英格兰宪政史

by Frederic William Maitland, 弗雷德里克·威廉·梅特兰, 李红海 (Translator)

这是剑桥大学梅特兰教授向学生讲授英格兰宪政史的课堂讲义的译著。原著作者将英格兰公法发展阶段划分为五个阶段，并对每个阶段立法的总体特征、王权、议会、中央及地方政府、司法等方面的宪政运作状况予以了总结介绍，并进行了深入细致的分析。清晰完美地梳理了英格兰法律发展和宪政运作脉络。本书虽非梅特兰精雕细琢之成熟作品，但并非简单的历史资料的堆砌，而是着眼于对法律运行过程的审视和探讨，背景资料翔实，分析细致入微并涵盖了大量的原创性观点，为我们学习和研究英格兰宪政史提供了很好的引领。其独特的阶段划分方法也为我们研究英国宪政史提供了不同寻常的观测点，对既有历史著述做出了重要补充。本书系统全面，条理清晰，翻译流畅，完全符合中国读者的阅读习惯。是广大比较法研究者、法学研究者以及法学爱好者、英国宪政史、法律发展史研究者以及英国政治爱好者不可多得的一本出色的著作。

Genres: Law, History, British Literature

369 pages, Paperback

First published January 1, 1908

About the author

Frederic William Maitland, FBA was an English historian and lawyer who is generally regarded as the modern father of English legal history.

Reviews

[WaldenOgre · Rating 4 out of 5]

获益匪浅，很多地方甚至可以说是豁然开朗，即便占全书篇幅最大的最后一个章节的大部分内容早已过时。

600多页的这么一本课堂讲义，名为“宪政史”，然而梅特兰不是在全书开篇、却是在全书最末才来尝试界定“宪法”一词的含义且不得。只有理解了这么个看似与逻辑和方法论南辕北辙之表象的形成过程，才能理解英国宪政制度的起源和精髓，我多年来对于英国这个世界上最古老的宪政国家为何没有一部成文宪法的疑惑才得以解开。

英国的宪政演进史由内战和王朝更迭逐渐塑造，意味着英国的制度基本不可能被其他国家照搬使用，但个中的核心原则却大可借鉴：当梅特兰说虽然国王不能被起诉和追责、但奉国王之命行事的大臣可以时，当他说大臣们“这是官方行为，这是国家行为”的自辩在这等情形下不起作用而英国的自由正维系于此时，我不由边读边频频点头。

当梅特兰在最后写道：“我知道人生如白驹过隙，但法律却很长很长，我们不能一下子什么都学；但……我们法律的各个部分都是相互联系在一起的，其联系是如此的紧密以致我们无法为自己的学习设置任何符合逻辑的界限。”不知为何，我读到这里时几乎有一丝感动。这已是超越法律的人生智慧了，因为这里的“法律”替换成许多其他的词也依旧能够成立。

[Ari · Rating 4 out of 5]

An overview of English Constitutional history from the Middle Ages forward. The book was assembled posthumously by his students from his lecture notes. His distinctive style and diction appears. Favorite phrasings include "a certain, or rather uncertain power..."

He was lecturing to pre-law students as part of a broader curriculum, and there are references forward and backwards. He doesn't think he needs to be comprehensive. He will often say things like "you'll study this more in a criminal law course" or "for details, read Anson's textbook." He also assumes the students have studied some roman law, "general jurisprudence," and have notions like sovereignty or "legislative vs executive" as part of their mental framework, and he has to explain that those distinctions don't work well in England.

The medieval chapter overlaps with his History of English Law to the reign of Edward I, but might be a good short summary of feudalism.

Maitland's approach is to survey the "state of the constitution" at various points. He chose: the death of Edward I, the death of Henry VII, the death of James I, the death of William III, and the 1880s. You will notice that none of those correspond to major disruptions in the government or conventional break-points. This is by design and Maitland remarks on this. His goal is to show the constitution at the times where it is more or less well-defined; there was no clarity about the constitution when Henry took the throne in 1485 or in 1660 at the restoration.

He is anxious to push back against common myths, some of which are still circulating:

There is one term against which I wish to warn you, and that term is 'the crown.' You will certainly read that the crown does this and the crown does that. As a matter of fact we know that the crown does nothing but lie in the Tower of London to be gazed at by sight-seers. No, the crown is a convenient cover for ignorance: it saves us from asking difficult questions, questions which can only be answered by study of the statute book.
I do not deny that it is a convenient term, and you may have to use it ; but I do say that you should never be content with it. If you are told that the crown has this power or that power, do not be content until you know who legally has the power — is it the king, is it one of his secretaries: is this power a prerogative power or is it the outcome of statute?
[In contrast] We must not think, even now-a-days, of 'the seals of office' as mere ceremonial symbols like the crown and the sceptre; they are real instruments of government. Without a great seal, England could not be governed. Every corporation, this University for instance, has as perhaps you know a common seal, and a great many things can only be done by the use of the common seal. It is somewhat the same with the seals of office: courts of law take notice of these seals, and insist that they must be affixed.

There's a scanned copy available online: https://archive.org/stream/constituti...

The .txt ebook text is corrupted but still more or less readable and I've been reading that.

[Josh · Rating 4 out of 5]

Pretty dense and extremely impressive. The last chapter, on the 'contemporary constitution' is dated, but, having been written around 1880, this is unsurprising