□ | □
□ □ | □
□ | □ | □
" The present generation must of necessity look on the constitution in a spirit different from the sentiment either of 1791 or of 1818 . But the question [ 369 ] remains whether this identification bore fruit in other parts of the law also , or whether it was confined to one particular branch , where the Roman law was grafted upon the English stock . That might have worked to some degree in small communities where the candidates could become known to most of the electorate , at a time when a candidate did n't need to spend much money to get elected to any office , because public demand for candidacy information made it profitable for newspapers to print it , but by the middle of the 19th century , that situation changed . These advantages are surely not owing to the soil of this island , nor to the latitude in which it is placed ; but to the spirit of its laws , from which , through various means , the characteristic independence and industrious-ness of our nation have been derived . The Turk cannot govern Egypt , and Arabia , and Curdistan , as he governs Thrace ; nor has he the same dominion in the Crimea and in Algiers which he has at Brusa and Smyrna . The problem was brought home to me back in the 1980s when an incompetent and prejudiced district court judge in Texas , where such judges are elected , who had been voted the worst judge in the district by the lawyers there , was nominated for and elected to the Texas Supreme Court , with the support of those same lawyers , as a way to get him out of the district . A process similar to sortition is sometimes used in some jurisdictions to assign judges to cases , although more often there is a presiding judge who can intervene to assign cases manually . Thus a Ministry under whose advice Parliament were not summoned to meet for more than a year would , owing to the lapse of the Mutiny Act , etc ., become through their agents engaged in a conflict with the Courts . It need not be said that this is absurd , although the rules of law which are based upon it are not so . The Dean of Windsor 's Case decides that such a covenant binds an assignee of the term , although not named . This rule of law does not stand on a succession between the wrongful possessor and the owner , which is out of the question . For although there is no difference in principle between a devise of a piece of land by will and a conveyance of it by deed , the dramatic resemblance of a devisee to an heir is stronger than that of a grantee . It is not regarded as issuing out of the land like a rent , so that while a rent binds every one who has the land , no matter how , a disseisor is not bound by the trust . Before attempting a direct answer to this inquiry it is well to point out that in two respects of considerable importance the relation of the Imperial Parliament22 to the self-governing colonies , whether called Dominions or not , has in no respect changed since 1884 . It assuredly is to increase the power of any party which possesses a parliamentary majority , i.e ., a majority , however got together , of the House of Commons , and , finally , to place the control of legislation , and indeed the whole government of the country , in the hands of the Cabinet which is in England at once the only instrument through which a dominant party can exercise its power , and the only body in the state which can lead and control the parliamentary majority of which the Cabinet is the organ . On the other hand , one who wrongfully dispossesses another , - - a disseisor , - - gets a different estate , is in of a new fee , although the land is the same ; and much technical reasoning is based upon this doctrine . Courts , means , in the first place , that by no proceeding known to the law can the King be made personally responsible for any act done by him ; if ( to give an absurd example ) the King were himself to shoot the Premier through the head , no court in England could take cognisance of the act . Whether English electors are now strongly disposed to confide to the decision of judges questions which excite strong political feeling is doubtful . The dear statement which that work contains of the difference between our so-called " written law " and " our conventional constitution , " originally led me to seek for an answer to the inquiry , what may be the true source whence constitutional understandings , which are not laws , derive their binding power , whilst the equally vigorous statements contained in the same book of the aspect in which the growth of the constitution presents itself to an historian forced upon my attention the essential difference between the historical and the legal way of regarding our institutions , and compelled me to consider whether the habit of looking too exclusively at the steps by which the constitution has been developed does not prevent students from paying sufficient attention to the law of the constitution as it now actually exists . / 2 / ( That is to say , such obligations follow the analogy of easements , and , as the burden falls on the quasi servient estate , the benefit goes with the dominant land to assigns , whether mentioned or not , and they are not considered from the point of view of contract at all . We should call it a contract , but it probably presented itself to the mind of Glanvill 's predecessors simply as a duty or obligation attached by law to a transaction which was directed to a different point ; just as the liability of a bailee , which is now treated as arising from his undertaking , was originally raised by the law out of the position in which he stood toward third persons . This body would , subject of course to supervision by the state , manage the office in accordance with their own knowledge and judgment ; would , as far as I understand the proposal , be allowed to share in the gains affected by good management ; and would , out of the revenue of the Post Office , make good the compensation due to persons who suffered by the negligence or misconduct of the officials . Under the referendum an elector may begin to find it possible to vote for or against a given law in accordance with his real view as to its merits or demerits , without being harassed through the knowledge that if he votes against a law which his conscience and his judgment condemns , he will also be voting that A , whom he deems the fittest man in England to be Prime Minister , shall cease to hold office , and that B , whom the elector happens to distrust , shall at once become Prime Minister .