Page:Studies in constitutional law Fr-En-US (1891).pdf/156

148 possession. Go back in the history of England as far as the fourteenth century. We find three powers standing face to face — the Crown, the Lords, and the Commons; they are constantly engaged either in friendly negotiations or in violent opposition. From year to year they have to rearrange their varying form, their mobile relations, and their undefined and unstable balance of power. The two documents generally quoted as the sources of the modern English Constitution, the Declaration of Right of 1689, and the Act of Settlement of 1701, are but treaties somewhat more weighty than the others. There is no question of creating powers — they already exist — nor even of carefully enunciating their attributes — these are already fixed by custom. The whole object of these famous documents is to define the limits assigned by custom to these pre-existing powers on certain points actually in dispute. The Crown does not owe its authority to these documents, it is the dynasty only which derives its title from them. The royal prerogative remains the prerogative of Henry VIII. and Elizabeth, transmitted without interruption to their successors; and the new dynasty simply accepts the order of things, under the general restrictions of the Common Law, partly confirmed by the Acts which changed the order of succession to the throne.

To sum up: the great political powers in England are in no way the creations of a constitution, for their existence is anterior to any fundamental law whatever. Their title does not result from a direct expression of national will promulgated in