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cH. I.] UNITED IN THE ENGLISH constitution. 3
The defects of these simple forms of government led the jurists of antiquity to desire and consider of other systems; and it is remarkable that Cicero and Tacitus, through their own powers of reflection, perceived that a government in which the three simple forms are combined, is theoretically the best. “In my judgment,” wrote Cicero, “that is the best constituted form of government which in moderation is compounded of these three constituent parts, the royal, the aristocratical, and the popular.” “If we consider,” observed Tacitus, “the nature of civil government, we shall find that in all nations the supreme authority is vested either in the people, the nobles, or a single ruler. A constitution compounded of these three simple forms may in theory be beautiful, but can never exist in fact; or, if it should, it will be but of short duration.” The beautiful theory which Tacitus thought impracticable, has been realized, whilst his prediction has proved erroneous. A constitution compounded of the three simple forms has long existed, and continues to confer freedom and happiness on the people, in the English government by king, lords, and commons. It may be asked why the combination of the three simple forms was considered likely to be exempt from the evils found inseparable from each alone. It is obviously an advantage to obtain, for any system of government, the approval and acquiescence of the people subject to its jurisdiction; but when, by a long course of prosperity, distinctions founded on wealth and social influence, and transmitted by hereditary descent, have divided the people into ranks or classes, which may be termed aristocratic and democratic, with separate and often discordant views and in
“Statuo esse optime constitutam rempublicam quae ex tribus generibus illis, regali, optimo, et populari, modice confusa" (Cic. Fragm.)
: “Nam cunctas nationes et urbes populus, aut primores, aut singuli, rogunt: delecta ex his et constituta reipublicae forma, laudari facilius, ire, vel, si evenit, haud diuturna esse potest” (Tac. Ann. iv.)
quain even B 2
4. MERITS OF THE ENGLISH CONSTITUTION. [ch. I.
terests, their concurrence, although desirable, is not easily obtained. Their co-operation might be secured and applied by admitting these classes, severally, to some participation in the government; but the simple forms, each founded on a despotic theory, do not recognize any but the depositaries of the supreme power, as entitled to any share of it. Thus monarchy retains the entire power in itself, unshared by any portion of the people; aristocracy excludes the popular majority; and democracy, treating the people as all equal, confers no distinction upon the wealthy, well-born, learned, or otherwise socially distinguished minority. It is the merit of the English constitution to combine, with monarchy as its basis, institutions which admit both the aristocratic and democratic classes to a share in the supreme power of the State; and to have so constituted and regulated these institutions in relation to the monarchy and to each other, that in the event of either of them striving for undue ascendency, it becomes the interest and the duty of the others to operate as checks, and to obstruct the attempt. The establishment of these several institutions has admitted, also, of a separation of the executive from the legislative functions of the government, which, in the simple forms are, from necessity, placed in the same individual or body, or its subordinates. It will be perceived, when tracing the rise and growth of the institutions which embody these elementary principles in the English constitution, how the freedom of the people increased and strengthened, as the legislative functions gradually passed out of the monarchical to the aristocratic and democratic, or popular, branches of the government; and more especially as the right of originating laws for the taxation of the people, settled in the latter; the executive power retaining only a consenting or negative voice in legislation. The original sources of information for the proposed inquiry are, chiefly, our national records and our public laws. Of the former, the charters of the kings and the records of Parliament—that is to say, its writs of summons and re
cH. I.] SOURCES OF INFORMATION. 5
turns, its petitions, with their answers, the rolls of Parliament, the journals of the two Houses—are most connected with our inquiry; but besides these, we may refer to the State trials, and to the records of the courts of justice, and of other departments of the government. Many of these records have been printed and published at the national expense; and they have been rendered still more available for the use of modern historians, by the indefatigable labours of learned antiquaries and commentators. From these, aided, where defective from incompleteness or loss, by the works of contemporary chroniclers, historians have been enabled to trace out the rise and growth of the Parliament;-first, as a single aristocratic body, acting as a council to the king; next, as receiving the addition of representatives of the people;—its separation into two Houses;– and finally, the means by which the two Houses acquired their distinct action, and their several functions, privileges, and modes of procedure, which now produce free legislation, and a just control of the executive power.
The changes above indicated were gradual, often unforeseen, and the result sometimes rather of accident than of express design. But the history of the freedom and of the political rights of the people, is the history of our laws." The changes which produced their liberties could only be made, as their liberties could only be rendered secure, by statutes. Statutes, therefore, which we may call constitutional,—that have enlarged the freedom of the people by limiting or terminating the power of their rulers or aggressors, or by conferring upon the former personal or political rights, will require especial notice. Nor are they meagre in historic information; for they oftentimes exhibit in their introductions or preambles, the abuses, oppressions, or other circumstances which were the motives or occasions of the laws they ordained.
* “The history of the law affords the most satisfactory clue to the political history of England.” (Sir Francis Palgrave's History of the English Commonwealth, vol. i. p. 8.)
6 THE HISTORY REQUIRES A LONG RETROSPECT. [cII. I.
But if we would trace, however briefly, the history of our constitution, we must be prepared to take a long retrospect. Its foundations stretch far back to remote times, and the present lofty structure was raised by a continuous although slow accretion. We may, however, reconcile ourselves to the labour which the study occasions, by the assurance that, unless we make ourselves acquainted with the great principles upon which our ancestors acted when they framed the several parts of the constitution, we shall be but ill qualified to decide upon a constitutional course of action in difficult and anxious circumstances; and that such knowledge can alone inspire us with that genuine admiration of our constitution, which all must feel who know how it was fought for and won.
Saxon Spirit of Liberty.—Settlement of Saxons in Britain.—Their Ances. tors, the Germans.—Their Institutions, described by Tacitus, compared with present Institutions.—England one Kingdom.—AngloSaxon King.—Wittena-Gemote.—Saxon People.—Religious Institutions. – Compurgators. — Shires. – Courts of Justice. — Hundreds, Burghs, and Burgesses.—Court Leet.—Trial by Jury.—Saxon Laws. —Review of Saxon Institutions. *
THE ancient jurists, although they perceived that advantage would arise from the union of the three simple forms of government, had conceived no idea of the mode in which they have since been so successfully united. Nor was our mixed government, as before observed, formed upon an originally complete plan or system. It is the combined result of many separate events and circumstances in our national career, spread over a long period of time; the consequences of which were often not foreseen, either by the actors themselves, or by the generations in which they lived. Its growth and establishment were greatly fostered, if not mainly caused, by the spirit of liberty, the love of order, and the jealousy and disdain of arbitrary power, which have always distinguished the English people of all ranks, even when obliged to submit for a time to the pressure of tyranny. This spirit originated in the Anglo-Saxon times; and it sprang from, and was cherished by, the institutions of our Anglo-Saxon ancestors, amongst which will be found the germs of some of those existing and most valued at the present day.