wise 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 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; 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 :

1 Compare Hearn, Government of England (2d ed.), chap. iv.

Examples

of rules

long to con

the consti tution.

1

"The King must assent to, or (as it is inaccurately

1

which be expressed) cannot 'veto any bill passed by the two ventions of 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; under a new or written constitu

1 As to the meaning of "veto," see Hearn, Government of England (2d ed.), pp. 51, 60, 61, 63, 548, and the article on the word Veto in the last edition of the Encyclopædia Britannica, by Professor Orelli.

2 Some of these maxims are never violated, and are universally admitted to be inviolable. Others, on the other hand, have nothing but a slight amount of custom in their favour, and are of disputable validity. The main distinction between different classes of conventional rules may, it is conceived, be thus stated: Some of these rules could not be violated without bringing to a stop the course of orderly and pacific government; others might be violated without any other consequence than that of exposing the Minister or other person by whom they were broken to blame or unpopularity.

This difference will at bottom be found to depend upon the degree of directness with which the violation of a given constitutional maxim brings the wrongdoer into conflict with the law of the land. Thus a Ministry under whose advice Parliament were not summoned to meet for more than a year would, owing to the lapse of the Mutiny Act, etc., become through their agents engaged in a conflict with the Courts. The violation of a convention of the constitution would in this case lead to revolutionary or reactionary violence. The rule, on the other hand, that a bill must be read a given number of times before it is passed is, though a well-established constitutional principle, a convention which might be disregarded without bringing the Government into conflict with the ordinary law. A Ministry who induced the House of Commons to pass an Act, e.g. suspending the Habeas Corpus Act, after one reading, or who induced the House to alter their rules as to the number of times a Bill should be read, would in no way be exposed to a contest with the ordinary tribunals. Ministers who, after Supplies were voted and the Mutiny Act passed, should prorogue the House and keep office for months after the Government had ceased to

tion 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."

between

conven

difference

written

written

law.

This distinction differs essentially, it should be Distinction noted, from the distinction between "written law" laws and (or statute law) and "unwritten law" (or common tions not law). There are laws of the constitution, as the Bill the same as of Rights, the Act of Settlement, the Habeas Corpus between Acts, which are "written law," found in the statute- and unbook-in other words, 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

retain the confidence of the Commons, might or might not incur grave unpopularity, but would not necessarily commit a breach of law. See further Part III. post.

unwritten or common law, have now become written or statute law. The conventions of the constitution, on the other hand, cannot be recorded in the statutebook, 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. 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 PresiIdent has ever been re-elected more than once: the popular approval of this conventional limit (of which

1 The conventional element in the constitution of the United States is far larger than most Englishmen suppose. See on this subject Wilson, Congressional Government, and Bryce, American Commonwealth, chaps. xxxiv. and xxxv. It may be asserted without much exaggeration that the conventional element in the Constitution of the United States is now as large as in the English constitution. Under the American system, however, the line between "conventional rules" and "laws" is drawn with a precision hardly possible in England.

the constitution knows nothing) on a President's reeligibility 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 particular candidate; they are no more than so many ballots cast for the Republican or 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 the most unscrupulous 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.

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