omnipotence. Some day the tardy theory may catch up with the facts. Whatever may be its defects in nature and form, parliamentary sovereignty is the substitute which in England has taken the place of the organic theory of the sixteenth century. In America the problem was met in another way. In the Tudor state, as we have seen, the departments of government were not clearly separated. Its main characteristic was a fusion of powers. While this has by no means entirely disappeared in England, the legislative supremacy of Parliament has utterly changed it. In America the old fusion of powers was replaced not by the elevation of one of the organs of government above the rest, as in England, but by a series of elaborate checks to prevent that very thing. A "separation of powers" certainly took place in both England and North America; it was, however, by no means so far reaching, in England at least, as Montesquieu imagined he saw it to be, and far less complete than the modern Continental theory. For, notwithstanding the great changes made, the old foundations remained. In England, as we have seen, the old indefiniteness in the powers of courts long influenced their action, notwithstanding the newer doctrine of parliamentary sovereignty, and has never wholly disappeared; while in America the doctrine of checks and balances has been far less effective than the English doctrine of parliamentary supremacy, in narrowing the scope of judicial action. American courts still retain much of their Tudor indefiniteness, notwithstanding our separation of departments. They are guided to an extent unknown now in England by questions of policy and expediency. The Supreme Court has acted again and again on the principle that it may reverse its decisions, a principle which the House of Lords has definitely accepted as inadmissible.1 In short, in America many of those traditional powers and functions have remained in the courts which in England have to a greater extent been excluded by the rigour of the doctrine of parliamentary sovereignty. These differences are now very marked, but they are also to be seen in the English colonies in North America long before independence. The colonists retained to a marked and unusual degree the traditions of Tudor England. In all our study of American institutions, colonial and contemporary, institutions both of public law and private law, this fact must be reckoned with. The breach between colonies and mother country was largely a mutual misunderstanding based, in great part, on the fact of this retention of older ideas in the colonies after parliamentary sovereignty had driven them out in the mother country. These facts have often been noticed. Thus Professor Dicey says, "American institutions are the direct outgrowth of English ideas, and in the main of the English ideas which prevailed in England during the democratic movement of the seventeenth century."2 1 London Tramways Co. v. London County Council. App. C., 375 (1898). * Law of the Constitution, p. 527. “Curiously enough," says Professor Lowell, "the political evolution of America branched off from that of England early Speaking of the practice of courts in declaring statutes void, Professor Lowell says: "With the growth, however, of the doctrine of the omnipotence of Parliament, it vanished from the courts early in the eighteenth century; but this was the point where the stream of political thought in the American colonies separated from that of the mother country, and the doctrine not only contributed indirectly to the evolution of constitutional law in the United States, but has been occasionally repeated in express terms by American judges."1 It is not within the scope of this essay to compare in the eighteenth century, nearly a couple of generations before the revolt of the colonies, and while the legal tone of thought was at its height. American institutions are still in some respects singularly like those of England at the death of Queen Anne, and not least in the power of legal tradition, which was rather intensified than weakened by its transfer to the new world. Thereafter the changes in the British Constitution found no echo on the other side of the Atlantic, largely no doubt because taking the form of custom, not of statute, they were not readily observed." Government of England, vol. ii. p. 472. 1 Government of England, vol. ii. pp. 480, 481. See also Coxe, Legislative Power, pp. 214, 215. On this subject Hatschek says: “Von der siegreichen Revolutionspartei wird aber 1688 in dem Rechtsfalle L. Mayor and Commonalty of London v. Wood, und zwar durch den Mund des Richters Holt behauptet, dass ein Gesetz, das z. B. jemanden gerade zum Richter in eigener Sache bestellte, gegen das Common law und gegen die Vernunft, daher ungültig wäre. So wurds selbst nach der glorreichen Revolution den Richtern ein materielles Prüfungsrecht der Gesetze zugestanden, eine Doktrin, die damals nach Nord-Amerika kam und hier, fruchtbaren Boden fassend, sich bis auf den heutigen Tag erhalten hat. In England aber nahm nach der glorreichen Revolution die Doktrin einen anderen Weg. Die zur Herrschaft kommende liberale Whigdoktrin lässt sich die Steigerung der parlamentarischen Allmacht deshalb gefallen, weil sie in ihr das Mittel zur Einschränkung der Königlichen Prärogative sieht. Die Allmacht des Parlaments habe die englische Freiheit gerettet. Daher die Willensäusserungen dieses allmächtigen Parlaments keiner Macht auf Erden untergeordnet seien. Die Suprematie des Parlaments bedinge die Koordination des Gesetzesrechts (Statute law) und des Common law.” Englisches Staatsrecht, vol. i. p. 138. See also a letter of Thomas Jefferson to Judge Tyler dated 1812, Jefferson's Works (Washington, 1854), vol. vi. pp. 65, 66. the present English and American systems, or to trace the effect of the older English ideas upon the growth of our constitutional system. That system, however, can be properly understood, in its origin, development, workings, and spirit, only in the light of precedents and traditions which run back to the England of the civil wars and the period before the civil wars.1 1 The further development of these principles in the American constitution is to be treated in a forthcoming volume, by Professor Edward S. Corwin, to be entitled, The Growth of Judicial Review. NOTE A. PARLIAMENT'S FORMAL Assertion of Sovereignty— THE following is an extract from the act: "The Question is not whether it belong to King or no, to restrain such Force, but if the King shall refuse to discharge that Duty and Trust, whether there is not a Power in the two Houses, to provide for the Safety of the Parliament and Peace of the Kingdom, which is the end for which the Ordinance concerning the Militia was made, and being agreeable to the Scope and Purpose of the Law, cannot in reason be adjudged to be contrary to it, for although it do affirm it to be in the King, yet it doth not exclude those in whom the Law hath placed a Power for that purpose, as in the Courts of Justice, that Sheriffs and other Officers and Ministers of those Courts, and as their Power is derived from the King by his Patents, yet cannot it be restrained by his Majesty's command, by his great Seal or otherwise, much less can the Power of Parliament be concluded by his Majesty's command, because the Authority thereof is of a higher and more eminent nature then any of those Courts. "It is acknowledged that the King is the Fountain of Justice and Protection, but the Acts of Justice and Protection are not exercised in his own Person, nor depend upon his pleasure but by his Courts, and by his Ministers who must do their duty therein, though the King in his own Person should forbid them: and therefore if Judgments should be given by them against the King's Will and Personal command, yet are they the King's Judgments. "The High Court of Parliament is not only a Court of Judicature, enabled by the Laws to adjudge and determine the Rights and Liberties of the Kingdom, against such Patents and Grants of His Majesty as are prejudicial thereunto, although strengthned by his Personal Commands, and by his Proclamation under the Great Seal, but it is likewise a Council to provide for the necessity, to prevent the imminent Dangers, and preserve the publick Peace and Safety of the Kingdom, and to declare the King's pleasure in those things that are requisite thereunto, and what they do herein hath the stamp of Royal Authority, although His Majesty seduced by evil Council, do in his own Person oppose or interrupt the same, for the King's Supream and Royal |