Contents
Parliament and its Sovereignty
The Rule of Law
Convention and Law
Decline and Fall
The Sources of the Constitution
We must first deal with what we actually mean when we say “the
English constitution”. The English constitution is part written,
part convention, but not entirely codified – that is, there is no
one single document which collates with force of law the essential
holdings of the constitution, as is the case with the US Constitution
and its Amendments. When we want to discover what laws and
conventions are pertinent – which voices speak under the tree, if
you will – we turn to two sources: laws, statutes, key judicial
rulings, and so forth; and authorities, who synthesise the former and
add to them conventions.
These are the building blocks which have been formed by our ancestors
into the edifice in which we now stand, to use another metaphor. Our
constitution is a great cathedral in which our body politic meets; it
has been accreted to, and changed, but largely in line with its
purpose and a common architectural tradition. Now, however, we have
all been relocated to the pokey Brutalist extension with the café
and meeting rooms, which is evidently entirely out of place. For
forty-something years we have sat on plastic chairs under strip
lights drinking weak tea. No wonder so many are unsatisfied with our
constitutional arrangements! Worst of all, very few even know what is
next door, behind the strangely ornate wooden double doors; very few
have even been into the cathedral itself. Considering the sources of
our constitution is, then, opening those doors and stepping into the
nave, and then exploring the chapels and cloisters. We may suffer
vertigo, or a sense of foreignness, but let us at least consider it
as an alternative to the chipboard café tables.
For a simple list of sources, read a textbook introduction to this
subject; here we shall try to discern the key artistic themes and
engineering principles of the cathedral. Which laws and rulings bear
the weight of the marvellous ceiling? Which authorities have
decorated the corbels and monuments? We must be necessarily
selective, but one hopes a clear picture will emerge – of real
continuity, of wise development, and of common principles of rights
and of stewardship spread over 700 years of growth. Rather than
offering lists of laws or rulings, I will instead offer certain two
key features of the constitution – its “royal and political”
nature and the idea of the inheritance of rights – and point to key
exemplars of those features. Then I will discuss the role of
authorities. My intention is to show how the individual leaves and
branches of the tree build up to a constitution, rather than
atomistically delineate them, cutting off the leaves and pressing
them into a display book.
A“Royal”
and “Political” Constitution
A defining feature of the English constitution, over against (say)
the ordinary manner of working in France, whether before or after the
Revolution, is that the English constitution is both “royal and
political”, as Fortescue put it in the 1470s. France before the
Revolution had chiefly a “royal” constitution, and after has
chiefly had “political” constitutions. The “political” here
emphasizes the assent of the people, the “royal” the
decision-making right of the executive. Of course there will be a
mixture of elements in all constitutions, and we are not to take the
word “political” to mean, necessarily, democratic, nor the word
“royal” to mean, in all situations, a single monarch.
But
we can see in England this mixed form even before the Conquest. The
King seems to have, even as early as 600 AD, needed consent from the
Witenagamot – really a semi-formal gathering of aristocrats and
clergy rather than a formal, permanently established council – on a
number of questions. Certainly it is reported from the 10th
century that the hereditary heir technically needed affirmation from
the Witenagamot to take the throne, and Kings often seem to have
cooperated with their magnates on the passing of law codes and
specific legal measures. The King usually initiated policy, but –
to greater or lesser extents, depending upon the strength of the
throne – this relied on a pragmatic dealing with the power-brokers
of the realm.
It is this same principle – that some significant tranche of
society has a formal or semi-formal role in counselling upon and
assenting to laws created and enacted by a robust executive power –
that should inform our understanding of the great statutes and
rulings that underpin the constitution. We see it in the
self-selecting, self-perpetuating council of 25 barons created by the
Magna Carta to ensure the enforcement of the Charter; we see it in
the plausibility of De Montfort's rebellion; we see it the late
Lancastrian councils, and in Henry VIII's populist claims of
Parliamentary support for Reformation; it is the very wellspring of
the claims of the Petition of Right and the Five Members and the
Declaration of Rights – but also of the invitation by Parliament to
Charles II to return to England and ascend the throne. The Rump
Parliament preferred the ancient Crown to the new Major-Generals and
considered the old balance – however imperfect – much to be
preferred to the new-fangled progressivism of a military junta, which
so openly overthrew the “political” element of the constitution.
Any traditional constitutional defence to be made in favour of the
Great Reform Act, or the Representation Acts, or the Parliament Acts,
can only be made on the same basis – that they seek to the right
balance between “royal” and “political”, without abolishing
either.
It
ought to be noted here – to follow on Fortescue's comparison with
France – that of course we might note the importance of magnates in
France, we might consider the Parlements
as a loose parallel to our own Parliament, we might remember that
absolute monarchy is always half a fiction, relying as it does on a
vast bureaucracy with its own interests. But none of these were truly
“political” in terms of their formal footing or purpose. The
magnates had no formal right of affirmation – as the Witenagamot
did – nor a chartered duty to protect enumerated rights, as with
the Magna Carta Barons. The Parlements
were judges, and in no way meant to represent the body politic –
they were essentially an extension of the royal bureaucracy, even if
they sometimes worked in their own interests. That vast bureaucracy,
as we may quickly infer, was only ever an extension of the executive,
of the royal power – that the whole royal power might sometimes
fall out amongst itself is no proof that it was a “political”
element of the constitution.
The
Inheritance of Rights
The
formal, binding sources of the constitution, then – whether statute
or ruling – uphold both “royal” and “political” elements.
But why? Why this form? Is it a self-evident truth? Are the
respective rights of the royal and of the political inscribed on the
human soul? This brings us to another important principle of how we
identify the sources of the constitution. The English constitution is
quite different from the American iteration, or the various modern
declarations of human rights. The English constitution does not
recognize the phrase “that all men are
created equal, that they are endowed by their creator with certain
unalienable rights”; not
because it does not believe in a Creator (far from it!), or that men
are not endowed with natural dignity by that Creator. Rather, it is
because legal and political rights are matters of tangible property,
not spiritual reality. A spiritual reality may inform what tangible
property is recognize, but the two are not to be entirely identified.
Sometimes, indeed, our constitution finds it right to affirm the
tangible property even where a spiritual reality is lacking.
Let
me offer two examples: when someone in Government, such as the
Monarch, is incompetent or morally lacking, we respect their rank
though we are tempted to disrespect their person – we affirm the
tangible property, of power and rank, even as we recognize that the
corresponding spiritual reality is lacking in them; or again, when we
affirm equality before the law, we do not consort with the fiction
that all persons are created equal in any real sense (How many people
are wiser or nobler than you are? How many stupider or morally
inferior to you?), but rather accept the unearned property right of
all Englishmen to legal equality. Just as we might feel irked by a
buffoon inheriting a fortune but accept he has a legal right to, we
ought to accept that an obvious rogue has his rights in law even
though mob justice would be quicker and easier. His right to jury
trial is not contained within him; it is not a matter of DNA. It is
an inheritance.
Before
I turn to iterations of this in law itself, this is the right time to
bring up Burke's great concept of England as a commonwealth of those
living, those who have died before now, and those who are yet to be
born. I have mentioned this in the Introduction, but it is important
to mention here because it is Burke who makes the most sustained
argument that our constitution is one of inheritance; its sources are
not isolated Acts but the whole fabric, every right passed down to us
by our forebears. It was on this very basis that Burke supported the
American Revolution but was aggressively critical of the French
iteration's ideas spreading to England. The Americans were born
Englishmen, possessed of the rights of their forefathers; they fought
for what they owned, as far as Burke was concerned. There was, we
might say, no real “political” element in their relations with
their mother isle – merely a “royal” one. They were right,
therefore, to fight for their rights. On the other hand, the French
Revolution dissolved all ideas of rank and wilfully shattered bonds
of property via confiscation. Its English supporters claimed the
English Monarchy was only sustainable by its being derived from an
ongoing popular affirmation.
It was, in essence, a democratic monarchy; it relied for its
authority on the active permission of the masses. Burke demolishes
this idea, and all those of his opponents. Inheritance is the very
basis of the English constitution; our monarchy exists by inheritance
by this very principle; every right we have was worked for by our
forefathers, and passed to us. (And here the Chartists and their
modern descendants agree; to the traditional English socialist, the
rights of the worker have been fought for and won, rather than
discovered by philosophical deduction.)
We
can see that the principle of assent gained by the Crown from the
Estates of the land goes back to pre-Conquest times. Any baron or
bishop thereafter claiming some right to consult with the King would
surely be aware that they followed in that tradition (and could point
to the very different but parallel development of the Electors of the
Holy Roman Empire). However, this was once for all established by the
Great Charter of 1215. There King John declares (in the translation
provided by the British Library): “TO ALL FREE MEN OF OUR
KINGDOM we have also granted, for us and our heirs for ever, all the
liberties written out below, to have and to keep for them and their
heirs, of us and our heirs”.
The “royal” element of the constitution has granted a set of
liberties, of freedoms, to be enjoyed by their free subjects and
their heirs. How does one
receive these liberties? By turning to Rousseau or Paine? By no
means. One receives them by inheriting them – that is, by being an
heir. Alternatively – implicitly – by becoming a free subject.
The immigrant upon naturalisation gains these liberties as if they
had been born to the soil.
Of
course, King John is in part merely recognizing rights already extant
– we may easily descry the Witenagamot in the Baronial Council,
that first proto-Parliament – and this impression is only
reinforced when we realize that the Magna Carta (Great Charter) is
so-called because its issuing by John's son, Henry III, was
accompanied by another law, the Charter of the Forest. This Charter
reversed royal arrogation of property rights in the countryside,
returning the use of land to those who had been “accustomed” to
such rights. Rights here are a matter of custom; they are exterior,
not interior, to the holder of the rights. So, too, adducing the
analogy, are the famous Magna Carta liberties – as, for instance,
due process and trial by jury (article 39 in Blackstone's numbering)
or the concept of proportionable punishment (article 20).
We
see the same principle offered as the basis of the Declaration of
Rights in 1688 and the near-identical Bill of Rights in 1689 – the
other great description of the liberties of the English subject,
after Magna Carta. Its precursor, the Petition of Right in 1628, had
leant heavily upon the Great Charter as the source of rights still
enjoyed by Englishmen (for instance, and most particularly, the
matter of due process and trial by jury); now, the Lords Declarant
invited William and Mary to assume the throne, and alongside that,
listed their grievances, “Vindicating and Asserting their
auntient Rights and Libertie”.
They believed that their rights were not metaphysically endowed, but
ancient and inherited. The rights enumerated – the supremacy of
Parliament, free elections, the right to bear arms – were, in a
word, property.
Here
we may turn to some of the great discoveries of Common Law by our
Courts. What of the Case of Proclamations (1610) or Entick v
Carrington (1765)? They both limit arbitrary power, and the latter
establishes the principle that courts may review non-Parliamentary
acts of the executive. On what basis? To put it a different way –
is the reasoning deductive, from philosophy or theology, or is it
inductive, from the nature and iterations of the common law? Surely
the latter. The King was found in 1610 to be unable to proclaim new
offences – because this was the natural growth or development of
the constitutional settlement. It was a truth incipient in the
constitution already; only the crisis of the Proclamations led to its
articulations. The Home Department was found in 1765 to be unable to
conduct arbitrary raids, because they violated the historic rights of
the Englishman.
Authorities and
Conventions
Having
highlighted a selection of statutes and rulings by reference to the
two great cornerstones of the English constitution, how ought we
consider the authoritative writers of the tradition? When Sir Edward
Coke sat on the bench during the Case of Proclamations, he wrote law;
but when he wrote his great Institutes,
did he merely offer constitutional opinion? Is Dicey's great Law
of the Constitution an authority
because it is still significantly factually relevant now, for all the
great changes that have occurred over a century? Or is there some
other reason?
Here
we do enter upon a mystery, and one not quite pleasing to the most
modern of modern eyes. How is it possible that some think that Burke
did not merely articulate a view of our constitution, but in his
writing embodied and reified it? Why is the blend of cynicism and
romantic traditionalism we find in Bagehot and Dicey more than mere
personality, so that it ascends to the status of being a frame in
which the constitution may (partly!) be viewed? There is no neatness
here. Our earlier image of the Great Tree helps; these writers are
voices under the tree. In a constitution based on inheritance, based
on transmission and slow development, they are the voices handed down
to us as authoritative. They are authoritative not merely for their
factual accuracy or argumentative force, but because they are settled
upon us as the spokesmen of the past in our great commonwealth. They
have been elected as representatives by generations past; they are
recognised as the rightful incumbents. We have no more right to
deconstruct them than we do our great-grandparents, and no more right
to defy the expressed will of the dead in their election than we have
in barring from the Commons MPs whose parties we disagree with.
It
is in this light that we ought to see the books on our shelves –
not for us to obsequiously bow to, but for us to reverently hear. It
is they who strengthen our sense of which conventions and which
understandings we ought to have of constitutional matters; they form
the majority voice, over against – to take my example in the
Introduction – the absolutism of Charles Stuart or the radicalism
of John Lilburne. We reject their wisdom at our peril.
I
mention conventions; conventions are those procedures and ways of
working that have not achieved status of law but which are, where
uncontradicted by law, binding upon our system. It is chiefly, one
way or another, through our authorities that we know what these
conventions are. If statutes and rulings are the “house rules” of
our great estate, conventions are our table manners and, in an
abstract sense, our choice of wallpaper; they smooth out our dealings
and decorate our proceedings. That Black Rod raps upon the door is
superfluous and in legal terms perpetuates what has become a fiction
(a balanced relationship between Crown and Commons), but it is
nonetheless a curtain which protects the delicate mysteries of our
constitution.
You
may ask, incidentally, which authorities have been so elected by the
dead. To begin with, let your bookshelf start with the Magna Carta,
Burke's Reflections,
Bagehot's English Constitution,
and Dicey's Law of the Constitution.
Then find a modern book of Reports on key rulings, print out the text of the
1689 Bill of Rights, and add Sir John Fortescue's two treatises.
Further reading should add Sir Henry Maine's Popular
Government and Stephen's
Liberty, Equality, Fraternity
from the latter jurists, and Sir Edward Coke's writings to represent
the former – both rulings and treatises (there is a 3-volume set
from Liberty Fund, now out of print but available second-hand).
Finally, you might seek out De Republica Anglorum
by Sir Thomas Smith, any cheap-ish translation of de Bracton's
seminal rulings and opinions, and perhaps even the voluminous
Blackstone (a collater of and commentator upon laws and rulings, published first in
the 18th
century) and the expensive Erskine May (who wrote Parliament's
rulebook).
An
astute reader will note that the final statute mentioned above is
from the 1940s (the 2nd
Parliament Act). The last authority mentioned by name is Dicey, whose
last edition was in 1914. Surely the 1973 European Communities Act is
a key statute, and Factortame (1990) the most important ruling in
modern history? Of course. But let me plead two excuses for not
mentioning them earlier: first, in an 800 year old constitution which
relies upon inheritance and is a commonwealth of the living and the
dead, the last 45 years must necessarily have a lesser role and a
more limited voice; second, as I shall examine in the final essay in
this series, as we meet under the tree to consider these more recent
events, we have cause to think that these are poorly-directed
branches – or even alien impositions of steel and plastic, warping
our growth.
