English Constitution

“ 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. ”

“ A work upon the English Constitution, therefore, brings us naturally to the direct consideration of the structure and practical working of English political institutions and social life.
"The American Constitution was framed by a convention; the English Constitution is a growth of centuries. Books written upon the two Constitutions are, therefore, likely to differ, much as a manual of carpentry differs from a hand-book of physiology; the former belonging rather to the province of constructive art, and the latter to that of natural science. ”

“ The theory of the English constitution, according to many high authorities, was that three independent powers, the sovereign, the nobility, and the commons, ought constantly to act as checks on each other. ”

“ The development of the English Constitution was of necessity slow, because a quick one would have destroyed the executive and killed the State, and because the most numerous classes, who changed very little, were not prepared for any catastrophic change in our institutions. ”

“ It is a good step gained, when it is proved that the English constitution, acknowledged to be better than all which have preceded it, is only better, in proportion as it has approached nearer to this distribution of powers. ”

“ That we claim all the benefits secured to the subject by the English Constitution, and particularly that inestimable one of Trial by Jury.
That we hold it essential to English liberty, that no man be condemned unheard, or punished for supposed offences, without having an opportunity of making his defence.
That we think the Legislature of Great Britain is not authorized by the Constitution to establish a Religion fraught with sanguinary and impious tenets, or to erect an arbitrary form of Government in any quarter of the globe. These rights we, as well as you, deem sacred ”

“ While in the study of the American Constitution we are occupied with the 'intentions of the framers,' the 'rules of construction,' and the lore of lawyers, to get at the sense of a printed tract, the study of the English Constitution introduces us more directly to facts and phenomena, or the laws of political activity, social change, and national growth. ”

“ But the English have been too jealous of changing their practice, even for the better. All the writers on the English constitution agree, that any Parliament can change or amend every part of it; yet in practice, the idea of an unalterable constitution has had too much influence in preventing a reform in their representation. ”

“ Now, although the English have not any written constitution, all foreigners have hitherto been accustomed to believe in the dignity and permanence of the House of Lords, and they have believed it to be a part of that great reality which was called La Constitution Anglaise. ”

“ Representation—'the happiest discovery of human wisdom'—is the vital principle of the English Constitution, inasmuch as it is that alone which, in a State too extensive for personal legislation, constitutes Political Liberty.
"2. Political Liberty being a common right, Representation co-extensive with direct Taxation ought, with all practicable equality, to be fairly and honestly distributed throughout the community; the facility of which cannot be denied.
"3. The constitutional duration of a Parliament cannot exceed one year." ”

“ They re-organized society by naturally, though slowly, developing those numerous intermediary institutions—guilds, corporations, trial by jury, the judiciary, and representation of interests, orders, guilds and corporations, not of individual heads, in Parliament—all which, as a living, harmonious system, constitute, or did constitute, the English Constitution, and were essentially reproduced in the Constitution of the United States, and which wonderfully distinguish constitutionalism from absolutism. ”

“ 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. ”

“ His reasonable spirit runs through all the proceedings of the great convention that gave us the Constitution, and that noble instrument191 seems the product of character like his. For all it is so American in its content, it is in its method a thoroughly English production, so full is it of old principles, so conservative of experience, so carefully compounded of compromises, of concessions made and accepted. Such men are of a stock so fine as to need no titles to make it noble, and yet so old and so distinguished as actually to bear the chief titles of English liberty. ”

“ A whole code of political maxims, universally acknowledged in theory, universally carried out in practice, has grown up, without leaving among the formal acts of our legislature any trace of the steps by which it grew. Up to the end of the seventeenth century, we may fairly say that no distinction could be drawn between the Constitution and the Law. The prerogative of the Crown, the privilege113 of Parliament, the liberty of the subject, might not always be clearly defined on every point. ”

“ Other legal scholars have contended that long-standing and commonly accepted principles incorporated into English law by statute over several centuries, even if they did not merely “declare” already-existing English common law, actually modified the corpus of the common law to incorporate such principles, and that this body of law was the one known to the framers, such that the provisions of the Constitution must be interpreted in that light. ”

“ The high intellectual cultivation of the English is by no means confined to this negative philosophy, but is of a very peculiar character, and like the British Constitution, combines in the most singular manner the most heterogeneous elements. For although the British Constitution is generally considered as the fashionable model for our times, and in one respect may indeed be so considered ”

“ In tracing the steps by which our Constitution has grown into its present shape, I shall try specially to show in how many cases the best acts of modern legislation have been, wittingly or unwittingly, a falling back on the principles of our earliest times.59 In my first chapter I tried to show how our fathers brought with them into the Isle of Britain those primæval institutions which were common to them with the whole Teutonic race. ”

“ In one the supreme determining power is upon all points the same; in the other, that ultimate power is different upon different points—now resides in one part of the Constitution and now in another. The Americans thought that they were imitating the English in making their Constitution upon the last principle—in having one ultimate authority for one sort of matter, and another for another sort. ”

“ No Reformer who understood the general character of the English people, and who had studied the development of political growth in England, could have gone more prudently and wisely about the work of bringing the existing Constitution into harmony with the altering conditions, and removing out of its way all difficulties that might interfere with its gradual and safe development in the future. ”

“ He perceives that the British Constitution, though unwritten, is as effective as ours and commands obedience fully as much as ours, and that both appeal to a certain ingrained legal sense, common to all the English-speaking peoples. These peoples do not really have revolutions. ”

“ But I would again point out that, while the growth of English institutions has thus gone on almost in obedience to a natural law, the wisdom, the foresight, the patriotism, of individual statesmen is never to be put out of our reckoning. There was a given state of things, and some man had keenness of sight to see what was the right thing to do in that state of things. Our Constitution has no founder ”

“ I thought it had been considered a march forward, a step of progress, an evidence of improvement in English legislation, when it abandoned Norman French and law Latin, and resorted to the mother tongue; and especially it should be so, when we are making constitutions for American people of English descent, and who speak the English tongue. A constitution is for the millions, and the millions should be able to understand it. ”

“ That the statutes, said the partisans of the commons, which secure English liberty, are not become obsolete, appears hence, that the English have ever been free, and have ever been governed by law and a limited constitution. Privileges in particular, which are founded on the Great Charter, must always remain in force, because derived from a source of never-failing authority, regarded in all ages as the most sacred contract between king and people. ”

“ All claimed to set forth, with new strength, it might be, and with new clearness, those rights of Englishmen which were already old. In all our great political struggles the voice of Englishmen has never called for the assertion of new principles, for the enactment of new laws ”

“ The conception of a constitution as a law of superior obligation, which imposes legal restraints upon the action of the legislature, is really confined to a very few countries, chiefly to America and the English self-governing colonies. ”

“ To state the matter shortly, 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. ”

“ See Norman Conquest, i. 95. The primitive Constitution lasted longest at the other end of the Empire, in170 Friesland. See Eichhorn, Deutsche Staats-und Rechtsgeschichte, ii. 265, iii. 158. Zöpfl, Geschichte der deutschen Rechtsquellen, p. 154.
(25) Τὰ ἀρχαῖα ἤθη κρατείτω is an ecclesiastical maxim; rightly understood, it is just as true in politics.
(26) See my papers on “the Origin of the English Nation” and “the Alleged Permanence of Roman Civilization in England” in Macmillan’s Magazine, 1870.
(27) See Schmid, Gesetze der Angel-Sachsen, on the words “wealh” and “wylne.” ”

“ Is not England trying with all her might to atone for the wrong she has done? Does not the constitution of the United States, and the constitution of each individual State, make provision for such changes as shall tend to the public good? ”

“ But, gentlemen, the Constitution of England is not merely a Constitution in State, it is a Constitution in Church and State. The wisest Sovereigns and statesmen have ever been anxious to connect authority with religion — some to increase their power, some, perhaps, to mitigate its exercise. ”

“ 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. ”

“ Speaker,—We have now discovered, at the close of the eighteenth century, that the Constitution of England, which for a series of ages had been the proud distinction of this country, always the admiration and sometimes the envy of the wise and learned in every other nation,—we have discovered that this boasted Constitution, in the most boasted part of it, is a gross imposition upon the understanding of mankind, an insult to their feelings, and acting by contrivances destructive to the best and most valuable interests of the people. ”

“ 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. ”

“ But it must not be forgotten in construing our constitutions that in many particulars they are but the legitimate successors of the great charters of English liberty whose provisions declaratory of the rights of the subject have acquired a well understood meaning which the people must be supposed to have had in view in adopting them. ”

“ England has been called, and truly, "the mother of constitutions and the constitutional system." Our principles of national and individual liberty are so inseparable from true government that where they are not found, a real, beneficial, political institution does not exist. ”