Lecture blies; of English and French history generally; I. 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" of the constitution; but as regards English law, as regards the law of the constitution, the Landesgemeinden of Uri, the witness of Homer, the ealdormen, the constitution of the Witenagemót, this 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, or even to be found guilty of petty larceny, 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 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 was yesterday, still less what it was centuries I. ago, or what it ought to be to-morrow, but to state Lecture and explain what are the principles of law actually existing in England during the present year of grace 1886, 49 & 50 Victoria. 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 one or the other. between legal and historical view of con The name of the United States serves well to Contrast remind us of the true relation between constitutional historians and legal constitutionalists. They are each concerned with the constitution, but from a different stitution. 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 only indirectly concerned in ascertaining what are the rules of the constitution in the year 1886. 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 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 I. Lecture 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 anyone 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 I. his book to anything as modern as the days of the Lecture Stuarts. The period of nearly two centuries which has elapsed since what used to be called the "Glorious Revolution," filled as it is with change and with growth, seems hardly to attract the attention of a writer whom lack, not of knowledge, but of will alone prevents 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 got from Dr. Stubbs, had he not surrendered to Chester gifts which we hoped were dedicated to Oxford 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' 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 civilization 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 C Lecture mass of legal subtleties "would have looked "in the elections of Eadward and of Harold, and 1 |