ing the Lords. The especial force of Mr. Dicey's contention is seen in the reflection that not only is royal prerogative democratic in its character, but it is more democratic than is the power not covered by the royal prerogative, in that it may be exercised without the check of the House of Lords.

No better illustration can be found of the teaching that the English Constitution rests upon theory. Royal prerogative strengthens the Democracy only upon the theory that the English voters, through the choice of members of the House of Commons, govern England. The theory assumes that the Cabinet is at all times responsive to the wishes of the House and that the House is at all times responsive to the will of the nation. Royal prerogative is democratic only when it is used to overcome the resistance of an undemocratic House of Lords. There have been in the past kings and cabinets who used royal prerogative to overcome resistance in the House of Commons and to rule without reference to the will of the nation. Circumstances might arise in which the same thing would happen again. In that case royal prerogative would be anything but democratic. What Mr. Dicey says of prerogative is true so long as a certain theory of the Constitution works in a certain way. His contention is that royal prerogative strengthens the leading factor in the nation. At a time when kings were dominant, prerogative strengthened the Crown. When the nobles held the chief power, prerogative strengthened the House of Lords, and as the Commons and the voting constituencies gain the leading place, prerogative gives additional force to the Democracy.

We are now prepared to reconcile the English Constitution as seen from the standpoint of English law with the same Constitution as seen from the standpoint of the facts of government, and we do this by saying that the

forms of law require a series of statements which at the present time are not true. Yet it would be a great mistake to suppose that because the forms of law are in conflict with the actual facts of the Constitution, these forms have therefore no effect upon the actual Constitution. One very marked effect is the tendency which is thus produced to prevent the real Constitution from being reduced to definite written form. When one law contradicts another, it is not possible, or at least it would not be convenient, to put them both into definite written and authoritative form. So long as the forms of law represent the Queen as summoning, directing, dismissing or dissolving the action of Parliament, it would appear inconsistent were there enacted a definite and explicit law placing the management and direction of Parliament in the hands of a legally constituted Cabinet. But so long as these forms are traversed by a series of mere understandings which have never found expression in any official or authoritative way, the inconsistency is not so troublesome. It would make sad havoc with many legal customs and forms of English law if the real Constitution were put into definite and authoritative form; and the English Constitution reduced to definite and authoritative form would really be a very different Constitution from what it now is. A constitution which is made by gradually coming, through contention and conflict, to understandings which contradict the forms of law, is unique in its character. If you reduce such a constitution to writing, you destroy its essential character and put an entirely different one in its place.

The startling character of the English democratic Constitution as compared with the cautiously constructed American Constitution is noticed in a preceding chapter, and the statement is there made that the English themselves never deliberately formed such a constitution. We

have now reached the most important fact in explanation. The ancient theory of the Constitution made the Monarch the centre of power and authority. Around the Monarch all the high governmental agencies, executive, legislative, and judicial, were grouped. The forms of law are still in accord with this ancient monarchical Constitution. The modern democratic Constitution has been formed by a series of acts and understandings which have, in the main, left the ancient forms unchanged. Before the English can have effective legal checks in their democratic Constitution they will be compelled to recognize in their forms of law the fact that such a thing as a Democracy exists. A habit, or an understanding, may be a satisfactory or an effectual check, but it is not a legal check. It is exceedingly difficult to conduct a protracted discussion upon the English Constitution without making statements which appear contradictory. The statement just made seems to imply that the present English Constitution is without legal checks; yet I have several times stated that the House of Lords is one such check upon the House of Commons. As regards non-Cabinet legislative business, the Lords have a free hand, and are often an effectual check upon the Commons.

These contradictions inhere in the nature of the English Constitution. Its legal checks contradict the democratic theory. Hence we are driven to maintain that the checks do not exist, or that the Constitution lacks so much of being democratic, or that the people have approved of a thing about which they have never been consulted.

For the sake of illustration by contrast let us notice the corresponding institutions in the United States. The Senate is a legal check upon the House of Representatives, and these are both agencies of the sovereign people. By the creation of these agencies the people have deliber

F

ately put a check upon themselves. They have done it by clearly expressed constitutional law. It is difficult to see how they could have done it by a mere understanding. We will suppose now that the people wish to do something in respect to which the Senate stands in their way. For the time being they are not only checked, but they are checkmated. They cannot change the Constitution without the consent of the Senate. They must bide their time and depend upon the slow method of getting new senators by an indirect process. The people here recognize themselves as sovereign, and have checked themselves in such a multitude of ways as almost to destroy all ideas of sovereignty. The English have clung to the forms of law which made the Monarch sovereign, while they have formed a democratic government which is almost entirely devoid of legal checks; and the highest reach of the unchecked Democracy is shown in the attainment by a democratic Cabinet of a wide range of power which bears the name "Royal Prerogative.'

We have now to consider what are the relations of the Monarch to the conduct of governmental business. It would be looked upon as highly improper and unconstitutional for the Queen to attempt to influence the judges in the decision of cases at law. It has come to be quite out of harmony with the Constitution for the Queen to attempt directly to influence the action of Parliament. Parliament, as we have seen, is a place for party strife, and the Queen is not expected to be a partisan. But it is not in conflict with the Constitution for the Queen to attempt to influence the Ministers in matters of administration. As has already been explained, the dominant element in the Executive is the Cabinet, and the Queen is not a member of the Cabinet, though she holds a close official relation to the chief Ministerial offi

cers who compose it. "To state the matter shortly,"

says Mr. Bagehot, "the Sovereign has, under a constitutional monarchy such as ours, three rights, the right to be consulted, the right to encourage, the right to warn. And a king of great sense and sagacity would want no others. He would find that his having no others would enable him to use these with a singular effect. He would say to his minister: The responsibility of these measures is upon you. Whatever you think best must be done. Whatever you think best shall have my full and effectual support. But you will observe that for this reason and that reason what you propose to do is bad; for this reason and that reason what you do not propose to do is better. I do not oppose, it is my duty not to oppose; but observe that I warn.' Suppose the King be right, and to have what kings often have, the gift of effectual expression, he could not help moving his Minister. He might not always turn his course, but he would always trouble his mind."1 It is not safe to accept this description as setting forth the style of intercourse which actually takes place between the Monarch and the Minister without considerable modification, but it indicates what is deemed fit in the attitude of the Monarch towards the Minister.

Notice again how at variance are the forms of law and the requirements of the Constitution. According to the forms of law the Monarch is the executive, the Ministers are simply his advisers. According to the Constitution the Ministers are the responsible Executive, while the Monarch has simply the right to be informed as to what they intend to do, and to give advice. It is not necessary that the Ministers should follow his advice. In one respect the Sovereign's case is not different from that of other citizens. It is regarded as the especial business of the Opposition in the House of Commons to warn and

1 The English Constitution, p. 143.