law. may both these writers we expect to learn, and do learn much, but as in the case of Mr. Freeman, though we learn much from our teacher which is of value, we do not learn precisely what as lawyers we are in search of. The truth is that both Bagehot and Professor Hearn deal and mean to deal mainly with political understandings or conventions and not with rules of What is the precise moral influence which might be exerted by a wise constitutional monarch; what are the circumstances under which a Minister is entitled to dissolve Parliament; whether the simultaneous creation of a large number of Peers for a special purpose is constitutionally justifiable; what is the principle on which a Cabinet allow of open questions; these and the like are the kind of inquiries raised and solved by writers whom, as being occupied with the conventional understandings of the constitution, we may term conventionalists. These inquiries are, many of them, great and weighty; but they are not inquiries which will ever be debated in the law courts. If the Premier should advise the creation of five hundred Peers, the Chancery Division would not, we may be sure, grant an injunction to restrain their creation. If he should on a vote of censure decline to resign office, the Queen's Bench Division would certainly not issue a quo warranto calling upon him to show cause why he continues to be Prime Minister. As a lawyer, I find these matters too high for me. Their practical solution must be left to the profound wisdom of Members of Parliament; their speculative solution belongs to the province of political theorists. One suggestion, a mere legist may be allowed to ventional view does not ex plain how tions make, namely, that the authors who insist upon and And conexplain the conventional character of the understandings which make up a great part of the constitution, leave unexplained the one matter which needs ex- convenplanation. They give no satisfactory answer to the enforced. inquiry how it happens that the understandings of politics are sometimes at least obeyed as rigorously as the commands of law. To refer to public opinion. and to considerations of expediency is to offer but a very inadequate solution of a really curious problem. Public opinion approves and public expediency requires the observance of contracts, yet contracts are not always observed, and would (presumably). be broken more often than they are did not the law punish their breach, or compel their performance. Meanwhile it is certain that understandings are not laws, and that no system of conventionalism will explain the whole nature of constitutional law, if indeed "constitutional law" be in strictness law at all. stitutional "law" at all? For at this point a doubt occurs to one's mind Is conwhich must more than once have haunted students law really of the constitution. Is it possible that so-called "constitutional law" is in reality a cross between history and custom which does not properly deserve the name of law at all, and certainly does not belong to the province of a professor called upon to learn or to teach nothing but the true indubitable law of England? Can it be that a dark saying of De Tocqueville's, "the English constitution has no real existence" (elle n'existe point2), contains the truth of 1 See further on this point, Part III. post. It consists of two the whole matter? In this case lawyers would gladly surrender a domain to which they can establish no valid title. The one half of it should, as belonging to history, go over to our historical professors; on this transfer of territory being carried out, we might perhaps suggest to our friends the professors of history, the advisability of conferring together and carefully reconsidering the doctrine that the constitution was "finally completed" in the reign of Edward the First; it is at least worth argument whether, when the foundations of a house are just laid, the house can or cannot be said to be finally completed. The other half should, as belonging to conventions which illustrate the growth of law, be transferred either to my friend the Professor of Jurisprudence, because it is his vocation to deal with the oddities or the outlying portions of legal science, or to my friend the Professor of International Law, because he being a teacher of law which is not law, and being accustomed to expound those rules of public ethics which are miscalled international law, will find himself at home in expounding political ethics which, on the hypothesis under consideration, are miscalled constitutional law. Before, however, admitting the truth of the supposition that "constitutional law" is in no sense law at all, it will be well to examine a little further into the precise meaning which we attach to the term constitutional law, and then consider how far it is a fit subject for legal exposition. Constitutional law, as the term is used in England, appears to include all rules which directly or indirectly kinds of affect the distribution or the exercise of the sovereign different rules. power in the state.1 Hence it includes (among other things) all rules which define the members of the sovereign power, all rules which regulate the relation of such members to each other, or which determine the mode in which the sovereign power, or the members thereof, exercise their authority. Its rules prescribe the order of succession to the throne, regulate the prerogatives of the chief magistrate, determine the form of the legislature and its mode of election. These rules also deal with Ministers, with their responsibility, with their spheres of action, define the territory over which the sovereignty of the state extends and settle who are to be deemed subjects or citizens. Observe the use of the word "rules," not "laws." This employment of terms is intentional. Its object is to call attention to the fact that the rules which make up constitutional law, as the term is used in England, include two sets of principles or maxims of a totally distinct character. which are law of the con The one set of rules are in the strictest sense "laws," (i.) Rules since they are rules which (whether written or un- true laws written, whether enacted by statute or derived from the mass of custom, tradition, or judge-made maxims known stitution. 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." 1 Compare Holland, Jurisprudence (4th ed.), pp. 122 and 303-307. "By the constitution of a country is meant so much of its law as "relates to the designation and form of the legislature; the rights and "functions of the several parts of the legislative body; the construction, office, and jurisdiction of courts of justice. The constitution is one principal division, section, or title of the code of public laws, dis"tinguished from the rest only by the superior importance of the subject of which it treats.”—Paley, Moral Philosophy, Book vi. chap. vii. (ii.) Rules which are conven constitu tion. The other set of rules consist of conventions, undernot laws-standings, habits, or practices which, though they may tions of the 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. Examples of rules be 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 and of Ministers and of others 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. To the law of the constitution belong the following longing to rules: law of con stitution. "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 Queen were herself 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 other |