by the Whigs.* But those who were agreed on either side of this great question were far from unanimous on all other political matters. There was nothing to prevent men who differed as to the general mode of determining the national policy from agreeing as to the substance of that policy in any particular case. There was nothing to prevent men who agreed upon any given political question from differing as to the general principles of administration. It happened indeed that the towns were the strongholds of the Whigs, while the country squires and the country clergy were devoted to the Crown. Hence the original basis of the combination tended to give a colouring to their opinions in other respects. But many good Whigs might well doubt the propriety of Catholic Emancipation; and many territorial magnates might look with little favour on the destruction of the rotten boroughs or the still more odious repeal of the corn laws. On the other hand, the intense veneration that the English feel towards their King was shared by many an ardent abolitionist and many a staunch freetrader. Even the great Chatham himself, so liberal in his views, so hostile to secret influence, so proud to other men, prostrated himself with almost eastern abasement before the presence of Royalty.

by law of

§ 8. If it be asked what is the form under which the difference of our modern and our ancient Constitution preConstitution sents itself, the answer must be sought in the is governed laws which regulate organic development. The evolution. changes which have taken place in our Constitution are the results of the natural process of evolution. Our Government, like that of most other European countries, was originally vested in a King in Council. The

*See Sir G. C. Lewis's Administrations of Great Britain, 88, note, and the passage from Mr. Allen's article in the Edinburgh Review there quoted.

King personally transacted every description of business, legislative, judicial, and administrative. In every description of business his councils gave him their assistance. But these councils gradually presented numerous differentiations, and a series of organs distinct but mutually dependent were ultimately developed. Each organ in this matured system, as has been already seen, has its own function. Each function finds its appropriate organ. The function of legislation is no longer confused with the executive function; the judiciary is distinct from both. Within each of these great divisions, various subdivisions are included. The legislature comprises its two Houses. The courts of justice are very numerous; the different departments of the public service are still more numerous; and each of them has its separate organization. The efficacy of the system and the complexity of its organization proceed simultaneously, since their relation is causal.

In strong contrast with this spontaneous evolution, in which a homogeneous and simple body is by a series of differentiations and integrations transmuted into a heterogeneous and complex body, stands the system of Imperialism. It belongs to a lower political type than the Constitution of England. In most cases it has been formed by the inverse process to that of ours. Its method is not progress, but regress. In the great European model of such governments, the empire of the Cæsars, the functions of at least seven independent and distinct offices were absorbed into the monarchical system, and assimilated to its nature.* Augustus did not create for himself any new dignity; but he carefully brought together all the great offices of the republic-the military command of the Imperator, the moral dignity of the Princeps, the civil

* See Dean Merivale's History of the Romans under the Empire, c. 32.

power of the Consulate, both in the city and the provinces, the vast and various authority of the Pro-consulate of the Censure and of the Tribunate, the religious headship of the Supreme Pontificate. All these republican authorities he freed from restriction, whether arising from the period of enjoyment or from the persons who were to share them. Thus a simple despotism for a great Empire was constructed out of the small but highly-organized city state. Within its own limits and according to its own type that despotism was in time elaborately organized. But however complete its administrative arrangements may have been, it retained to the last its original structural simplicity. The Emperor remained actually and not merely typically the Sovereign, and no further organs were provided for the expression of the Imperial will. I need not point out how a similar process has taken place in France, and how all attempts at national organization have hitherto failed to permanently produce in that country any higher model of government than one constructed on the type of that of the Cæsars.

CHAPTER II.

35

THE LEGAL EXPRESSION OF THE ROYAL WILL IN
LEGISLATION.

our ancestors

§ 1. It is not easy for us, so altered are our circumstances, to enter into the feelings with which our ancestors regarded Affection of the Common Law. To them those "ancient for the Com- judgments of the just "* "* represented the immon Law. memorial customs of their race, the old familiar principles under which they and their fathers had lived and by which their property and their security were assured. This traditionary law was rendered still dearer to them by the subtle innovations both of the Norman lawyers in favour of the Crown, and of the canonists in favour of the Church. On the one side the forest laws or the laws of the Court of Chivalry or other peculiar courts infringed upon the free customs of the land; on the other side the Church unceasingly strove to extend its own system and to introduce into general practice the doctrines of the Civil Law. But however willing the elder jurists of our country were to derive reflected light from Roman jurisprudence, they knew too well the political tendencies of the lawyers of the Antonines and of the codes of Theodosius and Justinian to admit for an instant the binding authority of that

Bracton.

legislation. The unlearned but free-born tenants of the Crown had no idea of submitting to a heavier yoke than their fathers were accustomed to bear; and in their general contentment with the present and their ignorance of the cause of their comparative prosperity resolutely resisted every change. Thus we find the English when oppressed by Norman exactions clamouring for the restoration of the good laws of King Edward. Thus we find the sturdy refusal of the barons at Merton to permit on a question of status the laws of England to be changed. Thus we know that in the times of the Third Edward and of his grandson the addition of a new law was regarded as a matter of the gravest nature, not to be lightly asked or heedlessly granted. At a still later period, the language of our lawyers towards their loved jurisprudence breathes a spirit of the deepest reverence and of the tenderest affection. The Common Law, as Lord Coke tells us,† is the artificial perfection of reason. It is synonymous with justice and right. It is the golden. mete wand and measure to try the causes of his subjects, and it protects His Majesty in safety and peace. It is the best birthright of the nobles, and the principal royalty and right of the Crown. It is the surest sanctuary that a man can take, and the strongest fortress to protect the weakest of all. It is the safest and faithfulest pillar and bulwark of the commonweal, which although sometimes altered or perverted hath ever been with great applause for avoiding of many mischiefs restored again. It is a nursing father that corrects only what is amiss and preserves the rest. It is the best and most common birthright that the subject has for the safeguard, not only of his goods lands and revenues, but of his wife and children.

*Hallam, Middle Ages, iii. 49.

+ See 2 Inst. 56, 98; 3 Rep. preface xviii. ; 12 Rep. 76.