IV. The Nature and Sources of the Constitution
41. The Elusiveness of the Constitution.—The description of the British governmental system which is hereafter to be undertaken will be clarified by a word of comment at this point upon the character which the English constitution of to-day has assumed, upon the form in which it exists, and upon the sources from which it has been drawn. The term "constitution," as is familiarly understood, may be employed to denote a written instrument of fundamental law which has been framed by a constituent assembly, drafted by an ordinary legislative body, or promulgated upon the sole authority of a dictator or monarch; or, with equal propriety, it may be used to designate a body of customs, laws, and precedents, but partially, or even not at all, committed to writing, in accordance with which the machinery of a given governmental system is operated. The constitution of the United Kingdom of Great Britain and Ireland is of this second type. The student who desires to bring together the principles and to tabulate the working details of the British constitutional order will find no single document, nor any collection of documents, in which these things are wholly, or even largely, set down. For the accomplishment of such a task it would be necessary to review intensively a thousand years and more of history, to lay hold of a statute here and of a judicial decision there, to take constant cognizance of the rise and crystallization of political usages, and to probe to their inmost recesses the mechanisms of administration, law-making, taxation, elections, and judicial procedure as they have been, and as they are actually operated before the spectator's eyes. Foremost among its compeers in antiquity, in comprehensiveness, and in originality, the British constitution is at once the least tangible and the most widely influential among European bodies of fundamental law.
42. Constituent Elements: the Law.—The elements of which this constitution is to-day composed have been classified in various ways. For present purposes they may be gathered in five principal categories. In the first place, there are treaties and other international agreements, which in Great Britain as in the United States are invested with the character of supreme law of the land. In the second place, there is a group of solemn engagements which have been entered into at times of national crisis between parties representing opposed, or contracting, political forces. Of such character are the Great Charter, the Petition of Right, and the Bill of Rights. A third and larger category comprises parliamentary statutes which add to or modify governmental powers or procedure. Statutes of this type include clearly the Habeas Corpus Act of 1679, the Act of Settlement of 1701, the Septennial Act of 1716, Fox's Libel Act of 1792, the Reform Acts of 1832, 1867, and 1884, the Municipal Corporations Act of 1835, the Parliamentary and Municipal Elections Act of 1872, the Local Government Acts of 1888 and 1894, and the Parliament Act of 1911. In the fourth place there is the Common Law, a vast body of legal precept and usage which through the centuries has acquired fundamental and immutable character. The first three elements mentioned, i.e., treaties, solemn political engagements, and statutes, exist solely, or almost so, in written form. The rules of the Common Law, however, have not been reduced to writing, save in so far as they are contained in reports, legal opinions, and, more particularly, authoritative decisions of the courts, such as those on the rights of jurymen, on the prerogative of the crown, on the privileges of the houses of Parliament and of their members, and on the rights and duties of the police.
43. Constituent Elements: the Conventions.—Finally, there are those portions of the constitution which have been denominated with aptness by Mr. Dicey "the conventions."[48] The "law" of the constitution, comprising the four categories of elements which have been enumerated, is at all points, whether written or unwritten, enforceable by the courts; the conventions, although they may and not seldom do relate to matters of vital importance, are not so enforceable. The conventions consist of understandings, practices, and habits by which are regulated a large proportion of the actual operations of the governmental authorities. They may have acquired expression in written form, but they do not appear in the statute-books or in any instrument which can be made the basis of action in a court of law. For example, it is a convention of the constitution which forbids the king to veto a measure passed by the houses of Parliament. If the sovereign were in these days actually to veto a bill, the political consequences might be serious, but there could be no question of the sheer legality of the deed. It is by virtue of a convention, not a law, of the constitution, that ministers resign office when they have ceased to command the confidence of the House of Commons; that a bill must be read three times before being finally voted upon in the House of Commons; that Parliament is convened annually and that it consists of two houses. The cabinet, and all that the cabinet, as such, stands for, rests entirely upon convention. To these things, and many others, the student who is concerned exclusively with the constitutional law of the British nation may give little or no attention. But by one who is seeking to understand the constitutional system as it is and as it operates attention must be fixed upon the conventions quite as steadily as upon the positive rules of law. If the conventions are not to be regarded as technically parts of the constitution, they are at least not infrequently as binding in practice as are these rules; and they may be even more determinative of the operations of the public powers.[49] The English constitution is indeed, as Mr. Bryce has described it, "a mass of precedents carried in men's minds or recorded in writing, dicta of lawyers or statesmen, customs, usages, understandings and beliefs, a number of statutes mixed up with customs and all covered over with a parasitic growth of legal decisions and political habits."[50] At no time has an attempt been made to collect and to reduce to writing this stupendous mass of scattered material, and no such attempt is likely ever to be made. "The English," as remarks the French critic Boutmy, "have left the different parts of their constitution where the waves of history have deposited them; they have not attempted to bring them together, to classify or complete them, or to make of it a consistent or coherent whole."[51]
44. Aspects of Continuity and of Change.—In pursuance of what has been said two observations, representing opposite aspects of the same truth, are pertinent. The first is that in respect to the principles and many of the practices of the English constitution it is pre-eminently true that, to employ a familiar phrase of Bishop Stubbs, the roots of the present lie deep in the past.[52] The second is that the English constitution is a living organism, so constantly undergoing modification that any description of it which may be attempted is likely to be subject to correction almost before it can be completed. At no time, as Mr. Freeman wrote, "has the tie between the present and the past been rent asunder; at no moment have Englishmen sat down to put together a wholly new constitution in obedience to some dazzling theory."[53] On the contrary, each step in the growth of the constitutional system has been the natural consequence of some earlier step. Great changes, it is true, have been wrought. To mention but the most obvious illustration, autocratic kingship has been replaced by a parliamentary government based upon a thoroughgoing political democracy. None the less, transitions have been regularly so gradual, deference to tradition so habitual, and the disposition to cling to ancient names and forms, even when the spirit had changed, so deep-seated, that the constitutional history of England presents elements of continuity which cannot be paralleled in any other country of Europe.
The letter of a written constitution may survive through many decades unchanged, as has that of the Italian Statuto of 1848, and as did that of the American constitution between 1804 and 1865. No constitutional system, however, long stands still, and least of all one of the English variety, in which there exists but little of even the formal rigidity arising from written texts. Having no fixed and orderly shape assigned it originally by some supreme authority, the constitution of the United Kingdom has retained throughout its history a notably large measure of flexibility. It is by no means to-day what it was fifty years ago; fifty years hence it will be by no means what it is to-day. In times past changes have been accompanied by violence, or, at least, by extraordinary manifestations of the national will. Nowadays they are introduced through the ordinary and peaceful processes of legislation, of judicial interpretation, and of administrative practice. Sometimes, as in the instance of the recent overhauling of the status of the House of Lords, they are accompanied by heated controversy and widespread public agitation. Not infrequently, however,
