UNIV. OF CALIFORNIA

THE RISE AND PROGRESS

OF THE

ENGLISH CONSTITUTION.

CHAPTER I.

Meaning of the term "English Constitution."-Is there an English Constitution ?-Primary Principles of the Constitution.-Magna Carta, the Petition of Right, and the Bill of Rights form its Code. -General Ignorance of these Statutes.-Scope of the present Work.-Constitutional Law of Progress.-How to learn the Constitution.-Classification of Constitutional Functions.-Importance of studying leading Scenes in History.-History of the Elements of our Nation, why material.-Exclusion of Party Politics.

WHATEVER may be thought of the execution of this work, I have little fear of being censured, so far as regards the design. An attempt to arrange in a simple form, and to place before the public, in a few easily accessible pages, the great principles of our Constitution,-to prove their antiquity, to illustrate their development, and to point out their enduring value, will surely, in times like the present, not be discouraged as blamable; and, in the strange dearth of really useful treatises on this important topic, it will hardly be slighted as superfluous.

It is, in the first place, necessary to have a clear under

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the

standing of what we mean when we talk about English Constitution." Few terms in our language have been more laxly employed: and so uncertain is the knowledge, so very vague are the ideas which many have of the constitution of their country, that when the opponent of a particular measure or a particular system of policy cries out that it is unconstitutional, the complaint generally means little more than that the matter so denounced is something which the speaker dislikes.

Still the term, "the English Constitution," is susceptible of full and accurate explanation; though it may not be easy to set it lucidly forth, without first investigating the archæology of our history, rather more deeply than may suit hasty talkers and superficial thinkers, but with no larger expenditure of time and labour than every member of a great and free State ought gladly to bestow, in order that he may rightly comprehend and appreciate the polity and the laws, in which, and by which he lives, and acts, and has his civic being.

Some furious Jacobins, at the close of the last century, used to clamour that there was no such thing as the English Constitution, because it could not be produced in full written form, like that of the United States, or like those with which Sièyes crammed the pigeon-holes of his bureau, to suit the varying phases of the first years of the French Revolution. And, as the trade of constitution-mongering has again been thriving on the Continent, perhaps some, who have seen other nations providing themselves with elaborate formulas of social and political rights and processes, in all the paraphernalia of article, section, supplement, and proviso, while England is content with her old statute-book, and old traditional government and laws, may think that the term "English Constitution"

means nothing beyond the no-meaning of so designating the actual state of things in the country at the particular time when the phrase is used, and which, of course, is liable to vary with the varying hour.

In order to meet these cavils, there is no occasion to resort to the strange dogma of Burke, that our ancestors, at the Revolution of 1688, bound, and had a right to bind, both themselves and their posterity to perpetual adherence to the exact order of things then established: nor need we rely solely on the eulogies, which foreign as well as native writers, a hundred years ago, used to heap upon our system of government. Those panegyrics, whether exaggerated or not, were to a great extent supported by reasonings and comparisons, which are now wholly inapplicable. But, without propping his political creed on them, an impartial and earnest investigator may still remain convinced 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, and fundamental political rules, which have existed from the earliest periods 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 in spirit.

These great primeval and enduring principles are the principles of the English Constitution. And we are not obliged to learn them from imperfect evidences or precarious speculations; for they are imperishably recorded in the Great Charter, and in the Charters and Statutes connected with and confirmatory of Magna Carta. In Magna Carta itself, that is to say, in a solemn instrument deli

berately agreed on by the king, the prelates, the great barons, the gentry, the burghers, the yeomanry, and all the freemen of the realm, at an epoch which we have a right to consider the commencement of our nationality, and in the statute entitled Confirmatio Cartarum, which is to be read as a supplement to Magna Carta, we can trace these great principles, some in the germ, some more fully revealed. And thus, at the very dawn of the history of the present English nation, we behold the foundations of our great political institutions imperishably laid.

These great primeval and enduring principles of our Constitution are as follows:

The government of the country by an hereditary sovereign, ruling with limited powers, and bound to summon and consult a parliament, comprising hereditary peers and elective representatives of the commons.

That the subject's money shall not be taken by the sovereign, unless with the subject's consent, expressed by his representatives in parliament.

That no man be arbitrarily fined or imprisoned, or in any way punished except after a lawful trial.

Trial by jury.

That justice shall not be sold or delayed.

These great constitutional principles can all be proved, either by express terms, or by fair implication, from Magna Carta, and its above-mentioned supplement.

Their vigorous development was aided and attested in many subsequent statutes, especially in the Petition of Right and the Bill of Rights; in each of which the English nation, at a solemn crisis, solemnly declared its rights, and solemnly acknowledged its obligations:-two enactments which deserve to be cited, not as ordinary laws, but as