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jury justified the confidence reposed in them by a verdict of acquittal.

The conception of the sovereign as not only above the law, but entitled to shield his servants when called to account for acts done on his behalf, has been familiar to despotism in all ages, and may, as the example of France proves, be adopted in an obnoxious form by a republic. The question which it involves is, Shall there be one law for the government and another for the people? or, to state the point somewhat differently, Shall an individual who is wronged by the government be denied the means of redress which he would have if the injury were inflicted by a fellow-citizen? It was a vital point in the long struggle of the English people for freedom, because the bounds of the royal power were of little moment if when they were exceeded, and a suit was brought for redress, it could be defeated on the plea that the act was done on behalf of the king, and the proceeding was in effect against him.1 Such was virtually the ground taken in Lee v. The United States, 2 where it was contended that if an ejectment or replevin was brought to regain the possession of goods or land, and the Attorney-General intimated that they were taken and withheld at the command of the President or under an act of Congress, the court must stay the proceeding, although the seizure was confessedly illegal. The contention was, fortunately, overruled by a majority of one; and when a like defence was set up in Poindexter v. Greenhow,3 on behalf of the State of Virginia, judgment was rendered for the plaintiff by a divided court. The question may now be regarded as resolved in favor of freedom; and the only break that I am aware of in the chain of decisions is Hartranft's Appeal,+ where the Supreme Court of Pennsylvania held not only that the Governor of Pennsylvania might decline to appear in obedience to a subpoena and testify what had occurred while the troops were acting under his orders for the suppression of a riot, but that the privilege was shared by his aidesde-camp.

1 Dicey, Law of the Constitution, 206, 208.
2 106 U. S.
8 114 U. S. 270.

4 85 Pa. 433.

IN THE UNITED STATES.

145

The former point may have been well taken, because the chief magistrate of a State is entitled to decide whether his official duties admit of his absence from the seat of government, and he might, if he were subject to process, be imprisoned;1 but it is not easy to discover any ground for the latter. A governor, like the President, cannot be compelled to explain before a judicial tribunal why he thought it necessary to call out the militia,2 or exercise any other power conferred on him by the Constitution, but should, as it would seem, be willing to state what he did or witnessed while acting as commander-in-chief, so far as it bears on any question that concerns the property or liberty of a citizen; and such is certainly the duty of his subordinates, whether dressed in uniform or wearing a civil garb. As there was no indictment or specific charge before the grand jury, and the investigation on which they had entered was political rather than judicial, they might have asked many questions which the aides-decamp could not have been compelled to answer; but this did not justify the refusal to attend.

1 Mostyn v. Fabrigas, Cowper, 161; 1 Smith's Leading Cases, 1038, 1060; Hall v. Bigge, 3 Moore, P. C. 465; ante, p. 141.

2 Thompson v. The German Valley R. R., 22 N. J. Equity, 111; Hartranft's Appeal, 4 Norris, 433, 446.

REESE Rapp

OF THE

UNIVERSITY

CALIFORNIA

VOL. 1.-10

LECTURE IX.

The English Constitution. Its Relation to the Constitution of the United States. The Ancient Powers of the King, the Lords, and the Commons. The Early and Persistent Development of Representative Government in England contrasted with its Failure or Suppression in France and Spain. - The Relation of the Legislature to the Judiciary in England and in France. The Curia Regis and its Division into the Exchequer, King's Bench, and Common Pleas, compared with the Cour du Roi and its Transformation into the Parliament of Paris. The Privy Council. - The Star Chamber. The Relation of the King to the Judiciary.

I PROPOSE in the following pages to give some account of the growth and development of the English Constitution, and contrast its distinctive features with those of the government under which we live.

It has often been said that the design of the Constitution of the United States was drawn from the English Constitution; and there is a general, or what may be termed family, resemblance in the structure of the two governments which is too close to be fortuitous, and shows that the remark is just. It is not less plain that this likeness is attended with great and essential differences, resulting not so much from choice as from the force of circumstances which rendered the institutions of the mother-country inapplicable here. The comparison is the more difficult because the English Constitution is not a constant quantity. Like the glacier, which though seemingly fixed and rigid is yet plastic, and suffers a continual change, it has varied in each century, and sometimes with each successive generation. The system which prevailed under the Tudors differed essentially from that which was established at the Revolution in 1688, and this has been

THE ENGLISH CONSTITUTION.

147

subjected in our own times to almost as great a change. It is therefore important, in reasoning from English institutions to our own, to remember that the government under which our forefathers were born, and from which they derived their ideas of constitutional freedom, was not identical with that which exists in England at the present day. The origin and development of the English Constitution are consequently a study which should be cultivated by every American, not only for its intrinsic value, but for the light which it sheds on the laws and institutions of the United States.

The government of the United States is essentially limited. If this may also be said of the English government, the extent and nature of the restraints are in many respects different. The English government was, in the form which it assumed in the reign of Edward I. and retained for centuries, limited by the mode in which authority was distributed among the several parts. The king had no power to make, abrogate, or even interpret the law. Parliament could not legislate without the concurrence of the Crown. The executive power resided in the king, and subordinately in the officers and magistrates whom he appointed. He was then in fact, as he still is theoretically, the commander-in-chief who led the feudal array and the militia of the shires for the defence of the realm or to foreign conquest, and he was also the chief magistrate to whom belonged the duty of seeing that the laws were enforced. On the qualities or defects, the vigor or imbecility, of the monarch, depended the repose, the safety, the greatness of the kingdom. If Henry V. or Queen Elizabeth could raise England to a foremost place among the nations, she might be no less depressed by a Henry VI. or Charles II. Still, the king could not engage successfully in any great or protracted enterprise, or provide effectually against invasion, without the aid of Parliament. It was not merely that the right of levying taxes lay with the Lords and Commons. They were, as every king of England who per

1 Prohibitions del Roy, 12 Reports, 63, 74; Campbell's Lives of the Chief-Justices, 271, 275.

sistently transgressed the limits set by the Constitution found to his cost, superior in military strength to any force that could be mustered by the Crown. It was, moreover, the singular merit of the English Constitution, as it existed in those earlier times, that while the Upper and Lower Houses were diverse, and counterpoised each other as well as the power of the Crown, they were yet, thanks to the high-spirited knights who represented the shires and formed a connecting link between the aristocracy and the people, rarely disunited when grievances were to be redressed, a profligate minister punished, or a feeble or unworthy monarch deposed. As no material change could be made in the laws without their concurrence, so it was not easy to resist any legislative reform on which they insisted; and they had in the right of the Commons to impeach, and of the Peers to convict and sentence, a weapon of which all public men stood in awe, and which, though grossly abused, was on the whole favorable to liberty and good government.

The laws were originally promulgated by the king, with the advice and consent of Parliament; but the legislative power gradually passed from his hands to those of the Lords and Commons. This was not merely an outgrowth of Teutonic and Scandinavian freedom, but resulted from the feudal organization which defined the obligations of the subject and made his concurrence essential to a change. So the king's dues, as lord paramount, were fixed by custom, and could not rightfully be increased without the consent of those who held of him as tenants. The Great Charter accordingly declared that except "for ransoming our body, making our first-born son a knight, and for once marrying our eldest daughter, no scutage or aid shall be imposed save by the Common Council of the realm."2 And although this clause was omitted from the Charter as re-issued in the reign of Henry III., it was measurably re-enacted by Edward I. and became an integral though often violated part of the Con

12 Parliamentary History, 365; 1 Green's History of the English People, 461.

2 Stubbs' Documents, 290.

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