PART I ORIGIN AND SPIRIT OF THE ENGLISH THE English Constitution is undoubtedly the first of all free constitutions in age, in importance, and in originality. It existed, with all its main features, four hundred years earlier than any other constitution. It has served more or less as the model for all existing constitutions. It contains the explanation, and embodies the true meaning, of more than one provision which its imitators have not always understood or have knowingly diverted from its first intention. No general or enlightened study of positive constitutional law can be undertaken without an exhaustive knowledge of this capital example.) But the course to be pursued in acquiring this knowledge cannot be compared to any ordinary path, and especially not to the broad highway which the French jurists have laid out by rule and line in the domain of their law. It ought rather to be compared in the words of Pascal to un chemin qui marche, or to a river whose moving surface glides away at one's feet, meandering in and out in endless curves, now seeming to disappear in a whirlpool, now almost lost to sight in the verdure. Before venturing upon this river you must be sure to take in the whole of its course from a distance, you must study the chain of mountains in which it rises, the affluents which swell its waters, the valleys in which it widens out, the sharp turns where it gets choked with sand, and the alluvial soil which it deposits on its banks. The most fertile of these preparatory studies, and that which should come first, is the analysis of the sources of the Constitution. Section i IN the year 1793 Hérault de Séchelles inquired at the Bibliothèque Nationale for a copy of the laws of Minos. Any one would make the same mistake now who hunted for the text of the English Constitution. There is no text but there are texts. These texts are of every age and have never been codified. Nor even taken all together do they contain nearly the whole of English constitutional law, the greater part of which is unwritten. On any question of importance it is necessary to refer, in almost every case, to several different laws whose dates are centuries apart, or to a series of precedents which go far back into history. For example, the constitution of the House of Lords is the result of several different statutes dated respectively 1707,1 1800,2 1829,3 1847, 1869,5 1876,6 of an opinion of the judges in 17827 and of innumerable customs. The duration of Parliament is determined by two Acts, one of the time of George I., one of 1867, without counting the usage, in virtue of which about a year of the statutory time is curtailed. Publicists and jurists have taken the trouble to search out and compare these texts and to write down their decisions, and the legislator has left this work to them, for no legislator has ever stamped any methodical digest of the constitutional provisions with his authority. This state of things is very far removed from the idea that the French have of a Constitution. For eighty years past French history shows us under this name one single document conceived all at once, promulgated on a given day, and embodying all the rights of government, and all the guarantees of liberty, in a series of connected chapters. Such are notably the French Constitutions of the revolutionary period from which all the rest take their form and origin; they are like mathematical demonstrations or scientific classifications 1 [6 Anne c. 11 (D).] 3 [10 Geo. IV. c. 7 (D).] 5 [32 & 33 Vict. c. 42 (D).] 2 6 [39 & 40 Geo. III. c. 67 (D).] 4 [10 & 11 Vict. c. 108 (D).] [39 & 40 Vict. c. 54 (D).] 7 [See Anson, Law and Custom of the Constitution, p. 185 (D).] It is in virtue of this opinion of 1782 that Scotch peers, created peers of the United Kingdom, are allowed to take their seats in the House of Lords. Up to that time they were excluded. [See as to statutes affecting the House of Lords, Index of the Statutes, Tit. "House of Lords" (D).] starting with an axiom as a heading; they are all works of art and logic. The French are accustomed to see nothing but the advantages of this system, and they are evident. The English have chiefly felt its inconveniences and dangers. Probably they have been influenced by two facts: first, that to publish a clear, methodical, and analytical work for all readers would be to invite perpetual competition in producing an improved version, to make one's self amenable to logic, i.e. to a tribunal from which the right of appeal is indefinite; secondly, that every systematic construction is tantamount to a promise to produce something complete and perfect which shall provide for and guard against every contingency, and this is to attempt an impossibility, so that the energy wanted to make such a Constitution, and the enthusiasm which it excites when first made, are only equalled by the cruel disappointments which follow as soon as it is put in force. So the English have left the different parts of their Constitution just where the wave of history had deposited them; they have not attempted to bring them together, to classify or complete them, or to make a consistent and coherent whole. This scattered Constitution gives no hold to sifters of texts and seekers after difficulties. It need not fear critics anxious to point out an omission, or theorists ready to denounce an antinomy. The necessities of politics are so complex; so many different interests are mixed up in them, so many opposing forces run counter to each other, that it is impossible to get together all the essential elements of a stable fabric and put them in their proper places, if the work is carried on under the eyes of a people whose taste is for homogeneous materials and a regular plan. The way to meet the difficulty is to arrange so that an ordinary spectator shall not be able to have any general view, such as would be given by codification. By this means only can you preserve the happy incoherences, the useful incongruities, the protecting contradictions which have such good reason for existing in institutions, viz. that they exist in the nature of things, and which, while they allow free play to all social forces, never allow any one of these forces room to work out of its alloted line, or to shake the foundations and walls of the whole fabric. This is the result which the English flatter themselves they have arrived at by the extraordinary dispersion of their constitutional texts, and they have always taken good care not to compromise the result in any way by attempting to form a code. |