XX THE ENGLISH CONCEPTION OF PRIVATE RIGHTS WE E have already seen that modern constitutional government finds its origin in England. The principles upon which it rests were marked out as the result of a long and almost ceaseless struggle between the different political elements which developed as a result of the economic and social conditions to be found in the country. With the formation of these principles there was evolved a form of government which has spread over western Europe, through America, the southern part of Africa, Australia, and the islands of the sea. That form of government has already had its influence in Asia since Japan has joined the ranks of the countries enjoying constitutional government, and is even now beginning to knock at the doors of China, whose civilization is the oldest known to the world. We must be careful, however, not to reach the conclusion that this mere form of government was the end which the English, its originators, sought when they sacrificed their lives and their fortunes in their struggles to attain it. The English were always a practical people. It was an English poet who said: For forms of government let fools contest; Far from believing that there was any inherent virtue in any form of government, the English hardly knew that they had any peculiar form of government until a foreign observer, the French philosopher, Montesquieu, called their attention to it. What the Englishman had always had in mind was certain rights, which he often called the rights of an Englishman, and upon whose existence and recognition he insisted with all the strength of his character and with all the force that in him lay. The form of government which the French philosopher told him that he had was a matter of indifference to him, except in so far as it was a means through which he could secure the end for which he had always fought. That end was the recognition of what he believed to be his "rights." Furthermore, when it came to the determination of those rights, that is to the statement of what they were and of the methods by which he was to secure them, his attitude was just as practical, just as non-philosophical. He never consciously formulated a system of rights any more than he framed a system of government. He was perfectly willing to permit the continued and permanent existence of inconsistent institutions, provided he actually secured as a matter of fact what he wanted. Thus he is still willing to adhere to the principle that a member of Parliament may not resign, while preserving in existence a series of obsolete and useless offices, appointment to which will of itself cause a member of Parliament to lose his position. A member of Parliament, therefore, even now does not resign. He applies for the Chiltern Hundreds. English institutions are thus the despair of the student, at the same time that they arouse the admiration of the practical statesman. Having this general attitude of mind which abhorred the statement of general theories and the formulation of complete and symmetrical systems, it is no wonder that the Englishman never stated in any one document or instrument what his rights were, any more than he ever put into any one written constitution or even any number of written documents the form of his government. The great English lawyer, Blackstone, probably expressed the English idea when in writing about the privileges of Parliament he said: "If ... all the privileges of Parliament were set down and ascertained and no privilege to be allowed but what was so defined and determined, it were easy for the executive power to derive some new case not within the line of privilege, and under pretense thereof to harass any refractory member and violate the freedom of Parliament. The dignity and independence of the two houses are, therefore, in great measure preserved by keeping their privileges indefinite." What was true of the privileges of Parliament was also true of the rights of Englishmen. They were of extreme importance, but it was difficult to find out what they were. Indeed, in many cases, the only way to find out what they were was to fight for what it was believed they were. It is said that Parnell, the Irish leader in Parliament, was asked once by an Irish member, "How can I learn the rules of the House of Commons?" "By breaking them" was the characteristic reply. The rights of Englishmen have in large measure been ascertained through attempts that have been made to violate them. The result is, then, that the rights of Englishmen, which have played such an important rôle in English constitutional history, for the preservation of which the form of government now enjoyed by England has been evolved, are nowhere gathered together in any one legal instrument. Almost every one became known as the result of a successful struggle for its maintenance, and many of those which are recognized are rights to particular methods of procedure, rather than rights to particular substantive things. Thus the right to a special kind of trial for crime; that is, the trial by jury, is regarded as one of the most sacred rights of an Englishman. This insistence on particular methods of procedure is, of course, due to the fact that these methods have shown themselves, as the result of a long-continued experience, to be valuable in securing the end desired. This end was freedom from arbitrary autocratic action on the part of those to whom political power had been intrusted. It was the rule of law-that is, the rule of a principle of general application as opposed to the rule of a person arbitrary and capricious-which the Englishman sought. It was to secure his rights through this rule of law that he originated the form of government which has been called constitutional. The Englishman has, therefore, never claimed that he has any natural rights; that is, rights to which he is entitled by reason of the fact that he is a man, a human being. He has been perfectly satisfied if it is recognized in his political and legal system that he has specified rights by the law of his country, and that no attempt may be made to take away what he may think are his rights, except in the manner by law provided. These claims being admitted, he has felt that in some way or other he will be able to have the law so formulated that he can secure the recognition of all substan tive rights which he ought at any particular time to possess. To secure the recognition in the law of those substantive rights he has insisted upon the grant to more and more of the people of the land of the power to control legislation. For through the control of legislation is obtained the power to determine what are his rights. The rights of Englishmen are, therefore, so far as they are defined at all, to be found in acts of legislation and in judicial decisions. One of the earliest and most important of these acts of legislation is what is known as the Great Charter, which was originally forced from a reluctant king in 1215. As might be expected from what has been said, the most important clauses of the Great Charter deal not so much with what have been called substantive rights as with methods of procedure. Thus in Section 12 the Crown enacts that "no scutage or aid [i. e., no tax] shall be imposed in our kingdom, unless by the General Council of our kingdom." This body was the forerunner of the modern Parliament. Section 14 provides how the General Council shall be composed and called together. Section 39, probably the most important section of all, provides that "no freeman shall be taken or imprisoned or disseized or outlawed or banished or anyways destroyed, nor will we pass upon him nor will we send upon him, unless by the lawful judgment of his peers, or by the law of the land." There is, in fact, in this famous provision of the Great Charter hardly any recognition or mention of a substantive right. It is not said that a freeman has any right not to be "taken or imprisoned or disseized or outlawed or banished." Indeed, it is expressly stated |