Page images

Lecture have we yet exhausted the instances in which the VII.

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 (I have pointed out ?) the last and supreme exercise of Parliamentary 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 government of every civilized country.

This solution may appear a merely formal one, or at best only a substitution of the despotism of Parliament for the prerogative of the Crown. But this is not so. The fact that the most arbitrary powers of the English executive 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

1 See pp. 46, 47, 247-252, ante.


judges. Parliament

Parliament is supreme legis- Lecture

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 principles 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 interpret their own enactments. In foreign countries, and especially in France, administrative ideasnotions 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.




Lecture In the first of these lectures stress was laid upon VIII.

the essential distinction between the “law of the Aim of

constitution,” which consisting (as it does) of rules lecture.

enforced or recognised by the Courts makes up a 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 constitutional 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 accordance with this view, your attention has throughout the six last lectures been exclusively directed to the meaning and applications of two principles which pervade the law of the constitution, namely,

1 See pp. 24-32, ante.


the Sovereignty of Parliament and the Rule of Lecture Law? But a lawyer cannot master even the legal side of the English constitution without paying some attention to the nature of those constitutional understandings which necessarily engross the attention of 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 constitution; and a lawyer who undertakes this task will soon find that in so doing he is only following one stage further 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 in this lecture 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.

Our main 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.

1 See Lectures II-IV.

See Lectures V-VII.


Lecture I. The nature of the Conventions of the Constitution.VIII.

The salient characteristics, the outward aspects so to Nature of speak of the understandings which make up the constitional un- tutional morality of modern England, can hardly be

better described than in the words of Mr. Freeman : ings.

“We now have a whole system of political morality, “a whole code of precepts for the guidance of public “men, which will not be found in any page of either “the statute or the common law, but which are in

practice held hardly less sacred than any principle “embodied in the Great Charter or in the Petition of

Right. In short by the side of our written Law “there has grown up an unwritten or conventional “Constitution. When an Englishman speaks of the “conduct of a public man being constitutional or

unconstitutional, he means something wholly dif“ferent 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 statesman, “once declared that the then Ministers of the Crown "did not possess the confidence of the House of “ Commons, and that their continuance in office was " therefore at variance with the spirit of the consti“tution. The truth of such a position, according to " the traditional principles on which public men have " acted for some generations, cannot be disputed; “ but it would be in vain to seek for any trace of "such a doctrine 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

« PreviousContinue »