pages, has given a marvel- lously accurate picture of the English Constitution. But if we leave out of his book the long arguments in favour of the English Cabinet sj'stem as against the American presidential system, the examination of various methods of administration, the lengthy discussion of the relative merits of royal and non-royal Cabinet govern- ments, and retain simply that part of the book which describes what the Constitution is in our sense of the term, it will be found exceedingly brief. Mr. Dicey's book on The Law of the Constitution is for the most part occupied with a well-sustained argument in support of the theory of parliamentary supremacy. The part of the book which an American would naturally accept as a description of the Constitution may be read in a few minutes. In one place is found a statement of tlie cus- toms of the Constitution, and I find that I can read them all in about one minute. The author does not, however, profess to give a full list ; yet if all the laws, which we should naturally classify as constitutional in their char- acter, were clearly summarized, and all the customs of the Constitution were clearly stated, the whole could be read in a short time. The word "constitution," like other words used in political discussion, has a variety of meanings. In the present stage of political science, he who sets a proper CHAP. I A COMPARATIVE VIEW 15 value upon clearness of ideas will not usually attempt a technical definition of the terms used. The student is compelled to struggle for clearness of ideas. To this end he must learn as many definitions as he can, and, above all, he must learn to detect to the extent of his ability the precise meaning of important words in the passages where they are used. We get no full, comprehensive view of the Constitution of the United States until we look be- yond the document which bears that name, and include the constitutions of the various states. These taken together may be held to embody our written Constitu- tion. This Constitution, being written, has impressed Eng- lishmen as stiff and rigid. But to see our real Consti- tution we are compelled to look beyond these documents to their embodiment in our governmental institutions. These are not rigid ; they are not unchanging. At scores of points there are observed tendencies to change. Here the executive tends to encroach upon the legislature or upon the judiciary ; there a legislature encroaches upon the executive, or strives to keep its acts from being reviewed by the courts ; again, the courts are becoming political and are assuming to decide questions which belong to the legislature ; or the federal authorities are encroaching upon the states, or the states upon the fed- eral government ; or the governmental agencies are en- croaching upon the rights of citizens, or the citizens, through unauthorized agencies, are encroaching upon the field of government. The American Constitution is de- signed to prevent these encroachments, to preserve the rights of citizens, and to outline and harmonize the work of the several departments of government, and define the duties of the governmental agents. In other words, the chief object of the Constitution is to determine the spheres of governmental agencies and to prevent encroachments. The English have never in cold blood set themselves to 16 NATURE OF THE ENGLISH CONSTITUTION chap, i the task of conscious constitution-making, except for a short time under the Commonwealth. Their Constitution comes from certain facts in their history, and especially from certain notions concerning their history which have been promulgated in recent years. Some English writers maintain that the chief features of their Constitution have existed for centuries, yet the consciousness of the possession of an important constitution is of recent date. The late Edward A. Freeman was wont to take pleasure in tracing the new and liberal developments in the Eng- lish government to the early institutions of the country. According to his theory the Constitution of to-day is derived by removing the innovations of the Middle Ages. It is a discovery and a restoration of that which existed a thousand years ago. Other authorities are disposed to question any important connection between recent con- stitutional development and early institutions. These trace the Constitution of to-day to much more recent facts. Yet all agree in deriving it from facts in English history, either ancient or modern. The real American Constitution, as we have seen, is not simply the docu- ments called by the name, but is besides what has been read out of the documents, or read into the documents, and embodied in certain governmental acts. The English Constitution is made up of certain views which have been read out of or read into English history and embodied in certain governmental acts. In each case it is to be noted that the important thing is not the documents or the history, but the views which men have held respect- ing them. It is not impossible that a constitutional principle as solid as adamant may be derived from an erroneous notion of history. CHAPTER II THE HOUSE OF COMMONS AND THE CABINET rpHE real English Constitution is less simple than -^ would appear from the previous description. This is true: first, because authorities are not agreed upon the theory that sovereignty is vested in the people, and there are many facts which seem to give support to a different theory; secondly, because Parliament itself, which is rep- resented as the sole agency of sovereign power, is far from being simple. If one will take the trouble to read current political literature attentively, he will soon dis- cover three distinct meanings of the word "Parliament." 1. The word is used when it means simply the House of Commons ; thus, " A new Parliament was elected in 1892," i.e. a new House of Commons was elected. 2. The word means the House of Commons and the House of Lords. This is also quite a common use, though still not exact. 3. The word means the Crown and the two Houses, as is shown from the following passage from Dicey, "Parliament means, in the mouth of a lawyer (though the word has often a different sense in ordinary conversation), 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." ^ Ordinarily, when Parliament is called the agent of sov- 1 The Law of the Constitution, p. 35. 