The Government of England (Vol. I)

by A. Lawrence Lowell

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use.[10:1] The power of the Crown, for example, to refuse its consent to bills passed by the two Houses of Parliament is obsolete, yet the right remains legally unimpaired.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]

The Sanction of Custom.

The question why the conventions of the constitution are so scrupulously followed, when they have no legal force, is not a simple one. Impeachment as a means of compelling the observance of traditions has, of course, long been obsolete. Professor Dicey maintains that the ultimate sanction of these conventions lies in the fact that any ministry or official violating them would be speedily brought into conflict with the law of the land as enforced by the courts.[11:2] He takes as illustrations the omission to summon Parliament every year, and the retention of office by a ministry against the will of the Commons without dissolving; and he shows in each case how the ministry would be brought into conflict with the law by the failure to enact the annual army bill or to pass the appropriations. He proves that in such cases the wheels of government would be stopped by the regular operation of the law; and that the House of Commons can readily bring about this result if it pleases.[12:1] There is, however, another question, and that is why the House is determined to exert its power so as to maintain the conventions of the constitution as they stand to-day. It has long possessed the necessary authority, but the conventions were evolved slowly. The House of Representatives in Washington has the same power to stop appropriations, but it does not try to use it to force a responsible ministry upon the President; a result which has, on the other hand, been brought about in France almost as conclusively as in England, and that without the sanction arising from the risk of conflict between the government and the courts. Any parliament could use its authority if it chose to keep the ministry in office indefinitely, as well as to make it responsible. It could pass a permanent army act, grant the tea and income taxes for a term of years, charge all ordinary expenses upon the Consolidated Fund, and so make the existing ministry well-nigh independent of future parliaments.

The question seems to resolve itself into two parts: first, why a custom once established is so tenaciously followed in England; and, second, why the conventions have assumed their present form. In regard to the first it may be suggested that while the consequences mentioned by Professor Dicey form, no doubt, the ultimate sanction of the most important conventions of the constitution, they are not the usual, or in fact the real, motive for obedience; just as the dread of criminal punishment is not the general motive for ordinary morality. The risk of imprisonment never occurs, indeed, to people of high character, and in the same way the ultimate sanctions of the law are not usually present in the minds of men in English public life. In the main the conventions are observed because they are a code of honour. They are, as it were, the rules of the game, and the single class in the community which has hitherto had the conduct of English public life almost entirely in its own hands is the very class that is peculiarly sensitive to obligation of this kind. Moreover, the very fact that one class rules, by the sufferance of the whole nation, as trustees for the public, makes that class exceedingly careful not to violate the understandings on which the trust is held.

The key to the question why the conventions have assumed their present form is to be found mainly in Professor Dicey's remark[13:1] that all of them exist for the sake of securing obedience to the deliberately expressed will of the House of Commons, and ultimately to the will of the nation. Their effect has been to bring the prerogatives of the Crown more and more completely under the control of the cabinet, and the cabinet itself under the control of the House of Commons; to restrain the opposition of the Lords to any policy on which the Commons backed by the nation are determined; and, finally, through the power of dissolution to make the House of Commons itself reflect as nearly as may be the views of the electorate. In England there is, in fact, only one conclusive means of expressing the popular will—that of an election to the House of Commons; and in ordinary cases there is only one body that has power to interpret that expression, the cabinet placed in office by the House so elected.

The Effects of Custom.

Professor Dicey has also pointed out a singular result of the conventions. If the growing power of the House of Commons, instead of being used to impose customary restraints on the exercise of authority by the Crown and the House of Lords, had been exerted to limit that authority by law, the Crown and the House of Lords would have been far more free to exercise at their discretion the powers still left in their hands; and hence the House of Commons could not have obtained its present omnipotence. By leaving the prerogative substantially untouched by law, and requiring that it should be wielded by ministers responsible to them, the Commons have drawn into their own control all the powers of the sovereign that time has not rendered entirely obsolete.

The great part played by custom has had another effect upon English public life. It has tended to develop a conservative temperament. If laws are changed the new ones may have the same authority as the old; but if customs are changed rapidly they lose their force altogether. Stability is necessary for the very life of custom. The conventions of the constitution could not exist without respect for precedent, and where the institutions and liberties of a country depend not upon a written code, but upon custom, there is a natural tendency to magnify the importance of tradition and precedent in themselves. In England, therefore, there is a peculiar veneration for custom, and a disposition to make as little change in it as is compatible with changing times. The result is a constant tinkering, rather than remodelling, of outworn institutions,—a spirit which is strongly marked throughout the whole of English public life.

English System not Logical but Scientific.