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
in office of whom the House of Commons does not approve, and it makes
it almost equally impossible to remove from office a Minister of
whom the House of Commons does approve(4). The written Law and the
unwritten Constitution alike exempt the Sovereign from all ordinary
personal responsibility(5). They both transfer the responsibility from
the Sovereign himself to his agents and advisers. But the nature and
extent of their responsibility is widely different in the eyes of the
written Law and in the eyes of the unwritten Constitution. The written
Law is satisfied with holding that the command of the Sovereign is no
excuse for an illegal act, and that he who advises the commission of
an illegal act by royal authority must bear the responsibility from
which the Sovereign himself is free. The written Law knows nothing of
any responsibility but such as may be enforced either by prosecution in
the ordinary Courts or by impeachment in the High Court of Parliament.
The unwritten Constitution lays the agents and advisers of the Crown
under a responsibility of quite another kind. What we understand by
the responsibility of Ministers is that they are liable to have all
their public acts discussed in Parliament, not only on the ground
of their legal or illegal character, but on the vaguest grounds of
their general tendency. They may be in no danger of prosecution or
impeachment; but they are no less bound to bow to other signs of the
will of the House of Commons; the unwritten Constitution makes a
vote of censure as effectual as an impeachment, and in many cases it
makes a mere refusal to pass a ministerial measure as effectual as a
vote of censure. The written Law knows nothing of the Cabinet or the
Prime Minister; it knows them as members of one or the other House of
Parliament, as Privy Councillors, as holders, each man in his own
person, of certain offices; but, as a collective body bound together
by a common responsibility, the Law never heard of them(6). But in the
eye of the unwritten Constitution the Prime Minister and the Cabinet of
which he is the head form the main feature of our system of government.
It is plain at a moment’s glance that the practical power of the Crown
is not now what it was in the reign of William the Third or even in
that of George the Third. But the change is due, far less to changes in
the written Law than to changes in the unwritten Constitution. The Law
leaves the powers of the Crown untouched, but the Constitution requires
that those powers should be exercised by such persons, and in such a
manner, as may be acceptable to a majority of the House of Commons. In
all these ways, in a manner silent and indirect, the Lower House of
Parliament, as it is still deemed in formal rank, has become the really
ruling power in the nation. There is no greater contrast than that
which exists between the humility of its formal dealings with the Crown
and even with the Upper House(7), and the reality of the irresistible
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