CHAPTER II.

UNION.

As already said in the preceding chapter, our Constitution is partly new and partly old. When they set about the task of constructing a Government, our fathers necessarily had in their minds the Government under which they had lived. So much of this as suited their circumstances they took, and could not avoid taking; and in whatever they were obliged to invent they followed the existing model as closely as they could, both from choice and necessity. In every question, therefore, that arises under the Constitution, we should ask, first, What was the English law, what the Colonial law? and secondly, What changes were imposed by new circumstances? We shall thus, in doubtful questions, ascertain what must have been the meaning and intention of the founders, and perhaps also find in the English law, for our guide, principles that have stood the test of time.

It might be thought, from a superficial view of the subject, that if any part of our Constitution was new, it is that which provides for the Union, and establishes its complex relations between the State and General Governments, creating at the same time a Confederacy and a Nation. Yet for this also a pattern existed in the "United Kingdom," and our ancestors adopted the principles by which England, Scotland and Ireland became united. The same pattern existed also in the relation of the Colonies to the Mother Country; and when that relation was severed, first the old Confederacy, and when that failed the present Constitution, was contrived to take the place of the Mother Country.

The image, moreover, of the Union and the States, that is to say of central and local power,-was presented by the con

struction of English society and its division into counties managing their own affairs, subject to the power of King or Parliament managing National affairs,-institutions derived from Alfred and our Saxon ancestors, and brought by them, with their blood and free spirit, from German forests. Lord Campbell, in his Lives of the Chief Justices (Vol. I, p. 33), makes some casual remarks, which illustrate the philosophy both of the English Constitution and of ours in relation to this subject. Speaking of the office of Chief Justiciar as introduced by William the Conqueror from Normandy, he says: "The functions of such an officer would have ill-accorded with the notions of our Anglo-Saxon ancestors, who had a great antipathy to centralization, and prided themselves upon enjoying the rights and advantages of self-government. The shires being parcelled into hundreds and other subdivisions, each of these had courts, in which suits both civil and criminal might be commenced." And again, in a note on next page, "It is curious to observe, that notwithstanding the sweeping change of laws and institutions introduced at the Conquest, the characteristic difference between Frenchmen and Englishmen in the management of local affairs still exists, after the lapse of so many centuries; and that whilst with us parish vestries, town councils, and county sessions, are the organs of the petty Confederated Republics into which England is parcelled out, in France, whether the form of the Government be nominally monarchical or republican, no one can alter the direction of a road, build a bridge, or open a mine, without the authority of the Ministre des Ponts et Chaussées. In Ireland, there being much more Celtic than Anglo-Saxon blood, no self-reliance is felt, and a disposition prevails to throw everything on the Government."

Such are the influences of race; and to these it is due that Norman and Saxon have worked together in harmony to build up a Constitution that suits them both; for though the former came from France to England, both are of the same Teutonic stock which conquered the Celt in France as well as in England, Scotland, and Ireland. Norman and Saxon assimilated and became one people; but they have not assimilated with the

Celt, either in France, in Scotland, or in Ireland, and never will.

Seeing, therefore, that this tendency to unity and diversity, to central and local power, is a quality of race, manifested from the earliest period in English history, it could not fail to show itself in the Constitution of our Government, which else would not have suited the people for whom it was intended. Our ancestors, in obeying a natural impulse, had only to walk in well-worn paths open before them. Let us inquire what those paths were, and whether our fathers kept to them or departed from them.

The British dominions consist, first, of the kingdom, containing England, Wales, Scotland, Ireland, and some adjacent islands, and, secondly, of the colonies and dependencies, such as Canada, the West Indies, India, &c. The first are combined into one Government, by a legislative union, each retaining its local laws, customs and jurisdiction, each subject to the general authority, and each possessing a share of influence over that authority. The position of the colonies, or rather of the English race in those colonies, differs from the former chiefly in this, that their union with the parent country is not legislative but dependent. They have their local laws and local government, but they are subject to the power of the English. Government, and yet have no voice in its councils, or control over its action. In both, the ruling idea, a combination of central with local power, is completely realized.

The countries which compose the United Kingdom, England, Scotland and Ireland, were conquered by the bold and energetic Saxons, a branch of the great Scandinavian, Teutonic, Indo-Germanic or Arian race, which is supposed, by some writers, to have founded all the great empires that have existed in the world, to have been the authors of civilization and free government, and to be now the only portion of the human family capable of enjoying or maintaining either.*

* Gobineau sur l'Inegalité des Races humain.

Without entering upon this question, it is enough for our present purpose that the British Islands were conquered by the Saxons, who drove the aboriginal inhabitants, the Celts, into the barren and wild land, keeping the fertile for themselves; into the bogs of Ireland, the Highlands of Scotland, the mountains of Wales, much as we have driven the Indians into the wilderness, and ruled over them with despotic power, as we govern the Indians, with small regard for their interests or rights.

After a certain time, another branch of this same Germanic race, the Normans, of a higher and more adventurous spirit than the Saxons, invaded and conquered England. But the conquest was of a very different character from that made by the Saxon of the Celt, as was the nature of the government imposed by the Norman on the conquered country. The Norman encountered the resistance of a people as brave and intelligent as himself, who loved liberty and power as he did, who had the same innate sense of justice, order and right, the same force of mind and character. The two races were of kindred blood, which soon flowed in the same veins, and their instincts led them to adopt the same laws and customs. After some generations, the laws, the customs, and the language of the conquered race gained the ascendency, and, in time, all traces of a different origin, or of the conquest, were obliterated.* The trial by jury came from the Saxon and Magna Charta was obtained by Norman barons from a Norman king.

The natural difference and inequality of race is the guiding clue to much of English history. It explains the combination of local and central power exhibited in its government, also its system of representation, the freedom of its laws, its religious wars, its treatment of conquered countries, the condition of its colonies, and the relations that have existed, and do exist, between the component parts of the Empire.

This history establishes one general truth, pertinent to our

*These points are admirably developed in Thierry's History of the Norman Conquest, and Scott's Ivanhoe, which suggested that work.

topic.

Wherever the English go to found a Government, that Government is a copy of the one they left at home. They take with them all the rights and privileges of Englishmen, and all English laws applicable to their condition. They do not impart the benefit of those laws or grant those rights and privileges to people of an inferior race, who are unable to understand, appreciate or enjoy them. They took their laws and rights to America, but did not give them to the Aborigines. They took them to Hindostan, but did not give them to the Indians. They took them to America and the West Indies, but did not give them to the negroes. They took them to Scotland, but did not give them to the Highlanders. They took them to Ireland, but did not give them to the Celts. They kept liberty and law, the trial by jury, and the Habeas Corpus, and the right of suffrage, and, too often, justice and humanity, for themselves, and gave to the conquered the position of a separate and dependent people.

The ruling principle of the English Government, central combined with local authority, springs from the love of liberty and love of power inherent in the Saxon race. Central authority controlling local interests would interfere with self-government. But central authority is necessary in a great and powerful nation. Unless this authority, however, be also subjected to the will of the people, it would be dangerous to liberty. Central power, therefore, for national objects, local power for local objects,-each acting in its sphere, and both obedient to popular opinion,—is the ideal of the English Government. It is the typical form towards which the institutions of all people of English origin tend. It is represented in the relations which England, Scotland and Ireland bear to each other. It is represented in the relation which all the English colonies have borne and still bear to the parent country, and it is represented in the American Union.