Part 1 — CHAPTER II

THE CONSTITUTION SINCE THE SEVENTEENTH CENTURY

I. Crown and Parliament after 1789

33. Elements of Stability and Change.—Structurally, the English governmental system was by the close of the seventeenth century substantially complete. The limited monarchy, the ministry, the two houses of parliament, the courts of law, and the local administrative agencies were by that time constituted very much as they are to-day. The fundamental principles, furthermore, upon which English government is operated were securely established. Laws could be enacted only by "the king in parliament"; taxes could be levied only in the same manner; the liberty of the individual was safeguarded by a score of specific and oft-renewed guarantees. In point of fact, however, the English constitution of 1689 was very far from being the English constitution of 1912. The overturn by which the last Stuart was driven from the throne not only marked the culmination of the revolution commenced in 1640; it comprised the beginning of a more extended revolution, peaceful but thoroughgoing, by which the governmental system of the realm was amplified, carried in new directions, and successively readapted to fresh and changing conditions. At no time from William III. to George V. was there a deliberate overhauling of the governmental system as a whole. Save in occasional parliamentary enactments and judicial decisions, the constitutional changes which were wrought were rarely given documentary expression. Yet it is hardly too much to say that of the principles and practices which to-day make up the working constitution of the United Kingdom almost all were originated or reshaped during the eighteenth and nineteenth centuries. In describing, in succeeding chapters, the principal aspects of this governmental system it will be necessary frequently to allude to these more recent constitutional developments, and it would but involve repetition to undertake an account of them at this point. An enumeration and a brief characterization of a few of the more important will serve for the moment to impress the importance constitutionally of the period under consideration.

II. Rise of the Cabinet and of Political Parties

III. The Scottish and Irish Unions

40. The Union with Ireland, 1801.—The history of Ireland, in most of its phases, is that of a conquered territory, and until late in the eighteenth century the constitutional status of the country approximated, most of the time, that of a crown colony. During the Middle Ages the Common Law and the institutions of England were introduced in the settled portions of the island (the Pale), and a parliament of the English type began to be developed; but Poynings's Law of 1494, by requiring the assent of the English king and council for the convening of an Irish parliament, by enjoining that all bills considered by the Irish parliament must first have been considered by the English parliament, and by declaring all existing statutes of the English parliament to be binding upon Ireland, effectually stifled, until its repeal in 1782, Irish parliamentary development. From the middle of the seventeenth century Catholics were debarred from membership, and, from the early eighteenth, from voting at parliamentary elections. The repeal of Poynings's Law in 1782 and the removal of the Catholic disqualification ten years later bettered the situation, yet at the close of the eighteenth century Irish governmental arrangements were still very unsatisfactory. Parliament was independent in the making of laws, but not in the control of administration; and it was in no true sense a national and representative body. The policy urged by Pitt, namely, the establishment of a legislative union on the plan of that which already existed between England and Scotland, gradually impressed itself upon the members of Parliament as more feasible than any other.

IV. The Nature and Sources of the Constitution

41. The Elusiveness of the Constitution.—The description of the British governmental system which is hereafter to be undertaken will be clarified by a word of comment at this point upon the character which the English constitution of to-day has assumed, upon the form in which it exists, and upon the sources from which it has been drawn. The term "constitution," as is familiarly understood, may be employed to denote a written instrument of fundamental law which has been framed by a constituent assembly, drafted by an ordinary legislative body, or promulgated upon the sole authority of a dictator or monarch; or, with equal propriety, it may be used to designate a body of customs, laws, and precedents, but partially, or even not at all, committed to writing, in accordance with which the machinery of a given governmental system is operated. The constitution of the United Kingdom of Great Britain and Ireland is of this second type. The student who desires to bring together the principles and to tabulate the working details of the British constitutional order will find no single document, nor any collection of documents, in which these things are wholly, or even largely, set down. For the accomplishment of such a task it would be necessary to review intensively a thousand years and more of history, to lay hold of a statute here and of a judicial decision there, to take constant cognizance of the rise and crystallization of political usages, and to probe to their inmost recesses the mechanisms of administration, law-making, taxation, elections, and judicial procedure as they have been, and as they are actually operated before the spectator's eyes. Foremost among its compeers in antiquity, in comprehensiveness, and in originality, the British constitution is at once the least tangible and the most widely influential among European bodies of fundamental law.

42. Constituent Elements: the Law.—The elements of which this constitution is to-day composed have been classified in various ways. For present purposes they may be gathered in five principal categories. In the first place, there are treaties and other international agreements, which in Great Britain as in the United States are invested with the character of supreme law of the land. In the second place, there is a group of solemn engagements which have been entered into at times of national crisis between parties representing opposed, or contracting, political forces. Of such character are the Great Charter, the Petition of Right, and the Bill of Rights. A third and larger category comprises parliamentary statutes which add to or modify governmental powers or procedure. Statutes of this type include clearly the Habeas Corpus Act of 1679, the Act of Settlement of 1701, the Septennial Act of 1716, Fox's Libel Act of 1792, the Reform Acts of 1832, 1867, and 1884, the Municipal Corporations Act of 1835, the Parliamentary and Municipal Elections Act of 1872, the Local Government Acts of 1888 and 1894, and the Parliament Act of 1911. In the fourth place there is the Common Law, a vast body of legal precept and usage which through the centuries has acquired fundamental and immutable character. The first three elements mentioned, i.e., treaties, solemn political engagements, and statutes, exist solely, or almost so, in written form. The rules of the Common Law, however, have not been reduced to writing, save in so far as they are contained in reports, legal opinions, and, more particularly, authoritative decisions of the courts, such as those on the rights of jurymen, on the prerogative of the crown, on the privileges of the houses of Parliament and of their members, and on the rights and duties of the police.

V. The Flexibility of the Constitution

The letter of a written constitution may survive through many decades unchanged, as has that of the Italian Statuto of 1848, and as did that of the American constitution between 1804 and 1865. No constitutional system, however, long stands still, and least of all one of the English variety, in which there exists but little of even the formal rigidity arising from written texts. Having no fixed and orderly shape assigned it originally by some supreme authority, the constitution of the United Kingdom has retained throughout its history a notably large measure of flexibility. It is by no means to-day what it was fifty years ago; fifty years hence it will be by no means what it is to-day. In times past changes have been accompanied by violence, or, at least, by extraordinary manifestations of the national will. Nowadays they are introduced through the ordinary and peaceful processes of legislation, of judicial interpretation, and of administrative practice. Sometimes, as in the instance of the recent overhauling of the status of the House of Lords, they are accompanied by heated controversy and widespread public agitation. Not infrequently, however, they represent inevitable and unopposed amplifications of existing law or practice and are taken note of scarcely at all by the nation at large.