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44. Aspects of Continuity and of Change.—In pursuance of what has been said two observations, representing opposite aspects of the same truth, are pertinent. The first is that in respect to the principles and many of the practices of the English constitution it is pre-eminently true that, to employ a familiar phrase of Bishop Stubbs, the roots of the present lie deep in the past.[52] The second is that the English constitution is a living organism, so constantly undergoing modification that any description of it which may be attempted is likely to be subject to correction almost before it can be completed. At no time, as Mr. Freeman wrote, "has the tie between the present and the past been rent asunder; at no moment have Englishmen sat down to put together a wholly new constitution in obedience to some dazzling theory."[53] On the contrary, each step in the growth of the constitutional system has been the natural consequence of some earlier step. Great changes, it is true, have been wrought. To mention but the most obvious illustration, autocratic kingship has been replaced by a parliamentary government based upon a thoroughgoing political democracy. None the less, transitions have been regularly so gradual, deference to tradition so habitual, and the disposition to cling to ancient names and forms, even when the spirit had changed, so deep-seated, that the constitutional history of England presents elements of continuity which cannot be paralleled in any other country of Europe.

The letter of a written constitution may survive through many decades unchanged, as has that of the Italian Statuto of 1848, and as did that of the American constitution between 1804 and 1865. No constitutional system, however, long stands still, and least of all one of the English variety, in which there exists but little of even the formal rigidity arising from written texts. Having no fixed and orderly shape assigned it originally by some supreme authority, the constitution of the United Kingdom has retained throughout its history a notably large measure of flexibility. It is by no means to-day what it was fifty years ago; fifty years hence it will be by no means what it is to-day. In times past changes have been accompanied by violence, or, at least, by extraordinary manifestations of the national will. Nowadays they are introduced through the ordinary and peaceful processes of legislation, of judicial interpretation, and of administrative practice. Sometimes, as in the instance of the recent overhauling of the status of the House of Lords, they are accompanied by heated controversy and widespread public agitation. Not infrequently, however, they represent inevitable and unopposed amplifications of existing law or practice and are taken note of scarcely at all by the nation at large.

45. The Constituent Powers of Parliament.—The principal means by which changes are wrought in the English constitution to-day is that of parliamentary enactment. It is to be observed that in Great Britain there is not, nor has there ever been, any attempt to draw a line of distinction between powers that are constituent and powers that are legislative. All are vested alike in Parliament, and in respect to the processes of enactment, repeal, and revision there is no difference whatsoever between a measure affecting the fundamental principles of the governmental system and a statute pertaining to the commonest subject of ordinary law. "Our Parliament," observes Mr. Anson, "can make laws protecting wild birds or shell-fish, and with the same procedure could break the connection of Church and State, or give political power to two millions of citizens, and redistribute it among new constituencies."[54] The keystone of the law of the constitution is, indeed, the unqualified omnipotence which Parliament possesses in the spheres both of constitution-making and of ordinary legislation. In Parliament is embodied the supreme will of the nation; and although from time to time that will may declare itself in widely varying and even inconsistent ways, at any given moment its pronouncements are conclusive.

46. What are "Constitutional" Laws?—From this unrestricted competence of Parliament arise two highly important facts. One of them is that the distinction between "constitutional" laws, on the one hand, and ordinary statutes, on the other, is neither so obvious nor so essential as under most governmental systems. The concept, even, of constitutional law has developed but slowly among the English, and the phrase is as yet seldom employed in legal discussion. In the United States constitutional amendments or addenda, in so far at least as they assume written form, emanate from sources and by processes different from those that obtain in the enactment of ordinary statutes. In most continental nations the constituent process is at least somewhat different from that employed in the enactment of simple laws. And these specially devised processes are designed to emphasize the essential differentiation of the product from the handiwork of the ordinary legislative bodies. In Great Britain, however, there is, as has appeared, no difference of process, and the distinction between the law of the constitution and ordinary statute law is not infrequently all but impossible to trace. If it is to be traced at all, it must be derived from the circumstances of enactment. Some measures, e.g., the Habeas Corpus Act, the Act of Settlement, and the Parliament Act of 1911, relate obviously to the most fundamental and enduring aspects of state. Others just as clearly have to do with ephemeral and purely legislative concerns. Precisely where the line should be drawn between the two no man can say. It is, in the opinion of Mr. Bryce, because of this obstacle primarily that no attempt has been made to reduce the English constitution to the form of a single fundamental enactment.[55]

47. All Parts of the Constitution subject to Amendment.—In the second place, no portion whatsoever of the constitution is immune from amendment or abrogation at the hand of Parliament. So forcefully was the French observer De Tocqueville impressed with this fact that he went so far as to assert that there really is no such thing as an English constitution at all.[56] De Tocqueville wrote, however, from the point of view of one who conceives of a constitution as of necessity an "instrument of special sanctity, distinct in character from all other laws, and alterable only by a peculiar process, differing to a greater or less extent from the ordinary forms of legislation";[57] and this conception is recognized universally nowadays to be altogether inadequate. There is, in every proper sense, an English constitution. No small portion of it, indeed, is in written form. And it is worth observing that in practice there is tending to be established in England in our own day some measure of that distinction between constituent and legislative functions which obtains in other countries. There is no disposition to strip from Parliament its constituent powers; but the feeling is gaining ground that when fundamental and far-reaching innovations are contemplated action ought not to be taken until after there shall have been an appeal to the nation through the medium of a general election at which the desirability of the proposed changes shall be submitted as a clear issue. The principle, broadly stated, is that Parliament ought to exercise in any important matter its constituent powers only under the sanction of direct popular mandate. It was essentially in deference to this principle that the elections of December, 1910, turning squarely upon the issue of the reform of the House of Lords, were ordered. Thus, while in numerous continental countries the distinction between constituent and legislative functions is being nowadays somewhat relaxed, in Great Britain there is distinctly a tendency to establish in a measure a differentiation in this matter which long has been in practice non-existent.

In effect, every measure of Parliament, of whatsoever nature and under whatsoever circumstances enacted, is "constitutional," in the sense that it is legally valid and enforceable. When an Englishman asserts of a measure that it is unconstitutional he means only that it is inconsistent with a previous enactment, an established usage, the principles of international law, or the commonly accepted standards of morality. Such a measure, if passed in due form by Parliament, becomes an integral part of the law of the land, and as such will be enforced by the courts. There is no means by which it may be rendered of no effect, save repeal by the same or a succeeding parliament. In England, as in European countries generally, the judicial tribunals are endowed with no power to pass upon the constitutional validity of legislative acts. Every such act is ipso facto valid, whether it relates to the most trivial subject of ordinary legislation or to the organic arrangements of the state; and no person or body, aside from Parliament itself, possesses a right to override it or to set it aside.[58]