The Growth of the English Constitution from the Earliest TimesFreeman, Edward A. (Edward Augustus)
History
The Growth of the English Constitution from the Earliest Times
Freeman, Edward A. (Edward Augustus)
Constitutional history -- Great Britain
IN my two former chapters I have carried my brief sketch of the history
of the English Constitution down to the great events of the seventeenth
century. I chose that point as the end of my consecutive narrative,
because the peculiar characteristic of the times which have followed
has been that so many and such important practical changes have been
made without any change in the written Law, without any re-enactment of
the Law, without any fresh declaration of its meaning. The movements
and revolutions of former times, as I have before said, seldom sought
any acknowledged change in the Law, but rather its more distinct
enactment, its more careful and honest administration. This was the
general character of all the great steps in our political history, from
the day when William of Normandy renewed the Laws of Eadward to the day
when William of Orange gave his royal assent to the Bill of Rights.
But, though each step in our progress took the shape, not of the
creation of a new right, but of the firmer establishment of an old one,
yet each step was marked by some formal and public act which stands
enrolled among the landmarks of our progress. Some Charter was granted
by the Sovereign, some Act of Parliament was passed by the Estates
of the Realm, setting forth in legal form the nature and measure of
the rights which it was sought to place on a firmer ground. Since
the seventeenth century things have in this respect greatly altered.
The work of legislation, of strictly constitutional legislation, has
never ceased; a long succession of legislative enactments stand out as
landmarks of political progress no less in more recent than in earlier
times. But alongside of them there has also been a series of political
changes, changes of no less moment than those which are recorded in the
statute-book, which have been made without any legislative enactment
whatever. A whole code of political maxims, universally acknowledged
in theory, universally carried out in practice, has grown up, without
leaving among the formal acts of our legislature any trace of the
steps by which it grew. Up to the end of the seventeenth century,
we may fairly say that no distinction could be drawn between the
Constitution and the Law. The prerogative of the Crown, the privilege
of Parliament, the liberty of the subject, might not always be clearly
defined on every point. It has indeed been said that those three things
were all of them things to which in their own nature no limit could be
set. But all three were supposed to rest, if not on the direct words
of the Statute Law, yet at least on that somewhat shadowy yet very
practical creation, that mixture of genuine ancient traditions and of
recent devices of lawyers, which is known to Englishmen as the Common
Law. Any breach either of the rights of the Sovereign or of the rights
of the subject was a legal offence, capable of legal definition and
subjecting the offender to legal penalties. An act which could not be
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