Two Distinguished Frenchmen in England. -- By: Charles William Super
BSac 70:279 (July 1913) p. 408
Two Distinguished Frenchmen in England.
Nearly all Continental writers of political history have commended the English constitution as a model of what such a document ought to be. We should remember, however, that the word “constitution “as used in this connection is merely a convenient term to designate a long series of acts of parliament by which that body endeavored to define the rights of the subject and the prerogatives of the sovereign. Our Federal constitution and all the State constitutions were made by delegates without legislative authority elected for a specific purpose. Moreover, the laws passed by the State legislatures are further circumscribed by the supreme courts, which have from time to time declared many of them void. In England parliament is supreme. It is not bound by precedent, though it is more or less guided by its predecessors. The English constitution has been five or six centuries in the process of formation. Sir John Fortescue, Henry the Sixth’s chancellor, writing about the middle of the fifteenth century, maintains that the chief difference between England and the Continental countries is, that the king can neither enact laws, nor impose taxes, nor pass sentence upon a subject according to his own pleasure, because these prerogatives belong to parliament. He contends that by this arrangement the liberty of
BSac 70:279 (July 1913) p. 409
the subject is safeguarded and the burdens and responsibilities of the sovereign are lessened.
This statement is not literally true of the fifteenth century. It represents an aspiration rather than a realization. The struggle between the English kings and their subjects was a long one, and was not closed until the Revolution of 1688. There would be no meaning in the epithet “glorious,” which Englishmen are wont to apply to that change in the government, if the statements made by Fortescue could be taken at their full value. The contest began less than a century after the death of William the Conqueror, and culminated, for the time being, in Magna Charta. In the study of governments we need always to keep in mind that there is often a wide difference between a statute law and its enforcement; between the declaration of a principle and its realization in practice. The constitutions of all our States guarantee a trial by jury to every person charged with a capital crime. Yet in many of them, real or suspected criminals have been summarily executed, without pretense of a trial by jury. The Declaration of Independence affirms it to be a self-evident truth that all men are created free. Albeit, probably not one of the signers believed this statement to be a literal truth. Among all progressive peoples, the ideal represents a goal toward which their aspiration...
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