The Growth of the English Constitution from the Earliest TimesFreeman, Edward A. (Edward Augustus)
History
The Growth of the English Constitution from the Earliest Times
Freeman, Edward A. (Edward Augustus)
Constitutional history -- Great Britain
The remarkable thing is that, of these two kinds of hypothetical
offences, the latter, the guilt of which is purely conventional, is
almost as unlikely to happen as the former, whose guilt is a matter
established by Law. The power of the Law is so firmly established among
us that the possibility of breaches of the Law on the part of the
Crown or its Ministers hardly ever comes into our heads. And conduct
sinning against the broad lines of the unwritten Constitution is looked
on as hardly less unlikely. Political men may debate whether such and
such a course is or is not constitutional, just as lawyers may debate
whether such a course is or is not legal. But the very form of the
debate implies that there is a Constitution to be observed, just as
in the other case it implies that there is a Law to be observed. Now
this firm establishment of a purely unwritten and conventional code
is one of the most remarkable facts in history. It is plain that it
implies the firmest possible establishment of the power of the written
Law as its groundwork. If there were the least fear of breaches of the
written Law on the part of the Crown or its officers, we should be
engaged in finding means for getting rid of that more serious danger,
not in disputing over points arising out of a code which has no legal
existence. But it is well sometimes to stop and remember how thoroughly
conventional the whole of our received system is. The received doctrine
as to the relations of the two Houses of Parliament to one another, the
whole theory of the position of the body known as the Cabinet and of
its chief the Prime Minister, every detail in short of the practical
working of government among us, is a matter belonging wholly to the
unwritten Constitution and not at all to the written Law. The limits
of the royal authority are indeed clearly defined by the written Law.
But I suspect that many people would be amazed at the amount of power
which the Crown still possesses by Law, and at the many things, which
in our eyes would seem utterly monstrous, but which might yet be done
by royal authority without any law being broken. The Law indeed secures
us against arbitrary legislation, against the repeal of any old laws,
or the enactment of any new ones, without the consent of both Houses
of Parliament(3). But it is the unwritten Constitution alone which
makes it practically impossible for the Crown to refuse its assent to
measures which have passed both Houses of Parliament, and which in many
cases makes it almost equally impossible to refuse the prayer of an
address sent up by one of those Houses only. The written Law leaves to
the Crown the choice of all its ministers and agents, great and small;
their appointment to office and their removal from office, as long as
they commit no crime which the Law can punish, is a matter left to
the personal discretion of the Sovereign. The unwritten Constitution
makes it practically impossible for the Sovereign to keep a Minister
Public-domain text, read in full here on John Shaqi.
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