A Short English Constitutional History for Law Students/Chapter 1

by Edgar Hammond

Chapter I.
The characteristics of the
English constitution.

The Characteristics of the English Constitution.

A.		Professor Dicey has said that the Constitution of a country "denotes those of its rules or laws which determine the form of its government and the respective rights and duties of the government towards the citizens, and the citizens towards the government."
B.		There are four characteristics of the English Constitution:—
			I.		It is Unwritten in Character.
						a.		In this respect the Constitution of our country differs from the constitutions of those countries, like France, Belgium and United States of America, which have a written constitution.
						b.		Our statute law, it is true, is written, but the Constitution is not the product of any express legislative act at one particular time but the result of historical growth through many centuries.
						c.		The constitution of those countries which are said to have a "written constitution" was the embodiment of the constitutional laws of the particular country in a legislative measure; and thus the constitution has its source in that legislative measure.
			II.		It is based to a large extent upon Custom and Convention.
						a.		What we call our constitutional laws are not laws in the proper sense at all: their breach would not result in legal proceedings. They are conventions pure and simple, but in practice they are very rigidly enforced, because their breach would quickly involve the Government in a breach of the real laws of the country and so subject the members of the Executive to the jurisdiction of the Courts. Consider what would happen were Parliament not summoned regularly: the greater part of the country's taxes could not be collected; any attempt to collect them would be illegal and the Ministers and their subordinates would be brought before the Courts.
						b.		In our system there is no difference between
									i.		ordinary laws,
									ii.		fundamental laws, as there is in those countries which have a written constitution. Remember that the latter cannot be altered in the same way that the ordinary laws can be changed, but require some special procedure, as, e.g., in United States of America, where it is necessary to have the concurrence of the various Legislatures in at least three-fourths of the separate States. It is the constitutional laws that are the fundamental ones in such countries as have a written constitution.
			III.		It is Flexible in Character.
						a.		This implies that fundamental changes may be brought about by an ordinary act of the Legislature in the ordinary way passed by the ordinary legislative organ.
						b.		It stands in marked contrast with those countries having a written constitution by which it is provided that the fundamental or constitutional laws shall only be altered by some special and peculiar procedure, as, e.g., in United States of America, as we have already seen.
			IV.		It is Unitary in Character.
						a.		This is a contrast with what is known as the "federal system."
						b.		The unitary system involves a central Government which pervades the whole country, as in Great Britain.
						c.		The federal system involves communities, which have at one time been independent of each other, incorporated in a union. The central Government then deals with such matters as foreign policy, defence, postal communication, etc., while each one of the Federal States deals with matters concerning its own affairs each of them by its own Legislature. Switzerland and United States of America are examples of the federal system.
C.		In addition to the four essential characteristics of our Constitution, there are certain other features which require attention: firstly, the "absolute sovereignty of Parliament"; secondly, what is known as the "rule of law."
			I.		The Absolute Sovereignty of Parliament is not difficult to appreciate. It signifies that there is nothing which Parliament cannot legally do. The only limits which exist on its powers are not legal limits but physical and moral ones. It is physically impossible for Parliament to turn a man into a woman, though legally the proposition presents no difficulty. Parliament can enact that everybody over forty years of age shall be beheaded, but the moral conscience of the individuals who compose the Legislature makes the passing of such an Act impossible.
			II.		The Rule of Law signifies that everyone in the country is bound to conform to the laws of the land (except, of course, the King himself). Though we lave a body of military law in this country to which members of the military forces must conform, nevertheless they are not thereby excused from obedience to the general law of the land, and must submit to it just as an ordinary civilian is bound to do.