or the various developments of co-operation and of exchange, the principles of justice are, sometimes with greater sometimes with less success, spontaneously developed in the social state. In our country the course of this evolution has met with little disturbance. There, while the mechanical contrivances of political inventors have crumbled away in the hands of the projectors, the goodly tree of British freedom, selecting from the kindly soil and assimilating its fit nutriment, still increases its stately bulk, and still extends its unequalled development. Outliving the storms and the vicissitudes of centuries, deeply rooted in the habits and the affections of the people, it spreads far and wide its hospitable shade; and, like that typical mustard tree in whose over-shadowing branches the fowls of the air find shelter, it affords in the evil days to many a weary wing and many a scared and fluttering guest a secure asylum and an inviolable home. tions. This conception of the Constitution as forming a part of the Common Law not only accounts for its peculiar form, but is essential in determining its relation to the Constitution belongs to other parts of our legal system. Our political law of political condi- usages and powers have been too often regarded as something apart from and above the law, and not as co-ordinated with it. In the days of the Stuarts learned divines taught in their pulpits and their universities that the authority of the King was a direct emanation from heaven, giving, supporting, and maintaining the law, but not controlled or judged by it. Judges have not been slow at times to magnify the transcendent powers of Parliament, and their own inability to deal with questions of parliamentary law. The House of Commons even in the present reign has claimed, though happily in vain, a supremacy not short of the divine right of Charles or of James. Nor have there been wanting amongst us those ominous voices, so familiar to the ears of Frenchmen and of Americans, which declare-as the Athenians, in their hour of passion and when hurrying to their downfall, declared that the laws are the laws not of the monarch but of the people, and that the people may do what they like with their own. But no such doctrines are known to English law. In that noble system the law of political conditions spontaneously finds its appropriate place. The status of the Crown and the status of either House of Parliament are as clearly defined as the status of a corporation or of an ordinary citizen. From the days of Bracton, who declared that Lex facit quod ipse sit rex, to the days of Lord Denman, who ruled that there is no body in this country which is not subject to the law, the principle has been unchanged. The prerogative of the Crown denotes those powers, immunities, and privileges which the Common Law gives to the monarch. The lex et consuetudo Parliamenti is that portion of the Common Law which ascertains the rights and duties, the powers and the immunities, of the Houses of Parliament and of their several members. But every power and every privilege, to whomsoever it belongs, is given by the law, is exercised in conformity with the law, and by the law may be either extended or extinguished. Unity of English political history. Apart from any consideration either as to its form or its position, our Constitutional Law derives another advantage from our conscious and continued reference of it to the Common Law. As this connection both explains the form in which our Constitution has descended to us, and assigns to it its fitting place in our polity; so also it accounts for the remarkable unity by which our political history is characterized. Few historical subjects, indeed, present so marvellous a tale or excite so deep an interest. Our freedom has, in the language of one of its greatest expounders,* "its pedigree and its illustrating ancestors; it has its bearings and its ensigns armorial; it has its gallery of portraits, its monumental inscriptions, its records, evidences, and titles." The Constitution of England under Queen Victoria is, indeed, the very Constitution under which the Confessor ruled and which the Conqueror swore to obey. There is between the two states the same resemblance that there is between the infant and the man, between the seedling and the full-grown tree. But it is not more certain that the stateliest oak that now graces the green fields of England was once an acorn, or that the bearded and ambitious warrior, in the full vigour of his strength, once lay a helpless infant mewling in his nurse's arms, than it is that this wondrous Constitution, so old, yet stretching forward (if Heaven pleases) to such indefinite futurity, is the selfsame organism of which we may trace the rudiments in the laws of Ina. The proof of this assertion is neither obscure nor difficult. No person will contend that the present Constitution of England is different from that which was reformed in 1832. No organic change had taken place between the Reform Act and the Restoration. But the Bill of Rights made only two important innovations. It abolished the Royal power of suspending laws. or dispensing with them; and it prohibited the maintenance, without the consent of Parliament, of a standing army. In all other respects this great measure was essentially a declaratory enactment. Even in the two instances in which it produced a change, it professed, although probably erroneously, the same character. Change was not its object it merely sought to guard against the improper exercise of certain lawful powers of the Crown. With these * Burke's Works, iv. 178. two exceptions, it made no change in our constitutional law. It took away nothing; it added nothing; it altered nothing. In like manner, the Petition of Rights and the great reforms of the Long Parliament in its early days were all merely negative. The work of the great popular leaders of that day was a work of restoration, not of change. They desired to remove the unsightly excrescences of our Constitution, the gilding and the plaster with which profane and inartistic hands had deformed the grand old temple of liberty that lay sullied but uninjured beneath. Not a stone of the original structure did they wish to move; not a fragment of the time-honoured edifice that they did not regard with affectionate veneration and pious solicitude. But the Star Chamber and the High Commission, the Council of the North and the Council of Wales, the lettres de cachèt, the unlawful taxes, the forced loans, the penal billeting of soldiers, these were claims to which England had never tamely submitted under the Plantagenets, and which she was not likely to endure under the Stuarts. If we refer to the Acts which the leaders of the Commons cited in that struggle, if we look back through four centuries, to the days of the first Edward, to the Charter that Bigod and De Bohun won, and to the yet more memorable contest at Runingmede, we shall find by the unanimous and repeated declaration of our Books that the Great Charter itself is but declaratory of the Common Law. If we retrace the course of our history through another eventful century and a half to the period at which the final element was added to our complex nationality, we find this same Common Law in full vigour and undisputed supremacy. Ere he ascended the throne to which "the great assize of God's judgment in battle" tried on the field of Senlac had established his right, the Conqueror himself in all the power of his victory swore, as his predecessors had sworn, to hold by the ancient laws and to confirm the old liberties. That oath which the Norman Duke then swore was the same oath which our records * tell us had been sworn by Ethelred; and that oath of Æthelred is in effect the same coronation oath which all subsequent sovereigns have taken. terms only were rendered more precise at the Revolution of 1688, but the substance continues unchanged to this day. Its We thus see the explanation of a fact in our parliamentary history which has often excited comment. In all our great constitutional struggles the question Influence of law on Eng has been invariably argued on either side as a lish politics. question of dry law. On such occasions large views of public policy have usually been put aside. It has been the uniform policy of our Constitution to claim and assert our liberties as an entailed inheritance derived by us from our forefathers and to be transmitted to our posterity; as an estate specially belonging to the people of this kingdom, without any reference whatever to any other more general or prior right. As Lord Macaulay has observed, in the great debates of our history there is not a word about Timoleon or Aristogeiton, about Brutus the elder or Brutus the younger. When the Lords and the Commons held their famous Conference respecting the vacancy of James the Second's throne, and the fate of England was trembling in the balance, Somers and Nottingham disputed as if they were arguing a demurrer. Eighty years earlier Bacon and Hakewell in the House of Commons argued in the same spirit the great grievance of the impositions. Nearly four centuries before, in the hour of their distrust and disquiet, every doubt was quelled and * See Kemble, Saxons in England, ii. 35. Hist. Eng., ii. 660. |