Sunday, 2 October 2011

E.A.Freeman on the development of the constitution

From The Growth of the English Constitution from the Earliest Times by Edward Augustus Freeman (1898):

"Our English Constitution was never made, in the sense in which the Constitutions of many other countries have been made. There never was any moment when Englishmen drew out their political system in the shape of a formal document, whether as the carrying out of any abstract political theories or as the imitation of the past or present system of any other nation.

There are indeed certain great political documents, each of which forms a landmark in our political history. There is the Great Charter, the Petition of Right, the Bill of Rights, But not one of these gave itself out as the enactment of anything new. All claimed to set forth, with new strength, it might be, and with new clearness, those rights of Englishmen which were already old. In all our great political struggles the voice of Englishmen has never called for the assertion of new principles, for the enactment of new laws; the cry has always been for the better observance of the laws which were already in force, for the redress of grievances which had arisen from their corruption or neglect. Till the Great Charter was wrung from John, men called for the laws of good King Eadward. And when the tyrant had unwillingly set his seal to the ground-work of all our later Law, men called for the stricter observance of a Charter which was deemed to be itself only the laws of Eadward in a newer dress. We have made changes from time to time; but they have been changes which have been at once conservative and progressive — conservative because progressive, progressive because conservative. They have been the application of ancient principles to new circumstances; they have been the careful repairs of an old building, not the pulling down of an old building and the rearing up of a new. The life and soul of English law has ever been precedent; we have always held that whatever our fathers once did their sons have a right to do again. When the Estates of the Realm declared the throne of James the Second to be vacant, they did not seek to justify the act by any theories of the right of resistance, or by any doctrines of the rights of man. It was enough that, three hundred years before, the Estates of the Realm had declared the throne of Richard the Second to be vacant. By thus walking in the old paths, by thus hearkening to the wisdom of our forefathers, we have been able to change whenever change has been needed, and we have been kept back from changing out of the mere love of abstract theory. We have thus been able to advance, if somewhat slowly, yet the more surely; and, when we have made a false step, we have been able to retrace it. On this last power, the power of undoing whatever has been done amiss, I wish specially to insist. In tracing the steps by which our Constitution has grown into its present shape, I shall try specially to show in how many cases the best acts of modern legislation have been, wittingly or unwittingly, a falling back on the principles of our earliest times....

The movements and revolutions of former times, as I have before said, seldom professed to seek in the acknowledged Law, they rather sought 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, which set forth in legal form the nature and measure of the rights which were to be placed on a firmer ground."