The British Constitution. Delivered Before The Georgia Bar Association, At Its Annual Session In Atlanta, Georgia, by John W. Park. (Published 1885 in “Report of the Annual Session of the Georgia Bar Association” By Georgia Bar Association, John Wesley Akin, Orville Augustus Park)
Mr, President and Gentlemen:
There are few subjects upon which more crude and incorrect opinions are entertained by the average American than that of the English government and the British Constitution. Justice proud of the free institutions of his own country, and cherishing the traditional prejudices of our revolutionary period, he is prone to regard the English government as a tyranny, and her monarch as a despot. Familiar with the idea of a written Constitution as the fundamental law of a republican state, he conceives that a government without such a Constitution or with an unwritten Constitution, virtually has none at all and is destitute of fundamental laws.
The Declaration of Independence, that terrible indictment against George III., is a convincing argument to him that the King, at least, was a tyrant. But how often are indictments preferred against the innocent! That instrument was framed to justify the authors of it in the opinions of their countrymen and of posterity; and was intended to present the cause of the colonies to the world in a way that would at once command attention, enlist sympathy and call forth admiration. Pardonable grounds, truly, for somewhat of exaggeration in so momentous a state paper!
Besides, this immortal paper, with laborious ability, heaps charge after charge upon the head of the King, ignoring alike his Ministers and his Parliaments. Whereas, by the theory of that government, the former were responsible for whatever was wrong in the executive administration, and the latter for whatsoever legislation was odious and oppressive. The theory of the colonists was, that their relation to the parent country was similar to that of Scotland and Ireland before their consolidation and respective unions—owing allegiance to the Crown, but having a right to separate legislative assemblies. They denied the power of Parliament to legislate for them; and no single act of the Parliament was more obnoxious than the one that relieved them from every burden, save the mere bagatelle of a tax of three pence a pound on tea; and it was so obnoxious because the preamble of that Act claimed the right to bind the colonies in all cases whatsoever. Independent, as they always claimed to be of Parliament, their only tie was to the King; this tie they determined to sunder [cut], and hence their charge of grievances was preferred against the King. The declaration makes no mention of Parliament, but holds up the King as the author of all their wrongs.
This theory of the colonists, which has been elaborately set forth in a speech of Daniel Webster, however correct it may have been, has greatly tended, in an instrument so widely read, to perpetuate among our people erroneous ideas of the powers of an English King. The truth is, as early as the reign of Henry the III., about 650 years ago, Bracton, afterwards an English Judge, had written—” The King is subject to God and the law.” “The King,” he says, “can do nothing on earth but what he can do by law.” He reckoned the great court of Parliament as his superior, and affirmed “that if the King were without a bridle, that is the law, they should put a bridle upon him.” Later, but far back in the reign of Henry VI., another Judge said, “If the King command me to arrest a man, and I arrest him, he shall have an action of false imprisonment against me, though it were done in the King’s presence.” And in the very next reign, that of Edward IV., a Chief Justice of England had declared to that monarch “That the King could not arrest a man even upon suspicion of felony or treason, because if he should wrong a man by such arrest, he can have no remedy against him.” And a long time after this, it is true, but still a hundred years before our revolution, after the old common law writ of habeas corpus, [1679, court order that requires a person under arrest to be brought before a judge or into court] had been perfected by the statute of 31st [year, in the reign of] Charles II., it has been impossible for anyone to be wrongfully imprisoned, though by warrant under the sign-manual [signature] of the King, without obtaining an almost immediate discharge. Such, and so small, has been for ages, a King of England’s legal power to inflict injury upon the persons of his subjects! The great right of property has been just as secure and for as long a period from any invasion at his hands. And his power to obstruct legislation and thus thwart the wishes of his people by the exercise of the veto; a power possessed by our Presidents and all of our Governors, and exercised by them time and again at almost every session of every legislative body throughout the land, has been employed by no English King since the reign of William of Orange; and its exercise now, in any case, would perhaps cost him his throne. Surely our American will concede, upon more study and reflection, that an English King is no despot, but simply the ruler of a very limited monarchy!
But in the next place, as to the British Constitution and her fundamental laws. If by Constitution our American means the name of an instrument or book containing the fundamental laws of the State, then indeed England has no Constitution, for she has no instrument or book of that name. Nor if the terms means a few pages of parchment or an instrument similar to our Federal and State Constitutions, containing the principles on which the government is founded and regulating the decisions of the sovereign powers, directing to what persons each of these powers is to be confided, and the manner it is to be exercised, then England has no Constitution. If, again, is meant, that modern idea of a Constitution, viz: “A body of law promulgated at once by the sovereign power,” as was for instance the Code Napoleon, then England has no Constitution. In the Roman sense, which during the empire denominated a single imperial decree a Constitution, England might be said to have as many Constitutions as were compiled in the Code of Theodosius. Not indeed, that her statute book abounds in imperial decrees, but because she has quite a number of Acts of Parliament of a fundamental or constitutional character.
If a Constitution is, as it has been defined, a system of law, established by the sovereign power of a State for its own guidance, fixing in those laws the limits and defining the relations of the legislative, the judicial and the executive powers of the State, both amongst themselves and with reference to the subjects or citizens of the State as a governed body”—then England has a Constitution, unwritten though it may be, and not embraced in any one statute, instrument or book. Sometimes the British Constitution is spoken of as a kind of intangible essence, the resultant of the manhood of the English people and the spirit of their laws. When employed in this sense, the same idea is conveyed to the mind, as when we speak of the constitution of a man, or that of a horse. At other times the British Constitution is declared to be the whole body of the public law, consuetudinary [customs, law where the rule of law is determined by long-standing custom as opposed to case law or statute] as well as statutory, which has grown up during the course of ages, and is continually being modified by the action of the general will, as interpreted and expressed by the representatives of the nation in Parliament.
The average American forgets, perhaps never knew, that the great body of the English common law, though unwritten, Lex non scripta,[Latin: The law was not written] is still in writing, and that the English Constitution is part of that common law. That the sovereignty or legislative power of England resides in Parliament, that Parliament consists of King, Lords and Commons; that the Crown is hereditary; that the King is the executive branch of the government; that he must govern according to law; that his prerogative stretcheth not to the doing of any wrong; that the King never dies; that he is the head of the army and declares war and makes peace; that he is the fountain of justice and appoints the Judges; that Parliament is summoned, prorogued and dissolved by the King; that it is supreme in the making and repealing of laws; that it can change its succession, and, in the language of Delome, do anything but make a man a woman and a woman a man; that each house is the judge of the qualification of its own members; that no member shall be held to answer in any other place, for words spoken in debate in either house, and the various privileges of Parliament and the manner of making laws; the right of the people to representation in Parliament; that no tax can be laid except by its authority, and a thousand and one other principles, embracing the absolute rights of every Englishman to personal security, personal liberty and private property, and the many provisions, including the sacred right of trial by jury, for their maintenance—although parts of an unwritten Constitution, are at the same time parts of the English common law, having their foundation in immemorial usage, and are laid down by the sages and institutional writers of that country with the same clearness and precision, as their classification of estates, the rules of inheritance or the requisites of a deed.
These maxims and laws, and others like these, dating back, many of them, a thousand years, to the age of Alfred, the builder, and Edward, the Confessor, the restorer of the English law, together with some constitutional laws, explanatory and declaratory of the Constitution, among the greater and more important of which may be reckoned Magna Carta, [1215, Latin: Great Charter, also called Magna Carta Libertatum or The Great Charter of the Liberties of England] that great charter which was ratified and confirmed by Parliament, according to Sir Edward Coke, thirty-two several times; and one of the very confirmatory statutes, 25th [year, in the reign of] Edward I., which is called Kat’ezoxen, confirmatio cartarem; the Petition of Right [1628, Parliamentary declaration of the rights and liberties of the people] in the reign of Charles I.; the Habeas Corpus in that of Charles II.; the Bill of Rights, enacted into a statute in the reign of William and Mary, and the Act of Settlement in that of William III.—these are the fundamental laws of England, and form the skeleton of the British Constitution.
A Constitution not as harmonious and symmetrical indeed, as if it had sprung full grown, like Minerva, from the brain of Jove; spoken into existence by a single act of the legislative power, and all embraced in one separate instrument, but still, a Constitution, whose admirable provisions, for the security of life, liberty and property, far surpass anything that Greece or Rome ever saw. A Constitution which is the model of every free Constitution now existing in the world. A Constitution which provides for a House of Commons, that great matrix of liberty, which is at once the type and archetype of every free legislature that now meets in either hemisphere. A Constitution which confines all legislation to a parliament; which suffers no tax to be imposed save by a parliament; which requires its executive administration to be conducted according to the laws, and holds the agents and advisers of that administration responsible for every infraction of the laws.
That such a Constitution, a Constitution of freedom, whose origin is so remote as to be lost in the mists of antiquity, should have survived so many ages of ignorance and violence; should have constantly grown in all the attributes of perfection, until it became the pride of England, and the pattern of the world; should have flowed onward through the centuries, conferring the blessings of liberty and happiness upon a populous nation of prosperous subjects, is the peculiar glory of Englishmen, and the most beautiful phenomenon in the annals of the human race.
This Constitution, which had attained its full beauty and vigor a hundred years before our revolution, was justly prized as a rich heritage by our fathers. In the first Continental Congress, which satin Philadelphia, in 1774, a Declaration of Rights was passed, (which is sometimes assigned as a reason why our Federal Constitution is not preceded by a Bill of Rights). In this declaration, they claimed, as English colonists, under the principles of the English Constitution, that they were entitled to life, liberty and property, and to all the rights, liberties and immunities of free and natural born subjects within the realm of England; they claimed that the foundation of English liberty was a right in the people to participate in their legislative council, and as the Colonists were not, and could not, from their local circumstances, be properly represented in Parliament, that they were entitled to a free and exclusive power of legislation in their Provincial legislatures; they denied all power of taxation without representation; they claimed that they were entitled to the common law, and especially the great and inestimable privilege of being tried by their peers of the vicinage; they claimed to be entitled also to the benefit of such of the English statutes as existed at the time of their colonization, and which by experience were found to be appropriate to their local and other circumstances; they claimed the right of petition; denounced the keeping of a standing army in time of peace, as contrary to the Constitution; and affirmed that it was essential under the English Constitution, that the constituent branches of the legislature be independent of each other. All this they claimed, demanded and insisted on, as their indubitable rights of liberty. They were not claimed, by purchase, but by descent. They were not insisted on as an acquisition of their own; on the contrary, they were recognized by them as an inheritance from their British ancestors.
After this Declaration of Rights, came the Declaration of Independence, followed in its turn, by an eight years war, fought, as has been truly said, upon a preamble. When this war ended, and the thirteen Colonies were recognized as independent States, our fathers soon laid the foundation of our present government, by the foundation and adoption of the Federal Constitution—an instrument which is the pride of every true American, and upon which the world has bestowed the most lavish praise. But while engaged in this great work, notwithstanding the heat and hatred engendered by a cruel and protracted war, our fathers never forgot the free principles of the British Constitution under which they were born, but clung to them “as the sheet-anchor of their political safety.” They provided, as did their English fathers, for the distribution and independence of the three great forms of government: they made the Legislative to consist of two houses, the one of long term, the other of short term members, but both elective; they made the Executive a single head, but elective, instead of hereditary; the Judiciary held their offices as in England, quamdiu se bene gesserint.[ As long as he shall behave himself well.; A clause inserted in commissions, when such instruments were written in Latin] The general executive powers of the President, and the legislative powers of the Congress, with some modifications, mutatis mutandis, might have been written of an English King and House of Commons.
The mode of enacting laws, the privileges of the two Houses, and of the individual members, including the fundamental right of free speech, are almost transcripts from the English Constitution. The right to the writ of habeas corpus, to trial by jury in civil cases and review only by the rules of the common law; the rights of petition, to bear arms, to be secure against unreasonable searches and seizure; the rights of one accused of crime to presentment or indictment by a grand jury, to a speedy and public trial by an impartial jury, with timely information of the cause of accusation, to be confronted with witnesses against, and to have compulsory process for, those in his favor, with the benefit of counsel in such cases, all these were English constitutional rights, well settled a century before our Constitution was adopted; and some of them were even hoary with age, before the continent of America was discovered by Columbus. That it was illegal to quarter troops on the people, to compel one to testify against himself in a criminal cause, to take his property for even public use without just compensation, to impose excessive bail, or inflict cruel and unusual punishments, had all been learned by the framers of our Constitution from the English Common or Statute Law. The very definition of Treason in our Constitution, is taken from an English statute as old as the reign of Edward III.; and the rule of evidence on trials in such cases, from decisions of English courts under it, enacted into a statute in the days of the Third William. The right to investigate, and chastise abuses of administration, by impeachment, which impeachment should be made by the lower house and tried by the upper house, had existed in England since 1376, four hundred years before our Constitution embodied this form of procedure.
It will thus be seen, and the more critical the examination, the more fully it will appear that almost every precious principle of our Federal Constitution was borrowed, bodily, from the Constitution of England. The limits for this paper constrain us to speak in general terms. Of course the dissolution of Church and State; the inhibition of Bills of Attainder, and of the grant of titles of nobility, were improvements— steps forward in the direction of governmental progress. But the great engines of government in both countries, their fundamental principles of action, and the ends and aims of their creation, are almost identical; while the mere names of the respective officers who run the machine, the tenure by which they hold their trusts, and the appliances by which they are lifted into place are, in a measure, variant.
Would we then depreciate the great work of our fathers? Not at all. They builded a splendid temple to freedom; but they found the stones, ready hewn to their hands. Their own noble English fathers had, long beforehand, prepared the materials; and the glory of our fathers was, that in rearing and embellishing their own edifice, they had the wisdom to make those stones, which so many other Constitution builders had rejected, “the head of the corner “; and the glory of their children will be, to forever keep them there!
It may be out of place now, and, perhaps, will appear hypercritical in a matter of so little practical importance, but there is one power granted by our Constitution to Congress, that strikes us with some surprise, viz: the power to legislate in all cases whatsoever over the District, where should be located the seat of government, and over places purchased for forts, magazines, arsenals, dock-yards, etc. So soon, it seems, did our fathers forget the preamble to that Act of Parliament, upon which they had fought their revolution! As this power to legislate in all cases whatsoever, includes the power to tax, and has been construed to extend to the territories of the United States, and as no representation is provided for the District of Columbia, or the territories, the framers of the Constitution violated, in that instrument, the most fundamental principle of the revolution, by authorizing taxation without representation. In this particular, the framers of our Constitution were scarcely as considerate of the rights of others, as were the sturdy Barons at Runnymede, who wrested Magna Carta from King John. The rights which they claimed were not for themselves alone, but for all the nation at large. It was agreed, “that every liberty and custom which the King had granted to his tenants, as far as concerned him, should be observed by the clergy and laity towards their tenants, as far concerned them.” This equal distribution of civil rights to all classes of freemen, in the opinion of Hallam, constituted the peculiar beauty of that great charter. And Chatham thought sufficient justice could not be done the Barons, in not confirming this great acknowledgment of national rights to themselves, but in delivering it as a common blessing to the whole people. The three words of the charter, nullus liber homo,[a free man] that were so uncouth, and sounded so poorly in the ears of scholars, he declared, were worth all the classics!
It would be needless to say, that the Constitutions of the several States, like the Federal Constitution, were all modeled after the same great original. Those States which varied most, like Georgia, whose first Constitution provided for but one house of legislation, and for an executive council instead of a single administrative head, from the inconveniences resulting, were soon glad to retrace their steps.
The first Constitution of Georgia also declared, “That no clergyman of any denomination should be allowed a seat in the Legislature.” [possibly because of their stance against slavery, still researching] This deviation from the mother model, was either not so fundamental, or the inconveniences resulting were not so soon apparent, for it remained an article in our fundamental law for twenty-two years, and was not abrogated until she made her third Constitution, in 1798.
It would be interesting, not only to the antiquary but to the constitutional lawyer as well, to inquire into the original of the English Constitution; but we have not time to explore, if we could, these ancient springs, which Sir Matthew Hale regarded as undiscoverable as the sources of the Nile. Suffice it to say, that a few centuries after the Christian era, we find the elements of a free constitution—limitations on the royal authority, representative assemblies, fundamental laws. At the conquest almost all was lost; what remained was by the sufferance of William and his immediate successors. The second birth of English liberty came with John, and Magna Carta; and it is pleasant to think that this great charter is forever associated with the purity of home, and owes its origin to the love which the sturdy barons bore their families. The marriage of female wards, and the compulsory marriage of widows were grievous feudal hardships. But the barons suffered yet greater ills at the hands of John. He was the sum, of ever infamy while living; and when dead, a single sentence expressed the public abhorrence that clung to his name—”foul as hell is, it is itself defiled, by the fouler presence of John.” He was, withal, an accomplished villain, handsome in his person, fascinating in his manners, and with a strange gift, it is said, in winning the love of women. In his unbridled lust, he debauched the wives and daughters of the barons, and with singular imprudence, even in a king, boasted of the favors that he won! It was to avenge such injuries as these and to defend the honor of their homes, that the barons placing the Earl of Pembroke and the Archbishop of Canterbury at their head, marched against John and wrung from him with an iron hand, that charter, which forever after became the immovable foundation of English liberty, and an imperishable monument to themselves. Liberty was now no longer of free grace, it had become a matter of contract of covenant. And hereafter, when their rights were invaded, they ceased to implore as a favor the laws of Alfred and of Edward, but they demanded, again and again, as a right, the re-enactment and ratification of the great charter.
It would be a pleasant task to examine the various causes which have contributed to perpetuate, for so long a period, English liberty, or the English Constitution, for they are in fact convertible terms. We can glance for but a moment at some of them. England owes much to her insular position, which has obviated the necessity of a standing army. Largo standing armies, in time of peace, had swept away in Western Europe, a number of free Constitutions, somewhat similar to her own. The English were wise enough to be warned by examples, and they set their faces like flint against this auxiliary of despotism.
But much as she owes to her insular position, she has owed far more to the lofty and intrepid spirit of her people, and their devotion to her laws, a devotion born of the excellence of those laws. I have already stated that Magna Carta was confirmed thirty-two times by Parliament. It was actually re-enacted eleven times, during the reign of one ambitious and warlike Prince, Edward III. Can all history furnish another such example of devotion to human rights!
Obsta principiis, [Latin: Resist the beginnings, or Slang: nip in the bud] seems to have been the great maxim of their political faith; and they appear to have known from intuition, what the experience of ages, has at last taught mankind that, “eternal vigilance is the price of liberty.” They were, it is true, frequently overborne, and their laws trampled underfoot; but when the elements appeared darkest the national spirit would again flame forth; at one time dethroning and imprisoning a Richard II., at another beheading a Charles I., and still at another driving into exile and abdication a James II.! Time would fail us to mention the individual instances of heroism—the names, of even one tithe of those, whose glorious deeds have illustrated the manhood of her people on the pages of her history. Her Russels and her Sidneys, who poured out their hearts’ blood, a rich libation in liberty’s cause. We shall call to mind but one or two. All are familiar with John Hampden, whose dauntless spirit determined him to incur the heavy expense and certain danger of a great controversy with the Crown, rather than pay a few shillings of an illegal tax; but the high and inflexible spirit of the wife of Coke, is net so generally known. Her husband was one of the Justices that presided in Hampden’s case—a case which in its consequences involved the liberties of the entire people of England. She withheld the judgment of that time-serving Judge, her husband, in favor of the King, “by imploring him not to sacrifice his conscience from fear of any danger or prejudice to his family; declaring herself content to suffer any misery, rather than be the occasion for him to violate his integrity.” But perhaps no example of English manhood is as grateful to a lawyer as that of Sir Edward Coke, whose labors have “shed the gladsome light of jurisprudence” on so many legal minds. Coke, with true loyalty, falls upon his knees and acknowledges to an incensed King the error, as’ to the form of a letter; but he rises upon his feet and defends the substance of that letter, which had declined to delay right and justice at the command of his sovereign; and all that insulted Majesty could extort from him, with suspension from office, and dismissal in disgrace staring him in the face, as to what he would do, in a certain proposed case, was that sublime answer: “When the case happens, I shall do that which shall be fit for a Judge to do.”
But the devotion of the English people to their laws, and the manhood which they have displayed in their maintenance, have been, in great measure, due to the excellence of those laws; and perhaps no one principle of the British Constitution has been dearer to the people, and contributed more to the preservation of all the others, than that of trial by jury, which has deservedly been denominated, the palladium of their civil rights. Sir James Mcintosh, in that great forensic effort in defence of M. Pettier, which will ever be admired by the legal profession as a master-piece, gives an instructive instance illustrative of its inestimable value. During the protectorate, Cromwell, who had waded through slaughter to a throne, twice sent to the Court of King’s-bench, then called the upper bench, “a satirist on his tyranny, to be convicted and punished as a libeller. But in that Court, which sat almost in sight of the scaffold streaming with the blood of his sovereign, within hearing of the clash of his bayonets which drove out a Parliament with contumely two successive juries rescued the intrepid satirist from his fangs; and sent out with defeat and disgrace, the usurper’s Attorney-General, from what he had the insolence to call his Court.”
The language and literature of England have gone hand in hand with her laws, to the mutual advantage of each; and it would be difficult to over-estimate for good, the influence of her free press for the last two hundred years. Indeed, tyranny cannot long exist in any country that is blessed with facilities for rapid communication, and which can boast of an unshackled press.
The restriction of suffrage to free agents, has doubtless preserved England from much faction and corruption, and contributed, in no small degree, to the preservation of her Constitution; and the greatest danger which has threatened her during the present century, and which still threatens her, arises from the constant extension of suffrage, to those who are unworthy of it.
I should be unjust to our profession, and recreant to truth, if I failed to acknowledge the invaluable services to law and liberty, that have been rendered, by the learning and integrity of the English Bar. They have stood as sentinels on the watchtowers to warn of danger, whenever the Constitution has been assailed, and foremost in every breach of that citadel, “to repair it or perish in it.” In the language of Erskine, “they have been ready at all times, and upon every possible occasion, whatever might be the consequences to themselves, to stand forward in defence of the meanest man in England, when brought for judgment before the laws of the country.”