The British and French Constitutions Contrasted : Changing conditions are leading to stronger Executive control. Formal restraints on the Executive are negligible. The only counter-balance is public opinion. The degree of freedom of the Judiciary, of local government, and of the citizen, in relation to central Government. Comparative study of the British and French systems of government. British constitutional flexibility may lead to imitation of French methods.
The British Constitution :
The best example of an unwritten constitution, so called, is that of Great Britain, undoubtedly the first of all free constitutions in age, in importance, and in originality, says a French scholar-
“a constitution which existed with all its main features four hundred years earlier than any Other and one Which has served more or less as the model for all existing constitutions.“
In its nature it is, says Bryce, a
“mass of precedents carried in men’s minds or recorded in writing, dicta of lawyers or statesmen, customs, usages, understandings and beliefs, a number of statutes mixed up with customs, and all covered over with a parasitic growth of legal decisions and political habits.”
Dicey speaks of it as a sort of maze in which the wanderer is perplexed by unreality, by antiquarianism, and by constitutionalism.
It is not a subtle contrivance of human art nor the result of deliberate effort, it was never made in the sense in which most others were, but has grown up bit by bit and for the most part silently and without any acknowledged authority. There was never any moment observed. Freeman, when Englishmen drew out their political system in the shape of a formal document.
If it were stripped of its conventions and displayed in its legal nakedness, it would be unrecognizable and unworkable. The unwritten part deals with the organization, privileges, reciprocal relations, and interaction of the great public powers, crown, cabinet, and parliament.
All those important matters,observed Boutmy,
“which are the very center, and soul of constitutional law, are regulated in England by simple custom.”
The very name of the cabinet is unknown to the written law. The practice of annual sessions of parliament, its division into two houses, the exclusive power of the House of Commons to initiate revenue bills, and many other matters of fundamental character are regulated wholly by custom.
In fact, the most important part of the political organization is just what is kept out of the written law and given over to the sole guardianship of custom. The English have, to quote Boutmy further, left the different parts of their constitution where the waves of history have deposited them they have not attempted to bring them together, to classify or complete them, or to make of it a consistent and coherent Whole.
Many of the customs and usages which go to make up the constitution have, to be sure, been reduced to writing, and some of them have embodied in fundamental statutes, but they have never been collected and incorporated in a single document.
Those parts of the constitution which have been reduced to written form emanate from the same source, are enacted in the same way, have the same legal authority, and are repealed or amended in the same way, as ordinary statutes. There is, in short, no separation in. Great Britain between the Constituent power and the legislative power both are united in the parliament, which is at once legislature and constituent assembly. There is no law, fundamental or otherwise, which it cannot change.
But while the constitution-making and the statute making powers are in the same hands, there is a growing feeling that fundamental and far reaching changes ought not to be made except as a result of a general election at which the proposed changes are the issues-in short, parliament ought to alter the constitution only in obedience to a mandate from the electorate.
Where the constituent and legislative powers are in the same hands, the distinction between a constitutional law and an ordinary statute cannot easily be determined. There is no exact juristic test, as in America, where constitutions provisions and statutory enactments proceed from different sources and are altered and repealed according to different processes. Whether a given act of the British parliament, therefore, belongs to the category of constitutional law or that of ordinary statute law must depend, not on its source or manner of enactment, but upon the character of the act itself.
If it is fundamental in its nature, that is, if it relates to the distribution or exercise of the sovereign power of the state, for example, the Parliament Act of 1911 (infra, p- 555), it may be classed as constitutional, otherwise it falls within the domain of ordinary statutory legislation.
Obviously it is not always easy to draw the line between that which is fundamental and that which is not. In a technical sense De Tocqueville was correct, therefore, when he said the British constitution has no real existence.
He meant by this that there are no laws in Great Britain that can be definitely marked off from other laws as fundamental, that is, there is no legal test for differentiating between a constitutional provision and a statute.
The Term “Constitutional” and “Unconstitutional” in Great Britain and the United States :-
In this connection it may be observed that the terms “constitutional” and “unconstitutional” have different meanings in Great Britain and America. In Great Britain a law is “constitutional” because it is one which is supposed to affect the fundamental institutions of the state and not because it proceeds from a different source, has any higher legal authority, or is more difficult to change than other laws.
An act of parliament is sometimes said to be “unconstitutional,” not because it is inconsistent with some higher law, for there is no law superior in authority to a statute of parliament, but because it is supposed to be contrary to the established usages and customs of the kingdom, the principles of morality, international law, or the law of nature. The distinction is not between a legal and illegal statute, as in America, for no act of parliament can be “unconstitutional” in the sense of being illegal.
An act of parliament, for example, making a man a judge in his own case, an act to tax the colonies, an act to deprive a man of his property without due process cf law would be unconstitutional only in the sense of being a violation of ancient and well-established customs and not because of any material inconsistency with some higher written law.
No court would question such an act or refuse to give effect to its provisions, however immoral or unjust it might seem. In the United States, a statute is said to be unconstitutional, not because it is one which does not affect in a fundamental manner the organization of the state, but because it is not in conformity with the provisions of a higher written law.
In the absence of such conformity the statute is said to be unconstitutional, which is another name in America for illegality and the courts exercise the authority of pronouncing upon the question of its consistency and of refusing to give effect to the inferior law when it is in conflict with the higher law.
French Constitutions :-
We may contrast with the British constitution some of the earlier ones of France, which are the best representatives of the opposite theory that constitutions are made rather than evolved. The French idea of a constitution has been that of a written instrument, conceived and struck off at once, and capable of being fitted to an individual.
The French have never been impressed with the advantage of following old paths, constitution ally speaking, and of preserving continuity and connection with the past. They have allowed themselves to be seduced by the fallacy that a nation may cut loose entirely from its past, and erect a new constitutional structure better adapted to the needs of the people than any which is the product of growth and evolution. It was this fallacy which Burke severely criticized in his
“Reflections on the French Revolution”
The authors of the earlier French constitutions, observed Boutmy, were in the position of an architect about to erect a monument in the center of a public square they must have a free and clear space at their disposal. There is a maxim, he said, which has remained true under all the successive regimes in France, viz, that all rights must be recorded in writing that no right can come into existence without a document to attest it, or be annulled without express abolition.
There is no country where the feeling for customary law is more blunted than in France, or where the virtue of leaving things to be understood is less appreciated. Nor is there any country where there is a greater dislike to the idea of an equity (droit prétorien) which, while preserving the form, changes the substance, or written law.