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the higher the people of the state rise in civilization, the more will the state expand the domain of private rights, and through them accomplish the more spiritual as well as the more material ends of civilization; until, at last, law and liberty will be seen to be harmonious, both in principle and practice.
These, then, in historical order, are the ends of state : first, the organization of government and of liberty, so as to give the highest possible power to the government consistent with the highest possible freedom in the individual ; to the end, secondly, that the national genius of the different states may be developed and perfected and made objective in customs, laws, and institutions ; from the standpoints furnished by which, finally, the world's civilization may be surveyed upon all sides, mapped out, traversed, made known and realized. This proposition contains a plan for every appearance and product of human history; for private law and internal public law, for the law between nations and the law of nations, for war and for peace, for national exclusiveness and universal intercourse. Take these ends in their historical order, and pursue them with the natural means, and mankind will attain them all, each in its proper time. But this order cannot be successfully reversed, either in part or whole. The state which attempts to realize liberty before government, or the world-order before the national-order, will find itself immediately threatened with dissolution and anarchy. It will be compelled to begin de novo, and to do things in the manner and sequence which both nature and history prescribe.
THE FORMATION OF THE CONSTITUTIONS OF GREAT BRIT
AIN, THE UNITED STATES, GERMANY, AND FRANCE.
It may appear, at first thought, a little surprising that I should treat of the topic of this book under the part of my work entitled Political Science, instead of under the part assigned to Constitutional Law. The second thought, however, will reveal the reason. The formation of a constitution seldom proceeds according to the existing forms of law. Historical and revolutionary forces are the more prominent and important factors in the work. These cannot be dealt with through juristic methods. If it should be attempted, erroneous and sometimes dangerous results will be reached. The constitutions of which I propose to treat are not exceptions to this order of things. They are all capital examples of it. I wish to impress this fact very vividly upon the minds of my readers; and therefore I take it into account in my classification, as well as in my treatment.
This is also the place for me to explain why, in my treatment of comparative constitutional law, I select the constitutions of Great Britain, the United States, Germany, and France, and limit myself thereto. The reasons are many and obvious. In the first place, my space is limited. My work is to be included in a single volume, or at most in two volumes. In the second place, my treatment is to be systematic, not encyclopædic. In the third place, these are the most important states of the world. Finally, these constitutions represent substantially all the species of constitutionalism which have as yet been developed. If any general
principles of public law are to be derived from a comparison of the provisions of the constitutions of different states, surely they will be more trustworthy if we exclude the less perfect systems from the generalization, disregard the less important states, and pass by those species which are not typical.
THE FORMATION OF THE CONSTITUTION OF GREAT BRITAIN.
This constitution has been regarded as the historical constitution par excellence. But all constitutions are historical. It has been termed an unwritten constitution. But it is, in large part, written; and no one of the four which we are to consider is wholly written. It is sometimes said that it differs from the others in not being a revolutionary product. But it is largely a product of revolution. In what respects, then, does it have a distinctive character, as to its formation, when compared with the others? It seems to me in three respects. First, it is more largely unwritten than the others; second, what is written is scattered through different acts instead of being contained in a single instrument; and third, the revolutions which have attended its formation have not been, perhaps, so violent as in the cases of the others. In a word, the difference between the British constitution and the other three in the matter of formation is not at all so great as has been usually supposed.
Moreover, this constitution has been represented as being very ancient when compared with the others. In my view this is also a mistake. I contend that the present constitution of Great Britain did not exist before the year 1832. Very nearly all of its elements had been developed before that date; but the relation in which these organs now stand to each other is altogether different from what it was before 1832; and the relation of the governmental organs to each other and to the state is what determines, more than anything else, the character of a constitution. I contend, furthermore, that the change wrought in the British constitution in the year 1832 was a revolutionary procedure; i.e. it did not proceed according to the provisions of law existing and in force at that time. I am aware that this is a somewhat unusual statement, and feel, therefore, under obligation to substantiate it by explanation and proof.
I consider that, since the consolidation of England by the Norman Kings, there have been three great revolutions in the political system of Great Britain. It is difficult to assign an exact date to either of these. If, however, I must give dates, I would designate the years 1215, 1485, and 1832. The first of these marks roughly the period when the British state progressed from its monarchic to its aristocratic constitution. The Barons organized themselves in the confederation of St. Edmunds and in the Parliament at Runnymede, framed a constitution of liberties, and forced the same upon the King; i.e. the aristocracy seized the sovereign power, became the state, whereas, before this, the King had held the sovereign power, had been the state as well as the government. They did not abolish the kingship, but they reduced it from the position of sovereign state to limited government. The King himself recognized this fact in his angry declaration concerning the council of barons chosen by the whole body to compel him to observe the constitution. He said: “They have given me four-and-twenty over-kings.”? It may be said that as the King assented to this constitution, it was established through the forms of existing legality ; but this would be a very extreme use of legal fiction. The only legal form of consent which existed
i Stubbs, Constitutional History of England, Vol. I, pp. 528 ff. 2 Green, History of the English People, Vol. I, p. 248.
or could exist when the King was sovereign was his free consent, and the only kind of limitation which he could suffer was self-limitation, which might at pleasure be thrown off. No historian pretends that the constitution called Magna Carta was secured in this manner or existed under this condition. The King was forced to accept it and forced to keep it; and it was a good half-century before he and his successors ceased to struggle against it as a violation of the royal power. Here then was a revolution in the English state, both in substance and in form. The next two and a half centuries were occupied in the perfection and adjustment of the institutions of state and government on the new basis.
By the middle of the fifteenth century the actual power of the state had passed from the aristocracy to the people. It remained now for the people to organize themselves and seize the sovereignty. Nominally they were organized in the House of Commons, but really they were not. The House of Commons was then but a kind of overflow-meeting of the House of Lords. The people were not yet far enough advanced in the development of their political consciousness to create an entirely independent organization. An existing institution must furnish them the nucleus. They were deeply conscious of their hostility to the aristocracy. There remained, then, only the King. He, too, was hostile to the aristocracy. Through their common enemy, the King and the people were referred to each other. In the organization which followed, called in political history the absolute monarchy of the Tudors, the people were, in reality, the sovereign, the state, but, apparently, the King was the state. England under the Tudors was a democratic political society under monarchic government. The absolute monarchy in this sense is certainly a step in advance from the aristocratic
i Stubbs, Constitutional History of England, Vol. I, p. 543.