Wednesday, 26 October 2011

Lord Brougham on the British constitution

Henry, Lord Brougham was a liberal lawyer and politician who served as Lord Chancellor from 1830 to 1834.  What follows are some passages from Brougham's British Constitution (1844).  Brougham's view of the constitution of his own day is somewhat self-congratulatory (especially when he is talking about the virtue of the judiciary, of which he happened to be a leading member), and one might question how far it reflected the practical realities of life for most Britons in early Victorian times.  His prose is also rather purpleish.  But what he has to say can stand as a fine example of the liberal constitutional ideal that men like Brougham fought to promote.

"If the other parts of the political fabric which we have been surveying are well entitled to great admiration, surely there is no portion of it more worthy of an affectionate veneration than the Judicial system. It is by very far the most pure of any that ever existed among men; its purity in modern times is not only beyond impeachment, but beyond all question. In the utmost violence of faction, in the wildest storms of popular discontent, when the Crown, the Church, the Peers, the Commons, were assailed with the most unmeasured violence, for the last century and upwards no whisper has been heard against the spotless purity of the ermine....

....The Judicial power, pure and unsullied, calmly exercised amidst the uproar of contending parties by men removed above all contamination of faction, all participation in either its fury or its delusions, held alike independent of the Crown, the Parliament, and the multitude, and only to be shaken by the misconduct of those who wield it, forms a mighty zone which girds our social pyramid round about, connecting the loftier and narrower with the humbler and broader regions of the structure, binding the whole together, and repressing alike the encroachments and the petulance of any of its parts....

The meanest person in the country cannot be oppressed without his wrongs becoming known in Parliament and to the whole community, even if the unhappy expense and complication still involving all legal proceedings should prevent him from having the full benefit of the Judicial system. This is one of the prime distinctions of England; that the Houses of Parliament, beside transacting the regular public business of the Nation, are ever open to hear the petitions of the people, and the grievances of individuals; nor can the most insignificant member of either stand up in his place to prefer a complaint of such wrongs from the meanest subject of the Crown, without having a patient and even favourable audience....

It is needless to enumerate the important checks on Royal authority and Ministerial abuse which this Constitution provides. The people cannot be taxed to the amount of a farthing without the consent of the whole Parliament; there cannot be raised one man to serve in the Army... without the sanction of the same three powers.... Above all, for every act done by the Crown there must be a responsible adviser and responsible agents; so that all Ministers, from the highest officers of state down to the most humble instrument of government, are liable to be both sued at law by any one whom they oppress, and impeached by Parliament for their evil deeds.

The right of Public Meetings to consider state affairs is possessed in an almost unlimited extent by this people. It is only restricted by law when it exceeds all fair, useful, and legal bounds, and is made the means of intimidating the constituted authorities, terrifying the peaceable and well-disposed, and preparing the forces and the approach of rebellion.

The right of Printing and Publishing is subject to no further restriction than that of attending public meetings. No previous licence is required either for putting forth a book or carrying on a journal; men are only called upon to afford the means of discovering their persons, in case they should pervert the press to the purposes of private and personal malice, or should make it an engine for exciting to insurrection and other crimes....

The security of personal liberty is not only made complete by the Courts being open to any parties who have been unlawfully arrested, but by the severe penalty inflicted on all the Judges who refuse a writ of Habeas Corpus....

The Government cannot be carried on with us for any length of time, unless the Ministers of the day have the support of a decided Majority in both Houses of Parliament.... Hence the Government can always reckon on a general support of its measures; and can both carry on hostilities, if unhappily this recourse should be unavoidable, form alliances, and enter into negotiations with sufficient confidence. Extravagant grants of money will not be obtained; unjust or impolitic measures will not be supported; but the Government which flies not in the face of public opinion, may be well assured of receiving the sanction of Parliament to all its important measures."