The Government of England (Vol. I)Lowell, A. Lawrence (Abbott Lawrence)
History
The Government of England (Vol. I)
Lowell, A. Lawrence (Abbott Lawrence)
Great Britain -- Politics and government
It is impossible, however, to make a precise list of the conventions of
the constitution, for they are constantly changing by a natural process
of growth and decay; and while some of them are universally accepted,
others are in a state of uncertainty. Hence one hears from time to time
a member of the Opposition assert that some action of the government is
unconstitutional, meaning that it is an unusual breach of a principle
which in his opinion ought to be recognised as inviolable. It was said,
for example, that the Parliament of 1900, having been elected on the
issue of the South African war, was not justified in enacting measures
of great importance on other subjects, but that a fresh mandate from the
nation ought to be obtained by another general election. As claims of
this kind are in dispute, those customs alone can safely be said to be a
part of the constitution which are generally assumed to be outside the
range of current political controversy.
[Sidenote: The Relation of Law and Custom.]
The relation between law and custom in the English government is
characteristic. From the very fact that the law consists of those rules
which are enforced by the courts, it follows that the law,--including,
of course, both the statutes and the Common Law,--is perfectly distinct
from the conventions of the constitution; is quite independent of them,
and is rigidly enforced. The conventions do not abrogate or obliterate
legal rights and privileges, but merely determine how they shall be
exercised. The legal forms are scrupulously observed, and are as
requisite for the validity of an act as if custom had not affected their
use.[10:1] The power of the Crown, for example, to refuse its consent to
bills passed by the two Houses of Parliament is obsolete, yet the right
remains legally unimpaired. The royal assent is given to such bills with
as much solemnity as if it were still discretionary, and without that
formality a statute would have no validity whatever. Public law in
countries where it is administered not by the ordinary courts, but
solely by the executive, or with the aid of special tribunals composed
of administrative officials, must of necessity contain a discretionary
element, and that element is always affected by political conventions.
Hence there is a likelihood that the line between law and convention
will become blurred, but this is not so in England. There the law and
the conventions of the constitution are each developing by processes
peculiar to themselves, but the line between them remains permanently
clear. The conventions are superimposed upon the law, and modify
political relations without in the least affecting legal ones. In fact
Freeman declared that the growth of the unwritten conventions of the
constitution began after the supremacy of the law had been firmly
established by the revolution of 1688, and that they could not have been
evolved if that condition had not existed.[11:1]
[Sidenote: The Sanction of Custom.]
Public-domain text, read in full here on John Shaqi.
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