Introduction to the Study of the Law of the Constitution. A. V. Dicey
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his readers to assent or deny. If you deny you must show good cause for your denial, and hence may learn fully as much from rational disagreement with our author as from unhesitating assent to his views. Take, then, the Growth of the English Constitution as a first-rate specimen of the mode in which an historian looks at the constitution. What is it that a lawyer, whose object is to acquire the knowledge of law, will learn from its pages? A few citations from the ample and excellent head notes to the first two chapters of the work answer the inquiry.
They run thus:
The Landesgemeinden of Uri and Appenzell; their bearing on English Constitutional History; political elements common to the whole Teutonic race; monarchic, aristocratic, and democratic elements to be found from the beginning; the three classes of men, the noble, the common freeman, and the slave; universal prevalence of slavery; the Teutonic institutions common to the whole Aryan family; witness of Homer; description of the German Assemblies by Tacitus; continuity of English institutions; English nationality assumed; Teutonic institutions brought into Britain by the English conquerors; effects of the settlement on the conquerors; probable increase of slavery; Earls and Churls; growth of the kingly power; nature of kingship; special sanctity of the King; immemorial distinction between Kings and Ealdormen. . . . Gradual growth of the English constitution; new laws seldom called for; importance of precedent; return to early principles in modern legislation; shrinking up of the ancient national Assemblies; constitution of the Witenagemót; the Witenagemót continued in the House of Lords; Gemóts after the Norman Conquest; the King’s right of summons; Life Peerages; origin of the House of Commons; comparison of English and French national Assemblies; of English and French history generally; course of events influenced by particular men; Simon of Montfort . . . Edward the First; the constitution finally completed under him; nature of later changes; difference between English and continental legislatures.
All this is interesting, erudite, full of historical importance, and thoroughly in its place in a book concerned solely with the “growth”
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of the constitution; but in regard to English law and the law of the constitution, the Landesgemeinden of Uri, the witness of Homer, the ealdormen, the constitution of the Witenagemót, and a lot more of fascinating matter are mere antiquarianism. Let no one suppose that to say this is to deny the relation between history and law. It were far better, as things now stand, to be charged with heresy, than to fall under the suspicion of lacking historical-mindedness, or of questioning the universal validity of the historical method. What one may assert without incurring the risk of such crushing imputations is, that the kind of constitutional history which consists in researches into the antiquities of English institutions, has no direct bearing on the rules of constitutional law in the sense in which these rules can become the subject of legal comment. Let us eagerly learn all that is known, and still more eagerly all that is not known, about the Witenagemót. But let us remember that antiquarianism is not law, and that the function of a trained lawyer is not to know what the law of England was yesterday, still less what it was centuries ago, or what it ought to be to-morrow, but to know and be able to state what are the principles of law which actually and at the present day exist in England. For this purpose it boots nothing to know the nature of the Landesgemeinden of Uri, or to understand, if it be understandable, the constitution of the Witenagemót. All this is for a lawyer’s purposes simple antiquarianism. It throws as much light on the constitution of the United States as upon the constitution of England; that is, it throws from a legal point of view no light upon either the one or the other.
Contrast between legal and historical view of constitution.
The name of the United States serves well to remind us of the true relation between constitutional historians and legal constitutionalists. They are each concerned with the constitution, but from a different aspect. An historian is primarily occupied with ascertaining the steps by which a constitution has grown to be what it is. He is deeply, sometimes excessively, concerned with the question of “origins.” He is but indirectly concerned in ascertaining what are the rules of the constitution in the year 1908. To a lawyer, on the other hand, the primary object of study is the law as it now stands; he is only secondarily occupied with ascertaining how it came into existence. This is absolutely clear if we compare the position of an American historian
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with the position of an American jurist. The historian of the American Union would not commence his researches at the year 1789; he would have a good deal to say about Colonial history and about the institutions of England; he might, for aught I know, find himself impelled to go back to the Witenagemót; he would, one may suspect, pause in his researches considerably short of Uri. A lawyer lecturing on the constitution of the United States would, on the other hand, necessarily start from the constitution itself. But he would soon see that the articles of the constitution required a knowledge of the Articles of Confederation; that the opinions of Washington, of Hamilton, and generally of the “Fathers,” as one sometimes hears them called in America, threw light on the meaning of various constitutional articles; and further, that the meaning of the constitution could not be adequately understood by any one who did not take into account the situation of the colonies before the separation from England and the rules of common law, as well as the general conceptions of law and justice inherited by English colonists from their English forefathers. As it is with the American lawyer compared with the American historian, so it is with the English lawyer as compared with the English historian. Hence, even where lawyers are concerned, as they frequently must be, with the development of our institutions, arises a further difference between the historical and the legal view of the constitution. Historians in their devotion to the earliest phases of ascertainable history are infected with a love which, in the eyes of a lawyer, appears inordinate, for the germs of our institutions, and seem to care little about their later developments. Mr. Freeman gives but one-third of his book to anything as modern as the days of the Stuarts. The period of now more than two centuries which has elapsed since what used to be called the “Glorious Revolution,” filled as those two centuries are with change and with growth, seems hardly to have attracted the attention of a writer whom lack, not of knowledge, but of will has alone prevented from sketching out the annals of our modern constitution. A lawyer must look at the matter differently. It is from the later annals of England he derives most help in the study of existing law. What we might have obtained from Dr. Stubbs had he not surrendered to the Episcopate gifts which we
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hoped were dedicated to the University alone, is now left to conjecture. But, things being as they are, the historian who most nearly meets the wants of lawyers is Mr. Gardiner. The struggles of the seventeenth century, the conflict between James and Coke, Bacon’s theory of the prerogative, Charles’s effort to substitute the personal will of Charles Stuart for the legal will of the King of England, are all matters which touch not remotely upon the problems of actual law. A knowledge of these things guards us, at any rate, from the illusion, for illusion it must be termed, that modern constitutional freedom has been established by an astounding method of retrogressive progress; that every step towards civilisation has been a step backwards towards the simple wisdom of our uncultured ancestors. The assumption which underlies this view, namely, that there existed among our Saxon forefathers a more or less perfect polity, conceals the truth both of law and of history. To ask how a mass of legal subtleties
would have looked . . . in the eyes of a man who had borne his part in the elections of Eadward and of Harold, and who had raised his voice and clashed his arms in the great Assembly which restored Godwine to his lands,8
is to put an inquiry which involves an untenable assumption; it is like asking what a Cherokee Indian would have thought of the claim of George the Third to separate taxation from representation. In each case the question implies that the simplicity of a savage enables him to solve with fairness a problem of which he cannot understand the terms. Civilisation may rise above, but barbarism sinks below the level of legal fictions, and our respectable Saxon ancestors were, as compared, not with ourselves only, but with men so like ourselves as Coke and Hale, respectable barbarians. The supposition, moreover, that the cunning of lawyers has by the invention of legal fictions corrupted the fair simplicity of our original constitution, underrates the statesmanship