THE ANCIENT CONSTITUTION AND THE FEUDAL LAW docx

THE ANCIENT CONSTITUTION AND THE FEUDAL LAW [...]... was said; it has been ours from beyond the memory of man; and consequently none can take it from us In reply, the kings and their partisans tried to show that, in the words ofJames VI (and I), 'kings were the authors and makers of the laws and not the laws of the kings' 1 If the constitutionalists could show that the laws were as old as, or older than, the kings, they might go on to assert a contractual... 'the ancient constitution' , of seeking to prove that the rights it was desired to defend were immemorial and therefore beyond the king's power to alter or annul Hotman in Francogallia asserted the antiquity of the assembly of the nation; Coke in England that of parliament and the common law; Pietro de Gregorio in Sicily that of baronial privilege and the parlamento; Francois Vranck in the Netherlands... claims and demands the humanists were calling for a return to the ancient world 'as it really was' and we cannot express their programme in these words without realizing that we stand on the threshold of the modern historical consciousness And the paradox which was to complete the transition was this: the humanists aimed at resurrecting the ancient world in order to copy and imitate it, but the more... political thought over the last thirty years I believe it can be claimed on behalf of The Ancient Constitution and the Feudal Law that—indebted as it was to The Englishman and His History and other works—it estab- lished the existence and extent of a 'language' of precedent, common law and ancient custom, in which a significant part of English political argument was, for long periods and with important... body of earlier law; they altered much and what they did not alter they scattered and rearranged; what they did not retain they destroyed; and, in short, there is nothing in their work which gives us any picture worth having of Roman law under either the republic or the empire—as is clear from the work of those scholars who have attempted to reconstruct Roman methods of government and have been compelled... of that reaction towards the customary, the native, the feudal and the barbarous, which was discernible in contemporary thought and may have furnished one of the roots of European romanticism:3 for it constantly opposed the folk to the legislator, the primitive, the inarticulate and the mutable to the rigidities of ordered reason.4 But with the reaction in favour of customary and native codes of 1 2... establish the exact meaning of the Roman texts, and this, as they rightly saw, involved a detailed exegesis of the exact meaning of all technical or doubtful words which the texts contained Therefore they set about comparing and establishing the various meanings which all such words bore, first in the separate legal texts which employed them, and secondly, in any other works of ancient provenance in which they... Inadequate, piecemeal and ad hoc their work may have been, but the essentials of the historical method were there and were known to be there In this way the legal humanists came to be historians, and the full impact of their work on European thought has never yet been measured They had begun to study the past on principles which assumed its unlikeness to the present, and this soon brought them into contact... historiography This is, in brief, that during the sixteenth and seventeenth centuries one of the most important modes of studying the past was the study of the law; that many European nations obtained knowledge of their history by reflecting, largely under the stimulus of contemporary political developments and theories, upon the character of their law; that the xiii Preface to the First Edition historical outlook... emphasize further the unreality and unsatisfactoriness of Roman law, Hotman contrasts it with the customary and feudal law prevailing in other parts of France; and it is here that the argument ofAnti-Tribonian leads us into a new field, of wide significance The writer rolls out the gnarled terminology of customary law, and points out with relish that if a man came into a French court knowing only the Roman . THE ANCIENT CONSTITUTION AND THE FEUDAL LAW