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CH A P. VII.
OF THE BRITISH CONSTITUTION.
Y the CONSTITUTION of a country is
meant so much of its law, as relates to the designation and form of the legislature; the rights and functions of the several parts of the legislative body; the construction, office, and jurisdiction of courts of justice. The constitution is one principal division, fcction, or title, of the code of public laws; distinguished from the rest only by the superior importance of the fubject of which it trcats. Therefore the terms constitutional and unconflitutional mcan legal and illegal. The distinction and the ideas, which these terms denote, are founded in the same authority with the law of the land upon any other subject; and to be ascertained by the same inquiries. In England the system of public jurisprudence is made up of acts of parliament, of decisions of courts of law, and of immeinorial usages: consequently, these are the principles of which the English constitution itself consists; the fources from which all our knowledge of its nature and limitations is to be deduced, and the authorities to which all appeal onght to be made, and by which every constitutional doubt and question can alone be decided. This plain and intelligible definition is the more necessary to be preserved in our thoughts, as some writers upon the subject absurdly confound what is conftitutional, with what is expedient; pronouncing forthwith a meafure to be unconstitutional, which they adjudge in any respect to be detrimental or dangerous: whilst others again aferibe a kind of tranfcendant authority, or mysterious sandity, to the constitution, as if it were founded in some higher original than that which gives force and obligation to the ordinary laws and statutes of the rcalm, or were inviolable on any other account than its intrinsic utility. An act of parliament in England can never be unconstitutional, in the strict and proper acceptation of the term; in a lower sense it may, viz. when it militates with the spirit, contradicts the analogy, or defeats the provision of other laws, made to regulate the form of government. Even that flagitious abuse of their trust, by which a parliament of Henry the Eighth conferred upon the king's proclama
tion the authority of law, was unconftitutional only in this latter sense.
Most of those who treat of the British constitution, consider it as a scheme of government forinally planned and contrived by our ancestors, in some certain æra of our national history, and as set up in pursuance of such regular plan and design. Something of this fort is secretly supposed, or referred to, in the expressions of those who speak of the “ principle of the constitu
tion," of bringing back the constitution to its “ first principles," of reitoring it to its “ori
ginal purity,” or “primitive model.” Now this appears to me an erroncous conception of the subjeci. No such plan was ever formed, consequently no such first principles, original model, or standard exist. I mean, there never was a date or point of time in our history, when the government of England was to be set up anew, and when it was referred to any single person, or assembly, or committee, to frame a charter for the future government of the country; or when a conftitution, fo prepared and digested, was by common consent received and establithed. In the time of the civil wars, or rather between the death of Charles the First and the restoration of his son, many such projects were published,
but noné were carried into exécution. The great charter, and the bill of rights, were wise and strenuous efforts to obtain security against certain abuses of regal power, by which the subject had been formerly aggrieved; but these were, either of them, much too partial modifications of the constitution to give it a new original. The constitution of England, like that of most countries in Europe, hath grown out of occasion and emergency; from the fluctuating policy of different ages; from the contentions, successes, interests, and opportunities of different orders and parties of men in the community. It resembles one of those old mansions, which instead of being built all at once, after a regular plan, and according to the rules of architecture at present established, has been reared in different ages of the art, has been altered from time to time, and has been continually receiving additions and repairs suited to the taste, fortune, or conveniency of its successive proprietors. : In such a building we look in vain for the elegance and proportion, for the just order and correspondence of parts, which we expect in a modern edifice; and which external symmetry, after all, contributes much more perhaps to the amusement of the ben VOL. II.
holder, than the accommodation of the inhaa bitant.
In the British, and possibly in all other consti. tutions, there exists a wide difference between the actual state of the government and the theory. The one results from the other ; but still they are different. When we contemplate the theory of the British government, we see the King invested with the most absolute personal impunity ; with a power of rejecting laws, which have been resolved upon by both houses of parliament ; of conferring by his charter, upon any set or fuccession of men he pleases, the privilege of fending reprefentatives into one house of parliament, as by his immediate appointment he can place whom he will in the other. What is this, a foreigner 'might ask, but a more circuitous defpotifın? Yet, when we turn our attention from the legal extent to the actual exercise of royal authority in England, we see these formidable prerogatives dwindled into mere ceremonies ; and, in their stead a fure and commanding influence, of which the constitution, it feems, is totally ignorant, growing out of that enormous patronage, which the increased territory and opulence of the empire have placed in the disposal of the executive magistrate.