The English Common Law, Barrier Against Absolutism

Abstract

THE narrow limits of this paper, written for delivery at the meeting of the American Historical Association in I942, will, I am afraid, make it appear to be little more than a string of dogmatic and miscellaneous unverified propositions, subjects for future research and proof rather than present demonstration. Nevertheless, I am venturing to present this important subject now in the hope that I may be able to suggest some lines of future investigation which in the end may in some instances put the background of our constitutional institutions and ideas on a sounder foundation than the traditional one which we have inherited and may have accepted with too little examination and criticism. In dogmatic form, some of these propositions follow. Before the late seventeenth century, when true popular control of our legislative assemblies began, parliament's primary importance is owing not to its representative character but rather to its maintenance against government of the rights of the individual subject which that representative character involved. If this be true, the principal background of our modern constitutionalism is to be found in the common law in which these rights of individuals are defined and only secondarily in the parliament which maintained them. Too long the historians of the constitution have neglected this factor of private law, forgetting that in the Middle Ages, when these individual rights were taking form, the old Roman and familiar modern distinction between public and private law had an extremely limited application in comparison with our modern one. These constitutional historians have largely ignored, through ignorance or inadvertence, the chief source of the constitutional principle underlying our bills of rights, the original and most fundamental element in our present constitutional system in the United States. The study that might correct these tendencies must concentrate first on the period of feudalism when the doctrines of our common law were taking definite and permanent shape; secondly, on the period of the Renaissance monarchy, the reigns of the Tudor sovereigns, when the rights defined by