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STUDIES IN
CONSTITUTIONAL LAW



C.L.



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studies m
CONSTITUTIONAL LAW

FRANCE-ENGLAND-UNITED STATES



BY

Smile boutmy

Member of the Institute of France ; Principal of the School of Political Scienc
TRANSLATED FROM THE SECOND FRENCH EDITION BY

E. M. DICEY

WITH AN INTRODUCTION BY

A. V. DICEY, B.C.L.

Vinerian Professor of English Law, Oxford



ILontion
MACMILLAN AND CO.

AND NEW YORK

1891 /

Che£;"^ 4H Bights Beserved



254771



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Richard Clay and Sons, Limited
london and bungay.



INTRODUCTION

Monsieur Boutmy's Etudes de Droit Constitution-
ncl has reached a second edition in his own country.
It has both in England and America been recognized
by all persons interested in the comparative study of
institutions as a brilliant and original essay on the
essential differences between English and French con-
stitutionalism.

In introducing the book in an English form to readers
unable to enjoy the French original, I can confidently
recommend it to the attention of students. The work
was originally composed for Frenchmen ; hence the
author occasionally insists upon features in the English
Constitution which to Englishmen may appear to be too
well known to require notice or explanation. But the
fact that the essay is written by a foreigner for
foreigners, though it may seem at first sight to limit the
utility of the book for English students, is in reality one
of its great recommendations. We all forget to note
matters with which we are familiar. Hence the best



INTRODUCTION



descriptions of a country's institutions have been often,
not to say generally, composed by foreign observers. A
stranger who has carefully studied the policy of a
nation which is not his own seizes the broad outline of
its political system more easily than can a native. If
he overlooks or mistakes a few details, he obtains a
better general view of the whole constitutional fabric
than can a man who looks at the institutions of his
country from the inside. Monsieur Boutmy is no
exception to this rule. He has indeed mastered all that
can be learnt from the best English historians such as
Freeman or Stubbs ; writing before the appearance of
Mr. Bryce's exhaustive monograph on the American
Commonwealth, he displays a more intimate knowledge
of the American Constitution and of American politics
than is generally possessed by well-educated English-
men. But his claim to attention does not depend upon
erudition. The aim of his book is to criticize and
explain the constitutional ideas which govern the
action of the English people in the light thrown upon
them by a comparison with the ideas which have guided
the constitution makers of France. It is this compari-
son which constitutes the true value of Monsieur
Boutmy's work. An Englishman learns from it no new
facts about the institutions of his country, but he is
taught to look at familiar facts from a new point of
view.



INTRODUCTION



Monsieur Boutmy further, with great ingenuity,
carries over to America, so to speak, the contrast
between English and French ideas of government.
He shows that, marked as are the contrasts between the
English Monarchy and the American Republic, the
institutions of the English people on both sides the
Atlantic are in essence though not in form the same,
and that they stand in marked contrast with the
institutions of France. All the characteristics, he
suggests, which distinguish the Constitution of England
from every one of the constitutions of France reappear,
though in a curiously changed shape, in America. In
the United States, as in England, custom has the
authority of law. The constitutional history of the
United States is as obviously as the constitutional
history of England the record of an attempt to
close political contests by means of treaties. The
development of American no less than of English
political institutions has been the result of a long
conflict between powers which existed prior to the
Constitution. The crown, the nobility, and the commons
existed long before the English Constitution had even a
name. The States, Monsieur Boutmy insists, created the
American nation ; it was certainly not the American
people which created the States.

Of the translation I have said little. Anyone who
can read French should study the works of a writer



INTRODUCTION



so lucid and brilliant as Monsieur Boutmy in the
author's own language. The object of the translator
has been not to render the French original sentence
by sentence, and still less word for word, but to give,
as far as possible, the meaning, the effect, and the
spirit of each of Monsieur Boutmy's pages.

An Appendix to the second edition of the Etudes
de Droit Constitutionnel contains replies to some of
Monsieur Boutmy's critics. This Appendix is omitted in
the translation. The criticisms being for the most part
unknown in England, the answers thereto have, it is
conceived, little interest for English students.

For the few notes, enclosed in brackets and marked
(D), I am myself solely responsible.

A. V. Dicey.

Oxford. May, 1891.



PREFACE

Of the three following essays two have been published
separately, the one in 1878, the other in 1884. In the
first I have attempted to make a critical survey of the
English Constitution, combined with as complete a
classification as possible, of its sources. I trust that I
have not omitted anything essential. I do not examine
into the institutions themselves, nor do I attempt to
describe them ; such a subject cannot be dealt with in a
hundred pages. I am satisfied, first, to distinguish the
different parts of the political compact ; next, to note
the special characteristics of each according to its origin,
and lastly, to define the general spirit of the Consti-
tution in which these parts are merged.

The second essay, d propos of a question of method,
opens a number of vistas and, so to say, side-views of
the Constitution of the United States. These views
are tolerably numerous ; they throw light over a con-
siderable surface, so that the reader can form a fairly
complete picture of the whole Constitution. A good



PREFACE



deal of the detailed information in this essay is new,
and if it does nothing more, it may possibly somewhat
shake men's confidence in certain prejudices of very
old standing.

Owing to the political circumstances of the day, the
actual information given in these two essays has excited
an unusual amount of attention ; but I think the real
value of this work to the public is of a different kind,
and does not in the main arise from the information
which the essays contain. I have given great care to
fixing the rules to be followed in exploring certain
departments of public law which have been mapped
out, either badly, or not at all. 1 have dwelt at length
on the precautions to be taken against the pitfalls into
which any person may fall owing to individual bias and
the influence of national circumstances. I have pointed
out, above all — and this is a warning against the snare
most dangerous to Frenchmen — that constitutional
mechanism has no value or efficiency in itself, inde-
pendently of the moral and social forces which support
it or put it in motion ; though by this I do not mean
to deny that the excellence of the mechanism inten-
sifies the action of these forces and makes it more
durable and regular.

The third essay has not been published before. It
suggested itself to me from the juxtaposition of the two
which precede it ; it constitutes in a measure the con-



PREFACE



elusion drawn from them. By a more rigid and con-
tinuous comparison with France, I have in this essay-
tried to recapitulate and bring out the differences not
only in form and in structure, but in essence and in
kind, between the Constitutions of England and the
United States on the one hand, and France on the
other. These differences are connected with the funda-
mental notion of sovereignty, which differs in the three
countries.

E. BOUTMY.
May, 1885.



PREFACE TO THE SECOND EDITION

The indulgence with which this little volume has
been received by the public encourages me to bring out
a second edition. The three essays in the original
edition are untouched. To the one on America, I have
made a somewhat important addition concerning the
exercise of the legislative function by the Chamber of
Representatives.

Though tempted to do so, I did not wish to enter
into certain questions of extra-constitutional order in
the United States which have arisen of late, and will
certainly be some of the problems of the future. I
should have been, to a certain extent, justified in yielding
to this temptation ; for, whatever be the solution of
these questions, its effect will certainly be felt in the
region of public law. The rapidity with which the
growth of landed estates has begun and progresses ; the
immense extent of the latifundia ; the approaching
exhaustion of the available soil — that seemingly
inexhaustible treasure — the increase of tenant farmers



PREFACE TO THE SECOND EDITION



(a class hitherto almost unknown and now by degrees
replacing the yeomen who work their own estates) ; the
appearance of the agrarian question ; the radical and
socialistic character of the remedies proposed — these
things all show an alteration of the ancient basis on
which the political fabric was erected. But if it is
certain that the United States will tend to enlarge
and strengthen the action of the central government,
in proportion to their advance in population and
material civilization, one cannot say as yet whether
this centralization will be for the benefit of a single
Federation or of several. The question of secession is not
yet closed. Will the government of Washington alone
profit by the powers taken from the thirty-eight States,
or will these powers be divided among three or four
governments at the head of Federations, fixed by
natural geographical divisions ? These are serious
questions, which I could not have entered upon without
giving more space to speculative conjectures than was
compatible with my original plan. 1

E. Boutmt.

May, 1888.

1 [A short paragraph is here omitted. It refers to the replies to
critics which do not appear in this translation (D.).]



CONTENTS



PAGE

INTRODUCTION V

PREFACE TO THE FIRST EDITION IX

PREFACE TO THE SECOND EDITION xiii

PART I.

ORIGIN AND SPIRIT OF THE ENGLISH CONSTITUTION .... 3



PART II.

THE SOURCES AND SPIRIT OF THE CONSTITUTION OF THE

UNITED STATES 55



PART III.

THE CONCEPTION OF SOVEREIGNTY IN FRANCE, AND IN

ENGLAND, AND IN THE UNITED STATES 141

INDEX 179



PART I

ORIGIN AND SPIRIT OF THE ENGLISH
CONSTITUTION



c. I.



PAKT I

ORIGIN AND SPIRIT OF THE ENGLISH
CONSTITUTION



The English Constitution is undoubtedly the first of
all free constitutions in age, in importance, and in
originality. It existed, with all its main features, four
hundred years earlier than any other constitution. It
has served more or less as the model for all existing
constitutions. It contains the explanation, and embodies
the true meaning, of more than one provision which its
imitators have not always understood or have knowingly
diverted from its first intention. No general or en-
lightened study of positive constitutional law can be
undertaken without an exhaustive knowledge of this
capital example. But the course to be pursued in
acquiring this knowledge cannot be compared to any
ordinary path, and especially not to the broad highway
which the French jurists have laid out by rule and line
in the domain of their law. It ought rather to be
compared in the words of Pascal to un chemin qui
march c, or to a river whose moving surface glides away
at one's feet, meandering in and out in endless curves,
now seeming to disappear in a whirlpool, now almost



4 STUDIES IN CONSTITUTIONAL LAW [part i

lost to sight in the verdure. Before venturing upon this
river you must be sure to take in the whole of its
course from a distance, you must study the chain of
mountains in which it rises, the affluents which swell
its waters, the valleys in which it widens out, the sharp
turns where it gets choked with sand, and the alluvial
soil which it deposits on its banks. The most fertile of
these preparatory studies, and that which should come
first, is the analysis of the sources of the Constitution.



Section i

In the year 1793 Herault de Sechelles inquired at
the Bibliotheque National e for a copy of the laws of
Minos. Any one would make the same mistake now
who hunted for the text of the English Constitution.
There is no text but there are texts. These texts a$e
of every age and have never been codified. Nor even
taken all together do they contain nearly the whole of
English constitutional law, the greater part of which is
unwritten. On any question of importance it is necessary
to refer, in almost every case, to several different laws
whose dates are centuries apart, or to a series of pre-
cedents which go far back into history. For example,



sect, i] THE ENGLISH CONSTITUTION



the constitution of the House of Lords is the result
of several different statutes dated respectively 1707, 1
1800, 2 1829, 3 1847, 4 I860, 5 1876, 6 of an opinion of the
judges in 1782 7 and of innumerable customs. The
duration of Parliament is determined by two Acts, one
of the time of George I., one of 1867, without counting
the usage, in virtue of which about a year of the
statutory time is curtailed. Publicists and jurists have
taken the trouble to search out and compare these texts
and to write down their decisions, and the legislator has
left this work to them, for no legislator has ever stamped
any methodical digest of the constitutional provisions
with his authority.

This state of things is very far removed from the idea
that the French have of a Constitution. For eighty
years past French history shows us under this name
one single document conceived all at once, promulgated
on a given day, and embodying all the rights of govern-
ment, and all the guarantees of liberty, in a series of
connected chapters. Such are notably the French Con-
stitutions of the revolutionary period from which all
the rest take their form and origin ; they are like
mathematical demonstrations or scientific classifications

i [6 Anne c. 11 (d).] 2 [39 & 40 Geo. III. c. 67 (d).]

3 [10 Geo. IV. c. 7 (d).] 4 [10 & 11 Vict. c. 108 (d).]

5 [32 & 33 Vict. c. 42 (d).] g [39 & 40 Vict. c. 54 (d).]

7 [See Anson, Law and Custom of the Constitution, p. 185 (d).]
It is in virtue of this opinion of 1782 that Scotch peers, created
peers of the United Kingdom, are allowed to take their seats in
the House of Lords. Up to that time they were excluded. [See
as to statutes affecting the House of Lords, Index of the Statutes,
Tit. " House of Lords" (d).]



6 STUDIES IN CONSTITUTIONAL LAW [part i

starting with an axiom as a heading ; they are all works
of art and logic.

The French are accustomed to see nothing but the
advantages of this system, and they are evident. The
English have chiefly felt its inconveniences and dangers.
Probably they have been influenced by two facts : first,
that to publish a clear, methodical, and analytical work
for all readers would be to invite perpetual competition
in producing an improved version, to make one's self
amenable to logic, i.e. to a tribunal from which the right
of appeal is indefinite ; secondly, that every systematic
construction is tantamount to a promise to produce
something complete and perfect which shall provide for
and guard against every contingency, and this is to
attempt an impossibility, so that the energy wanted to
make such a Constitution, and the enthusiasm which it
excites when first made, are only equalled by the cruel
disappointments which follow as soon as it is put in
force. So the English have left the different parts of
their Constitution just where the wave of history had
deposited them ; they have not attempted to bring them
together, to classify or complete them, or to make a
consistent and coherent whole.

This scattered Constitution gives no hold to sifters
of texts and seekers after difficulties. It need not fear
critics anxious to point out an omission, or theorists
ready to denounce an antinomy. The necessities of
politics are so complex ; so many different interests are
mixed up in them, so many opposing forces run counter
to each other, that it is impossible to get together all
the essential elements of a stable fabric and put them



THE ENGLISH CONSTITUTION



in their proper places, if the work is carried on under
the eyes of a people whose taste is for homogeneous
materials and a regular plan. The way to meet the
difficulty is to arrange so that an ordinary spectator
shall not be able to have any general view, such as
would be given by codification. By this means only
can you preserve the happy incoherences, the useful
incongruities, the protecting contradictions which have
such good reason for existing in institutions, viz. that
they exist in the nature of things, and which, while
they allow free play to all social forces, never allow any
one of these forces room to work out of its alloted line>
or to shake the foundations and walls of the whole fabric.
This is the result which the English flatter themselves
they have arrived at by the extraordinary dispersion
of their constitutional texts, and they have always taken
good care not to compromise the result in any way by
attempting to form a code.



STUDIES IN CONSTITUTIONAL LAW [part



Section ii

There are four principal sources of English Constitu-
tional Law : (1) Treaties, or §was*-treaties, (2) Precedents
and customs generally known as Common Law, (3)
Compacts, and (4) Statutes. The first and the two
last of these divisions are the written part of the
Constitution, the second is the unwritten part. They
do not always differ much in form. The difference is
chiefly to be found in their essential characteristics, in
the matters which they regulate, and in the spirit
which has dictated them.

There are two Treaties : — the Act of Union with
Scotland (1707), 1 and the Act of Union with Ireland
(1800). 2 The characteristics of treaties in the general
sense of the word is that they bring two nations and
two sovereignties face to face. The special characteristic
of these two Acts of Union is, that the two sovereigns
appear on the scene only in order to be absorbed
and melted into one : these statutes belong to inter-
national law for a moment and then take rank in
constitutional law. The Acts of 1707 are two statutes,
one voted by the Scotch Parliament, and the other by
the English Parliament, and sanctioned separately by
Anne, first as Anne, Queen of Scotland, 3 and secondly

i [6 Anne, c. 11 (d).] 2 [39 & 40 Geo. III. c. 67 (d).]

3 The sanction in Scotland was not given as in England by the
French phrase La reine le veut, pronounced after reading the title
of the Bill, but by the representative of the Crown touching the
parchment on which the Bill was written with a sceptre.



THE ENGLISH CONSTITUTION



as Anne, Queen of England. These statutes are only
the ratification of one and the same instrument or
treaty 1 drawn up by a commission composed of duly
authorized representatives of the two kingdoms. At
this time Scotland was as completely separated from
England as was Hanover at a later date, or even more
so. Her government, her laws, her system of taxes, her
trade, were all in a sort of rivalry with England, and
even the constitution of her official Church was in direct
opposition to the Anglican Church. The two countries
were only held together by the personal and dynastic
union which threatened to come to an end at that
very moment. Scotland had not, like England, passed
an Act of Settlement which eventually called the
Hanoverian branch to the throne, in case of Anne's
dying without issue ; but reserved to herself by a
special Act the right of settling the reversion to the
throne, in a way different from that fixed by the
English settlement. 2 This separation of the two
nations, verging on hostility up to the last moment,
was finally overcome by able statesmanship in 1707.

The Acts of 1800 are the two statutes 39 & 40 Geo.
III. c. 67, and 40 Geo. III. c. 38. They did not pass
without difficulty. Ireland, long treated as a conquered
country, had shortly before contrived, under cover of the
American War, to force the English Parliament into
giving her almost entire independence. In 1782 it had

1 The articles of union are described as a treaty in the Act
itself. [See preamble to 6 Anne, c. 11 (d).]

2 Act of Security, rejected in 1703, passed in 1704. [See
Burton, History of Scotland, viii., pp. 92, 99-101 (d).]



10 STUDIES IN CONSTITUTIONAL LAW [part i

been decided that Ireland should have her own laws and
her own courts of justice, and that her Parliament
should have the free use of its own initiative, which up
to that time had been subject to the approval of the
king's privy council.

These concessions might have caused most serious
embarrassment to the Government at Westminster.
The danger was manifest when during the short
period of George III.'s insanity the question of a
regency was raised. There was actually nothing to
prevent the Irish Parliament from choosing a regent,
and this regent need not have been the one chosen by
the English Parliament. In this case there would have
been two regents, one at Dublin and one in London.
The transition from two regents to two kings would have
been quickly accomplished. The union of the two
crowns, the only union which existed between the two
countries, was threatened, and the near neighbourhood
of the French Revolution increased the danger. In
1798 there was a formidable rebellion. Pitt acted
promptly ; before a few months had elapsed, by means
of money or honours he had bought over the majority
of the Irish Parliament, and in 1800 x it solemnly gave
up its national independence.

The objects and the consequences of the two Acts of
Union are shown by their very titles. The first made
England and Scotland into one State under the name
of Great Britain. The second united Ireland to Great

1 The Union with Ireland voted by the English Parliament,
July 2nd, 1800, came into force on January 1st, 1801. The
Union with Scotland came into force May 1st, 1707.



sect, ii] THE ENGLISH CONSTITUTION 11

Britain, and thus constituted the United Kingdom. The
practical form which this double consolidation takes is :
(1) the adoption by each of the two kingdoms thus
annexed to England and to Great Britain respectively
of one and the same dynasty, together with the settle-
ment of the Crown in perpetuity on the Protestant
line of the House of Hanover ; (2) the introduction of
a certain number of Scotch and Irish members into
the two Houses of the English Parliament.

The Parliament thus constituted legislates for the
whole of the United Kingdom; but the special laws
of Scotland and Ireland which existed previous to the
union remain in force as long as they are not repealed.
A considerable number of these statutes exist, and
they differ so considerably that Parliament finds it
necessary from time to time to make special Acts for
each kingdom. This is the reason why the following
phrase is so often met with at the beginning or end of
a statute : " This Act does not extend to Scotland or
Ireland." 1 This exception is not necessary for the Isle
of Man and the Channel Islands which are not parts
of- the United Kingdom. These islands are bound only
by statutes in which they are particularly named. 2

The most important of the other provisions of the
two Acts of Union relates to the Church.

The Episcopal Church in England is an Established
Church, that is to say, the Church which is in possession
of the parish, livings, benefices, tithes, and church-

1 There are several statutes which apply to Wales only.

2 [1 Steph. Comm. (9th ed.) p. 101. Or which by necessary im-
plication are intended to extend to the Channel Islands (d).]



12 STUDIES IN CONSTITUTIONAL LAW [part i

yards : the law regulates and sanctions its dogma, its
constitution, its liberties, its jurisdiction and its ritual :
the Queen takes an oath to maintain it, the Government
takes part in its administration by nominating high
dignitaries and certain incumbents of benefices. In
Scotland the Presbyterian Church is the official Church
recognized by the Act of 1707, consecrated by law,
and put in possession of the edifices and ecclesiastical


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