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Lecture England standing and flourishing, at a time when
the attempts of foreign reformers to combine freedom with order had ended in ruin. At the present day students of the constitution wish neither to criticise, nor to venerate, but to understand, and a professor whose duty it is to lecture on constitutional law, must feel that he is called upon to perform the part neither of a critic nor of an apologist, nor of a eulogist, but simply of an expounder; his duty is neither to attack nor to defend the constitution but simply to explain its laws. He must also feel that however attractive be the mysteries of the constitution, he has good reason to envy professors who belong to countries such as France, Belgium, or the United States, blessed with constitutions of which the terms are to be found in printed documents, known to all citizens and accessible to every man who is able to read. Whatever may be the advantages of a so-called “unwritten ” constitution, its existence imposes special difficulties on teachers bound to expound its provisions. Anyone will see that this is so who compares for a moment the position of writers such as Kent or Story, who commented on the constitution of America, with the situation of any person who undertakes to give in
struction in the constitutional law of England. Special When these distinguished jurists delivered in the difficulty
form of lectures commentaries upon the Constitution mentingon of the United States, they knew precisely what was constitu- the subject of their teaching and what was the proper
mode of dealing with it. The theme of their teaching
was a definite assignable part of the law of their Lecture country; it was recorded in a given document to which all the world had access, namely “the Constitution of the United States established and ordained by the People of the United States." The articles of this constitution fall indeed far short of perfect logical arrangement; and they lack absolute lucidity of expression, but they contain in a clear and intelligible form, the fundamental law of the Union. This law (be it noted) is made and can only be altered or repealed in a way different from the method by which other enactments are made or altered; it stands forth, therefore, as a separate subject for study; it deals with the legislature, the executive, and the judiciary, and by its provisions for its own amendment, indirectly defines the body in which resides the legislative sovereignty of the United States. Story and Kent therefore knew with precision the nature and limits of the department of law on which they intended to comment, they knew also what was the method required for the treatment of their topic. Their task as commentators on the constitution was in kind exactly similar to the task of commenting on any other branch of American jurisprudence. The American lawyer has to ascertain the meaning of the Articles of the Constitution in the same way in which he tries to elicit the meaning of any other enactment. He must be guided by the rules of grammar, by his knowledge of the common law, by the light (occasionally) thrown on American legislation by American history, and by the conclusions to be deduced from
Lecture a careful study of judicial decisions. The task, in
short, which lay before the great American commentators, was the explanation of a definite legal document in accordance with the received canons of legal interpretation. Their work, difficult as it might prove, was work of the kind to which lawyers are accustomed, and was to be achieved by the use of ordinary legal methods. Story and Kent indeed were men of extraordinary capacity, so however were our own Blackstone, and at least one of Blackstone's editors. If (as is undoubtedly the case) the American jurists have produced commentaries on the constitution of the United States utterly unlike, and (one must in truth add) vastly superior to any commentaries on the constitutional law of England, their success is partly due to the possession of advantages denied to the English commentator or lecturer. His position is entirely different from that of his American rivals. He may search the statute-book from beginning to end, but he will find no enactment which purports to contain the articles of the constitution; he will not find any test by which to discriminate laws which are constitutional or fundamental from ordinary enactments; he will discover that the very term “constitutional law,” which is not (unless my memory deceives me) ever employed by Blackstone, is of comparatively modern origin; and in short, that before commenting on the law of the constitution he must make up his mind what is the nature and the extent of English constitutional law.
His natural, his inevitable resource is to recur to Lecture
I. writers of authority on the law, the history, or the practice of the constitution. He will find it must be admitted) no lack of distinguished guides; he help from may avail himself of the works of lawyers such as tional
lawyers, Blackstone, of the investigations of historians such as Hallam or Freeman, and of the speculations of tional hisphilosophical theorists such as Bagehot or Hearn. constituFrom each class he may learn much, but for reasons theorists. which I am about to lay before you for consideration, he is liable to be led by each class of authors somewhat astray in his attempt to ascertain the field of his labours and the mode of working it; he will find, unless he can obtain some clue to guide his steps, that the whole province of so-called “constitutional law" is a sort of maze in which the wanderer is perplexed by unreality (by what, if I might venture to do so, I would call “shams”), by antiquarianism and by conventionalism.
Let us turn first to the lawyers and as in duty 1. Lawbound to Blackstone.
yer's view Of constitutional law as such there is not a word stitution. to be found in his Commentaries. The matters which reality, appear to belong to it are dealt with by him in the stone. main under the head Rights of Persons. The Book which is thus entitled treats (inter alia) of the Parliament, of the King and his title, of master and servant, of husband and wife, of parent and child. The arrangement is curious and certainly does not bring into view the true scope or character of constitutional law. This, however, is a trifle. The Book
Lecture contains much real learning about our system of
government. Its true defect is the hopeless confusion both of language and of thought, introduced into the whole subject of constitutional law by Blackstone's habit-common to all the lawyers of his time-of applying old and inapplicable terms to new institutions, and especially of ascribing in words to a modern and constitutional King, the whole and perhaps more than the whole of the powers actually possessed and exercised by William the Conqueror.
“We are next," writes Blackstone,“ to consider “ those branches of the royal prerogative, which “invest thus our sovereign lord, thus all-perfect and
immortal in his kingly capacity, with a number “of authorities and powers; in the exertion whereof “consists the executive part of government. This “is wisely placed in a single hand by the British “constitution, for the sake of unanimity, strength, “and dispatch. Were it placed in many hands, it “would be subject to many wills: many wills, if
disunited and drawing different ways, create weakness in a government; and to unite those several
wills, and reduce them to one, is a work of more “time and delay than the exigencies of state will “afford. The King of England is, therefore, not
only the chief, but properly the sole, magistrate of “the nation; all others acting by commission from, "and in due subordination to him; in like manner as, upon the great revolution of the Roman state, “all the powers of the ancient magistracy of the “commonwealth were concentrated in the new