Page:The English Constitution (1894).djvu/360
THE ENGLISH CONSTITUTION.
was then the almost sacred datum of the common law, without seeing whether his nation liked it or not, was an essential part of the “tentative” system. The king had to feel his way in this exceptional, singular act, as those ages deemed original legislation, as well as in lesser acts. The legislation was his at last; he enacted after consulting his Lords and Commons; his was the sacred mouth which gave holy firmness to the enactment; but he only dared alter the rule regulating the common life of his people after consulting those people; he would not have been obeyed if he had not, by a rude age which did not fear civil war as we fear it now. Many most important enactments of that period (and the fact is most characteristic) are declaratory acts. They do not profess to enjoin by inherent authority what the law shall in future be, but to state and mark what the law is; they are declarations of immemorial custom, not precepts of new duties. Even in the “Great Charter” the notion of new enactments was secondary, it was a great mixture of old and new; it was a sort of compact defining what was doubtful in floating custom, and was re-enacted over and over again, as boundaries are perambulated once a year, and rights and claims tending to desuetude thereby made patent and cleared of new obstructions. In truth, such great “charters” were rather treaties between different orders and factions, confirming ancient rights, or what claimed to be such, than laws in our ordinary sense. They were the “deeds of arrangement” of mediaeval society affirmed and re-affirmed from time to time, and the principal controversy was, of course, between the king and