CHAPTER XI.

COMPARISON OF THE CONSTITUTION OF THE UNITED STATES, WITH THAT OF GREAT BRITAIN.

THE British constitution has been celebrated in the most sublime and in the most elaborate strains by poets, by orators, by lawyers, and by statesmen. "As for us Britons," says the elegant Shaftesbury, comparing them, in the spirit of a fond and a just preference, with many other nations, "as for us Britons, thank heaven, we have a better sense of government, delivered to us from our ancestors. We have a notion of a publick, and a constitution; how a legislative and how an executive is modelled. We understand weight and measure in this kind; and can reason justly on the balance of power and property. The maxims we draw from hence, are as evident as those in mathematicks. Our increasing knowledge shows us every day, more and more, what common sense is in politicks." a

b.

My Lord Bolingbroke, in his masterly and animated style, represents this constitution as "a noble fabrick, the pride of Britain, the envy of her neighbours, raised by the labour of so many centuries, repaired at the expense of so many millions, and cemented by such a profusion of blood-a fabrick, which has resisted the efforts of so many races of giants."

You will be surprised on being told, that, if the nature and characteristick qualities, which I have described, are the true nature and characteristick qualities of a constitution; no such thing as a constitution, properly so called, is known in Great Britain. What is known, in that kingdom, under that name, instead of being the controller and the guide, is the creature and the dependent of the legislative power. The supreme power of the people is a doctrine unknown and unacknowledged in the British system of government. The omnipotent authority of parliament is the dernier resort, to which recourse is had in times and in doctrines of uncommon difficulty and importance. The natural, the inherent, and the predominating rights of the citizens are considered as so dangerous and so desperate a resource, as to be incon sistent with the arrangements of any government, which does or can exist.

The order of things in Britain is exactly the reverse of the order of things in the United States. Here, the people are masters of the government: there, the govern ment is master of the people.

That, on this very interesting subject of contrast, you may be enabled to judge for yourselves, I shall lay

↳ Diss. on Part, let. 10. p. 151.152.

before you some passages from British writers of high reputation. From those passages, you can draw your own inferences.

"Most of those," says Mr. Paley, "who treat of the British constitution, consider it as a scheme of govern ment formally planned and contrived by our ancestors, in some certain era of our national history; and as set up in pursuance of such regular plan and design. Something of this sort is secretly supposed, or referred to, in the expressions of those, who speak of the principles of the constitution, of bringing back the constitution to its first principles, of restoring it to its original purity, or primitive model. Now this appears to me an erróneous conception of the subject. No such plan was ever formed; consequently no such first principles, original model, or standard exist.

"The constitution is one principal division, head, section, or title of the code of publick laws, distinguished from the rest only by the particular nature, or superiour importance of the subject, of which it treats. Therefore the terms constitutional and unconstitutional, mean legal and illegal. The distinction and the ideas, which these terms denote, are founded in the same authority with the law of the land upon any other subject; and to be ascertained by the same inquiries. The system of English jurisprudence is made up of acts of parliament, of decisions of courts of law, and of immemorial usages; consequently, these are the principles of which the constitution itself consists; the sources, from which all our knowledge of its nature and limitations is to be deduced, and the authorities, to which all appeal ought to be made, and by which every constitutional doubt or ques

tion can alone be decided. This plain and intelligible definition is the more necessary to be preserved in our thoughts, as some writers upon the subject absurdly confound what is constitutional with what is expedient; pronouncing forthwith a measure to be unconstitutional, which they adjudge in any respect to be detrimental or dangerous; whilst others again ascribe a kind of transcendent authority, or mysterious sanctity to the constitution, as if it was founded in some higher original, than that, which gives force and obligation to the ordinary laws and statutes of the realm, or were inviolable on any other account than its intrinsick utility.

"An act of parliament, in England, can never be unconstitutional, in the strict and proper acceptation of the term in a lower sense it may; viz. when it militates with the spirit, contradicts the analogy, or defeats the provision of other laws, made to regulate the form of government. Even that flagitious abuse of their trust, by which a parliament of Henry the eighth conferred upon the king's proclamation the authority of law, was unconstitutional only in this latter sense."<

Sir William Blackstone uses the term, constitution, as commensurate with the law of England. "Of a constitution," says he, "so wisely contrived, so strongly raised, and so highly finished, it is hard to speak with that praise, which is justly and severely its due. It hath been the endeavour of these Commentaries, however the execution may have succeeded, to examine its solid foundations, to mark out its extensive plan, to explain the use and distribution of its parts, and from the har

2. Paley. 203. 205.

monious concurrence of those several parts to demon. strate the elegant proportion of the whole."d

Mr. Paley uses the word in a more confined and, perhaps, a more proper sense, when applied to Great Britain; as meaning that part of the law, which relates to the designation and form of the legislature; the rights and functions of the several parts of the legislative body; the construction, office, and jurisdiction of the courts of justice. In this sense I shall use the term, when I speak of the British constitution. And, in this sense, the superiority of our constitution to that of Great Britain will eminently appear from the comparison, which we now institute, between their principles, their construction, their proportion, and their properties.

圈

The extension of the theory and practice of representation through all the different departments of the state is another very important acquisition made, by the Americans, in the science of jurisprudence and government. To the ancients, this theory and practice seem to have been altogether unknown. To this moment, the representation of the people is not the sole principle of any government in Europe. Great Britain boasts, and she may boast with justice, that, by the admission of representation, she has introduced a valuable improvement into the science of jurisprudence. The improvement is certainly valuable, so far as it extends; but it is by no means sufficiently extensive.

Is the principle of representation introduced into the executive department of the constitution of Great Britain?

d 4. Bl. Com. 435. 436.

* 2. Paley. 203.