Constitution of England

“ The first type of constitution, in which the fundamental law is the creation of the powers wielding the sovereign authority of the State, is to be found in all of the monarchical States of Europe which have adopted, in whole or in part, a constitutional form of government. The free Constitution of England, so popular in character and so largely the product of custom, in a strict legal sense, belongs in this category as clearly as does the government of the Czar, the autocratic character of which has been modified by imperial concessions. ”

“ Evolutionary character of the English Constitution The English Constitution looks ever backward. Precedent lies behind precedent, law behind law, until fact shades off into legend and that into a common beginning, the Germanic character. Standing upon the eminence of 1689, one sees the Petition of Right, and then in deepening perspective, Confirmatio Cartarum and Magna Carta. The crisis of 1215 points to the Charter of Henry I, and behind that are the good laws of Edward the Confessor. ”

“ And when our kings have the same warrant as they had, whether it be to sit upon the throne of their fathers, or to destroy the house of the preceding sovereign, they will then, and not before, possess the crown of England by a right like theirs, immediately derived from heaven. The hereditary right, which the laws of England acknowlege, owes it's origin to the founders of our constitution, and to them only. ”

“ But an impartial and earnest investigator may still satisfy himself that England has a constitution, and that there is ample cause why she should cherish it. And by this it is meant that he will recognise and admire, in the history, the laws and the institutions of England, certain great leading principles, which have existed from the earliest period of our nationality down to the present time; expanding and adapting themselves to the progress of society and civilization, advancing and varying in development, but still essentially the same in substance and spirit. ”

“ If a new constitution was to be formed for the whole British dominions, and a supreme legislature coextensive with it, upon the general principles of the English constitution, an equal mixture of monarchy, aristocracy, and democracy, let us see what would be necessary. England has six millions of people, we will say; America had three. England has five hundred members in the house of commons, we will say; America must have two hundred and fifty. ”

“ But the constitution of England is so exceedingly complex, that the nation may suffer for years together without being able to discover in which part the fault lies, some will say in one and some in another, and every political physician will advise a different medicine. ”

“ In a free constitution, like that of which we speak, the prince and the people will often fall into situations where they seem to encroach, or actually do so, on the rights of one another. But it is never on slight grounds that the people will be prevailed upon to take arms against their chief magistrate. After all, had England been an absolute monarchy, Was it thence proper and just that it should remain in that situation? There are rights which it is impossible that men can either lose or forfeit. ”

“ Likewise a copy of the laws and Acts of this government, all which we have accordingly done. Humbly submitting ourselves to your Lordships' favorable constructions upon any thing that may therein be found amiss ; we being wholly ruled and governed by the good and wholesome [laws] of our Mother, the kingdom of England, as far as the constitution of our place will bear ; and we doubt not, but your Lordships are sensible that in these remote parts, we cannot in every punctilio follow the niceties of the laws of England ”

“ England has no written constitution, it is true; but it has an unwritten one, resting in the acknowledged, and frequently declared, privileges of Parliament and the people, to violate which in any material respect would produce a revolution in an hour. ”

“ No Englishman, who cherishes in his heart a love of freedom, and who is at all conversant with the history of his country from its earliest era down to the period of the revolution, can be insensible of the acquisitions procured at that eventful period,—of the accumulation of strength gained by the popular branch of the constitution, the limitation to the power of the crown, and the extension of the admitted and declared rights of the people. ”

“ But, happily for us of this island, the British constitution has long remained, and I trust will long continue, a standing exception to the truth of this observation. For, as with us the executive power of the laws is lodged in a single person, they have all the advantages of strength and dispatch, that are to be found in the most absolute monarchy; and, as the legislature of the kingdom is entrusted to three distinct powers, entirely independent of each other ”

“ So that the breaking of their government into many kingdoms, or the reuniting of their kingdoms into a monarchy, wrought little or no change amongst them touching laws. For, though we talk of the West-Saxon-law, the Mercian-law and the Dane-law, whereby the west parts of England, the middle parts, and those of Norfolk, Suffolk and the north, were severally governed; yet held they all an uniformity in substance, differing rather in their mulcts than in their canea; that is, in the quantity of fines and amerciaments, than in the course and frame of justice.” Relig. ”

“ The two great constitutional powers in England, the Crown and the Parliament, dating back as they did to early times, had often previously contended with each other, but had harmoniously combined in the religious struggle, and had both gained strength thereby; but towards the middle of the seventeenth century we see them first come into collision over ecclesiastical regulations, and then engage in a war for life and death respecting the constitution of the realm. ”

“ This it is which constitutes the leading difference between the nobility of Great Britain and those of other countries. With us they are permitted to have legislative power before they arrive at their higher stations; and as they are, like all the rest of mankind, to be improved by experience in the science of legislation as well as in every other science, our constitution affords them that opportunity by their being eligible to seats in this House from the time of their majority. ”

“ Even the one constitutional effort which was made, the establishment of a limited monarchy in France, was rendered nugatory by the fact, that the privileges were given as a grant and charter from the crown, and the [1371] first principle of the English Constitution—that power is from the people—ignored. ”

“ 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 (p. 047) 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 ”

“ A number of the Commons also repaired to the King, around whom was formed a company that professed to represent the State, and treated the acts of the Parliament at Westminster as lawless usurpations.
The Lords however did not join the King unconditionally. A mutual engagement was entered into, on the basis of maintaining the English constitution. The King promised the Lords to require from them no other obedience than was grounded on the laws, and to take under his protection every one who refused to obey the declarations and orders of the two Houses at Westminster. ”

“ D Sir Henry Maine: Popular Government (Am. ed.) , pp. 110, 111.
We possess, therefore, not a more suitable constitution than other countries, but a constitution which is perfectly definite and which is preserved by very formidable difficulties of amendment against inconsiderate change. The difference between our own case and that of Great Britain upon which we have most reason to congratulate ourselves is that here public opinion has definite criteria for its conservatism; whereas in England it has only shifting and uncertain precedent. In both countries there is the same respect for law. ”

“ England, which is called a monarchy, is in fact a complicated but efficient aristocracy. Scarcely one of the powers that is attributed to the king by the constitution, and which were in truth exercised by his predecessors, is possessed by the present monarch in fact. By the constitution, the king of England is supposed to form a balance between the nobles and the people, whereas, in truth, his utmost influence is limited to holding a balance between parties, and this only in cases of a nearly equal force between contending factions. ”

“ 12 I draw my idea of the form of government from a principle in nature, which no art can overturn, viz. that the more simple any thing is, the less liable it is to be disordered; and the easier repaired when disordered; and with this maxim in view, I offer a few remarks on the so much boasted constitution of England. ”

“ The plain fact of the matter is, all the Second Chambers in the world are directly modelled upon the House of Lords, that Old Man of the Sea whom England, the weary Titan, is now striving so hard to shake off her shoulders. The mother of Parliaments is responsible for every one of them. Senates and Upper Houses are just the result of irrational Anglomania. When constitutional government began to exist, men turned unanimously to the English Constitution as their model and pattern. ”

“ England has offered to the world the one conspicuous example of a long, continuous, and orderly development of political institutions. The early date at which the principle of self-government was established in England, the steady growth of the principle, the absence of civil dissension, and the preservation in the midst of change of so much of the old organization, have given its constitution a great influence over the ideas of politicians in other countries. ”

“ No such power does or can exist in England. Any one of the three powers of the State,—King, Lords, or Commons,—acting alone, may act illegally, the three acting together cannot act illegally. An act of Parliament is final; it may be repealed by the power which enacted it; it cannot be questioned by any other power. For in England there is no written constitution; the powers of Parliament,—of King, Lords, and Commons, acting together,—are literally boundless. But in your Union, it is not only possible that President, Senate, or House of Representatives, acting alone, may act illegally ”

“ Yea, and all other laws used in the realm, when they halt, or are defective in any point, they may, in every parliament, be set to rights. Whereupon it may be rightly concluded, that the laws of England are the best in the world, either actually or potentially, since they can easily be brought into act or being. To the performance whereof, as often as equity so requires, every King is bound by an oath solemnly taken at the time of receiving his crown. ”

“ Imitation of the British Constitution, without discriminating between forms and realities, has led Europe a strange dance. Great Britain can hardly be said to have a constitution in the proper sense of the term. ”

“ Every British subject born on the continent of America or in any other of the British dominions is by the law of God and nature, by the common law, and by act of Parliament (exclusive of all charters from the crown) entitled to all the natural, essential, inherent, and inseparable rights of our fellow subjects in Great Britain. Among those rights are the following, which it is humbly conceived no man or body of men, not excepting the Parliament, justly, equitably, and consistently with their own rights and the constitution can take away. ”

“ And in case any of the laws want to be mended or improved, the rules of the English parliaments do instruct us, That that may be done forthwith. Whereupon, the realm of England is always governed by the best laws, either in reality or in possibility. And besides, I conjecture that the doctrines that have been held forth in this dialogue, will be very useful to the Kings of England that shall come hereafter; since no body likes to govern by laws which they do not like. ”

“ Under one of which race of princes [k] , we find it declared in parliament, "that the law of the crown of England is, and always hath been, that the children of the king of England, whether born in England, or elsewhere, ought to bear the inheritance after the death of their ancestors. Which law, our sovereign lord the king, the prelates, earls, and barons, and other great men, together with all the commons, in parliament assembled, do approve and affirm for ever." ”

“ The British Parliament can do every thing they please. Their bill of rights is only an act of Parliament, which may be, at any time, altered or modified, without a violation of the constitution. The people of Great Britain have no constitution to control their legislature. ”

“ The Roman imposed his institutions with arms upon a conquered world; a willing world has adopted the institutions which had their original seat at Westminster. But the British Constitution now means little more than the omnipotence of the House of Commons. ”

“ Upon the Constitution, upon the pre-existing legal rights of the People, as understood in this country and in England, I have argued that this House is bound to revive the Petition under debate. ”

“ In modern English government, particularly in our own, one of the basic principles is that of the three departments, executive, legislative, and judicial; the Norman or Roman theory rather reposed all power in one; that is, in the sovereign, commonly, of course, the king, the others being theoretically his advisers or servants. In England, to-day, the real sovereign is the Parliament; the merest shadow of sovereignty is left to the executive, the king, and none whatever given the judicial branch. ”