LITMIR.BIZ

Скачать книгу

include two sets of principles or maxims of a totally distinct character.

      (i.) Rules which are true laws—law of the constitution.

      The one set of rules are in the strictest sense “laws,” since they are rules which (whether written or unwritten, whether enacted by statute

      [print edition page cxli]

      or derived from the mass of custom, tradition, or judge-made maxims known 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.”

      (ii.) Rules which are not laws—conventions of the constitution.

      The other set of rules consist of conventions, understandings, habits, or practices which, though they may regulate the conduct of the several members of the sovereign power, of the Ministry, or of other officials, 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 “conventions of the constitution,” or constitutional morality.

      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 constitution may be most easily seen from examples.

      Examples of rules belonging to law of constitution.

      To the law of the constitution belong the following rules:

      “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 otherwise 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 dispensing 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 done by the Crown.” This responsibility of

      [print edition page cxlii]

      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;¹³ this again is part of the constitution 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 provided by law (i.e. before the Courts of the realm).

      To the conventions of the constitution belong the following maxims:

      Examples of rules which belong to conventions of the constitution.

      “The King must assent to, or (as it is inaccurately expressed) cannot ‘veto’¹⁴ any bill passed by the two Houses of Parliament”; “the House of Lords does not originate any money bill”; “when the House of Lords acts as a Court of Appeal, no peer who is not a law lord takes part in the decisions of the House”; “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;¹⁵ under a new or written constitution

      [print edition page cxliii]

      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.

      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 practices some are as important 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.”

      Distinction between laws and conventions not the same as difference between written and unwritten law.

      This distinction differs essentially, it should be noted, from the distinction between “written law” (or statute law) and “unwritten law” (or common law). There are laws of the constitution, as, for example, the Bill of Rights, the Act of Settlement, and Habeas Corpus Acts, which are “written law,” found in the statute-books—in other words, are statutory enactments. There are other most important laws of the constitution (several of which have already been mentioned) which are “unwritten” laws, that is, not statutory 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

      [print edition page cxliv]

      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 procedure is nothing but a mass of conventional law; it is, however, recorded in written or printed rules. The distinction, in short, between written and unwritten law does not in any sense square with the distinction between the law of the constitution (constitutional law properly so called) and the conventions 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 statutory constitution.¹⁶ 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 President 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 Presidential electors. They were by the founders of the constitution intended to be what their name denotes, the persons who chose or selected the President; the chief officer, in short, of the Republic 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

      [print edition page cxlv]

      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

Скачать книгу