LITMIR.BIZ

Скачать книгу

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 constitution, we find in full existence the distinction between the law and the conventions of the constitution.

      Constitutional law as subject of legal study means solely law of constitution.

      Upon this difference I have insisted at possibly needless length, because it lies at the very root of the matter under discussion. Once grasp the ambiguity latent in the expression “constitutional law,” and everything connected with the subject falls so completely into its right place that a lawyer, called upon to teach or to study constitutional law as a branch of 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 generation, 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 importance. The opinions on this point which prevail today differ (it is said) from the opinions or understandings which prevailed thirty years back, and are possibly different from the opinions or understanding which may prevail ten years hence. Weighty precedents and high authority are cited on either side of this knotty question; the dicta or practice of Russell 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

      [print edition page cxlvi]

      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 constitution 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.

      Law of constitution can be expounded like any other branch of English law.

      The duty, in short, of an English professor of law is to state what are the laws which form part of the constitution, to arrange them in their order, to explain their meaning, and to exhibit where possible their logical connection. He ought to expound the unwritten or partly unwritten constitution of England, in the same manner in which Story and Kent have expounded the written law of the American constitution. 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 has, of recent years,¹⁷ become of

      [print edition page cxlvii]

      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. Bradlaugh¹⁸ 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 connected 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 which have 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 misconception. 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,¹⁹ or Thomas v. The Queen,²⁰ touch upon or decide principles of constitutional

      [print edition page cxlviii]

      law. Indeed every action against a constable or collector of revenue enforces 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 suffer from the inconvenience as they enjoy the interest of exploring a province of law which has not yet been entirely reduced to order.²¹

      This inconvenience 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 principles gradually become apparent. They are, first, the legislative sovereignty of Parliament;²² secondly, the universal rule or supremacy throughout the constitution of ordinary law;²³ 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.²⁴ 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.

      [print edition page 1]

PART ITHE SOVEREIGNTY OF PARLIAMENT

      [print edition page 2]

      [print edition page 3]

Скачать книгу