The English
Constitution Explained
Contents
Parliament and its Sovereignty
The Rule of Law
Convention and Law
Decline and Fall
Introduction
In
the midst of its final collapse and death1,
it has become clear how thoroughly misunderstood the English
Constitution has been by its beneficiaries and supposed guardians. Of
course, insomuch as the entire tendency both of our nation's
educational system and the grand political project to which we have
been attached for the last 40-something years has been to dissolve
our connection with the past, our knowledge of ourselves, we ought
not be surprised that we have become not merely unmoored from our
constitutional system, but also become – even amongst our lawyerly
class – utterly ignorant of it. The purpose of these essays will
be, then, to offer an explanation of where the English constitution
comes from and what its main features are.
I
should state three matters in this introduction that will save the
reader much distress were they to be surprised by their discovery
later on.
Firstly,
I do not pretend this is a merely “neutral” explanation; in fact,
I deny that there could be any such thing. As a rule of thumb, you
may immediately distrust anyone who presents themselves as strictly
neutral when reporting or explaining some matter, as if they had no
grand ordering assumptions about reality or the nature of
communication, let alone the facts at hand. I would also suggest that
it is in fact undesirable for someone to seek to be merely “neutral”,
insomuch as such an attitude is not just doomed, but unlikely to
inject any vigour or passion to proceedings. As Chesterton put it,
education is not a noun describing an object (like “kettle”) but
a method (like “transmission”). No educational activity can be
neutral, because the result of it lies in the content, chosen by the
educator for its importance to achieve an end result. Ends are
determined by values; values are never neutral.
However,
I will seek to be balanced, just, and honest. Neutrality is no
virtue, but justice and honesty are. Balance here means seeking to
weigh matters in due proportion to their importance; justice means
giving due time to competing views, where the views each have a claim
on our time; honesty means not glossing over the lumps and bumps of
the constitution too quickly, so as to suit the wider argument. But
I am avowedly not neutral.
These
essays constitute a defence of our constitution; they very likely
will also be a very minor and unimportant obituary to it. They stem
from a love of the way we have done things on this island for 800 or
more years. Underlying them is a conviction that, for a people so
fitted as we have been, our processes have been properly matched, and
that recent large-scale deviations from them have been to our great
detriment.
The
nature of the discussion means it is hard to explain why I believe
these things to be true without explaining the constitution itself,
and even the explanation can only be a partial argument in its
favour; my love is of the flourishing oak tree itself, not of a
botanical abstraction. Even having lived at the foot of a
lightning-shattered geriatric, as anyone my age has done their whole
life, cannot wholly obscure its power and beauty from us; the roots
still run deep; and perhaps one or two final acorns survived the
strike and could fall to grow somewhere else.
This
image brings me on to my second preliminary declaration: the English
constitution relies upon authority, and a specific type of authority
– that of tradition, of inheritance. Moreover, one is not to
envision the great English philosophical and constitutional tradition
as merely a set of dead rules, left to descendants entirely separated
from their forebears. Our constitution is like any inheritance; the
fine armoire in the corner is not just wood carved and decorated for
the purpose of storage. It is alive with ghosts. So it is with our
constitution now – even as we founder on the rocks, the water pours
below, the rudder is wrecked, and the masts fall, Denzil Holles
stands on the gun deck calling for men to the buckets; the Marquess
of Halifax and Fitzjames Stephen gather marines to see off the
scavengers and robbers now seeking to board us for our cargo; and
Burke – most of all, Burke – stands on the quarterdeck, firm in
the storm, seeing the narrow path forward to salvaging all, and
directing the crew to what is needed to do so.
And
if you don't know those names, look
them up.
I have used the image of a tree to describe our constitution; let us
return to that. The roots are deep – from Alfred and the Conquest
and the Great Charter down to now. The tree has been carefully tended
much of that time, with bad growths sawn off, with better branches
carefully managed and trained to flourish in the right direction.
There have been times of neglect, but it is still the same tree. We
may dispute which strategy we think best to maintain the growth of
the tree, but it is still the same tree. We, our ancestors, and our
posterity all stand under the great branches which give us cover from
sun and rain, which bear fruit for us to eat, and we debate – the
dead and unborn not silent here – what is to be done. My
great-grandchildren stand under that tree, and I exercise prudence on
their behalf to maintain it, listening carefully to their quiet
voices.
I warn you that this is what our constitution is for two reasons: 1)
to protect the tender feelings of those loathers of authority and
tradition who might faint at the idea if unwarned – I hope I
thereby forestall any offence at such antiquated notions as
tradition, coming as they do with the territory; 2) to assert the
fact – and it is a fact – so as to make clear that my whole idea
of nations and constitutions is both transcendent, not bound by time,
particularly by one atomised moment in time, but grounded in
eternity; yet also utterly immanent – the English constitution is
not an abstract idea, or a proposal for anyone else, but the specific
birthright of the English nation and its gift to the wider United
Kingdom. This immanence further means – taking the image of the
tree – that I am here seeking to trace the lineaments of the actual
tree, of the right line of inheritance, of the great tradition; I
will therefore be making judgements about what this is. In that, for
instance, Charles Stuart and John Lilburne both will be considered
minority voices, though undoubtedly they may still speak at the foot
of the tree.
(I should note here, mentioning the United Kingdom that of course I
am speaking of the English constitution; I grant my Scottish
compatriots that, until 300 years ago, they had their own
constitution, and their own workings of law, partially parallel to
England and partially inspired by Continental models. The historic
Irish constitution is more closely tied to England, but carries its
own set of difficulties. Though I love our Union, and believe every
part has benefited to greater or lesser extents since the Acts of
Union, it must be granted that our friends will ultimately decide on
their own arrangements, and that these may differ from the
arrangements they have had for 300 and 200 years respectively.
Different peoples are fitted for different institutions; sensible
conservatism loves and affirms variety. It is with the common system,
however – the English constitution – that I deal.)
Of course, all nations, all constitutions, all laws, rely upon this
same concept of continuity and transmission – even where things
have changed greatly, they are the same peoples with the same great
tradition. As Orwell puts it, if we want to imagine how Spain now is
the same as Spain in 1800, consider yourself – you are quite
different now from when you were 5, but you are still the same
organism. Without tradition having authority, political and social
life is quite impossible, unless it be enforced by naked force –
and that very force will destroy it.
Thirdly,
this is an essentially theoretical work. I may, given time and
reason, write about some proposals of restoration (which, I warn the
reader, will be even more shocking and unpleasant than the use of the
word “tradition”), but these essays are about what the English
constitution has been. They are about what, before its present
decline, maintained it and led it to flourish even after hundreds of
years of development, so that Hallam could say in the early 19th
century that it only then seemed to be reaching true blossom, after
600 or more years of growth.
As
I have said, the theory is not simply a theory of the abstract; a
theory of a theory. It is an attempt to “spectate” (thus the
etymology of theory) upon the history of the thing. And a theoretical
approach can accomplish multiple aims – not simply description, but
defence, and of propagation; to return to what I said above about
being just and honest, this includes being just to the dead whose
estate we temporarily inhabit, and honestly romantic about our
inheritance, which we have so nearly lost.
1 I
begin writing this in September 2019.
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