On Codified Law as
a Fundamental Liberty

. . . . The Letter to the Free-Born People of England [accompanying  the Agreement of the People , October 28, 1647, a proposal of the Puritan Army that fixed in principle the form and theory of modern constitutions]  sets forth the new constitutional idea.  The new “principal right” that will supply the framework for all others "is the clearness, certainty, sufficiency, and freedom of your power in your representatives in Parliament.”   The origin of oppression and misery is seen in “the obscurity and doubtfulness” of earlier legal forms resulting in differences of opinion with regard to their interpretation and ultimately in friction and armed clashes.

Using a modern category we might say that in the field of constitutional law, as well as of common law and of court procedure, the lower class of the English people desired improved legal technique, knowing from their sad daily experience that obscure law, hidden away in the jungle of precedence and custom, is the great bulwark of the social and political position of those classes who can pay lawyers.

The “principal right of clearness” is a symptom of the general trend in Independent and Leveler circles to rationalize the law and to transfer as large a section as possible from the twilight zone of interpretation into the “clearness” of codification.  The written instrument, technically regulating a field as carefully as possible, leaving a minimum of loopholes for interpretation, appears as the safeguard of the people’s rights.

While the code had no signal career in England and America, with the exception of the United States Constitution, it had an enormous function in the continental revolutions.   This is sometimes overlooked because the revolutionary effect of civil and penal codes, and of civil and criminal procedural codes in securing the rights of the broad masses of the population, is not always properly understood in the Anglo-Saxon countries, with their stronger medieval heritage.



CW Vol 24 (HPI-VI),
Chapter 2, THE ENGLISH REVOLUTION
§ 9. The Agreement of the People, pp 81-82.






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