Kitabı oku: «The Growth of the English Constitution», sayfa 5

The Commons too themselves bear a name which had a far different meaning in England from what it bore elsewhere. The usage by which the Knights of the shire and the Citizens and Burgesses were brought together in a single House, whatever was its origin, whether it were at first the result of design or of happy accident, has been an usage no less wholesome, no less needful to our full constitutional developement, than that which decreed that the children of peers should be commoners. In most other countries the class of men who were returned as representatives of the counties, the Knights of the Shire, would have been members of the Estate of the Nobles. In France the words nobleman and gentleman had the same meaning, that of the members of an exclusive aristocratic caste. The Commons, the Third Estate, consisted of the citizens of the privileged towns only¹¹⁴. But in England the middle class was not confined to the towns; it spread itself, in the form of a lesser gentry and a wealthy yeomanry, over the whole face of the land. That class, the smaller landowners, was for a long time the strength of the country, and the happiest results came from the union of their representatives in a single chamber with those of the cities and boroughs. Each class gained strength from its fellowship with the other, and the citizen class gained, from their union on equal terms with the landed gentry, a consideration which otherwise they might never have reached. In short, the union of the two, the union of all classes of freemen except the clergy and the actual members of the peerage, of all classes from the peer’s eldest son to the smallest freeholder or burgess, made the House of Commons a real representation of the whole nation, and not of any single order in the nation.

Mark again that the form of government which political writers call bi-cameral, that is to say, where the Legislative Assembly consists of two Chambers or Houses, arose out of one of the accidents of English History. The merits of that form of government are now freely under discussion, but it is assumed on both sides that the only choice lies between one chamber and two; no one proposes to have three or four¹¹⁵. But most of the continental bodies of Estates consisted, as we have seen, of three Houses; in Sweden, where the peasants, the small freeholders, were important enough to be separately represented alongside of the Nobles, Clergy, and Citizens, there were till lately four¹¹⁶. The number two became the number of our Houses of Parliament, not out of any conviction of the advantages of that number, but because it was found impossible to get the Clergy in England habitually to act, as they did elsewhere, as a regular member of the parliamentary body. They shrank from the burthen, or they deemed secular legislation inconsistent with their profession. Thus, instead of the Clergy forming, as they did in France, a distinct Estate of the Legislature, we got a Parliament of two Houses, Lords and Commons, attended by a kind of ecclesiastical shadow of the Parliament in the shape of the two Houses of the ecclesiastical Convocation. Thus, for all practical purposes, there were only two Estates in the English Parliament, Lords and Commons. Thus the phrase of the Three Estates, which had a meaning in France, became meaningless in England. For centuries back there has been no separate Estate of the Clergy; some of their highest members have belonged to the Estate of the Lords, and the rest to the Estate of the Commons. Hence has arisen a common but not unnatural misconception, a misconception as old as the days of the Long Parliament, as to the meaning of the phrase of the Three Estates. Men constantly use those words as if they meant the three elements among which the legislative power is divided, King, Lords, and Commons. But an Estate means a rank or order or class of men, like the Lords, the Clergy, or the Commons. The King is not an Estate, because there is no class or order of Kings, the King being one person alone by himself. The proper phrase is the King and the three Estates of the Realm. But in England, as I have already shown, the phrase is meaningless, as we have in truth two Estates only¹¹⁷.

We thus had in England, not an Estate of Nobles, forming a distinct class from the people, but an Upper House of hereditary and official Lords, whose privileges were purely personal, and whose children had no political privilege above other men. Our Bishops and some other of our ecclesiastical dignitaries had seats in the Upper House, but there was no distinct Estate of the Clergy, having its distinct voice in legislation. Our Lower House, lower in name, but gradually to become upper in real power, came to represent, not merely the inhabitants of privileged towns, but the whole nation, with the single exception of the personal holders of hereditary or official seats in the Upper House. That such an Assembly should gradually draw to itself all the real powers of the state was in the nature of things; but it was only gradually that it did so. Few things in our parliamentary history are more remarkable than the way in which the two Houses have for the most part worked together. I am not talking of very modern times, but of times when the two Houses were really coordinate powers in the state. During the six hundred years that the two Houses have lived side by side, serious disputes between them have been very rare, and those disputes which have happened have generally had to do with matters of form and privilege which were chiefly interesting to members of the two Houses themselves, not with questions which had any great importance for the nation at large¹¹⁸. For a while the Commons followed the lead of the Lords; then the Lords came gradually to follow the lead of the Commons; but open and violent breaches between the Houses have been rare indeed. From the days of Earl Simon onwards, both the power of Parliament as a whole, and the special power of the House of Commons, was constantly growing. The Parliaments of the fourteenth century exercised all the powers which our Parliament exercises now, together with some which modern Parliaments shrink from exercising. That is to say, the Parliaments of those days were obliged either to do directly or to leave undone many things which the developement of political conventionality enables a modern Parliament to do indirectly. The ancient Parliaments demanded the dismissal of the King’s ministers; they regulated his personal household; they put his authority into commission; if need called for such a step, they put forth their last and greatest power and deposed him from his kingly office. In those days a change of government, a change of policy, the getting rid of a bad minister and the putting a better in his place, were things which never could be done without an open struggle between King and Parliament; often they could not be done without the bondage, the imprisonment, or the death, perhaps only of the minister, perhaps even of the King himself. The same ends can now be gained by a vote of censure in the House of Commons; in many cases they can be gained even without a vote of censure, by the simple throwing out of a measure by which a Ministry has given out that it will stand or fall¹¹⁹.

The fifteenth century, as compared with the thirteenth and fourteenth, was in some respects a time in which things went back. It is plain that the Parliaments of that day were bodies which were much less independent than the Parliaments of earlier times. During the Wars of the Roses each successive military victor found a Parliament ready to confirm his claim to the Crown and to decree the condemnation of his enemies¹²⁰. And it was a Parliament of Henry the Sixth which passed the most reactionary measure which any Parliament ever did pass, that by which the qualification for a county elector was narrowed to those freeholders whose estates were of the yearly value of forty shillings¹²¹. In this case time and the change in the value of money have redressed the wrong; there may be freeholders whose estates are under the value of forty shillings, but I cannot think that they are now a very large or important class. But, to understand the meaning of the restriction in the fifteenth century, for forty shillings we may fairly read forty pounds; and certainly, if we struck off the register all those electors whose qualification is a freehold – much more those whose qualification is an estate less than a freehold – under the value of forty pounds, the lessening of the constituencies of our counties would not be small. On the other hand, during the revolutionary times which followed, we more than once hear of direct appeals to the people which remind us of days far earlier. Edward the Fourth and Richard the Third were chosen Kings, or at least had their claims to the Crown acknowledged, by gatherings of the citizens of London which remind us of the wars of Stephen and Matilda¹²². Still even in this age, the power of Parliament was advancing¹²³; the anxiety of every pretender to get a parliamentary sanction for his claims was a sign of the growing importance of Parliament, and we get incidental notices which show that a seat in the House of Commons, and that not as a knight of a shire, but as a burgess of a borough, was now an object of ambition for men of the class from which knights of the shire were chosen, and even for the sons of members of the Upper House¹²⁴.

At last came the sixteenth century, the time of trial for parliamentary institutions in so many countries of Europe. Not a few assemblies which had once been as free as our own Parliament were, during that age, either utterly swept away or reduced to empty formalities. Then it was that Charles the Fifth and Philip the Second overthrew the free constitutions of Castile and Aragon; before long the States-General of France met for the last time before their last meeting of all on the eve of the great Revolution¹²⁵. In England parliamentary institutions were not swept away, nor did Parliament sink into an empty form. But, for a while, Parliaments, like all our other institutions, became perverted into instruments of tyranny. Under Henry the Eighth, Parliaments, like Judges, Juries, and ecclesiastical Synods, decreed whatever seemed good to the caprice of the despot. Why had they so fallen away from what they had been in a past age, from what they were to be again? The reason is plain; the Commons had not yet gained strength enough to act without the Lords, and the Lords had ceased to be an independent body. The old nobility had been cut off at Towton and Barnet, and the new nobility were the abject slaves of the King to whom they owed their honours. A century later, the new nobility had inherited the spirit of the old, and the Commons had grown to the fulness of their power. Thus it came that we find in the Parliaments of the sixteenth century an abject submission to a tyrant’s will, of which we find no sign in the Parliaments either of the fourteenth or of the seventeenth. Very different indeed from the Parliaments which overthrew Richard the Second and Charles the First were the Parliaments which, almost without a question, passed bills of attainder against any man against whom Henry’s caprice had turned, the Parliaments which, in the great age of religious controversy, were ever ready to enforce by every penalty that particular shade of doctrine which for the moment commended itself to the Defender of the Faith, to his son or to his daughters. Why, it may be asked, in such a state of things, did not parliamentary institutions perish in England as they perished in so many other lands? It might be enough to say that no ruler had an interest in destroying institutions which he found that he could so conveniently turn to his own purposes. But why did not those institutions sink into mere forms, which they certainly did not do, even in the worst times? One reason undoubtedly is that special insular position of our country which has in so many other ways given a peculiar turn to our history. The great foe of parliamentary institutions was the introduction of standing armies. But the sovereign of England, shut up within his island, had far less need of a standing army than the sovereigns of the Continent, engaged as they were in their ceaseless wars with neighbours on their frontiers. But I believe that the personal character of Henry the Eighth had a great deal to do with the final preservation of our liberties. Do not for a moment fancy that I belong to that school of paradox which sets up Henry the Eighth as a virtuous and beneficent ruler. Do not think that I claim for him any feelings of direct thankfulness such as I do claim for Earl Simon and King Edward. The position of Henry is more like the position of William the Conqueror, though I certainly hold that the Conqueror was in everything the better man of the two. Both served the cause of freedom indirectly, and both served it by means of features in the personal character of each. In one respect indeed William and Henry stood in utterly different positions towards England. William was a stranger, and it was largely because he was a stranger that he was able to do us indirect good. Henry, with all his crimes, was a thorough Englishman; throughout his reign there was a sympathy between him and the mass of his subjects, who, after all, did not greatly suffer by the occasional beheading of a Queen or a Duke. But the despotism of William and the despotism of Henry agreed in this, that each, even in his worst deeds, retained a scrupulous regard for the letter of the Law. In the case of William this is not hard to see for any one who carefully studies the records of his age¹²⁶; in the case of Henry it stands boldly proclaimed in the broadest facts of English history. While his fellow-tyrants abroad were everywhere overthrowing free institutions, Henry was in all things showing them the deepest outward respect. Throughout his reign he took care to do nothing except in outward and regular legal form, nothing for which he could not shelter himself under the sanction either of precedent or of written Law. In itself, this perversion of Law, this clothing of wrong with the garb of right, is really worse – at all events it is more corrupting – than deeds of open violence against which men are tempted openly to revolt. But such a tyranny as Henry’s is one form of the homage which vice pays to virtue; the careful preservation of the outward forms of freedom makes it easier for another and happier generation again to kindle the form into its ancient spirit and life. Every deed of wrong done by Henry with the assent of Parliament was in truth a witness to the abiding importance of Parliament; the very degradation of our ancient Constitution was a step to its revival with new strength and in a more perfect form¹²⁷.

A like witness to the importance of Parliament in this age was shown in two other very remarkable ways, whereby the power and importance of the House of Commons was acknowledged in the very act of corrupting it. One was the active interference of the Government in parliamentary elections; the other was the creation of boroughs in order to be corrupt. One needs no stronger proofs than these of the importance of the body which it was found needful thus to pack and to manage. The Crown still kept the power of summoning members from any boroughs which it thought fit, and throughout the Tudor reigns the power was freely abused by sending writs to places which were likely to return members who would be subservient to the Court¹²⁸. Thus arose many of the wretched little boroughs in Cornwall and elsewhere which were disfranchised by our successive Reform Bills. These boroughs, which always were corrupt and which were created in order to be corrupt, must be carefully distinguished from another class which perished with them. Many towns to which Earl Simon and King Edward sent writs decayed in process of time; sometimes they decayed positively; more commonly they decayed relatively, by being utterly outstripped by younger towns and so losing the importance which they had once had. The disfranchisement of both classes was equally just; but the different history of the two classes should be carefully borne in mind. It was right to take away its members from Old Sarum, but there had been a time when it was right to give Old Sarum members. In the case of a crowd of Cornish boroughs, it not only was right to take away their members, but they never ought to have had members at all¹²⁹.

It was in the days of Elizabeth that something of the ancient spirit again breathed forth. It is then that we come to the beginning of that long line of parliamentary worthies which stretches on in unbroken order from her days to our own. A few daring spirits in the Commons’ House now began once more to speak in tones worthy of those great Assemblies which had taught the Edwards and the Richards that there was a power in England mightier than their own¹³⁰. Under the puny successor of the great Queen the voice of freedom was heard more loudly¹³¹. In the next reign the great strife of all came, and a King of England once more, as in the days of Henry and Simon, stood forth in arms against his people to learn that the power of his people was a greater power than his. But in the seventeenth century, just as in the thirteenth, men did not ask for any rights and powers which were admitted to be new; they asked only for the better security of those rights and powers which had been handed on from days of old. Into the details of that great struggle and of the times which followed it is not my purpose to enter. I have traced at some length the origin and growth of our Constitution from the earliest times to its days of special trial in the days of Tudor and Stewart despotism. Our later constitutional history rather belongs to an inquiry of another kind. It is mainly a record of silent changes in the practical working of institutions whose outward and legal form remained untouched. I will therefore end my consecutive historical sketch – if consecutive it can claim to be – at the point which we have now reached. Instead of carrying on any regular constitutional narrative into times nearer to our own, I will rather choose, as the third part of my subject, the illustration of one of the special points with which I set out, namely the power which our gradual developement has given us of retracing our steps, of falling back, whenever need calls for falling back, on the principles of earlier, often of the earliest, times. Wittingly or unwittingly, much of our best modern legislation has, as I have already said, been a case of advancing by the process of going back. As the last division of the work which I have taken in hand, I shall try to show in how many cases we have, as a matter of fact, gone back from the cumbrous and oppressive devices of feudal and royalist lawyers to the sounder, freer, and simpler principles of the days of our earliest freedom.

CHAPTER III

In my two former chapters I have carried my brief sketch of the history of the English Constitution down to the great events of the seventeenth century. I chose that point as the end of my consecutive narrative, because the peculiar characteristic of the times which have followed has been that so many and such important practical changes have been made without any change in the written Law, without any re-enactment of the Law, without any fresh declaration of its meaning. The movements and revolutions of former times, as I have before said, seldom sought any acknowledged change in the Law, but rather its more distinct enactment, its more careful and honest administration. This was the general character of all the great steps in our political history, from the day when William of Normandy renewed the Laws of Eadward to the day when William of Orange gave his royal assent to the Bill of Rights. But, though each step in our progress took the shape, not of the creation of a new right, but of the firmer establishment of an old one, yet each step was marked by some formal and public act which stands enrolled among the landmarks of our progress. Some Charter was granted by the Sovereign, some Act of Parliament was passed by the Estates of the Realm, setting forth in legal form the nature and measure of the rights which it was sought to place on a firmer ground. Since the seventeenth century things have in this respect greatly altered. The work of legislation, of strictly constitutional legislation, has never ceased; a long succession of legislative enactments stand out as landmarks of political progress no less in more recent than in earlier times. But alongside of them there has also been a series of political changes, changes of no less moment than those which are recorded in the statute-book, which have been made without any legislative enactment whatever. A whole code of political maxims, universally acknowledged in theory, universally carried out in practice, has grown up, without leaving among the formal acts of our legislature any trace of the steps by which it grew. Up to the end of the seventeenth century, we may fairly say that no distinction could be drawn between the Constitution and the Law. The prerogative of the Crown, the privilege of Parliament, the liberty of the subject, might not always be clearly defined on every point. It has indeed been said that those three things were all of them things to which in their own nature no limit could be set. But all three were supposed to rest, if not on the direct words of the Statute Law, yet at least on that somewhat shadowy yet very practical creation, that mixture of genuine ancient traditions and of recent devices of lawyers, which is known to Englishmen as the Common Law. Any breach either of the rights of the Sovereign or of the rights of the subject was a legal offence, capable of legal definition and subjecting the offender to legal penalties. An act which could not be brought within the letter either of the Statute or of the Common Law would not then have been looked upon as an offence at all. If lower courts were too weak to do justice, the High Court of Parliament stood ready to do justice even against the mightiest offenders. It was armed with weapons fearful and rarely used, but none the less regular and legal. It could smite by impeachment, by attainder, by the exercise of the greatest power of all, the deposition of the reigning King. But men had not yet reached the more subtle doctrine that there may be offences against the Constitution which are no offences against the Law. They had not learned that men in high office may have a responsibility practically felt and acted on, but which no legal enactment has defined, and which no legal tribunal can enforce. It had not been found out that Parliament itself has a power, now practically the highest of its powers, in which it acts neither as a legislature nor as a court of justice, but in which it pronounces sentences which have none the less practical force because they carry with them none of the legal consequences of death, bonds, banishment, or confiscation. We now have a whole system of political morality, a whole code of precepts for the guidance of public men, which will not be found in any page of either the Statute or the Common Law, but which are in practice held hardly less sacred than any principle embodied in the Great Charter or in the Petition of Right. In short, by the side of our written Law there has grown up an unwritten or conventional Constitution. When an Englishman speaks of the conduct of a public man being constitutional or unconstitutional, he means something wholly different from what he means by his conduct being legal or illegal. A famous vote of the House of Commons, passed on the motion of a great statesman, once declared that the then Ministers of the Crown did not possess the confidence of the House of Commons, and that their continuance in office was therefore at variance with the spirit of the Constitution¹³². The truth of such a position, according to the traditional principles on which public men have acted for some generations, cannot be disputed; but it would be in vain to seek for any trace of such doctrines in any page of our written Law. The proposer of that motion did not mean to charge the existing Ministry with any illegal act, with any act which could be made the subject either of a prosecution in a lower court or of impeachment in the High Court of Parliament itself. He did not mean that they, Ministers of the Crown, appointed during the pleasure of the Crown, committed any breach of the Law of which the Law could take cognizance, merely by keeping possession of their offices till such time as the Crown should think good to dismiss them from those offices. What he meant was that the general course of their policy was one which to a majority of the House of Commons did not seem to be wise or beneficial to the nation, and that therefore, according to a conventional code as well understood and as effectual as the written Law itself, they were bound to resign offices of which the House of Commons no longer held them to be worthy. The House made no claim to dismiss those Ministers from their offices by any act of its own; it did not even petition the Crown to remove them from their offices. It simply spoke its mind on their general conduct, and it was held that, when the House had so spoken, it was their duty to give way without any formal petition, without any formal command, on the part either of the House or of the Sovereign¹³³. The passing by the House of Commons of such a resolution as this may perhaps be set down as the formal declaration of a constitutional principle. But though a formal declaration, it was not a legal declaration. It created a precedent for the practical guidance of future Ministers and future Parliaments, but it neither changed the Law nor declared it. It asserted a principle which might be appealed to in future debates in the House of Commons, but it asserted no principle which could be taken any notice of by a Judge in any Court of Law. It stands therefore on a wholly different ground from those enactments which, whether they changed the Law or simply declared the Law, had a real legal force, capable of being enforced by a legal tribunal. If any officer of the Crown should levy a tax without the authority of Parliament, if he should enforce martial law without the authority of Parliament, he would be guilty of a legal crime. But, if he merely continues to hold an office conferred by the Crown and from which the Crown has not removed him, though he hold it in the teeth of any number of votes of censure passed by both Houses of Parliament, he is in no way a breaker of the written Law. But the man who should so act would be universally held to have trampled under foot one of the most undoubted principles of the unwritten but universally accepted Constitution.

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 Parliament¹³⁴. 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 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 approve¹³⁵. The written Law and the unwritten Constitution alike exempt the Sovereign from all ordinary personal responsibility¹³⁶. 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 them¹³⁷. 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 House¹³⁸, and the reality of the irresistible power which it exercises over both. It is so conscious of the mighty force of its indirect powers that it no longer cares to claim the direct powers which it exercised in former times. There was a time when Parliament was directly consulted on questions of War and Peace. There was a time when Parliament claimed directly to appoint several of the chief officers of state¹³⁹. There were much later times when it was no unusual thing to declare a man in power to be a public enemy, or directly to address the Crown for his removal from office and from the royal presence. No such direct exercises of parliamentary power are needed now, because the whole machinery of government may be changed by the simple process of the House refusing to pass a measure on which the Minister has made up his mind to stake his official being.