A FRENCH VIEW OF THE ENGLISH CONSTITU-
THE two volumes before us, respectively introduced to the public by Professor Dicey and Sir Frederick Pollock, the most eminent of living English jurists, can be described from the point of view of the constitutional lawyer as nothing less than fascinating. In the first place, the foreigner's stand- point from which they are written gives them a delightful freshness and piquancy. The commonplaces of the Constitu- tion when described by M. Boutmy cease to be trite. Placed in a new light, and looked at from a new angle of vision, we see points of interest and importance we had ignored before. But this does not in any sense exhaust the charm of M. Boutmy's constitutional studies. Combined with a deep and liberal knowledge of our laws and institutions, he possesses in a high degree that faculty of clear and logical disquisition which belongs in some measure to all Frenchmen. Occasionally Frenchmen use their lucidityonly to make error more erroneous. When, however, as in the present case, accuracy and a true in. stinct for the subject are joined to lucidity, the result is all that can be desired. Of M. Bontmy's studies in the English Constitution, it is not too much to say that they will prove invaluable to those who desire to master the principles and customs upon which our government rests.
In the earlier portions of the volume entitled The Englisls Constitution, M. Boutmy sketches the growth of our institu- tions in the past. Throughout his historical comments are able and learned, but in one respect they deserve special notice. Students of our past have dimly felt that the instinctive desire of the English race for political homogeneity—in other words, the spirit of Unionism—has been one of the great factors hi making our institutions what they are,—the type and example of free institutions throughout the world. It was the Anglo- Saxon instinct towards homogeneity and Unionism which pro- duced a soil capable of letting the seed of freedom grow and fructify. If the rank weeds of Particularism had been allowed to choke the ground, free institutions could never have grown up among us. The conclusions arrived at by Mr. Boutmy may be gathered from the following passages :— "England alone of all European States enjoyed the good for- tune of a homogeneous existence from the twelfth century onwards. She owed this advantage, in part, to the peculiar- character of her administrative districts which she inherited from the Anglo-Saxons. Even the county, the most extensive of those districts, barely equals in area, on the average, half a modern French department or the tenth part of such a province as Brittany. Even if a county had claims of its own, it had not the requisite forces at command to support them. Several counties represented more or less exactly the settlement, not of a race, but of a par- ticular tribe of invaders; occasionally they betokened the existence of some short-lived monarchy, rarely that of a nationality which had been practically distinct. Very few among the counties could recall the enjoyment of a separate political existence, as the per- petual revolutions, conquests, and readjustments of Anglo-Saxon times had obscured all memories of the past. The counties were subjugated at one stroke by the Norman kings, and no one of them, apart from the others, had the opportunity of bargaining for the maintenance or concession of peculiar privileges. Under- these circumstances they became scarcely more than mere divisiona for administrative and fiscal purposes, without individual character- or interest Yet one more observation : throughout this territory thus welded together, and amongst this people thus set free from provincialism with its petty ambitions and selfish aims,. we find prevailing at a very early period a uniform law and uniform customs. Towards the end of the reign of Henry II. all important local differences had disappeared. In this respect also. national unity was an accomplished fact After the reign of Stephen, the three codes,' West Saxon, Mercian, and Danish, which divided the kingdom among them, were heard of no more ; after the reign of Henry IL, with a few strictly local exceptions, England possessed but one single customary law—the common law—one and the same for the whole land. In France, the classification of • customs' [coutumes] was completed in the six- teenth century under Henry III. Two hundred and eighty-five (of which sixty were of first-rate importance) were found to exist, and this without counting the great division between the country of customary law and the country of Boman law (pays de &reit coutumier et pays de droit Remain). In the fifteenth, sixteenth, and seventeenth centuries, when the kings annexed great provinces, all that they thought of doing, or could do, was to create a certain number of separate judicial districts, with a parliament over each. The subdivision and confusion were so great, and each district clung so obstinately to its own usages, that it seemed impossible to dispense with this intermediate stage ; a more hasty centralisa- • (1.) The English Constitution. By Emile Boutmy. Translated by Isabel M. Eaden. With an Introduction by Sir Frederick Pollock, Bart., MA. London : Macmillan and Co. 1E391.—(2.) Studies in Constitutional Low: Francs- England—United States By Emile Boutmy. Translated by E. H. Dicey. With an Introduction by A. V. Dicey, B.C.L. Vinerian Professor of English Law, Oxford. London : Macmillan and Co. 1891. ticn would have jeopardised everything. Unity in this as in other respects was in France a thing of very slow growth. Hindered -throughout along period by the obstinate remnants of a feudalism which had become part of the daily life and instincts of mankind, unity was in the end compelled to take a strictly logical shape, an imperative and statutory form, and to owe its final establishment to express command and the exercise of force. In England legis- lative unity was not formally imposed, since it met with no serious resistance : it crept in and diffused itself noiselessly in the unob- trusive shape of judicial precedent, and its development was blended with the development of men's needs and habits. Legis- lation was by no means complete by the end of the twelfth century, but unity of national law was, we may consider, estab- lished in 1200, thirty years after the definite institution of an itinerant High Court. To repeat : a strong king, a weak baronage, a homogeneous kingdom—these are the three points brought out by this long analysis. We must keep them in view if we are to understand how it was that political liberty appeared in England at so early a date and clothed in its most perfect form—a national parliament—at a time when other countries were painfully elaborating the clumsy and complicated mechanism of States General and States Provincial."
It is interesting to note how this instinctive impulse to- wards Unionism has always influenced Englishmen at the crises of their fate. Cromwell, one of the most compre- hensive-minded of statesmen, felt it intensely, and gave effect to it for a time by giving legislative homogeneity to England, Scotland, and Ireland. In the same way, the instinct asserted itself, in spite of every obstacle, when Jeffer- son went to the White House pledged to apply a disunionist policy to the Constitution of the United States. Again the spirit blazed up in Lincoln, and the men who at his call poured forth their blood like water to put down a separatist rebellion. Lastly, the spirit infused itself in 1886 into an electorate under the strongest possible temptation to be blind to it,s influence, overthrew the strongest and most popular Minister the country has seen since Chatham, and returned a body of men who, but for the recrudescence of the unionist spirit, would have had little hope of securing the political confidence of their countrymen.
The contents of The English Constitution cannot be dealt with in detail here, but we may note that the chapters con-
cerned with the various developments of government in England are exceedingly clear. M. Boutmy, however, some- what exaggerates the absolutism of the English landed oligarchy at the end of the last and the beginning of this century. He quotes, for instance, a remark from one of Disraeli's novels, as an example of how great was that absolutism :—" My father,' said Mr. Milbank, has often told me that in his early days the displeasure of a Peer of England was like a sentence of death to a man.'" That this is a gross exaggeration will be at once admitted by all who have read the records of the time referred to. Fortunately, the matter can be brought to an easy test. Let M. Boutmy turn over the Common Law or Chancery Reports between 1790 and 1820, and examine the cases. He will find instances of humble men who had incurred the displeasure of Peers of England, not only not in the condition of those sentenced to death, but engaging in litigation with the said Peers, and beating them horse, foot, and artillery.
M. Boutmy has in another respect exaggerated the posi- tion of the English aristocracy. For example, in his other volume, Studies in Constitutional Law, he says, while con-
trasting the Constitutions of the United Kingdom and of the United States : "Finally, to go to the bottom of the whole matter, the first is entirely aristocratic in its construction ; the second, democratic to the very core." M. Boutmy could not possibly have made a greater mistake than is conveyed in these words. The English Constitution never has been "entirely aristocratic in construction." It is quite true that our Constitution has almost always been worked—" run "—by the aristocracy ; but that is a very different matter. In con- struction the machine is democratic, but till within the last thirty years it has been run by the aristocracy. That is as far as it is safe to go in laying down any general proposition in regard to the part played by the aristocracy in the Consti- tution. Oddly enough, the truth of our remark is capable of proof. The aristocracy might vanish entirely, and yet the constitutional machine remain exactly as it is. Sup- pose an influenza epidemic which attacked and destroyed all Peers and their heirs, of whatever degree. Constitutionally, the noble Lords would not be missed for a moment. The House of Lords would still sit and continue its functions, for the Bishops would still be there. But the Bishops are not mem-
bers of the aristocracy, or part of an aristocratic system, for they are appointed by the person chosen as Prime Minister by the representatives of the people. And in no other way would the Peers be missed. We believe we are right in saying that there is no statute which obliges the Government to appoint Peers to particular offices. The Lord Chancellor need no more be a Peer than the Viceroy of India or the Governor-General of Cana da. But if the aristocracy have no necessary and essen- tial place in the Constitution, how can the Constitution be entirely aristocratic in construction ?
Before taking leave of M. Boutmy's volume of Studies in Constitutional Law, we will quote his humorous description of the scene which took place in the Corps Legislatif in 1815, when Bliicher was marching', on Paris after the Battle of Waterloo. Torn from the context, it may not seem to be very "constitutional," but our readers will, we are sure, pardon this want for the sake of the amusement they will derive from the extract :— " On July 4th, the Moniteur tells the people that Paris had surrendered to the Allies. On the 5th, the Chamber of Deputies meets at the usual hour. Instead of making use of the time to discuss the danger which threatens the country, they begin a lively debate on a Declaration of Rights presented by Garat I. All rights emanate from the people; the sovereignty of the people is made up of the rights of the individuals. VIII. The liberty of each individual is limited only by the liberty of other individuals. XI. The elements of all the sciences, of all the talents, a taste and imagination, shall be taught in a university.' The debate goes on. For several hours all manner of theories are brought forward, every possible definition, whether traditional or given by authorities, is discussed. The debaters are full of animation and earnestness. 'It is not a Declaration of Rights, it is a declaration of violence,' cries one. But the English are coming !' interrupts another. Even if they were here I should demand the right to state my opinion.' The sitting breaks up at 5 o'clock and is adjourned till 7. During the day the Chamber had adopted a Declaration of Rights. In the evening it is busy over a declara- tion of principles. When the President gives out the result of the voting the enthusiasm is indescribable, all the Deputies rise to their feet, stretching out their hands, crowding together, em- bracing each other and bursting into tears. 'Let the enemy come, now we can die.' The next day, while the Allies are taking possession of the gates of the town, the Chamber is still discussing and voting on fifty-two articles of the Constitution with unflagging interest. The debate on the second section of Chapter IV. is adjourned to the next day. The next day Bliicher enters Paris."
We must add that in both the books before us, the work of translation is exceedingly well done.
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