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Title: The Growth of the English Constitution
       From the Earliest Times

Author: Edward A. Freeman

Release Date: October 6, 2014 [EBook #47068]

Language: English

Character set encoding: UTF-8

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  THE GROWTH

  OF

  THE ENGLISH CONSTITUTION

  _FROM THE EARLIEST TIMES_.

[Illustration]

  THE GROWTH

  OF THE

  ENGLISH CONSTITUTION

  _FROM THE EARLIEST TIMES_.

  BY

  EDWARD A. FREEMAN, M.A., HON. D.C.L.,

  LATE FELLOW OF TRINITY COLLEGE, OXFORD.

  ‘Concedis justas leges et consuetudines esse tenendas, et
  promittis eas per te esse protegendas et ad honorem Dei
  roborandas, _quas vulgus elegerit_ secundum vires tuas?’—ANCIENT
  CORONATION OATH.

  ‘Rex habet superiorem, Deum. Item Legem, per quam factus est
  Rex. Item curiam suam.’—BRACTON.

  ‘Igitur communitas regni consulatur,
   Et quid universitas sentiat sciatur.’

  POLITICAL POEM, _XIII. Cent._

  _SECOND EDITION._

  London:

  MACMILLAN AND CO.

  1873.

  [_The Right of Translation and Reproduction is reserved._]

  LONDON:
  R. CLAY, SONS, AND TAYLOR, PRINTERS,
  BREAD STREET HILL.




PREFACE TO THE FIRST EDITION.


The proverb “_qui s’excuse s’accuse_” is so regularly turned against
any author who gives any account of the origin of his work that it
may be well to prevent its quotation by quoting it oneself. I have to
ask that these three Chapters and their accompanying Notes may not
be judged by the standard of a book. If I were to write a book on
the English Constitution, it would be different in form and, in many
points, different in style. What the reader has here is a somewhat
extended form of two Lectures given at Leeds and Bradford last January.
I had thought that they might be worth printing in the shape of two
magazine-papers; others thought that they might do good in their
present shape. I therefore expanded the latter part of the second
Lecture, which had to be cut very short in delivery, so as to make a
third Chapter, and I added such notes and references as seemed to be
needed.

I say all this, in order that what I have now written may be judged by
the standard of lectures, not by the standard of a book. In a popular
lecture it is impossible to deal with everything with which it is
desirable to deal; it is impossible to go to the bottom of those things
which one picks out to deal with. It is enough—because it is all that
can be done—if the choice of subjects is fairly well made, and if the
treatment of those that are chosen, though necessarily inadequate, is
accurate as far as it goes. Many things must be left out altogether;
many things must be treated very imperfectly; the attention of the
hearers must be caught by putting some things in a more highly wrought
shape than one would choose at another time. The object is gained, if
the lecturer awakens in his hearers a real interest in the subject on
which he speaks, and if he sends them to the proper sources of more
minute knowledge. If I can in this way send every one who wishes to
understand the early institutions of his country to the great work of
Professor Stubbs—none the less great because it lies in an amazingly
small compass—my own work will be effectually done. In Mr. Stubbs’
“Documents Illustrative of English History,” the ordinary student
will find all that he can want to learn; while he who means to write
a book, or to carry out his studies in a more minute way, will find
the best of guidance towards so doing. The great documents of early
English history, hitherto scattered far and wide, are now for the first
time brought together, and their bearing is expounded in a continuous
narrative worthy of the unerring learning and critical power of the
first of living scholars.

For my own part, my object has been to show that the earliest
institutions of England and of other Teutonic lands are not mere
matters of curious speculation, but matters closely connected with
our present political being. I wish to show that, in many things, our
earliest institutions come more nearly home to us, and that they have
more in common with our present political state, than the institutions
of intermediate ages which at first sight seem to have much more in
common with our own. As the continuity of our national life is to many
so hard a lesson to master, so the continuity of our political life,
and the way in which we have so often fallen back on the very earliest
principles of our race, is a lesson which many find specially hard. But
the holders of Liberal principles in modern politics need never shrink
from tracing up our political history to its earliest beginnings. As
far at least as our race is concerned, freedom is everywhere older
than bondage; we may add that toleration is older than intolerance.
Our ancient history is the possession of the Liberal, who, as being
ever ready to reform, is the true Conservative, not of the self-styled
Conservative who, by refusing to reform, does all he can to bring on
destruction. One special point on which I have dwelt is the way in
which our constitutional history has been perverted at the hands of
lawyers. It is perfectly true that the history of England must be
studied in the Statute-Book, but it must be in a Statute-Book which
begins at no point later than the Dooms of Æthelberht.

As I have often had need to take facts and doctrines for granted which
I believe myself to have proved in my larger works, I have in the Notes
given frequent references to those works, instead of bringing in the
evidence for the same things over again. And in the more modern part
of the subject, I have given several extracts at full length, even
from very familiar authors, because I know that a reader is often well
pleased to have a striking passage set before him at once, without
having to seek for it in the original. On the other hand, I have given
at full length several extracts from statutes and other documents which
most readers are not likely to have at hand. The historical portions
of any Act of Parliament can be studied only in the Acts themselves,
and not in the summaries of lawyers. Legal writers and speakers seem
constantly to repeat what has been said before them, without any
reference to the original sources. A memorable example is to be found
in the assertion of Blackstone and of a crowd of lawyers after him, in
Parliament and out of Parliament, that the King or Queen is by Law Head
of the Church. I need hardly say that that title was used by Henry,
Edward, and Mary, but that it was given up by Mary, and was not taken
up again by any later Sovereign.

  SOMERLEAZE, WELLS,
  _March 25, 1872_.




PREFACE TO THE SECOND EDITION.


In this Second Edition I have made a few verbal corrections and
improvements, and I have made two or three additions to the Notes.
Otherwise the book is unchanged.

  SOMERLEAZE, WELLS,
  _October 30, 1872_.




CONTENTS.


  CHAPTER I.

  The _Landesgemeinden_ of Uri and Appenzell—their bearing on
  English Constitutional History—political elements common
  to the whole Teutonic race—monarchic, aristocratic, and
  democratic elements to be found from the beginning—the
  three classes of men, the noble, the common freeman, and
  the slave—universal prevalence of slavery—the Teutonic
  institutions common to the whole Aryan family—witness
  of Homer—description of the German Assemblies by
  Tacitus—continuity of English institutions—English
  nationality assumed—Teutonic institutions brought into
  Britain by the English conquerors—effects of the settlement
  on the conquerors—probable increase of slavery—Earls and
  Churls—growth of the kingly power—nature of kingship—special
  sanctity of the King—immemorial distinction between Kings
  and Ealdormen—kingship not universal—names expressing
  kingship—beginning of kingship in England—fluctuation between
  Kings and Ealdormen—the kingly power strengthened by the
  increase of the King’s territory—relations between the King
  and the nation—power of the Witan—right of election and
  deposition—growth of the kingly power by the _commendation_ of
  the chief men—the _Comitatus_ as described by Tacitus—poem on
  the Battle of Maldon—contrast of Roman and Teutonic feeling as
  to personal service—instances of personal service in later
  times—personal service and the holding of land not originally
  connected—their union produces the feudal relation—growth
  of the Thegns—they supplant the Earls—effects of the
  change—change confirmed by the Norman Conquest               _Pp._ 1-55


  CHAPTER II.

  Gradual growth of the English Constitution—new laws seldom
  called for—importance of precedent—return to early principles
  in modern legislation—shrinking up of the ancient national
  Assemblies—constitution of the Witenagemót—the Witenagemót
  continued in the House of Lords—Gemóts after the Norman
  Conquest—the King’s right of summons—Life Peerages—origin of
  the House of Commons—comparison of English and French national
  Assemblies—of English and French history generally—course of
  events influenced by particular men—Simon of Montfort—France
  under Saint Lewis—bad effect of his virtues—good effect of
  the vices of the Angevin Kings in England—effect of the
  personal character of William the Conqueror—the Normans
  in England gradually become English—the Angevins neither
  Norman nor English—their love of foreigners—struggle against
  the King and the Pope—national character of the English
  Church—separation of ecclesiastical and temporal jurisdiction
  under William—supremacy of the Crown—its abuse—good side of
  ecclesiastical claims—interference of the Popes in English
  affairs—the Pope and the King in league against the English
  Church and nation—importance of London—general growth
  of the towns—beginning of representation—Knights of the
  shire—judicial powers of Parliament—citizens and burgesses
  first summoned by Earl Simon—his connexion with Bourdeaux and
  London—Simon a foreigner—religious reverence shown to him and
  to other political worthies—Edward the First—the Constitution
  finally completed under him—nature of later changes—difference
  between English and continental legislatures—system of
  Estates—three Estates of the Realm—no nobility in England—no
  separate Estate of the Clergy practically established—effects
  of the union of knights and citizens in one House—incidental
  origin of the system of two Houses—misuse of the phrase “three
  Estates”—growth of the House of Commons—general harmony of the
  two Houses—great powers of the early Parliaments—character of
  the fifteenth century—Parliaments less independent—narrowing
  of the county franchise—popular elections of Kings—signs
  of the importance of Parliament—character of the sixteenth
  century—general decay of free institutions in Europe—their
  preservation in England—subserviency of Parliament—its
  causes—effects of the personal character of Henry the
  Eighth—his respect for the outward forms of Law—indirect
  witnesses to the importance of Parliament—tampering with
  elections—enfranchisement of corrupt boroughs—Parliament under
  Elizabeth—James the First—Charles the First—nature of later
  changes.                                                   _Pp._ 56-110


  CHAPTER III.

  Character of later constitutional developments—greater
  importance of silent changes—growth of the unwritten
  _Constitution_ as distinguished from the written _Law_—Sir
  Robert Peel’s vote of want of confidence—its bearings—the
  growth of the Constitution implies the firm establishment of
  the Law—relations between the Crown, the Ministry, and the
  Parliament—indirect exercise of parliamentary power—origin
  of the Ministry—recent use of the word _Government_—causes
  and advantages of indirect parliamentary action—growth of
  professional lawyers—their influence on constitutional
  doctrines—their reasoning mainly sound, but their premisses
  commonly worthless—return of modern legislation to the
  earliest state of things—doctrine that Parliament expires by
  a demise of the Crown—an inference from the doctrine about
  the King’s writ—contrast with Old-English constitutional
  doctrines—doubts and difficulties which Old-English
  principles would have answered—case of 1399—deposition
  of Richard and election of Henry—legal subtleties about
  the character and continuance of the Parliament—case of
  1660—question as to the continuance of the Long Parliament
  after the execution of Charles the First—question as to the
  nature and powers of the Convention Parliament—the Convention
  declared to be a Parliament by its own act—question of
  1688-9—history of the second Convention Parliament—question as
  to the effects of Mary’s death—each of these acts a return to
  earlier doctrines—their value as possible precedents—modern
  legislation as to the demise of the Crown—Parliament no longer
  dissolved by it—Act of William the Third—Act of George the
  Third—Act of Victoria—reasonableness of this legislation—case
  of the _Folkland_ or public land—its gradual change into
  _Terra Regis_ or demesne land—the national revenue disposed of
  at the King’s pleasure—return to earlier doctrines in modern
  practice—case of the private estates of the King—dealt with in
  earlier times like any other estates—doctrine that the private
  estates of the King merged in the demesne of the Crown—return
  to ancient practice by modern legislation—other cases of
  return to ancient principles—history of the succession to the
  Crown—the Crown anciently elective—preference for members
  of the royal family—growth of the doctrine of hereditary
  right—treatment of the law of succession by lawyers—twofold
  election of the King—his ecclesiastical coronation—the
  ecclesiastical election survives the civil—state of the
  succession in the fourteenth and fifteenth centuries—right
  of Parliament to dispose of the Crown—election of Henry the
  Eighth—settlement of the Crown by his will—usurpation of the
  Stewarts—their doctrine of divine right—the ancient right
  asserted by the election of William and Mary—the Crown made
  hereditary by the Act of Settlement—good side of hereditary
  succession in modern times—conclusion.                    _Pp._ 111-160

  NOTES                                                     _Pp._ 161-230




THE GROWTH OF THE ENGLISH CONSTITUTION FROM THE _EARLIEST TIMES_.




CHAPTER I.


Year by year, on certain spots among the dales and the mountain-sides
of Switzerland, the traveller who is daring enough to wander out of
beaten tracks and to make his journey at unusual seasons may look on a
sight such as no other corner of the earth can any longer set before
him. He may there gaze and feel, what none can feel but those who have
seen with their own eyes, what none can feel in its fulness more than
once in a lifetime, the thrill of looking for the first time face to
face on freedom in its purest and most ancient form. He is there in a
land where the oldest institutions of our race, institutions which may
be traced up to the earliest times of which history or legend gives us
any glimmering, still live on in their primæval freshness. He is in
a land where an immemorial freedom, a freedom only less eternal than
the rocks that guard it, puts to shame the boasted antiquity of kingly
dynasties, which, by its side, seem but as innovations of yesterday.
There, year by year, on some bright morning of the spring-tide, the
Sovereign People, not entrusting its rights to a few of its own number,
but discharging them itself in the majesty of its corporate person,
meets in the open market-place or in the green meadow at the mountain’s
foot, to frame the laws to which it yields obedience as its own work,
to choose the rulers whom it can afford to greet with reverence as
drawing their commission from itself. Such a sight there are but few
Englishmen who have seen; to be among those few I reckon among the
highest privileges of my life. Let me ask you to follow me in spirit
to the very home and birth-place of freedom, to the land where we need
not myth and fable to add aught to the fresh and gladdening feeling
with which we for the first time tread the soil and drink in the
air of the immemorial democracy of Uri(1). It is one of the opening
days of May; it is the morning of Sunday; for men there deem that
the better the day the better the deed; they deem that the Creator
cannot be more truly honoured than in using, in His fear and in His
presence, the highest of the gifts which He has bestowed on man. But
deem not that, because the day of Christian worship is chosen for the
great yearly assembly of a Christian commonwealth, the more directly
sacred duties of the day are forgotten. Before we, in our luxurious
island, have lifted ourselves from our beds, the men of the mountains,
Catholic and Protestant alike, have already paid the morning’s worship
in God’s temple. They have heard the mass of the priest or they have
listened to the sermon of the pastor, before some of us have awakened
to the fact that the morn of the holy day has come. And when I saw men
thronging the crowded church, or kneeling, for want of space within,
on the bare ground beside the open door, when I saw them marching
thence to do the highest duties of men and citizens, I could hardly
forbear thinking of the saying of Holy Writ, that “where the Spirit
of the Lord is, there is liberty.” From the market-place of Altdorf,
the little capital of the Canton, the procession makes its way to the
place of meeting at Böblingen. First marches the little army of the
Canton, an army whose weapons never can be used save to drive back an
invader from their land(2). Over their heads floats the banner, the
bull’s head of Uri, the ensign which led men to victory on the fields
of Sempach and Morgarten. And before them all, on the shoulders of men
clad in a garb of ages past, are borne the famous horns, the spoils of
the wild bull of ancient days, the very horns whose blast struck such
dread into the fearless heart of Charles of Burgundy(3). Then, with
their lictors before them, come the magistrates of the commonwealth on
horseback(4), the chief magistrate, the Landammann, with his sword by
his side. The people follow the chiefs whom they have chosen to the
place of meeting, a circle in a green meadow, with a pine forest rising
above their heads and a mighty spur of the mountain range facing them
on the other side of the valley. The multitude of freemen take their
seats around the chief ruler of the commonwealth, whose term of office
comes that day to an end. The Assembly opens; a short space is first
given to prayer, silent prayer offered up by each man in the temple
of God’s own rearing. Then comes the business of the day. If changes
in the law are demanded, they are then laid before the vote of the
Assembly, in which each citizen of full age has an equal vote and an
equal right of speech. The yearly magistrates have now discharged all
their duties; their term of office is at an end; the trust which has
been placed in their hands falls back into the hands of those by whom
it was given, into the hands of the sovereign people. The chief of the
commonwealth, now such no longer, leaves his seat of office and takes
his place as a simple citizen in the ranks of his fellows. It rests
with the free will of the Assembly to call him back to his chair of
office, or to set another there in his stead. Men who have neither
looked into the history of the past, nor yet troubled themselves
to learn what happens year by year in their own age, are fond of
declaiming against the caprice and ingratitude of the people, and of
telling us that under a democratic government neither men nor measures
can remain for an hour unchanged. The witness alike of the present and
of the past is an answer to baseless theories like these. The spirit
which made democratic Athens year by year bestow her highest offices
on the patrician Periklês and the reactionary Phôkiôn(5) still lives
in the democracies of Switzerland, alike in the Landesgemeinde of Uri
and in the Federal Assembly at Bern. The ministers of Kings, whether
despotic or constitutional, may vainly envy the sure tenure of office
which falls to the lot of those who are chosen to rule by the voice of
the people. Alike in the whole Confederation and in the single Canton
reelection is the rule; the rejection of the out-going magistrate is
the rare exception(6). The Landammann of Uri, whom his countrymen
have raised to the seat of honour, and who has done nothing to lose
their confidence, need not fear that when he has gone to the place of
meeting in the pomp of office, his place in the march homeward will be
transferred to another against his will.

Such is the scene, which, save for a moment, when the world was turned
upside down by the inroads of revolutionary France(7), has gone on
year by year as far as history goes back in the most unchanged of
European states. Let me ask you to follow me yet again to the place of
assembly of a younger member of the same noble band of commonwealths
(8), to pass from Uri to Appenzell, from the green meadows of Bözlingen
to the hill-side market-place of Trogen. Somewhat of the pomp and
circumstance which marks the assembly of Catholic and pastoral Uri is
lacking in the assembly of the Protestant and industrial population of
the Outer Rhodes of Appenzell. But the stamp of antiquity, the stamp
of immemorial freedom, is impressed alike on the assembly and on the
whole life of either commonwealth. We miss in Appenzell the solemn
procession, the mounted magistrates, the military pomp, of Uri, but
we find in their stead an immemorial custom which breathes perhaps
more than any other the spirit of days when freedom was not a thing of
course, but a thing for which men had to give their toil and, if need
be, their blood. Each man who makes his way to the Landesgemeinde of
Trogen bears at his side the sword which the law at once commands him
to carry and forbids him to draw(9). And in the proceedings of the
assembly itself, the men of Appenzell have kept one ancient rite, which
surpasses all that I have ever seen or heard of in its heart-stirring
solemnity. When the newly chosen Landammann enters on his office,
his first duty is to bind himself by an oath to obey the laws of the
commonwealth over which he is called to rule. His second duty is to
administer to the multitude before him the same oath by which he has
just bound himself. To hear the voice of thousands of freemen pledging
themselves to obey the laws which they themselves have made is a moment
in one’s life which can never be forgotten, a moment for whose sake it
would be worth while to take a far longer and harder journey than that
which leads us to Uri or Appenzell.

And now I may be asked why I have begun a discourse on the constitution
of England with a picture of the doings of two small commonwealths
whose political and social state is so widely different from our own. I
answer that I have done so because my object is, not merely to speak of
the constitution of England in the shape which the changes of fourteen
hundred years have at last given it, but to trace back those successive
changes to the earliest times which either history or tradition sets
before us. In the institutions of Uri and Appenzell, and in others of
the Swiss Cantons which have never departed from the primæval model, we
may see the institutions of our own forefathers, the institutions which
were once common to the whole Teutonic race, institutions whose outward
form has necessarily passed away from greater states, but which contain
the germs out of which every free constitution in the world has grown.
Let us look back to the earliest picture which history can give us of
the political and social being of our own forefathers. In the Germany
of Tacitus we have the picture of the institutions of the Teutonic race
before our branch of that race sailed from the mouths of the Elbe and
the Weser to seek new homes by the Humber and the Thames. There, in the
picture of our fathers and brethren seventeen hundred years back, the
free Teutonic Assembly, the armed Assembly of the whole people, is set
before us, well nigh the same, in every essential point, as it may
still be seen in Uri, Unterwalden, Glarus, and Appenzell. One point
however must be borne in mind. In the assemblies of those small Cantons
it is only the most democratic side of the old Teutonic constitution
which comes prominently into sight. The commonwealth of Uri, by the
peculiar circumstances of its history, grew into an independent and
sovereign state. But in its origin it was not a nation, it was not
even a tribe(10). The Landesgemeinden of which I have been speaking
are the Assemblies, not of a nation but of a district; they answer in
our own land, not to the Assemblies of the whole Kingdom, but to the
lesser Assemblies of the shire or the hundred. But they are not on
that account any the less worthy of our notice, they do not on that
account throw any the less light on that common political heritage
which belongs alike to Swabia and to England. In every Teutonic land
which still keeps any footsteps of its ancient institutions, the
local divisions are not simply administrative districts traced out
for convenience on the map. In fact, they are not divisions at all;
they are not divisions of the Kingdom, but the earlier elements out
of whose union the Kingdom grew. Yorkshire, by that name, is younger
than England, but Yorkshire, by its elder name of Deira, is older than
England(11). And Yorkshire or Deira itself is younger than the smaller
districts of which it is made up, Craven, Cleveland, Holderness, and
others. The Landesgemeinde of Uri answers, not to an Assembly of
all England, not to an Assembly of all Deira, but to an Assembly of
Holderness or Cleveland. But in the old Teutonic system the greater
aggregate was simply organized after the model of the lesser elements
out of whose union it was formed. In fact, for the political unit,
for the atom which joined with its fellow atoms to form the political
whole, we must go to areas yet smaller than those of Holderness or
Uri. That unit, that atom, the true kernel of all our political life,
must be looked for in Switzerland in the _Gemeinde_ or _Commune_; in
England—smile not while I say it—in the parish vestry(12).

The primitive Teutonic constitution, the constitution of the Germans
of Tacitus, the constitution which has lingered on in a few remote
corners of the old German realm, is democratic, but it is not purely
democratic. Or rather it is democratic, purely democratic, in the
truer, older, and more honourable sense of that much maligned word;
it is not purely democratic in that less honourable, but purely
arbitrary, sense which is often put upon it in modern controversy.
Democracy, according to Periklês, is a government of the whole
people, as opposed to oligarchy, a government of only a part of the
people(13). A government which vests all power in any one class, a
government which shuts out any one class, whether that class be the
highest or the lowest, does not answer the definition of Periklês;
it is not a government of the whole but only of a part; it is not a
democracy but an oligarchy(14). Democracy, in the sense of Periklês,
demands that every freeman shall have a voice in the affairs of the
commonwealth; it does not necessarily demand that every freeman should
have an equal voice. It does not forbid the existence of magistrates
clothed with high authority and held in high reverence, nor does it
forbid respect for ancient birth or even an attachment to an hereditary
line of rulers. The older school of English constitutional writers
delighted to show that the English Constitution contained a monarchic,
an aristocratic, and a democratic element, the three being wrought
together in such true and harmonious proportion that we could enjoy
the good side of all the three great forms of government without ever
seeing the evil side of any of them. These worthy speculators were
perhaps a little Utopian in their theories; still there is no doubt
that, in every glimpse we get of old Teutonic politics, we see what we
may fairly call a monarchic, an aristocratic, and a democratic element.
Those earliest glimpses set before us three classes of men as found in
every Teutonic society, the noble, the common freeman, and the slave
(15). The existence of the slave, harshly as the name now grates on our
ears, is no special shame or blame to our own forefathers. Slavery, in
some shape or other, has unhappily been the common law of most nations
in most ages; it is a mere exception to the general rule that, partly
through the circumstances of most European countries, partly through
the growth of humanity and civilization, the hateful institution has,
during a few centuries past, gradually disappeared from a certain
portion of the earth’s surface. And we must not forget that, in many
states of society, the doom of slavery may have been thankfully
received as an alleviation of his lot by the man whose life was
forfeited either as a prisoner in merciless warfare or as a wrong-doer
sentenced for his crimes(16). But I mention the existence of slavery
only that we may remember that when we speak of freedom, freeman,
democracy, and the like, we are after all speaking of the rights of
a privileged class—that, whether in Athens, in Rome, or in the early
Teutonic communities, there was always a large mass of human beings
who had no share in the freedom, the victory, or the glory of their
masters. We are now more closely concerned with those distinctions
which, from the earliest times, we find among the freemen themselves.
In the Germany of Tacitus, as at this day in the democratic Cantons,
the sovereign power is vested in the whole people, acting directly in
their own persons. But if the sovereignty of the popular Assembly is
plainly set before us, we have also no less plainly set before us the
existence of a Council smaller than the popular Assembly, and also
the existence of a class of nobles, the nature and extent of whose
privileges is not very well defined, but who clearly had privileges
of some kind or other, and whose privileges passed on by hereditary
descent. Here we have an aristocratic element as distinctly marked as
the democratic element which is supplied by the popular Assembly. And
at the head of all we see personal chiefs of tribes and nations, chiefs
bearing different titles, Kings, Dukes, or Ealdormen, who in most cases
drew their title to rule from an union of birth and election, rulers
whom the nation chose and whom the nation could depose, but who still
were the personal leaders of the nation, its highest magistrates in
peace, its highest leaders in war. Here then, besides the democratic
and the aristocratic elements, we have a distinct monarchic element
standing out clearly in our earliest glimpses of Teutonic political
life. King, Lords, and Commons, in their present shapes, are something
comparatively recent, but we may see something which may fairly pass as
the germ of King, Lords, and Commons, from the very beginning of our
history.

I will even go a step further. The Constitution which I have just
sketched is indeed the common possession of the Teutonic race, but it
is something more. We should perhaps not be wrong if we were to call
it a common possession of the whole Aryan family of mankind. It is
possible that we may even find traces of it beyond the bounds of the
Aryan family(17). But I will put speculations like these aside. It is
enough for me that the Constitution which was the common heritage of
the Teutonic race, was an heritage which the Teuton shared with his
kinsfolk in Greece and Italy. Turn to the earliest records of European
civilization. In the Homeric poems we see a constitution, essentially
the same as that which is set before us in the Germany of Tacitus,
established alike in the Achaian camp before Ilios, in the island
realm of Ithakê, and even among the Gods on Olympos. Zeus is the King
of all; but he has around him his Council of the greater Gods, and
there are times when he summons to his court the whole Assembly of the
Divine nation, when Gods of all ranks gather together in the court of
their chief, when, save old Ocean himself, even all the River-gods were
there, and when we are specially told—a fact which might perhaps be
pressed into the service of very recent controversies—that not one of
the Nymphs stayed away(18). If we come down to earth, we find the King
of Men as the common leader of all, but we find him surrounded by his
inner Council of lesser princes and captains. And on great occasions,
Agamemnôn on earth, like Zeus in heaven, gathers together the general
Assembly of freeborn warriors, an assembly in which, if debate was
mainly confined to a few eloquent leaders, the common freeman, the
undistinguished citizen and soldier, had at least the right of speaking
his mind as to the proposals of his chiefs, by loud applause or by
emphatic silence(19). Nor is this picture confined to the host in
battle array beneath the walls of Ilios; we must remember that in
all early societies the distinction between soldier and civilian is
unknown; the army is the nation, and the nation is the army. The same
picture which the Iliad sets before us as the constitution of the
Achaian army is set before us in the glimpses of more peaceful life
which we find in the Odyssey as being no less the constitution of
every Hellenic commonwealth on its own soil. Everywhere we find the
same three elements, the supreme leader or King, the lesser chiefs who
form his Council, and the final authority of all, the general Assembly
of the freemen(20). We see the same in every glimpse which history
or legend gives us of the political state of Rome and the other old
Italian commonwealths(21). Everywhere we find the King, the Senate,
the Assembly of the people, and the distribution of powers is not
essentially changed when the highest personal authority is transferred
from the hands of a King chosen for life to the hands of Consuls
chosen for a year(22). The likeness between the earliest political
institutions of the Greek, the Italian, and the Teuton is so close,
so striking in every detail, that we can hardly fail to see in it
possession handed on from the earliest times, a possession which Greek,
Italian, and Teuton already had in the days before the separation, in
those unrecorded but still authentic times when Greek, Italian, and
Teuton were still a single people speaking a single tongue.

I have referred more than once to the picture of our race in its
earliest recorded times, as set before us by the greatest of Roman
historians in the Germany of Tacitus. Let me now set before you some
special points of his description in his own words as well as I am able
to clothe them in an English dress(23).

“They choose their Kings on account of their nobility, their leaders on
account of their valour. Nor have the Kings an unbounded or arbitrary
power, and the leaders rule rather by their example than by the right
of command; if they are ready, if they are foreward, if they are
foremost in leading the van, they hold the first place in honour....
On smaller matters the chiefs debate, on greater matters all men; but
so that those things whose final decision rests with the whole people
are first handled by the chiefs.... The multitude sits armed in such
order as it thinks good; silence is proclaimed by the priests, who have
also the right of enforcing it. Presently the King or chief, according
to the age of each, according to his birth, according to his glory in
war or his eloquence, is listened to, speaking rather by the influence
of persuasion than by the power of commanding. If their opinions give
offence, they are thrust aside with a shout; if they are approved, the
hearers clash their spears. It is held to be the most honourable kind
of applause to use their weapons to signify approval. It is lawful also
in the assembly to bring matters for trial and to bring charges of
capital crimes.... In the same assembly chiefs are chosen to administer
justice through the districts and villages. Each chief in so doing has
a hundred companions of the commons assigned to him, as at once his
counsellors and his authority. Moreover they do no matter of business,
public or private, except in arms.”

Here we have a picture of a free commonwealth of warriors, in which
each freeman has his place in the state, where the vote of the general
Assembly is the final authority on all matters, but where both
hereditary descent and elective office are held in high honour. We
see also in a marked way the influence of personal character and of
the power of speech; we see the existence of local divisions, local
assemblies, local magistrates; in a word, we see in this picture of
our forefathers in their old land, seventeen hundred years ago, the
germs of all the institutions which have grown up step by step among
ourselves in the course of ages. And a Swiss of the democratic Cantons
would see in it, not merely the germs of his constitution, but the
living picture of the thing itself.

This immemorial Teutonic constitution was thus the constitution of our
forefathers in their old land of Northern Germany, before they made
their way into the Isle of Britain. And that constitution, in all its
essential points, they brought with them into their new homes, and
there, transplanted to a new soil, it grew and flourished, and brought
forth fruit richer and more lasting than it brought forth in the land
of its earlier birth. On the Teutonic mainland, the old Teutonic
freedom, with its free assemblies, national and local, gradually died
out before the encroachments of a brood of petty princes(24). In the
Teutonic island it has changed its form from age to age; it has lived
through many storms and it has withstood the attacks of many enemies,
but it has never utterly died out. The continued national life of the
people, notwithstanding foreign conquests and internal revolutions, has
remained unbroken for fourteen hundred years. At no moment has the tie
between the present and the past been wholly rent asunder; at no moment
have Englishmen sat down to put together a wholly new constitution in
obedience to some dazzling theory. Each step in our growth has been the
natural consequence of some earlier step; each change in our law and
constitution has been, not the bringing in of anything wholly new, but
the developement and improvement of something that was already old.
Our progress has in some ages been faster, in others slower; at some
moments we have seemed to stand still, or even to go back; but the
great march of political developement has never wholly stopped; it has
never been permanently checked since the day when the coming of the
Teutonic conquerors first began to change Britain into England. New
and foreign elements have from time to time thrust themselves into our
law; but the same spirit which could develope and improve whatever was
old and native has commonly found means sooner or later to cast forth
again whatever was new and foreign. The lover of freedom, the lover of
progress, the man who has eyes keen enough to discover real identity
under a garb of outward unlikeness, need never shrink from tracing up
the political institutions of England to their earliest shape. The
fourteen hundred years of English history are the possession of those
who would ever advance, not the possession of those who would stand
still or go backwards. The wisdom of our forefathers was ever shown,
not in a dull and senseless clinging to things as they were at any
given moment, but in that spirit, the spirit alike of the true reformer
and the true conservative, which keeps the whole fabric standing, by
repairing and improving from time to time whatever parts of it stand in
need of repair or improvement. Let ancient customs prevail(25); let
us ever stand fast in the old paths. But the old paths have in England
ever been the paths of progress; the ancient custom has ever been to
shrink from mere change for the sake of change, but fearlessly to
change whenever change was really needed. And many of the best changes
of later times, many of the most wholesome improvements in our Law and
Constitution, have been only the casting aside of innovations which
have crept in in modern and evil times. They have been the calling up
again, in an altered garb, of principles as old as the days when we get
our first sight of our forefathers in their German forests. Changed as
it is in all outward form and circumstance, the England in which we
live, has, in its true life and spirit, far more in common with the
England of the earliest times than it has with the England of days far
nearer to our own. In many a wholesome act of modern legislation, we
have gone back, wittingly or unwittingly, to the earliest principles
of our race. We have advanced by falling back on a more ancient state
of things; we have reformed by calling to life again the institutions
of earlier and ruder times, by setting ourselves free from the slavish
subtleties of Norman lawyers, by casting aside as an accursed thing the
innovations of Tudor tyranny and Stewart usurpation.

I have said that the primæval Teutonic constitution was brought with
them by our Teutonic forefathers when they came as conquerors into the
Isle of Britain. I will not again go into the details of the English
Conquest, the settlement which gave us a new home in a new land, nor
into all the questions and controversies to which the details of the
English Conquest have given rise. I have spoken of them over and over
again with my voice and with my pen, and I hope I may now take for
granted what I have fully argued out elsewhere(26). I hope that I
may be allowed to assume the plain facts of the case, without going
through the details of every point. I will assume then—for it is that
to which the question really comes—that England is England and that
Englishmen are Englishmen. I will assume that we are not Romans or
Welshmen, but that we are the descendants of the Angles, Saxons, and
Jutes who came hither in the fifth and sixth centuries, of the Danes
and Northmen who came hither in the ninth. I will assume that we are
a people, not indeed of unmixed Teutonic blood—for no people in the
world is of absolutely unmixed blood—but a people whose blood is not
more mixed than that of any other nation; that Englishmen are as truly
Englishmen as Britons are Britons or as High-Germans are High-Germans.
I will assume that what is Teutonic in us is not merely one element
among others, but that it is the very life and essence of our national
being; that whatever else we may have in us, whatever we have drawn
from those whom we conquered or from those who conquered us, is no
coordinate element, but a mere infusion into our Teutonic essence;
in a word I will assume that Englishmen are Englishmen, that we are
ourselves and not some other people. I assume all this; if any man
disputes it, if any man chooses not to be an Englishman but to be a
Welshman or a Roman, I cannot argue with him now; I can only ask him to
turn to the arguments which I have urged on all those points in other
times and places. I assume that, as we have had one national name, one
national speech, from the beginning, we may be fairly held to have an
unbroken national being. And when we find a Teutonic-speaking people
in Britain living under the same political and social forms as the
Teutonic-speaking people of the mainland, it is surely no very rash or
far-fetched inference that the tongue and the laws which they have in
common are a common possession drawn from a common source; that the
island colony in short came itself, and brought its laws and language
with it, from the elder mother-land beyond the sea.

Our fathers then came into Britain, and they brought with them the
same primæval political system, the same distinctions of rank, the
same division of political power, which they had been used to in their
elder Anglian and Saxon homes. The circumstances of the Conquest would
no doubt bring about some changes. It would probably tend to increase
the numbers of the class of slaves. Such of the natives as were neither
slain nor driven out would of course pass into that class. Especially,
though there is no doubt that our forefathers brought their women with
them from their own homes, there is no doubt that many British women
passed into bondage, so much so that one of the common Old-English
names for a female slave is _Wylne_ or _Welshwoman_(27). And we may
infer that this increased familiarity with slavery would tend to
strengthen the custom by which freemen guilty of crimes were reduced
to slavery by sentence of law. Again, I suspect that the circumstances
of the Conquest did something to raise the position both of the common
freeman and of the King or leader, as compared with the intermediate
class of nobles. No two things are more levelling than colonization and
successful warfare. The levelling effect of colonization is obvious;
the levelling effect of warfare is not so obvious in modern times. In
modern armies, where there is a strictly defined system of military
ranks, where the distinction of officer and private is broadly drawn,
where the private soldier is little more than a machine in the hands of
his commander, the effect may even be the other way. But in an earlier
state of things, where victory depends on the individual prowess of
each man, nothing can be more levelling than warfare. Honour and profit
fall to the lot of the stoutest heart and the strongest arm, whether
their owner be noble or peasant in his own land. And this would be
still more the case when war and colonization went hand in hand, when
success brought not only victory but conquest, when men fought, not
to go back loaded with glory and plunder to their old homes, but to
win for themselves new homes as the reward of their valour. On the
other hand, in an early state of things personal influence is almost
everything; a vigorous and popular ruler is practically absolute,
because no one has the wish to withstand his will, but a weak or
unpopular ruler can exercise no authority whatever. In such a state of
things as this no one can so easily gain the authority of unbounded
influence as the military chief who leads his tribe to victory. And
again, that influence would be increased tenfold when the successful
chief led them not only to victory but to conquest, when he was not
only a ruler but a founder, the man who had led his people to win for
themselves a new land, to create a new state, the prize of his sword
and of theirs. Mere nobility of birth, however highly honoured, would
be but a feeble influence compared with either of these influences
above and below it. I think that we may trace something of the results
of these influences in the position of the oldest English nobility.
That there was a difference between the noble and the common freeman,
in Old-English phrase between the _Eorl_ and the _Ceorl_(28), is shown
by countless allusions to the distinction in our earliest records. But
it is by no means easy to say what the distinction really was. And,
as we shall presently see that this primitive nobility gradually gave
way to a nobility of quite another kind and founded on quite another
principle, we may perhaps be inclined to think that, at least after the
settlement of the English in Britain, the privileges of the _Eorlas_
were little more than honorary. I need hardly say that a traditional
deference for high birth, a traditional preference for men of certain
families in the disposal of elective offices, may go on when birth
carries with it no legal privilege whatever. Nowhere has this been more
strikingly shown than in those democratic Cantons of Switzerland of
which I have already spoken. In a commonwealth where magistrates were
chosen yearly, where every freeman had an equal vote in their choice,
it still happened that, year after year, the representatives of certain
famous houses were chosen as if by hereditary right. Such were the
Barons of Attinghausen in Uri and the house of Tschudi in Glarus(29).
And, whatever we say of such a custom in other ways, it was surely
well suited to have a good effect on the members of these particular
families; it was well suited to raise up in them a succession of men
fitted to hold the high offices of the commonwealth. A man who knows
that, if he be at all worthy of a certain post of honour, he will be
chosen to it before any other man, but who also knows that, if he
shows himself unworthy of it, he may either fail to attain it at all
or may be peacefully removed from it at the end of any twelvemonth, is
surely under stronger motives to make himself worthy of the place which
he hopes to fill than either the man who has to run the chance of an
unlimited competition or the man who succeeds to honour and authority
by the mere right of his birth.

Our fathers then came into Britain, bringing with them the three
elements of the primitive constitution which we find described by
Tacitus; but as I am inclined to think, the circumstances of the
Conquest did something, for a while at least, to strengthen the powers
both of the supreme chief and of the general body of the people at the
expense of the intermediate class of _Eorlas_ or nobles. Let us first
trace the origin and growth of the power of the supreme leader, in
other words, the monarchic element, the kingly power. What then is a
King? The question is much more easily asked than answered. The name
of King has meant very different things in different times and places;
the amount of authority attached to the title has varied greatly in
different times and places. Still a kind of common idea seems to run
through all its different uses; if we cannot always define a King,
we at least commonly know a King when we see him. The King has, in
popular sentiment at least, a vague greatness and sanctity attaching
to him which does not attach to any mere magistrate, however high
in rank and authority. I am not talking of the reason of the thing,
but of what, as a matter of fact, has at all times been the popular
feeling. Among the heathen Swedes, it is said that, when public affairs
went wrong,—that is, in the state of things when we should now turn
a Minister out of office and when our forefathers some generations
back would have cut off his head,—they despised any such secondary
victims, and offered the King himself in sacrifice to the Gods(30).
Such a practice certainly implies that our Scandinavian kinsfolk
had not reached that constitutional subtlety according to which the
responsibility of all the acts of the Sovereign is transferred to some
one else. They clearly did not, like modern constitution-makers, look
on the person of the King as inviolable and sacred. But I suspect
that the very practice which shows that they did not look on him as
inviolable shows that they did look on him as sacred. Surely the reason
why the King was sacrificed rather than any one else was because there
was something about him which there was not about any one else, because
no meaner victim would have been equally acceptable to the Gods. On
the other hand—to stray for a moment beyond the range of Teutonic and
even of Aryan precedent—we read that the ancient Egyptians forestalled
the great device of constitutional monarchy, that their priests,
in a yearly discourse, dutifully attributed all the good that was
done in the land to the King personally and all the evil to his bad
counsellors(31). These may seem two exactly opposite ways of treating
a King; but the practice of sacrificing the King, and the practice of
treating the King as one who can do no wrong, both start from the
same principle, the principle that the King is, somehow or other,
inherently different from everybody else. Our own Old-English Kings,
like all other Teutonic Kings, were anything but absolute rulers; the
nation chose them and the nation could depose them; they could do no
important act in peace or war without the national assent; yet still
the King, as the King, was felt to hold a rank differing in kind from
the rank held by the highest of his subjects. Perhaps the distinction
mainly consisted in a certain religious sentiment which attached
to the person of the King, and did not attach to the person of any
inferior chief. In heathen times, the Kings traced up their descent
to the Gods whom the nation worshipped; in Christian times, they were
distinguished from lesser rulers by being admitted to their office
with ecclesiastical ceremonies; the chosen of the people became also
the Anointed of the Lord. The distinction between Kings and rulers of
any other kind is strictly immemorial; it is as old as anything that
we know of the political institutions of our race. The distinction is
clearly marked in the description which I read to you from Tacitus. He
distinguishes in a marked way _Reges_ and _Duces_, Kings and Leaders;
Kings whose claim to rule rested on their birth, and leaders whose
claim to rule rested on their personal merit. But from the same writer
we learn that, though the distinction was so early established and so
well understood, it still was not universal among all the branches of
the Teutonic race. Of the German nations described by Tacitus, some,
he expressly tells us, were governed by Kings, while others were
not(32). That is to say, each tribe or district had its own chief, its
magistrate in peace and its leader in war, but the whole nation was
not united under any one chief who had any claim to the special and
mysterious privileges of kingship. That is to say, though we hear of
kingship as far back as our accounts will carry us, yet kingship was
not the oldest form of government among the Teutonic tribes. The King
and his Kingdom came into being by the union of several distinct tribes
or districts, which already existed under distinct leaders of their
own, and in our own early history we can mark with great clearness the
date and circumstances of the introduction of kingship. We should be
well pleased to know what were the exact Teutonic words which Tacitus
expressed by the Latin equivalents _Rex_ and _Dux_. As for the latter
at least, we can make a fair guess. The Teutonic chief who was not a
King bore the title of _Ealdorman_ in peace and of _Heretoga_ in war.
The former title needs no explanation. It still lives on among us,
though with somewhat less than its ancient dignity. The other title
of _Heretoga_, army-leader, exactly answering to the Latin _Dux_, has
dropped out of our own language, but it survives in High-German under
the form of _Herzog_, which is familiarly and correctly translated
by _Duke_(33). The _Duces_ of Tacitus, there can be no doubt, were
_Ealdormen_ or _Heretogan_. It is less clear what the title was which
he intended by _Rex_. Our word _Cyning, King_, is common to all the
existing Teutonic tongues, and we find it as far back as we can trace
the English language(34). But it is not the only, nor seemingly the
oldest, word to express the idea. In the oldest monument of Teutonic
speech, the Gothic translation of the Scriptures, the word _King_, in
any of its forms, is not found. The word there used is _Thiudans_(35).
And there is a third word _Drihten_, which in English is most commonly
used in a religious sense(36). I would ask you to bear with me while
I plunge for a moment into some obsolete Teutonic etymologies, as
I think that the analogies of these three words are not a little
interesting. All three names come from, or are closely connected with,
words meaning the race or people. One of those words, _Cyn_ or _Kin_,
we still keep in modern English with no change of sound and with very
little change of meaning. Now, the word _Cyning_, in its shortened
form _King_, either comes straight from the substantive _Cyn_, or else
from a closely connected adjective _Cyne_, noble, just like the Latin
_generosus_ from Genus, which, let me add, is the same word as our
English _Cyn_. Let no one delude you into thinking that _King_ has
anything to do with the _canning_ or _cunning_ man. The man who first
said that it had had simply not learned his Old-English grammar(37).
It has to do with _Cyn_ and _Cyne_, and it may be taken as “the noble
one,” or, as _ing_ is the Teutonic patronymic, any one that chooses may
thus form _Cyning_ from _Cyn_, and make the King, not the father of his
people, but their offspring(38). Now the other two names, _Thiudans_
or _Theoden_, and _Drihten_, have dropped out of our language, and so
have the two words with which they are connected, just as _Cyning_ is
connected with _Cyn_. _Thiduans_ or _Theoden_ comes from _Thiuda_ or
_Theod_, also meaning _people_, a word which you will recognize in many
of the old Teutonic names, _Theodric_, _Theodberht_, _Theodbald_, and
the like. So _Drihten_ either comes straight from _Driht_, a family or
company, or else, just like _Cyn_ and _Cyne_, from an adjective _driht_
meaning noble or lordly. All these three names expressing kingship have
thus to do with words meaning the race or people. They imply the chief
of a people, something more than the chief of a mere tribe or district.
Now in our Old-English Chronicles, when they tell how the first English
Conquerors, Hengest and Horsa, settled in Kent, they do not call them
_Cyningas_ but _Heretogan_, Leaders or Dukes. It is not till after some
victories over the Britons that we hear that Hengest took the _rice_ or
kingdom, and that his son Æsc is called _King_. So in Wessex, the first
conquerors Cerdic and Cynric are called _Ealdormen_ when they land;
but, when they have established a settled dominion at the expense of
the Welsh, we read that they too took the _rice_, and the leaders of
the West-Saxons are henceforth spoken of as Kings(39). It is plain then
that the first leaders of the English settlements in Britain, when they
came over, bore only the lowlier title of _Heretoga_ or _Ealdorman_; it
was only when they had fought battles and found themselves at the head
of a powerful and victorious settlement on the conquered soil that they
were thought worthy of the higher title of Kings. And we may further
believe that, with all their exploits they would not have been thought
worthy of it, if they had not been held to come of the blood of the
Gods, of the divine stock of Woden.

We thus see that kingship in the strict sense of the word, as
distinguished from the government of Dukes or Ealdormen, had its
beginning among the English in Britain, not in the very first moment
of the Conquest, but in the years which immediately followed it,
within the lifetime of the first generation of conquerors. The same
distinction which we find among the Angles and Saxons we find also
among the kindred nations of Scandinavia. When the Danes and Northmen
began those invasions which led to such important settlements in
Northern and Eastern England, we always find two marked classes of
leaders, the Kings and the _Jarls_, the same word as _Eorl_. Of these
the _Jarls_ answer to the English _Ealdormen_(40). The distinction is
again clearly marked, when we read that the Old-Saxons, the Saxons
of the mainland, were ruled, not by Kings, but by what our Latin
writer is pleased to call _Satraps_—that is, of course, _Dukes_ or
_Ealdormen_(41). But it is most strongly marked of all in several
accounts where we read of nations which had been united under Kings
falling back again upon the earlier dominion of these smaller local
chiefs. Thus the Lombards in Italy, who had been led by Kings to
their great conquest, are said for a while to have given up kingly
government, and to have again set up a rule of independent Dukes.
So the West-Saxons in our own island are said at one time to have
cast away kingly government, and to have in the like sort fallen back
on the rule of independent _Ealdormen_(42). In all these cases, we
should be glad to know more clearly than we do what was the exact
distinction between the _King_ and the _Duke_ or _Ealdorman_. But it
is plain that the King was the representative of a closer national
unity, while the Ealdorman represented the tendency on the part of each
tribe or district to claim independence for itself. The government of
the Ealdorman may not have been less effective than that of the King.
If we remember the distinction drawn by Tacitus as to the respective
qualifications for the two offices, we may even believe that the rule
of the Ealdorman may have been the more effective. But we may be sure
that the Ealdorman was felt to be, in some way or other, less distant
from the mass of his people than the King was; the place of King could
be held only by one of the stock of Woden; the place of Ealdorman, it
would seem, was open to any man who showed that he possessed the gifts
which were needed in a leader of men.

Kingship thus became the law of all the Teutonic tribes which settled
in Britain and whose union made up the English nation. That union, we
must always remember, was very gradual. Step by step, smaller Kings or
independent Ealdormen admitted the supremacy of a more powerful King.
Then, in a second stage, the smaller state was absolutely incorporated
with the greater. Its ruler now, if he continued to rule at all, ruled
no longer as an independent or even as a vassal sovereign, but as a
mere magistrate, acting by the deputed authority of the sovereign of
whom he held his office(43). The settlement made by Cerdic and Cynric
on the southern coast grew, step by step, by the incorporation of many
small kingdoms and independent Ealdormanships, into the lordship of the
whole Isle of Britain, into the immediate kingship of all its English
inhabitants. The Ealdorman of a corner of Hampshire thus grew step by
step into the King of the West-Saxons, the King of the Saxons, the King
of the English, the Emperor of all Britain, the lord, in later times,
of a dominion reaching into every quarter of the world(44). But the
point which now concerns us is that, with each step in the growth of
the King’s territorial dominion, his political authority within that
dominion has grown also. The change from an Ealdorman to a King, the
change from a heathen King to a Christian King crowned and anointed,
doubtless did much to raise the power and dignity of the ruler who
thus at each change surrounded himself with new titles to reverence.
But this was not all. The mere increase in the extent of territorial
dominion would at each step work most powerfully to increase the direct
power of the King, and still more powerfully to increase the vague
reverence which everywhere attaches to kingship. In Homer we read of
Kings, some of whom were “more kingly,” more of Kings, than others.
So it was among ourselves. A King who reigned over all Wessex was
more of a King than a King who reigned only over the Isle of Wight,
and a King who reigned over all England was more of a King than a
King who reigned only over Wessex(45). The greater the territory over
which a King reigns the less familiar he becomes to the mass of his
people; he is more and more shrouded in a mysterious awe, he is more
and more looked on as a being of a different nature from other men,
of a different nature even from other civil magistrates and military
leaders, however high their authority and however illustrious their
personal character. Such a separation of the King from the mass of his
people may indeed, in some states of things, lead, not to the increase,
but to the lessening of his practical power. He may become in popular
belief too great and awful for the effectual exercise of power, and, by
dint of his very greatness, his practical authority may be transferred
to his representatives who govern in his name. He may be surrounded
with a worship almost more than earthly, while the reality of power
passes to a Mayor of the Palace, or is split up among the satraps of
distant provinces(45). But, with a race of vigorous and politic Kings
ruling over a nation whose tendencies are to closer unity and not to
wider separation, each step in the territorial growth of the kingdom
is also a step in the growth, not only of the formal dignity, but of
the practical authority of the King. The King of the English, who in
the eleventh century held the direct sovereignty of all England, the
over-lordship of all Britain, was a very different person from his
forefather, who in the sixth century deemed that another victory over
the Briton, the acquisition of another strip of British territory,
another hundred, it may be, of modern Hampshire, had made him great
enough to change his title of Ealdorman for that of King. Such a King
was every inch a King; his personal character was of the highest moment
for the good or evil fortune of his kingdom. His will counted for much
in the making of the laws by which his people were to be governed, and
in the disposal of honours and offices among those who were to govern
under him. But yet he was not a despot; men never forgot that the
King was what his name implied, the representative, the impersonation,
the offspring of the people. It was from the choice of the people that
he received his authority to rule over them, a choice limited under
all ordinary circumstances to the royal house, but which, within that
house, was not tied down by a blind regard to any particular law of
succession. It was a choice which at any time could fix itself on the
worthiest man of the royal house, and which, when the royal house
failed to supply a fitting candidate, could boldly fix itself on the
worthiest man of the whole people(47). And those from whom the King
first drew his power ever shared with him in its exercise. The laws,
the grants, the appointments to offices, which the King made, needed
the assent of the people in their national Assembly, the gathering of
the Wise Men of the whole land(48). And those who gave him his power
and who guided him in its exercise could also, when need so called,
take away the power which they had given. At rare intervals—for it is
only at rare intervals that so great a step is likely to be taken—has
the English nation exercised its highest power by taking away the
Crown from Kings who were unworthy to wear it. I speak not of acts of
violence or murder, or of processes which, though clothed under legal
form, were without precedent in our history. I speak not of the secret
death of Henry the Sixth or of the open execution of Charles the First.
I speak of the regular process of the Law. In Northumberland the right
of deposition was exercised with special frequency(49). But I will
speak only of that direct and unbroken line of Kings who from Kings of
the West-Saxons grew into the Kings of the English. Six times at least,
in the space of nine hundred years, from Sigeberht of Wessex to James
the Second, has the Great Council of the Nation thus put forth the
last and greatest of its powers(50). The last exercise of this power
has made its future exercise needless. All that in old times was to
be gained by the deposition of a King can now be gained by a vote of
censure on a Minister, or, in the extremest case, by his impeachment.

But, besides that growth of the King’s power which followed naturally
on the growth of the King’s dominions, another cause was busily at
work which clothed him with a personal influence which was of almost
greater moment than his political authority. To a large portion of
his subjects, to all the men of special wealth or power, the King
gradually became, not only King but _lord_; his subjects gradually
became, not only his subjects but his _men_. These names may need some
explanation, and I will again go back to Tacitus as our starting-point.
Side by side with the political community, the King, the nobles, the
popular Assembly, all of them strictly political powers, he describes
another institution, a relation in itself not political but purely
personal, but which gradually became of the highest political moment.
This was the institution of the _comitatus_, the system of personal
relation between a man and his lord, a relation of faithful service on
one side, of faithful protection on the other. Let us again hear the
words of the great Roman interpreter of our own earliest days(51).

“It is no shame among the Germans to be seen among the companions
(_comites_) of a chief. And there are degrees of rank in the
companionship (_comitatus_), according to the favour of him whom they
follow; and great is the rivalry among the companions which shall stand
highest in the favour of his chief, and also among the chiefs which
shall have the most and the most valiant companions.... When they come
to battle, it is shameful for the chief to be surpassed in valour; it
is shameful for his companions not to equal the valour of their chief.
It is even a badge of disgrace for the remainder of life if a man comes
away alive from the field on which his chief has fallen. To guard, to
defend him, to assign their own valiant deeds to his credit, is their
first religious duty. The chiefs fight for victory; the companions
fight for their chief.”

This is the description given by a Roman historian of the second
century; let me set beside it the words of an English poet of the
tenth. He is describing the battle of Maldon in 991, which was fought
by the East-Saxons under their Ealdorman Brihtnoth against the invading
Northmen. The Ealdorman has been killed; two of his followers have
fled, one of them on the Ealdorman’s horse, and every word that is put
into the mouth of his faithful companions turns upon the personal tie
between them and their lord(52).

  “Thereon hewed him
   The heathen soldiers;
   And both the warriors
   That near him by-stood,
   Ælfnoth and Wulfmær both,
   Lay there on the ground
   By their lord;
   Their lives they sold.
   There bowed they from the fight
   That there to be would not;
   There were Odda’s bairns
   Erst in flight;
   Godric from battle went,
   And the good man forsook
   That to him ofttimes
   Horses had given.
   He leapt on the horse
   That his lord had owned,
   On the housings
   That it not right was.”

Presently we read of the deeds done by his Thegns over his body;

  “There was fallen
   The folk’s Elder,
   Æthelred’s Earl;
   All there saw
   Of his hearth’s comrades
   That their lord lay dead.
   Then there went forth
   The proud Thanes,
   The undaunted men
   Hastened gladly;
   They would there all
   One of two things,
   Either life forsake,
   Or the loved one wreak.”

Then one of the Thegns speaks;

  “Neither on that folk
   Shall the Thanes twit me
   That I from this host
   Away would go
   To seek my home,
   Now mine Elder lieth
   Hewn down in battle;
   To me is that harm most;
   He was both my kinsman
   And my lord.”

Then another speaks in answer;

  “How thou, Ælfwine, hast
   All our Thanes
   In need-time cheered.
   Now our lord lieth,
   The Earl on the earth,
   That of us each one
   Others should embolden,
   Warmen to the war,
   That while we weapons may
   Have and hold,
   The hard falchion,
   Spear and good sword.”

Then another speaks;

  “I this promise
   That I hence nill
   Flee a footstep,
   But will further go,
   To wreak in the fight
   My lord and comrade.
   Nor by Stourmere
   Any steadfast hero
   With words need twit me
   That I lordless
   Homeward should go,
   And wend from the fight.”

The story goes on a little later;

  “Rath was in battle
   Offa hewn down,
   Yet had he furthered
   That his lord had pledged,
   As he ere agreed
   With his ring-giver
   That they should both
   To the borough ride
   Hale to home,
   Or in the host cringe
   On the slaughter place,
   Of their wounds die.
   He lay thane-like
   His lord hard by.”

Lastly another Thegn speaks;

  “Mind shall the harder be,
   Heart shall the keener be,
   Mood shall the more be,
   As our main lessens.
   Here lies our Elder,
   All down hewn,
   A good man in the dust;
   Ever may he groan
   Who now from this war-play
   Of wending thinketh.
   I am old of life;
   Hence stir will I not,
   And I by the half
   Of my lord,
   By such a loved man
   To lie am thinking.”

This institution of military companionship seems to have struck Tacitus
with some amazement. He says that this kind of personal relation was
among the Germans not thought shameful. This was the natural feeling
of a Roman. The duty of a Roman citizen was wholly towards the state.
The state might be represented either by a responsible magistrate or
by an irresponsible Emperor; in either case obedience was due to the
representative of the state; but there was no personal relation to
the man. The old Roman institution of patron and client, which was
so like the German _comitatus_, had pretty well died out by the time
of Tacitus, and it had at no time been entered into by men of high
rank(53). What amazed Tacitus was that among the Germans the noblest in
birth and exploits were not looked on as dishonoured by entering the
service of a personal lord. To Tacitus himself Trajan was the chief
magistrate of the Roman commonwealth, the chief commander of the Roman
army; he was a personal master to none but his slaves and freedmen(54).
It was only in a much later stage of the Roman Empire that personal
service in the court and household of the Emperor began to be looked
on as honourable(55). But among the Teutonic nations the personal
relation coloured everything; personal service towards a King or other
chief was honourable from the beginning; the proudest nobles of Europe
have down to this day thought themselves honoured by filling offices
about the persons of Emperors, Kings, and other princes which Tacitus
would have deemed beneath the dignity of any Roman citizen. We are
now accustomed to see this kind of service paid in the case of royal
personages only; a few centuries back men of any rank deemed themselves
honoured by paying the like service to men of the rank next above their
own, or even to men of their own rank who had the start of them in age
and reputation. The knight was served by his esquire and the master
by his scholar; and the same principle, laid aside everywhere else,
lingers on in what is undoubtedly a trace of the Teutonic _comitatus_,
the fagging of our public schools. Now the political effect of the
existence of the principle of personal service, the institution of
the _comitatus_, alongside of the primitive political community, was
most important in our early history. The personal relation went far to
swallow up the purely political one. To enter the service of a chief
became so established a practice that at last it was deemed that it was
the part of every man to “seek a lord,” as the phrase was, to commend
himself, to put himself under the protection of some man more powerful
than himself(56). The _man_ owed faithful service to his _lord_; the
lord owed faithful protection to his man. The very word _Lord_, in its
older and fuller form _Hlaford_, implies the rewards which the lord
bestowed on his faithful man. The word is in some sort a puzzling one;
but there can be no doubt that it is connected with _hlaf_, _loaf_, and
that its general meaning is _the giver of bread_(57). Now herein lurks
something which has greatly affected all later political and social
arrangements. The institution of the _comitatus_ in its first state
had nothing whatever to do with the holding of land. But the _man_
looked for reward of his faithful service at the hands of his _lord_;
he looked for the bread of which his lord’s title proclaimed him as
the giver. There was of course no form of reward, no form of _bread_,
so convenient or so honourable as that of a grant of land to be held
as the reward of past and the condition of future service. Moreover
the custom of granting out lands to be held by the tenure of military
service had become common in the later days of Roman power(58). Such
lands were of course held, not of the Emperor as a personal lord, but
of the Roman Commonwealth of which he was the head and representative.
But the custom of holding lands by military service fell in well with
the Teutonic institution of personal service, and the union of the two
in the same person produced that feudal relation which has had such
an important bearing on all political and social life through the
whole of the middle ages and down to our own time. The land granted
by the lord to his man, or the land which the man agreed to hold as
if it had been so granted, might be a kingdom held of the Emperor or
the Pope, or it might be the smallest estate held of a more powerful
neighbour. In either case, such a holding by military service was a
_fief_, and from the institution of such fiefs the so-called Feudal
System, with all its manifold workings for good and for evil, had its
rise. But so far as the Feudal System existed, either in England or in
any other country, it existed wholly as a system which had grown up by
the side of an earlier system which it wholly or partially displaced.
The feudal tenant, holding his land of a lord by military service
gradually supplanted, wholly or partially, in most countries of Europe,
the _allodial_ holder who held his land of no other man, and who knew
no superior but God and the Law(59). In England this change took place
only gradually and partially; it was through the Norman Conquest, or,
more accurately, through the subtle legal theories which came in with
the Norman Conquest, that it was finally established. And, after all,
it was rather in theory than in fact that it was established. The
Feudal System, as something spreading into every corner of the land,
and affecting every relation of life, never obtained the same complete
establishment in England which it did in some continental countries.

But it is only indirectly that my subject has anything to do with the
Feudal System, and especially with its social working. I have to do
with the _comitatus_, out of which the feudal relation grew, mainly in
another aspect equally indirect, namely, the way in which it affected
our earliest political institutions. It gave us a new form of nobility,
a nobility of office and of personal relation to the King, instead of
a nobility founded on birth only. It gave us a nobility of _Thegns_,
which gradually supplanted the earlier nobility of the _Eorls_. As the
royal power and dignity grew, it came to be looked on as the highest
honour to enter into the personal service of the King. Two results
followed; service towards the King, a place, that is, in the King’s
_comitatus_, became the badge and standard of nobility(60). And it
greatly strengthened the power of the King that he stood to all the
chief men of his kingdom in the relation, not only of a political
ruler, but of a personal lord, a lord to whose service they were bound
by a personal tie, and of whom they held their lands as the gift of
his personal bounty. It marks perhaps a decline from the first idea of
the _comitatus_ that the old word _Gesith_, _companion_, answering
exactly to the Latin _Comes_ used by Tacitus, was supplanted by the
name _Thegn_, literally _servant_(61). But when personal service was
deemed honourable, the name of servant was no degradation, and the
name _Thegn_ became equivalent to the older _Eorl_. The King’s Thegn,
the men who held their land of the King and who were bound to him by
the tie of personal service, formed the highest class of nobility. The
Thegns of inferior lords, of Bishops and Ealdormen, formed a secondary
class. A nobility of this kind, there can be no doubt, was so far more
liberal than the elder nobility of birth that admission to it was not
forbidden to men of lower degree. The _Ceorl_, the ordinary freeman,
could not in strictness become an _Eorl_, for the simple reason that
he could not change his forefathers; but he might, and he often did,
become a _Thegn_(62). But, on the other hand, such a nobility, while
it made it easier for the common freeman to rise, tended to lower the
condition of the common freemen who did not rise. For the very reason
that the barrier of birth is one which cannot be passed, it is in
some respects less irksome than the barrier of wealth or office. The
privileges of a strictly hereditary nobility are much more likely to
sink into mere honorary distinctions than the privileges of a nobility
whose rank is backed by the solid advantages of office and of a
personal relation to the sovereign.

The tendency then of the first six hundred years after the settlement
of the English in Britain was to increase the power of the Crown, to
depress the lower class of freemen, to exchange a nobility of birth for
a nobility of personal service to the King. That is to say, England
had, before the Norman Conquest, already begun to walk, though with
less speed than most other nations, in the path which led to the
general overthrow of liberty throughout Europe. The foreign invasion
which for a moment seemed to have crushed her freedom for ever did in
truth only lead to its new birth, to its fresh establishment in forms
better fitted to the altered state of things, forms better fitted
to be handed on to later times, forms better fitted to preserve the
well-being of a great nation, than those forms of the old Teutonic
community which still linger on in those remote corners of the world
which I spoke of at my beginning. That momentary overthrow, that
lasting new birth, will be the subject of my second chapter. I will
now only call you to bear in mind that England has never been left
at any time without a National Assembly of some kind or other. Be it
Witenagemót, Great Council, or Parliament, there has always been some
body of men claiming, with more or less of right, to speak in the name
of the nation. And bear too in mind that, down to the Norman Conquest,
the body which claimed to speak in the name of the nation was, in legal
theory at least, the nation itself. This is a point on which I mean
again to speak more fully; I would now simply suggest the thought, new
perhaps to many, that there was a time when every freeman of England,
no less than every freeman of Uri, could claim a direct voice in the
councils of his country. There was a time when every freeman of England
could raise his voice or clash his weapon in the Assembly which chose
Bishops and Ealdormen and Kings, when he could boast that the laws
which he obeyed were laws of his own making, and that the men who bore
rule over him were rulers of his own choosing. Those days are gone, nor
need we seek to call them back. The struggles of ages on the field and
in the Senate have again won back for us the selfsame rights in forms
better suited to our times than the barbaric freedom of our fathers.
Yet it is well that we should look back to the source whence comes all
that we boast of as our own possession, all that we have handed on to
our daughter commonwealths in other continents. Let us praise famous
men and our fathers that begat us. Let us look to the rock whence we
were hewn and to the hole of the pit whence we were digged. Freedom,
the old poet says, is a noble thing(63); it is also an ancient thing.
And those who love it now in its more modern garb need never shrink
from tracing back its earlier forms to the first days when history has
aught to tell us of the oldest life of our fathers and our brethren.




CHAPTER II.


In my first chapter I dealt mainly with those political institutions of
the earliest times—institutions common to our whole race, institutions
which still live on untouched among some small primitive communities of
our race—out of which the still living Constitution of England grew.
It is now my business, as the second part of my subject, to trace the
steps by which that Constitution grew out of a political state with
which at first sight it seems to have so little in common. My chief
point is that it did thus, in the strictest sense, grow out of that
state. Our English Constitution was never made, in the sense in which
the Constitutions of many other countries have been made. There never
was any moment when Englishmen drew out their political system in the
shape of a formal document, whether as the carrying out of any abstract
political theories or as the imitation of the past or present system of
any other nation. There are indeed certain great political documents,
each of which forms a landmark in our political history. There is the
Great Charter, the Petition of Right, the Bill of Rights. But not one
of these gave itself out as the enactment of anything new. All claimed
to set forth, with new strength, it might be, and with new clearness,
those rights of Englishmen which were already old. In all our great
political struggles the voice of Englishmen has never called for the
assertion of new principles, for the enactment of new laws; the cry has
always been for the better observance of the laws which were already
in force, for the redress of grievances which had arisen from their
corruption or neglect(1). Till the Great Charter was wrung from John,
men called for the laws of good King Eadward. And when the tyrant had
unwillingly set his seal to the groundwork of all our later Law, men
called for the stricter observance of a Charter which was deemed to
be itself only the laws of Eadward in a newer dress(2). We have made
changes from time to time; but they have been changes which have been
at once conservative and progressive—conservative because progressive,
progressive because conservative. They have been the application of
ancient principles to new circumstances; they have been the careful
repairs of an old building, not the pulling down of an old building
and the rearing up of a new. The life and soul of English law has ever
been precedent; we have always held that whatever our fathers once did
their sons have a right to do again. When the Estates of the Realm
declared the throne of James the Second to be vacant, they did not seek
to justify the act by any theories of the right of resistance, or by
any doctrines of the rights of man. It was enough that, three hundred
years before, the Estates of the Realm had declared the throne of
Richard the Second to be vacant(3). By thus walking in the old paths,
by thus hearkening to the wisdom of our forefathers, we have been able
to change whenever change has been needed, and we have been kept back
from changing out of the mere love of abstract theory. We have thus
been able to advance, if somewhat slowly, yet the more surely; and when
we have made a false step, we have been able to retrace it. On this
last power, the power of undoing whatever has been done amiss, I wish
specially to insist. In tracing the steps by which our Constitution
has grown into its present shape, I shall try specially to show in how
many cases the best acts of modern legislation have been, wittingly or
unwittingly, a falling back on the principles of our earliest times.
In my first chapter I tried to show how our fathers brought with
them into the Isle of Britain those primæval institutions which were
common to them with the whole Teutonic race. I tried to show how those
institutions were modified in the course of time by the circumstances
of the English Conquest of Britain, and by the events which followed
that Conquest. I showed how the kingly power grew with every increase
of the territorial extent of the kingdom; how the old nobility of birth
gave way to a new nobility of personal relation to the sovereign; and
how the effect of these changes seems to have been to make it easier
for the individual freeman of the lower rank to rise, but at the same
time to lower the position of the ordinary freemen as a class. This
last change was still more largely brought about as an independent
result of the same changes which tended to increase the kingly power.
In a state of things where representation is unknown, where every
freeman is an elector and a lawgiver, but where, if he exercises his
elective and legislative rights, he must exercise them directly in
his own person—in such a state of things as this every increase of
the national territory makes those rights of less practical value,
and causes the actual powers of government to be shut up in the hands
of a smaller body. There is no doubt that in the earliest Teutonic
assemblies every freeman had his place. There is no doubt that in
England every freeman kept his place in the smaller local assemblies of
the _mark_, the _hundred_, and the _shire_(4). He still, where modern
legislation has not wholly swept it away, keeps, as I hinted in my
former lecture, some faint shadow of the old right when he gives a vote
in the assembly, in which the assembly of the mark still lives on, that
is, in the vestry of his parish. But how as to the great assembly of
all, the Assembly of the Wise, the Witenagemót of the whole realm? No
ancient record gives us any clear or formal account of the constitution
of that body. It is commonly spoken of in a vague way as a gathering of
the wise, the noble, the great men(5). But, alongside of passages like
these, we find other passages which speak of it in a way which implies
a far more popular constitution. King Eadward is said to be chosen King
by “all folk.” Earl Godwine “makes his speech before the King and all
the people of the land.” Judicial sentences and other acts of authority
are voted by the army, that is by the people under arms. Sometimes we
find direct mention of the presence of large and popular classes of
men, as the citizens of London or Winchester(6). The inference from all
this is obvious. The right of the ordinary freeman to attend, to
vote—it might perhaps be nearer the truth to say to shout(7)—in the
general Assembly of the whole realm was never formally taken away. But
it was a right which, in its own nature, most men could hardly ever
exercise. None but men of wealth would have the means, none but men
of some personal importance would have any temptation, to take long
journeys for such a purpose. It is not likely that any great multitude
would, under ordinary circumstances, set off from Northern England to
attend meetings which were habitually held at Westminster, Winchester,
and Gloucester. It is plain that the habitual attendance would not go
beyond a small body of chief men, Earls, Bishops, Abbots, the officers
of the King’s court, the Thegns of the greatest wealth or the highest
personal influence. But it is plain that, when the heart of the nation
was specially stirred by some overwhelming interest, many men would
find their way to the Assembly who would not find their way to it
in ordinary times. And, when the Assembly was held in a town, the
citizens of that town at once formed a popular element ready on the
spot. Hence we can account for the seemingly contradictory way in which
the Assembly is spoken of, sometimes in language which would imply
an aristocratic body, sometimes in language which would imply a body
highly democratic. It was in fact a body, democratic in ancient theory,
aristocratic in ordinary practice, but to which any strong popular
impulse could at any time restore its ancient democratic character(8).
Acts done by a freely chosen representative body may, without much
straining of language, be said to be done by the whole people. But
acts done by a body not representative could never be called the acts
of the whole people, unless the whole people had an acknowledged right
to attend its meetings, though that right might, under all ordinary
circumstances, be exercised only by a few of their number.

Out of this body, whose constitution, by the time of the Norman
Conquest, had become not a little anomalous and not a little
fluctuating, our Parliament directly grew. Of one House of that
Parliament we may say more; we may say, not that it grew out of the
ancient Assembly but that it is absolutely the same by personal
identity. The House of Lords not only springs out of, it actually is,
the ancient Witenagemót. I can see no break between the two. King
William summoned his Witan as King Eadward had summoned them before
him. In one memorable assembly of the Conqueror’s reign, we read that
the great men of the realm were reinforced by the presence of the
whole body of the landholders of England, whose number tradition handed
down as sixty thousand(9). But, as a rule, the Great Councils after
the Norman Conquest bear the same uncertain and fluctuating character
as the Gemóts of earlier days. In the constitution of the House of
Lords I can see nothing mysterious or wonderful. Its hereditary
character came in, like other things, step by step, by accident rather
than by design. And it should not be forgotten that, as long as the
Bishops keep their seats in the House, the hereditary character of the
House does not extend to all its members. To me it seems simply that
two classes of men, the two highest classes, the Earls and the Bishops,
never lost or disused that right of attending in the National Assembly
which was at first common to them with all other freemen. Besides these
two classes, the King summoned other men to our early Parliaments,
pretty much, it would seem, at his own pleasure. The right of the
King so to do could not be denied; when all had an abstract right to
attend, we cannot blame the King for specially summoning those for
whose attendance he specially wished. But it would almost naturally
follow that such a special summons would gradually be held to bestow an
exclusive right, and that those who were not specially summoned would
soon be looked upon as having no part or lot in the matter. But it is
certain that it was long before such a summons was held to confer a
hereditary, or even a lasting personal right. The King did not always
summon the same men to every Parliament. Besides the Earls and the
Bishops, others both of the laity and the clergy were always summoned,
but the list of those who were summoned, both of the laity and of the
lesser ecclesiastical dignitaries, constantly varies from Parliament
to Parliament(10). That the personal summons conveyed an exclusive
hereditary right was one of those devices of lawyers of which so many
have crept into our constitution. When the notion of hereditary right
had once established itself, the formal creation of peerages by patent
was a natural stage. Looking at the matter from this historical point
of view, it seems to me simply wonderful how any one can doubt the
power of the Crown to create life-peerages, or to regulate the tenure
or succession of a peerage in any way that it thinks good.

The House of Lords then, I do not hesitate to say, represents, or
rather is, the ancient Witenagemót. An assembly in which at first every
freeman had a right to appear has, by the force of circumstances, step
by step, without any one moment of sudden change, shrunk up into an
Assembly wholly hereditary and official, an Assembly to which the Crown
may summon any man, but to which, it is now strangely held, the Crown
cannot refuse to summon the representatives of any man whom it has
once summoned. As in most other things, the tendency to shrink up into
a body of this kind began to show itself before the Norman Conquest,
and was finally confirmed and established through the results of the
Norman Conquest. But the special function of the body into which the
old national Assembly has changed, the function of “another House,” an
Upper House, a House of Lords as opposed to a House of Commons, could
not show itself till a second House of a more popular constitution
had arisen by its side. Like everything else in our English polity,
both Houses in some sort came of themselves. Neither of them was the
creation of any ingenious theorist, though we need not doubt that many
of the several steps in the growth of each were, each in its own time,
the work of practical statesmanship. Our forefathers had no theories;
but men, each in his own generation, had eyes keen enough to see that
such and such a change in detail would get rid of such and such an
immediate evil, or would bring with it such and such an immediate
advantage. Nay more, it has sometimes happened that a change which
was brought in with an evil intent has in the end worked for good.
Measures which were taken with a view of strengthening the power of
the Crown have come in the end to widen the rights of the people. On
the other hand, institutions which once answered a good and needful
purpose have sometimes, through change of times, changed their nature
and have become instruments of evil instead of good. But in neither
case were the institutions of our fathers the work of abstract theory.
They have therefore lived on, and they have borne good fruit. Our
national Assembly has changed its name and its constitution, but
its corporate identity has lived on unbroken. We can therefore at
any moment reform without destroying. In France, on the other hand,
institutions have been the work of abstract theory; they have been the
creations, for good or for evil, of the minds of individual men. The
English Parliament is immemorial; it grew step by step out of the older
order of things. In France the older order of things utterly vanished;
the ground lay open for the creation of a wholly new institution, and
the States-General were called into being at the bidding of Philip the
Fair(11). Englishmen in the fourteenth and fifteenth centuries had no
theories of the rights of man or of universal humanity. But when they
saw a practical grievance, they called for its redress. Frenchmen in
the fourteenth and fifteenth centuries had theories as magnificent as
any that have been put forth in the eighteenth or the nineteenth. And
they had even then already learned to do deeds of blood in the name
of freedom and philanthropy(12). Therefore French institutions have
not lasted. The States-General lived but a fitful life from century
to century, and they perished for ever in the Great Revolution. Since
that time no French institution, no form either of the legislative or
of the executive power, has been able to keep up a continuous being of
twenty years. This difference has not been owing to any lack of great
men or of noble purposes on the part of our continental neighbours. It
has been owing, partly, we may believe, to differences in the inborn
character of the two nations, partly to differences in the course
taken by their several histories. In France the Kings gradually swept
away all traces of older free institutions, and established a simple
despotism in the Crown(13). The French therefore have been left
without any traditional foundation to build on. In all their changes
for good or for evil they have been driven to build afresh from the
beginning. Our Kings never wholly wiped out our free institutions;
they found means to turn them to their own purposes, and to establish
a practical despotism without destroying the outward forms of freedom.
The forms thus lived on, and in better times they could again be
clothed with their substance. We ever had traditional principles to
fall back upon, a traditional basis to build upon. It would be hard to
reckon up the number of Assemblies, Conventions, Chambers of Deputies,
and Legislative Bodies, which have risen and fallen in France, while
the House of Lords and the House of Commons have lived on, with their
powers, their duties, their relations to the Crown, to the Nation, and
to one another, ever silently changing, but with their continuous being
remaining throughout unbroken.

But I would again point out that, while the growth of English
institutions has thus gone on almost in obedience to a natural law, the
wisdom, the foresight, the patriotism, of individual statesmen is never
to be put out of our reckoning. There was a given state of things, and
some man had keenness of sight to see what was the right thing to do
in that state of things. Our Constitution has no founder; but there is
one man to whom we may give all but honours of a founder, one man to
whose wisdom and self-devotion we owe that English history has taken
the course which it has taken for the last six hundred years. It might
no doubt have taken that course without him; things might have come
about as they did without any one man coming so prominently to the
front; or, if he had not arisen, some other man might have arisen to do
his work. But we need not speculate as to what might have been; it is
enough that one man did arise to do the work, that there is one man to
whom we owe that the wonderful thirteenth century, the great creative
and destructive age throughout the world(14), was to us an age of
creation and not of destruction. That man, the man who finally gave to
English freedom its second and more lasting shape, the hero and martyr
of England in the greatest of her constitutional struggles, was Simon
of Montfort, Earl of Leicester. If we may not call him the founder of
the English Constitution, we may at least call him the founder of the
House of Commons(15). It was in his age that the new birth of English
freedom began to show itself; it was mainly by his work that that new
birth was not stifled before it had brought forth lasting fruits.
Strange it may at first sight seem that the founder of the later
liberties of England was not an Englishman. Simon of Montfort, a native
of France, did for the land of his adoption what even he might not
have been able to do for the land of his birth. And why? The land of
his birth was—shall I say flourishing or suffering?—under the baleful
virtues of the most righteous of Kings. Saint Lewis reigned in France,
Saint Lewis the just and holy, the man who never swerved from the path
of right, the man who swared to his neighbour and disappointed him not,
though it were to his own hindrance. Under his righteous rule there
could be no ground for revolt or disaffection. By surrounding the Crown
with the reflected glory of his own virtues, he did more than any other
man to strengthen its power. He thus did more than any other man to
pave the way for that foul despotism of his successors whose evil deeds
would have daily vexed his righteous soul. In England, on the other
hand, we had the momentary curse, the lasting blessing, of a succession
of evil Kings. We had Kings who had no spark of English feeling in
their breasts, but from whose follies and necessities our fathers were
able to wring their freedom, all the more lastingly because it was bit
by bit that it was wrung. A Latin poet once sang that freedom never
flourishes more brightly than it does under a righteous King(16). And
so it does while that righteous King himself tarries among men. But
to win freedom as an heritage for ever there are times when we have
more need of the vices of Kings than of their virtues. The tyranny of
our Angevin masters woke up English freedom from its momentary grave.
Had Richard and John and Henry been Kings like Ælfred and Saint Lewis,
the crosier of Stephen Langton, the sword of Robert Fitzwalter, would
never have flashed at the head of the Barons and people of England; the
heights of Lewes would never have seen the mightiest triumph of her
freedom; the pavement of Evesham choir would never have closed over the
mangled relics of her noblest champion(17).

The career of Simon of Montfort is the most glorious in our later
history. Cold must be the heart of every Englishman who does not feel
a thrill of reverence and gratitude as he utters that immortal name.
But, fully to understand his work, we must go back somewhat before his
own time, we must go back and trace how the sway of foreign invaders
first made the path ready for the course of the foreign deliverer. I
have shown in what state our Constitution stood at the time of the
Norman Conquest. In that Constitution, be it ever remembered, the
Norman Conquest made no formal change whatever. Nothing has had a more
lasting effect on all later English history than the personal character
and position of the Norman Conqueror. But it was not in the character
of a legislator that the main work of William was done. His greatest
work of all was to weld together the still imperfectly united kingdoms
of our ancient England into one indivisible body, a body which, since
his day, no man has ever dreamed of rending asunder. But this was not
the work of any formal legislative enactment; it was the silent result
of the compression of foreign conquest. So it was with William’s whole
policy and position. He was in truth a Conqueror, King by the edge of
the sword, but it was his aim in everything to disguise the fact. He
claimed the Crown by legal right; he received it by the formal election
of the English people, and he was consecrated to his kingly office by
the hands of an English Primate. He professed to rule, not according
to his own will, not according to any laws of his own devising, but
according to the laws of his predecessor and kinsman King Eadward
(18). The great immediate change which was wrought under him was not
any formal legislative change; it was the silent revolution implied in
the transfer—the wary and gradual transfer—of all the greatest estates
and highest offices in England to the hands of foreign holders. The
momentary effect was to make Englishmen on their own soil the subjects
of foreign conquerors. The lasting effect was to change those foreign
conquerors into Englishmen, and to call forth the spirit of English
freedom in a more definite and antagonistic shape than it had ever
before put on. What was the real position of a landowner of Norman
descent within a generation or two after the Conquest? He held English
lands according to English law; in all but the highest rank he lived
on equal terms with other landowners of English birth; he was himself
born on English soil, often of an English mother; he was called on
in endless ways to learn, to obey, and to administer, the laws of
England. Such a man soon became in feeling, and before long in speech
also, as good an Englishman as if he had come of the male line of
Hengest or Cerdic. There was nothing to hinder even one of the actual
conquerors from thoroughly throwing in his lot with his new country
and with its people. His tongue was French, but in truth he had far
more in common with the Englishman than with the Frenchman. He was
but a near kinsman slightly disguised. The Norman was a Dane who, in
his sojourn in Gaul, had put on a slight French varnish, and who came
into England to be washed clean again. The blood of the true Normans,
in the real Norman districts of Bayeux and Coutances, differs hardly
at all from the blood of the inhabitants of the North and East of
England(19). See a French soldier and a Norman farmer side by side,
and you feel at once that the Norman is nothing but a long-parted
kinsman. The general effect of him is that of a man of Yorkshire or
Lincolnshire who has somehow picked up a bad habit of talking French.
Such men readily became Englishmen. We have the distinct assertions
of contemporary writers, and every incidental notice bears out their
assertions, that, among all classes between the highest and the lowest,
among all between the great noble and the villain, the distinction of
Norman and Englishman had been forgotten within little more than a
hundred years after the time when King William came into England(20).
And presently other causes came to make all the sons of the soil draw
nearer and nearer together. A new dynasty filled the throne, a dynasty
which claimed by female descent to be at once Norman and English, but
which, in origin and feeling, was neither Norman nor English(21).
Henry the Second, Count of Anjou through his father, Duke of Aquitaine
through his wife, inherited also his mother’s claims on Normandy and
England, but under him Normandy and England alike were but parts of a
vast dominion which stretched from the Orkneys to the Pyrenees. Under
the mighty, and on the whole the righteous, sway of the great Henry
the worst side of this state of things did not show itself(22). Under
his sons and his grandson England felt to the full the bitterness and
the blessings of the Conquest. The land was overrun by utter strangers;
the men of Old-English birth and the descendants of the first Norman
settlers both saw the natives of other lands placed over the heads of
both alike. Places of trust and honour and wealth were handed over to
foreign favourites, and every man in the land was exposed to a yet
heavier scourge, to the violence and insolence of foreign mercenaries.
Under John Normandy was lost(23), and England again became the chief
possession of the King of England. But neither John nor Henry learned
the lesson. The personal vices of the father, the personal virtues of
the son, worked to the same end as far as their kingdom was concerned.
The King whose wickedness became a proverb, who surrounded himself
with the kindred ruffians of every nation, and the King whose chief
fault was that he could never say No to his wife or his mother, helped
alike to call forth the spirit of resistance, to draw all Englishmen of
whatever origin nearer together, and thereby to work out the great work
of giving England a free and lasting Constitution. For such Kings we
may well be thankful, but to such Kings we owe no thanks. Our feelings
of personal thankfulness towards any of our later Kings begin only when
a King arose who joined the political skill of Henry the Second to the
personal virtues of Henry the Third, and who added to both a feeling
of English patriotism, a ruling sense of right in public affairs, of
which neither Henry ever felt the slightest spark in his bosom. Edward
the First, the first of our later Kings who bore an English name and an
English heart, was the first round whose name can gather any feelings
of personal thankfulness. In him we see the first of our Kings of
foreign blood who did aught for the growth of our constitutional rights
in some other way than that of calling forth the spirit of resistance
to his rule.

Thus it was that the misgovernment of our Angevin Kings called forth
among all the natives of the land an universal spirit of revolt against
the domination of strangers within the realm. And they called forth the
spirit of revolt in another way, a way hardly less important, by their
base subserviency to a foreign power in ecclesiastical matters. I have
here nothing to do with theological dogmas, with their truth or their
falsehood, but the ecclesiastical position of the nation forms a most
important aspect of its history throughout these times. In Old-English
times there can be no doubt as to the existence of an effective
supremacy in ecclesiastical matters on the part of the Crown. The King
was the Supreme Governor of the Church, because he was the Supreme
Governor of the Nation. The Church and the Nation were absolutely the
same; the King and his Witan dealt with ecclesiastical questions and
disposed of ecclesiastical offices by the same right by which they
dealt with temporal questions and disposed of temporal offices(24).
The Bishop and the Ealdorman, each appointed by the same authority,
presided jointly in the assembly of the shire, and the assembly over
which they presided dealt freely both with ecclesiastical and with
temporal causes. One of the few formal changes in our Law which took
place in the days of the Conqueror was the separation of the two
jurisdictions of the Bishop and the Ealdorman. One of William’s extant
laws ordained the establishment, according to continental models, of
distinct ecclesiastical courts for the trial of ecclesiastical causes
(25). But more important than this formal change was the practical
result of the Conquest in bringing England into closer connexion than
before with the See of Rome. The enterprise of the Conqueror was
approved by Hildebrand, and it was blessed by the Pope in whose name
Hildebrand already ruled(26). While William lived, the royal supremacy
remained untouched, and, allowing for his position in a conquered
land, we may fairly say that it was not abused. But in meaner hands
the ancient power of the Crown as the representative of the nation was
often abused and often disputed. Quarrels arose as to the limits of
the ecclesiastical and the civil power such as had never been heard of
in the old times. And we must remember that claims which seem utterly
monstrous now were far from seeming monstrous in a state of things so
wholly unlike our times. Even the claim of the clergy to an exemption
from temporal jurisdiction in criminal cases had a very different look
then from what it has now. The privilege thus claimed was by no means
confined to the priesthood; it took in a large part of those among
the people who were least able to defend themselves(27). And when we
think of the horrible punishments, death, and mutilations worse than
death, which the courts of our Angevin Kings freely inflicted for very
slight offences, we can understand that men looked favourably on the
courts of the Bishops, where the heaviest penalties were stripes and
imprisonment. In the disputes between the Crown and the Church, from
William Rufus to Henry the Second, we find popular feeling always
enlisted on the ecclesiastical side(28). Nor need we wonder at this,
when we find among the Constitutions of Clarendon, which King Henry
strove to enforce and which Archbishop Thomas withstood, one which
forbad the ordination of villains without the consent of their lords.
That is to say, it cut off from the lowest class the only path by which
they had any hope of rising to posts of honour and authority(29). But
from the reign of John onwards we get a new state of things. A foreign
power stepped in, a power which had as yet meddled but little in the
strictly internal affairs of England, and which, so far as it had
meddled at all, had on the whole taken the popular side. In the latter
days of John and through the whole reign of Henry the Third, we find
the Pope and the King in strict alliance against the English Church
and Nation. The last good deed done by a Pope towards England was when
Innocent the Third sent us Stephen Langton(30). Ever afterwards we
find Pope and King leagued together to back up each other’s oppressions
and exactions. The Papal power was always ready to step in on behalf
of the Crown, always ready to hurl spiritual censures against the
champions of English freedom. The Great Charter was denounced at
Rome; so was its author the patriot Primate(31). Earl Simon died
excommunicate; but, in the belief of Englishmen, the excommunications
of Rome could not hinder an English Earl from working countless signs
and wonders(32)—a pretty convincing argument, one might deem, that the
Bishop of Rome had no jurisdiction in this realm of England. Against
King and Pope the whole nation stood united; clergy and laity, nobles
and commons, men of Norman and men of Old-English birth, all stood
together alike against the King’s foreign favourites and against the
aggressions of Rome. The historians of the age, all of them churchmen,
most of them monks, are all but unanimous on the popular side. Prelates
like the Primate Stephen, like Robert Grosseteste of Lincoln and
Walter of Cantelupe of Worcester, were foremost in the good cause;
the two latter were among the closest friends and counsellors of the
patriot Earl(33). We see how old distinctions and old enmities had
been wiped out, how all the sons of the soil were banded together in
one fellowship, when we read the letter denouncing the abuses of the
Roman See which was sent to that See in the name of no less a body
than the whole Nobility, Clergy, and Commons of the English realm.
In that letter, an out-spoken and truly English document, which has
been preserved by an historian who well appreciated it, the writers
set forth that, as the Nobles, Clergy, and Commons in whose name it
is written have no common seal, they have, for the signature of their
document, borrowed the seal of the city of London(34).

This last fact brings me round to what I first spoke of long ago,
what I may perhaps seem to have forgotten, but what I have in truth
had constantly before my eyes, the distinctly constitutional reforms
which we owe to Earl Simon of Montfort. The fact that a document
which professed to speak in the name of all classes of the whole
nation could not be so fittingly signed as with the seal of the city
of London marks the place which that city held in the political
estimation of the time. But London held that position only as the
greatest member of an advancing class, as the foremost among the
cities and boroughs of England. Now the great work of Earl Simon was
to give those cities and boroughs their distinct place as one of the
elements of the body politic. Let us trace the steps by which that
great work was done. When we reach the thirteenth century, we may look
on the old Teutonic constitution as having utterly passed away. Some
faint traces of it indeed we may find here and there in the course
of the twelfth century, as when both sides in the wars of Stephen and
Matilda acknowledged the right of the citizens of London to a voice
in the disposal of the Crown(35). But the regular Great Council, the
lineal representatives of the ancient _Mycel Gemôt_ or _Witenagemôt_,
was shrinking up into a body not very unlike our House of Lords. Its
constitution, as I have already hinted, was far more fluctuating, far
less strictly hereditary, than the modern body, but it was almost as
far from being in any sense a representation of the people. The Great
Charter secures the rights of the nation and of the national Assembly
as against arbitrary legislation and arbitrary taxation on the part of
the Crown. But it makes no change in the constitution of the Assembly
itself. The greater Barons were to be summoned personally; the lesser
tenants in chief, the representatives of the _landsittende menn_ of
Domesday, were to be summoned by a general writ(36). The Great Charter
in short is a Bill of Rights; it is not what, in modern phrase, we
understand by a Reform Bill. But, during the reigns of John and Henry
the Third, a popular element was fast making its way into the national
Councils in a more practical form. The right of the ordinary freeman
to attend in person had long been a shadow; that of the ordinary
tenant-in-chief was becoming hardly more practical; it now begins to be
exchanged for what had by this time become the more practical right of
choosing representatives to act in his name. Like all other things in
England, this right has grown up by degrees and as the result of what
we might almost call a series of happy accidents. Both in the reign
of John and in the former part of the reign of Henry, we find several
instances of knights from each county being summoned(37). Here we
have the beginning of our county members and of the title which they
still bear, of knights of the shire. Here is the beginning of popular
representation, as distinct from the gathering of the people in their
own persons; but we need not think that those who first summoned them
had any conscious theories of popular representation. The earliest
object for which they were called together was probably a fiscal
one; it was a safe and convenient way of getting money. The notion
of summoning a small number of men to act on behalf of the whole was
doubtless borrowed from the practice in judicial proceedings and in
inquests and commissions of various kinds, in which it was usual for
certain select men to swear on behalf of the whole shire or hundred.
We must not forget, though it is a matter on which I have no time to
insist here, that our judicial and our parliamentary institutions are
closely connected, that both sprang out of the primitive Assemblies,
that things which now seem so unlike as our popular juries and the
judicial powers of the House of Lords are in truth both of them
fragments of the judicial powers which Tacitus speaks of as being
vested in those primitive Assemblies. It was only step by step that the
functions of judge, juror, witness, and legislator became the utterly
distinct functions which they are now(38).

Thus we find the beginnings of the House of Commons, as we might have
expected, in that class of its members which, for the most part, has
most in common with the already established House of Lords. Thus
far the developement of the Constitution had gone on in its usual
incidental way. Each step in advance, however slight, was doubtless
the work of the discernment of some particular man, even though his
views may not have gone beyond the compassing of some momentary
advantage. But now we come to that great change, that great measure of
Parliamentary Reform, which has left to all later reformers nothing
to do but to improve in detail. We come to that great act of the
patriot Earl which made our popular Chamber really a popular Chamber.
A House of knights, of county members, would have been comparatively
an aristocratic body; it would have left out one of the most healthy
and vigorous, and by far the most progressive, element in the nation.
When, after the fight of Lewes, Earl Simon, then master of the kingdom
with the King in his safe keeping, summoned his famous Parliament, he
summoned, not only two knights from every county, but also two citizens
from every city and two burgesses from every borough(39). The Earl had
long known the importance and value of the growing civic element in the
political society of his age. When, in an earlier stage of his career,
he held the government of Gascony, he had, on his return to England, to
answer charges brought against him by the Archbishop of Bourdeaux and
the nobles of the province. The Earl’s answer was to bring forward a
writing, giving him the best of characters, which was signed with the
common seal of the city of Bourdeaux(40). As it was in Gascony, so it
was in England. The Earl was always a reformer, one who set himself
to redress practical grievances, to withstand the royal favourites,
to put a check on the oppressions of Pope and King. But his first
steps in the way of reform were made wholly on an aristocratic basis.
He tried to redress the grievances of the nation by the help of his
fellow nobles only. Step by step he learned that no true reform could
be wrought for so narrow a platform, and step by step he took into his
confidence, first the knights of the counties, and lastly the class to
whose good will he had owed so much in his earlier trial, the citizens
and burgesses. Through the whole struggle they stood steadily by him;
London was as firm in his cause as Bourdeaux had been, and its citizens
fought and suffered and triumphed with him on the glorious day of
Lewes(41). By a bold and happy innovation, he called a class which had
done so much for him and for the common cause to take their place in
the councils of the nation. It was in Earl Simon’s Parliament of 1265
that the still abiding elements of the popular chamber, the Knights,
Citizens, and Burgesses, first appeared side by side. Thus was formed
that newly developed Estate of the Realm which was, step by step, to
grow into the most powerful of all, the Commons’ House of Parliament.

Such was the gift which England received from her noblest champion
and martyr. Nor should it sound strange in our ears that her champion
and martyr was by birth a stranger. We boast ourselves that we have
led captive our conquerors, and that we have made them into sons of
the soil as faithful as ourselves. What we have done with conquerors
we have also done with peaceful settlers. In after days we welcomed
every victim of oppression and persecution, the Fleming, the Huguenot,
and the Palatine. And what we welcomed we adopted and assimilated,
and strengthened our English being with all that was worthiest in
foreign lands. So can we honour, along with the men of English birth,
those men of other lands who have done for England as sons for their
own mother. The Danish Cnut ranks alongside of the worthiest of our
native Kings. Anselm of Aosta ranks alongside of the worthiest of our
native Prelates. And so alongside of the worthiest of our native Earls
we place the glorious name of Simon the Righteous. A stranger, but a
stranger who came to our shores to claim lands and honours which were
his lawful heritage, he became our leader against strangers of another
mould, against the adventurers who thronged the court of a King who
turned his back on his own people. The first noble of England, the
brother-in-law of the King, he threw in his lot, not with princes
or nobles, but with the whole people. He was the chosen leader of
England in his life, and in death he was worshipped as her martyr. In
those days religion coloured every feeling; the patriot who stood up
for right and freedom was honoured alongside of him who suffered for
his faith. We fill our streets and market-places with the statues of
worthies of later days; Peel and Herbert and Lewis and Cobden yet live
among us in bronze or marble. In those days honour to the statesman
was not well distinguished from worship to the saint, and Waltheof
and Simon and Thomas of Lancaster(42) were hailed as sainted patrons
of England, and wonders were held to be wrought by their relics or at
their tombs. The poets of three languages vied in singing the praises
of the man who strove and suffered for right, and Simon, the guardian
of England on the field and in the senate, was held to be her truer
guardian still in the heavenly places from which our fathers deemed
that the curse of Rome had no power to shut him out(43).

The great work of the martyred Earl had a strange destiny. His personal
career was cut short, his political work was brought to perfection, by
a rival and a kinsman only less to be honoured than himself. On the
field of Evesham Simon died and Edward triumphed. But it was on Edward
that Simon’s mantle fell; it was to his destroyer that he handed on the
torch which fell from his dying grasp. For a moment his work seemed
to have died with him; for some years Parliaments were still summoned
which were not after the model of the great Assembly which answered
to the writs of the captive Henry. But the model still lived in men’s
hearts, and presently the wisdom of the great Edward saw that his
uncle’s gift could no longer be denied to his people. Parliaments after
Simon’s model have been called together in unbroken succession from
Edward’s day to our own(44). Next to the name of Simon we may honour
the name of Edward himself and the names of the worthies who withstood
him. To Roger Bigod of Norfolk and Humfrey Bohun of Hereford we owe the
crowning of the work(45). The Parliament of England was now wrought
into the fulness of its perfect form, and the most homely, but not the
least important, of its powers was now fully acknowledged. No tax or
gift could the King of England claim at the hands of Englishmen save
such as the Lords and Commons of England had granted him of their free
will(46).

Thus we may say that, in the time of Edward the First, the English
Constitution definitely put on the same essential form which it
has kept ever since. The germs of King, Lords, and Commons we had
brought with us from our older home eight hundred years before. But,
from King Edward’s days onwards, we have King, Lords, and Commons
themselves, in nearly the same outward shape, with nearly the same
strictly legal powers, which they still keep. All the great principles
of English freedom were already firmly established. There is indeed
a wide difference between the political condition of England under
Edward the First and the political condition of England in our own
day. But the difference lies far more in the practical working of the
Constitution than in its outward form. The changes have been many; but
a large portion of those changes have not been formal enactments, but
those silent changes whose gradual working has wrought out for us a
conventional Constitution existing alongside of our written Law. Other
changes have been simply improvements in detail; others have been
enactments made to declare more clearly, or to secure more fully in
practice, those rights whose existence was not denied. But, speaking
generally, and allowing for the important class of conventional
understandings which have never been clothed with the form of written
enactments, the main elements of the English Constitution remain now
as they were fixed then. From that time English constitutional history
is not merely an inquiry, however interesting and instructive, into
something which has passed away. It is an inquiry into something which
still lives; it is an inquiry into laws which, whenever they have
not been formally repealed, are in full force at this day. Up to the
reign of Edward the First English history is strictly the domain of
antiquaries. From the reign of Edward the First it becomes the domain
of lawyers(47).

We find then—it will be understood with what qualifications I am
speaking—the English Constitution fully grown by the end of the
thirteenth century, and we find it to be, in the shape which it then
took, the work of Earl Simon of Montfort and of King Edward the
First. Now there are several points in which the shape which our
Constitution thus finally took differed from the shapes which were
taken by most of the kindred Constitutions on the Continent. The usual
form taken by a national or provincial assembly in the middle ages
was that of an Assembly of _Estates_. That is to say, it consisted
of representatives of all those classes in the nation which were
possessed of political rights. These in most countries were three,
Nobles, Clergy, and Commons. And the name of the Three Estates, that
is the Nobles, Clergy, and Commons, is equally well known in England,
though the meaning of the three names differs not a little in England
from what it meant elsewhere. In England we never had, unless it were
in the old days of the _Eorlas_, a Nobility such as is understood by
that name in other countries. Elsewhere the nobles formed a distinct
class, a class into which it was perhaps not absolutely impossible for
those who were beneath it to be raised, but from which it was at least
absolutely impossible for any of its members to come down. Whatever the
privileges of the noble might be, they extended to all his children
and their children for ever and ever. In some countries his titles
descend in this way to all his descendants; all the children of a Duke,
for instance, are Dukes and Duchesses. In France, and in most other
countries where the system of Estates existed, the Estate of the Nobles
in the National Assembly was a representation, in some shape or other,
of the whole class of nobles as a distinct body. How different this is
from our House of Lords I need not point out. In strictness, I repeat,
we have no nobility. The seats in our Upper Chamber go by descent and
not by election or nomination; but no political privilege attaches
to the children of their holders. Even the eldest son of the peer,
the future holder of the peerage, is a commoner as long as his father
lives. Whatever titles he bears are simply titles of courtesy which
carry with them no political privileges above other commoners. Nay,
we may go higher still. As the children of the peer have no special
advantage, so neither have the younger children of the King himself.
The King’s wife, his eldest son, his eldest daughter, his eldest son’s
wife, all have special privileges by Law. His other children are
simple commoners, unless their father thinks good to raise them, as
he may raise any other of his subjects, to the rank of peerage(48).
There is perhaps no feature in our Constitution more important and
more beneficial than this, which binds all ranks together, and which
has hindered us from suffering at any time under the curse of a noble
caste. Yet this marked distinction between our own Constitution and
that of most other countries is purely traditional. We cannot say that
it was enacted by any particular man or in any particular Assembly. But
it is easy to see that the fact that in England our national Assemblies
always went on in some shape or other, that the right of all freemen
to attend in person was never formally abolished, that the King kept
the right of specially summoning whom he would, all helped to hinder
the growth of an exclusive noble caste. The aristocratic sentiment, the
pride of birth, has doubtless been very strong at all times. But it has
been merely a sentiment, resting on no legal foundation. The Crown
could always ennoble any one; but the nobility so granted belonged to
one only of the family at the time, to the actual owner of the peerage.
All ranks could at all times freely intermarry; all offices were open
to all freemen; and England, unlike Germany, never saw ecclesiastical
foundations whose members were bound to be of noble birth.

The position of the Estate of the Clergy was also widely different in
England from what it was in other countries. In fact the political
position of the Clergy has, ever since Edward the First, been something
utterly anomalous and inconsistent. Elsewhere the representatives of
the Clergy, just like those of the Nobles, formed one distinct Estate
in the Assembly. In England the great Prelates had seats in the House
of Lords, where the Bishops keep them still. But there also existed
the anomalous body called Convocation, whose character has always
fluctuated between that of an ecclesiastical Synod and that of a
parliamentary Estate of the realm(49). The Clergy are still summoned
along with every Parliament; and one distinctly parliamentary function
they held down to the reign of Charles the Second, which was then
taken away without any formal enactment. It was one of our great
constitutional principles established in King Edward’s days that no tax
could be granted to the King except by those who had to pay it. But for
a long time the Lords and the Commons taxed themselves separately, and
the Clergy in their Convocation taxed themselves separately also. And,
till this power was given up, an ecclesiastical benefice gave no right
to vote in the election of members of the House of Commons(50).

The Commons too themselves bear a name which had a far different
meaning in England from what it bore elsewhere. The usage by which
the Knights of the shire and the Citizens and Burgesses were brought
together in a single House, whatever was its origin, whether it were
at first the result of design or of happy accident, has been an
usage no less wholesome, no less needful to our full constitutional
developement, than that which decreed that the children of peers
should be commoners. In most other countries the class of men who
were returned as representatives of the counties, the Knights of
the Shire, would have been members of the Estate of the Nobles. In
France the words _nobleman_ and _gentleman_ had the same meaning,
that of the members of an exclusive aristocratic caste. The Commons,
the Third Estate, consisted of the citizens of the privileged towns
only(51). But in England the middle class was not confined to the
towns; it spread itself, in the form of a lesser gentry and a wealthy
yeomanry, over the whole face of the land. That class, the smaller
landowners, was for a long time the strength of the country, and the
happiest results came from the union of their representatives in a
single chamber with those of the cities and boroughs. Each class gained
strength from its fellowship with the other, and the citizen class
gained, from their union on equal terms with the landed gentry, a
consideration which otherwise they might never have reached. In short,
the union of the two, the union of all classes of freemen except the
clergy and the actual members of the peerage, of all classes from the
peer’s eldest son to the smallest freeholder or burgess, made the House
of Commons a real representation of the whole nation, and not of any
single order in the nation.

Mark again that the form of government which political writers call
_bi-cameral_, that is to say, where the Legislative Assembly consists
of two Chambers or Houses, arose out of one of the accidents of English
History. The merits of that form of government are now freely under
discussion, but it is assumed on both sides that the only choice
lies between one chamber and two; no one proposes to have three or
four(52). But most of the continental bodies of Estates consisted,
as we have seen, of three Houses; in Sweden, where the peasants, the
small freeholders, were important enough to be separately represented
alongside of the Nobles, Clergy, and Citizens, there were till lately
four(53). The number two became the number of our Houses of Parliament,
not out of any conviction of the advantages of that number, but because
it was found impossible to get the Clergy in England habitually to
act, as they did elsewhere, as a regular member of the parliamentary
body. They shrank from the burthen, or they deemed secular legislation
inconsistent with their profession. Thus, instead of the Clergy
forming, as they did in France, a distinct Estate of the Legislature,
we got a Parliament of two Houses, Lords and Commons, attended by a
kind of ecclesiastical shadow of the Parliament in the shape of the
two Houses of the ecclesiastical Convocation. Thus, for all practical
purposes, there were only two Estates in the English Parliament, Lords
and Commons. Thus the phrase of the Three Estates, which had a meaning
in France, became meaningless in England. For centuries back there has
been no separate Estate of the Clergy; some of their highest members
have belonged to the Estate of the Lords, and the rest to the Estate of
the Commons. Hence has arisen a common but not unnatural misconception,
a misconception as old as the days of the Long Parliament, as to the
meaning of the phrase of the Three Estates. Men constantly use those
words as if they meant the three elements among which the legislative
power is divided, King, Lords, and Commons. But an Estate means a rank
or order or class of men, like the Lords, the Clergy, or the Commons.
The King is not an Estate, because there is no class or order of
Kings, the King being one person alone by himself. The proper phrase
is the King and the three Estates of the Realm. But in England, as I
have already shown, the phrase is meaningless, as we have in truth two
Estates only(54).

We thus had in England, not an Estate of Nobles, forming a distinct
class from the people, but an Upper House of hereditary and official
Lords, whose privileges were purely personal, and whose children had
no political privilege above other men. Our Bishops and some other of
our ecclesiastical dignitaries had seats in the Upper House, but there
was no distinct Estate of the Clergy, having its distinct voice in
legislation. Our Lower House, lower in name, but gradually to become
upper in real power, came to represent, not merely the inhabitants
of privileged towns, but the whole nation, with the single exception
of the personal holders of hereditary or official seats in the Upper
House. That such an Assembly should gradually draw to itself all the
real powers of the state was in the nature of things; but it was only
gradually that it did so. Few things in our parliamentary history are
more remarkable than the way in which the two Houses have for the most
part worked together. I am not talking of very modern times, but of
times when the two Houses were really coordinate powers in the state.
During the six hundred years that the two Houses have lived side by
side, serious disputes between them have been very rare, and those
disputes which have happened have generally had to do with matters of
form and privilege which were chiefly interesting to members of the two
Houses themselves, not with questions which had any great importance
for the nation at large(55). For a while the Commons followed the lead
of the Lords; then the Lords came gradually to follow the lead of the
Commons; but open and violent breaches between the Houses have been
rare indeed. From the days of Earl Simon onwards, both the power of
Parliament as a whole, and the special power of the House of Commons,
was constantly growing. The Parliaments of the fourteenth century
exercised all the powers which our Parliament exercises now, together
with some which modern Parliaments shrink from exercising. That is to
say, the Parliaments of those days were obliged either to do directly
or to leave undone many things which the developement of political
conventionality enables a modern Parliament to do indirectly. The
ancient Parliaments demanded the dismissal of the King’s ministers;
they regulated his personal household; they put his authority into
commission; if need called for such a step, they put forth their last
and greatest power and deposed him from his kingly office. In those
days a change of government, a change of policy, the getting rid of
a bad minister and the putting a better in his place, were things
which never could be done without an open struggle between King and
Parliament; often they could not be done without the bondage, the
imprisonment, or the death, perhaps only of the minister, perhaps even
of the King himself. The same ends can now be gained by a vote of
censure in the House of Commons; in many cases they can be gained even
without a vote of censure, by the simple throwing out of a measure by
which a Ministry has given out that it will stand or fall(56).

The fifteenth century, as compared with the thirteenth and fourteenth,
was in some respects a time in which things went back. It is plain
that the Parliaments of that day were bodies which were much less
independent than the Parliaments of earlier times. During the Wars of
the Roses each successive military victor found a Parliament ready to
confirm his claim to the Crown and to decree the condemnation of his
enemies(57). And it was a Parliament of Henry the Sixth which passed
the most reactionary measure which any Parliament ever did pass,
that by which the qualification for a county elector was narrowed to
those freeholders whose estates were of the yearly value of forty
shillings(58). In this case time and the change in the value of money
have redressed the wrong; there may be freeholders whose estates are
under the value of forty shillings, but I cannot think that they are
now a very large or important class. But, to understand the meaning of
the restriction in the fifteenth century, for forty shillings we may
fairly read forty pounds; and certainly, if we struck off the register
all those electors whose qualification is a freehold—much more those
whose qualification is an estate less than a freehold—under the value
of forty pounds, the lessening of the constituencies of our counties
would not be small. On the other hand, during the revolutionary times
which followed, we more than once hear of direct appeals to the people
which remind us of days far earlier. Edward the Fourth and Richard the
Third were chosen Kings, or at least had their claims to the Crown
acknowledged, by gatherings of the citizens of London which remind us
of the wars of Stephen and Matilda(59). Still even in this age, the
power of Parliament was advancing(60); the anxiety of every pretender
to get a parliamentary sanction for his claims was a sign of the
growing importance of Parliament, and we get incidental notices which
show that a seat in the House of Commons, and that not as a knight of a
shire, but as a burgess of a borough, was now an object of ambition for
men of the class from which knights of the shire were chosen, and even
for the sons of members of the Upper House(61).

At last came the sixteenth century, the time of trial for parliamentary
institutions in so many countries of Europe. Not a few assemblies which
had once been as free as our own Parliament were, during that age,
either utterly swept away or reduced to empty formalities. Then it
was that Charles the Fifth and Philip the Second overthrew the free
constitutions of Castile and Aragon; before long the States-General
of France met for the last time before their last meeting of all
on the eve of the great Revolution(62). In England parliamentary
institutions were not swept away, nor did Parliament sink into an empty
form. But, for a while, Parliaments, like all our other institutions,
became perverted into instruments of tyranny. Under Henry the Eighth,
Parliaments, like Judges, Juries, and ecclesiastical Synods, decreed
whatever seemed good to the caprice of the despot. Why had they so
fallen away from what they had been in a past age, from what they
were to be again? The reason is plain; the Commons had not yet gained
strength enough to act without the Lords, and the Lords had ceased to
be an independent body. The old nobility had been cut off at Towton
and Barnet, and the new nobility were the abject slaves of the King
to whom they owed their honours. A century later, the new nobility
had inherited the spirit of the old, and the Commons had grown to the
fulness of their power. Thus it came that we find in the Parliaments
of the sixteenth century an abject submission to a tyrant’s will, of
which we find no sign in the Parliaments either of the fourteenth or
of the seventeenth. Very different indeed from the Parliaments which
overthrew Richard the Second and Charles the First were the Parliaments
which, almost without a question, passed bills of attainder against
any man against whom Henry’s caprice had turned, the Parliaments
which, in the great age of religious controversy, were ever ready
to enforce by every penalty that particular shade of doctrine which
for the moment commended itself to the Defender of the Faith, to his
son or to his daughters. Why, it may be asked, in such a state of
things, did not parliamentary institutions perish in England as they
perished in so many other lands? It might be enough to say that no
ruler had an interest in destroying institutions which he found that
he could so conveniently turn to his own purposes. But why did not
those institutions sink into mere forms, which they certainly did not
do, even in the worst times? One reason undoubtedly is that special
insular position of our country which has in so many other ways
given a peculiar turn to our history. The great foe of parliamentary
institutions was the introduction of standing armies. But the sovereign
of England, shut up within his island, had far less need of a standing
army than the sovereigns of the Continent, engaged as they were in
their ceaseless wars with neighbours on their frontiers. But I believe
that the personal character of Henry the Eighth had a great deal to
do with the final preservation of our liberties. Do not for a moment
fancy that I belong to that school of paradox which sets up Henry the
Eighth as a virtuous and beneficent ruler. Do not think that I claim
for him any feelings of direct thankfulness such as I do claim for
Earl Simon and King Edward. The position of Henry is more like the
position of William the Conqueror, though I certainly hold that the
Conqueror was in everything the better man of the two. Both served the
cause of freedom indirectly, and both served it by means of features
in the personal character of each. In one respect indeed William and
Henry stood in utterly different positions towards England. William was
a stranger, and it was largely because he was a stranger that he was
able to do us indirect good. Henry, with all his crimes, was a thorough
Englishman; throughout his reign there was a sympathy between him and
the mass of his subjects, who, after all, did not greatly suffer by the
occasional beheading of a Queen or a Duke. But the despotism of William
and the despotism of Henry agreed in this, that each, even in his worst
deeds, retained a scrupulous regard for the letter of the Law. In the
case of William this is not hard to see for any one who carefully
studies the records of his age(63); in the case of Henry it stands
boldly proclaimed in the broadest facts of English history. While his
fellow-tyrants abroad were everywhere overthrowing free institutions,
Henry was in all things showing them the deepest outward respect.
Throughout his reign he took care to do nothing except in outward and
regular legal form, nothing for which he could not shelter himself
under the sanction either of precedent or of written Law. In itself,
this perversion of Law, this clothing of wrong with the garb of right,
is really worse—at all events it is more corrupting—than deeds of open
violence against which men are tempted openly to revolt. But such a
tyranny as Henry’s is one form of the homage which vice pays to virtue;
the careful preservation of the outward forms of freedom makes it
easier for another and happier generation again to kindle the form into
its ancient spirit and life. Every deed of wrong done by Henry with the
assent of Parliament was in truth a witness to the abiding importance
of Parliament; the very degradation of our ancient Constitution was a
step to its revival with new strength and in a more perfect form(64).

A like witness to the importance of Parliament in this age was shown
in two other very remarkable ways, whereby the power and importance of
the House of Commons was acknowledged in the very act of corrupting
it. One was the active interference of the Government in parliamentary
elections; the other was the creation of boroughs in order to be
corrupt. One needs no stronger proofs than these of the importance
of the body which it was found needful thus to pack and to manage.
The Crown still kept the power of summoning members from any boroughs
which it thought fit, and throughout the Tudor reigns the power was
freely abused by sending writs to places which were likely to return
members who would be subservient to the Court(65). Thus arose many
of the wretched little boroughs in Cornwall and elsewhere which were
disfranchised by our successive Reform Bills. These boroughs, which
always were corrupt and which were created in order to be corrupt, must
be carefully distinguished from another class which perished with them.
Many towns to which Earl Simon and King Edward sent writs decayed in
process of time; sometimes they decayed positively; more commonly they
decayed relatively, by being utterly outstripped by younger towns and
so losing the importance which they had once had. The disfranchisement
of both classes was equally just; but the different history of the two
classes should be carefully borne in mind. It was right to take away
its members from Old Sarum, but there had been a time when it was right
to give Old Sarum members. In the case of a crowd of Cornish boroughs,
it not only was right to take away their members, but they never ought
to have had members at all(66).

It was in the days of Elizabeth that something of the ancient spirit
again breathed forth. It is then that we come to the beginning of that
long line of parliamentary worthies which stretches on in unbroken
order from her days to our own. A few daring spirits in the Commons’
House now began once more to speak in tones worthy of those great
Assemblies which had taught the Edwards and the Richards that there
was a power in England mightier than their own(67). Under the puny
successor of the great Queen the voice of freedom was heard more
loudly(68). In the next reign the great strife of all came, and a King
of England once more, as in the days of Henry and Simon, stood forth
in arms against his people to learn that the power of his people was
a greater power than his. But in the seventeenth century, just as in
the thirteenth, men did not ask for any rights and powers which were
admitted to be new; they asked only for the better security of those
rights and powers which had been handed on from days of old. Into the
details of that great struggle and of the times which followed it is
not my purpose to enter. I have traced at some length the origin and
growth of our Constitution from the earliest times to its days of
special trial in the days of Tudor and Stewart despotism. Our later
constitutional history rather belongs to an inquiry of another kind.
It is mainly a record of silent changes in the practical working of
institutions whose outward and legal form remained untouched. I will
therefore end my consecutive historical sketch—if consecutive it can
claim to be—at the point which we have now reached. Instead of carrying
on any regular constitutional narrative into times nearer to our own, I
will rather choose, as the third part of my subject, the illustration
of one of the special points with which I set out, namely the power
which our gradual developement has given us of retracing our steps, of
falling back, whenever need calls for falling back, on the principles
of earlier, often of the earliest, times. Wittingly or unwittingly,
much of our best modern legislation has, as I have already said, been
a case of advancing by the process of going back. As the last division
of the work which I have taken in hand, I shall try to show in how
many cases we have, as a matter of fact, gone back from the cumbrous
and oppressive devices of feudal and royalist lawyers to the sounder,
freer, and simpler principles of the days of our earliest freedom.




CHAPTER III.


IN my two former chapters I have carried my brief sketch of the history
of the English Constitution down to the great events of the seventeenth
century. I chose that point as the end of my consecutive narrative,
because the peculiar characteristic of the times which have followed
has been that so many and such important practical changes have been
made without any change in the written Law, without any re-enactment of
the Law, without any fresh declaration of its meaning. The movements
and revolutions of former times, as I have before said, seldom sought
any acknowledged change in the Law, but rather its more distinct
enactment, its more careful and honest administration. This was the
general character of all the great steps in our political history, from
the day when William of Normandy renewed the Laws of Eadward to the day
when William of Orange gave his royal assent to the Bill of Rights.
But, though each step in our progress took the shape, not of the
creation of a new right, but of the firmer establishment of an old one,
yet each step was marked by some formal and public act which stands
enrolled among the landmarks of our progress. Some Charter was granted
by the Sovereign, some Act of Parliament was passed by the Estates
of the Realm, setting forth in legal form the nature and measure of
the rights which it was sought to place on a firmer ground. Since
the seventeenth century things have in this respect greatly altered.
The work of legislation, of strictly constitutional legislation, has
never ceased; a long succession of legislative enactments stand out as
landmarks of political progress no less in more recent than in earlier
times. But alongside of them there has also been a series of political
changes, changes of no less moment than those which are recorded in the
statute-book, which have been made without any legislative enactment
whatever. A whole code of political maxims, universally acknowledged
in theory, universally carried out in practice, has grown up, without
leaving among the formal acts of our legislature any trace of the
steps by which it grew. Up to the end of the seventeenth century,
we may fairly say that no distinction could be drawn between the
Constitution and the Law. The prerogative of the Crown, the privilege
of Parliament, the liberty of the subject, might not always be clearly
defined on every point. It has indeed been said that those three things
were all of them things to which in their own nature no limit could be
set. But all three were supposed to rest, if not on the direct words
of the Statute Law, yet at least on that somewhat shadowy yet very
practical creation, that mixture of genuine ancient traditions and of
recent devices of lawyers, which is known to Englishmen as the Common
Law. Any breach either of the rights of the Sovereign or of the rights
of the subject was a legal offence, capable of legal definition and
subjecting the offender to legal penalties. An act which could not be
brought within the letter either of the Statute or of the Common Law
would not then have been looked upon as an offence at all. If lower
courts were too weak to do justice, the High Court of Parliament stood
ready to do justice even against the mightiest offenders. It was armed
with weapons fearful and rarely used, but none the less regular and
legal. It could smite by impeachment, by attainder, by the exercise
of the greatest power of all, the deposition of the reigning King.
But men had not yet reached the more subtle doctrine that there may
be offences against the Constitution which are no offences against
the Law. They had not learned that men in high office may have a
responsibility practically felt and acted on, but which no legal
enactment has defined, and which no legal tribunal can enforce. It had
not been found out that Parliament itself has a power, now practically
the highest of its powers, in which it acts neither as a legislature
nor as a court of justice, but in which it pronounces sentences which
have none the less practical force because they carry with them none of
the legal consequences of death, bonds, banishment, or confiscation. We
now have a whole system of political morality, a whole code of precepts
for the guidance of public men, which will not be found in any page of
either the Statute or the Common Law, but which are in practice held
hardly less sacred than any principle embodied in the Great Charter
or in the Petition of Right. In short, by the side of our written Law
there has grown up an unwritten or conventional Constitution. When an
Englishman speaks of the conduct of a public man being constitutional
or unconstitutional, he means something wholly different from what he
means by his conduct being legal or illegal. A famous vote of the House
of Commons, passed on the motion of a great statesman, once declared
that the then Ministers of the Crown did not possess the confidence
of the House of Commons, and that their continuance in office was
therefore at variance with the spirit of the Constitution(1). The truth
of such a position, according to the traditional principles on which
public men have acted for some generations, cannot be disputed; but
it would be in vain to seek for any trace of such doctrines in any
page of our written Law. The proposer of that motion did not mean to
charge the existing Ministry with any illegal act, with any act which
could be made the subject either of a prosecution in a lower court
or of impeachment in the High Court of Parliament itself. He did not
mean that they, Ministers of the Crown, appointed during the pleasure
of the Crown, committed any breach of the Law of which the Law could
take cognizance, merely by keeping possession of their offices till
such time as the Crown should think good to dismiss them from those
offices. What he meant was that the general course of their policy was
one which to a majority of the House of Commons did not seem to be
wise or beneficial to the nation, and that therefore, according to a
conventional code as well understood and as effectual as the written
Law itself, they were bound to resign offices of which the House of
Commons no longer held them to be worthy. The House made no claim to
dismiss those Ministers from their offices by any act of its own; it
did not even petition the Crown to remove them from their offices. It
simply spoke its mind on their general conduct, and it was held that,
when the House had so spoken, it was their duty to give way without
any formal petition, without any formal command, on the part either
of the House or of the Sovereign(2). The passing by the House of
Commons of such a resolution as this may perhaps be set down as the
formal declaration of a constitutional principle. But though a formal
declaration, it was not a legal declaration. It created a precedent for
the practical guidance of future Ministers and future Parliaments, but
it neither changed the Law nor declared it. It asserted a principle
which might be appealed to in future debates in the House of Commons,
but it asserted no principle which could be taken any notice of by a
Judge in any Court of Law. It stands therefore on a wholly different
ground from those enactments which, whether they changed the Law or
simply declared the Law, had a real legal force, capable of being
enforced by a legal tribunal. If any officer of the Crown should levy a
tax without the authority of Parliament, if he should enforce martial
law without the authority of Parliament, he would be guilty of a legal
crime. But, if he merely continues to hold an office conferred by the
Crown and from which the Crown has not removed him, though he hold it
in the teeth of any number of votes of censure passed by both Houses of
Parliament, he is in no way a breaker of the written Law. But the man
who should so act would be universally held to have trampled under foot
one of the most undoubted principles of the unwritten but universally
accepted Constitution.

The remarkable thing is that, of these two kinds of hypothetical
offences, the latter, the guilt of which is purely conventional, is
almost as unlikely to happen as the former, whose guilt is a matter
established by Law. The power of the Law is so firmly established among
us that the possibility of breaches of the Law on the part of the
Crown or its Ministers hardly ever comes into our heads. And conduct
sinning against the broad lines of the unwritten Constitution is looked
on as hardly less unlikely. Political men may debate whether such and
such a course is or is not constitutional, just as lawyers may debate
whether such a course is or is not legal. But the very form of the
debate implies that there is a Constitution to be observed, just as
in the other case it implies that there is a Law to be observed. Now
this firm establishment of a purely unwritten and conventional code
is one of the most remarkable facts in history. It is plain that it
implies the firmest possible establishment of the power of the written
Law as its groundwork. If there were the least fear of breaches of the
written Law on the part of the Crown or its officers, we should be
engaged in finding means for getting rid of that more serious danger,
not in disputing over points arising out of a code which has no legal
existence. But it is well sometimes to stop and remember how thoroughly
conventional the whole of our received system is. The received doctrine
as to the relations of the two Houses of Parliament to one another, the
whole theory of the position of the body known as the Cabinet and of
its chief the Prime Minister, every detail in short of the practical
working of government among us, is a matter belonging wholly to the
unwritten Constitution and not at all to the written Law. The limits
of the royal authority are indeed clearly defined by the written Law.
But I suspect that many people would be amazed at the amount of power
which the Crown still possesses by Law, and at the many things, which
in our eyes would seem utterly monstrous, but which might yet be done
by royal authority without any law being broken. The Law indeed secures
us against arbitrary legislation, against the repeal of any old laws,
or the enactment of any new ones, without the consent of both Houses
of Parliament(3). But it is the unwritten Constitution alone which
makes it practically impossible for the Crown to refuse its assent to
measures which have passed both Houses of Parliament, and which in many
cases makes it almost equally impossible to refuse the prayer of an
address sent up by one of those Houses only. The written Law leaves to
the Crown the choice of all its ministers and agents, great and small;
their appointment to office and their removal from office, as long as
they commit no crime which the Law can punish, is a matter left to
the personal discretion of the Sovereign. The unwritten Constitution
makes it practically impossible for the Sovereign to keep a Minister
in office of whom the House of Commons does not approve, and it makes
it almost equally impossible to remove from office a Minister of
whom the House of Commons does approve(4). The written Law and the
unwritten Constitution alike exempt the Sovereign from all ordinary
personal responsibility(5). They both transfer the responsibility from
the Sovereign himself to his agents and advisers. But the nature and
extent of their responsibility is widely different in the eyes of the
written Law and in the eyes of the unwritten Constitution. The written
Law is satisfied with holding that the command of the Sovereign is no
excuse for an illegal act, and that he who advises the commission of
an illegal act by royal authority must bear the responsibility from
which the Sovereign himself is free. The written Law knows nothing of
any responsibility but such as may be enforced either by prosecution in
the ordinary Courts or by impeachment in the High Court of Parliament.
The unwritten Constitution lays the agents and advisers of the Crown
under a responsibility of quite another kind. What we understand by
the responsibility of Ministers is that they are liable to have all
their public acts discussed in Parliament, not only on the ground
of their legal or illegal character, but on the vaguest grounds of
their general tendency. They may be in no danger of prosecution or
impeachment; but they are no less bound to bow to other signs of the
will of the House of Commons; the unwritten Constitution makes a
vote of censure as effectual as an impeachment, and in many cases it
makes a mere refusal to pass a ministerial measure as effectual as a
vote of censure. The written Law knows nothing of the Cabinet or the
Prime Minister; it knows them as members of one or the other House of
Parliament, as Privy Councillors, as holders, each man in his own
person, of certain offices; but, as a collective body bound together
by a common responsibility, the Law never heard of them(6). But in the
eye of the unwritten Constitution the Prime Minister and the Cabinet of
which he is the head form the main feature of our system of government.
It is plain at a moment’s glance that the practical power of the Crown
is not now what it was in the reign of William the Third or even in
that of George the Third. But the change is due, far less to changes in
the written Law than to changes in the unwritten Constitution. The Law
leaves the powers of the Crown untouched, but the Constitution requires
that those powers should be exercised by such persons, and in such a
manner, as may be acceptable to a majority of the House of Commons. In
all these ways, in a manner silent and indirect, the Lower House of
Parliament, as it is still deemed in formal rank, has become the really
ruling power in the nation. There is no greater contrast than that
which exists between the humility of its formal dealings with the Crown
and even with the Upper House(7), and the reality of the irresistible
power which it exercises over both. It is so conscious of the mighty
force of its indirect powers that it no longer cares to claim the
direct powers which it exercised in former times. There was a time
when Parliament was directly consulted on questions of War and Peace.
There was a time when Parliament claimed directly to appoint several
of the chief officers of state(8). There were much later times when it
was no unusual thing to declare a man in power to be a public enemy,
or directly to address the Crown for his removal from office and from
the royal presence. No such direct exercises of parliamentary power are
needed now, because the whole machinery of government may be changed by
the simple process of the House refusing to pass a measure on which the
Minister has made up his mind to stake his official being.

Into the history of the stages by which this most remarkable state
of things has been brought about I do not intend here to enter. The
code of our unwritten Constitution has, like all other English things,
grown up bit by bit, and, for the most part, silently and without any
acknowledged author. Yet some stages of the developement are easily
pointed out, and they make important landmarks. The beginning may be
placed in the reign of William the Third, when we first find anything
at all like a _Ministry_ in the modern sense. Up to that time the
servants of the Crown had been servants of the Crown, each man in
the personal discharge of his own office. The holder of each office
owed faithful service to the Crown, and he was withal responsible to
the Law; but he stood in no special fellowship towards the holder
of any other office. Provided he discharged his own duties, nothing
hindered him from being the personal or political enemy of any of his
fellow-servants. It was William who first saw that, if the King’s
government was to be carried on, there must be at least a general
agreement of opinions and aims among the King’s chief agents in his
government(9). From this beginning a system has gradually grown up
which binds the chief officers of the Crown to work together in at
least outward harmony, to undertake the defence of one another, and
on vital points to stand and fall together. Another important stage
happened in much later times, when the King ceased to take a share in
person in the deliberations of his Cabinet. And I may mark a change
in language which has happened within my own memory, and which, like
other changes of language, is certainly not without its meaning. We
now familiarly speak, in Parliament and out of Parliament, of the body
of Ministers actually in power, the body known to the Constitution but
wholly unknown to the Law, by the name of “the Government.” We speak
of “Mr. Gladstone’s Government” or “Mr. Disraeli’s Government.” I can
myself remember the time when such a form of words was unknown, when
“Government” still meant “Government by King, Lords, and Commons,” and
when the body of men who acted as the King’s immediate advisers were
spoken of as “Ministers” or “the Ministry”(10).

This kind of silent, I might say stealthy, growth, has, without
the help of any legislative enactment, produced that unwritten
and conventional code of political rules which we speak of as the
Constitution. This process I have spoken of as being characteristic
of the days since the Revolution of 1688, as distinguished from
earlier times. And so it undoubtedly is. At no earlier time have so
many important changes in constitutional doctrine and practice won
universal acceptance without being recorded in any written enactment.
Yet this tendency of later times is, after all, only a further
developement of a tendency which was at work from the beginning. It
is simply another application of the Englishman’s love of precedent.
The growth of the unwritten Constitution has much in common with the
earlier growth of the unwritten Common Law. I have shown in earlier
chapters that some of the most important principles of our earlier
Constitution were established silently and by the power of precedent,
without resting on any known written enactment. If we cannot show any
Act of Parliament determining the relations in which the members of
the Cabinet stand to the Crown, to the House of Commons, and to one
another, neither can we show the Act of Parliament which decreed, in
opposition to the practice of all other nations, that the children of
the hereditary Peer should be simple Commoners. The real difference is
that, in more settled times, when Law was fully supreme, it was found
that many important practical changes might be made without formal
changes in the Law. It was also found that there is a large class of
political subjects which can be better dealt with in this way of tacit
understandings than they can be in the shape of a formal enactment by
Law. We practically understand what is meant by Ministers having or not
having the confidence of the House of Commons; we practically recognise
the cases in which, as not having the confidence of the House, they
ought to resign office and the cases in which they may fairly appeal
to the country by a dissolution of Parliament. But it would be utterly
impossible to define such cases beforehand in the terms of an Act of
Parliament. Or again, the Speaker of the House of Commons is an officer
known to the Law. The Leader of the House of Commons is a person as
well known to the House and the country, his functions are as well
understood, as those of the Speaker himself. But of the Leader of the
House of Commons the Law knows nothing. It would be hopeless to seek to
define his duties in any legal form, and the House itself has, before
now, shrunk from recognising the existence of such a person in any
shape of which a Court of Law could take notice(11).

During a time then which is now not very far short of two hundred
years, the silent and extra-legal growth of our conventional
Constitution has been at least as important as the actual changes
in our written Law. With regard to these last, the point on which I
wish chiefly to dwell is the way in which not a few pieces of modern
legislation have been—whether wittingly or unwittingly I do not profess
to know—a return to the simpler principles of our oldest constitution.
I trust to show that, in many important points, we have cast aside
the legal subtleties which grew up from the thirteenth century to the
seventeenth, and that we have gone back to the plain common sense of
the eleventh or tenth, and of times far earlier still. In those ancient
times we had already laws, but we had as yet no lawyers. We hear in
early times of men who were versed above others in the laws of the
land; but such special knowledge is spoken of as the attribute of age
or of experience in public business, not as the private possession of
a professional class(12). The class of professional lawyers grew up
along with the growth of a more complicated and technical jurisprudence
under our Norman and Angevin Kings. Now I mean no disrespect to
a profession which in our present artificial state of society we
certainly cannot do without, but there can be no kind of doubt that
lawyers’ interpretations and lawyers’ ways of looking at things have
done no small mischief, not only to the true understanding of our
history but to the actual course of our history itself. The lawyer’s
tendency is to carry to an unreasonable extent that English love of
precedent which, within reasonable bounds, is one of our most precious
safeguards. His virtue is that of acute and logical inference from
given premisses; the premisses themselves he is commonly satisfied to
take without examination from those who have gone before him. It is
often wonderful to see the amazing ingenuity with which lawyers have
piled together inference upon inference, starting from some purely
arbitrary assumption of their own. Each stage of the argument, taken
by itself, is absolutely unanswerable; the objection must be taken
earlier, before the argument begins. The argument is perfect, if we
only admit the premisses; the only unlucky thing is that the premisses
will constantly be found to be historically worthless. Add to this that
the natural tendency of the legal mind is to conservatism and deference
to authority. This will always be the case, even with thoroughly
honest men in an age when honesty is no longer dangerous. But this
tendency will have tenfold force in times when an honest setting forth
of the Law might expose its author to the disfavour of an arbitrary
government. We shall therefore find that the premisses from which
lawyers’ arguments have started, but which historical study shows to be
unsound, are commonly premisses devised in favour of the prerogative
of the Crown, not in favour of the rights of the people. Indeed the
whole ideal conception of the Sovereign, as one, personally at least,
above the Law, as one personally irresponsible and incapable of doing
wrong, the whole conception of the Sovereign as the sole fountain of
all honour, as the original grantor of all property, as the source
from which all authority of every kind issues in the first instance,
is purely a lawyer’s conception, and rests upon no ground whatever in
the records of our early history(13). In later times indeed the evil
has largely corrected itself; the growth of our unwritten Constitution
under the hands of statesmen has done much practically to get rid of
these slavish devices of lawyers. The personal irresponsibility of the
Sovereign becomes practically harmless when the powers of the Crown are
really exercised by Ministers who act under a twofold responsibility,
both to the written Law and to the unwritten Constitution. Yet even
now small cases of hardship sometimes happen in which some traditional
maxim of lawyers, some device devised in favour of the prerogative of
the Crown, stands in the way of the perfectly equal administration
of justice. But in several important cases the lawgiver has directly
stepped in to wipe out the inventions of the lawyer, and modern Acts of
Parliament have brought things back to the simpler principles of our
earliest forefathers. I will wind up my sketch of our constitutional
history by pointing out several cases in which this happy result has
taken place.

For many ages it was a legal doctrine universally received that
Parliament at once expired at the death of the reigning King. The
argument by which the lawyers reached this conclusion is, like most of
their arguments, altogether unanswerable, provided only we admit their
premisses. According to the lawyers’ conception, whatever might be the
powers of Parliament when it actually came together, however much the
King might be bound to act by its advice, consent, and authority, the
Parliament itself did nevertheless derive its being from the authority
of the King. Parliament was summoned by the King’s writ. The King
might indeed be bound to issue the writs for its summons; still it was
from the King’s writ that the Parliament actually derived its being
and its powers. By another legal assumption, the force of the King’s
writ was held to last only during the lifetime of the King who issued
it. It followed therefore that Parliament, summoned by the King’s
writ and deriving its authority from the King’s writ, was dissolved
_ipso facto_ by the death of the King who summoned it. Once admit the
assumptions from which this reasoning starts, and the reasoning itself
is perfect. But what is the worth of the assumptions? Let us see how
this mass of legal subtlety would have looked in the eyes of a man of
the eleventh century, in the eyes of a man who had borne his part in
the elections of Eadward and of Harold, and who had raised his voice
and clashed his arms in the great Assembly which restored Godwine to
his lands and honours(14). To such an one the doctrine that a national
Assembly could be gathered together only by the King’s writ, and the
consequent doctrine that the national Assembly ceased to exist when the
breath went out of the King’s body, would have seemed like the babble
of a madman. When was the gathering together of the national Assembly
more needed, when was it called upon to exercise higher and more
inherent powers, than when the throne was actually vacant, and when
the Assembly of the nation came together to determine who should fill
it? And how could the Assembly be gathered together by the King’s writ
when there was no King in the land to issue a writ? The King’s writ
would be, in his eyes, a convenient way in ordinary times for fixing
a time and place for the meetings of the Assembly, but it would be
nothing more. It would be in no sense the source of the powers of the
Assembly, powers which he would look upon as derived from the simple
fact that the Assembly was itself the nation. In his eyes it was not
the King who created the Assembly, but the Assembly which created the
King. The doctrine that the King never dies, that the throne never can
be vacant, would have seemed gibberish to one who had seen the throne
vacant and had borne his part in filling it. The doctrine that the
King can do no wrong would have seemed no less gibberish to one who
knew that he might possibly be called on to bear his part in deposing
a King. Three of the most famous Assemblies in English history have
ever been puzzles in the eyes of mere legal interpreters; to the man of
the eleventh century they would have seemed to be perfectly legal and
regular, alike in their constitution and in their acts. The Assembly
which in 1399 deposed Richard the Second and elected Henry the Fourth,
though summoned by the King’s writ, was not opened by his commission,
and it seems to have shrunk from taking the name of Parliament, and to
have acted only by the name of the Estates of the Realm. As an Assembly
which was in some sort irregular, it seems to have shrunk from going
through the usual forms of a regular Parliament, and, though it did
in the end exercise the greatest of parliamentary powers, it seems to
have been afraid to look its own act in the face. Richard was deposed,
but his deposition was mixed up with a resignation of the Crown on
his own part, and with a challenge of the Crown on the part of Henry.
Then, as a demise of the Crown had taken place, it was held that the
same legal consequences followed as if that demise had been caused by
the death of the King. It was held that the Parliament which had been
summoned by the writ of King Richard ceased to exist when Richard
ceased to be King, and, as it was not thought good to summon a new
Parliament, the same Parliament was, by a legal fiction, summoned again
under the writ of King Henry(15). All these doubts and difficulties,
all these subtleties of lawyers, would have been wholly unintelligible
to a man of the eleventh century. In his eyes the Witan would have come
together, whether by King Richard’s writ or not it mattered little;
having come together, they had done the two greatest of national acts
by deposing one King and choosing another; having done this, if there
was any other national business to be done, there was no reason on
earth why they should not go on and do it. Take again another Assembly
of equal importance in our history, the Convention which voted the
recall—that is, in truth, the election—of Charles the Second. That
Assembly succeeded a Parliament which had ventured on a still stronger
step than deposing a King, that of sending a reigning King to trial and
execution(16). It was not held in 1649 that the Long Parliament came
to an end when the axe fell on the neck of Charles the First, but the
doctrine that it ought to have done so was not forgotten eleven years
later(17). And the Convention which was elected, as freely as any
Parliament ever was elected(18), in answer to the vote of the expiring
Long Parliament, was, because it was so elected and not in answer to
the King’s writ, looked on as an Assembly of doubtful validity. It
acted as a Parliament; it restored the King; it granted him a revenue;
and it did a more wonderful work than all, for it created itself, and
passed an Act declaring itself to be a lawful Parliament(19). Yet,
after all, it was deemed safer that all the Acts of the Convention
Parliament should be confirmed by its successor which was summoned in
due form by the King’s writ. These fantastic subtleties, subtleties
worthy of the kindred device by which the first year of Charles’s reign
was called the twelfth, would again have been wholly unintelligible
to our man of the eleventh century. He might have remembered that the
Assembly which restored Æthelred—which restored him on conditions,
while Charles was restored without conditions—did not scruple to go on
and pass a series of the most important decrees that were passed in
any of our early Assemblies(20). Once more again, the Convention which
deposed James and elected William, seemed, like that which deposed
Richard and elected Henry, to doubt its own existence and to shrink
from its own act. James was deposed; but the Assembly which deposed
him ventured not to use the word, and, as an extorted abdication was
deemed expedient in the case of Richard, so a constructive abdication
was imagined in the case of James(21). And the Assembly which elected
William, like the Assembly which elected Henry and that which elected
Charles, prolonged its own existence by the same transparent fiction
of voting itself to be a lawful Parliament. Wise men held at the time
that, at least in times of revolution, a Parliament might be called
into being by some other means than that of the writ of a King. Yet it
was deemed that some additional security was given to the existence of
the Assembly and to the validity of its acts by this second exercise
of the mysterious power of self-creation(22). Once more in the same
reign the question was brought forward whether a Parliament summoned
by the joint writ of William and Mary did not expire when Mary died
and William reigned alone. This subtlety was suggested only to be
contemptuously cast aside; yet it may be fairly doubted whether it was
not worth at least as much as any of the kindred subtleties which on
the three earlier occasions were deemed of such vast importance(23).
The untutored wisdom of Englishmen, in the days when we had laws but
when those laws had not yet been made the sport of the subtleties of
lawyers, would have seen as little force in the difficulties which it
was deemed necessary to get over by solemn parliamentary enactments as
in the difficulty which neither House of Parliament thought worthy of
any serious discussion.

And now what has modern legislation done towards getting rid of all
these pettifogging devices, and towards bringing us back to the simpler
doctrines of our forefathers? Parliament is still summoned by the
writ of the Sovereign; in settled times no other way of bringing it
together can be so convenient. But, if times of revolution should ever
come again, we, who do even our revolutions according to precedent,
shall probably have learned something from the revolutionary precedents
of 1399, of 1660, and of 1688. In each later case the subtlety is
one degree less subtle than in the former. The Estates of the Realm
which deposed Richard were changed into a Parliament of Henry by the
transparent fiction of sending out writs which were not, and could not
be, followed by any real elections. The Convention which recalled or
elected Charles the Second did indeed turn itself into a Parliament,
but it was deemed needful that its acts should be confirmed by another
Parliament. The acts of the Convention of 1688 were not deemed to need
any such confirmation. Each of these differences marks a stage in the
return to the doctrine of common sense, that, convenient as it is in
all ordinary times that Parliament should be summoned by the writ of
the Sovereign, yet it is not from that summons, but from the choice of
the people, that Parliament derives its real being and its inherent
powers. As for the other end of the lawyers’ doctrine, the inference
that Parliament is _ipso facto_ dissolved by a demise of the Crown,
from that a more rational legislation has set us free altogether.
Though modern Parliaments are no longer called on to elect Kings, yet
experience and common sense have taught us that the time when the
Sovereign is changed is exactly the time when the Great Council of
the Nation ought to be in full life and activity. By a statute only a
few years later than the raising of the question whether a Parliament
of William and Mary did or did not expire by the death of Mary, all
such subtleties were swept away. It was now deemed so needful that the
new Sovereign should have a Parliament ready to act with him, that it
became the Law that the Parliament which was in being at the time of
a demise of the Crown should remain in being for six months, unless
specially dissolved by the new Sovereign. A later statute went further
still, and provided that, if a demise of the Crown should take place
during the short interval when there is no Parliament in being, the
last Parliament should _ipso facto_ revive, and should continue in
being, unless a second time dissolved, for six months more. Thus the
event which, by the perverted ingenuity of lawyers, was held to have
the power of destroying a Parliament, was, by the wisdom of later
legislation, clothed with the power of calling a Parliament into being.
Lastly, in our own days, all traces of the lawyers’ superstition have
been swept away, and the demise of the Crown now in no way affects the
duration of the existing Parliament(24). Truly this is a case where
the letter killeth and the spirit giveth life. The doctrine which had
been inferred by unanswerable logic from an utterly worthless premiss
has been cast aside in favour of the dictate of common sense. We have
learned that the moment when the State has lost its head is the last
moment which we ought to choose for depriving it of its body also.

Here then is a notable instance of the way in which the latest
legislation of England has fallen back upon the principles of the
earliest. Here is a point on which the eleventh century and the
nineteenth are of one mind, and on which the fanciful scruples of the
fourteenth and the seventeenth centuries are no longer listened to. Let
us take another instance. In the old Teutonic Constitution, just as in
the old Roman Constitution, large tracts of land were the property of
the State, the _ager publicus_ of Rome, the _folkland_ of England. As
the royal power grew, as the King came to be more and more looked on
as the impersonation of the nation, the land of the people came to be
more and more looked on as the land of the King, and the _folkland_
of our Old-English charters gradually changed into the _Terra Regis_
of Domesday(25). Like other changes of the kind, the Norman Conquest
only strengthened and brought to its full effect a tendency which was
already at work; but there can be no doubt that, down to the Norman
Conquest, the King at least went through the form of consulting his
Witan, before he alienated the land of the people to become the
possession of an individual—in Old-English phrase, before he turned
_folkland_ into _bookland_(26). After the Norman Conquest we hear no
more of the land of the people; it has become the land of the King, to
be dealt with according to the King’s personal pleasure. From the days
of the first William to those of the Third, the land which had once
been the land of the people was dealt with without any reference to
the will of the people. Under a conscientious King it might be applied
to the real service of the State, or bestowed as the reward of really
faithful servants of the State. Under an unconscientious King it might
be squandered broadcast among his minions or his mistresses(27). Now
this wrong too is redressed. A custom as strong as law now requires
that, at the beginning of each fresh reign, the Sovereign shall, not
by an act of bounty but by an act of justice, give back to the nation
the land which the nation lost so long ago. The royal demesnes are now
handed over to be dealt with like the other revenues of the State, to
be disposed of by Parliament for the public service(28). That is to
say, the people have won back their own; the usurpation of the days of
foreign rule has been swept away. We have in this case too gone back
to the sound principles of our forefathers; the _Terra Regis_ of the
Norman has once more become the _folkland_ of the days of our earliest
freedom.

I will quote another case, a case in which the return from the
fantasies of lawyers to the common sense of antiquity has been
distinctly to the profit, if not of the abstraction called the Crown,
yet certainly to that of its personal holder. As long as the _folkland_
remained the land of the people, as long as our monarchy retained
its ancient elective character, the King, like any other man, could
inherit, purchase, bequeath, or otherwise dispose of, the lands which
were his own private property as much as the lands of other men were
theirs. We have the wills of several of our early Kings which show that
a King was in this respect as free as any other man(29). But as the
lawyers’ figment of hereditary right took root, as the other lawyers’
figment also took root by which the lands of the people were held to
be at the personal disposal of the King, a third figment grew up, by
which it was held that the person and the office of the King were so
inseparably fused into one that any private estates which the King held
before his accession to the throne became _ipso facto_ part and parcel
of the royal demesne. As long as the Crown remained an elective office,
the injustice of such a rule would have made itself plain; it would
have been at once seen to be as unreasonable as if it had been held
that the private estates of a Bishop should merge in the estates of
his see. As long as there was no certainty that the children or other
heirs of the reigning King would ever succeed to his Crown, it would
have been the height of injustice to deprive them in this way of their
natural inheritance. The election of a King would have carried with
it the confiscation of his private estate. But when the Crown was held
to be hereditary, when the _folkland_ was held to be _Terra Regis_,
this hardship was no longer felt. The eldest son was provided for by
his right of succession to the Crown, and the power of disposing of the
Crown lands at pleasure gave the King the means of providing for his
younger children. Still the doctrine was none the less unreasonable;
it was a doctrine founded on no ground either of natural justice or of
ancient law; it was a mere inference which had gradually grown up out
of mere arbitrary theories about the King’s powers and prerogatives.
And, as the old state of things gradually came back again, as men
began to feel that the demesnes of the Crown were not the private
possession of the reigning King, but were the true possession of the
people—that is, as the _Terra Regis_ again came back to its old state
of _folkland_—it was felt to be unreasonable to shut out the Sovereign
from a natural right which belonged to every one of his subjects. The
land which, to put it in the mildest form, the King held in trust for
the common service of the nation was now again employed to its proper
use. It was therefore reasonable that a restriction which belonged
to a past state of things should be swept away, and that Sovereigns
who had given up an usurped power which they ought never to have held
should be restored to the enjoyment of a natural right which ought
never to have been taken from them. As our present Sovereign in so many
other respects holds the place of Ælfred rather than the place of the
Richards and Henries of later times, so she again holds the right which
Ælfred held, of acquiring and disposing of private property like any
other member of the nation(30).

These examples are, I hope, enough to make out my case. In each of them
modern legislation has swept away the arbitrary inferences of lawyers,
and has gone back to those simpler principles which the untutored
wisdom of our forefathers never thought of calling in question. I
could easily make the list much longer. Every act which has restrained
the arbitrary prerogative of the Crown, every act which has secured
or increased either the powers of Parliament or the liberty of the
subject, has been a return, sometimes to the letter, at all times to
the spirit, of our earliest Law. But I would enlarge on one point
only, the most important point of all, and a point in which we may
at first sight seem, not to have come nearer, but to have gone away
further from the principles of early times. I mean with regard to the
succession to the Crown. The Crown was of old, as I have already said,
elective. No man had a right to become King till he had been called
to the kingly office by the choice of the Assembly of the nation. No
man actually was King till he had been admitted to the kingly office
by the consecration of the Church. The doctrines that the King never
dies, that the throne never can be vacant, that there can be no
interregnum, that the reign of the next heir begins the moment the
reign of his predecessor is ended, are all figments of later times.
No signs of such doctrines can be found at any time earlier than the
accession of Edward the First(31). The strong preference which in early
times belonged to members of the kingly house, above all to the born
son of a crowned King(32), gradually grew, under the influences which
the Norman Conquest finally confirmed, into the doctrine of absolute
hereditary right. That doctrine grew along with the general growth of
the royal power; it grew as men gradually came to look on kingship as
a possession held by a single man for his own profit, rather than as
an office bestowed by the people for the common good of the realm. It
might seem that, in this respect at least, we have not gone forward,
but that we rather have gone back. For nothing is more certain than
that the Crown is more strictly and undoubtedly hereditary now than it
was in the days of Normans, Angevins, or Tudors. But a little thought
will show that in this case also, we have not gone back but have gone
forward. That is to say, we have gone forward by going back, by going
back, in this case, not to the letter, but assuredly to the spirit of
earlier times. The Crown is now more undoubtedly hereditary than it
was in the fifteenth or sixteenth century; but this is because it is
now hereditary by Law, because its powers are distinctly defined by
Law. The will of the people, the source of all Law and of all power,
has been exercised, not in the old form of personally choosing a King
at every vacancy of the Crown, but by an equally lawful exercise of
the national will, which has thought good to entail the Crown on a
particular family.

It was in the reign of our last elective King that the Crown first
became legally hereditary. The doctrine may seem a startling one, but
it is one to which an unbiassed study of our history will undoubtedly
lead us. Few things are more amusing than the treatment which our early
history has met with at the hands of purely legal writers. There is
something almost pitiable in the haltings and stumblings of such a
writer as Blackstone, unable to conceive that his lawyer’s figment
of hereditary right was anything short of eternal, and yet coming at
every moment across events which showed that in early times all such
figments were utterly unknown(33). In early times the King was not
only elected, but he went through a twofold election. I have already
said that the religious character with which most nations have thought
good to clothe their Kings took in England, as in most other Christian
lands, the form of an ecclesiastical consecration to the kingly office.
That form we still retain; but in modern times it has become a mere
form, a pageant impressive no doubt and instructive, but still a mere
pageant, which gives the crowned King no powers which he did not
equally hold while still uncrowned. The death of the former King at
once puts his successor in possession of every kingly right and power;
his coronation in no way adds to his legal authority, however much it
may add to his personal responsibility towards God and his people. But
this was not so of old time. The choice of the national Assembly gave
the King so chosen the sole right to become King, but it did not make
him King. The King-elect was like a Bishop-elect. The recommendation
of the Crown, the election of the Chapter, and the confirmation of the
Archbishop, give a certain man the sole right to a certain see, but
it is only the purely religious rite of consecration which makes him
actually Bishop of it(34). So it was of old with a King. The choice
of the Witan made him King-elect, but it was only the ecclesiastical
crowning and anointing which made him King. And this ecclesiastical
ceremony involved a further election. Chosen already to the civil
office by the Nation in its civil character, he was again chosen by
the Church—that is, by the Nation in its religious character, by the
Clergy and People assembled in the church where the crowning rite was
to be done(35). This second ecclesiastical election must always have
been a mere form, as the choice of the nation was already made before
the ecclesiastical ceremony began. But the ecclesiastical election
survived the civil one. The state of things which lawyers dream of
from the beginning is a law of strict hereditary succession, broken
in upon by occasional interruptions. These interruptions, which, in
the eye of history, are simply exercises of an ancient right, are, in
the eyes of lawyers, only revolutions or usurpations. But this state
of things, a state in which a fixed rule was sometimes broken, which
Blackstone dreams of in the tenth and eleventh centuries, really did
exist from the thirteenth century onwards. From the accession of
Edward the First, the first King who reigned before his coronation,
hereditary succession became the rule in practice. The son, or even the
grandson, of the late King(36) was commonly acknowledged as a matter
of course, without anything which could fairly be called an election.
But the right of Parliament to settle the succession was constantly
exercised, and ever and anon we come across signs which show that
the ancient notion of an election of a still more popular kind had
not wholly passed away out of men’s minds. Two Kings were formally
deposed, and on the deposition of the second the Crown passed, as
it might have done in ancient times, to a branch of the royal house
which was not the next in lineal succession. Three Kings of the House
of Lancaster reigned by a good parliamentary title, and the doctrine
of indefeasible hereditary right, the doctrine that there was some
virtue in a particular line of succession which the power of Parliament
itself could not set aside, was first brought forward as the formal
justification of the claims of the House of York(37). Those claims
in truth could not be formally justified on any showing but that of
the most slavish doctrine of divine right, but it was not on any such
doctrine as that that the cause of the House of York really rested.
The elaborate list of grandmothers and great-grandmothers which was
brought forward to show that Henry the Fifth was an usurper would never
have been heard of if the government of Henry the Sixth had not become
utterly unpopular, while Richard Duke of York was the best beloved man
of his time. Richard accepted a parliamentary compromise, which of
course implied the right of Parliament to decide the question. Henry
was to keep the Crown for life, and Richard was to displace Henry’s
son as heir-apparent. That is to say, according to a custom common in
Germany, though rare in England, Richard was chosen to fill a vacancy
in the throne which had not yet taken place(38). Duke Richard fell at
Wakefield; in the Yorkist reading of the Law the Crown was presently
forfeited by Henry, and Edward, the heir of York, had his claim
acknowledged by a show of popular election which carries us back to
far earlier times. The claim of Richard the Third, whatever we make
of it on other grounds, was acknowledged in the like sort by what had
at least the semblance of a popular Assembly(39). In short, though
the hereditary principle had now taken firm root, though the disputes
between the pretenders to the Crown were mainly disputes as to the
right of succession, yet the remembrance of the days when the Crown
had been truly the gift of the people had not wholly passed away.

The last King who could bring even the shadow of a claim to have
been chosen by the voice of the people beneath the canopy of heaven
was no other than Richard the Third. The last King who could bring
a better claim to have been chosen by the same voice beneath the
vault of the West Minster was no other than Henry the Eighth. Down to
his time the old ecclesiastical form of choosing the King remained
in the coronation-service, and it was not wholly out of character
that Henry should issue a _congé d’élire_ for his own election. The
device for Henry’s coronation survives in his own handwriting, and,
while it contains a strong assertion of his hereditary right, it also
contains a distinct provision for his election by the people in ancient
form(40). The claim of Henry was perfectly good, for a Parliament of
his father’s reign had declared that the Crown should abide in Henry
the Seventh and the heirs of his body(41). But it was in his case that
the hereditary and parliamentary claim was confirmed by the ancient
rite of ecclesiastical election for the last time in our history. His
successor was not thus distinctly chosen. This was perhaps, among
other reasons, because in his case the form was specially needless.
For the right of Edward the Sixth to succeed his father was beyond
all dispute. By an exercise of parliamentary power, which we may well
deem strange, but which was none the less lawful, Henry had been
entrusted with the power of bequeathing and entailing the Crown as he
thought good. That power he exercised on behalf of his own children in
order, and, failing them and their issue, on the issue of his younger
sister(42). Edward, Mary, Elizabeth, therefore all reigned lawfully by
virtue of their father’s will. A moment’s thought will show that Mary
and Elizabeth could not both reign lawfully according to any doctrine
of hereditary succession. On no theory, Catholic or Protestant, could
both be the legitimate daughters of Henry. Parliament indeed had
declared both to be illegitimate; on any theory one or the other must
have been so(43). But each reigned by a perfectly lawful title, under
the provisions of the Act which empowered their father to settle the
succession according to his pleasure. While Elizabeth reigned, almost
divine as she might be deemed to be in her own person, it was at
least not held that there was any divine right in any other person to
succeed her. The doctrine which came into vogue under her successors
was in her day looked upon as treasonable(44). Elizabeth knew where
her strength lay, and the Stewarts knew where their strength, such
as it was, lay also. In the eye of the Law the first Stewart was an
usurper; he occupied the Crown in the teeth of an Act of Parliament
still in force, though he presently procured a fresh Act to salve
over his usurpation(45). There can be no doubt that, on the death of
Elizabeth, the lawful right to the Crown lay in the house of Suffolk,
the descendants of Henry’s younger sister Mary. But the circumstances
of the time were unfavourable to their claims; by a tacit agreement,
politically convenient, but quite in the teeth of the existing Law, the
Crown silently passed to the King of Scots, the descendant of Henry’s
elder sister Margaret. She had not been named in Henry’s entail; her
descendants therefore, lineal heirs of William and Cerdic as they were,
had no legal claim to the Crown beyond what was given them by the Act
of Parliament which was passed after James was already in possession.
They were therefore driven, like the Yorkists at an earlier time, to
patch up the theory of the divine right of hereditary succession, in
order to justify an occupation of the throne which had nothing to
justify it in English Law(46).

On one memorable day a Stewart King was reminded that an English King
received his right to reign from the will of the English people.
Whatever else we may say of the nature or the acts of the tribunal
before which Charles the First was arraigned, it did but assert the
ancient Law of England when it told how “Charles Stewart was admitted
King of England, and therein trusted with a limited power, to govern
by and according to the laws of the land and not otherwise.” It did
but assert a principle which had been acted on on fitting occasions
for nine hundred years, when it told its prisoner that “all his
predecessors and he were responsible to the Commons of England.”
Forgetful of the fate of Sigeberht and Æthelred, of Edward and of
Richard, Charles ventured to ask for precedents, and told his judges
that “the Kingdom of England was hereditary and not successive”(47).
After a season, the intruding dynasty passed away, on that great day
when the English people exercised for the last time its ancient right
of deposing and electing Kings. The Convention of which we have so
often spoken, that great Assembly, irregular in the eyes of lawyers,
but in truth all the more lawful because no King’s writ had summoned
it, cast all fantasies and subtleties to the winds by declaring that
the throne was vacant. A true Assembly of the nation once more put
forth its greatest power, and chose William of Orange, as, six hundred
years before, another Assembly of the nation had chosen Harold the
son of Godwine. The cycle had come round, and the English people had
won back again the rights which their fathers had brought with them
from their old home beyond the sea. Nor was it without fitness that
their choice went back to those kindred lands, and that a new William
crossed the sea to undo, after so many ages, the wrongs which England
had suffered from his namesake. And now, under the rule of an elective
King, England could at last afford to make her Crown strictly and
permanently hereditary. The Act of Settlement, as we all know, entailed
the Crown on the Electress Sophia and her heirs(48). Therefore no
Kings have ever reigned by a better right than those who, by virtue
of that Act, have been called to reign by the direct operation of the
Law. They are in truth Kings—_Cyningas_ in the most ancient sense—whose
power flows directly from the will of the nation. In the existing state
of our institutions, the hereditary character of our modern kingship
is no falling away from ancient principles; it in truth allows us
to make a fuller application of them in another shape. In an early
state of things no form of government is so natural as that which
we find established among our forefathers. A feeling which was not
wholly sentimental demanded that the King should, under all ordinary
circumstances, be the descendant of former Kings. But a sense that
some personal qualification was needed in a ruler required that the
electors should have the right of freely choosing within the royal
house. In days when Kings governed as well as reigned, such a choice,
made with some regard to the personal qualities of the King chosen, was
the best means for securing freedom and good government. Under the rule
of a conventional constitution, when Kings reign but do not govern,
when it is openly professed in the House of Commons that it is to that
House that the powers of government have passed(49), the objects
which were once best secured by making kingship elective are now best
secured by making kingship hereditary. It is as the Spartan King said:
by lessening the powers of the Crown, its possession has become more
lasting(50). A political system like ours would be inconsistent with
an elective kingship. An elective King could not be trusted simply to
reign; he would assuredly govern, or try to govern. We need not suppose
that he would attempt any breaches of the written Law. But those powers
which the written Law attaches to the Crown he would assuredly try to
exercise according to his own personal views of what was right and
expedient. And he would assuredly be justified in so doing. For the
personal choice of a certain man to be King would in all reason be held
to imply that he was personally fit for the work of government. He
would be a President or Prime Minister chosen for life, one whom there
would be no means of removing from office except by the most extreme
and most unusual exercise of the powers of Parliament. There are states
of society in which an elective Monarchy is a better kind of government
than either a Commonwealth or an hereditary Monarchy. But, under the
present circumstances of the civilized states of Europe and America,
the choice lies between the hereditary Monarchy and the Commonwealth.
The circumstances of our history have made us an hereditary Monarchy,
just as the circumstances of the history of Switzerland have made that
country a Federal Commonwealth. And no reasonable person will seek to
disturb an institution which, like other English institutions, has
grown up because it was wanted(51). Our unwritten Constitution, which
gives us an hereditary Sovereign, but which requires his government to
be carried on by Ministers who are practically chosen by the House of
Commons, does in effect attain the same objects which were sought to
be attained by the elective kingship of our forefathers. Our system
gives the State a personal chief, a personal embodiment of the national
being, which draws to itself those feelings of personal homage and
personal duty which a large class of mankind find it hard to look
upon as due to the more abstract ideas of Law and Commonwealth. And,
when the duties of constitutional royalty are discharged as our own
experience tells us that they may be discharged, the feeling awakened
is more than a mere sentiment; it is a rational feeling of genuine
personal respect. But widely as the hereditary kingship of our latest
times differs in outward form from the hereditary kingship of our
earliest times, the two have points of likeness which are not shared by
kingship in the form which it took in the ages between the two. In our
earliest and in our latest system, the King exists for the sake of the
people; in the intermediate times it sometimes seemed that the people
existed for the sake of the King. In our earliest and in our latest
system, the King is clothed with an office, the duties of which are to
be discharged for the common good of all. In the intermediate times it
sometimes seemed as if the King had been made master of a possession
which was to be enjoyed for his personal pleasure and profit. In the
intermediate times we constantly hear of the rights and powers of the
Crown as something distinct from, and almost hostile to, the common
rights of the people. In our earliest and in our latest times, the
rights of the Crown and the rights of the people are the same, for it
is allowed that the powers of the Crown are to be exercised for the
welfare of the people by the advice and consent of the people or their
representatives. Without indulging in any Utopian dreams, without
picturing to ourselves the England of a thousand years back as an
earthly paradise, the voice of sober history does assuredly teach us
that those distant times have really much in common with our own, much
in which we are really nearer to them than to times which, in a mere
reckoning of years, are far less distant from us. Thus it is that the
cycle has come round, that the days of foreign rule have been wiped
out, and that England is England once again. Our present Sovereign
reigns by as good a right as Ælfred or Harold, for she reigns by the
same right by which they reigned, by the will of the people, embodied
in the Act of Parliament which made the crown of Ælfred and Harold
hereditary in her ancestress. And, reigning by the same right by which
they reigned, she reigns also for the same ends, for the common good
of the nation of which the Law has made her the head. And we can
wish nothing better for her kingdom than that the Crown which she so
lawfully holds, which she has so worthily worn among two generations
of her people, she may, like Nestor of old, continue to wear amid the
well-deserved affection of a third(52).




NOTES.

CHAPTER I.

(1) What I say of Uri and the other democratic Cantons must not be
misunderstood, as if I all accepted the now exploded dreams which
made out the _Waldstädte_ or Forest Cantons to have had some special
origin, and some special independence, apart from the rest of Germany.
The researches of modern scholars have shown, not only that the
Forest Cantons were members of the Empire like their neighbours, but
that various lesser lords, spiritual and temporal, held different
rights within them. Their acquisition of perfect independence, even
their deliverance from other lords and promotion to the state of
_Reichsunmittelbarkeit_ or immediate dependence on the Empire, was a
work of time. Thus Uri itself, or part of it, was granted in 853 by
Lewis the German to the Abbey of Nuns (_Fraumünster_) in Zürich, and
it was not till 1231 that its independence of any lord but the Emperor
was formally acknowledged. But the universal supremacy of the Empire
in no way interfered with the internal constitution of any district,
city, or principality; nor was such interference necessarily implied
even in subjection to some intermediate lord. The rule of a female
monastery especially would be very light. And from the earliest times
we find both the men of Uri in general and the men of particular parts
of the district (_Gemeinden_, _Communes_, or parishes) spoken of as
communities capable of acting together, and even of treating with those
who claimed to be their masters. (“Nos inhabitantes Uroniam” appear in
a deed of 955 as capable of making an agreement with the officer of the
Abbey at Zürich.) All this is in no way peculiar to the Forest Cantons;
it is no more than what we find everywhere; what is peculiar is that,
whereas elsewhere the old local communities gradually died out, in the
Forest Cantons they lived and flourished, and gained new rights and
powers till they grew into absolutely independent commonwealths. I
think therefore that I have a right to speak of the democracy of Uri as
immemorial. It is not immemorial in its fully developed shape, but that
fully developed shape grew step by step out of earlier forms which are
strictly immemorial and common to the whole Teutonic race.

On the early history of the democratic Cantons, a subject than which
none has been more thoroughly misunderstood, I am not able to point
to any one trustworthy work in English. Among the writings of Swiss
scholars—shut up for the most part from readers of other nations in the
inaccessible Transactions of local Societies—there is a vast literature
on the subject, of the whole of which I am far from pretending to be
master. But I may refer to the _Essai sur l’Etat des Personnes et la
Condition des Terres dans le Pays d’Ury au XIIIe Siècle_, by the Baron
Frederick de Gingins-la-Sarraz, in the _Archiv für schweizerische
Geschichte_, i. 17; to Dr. J. R. Burckhardt’s _Untersuchungen über
die erste Bevölkerung des Alpengebirgs_ in the same collection, iv.
3; to the early chapters of the great work of Bluntschli, _Geschichte
des schweizerischen Bundesrechtes_ (Zürich, 1849), and of Blumer’s
_Staats-und Rechtsgeschichte der schweizerischen Demokratien_ (St.
Gallen, 1850); to Dr. Alfons Huber, _Die Waldstaette_ (Innsbruck,
1861), and Dr. Wilhelm Vischer, _Die Sage von der Befreiung der
Waldstädte_ (Leipzig, 1867). Dr. H. von Liebenau, in _Die Tell-Sage
zu dem Jahre_ 1230, takes a line of his own. The results of the
whole inquiry will be found in the most accessible form in M. Albert
Rilliet’s _Les Origines de la Confédération Suisse_ (Genève et Bâle,
1868).

(2) Individual Swiss mercenaries may doubtless still be found in
foreign armies, as Italy some years back knew to her cost. But the
Federal Constitution of 1848 altogether swept away the system of
military capitulations which used to be publicly entered into by the
Cantons.

(3) See Johannes von Müller, _Geschichte der schweizerische
Eidgenossenschaft_, Book v., c. 1 (vol. xvi. p. 25, of his _sämmtliche
Werke_, Stuttgart und Tübingen, 1832, and the note in vol. xxii. p. 14;
or the French translation, vol. viii. p. 35: Paris and Geneva, 1840).
The description in Peterman Etterlin’s Chronicle, p. 204 (Basel, 1752),
is worth quoting in the original. “Dann do der Hertzog von Burgunn
gesach den züg den berg ab züchen, schein die sunn gerad in sy, und
glitzet als wie ein spiegel, des gelichen lüyet das horn von Ury,
auch die harschorne von Lutzern, und was ein sölich toffen, das des
Hertzogen von Burgunn lüt ein grusen darab entpfiengent, und trattent
hinder sich.”

(4) The magistrates rode when I was present at the Landesgemeinden of
1863 and 1864. I trust that so good a custom has not passed away.

(5) On the character and position of Phôkiôn, see Grote, xi. 382, xii.
481; and on the general question of the alleged fickleness of the
Athenian people, see iv. 496.

(6) Some years ago I went through all the elections to the _Bundesrath_
or Executive Council in Switzerland, and found that in eighteen years
it had only twice happened that a member of the Council seeking
reelection had failed to obtain it. I therefore think that I was
right in congratulating a member of the Federal Council, whom I had the
pleasure of meeting last year, on being a member of the most permanent
government in Europe.

(7) Under the so-called Helvetic Republic of 1798, the Cantons ceased
to be sovereign States, and became mere divisions, like counties or
departments. One of the earliest provisions of this constitution
abolishes the ancient democracies of the Forest Cantons. “Die
Regierungsform, wenn sie auch sollte verändert werden, soll allezeit
eine repräsentative Demokratie sein.” (See the text in Bluntschli, ii.
305.) The “repräsentative Demokratie” thus forced on these ancient
commonwealths by the sham democrats of Paris was meant to exclude the
pure democracy of Athens and Uri.

The Federal system was in some sort restored by the Act of Mediation
(_Vermittlungsakte_) of Napoleon Buonaparte, when First Consul in 1803.
See the text in Bluntschli, ii. 322.

(8) Appenzell, though its history had long been connected with that
of the Confederates, was not actually admitted as a Canton till
December 1513, being the youngest of the thirteen Cantons which
formed the Confederation down to 1798. See Zellweger, _Geschichte des
Appenzellischen Volkes_, ii. 366, and the text in his _Urkunden_,
ii. part 2, p. 481, or in the older _Appenzeller Chronick_ of
Walser (Saint Gallen, 1740), 410, and the Act in his _Anhang_, p.
18. The frontispiece of this volume contains a lively picture of
a _Landesgemeinde_. In 1597 the Canton was divided into the two
Half-cantons of _Ausser-Rhoden_, Protestant, and _Inner-Rhoden_,
Catholic. See Zellweger, iii. part 2, p. 160; Walser, 553.

(9) On armed assemblies see Norman Conquest, ii. 331.

(10) I perhaps need hardly insist on this point after the references
given in my first note; but I find it constantly needful to explain
that there is no such thing as a Swiss _nation_ in any but a political
sense. The Cantons were simply members of the Empire which gradually
won a greater independence than their fellows. And the Forest Cantons,
and the German-speaking Swiss generally, do not even form a distinct
part of the German nation; they are simply three settlements of the
Alemanni, just as the three divisions of Lincolnshire are three
settlements of the Angles.

(11) The earliest instance that I know of the use of the word
_Englaland_ is in the Treaty with Olaf and Justin in 991. Its earliest
use in the English Chronicles is in 1014. See Norman Conquest, i.
78, 276, 605, 629. The oldest use that I know of the name Yorkshire
(_Eoforwicscír_) is in the Chronicles under 1065. See Norman Conquest,
ii. 478. Deira is, of course, as old as Gregory the Great’s pun.

(12) The real history of English parishes has yet to be worked out. I
feel sure that they will be found to have much more in common with the
continental _Gemeinden_ than would seem at first sight. Some hints may
be found in a little pamphlet which I lately came across, called “The
Parish in History.”

(13) The nature of democracy is set forth by Periklês in the Funeral
Oration, Thucydides, ii. 37: ὄνομα μὲν διὰ τὸ μὴ ἐς ὀλίγους ἀλλ' ἐς
πλείονας οἰκεῖν δημοκρατία κέκληται· μέτεστι δὲ κατὰ μὲν τοὺς νόμους
πρὸς τὰ ἴδια διάφορα πᾶσι τὸ ἴσον, κατὰ δὲ τὴν ἀξίωσιν ὡς ἕκαστος
ἐν τῷ εὐδοκιμεῖ. It is set forth still more clearly by Athênagoras
of Syracuse, vi. 39, where the functions of different classes in a
democracy are clearly distinguished: ἐγὼ δέ φημι πρῶτα μὲν δῆμον
ξύμπαν ὠνομάσθαι, ὀλιγαρχίαν δὲ μέρος, ἔπειτα φύλακας μὲν ἀρίστους
εἶναι χρημάτων τοὺς πλουσίους, βουλεῦσαι δ' ἂν βέλτιστα τοὺς ξυνετοὺς,
κρῖναι δ' ἂν ἀκούσαντας ἄριστα τοὺς πολλοὺς, καὶ ταῦτα ὁμοίως καὶ κατὰ
μέρη καὶ ξύμπαντα ἐν δημοκρατίᾳ ἰσομοιρεῖν. Here a distinct sphere
is assigned both to wealth and to special intelligence. Nearly the
same division is drawn by a writer who might by comparison be called
aristocratic. Isokratês (Areop. 29) holds that the management of public
affairs should be immediately in the hands of the men of wealth and
leisure, who should act as servants of the People, the People itself
being their master—or, as he does not scruple to say, _Tyrant_—with
full power of reward and punishment: ἐκεῖνοι διεγνωκότες ἦσαν ὅτι δεῖ
τὸν μὲν δῆμον ὥσπερ τύραννον καθιστάναι τὰς ἀρχὰς καὶ κολάζειν τοὺς
ἐξαμαρτάνοντας καὶ κρίνειν περὶ τῶν ἀμφισβητουμένων, τοὺς δὲ σχολὴν
ἄγειν δυναμένους καὶ βίον ἱκανὸν κεκτημένους ἐπιμελεῖσθαι τῶν κοινῶν
ὥσπερ οἰκέτας, καὶ δικαίους μὲν γενομένους ἐπαινεῖσθαι καὶ στέργειν
ταύτῃ τῇ τιμῇ, κακῶς δὲ διοικήσαντας μηδεμιᾶς συγγνώμης τυγχάνειν,
ἀλλὰ ταῖς μεγίσταις ζημίαις περιπίπτειν. This he elsewhere (Panath
166) calls democracy with a mixture of aristocracy—not oligarchy. (τὴν
δημοκρατίαν τὴν ἀριστοκρατίᾳ μεμιγμένην).

The unfavourable meaning which is often attached to the word democracy,
when it does not arise from simple ignorance, probably arises from
the use of the word by Aristotle. He makes (Politics, iii. 7) three
lawful forms of government, _kingship_ (βασιλεία), _aristocracy_
(ἀριστοκρατία), and what he calls specially πολιτεία or _commonwealth_.
Of these he makes three corruptions, _tyranny_, _oligarchy_, and
_democracy_ (τυραννίς, ὀλιγαρχία, δημοκρατία), defining _democracy_ to
be a government carried on for the special benefit of the poor (πρὸς τὸ
συμφέρον τὸ τῶν ἀπόρων). In this there is something of a philosopher’s
contempt for all popular government, and it is certain that Aristotle’s
way of speaking is not that which is usual in the Greek historians.
Polybios, like Herodotus and Thucydides, uses the word democracy in
the old honourable sense, and he takes (ii. 38) as his special type of
democracy the constitution of the Achaian League, which certainly had
in it a strong element of practical aristocracy (see History of Federal
Government, cap. v.): ἰσηγορίας καὶ παρρησίας καὶ καθόλου δημοκρατίας
ἀληθινῆς σύστημα καὶ προαίρεσιν εἰλικρινεστέραν οὐκ ἂν εὕροι τις τῆς
παρὰ τοῖς Ἀχαιοῖς ὑπαρχούσης. In short, what Aristotle calls πολιτεία
Polybios calls δημοκρατία; what Aristotle calls δημοκρατία Polybios
calls ὀχλοκρατία.

(14) It follows that, when the commonwealth of Florence disfranchised
the whole of the noble families, it lost its right to be called a
democracy. See the passing of the Ordinance of Justice in Sismondi,
Républiques Italiennes, iv. 65; Chroniche di Giovanni Villani, viii. 1.

(15) On Slavery in England, see Norman Conquest, i. 81, 333, 368,
432, iv. 385. For fuller accounts, see Kemble’s Saxons in England,
i. 185; Zöpfl, _Geschichte der deutschen Rechtsinstitute_, 62. The
three classes of nobles, common freemen, and slaves cannot be better
set forth than in the Life of Saint Lebuin (Pertz, ii. 361): “Sunt
denique ibi, qui illorum lingua edlingi, sunt qui frilingi, sunt qui
lassi dicuntur, quod in Latina sonat lingua, nobiles, ingenuiles, atque
serviles.”

(16) On the _Wite-þeow_, the slave reduced to slavery for his crimes,
see Kemble, Saxons in England, i. 200. He is mentioned several times in
the laws of Ine, 24, 48, 54, where, as usual in the West-Saxon laws, a
distinction is drawn between the English and the Welsh _wite-þeow_. The
second reference contains a provision for the case of a newly enslaved
_þeow_ who should be charged with a crime committed before he was
condemned to slavery.

(17) I wish to leave the details of Eastern matters to Eastern
scholars. But there are several places in the Old Testament where
we see something very much like a general assembly, combined with
distinctions of rank among its members, and with the supremacy of a
single chief over all.

(18) Iliad, xx. 4.

          Ζεὺς δὲ Θέμιστα κέλευσε θεοὺς ἀγορήνδε καλέσσαι
          Κρατὸς ἄπ' Οὐλύμποιο πολυπτύχου· ἡ δ’ ἄρα πάντη
          Φοιτήσασα κέλευσε Διὸς πρὸς δῶμα νέεσθαι.
          Οὔτε τις οὖν Ποταμῶν ἀπέην, νόσφ' Ὠκεανοῖο,
          Οὔτ' ἄρα Νυμφάων ταί τ' ἄλσεα καλὰ νέμονται,
          Καὶ πηγὰς ποταμῶν, καὶ πίσεα ποιήεντα.

Besides the presence of the Nymphs in the divine _Mycel Gemót_,
something might also be said about the important position of Hêrê,
Athênê, and other female members of the inner council.

We find the mortal Assembly described at length in the second book of
the Iliad, and indeed by implication at the very beginning of the first
book.

(19) We hear the applause of the assembly in i. 23 and ii. 333, and in
the Trojan Assembly, xviii. 313.

(20) On the whole nature of the Homeric ἀγορή see Gladstone’s Homer and
the Homeric Age, iii. 14. Mr. Gladstone has to my thinking understood
the spirit of the old Greek polity much better than Mr. Grote.

(21) There is no need to go into any speculations as to the early
Roman Constitution, as to the origin of the distinction of _patres_
and _plebs_, or any of the other points about which controversies
have raged among scholars. The three elements stand out in every
version, legendary and historical. In Livy, i. 8, Romulus first holds
his general Assembly and then chooses his Senate. And in c. 26 we get
the distinct appeal from the King, or rather from the magistrates
acting by his authority, to an Assembly which, whatever might be its
constitution, is more popular than the Senate.

(22) It is hardly needful to show how the Roman Consuls simply stepped
into the place of the Kings. It is possible, as some have thought, that
the revolution threw more power into patrician hands than before, but
at all events the Senate and the Assembly go on just as before.

(23) Tacitus, de Moribus Germaniæ, c. 7-13:

“Reges ex nobilitate; Duces ex virtute sumunt. Nec Regibus infinita aut
libera potestas; et Duces exemplo potius quam imperio: si prompti, si
conspicui, si ante aciem agant, admiratione præsunt.... De minoribus
rebus Principes consultant; de majoribus omnes; ita tamen ut ea quoque
quorum penes plebem arbitrium est apud Principes pertractentur....
Ut turbæ placuit, considunt armati. Silentium per Sacerdotes, quibus
tum et coercendi jus est, imperatur. Mox Rex, vel Princeps, prout
ætas cuique, prout nobilitas, prout decus bellorum, prout facundia
est audiuntur, auctoritate suadendi magis quam jubendi potestate.
Si displicuit sententia, fremitu adspernantur; sin placuit, frameas
concutiunt. Honoratissimum adsensûs genus est, armis laudare. Licet
apud concilium adcusare quoque et discrimen capitis intendere....
Eliguntur in iisdem conciliis et Principes, qui jura per pagos vicosque
reddant. Centeni singulis ex plebe comites, consilium simul et
auctoritas, adsunt. Nihil autem neque publicæ neque privatæ rei nisi
armati agunt.”

For a commentary, see Zöpfl, _Geschichte der deutschen
Rechtsinstitute_, p. 94. See also Allen, Royal Prerogative, 12, 162.

(24) See Norman Conquest, i. 95. The primitive Constitution lasted
longest at the other end of the Empire, in Friesland. See Eichhorn,
_Deutsche Staats-und Rechtsgeschichte_, ii. 265, iii. 158. Zöpfl,
_Geschichte der deutschen Rechtsquellen_, p. 154.

(25) Τὰ ἀρχαῖα ἤθη κρατείτω is an ecclesiastical maxim; rightly
understood, it is just as true in politics.

(26) See my papers on “the Origin of the English Nation” and “the
Alleged Permanence of Roman Civilization in England” in Macmillan’s
Magazine, 1870.

(27) See Schmid, _Gesetze der Angel-Sachsen_, on the words “_wealh_”
and “_wylne_.” Earle, Philology of the English Tongue, 318. On the fact
that the English settlers brought their women with them, see Historical
Essays, p. 36.

(28) On _Eorlas_ and _Ceorlas_ I have said something in the History
of the Norman Conquest, i. 80. See the two words in Schmid, and the
references there given.

(29) On the Barons of Attinghausen, see Blumer, _Staats- und
Rechtsgeschichte der schweizerischen Demokratien_, i. 122, 214, 272.

(30) I cannot at this moment lay my hand on my authority for this
curious, and probably mythical, custom, but it is equally good as an
illustration any way.

(31) This custom is described by Diodôros, i. 70. The priest first
recounted the good deeds of the King and attributed to him all possible
virtues; then he invoked a curse for whatever has been done wrongfully,
absolving the King from all blame and praying that the vengeance might
fall on his ministers who had suggested evil things (τὸ τελευταῖον
ὑπὲρ τῶν ἀγνοουμένων ἀρὰν ἐποιεῖτο, τὸν μὲν βασιλέα τῶν ἐγκλημάτων
ἐξαιρούμενος, εἰς δὲ τοὺς ὑπηρετοῦντας καὶ διδάξαντας τὰ φαῦλα καὶ τὴν
βλαβὴν καὶ τὴν τιμωρίαν ἀξιῶν ἀποσκῆψαι). He wound up with some moral
and religious advice.

(32) Tacitus (Germ. 25) distinguishes “eæ gentes quæ regnantur” from
others. And in 43 he speaks of “erga Reges obsequium” as characteristic
of some particular tribes: see Norman Conquest, i. 579.

(33) On the use of the words _Ealdorman_ and _Heretoga_, see Norman
Conquest, i. 581, and the references there given.

(34) See Norman Conquest, i. 583, and the passages in Kemble and Allen
there referred to.

(35) See Kemble’s Saxons in England, i. 152, and Massmann’s Ulfilas,
744.

(36) See the words _driht_, _drihten_ in Bosworth’s Anglo-Saxon
Dictionary.

(37) To say nothing of other objections to this derivation, its author
must have fancied that _ing_ and not _end_ was the ending of the
Old-English participle. The mistake is as old as Sir Thomas Smith. See
his Commonwealth of England, p. 12.

(38) See Norman Conquest, i. 583, and the passages there quoted. I am
afraid of meddling with Sanscrit, but it strikes me that the views
of Allen and Kemble are not inconsistent with a connexion with the
Sanscrit _Ganaka_. As one of the curiosities of etymology, it is worth
noticing that Mr. Wedgwood makes the word “probably identical with
Tartar _chan_.”

(39) We read in the Chronicles, 449, how, on the first Jutish landing
in Kent, “heora _heretogan_ wæron twegen gebroðra Hengest and Horsa.”
It is only in 455, on the death of Horsa, that “æfter Þam Hengest feng
to _rice_ and Æsc his sunu”; and in 488, seemingly on the death of
Hengest, “Æsc feng to _rice_ and was xxiiii wintra Cantwara _cyning_.”
So among the West-Saxons, in 495, “coman twegen _ealdormen_ on Brytene,
Cerdic and Cynric his sunu.” It is only in 519 that we read “her Cerdic
and Cynric West-Sexena _rice_ onfengun.”

(40) The distinction between Kings and Jarls comes out very strongly
in the account of the battle of Ashdown (Æscesdune) in the Chronicles
in 871. The Danes “wæron on twam gefylcum, on oþrum wæs Bagsecg and
Healfdene, þa hæðenan _cingas_ and on oðrum wæron þa _eorlas_.” It may
be marked that in the English army King Æthelred is set against the
Danish Kings, and his brother the Ætheling Ælfred against the Jarls. So
in the Song of Brunanburh we read of the five Kings and seven Jarls who
were slain.

  “Fife lagon          sweordum aswefede,
   on ðæm campstede    swilce seofone eac
   ciningas geonge,    eorlas Anlafes.”

We may mark that the Kings were young, as if they had been chosen
“ex nobilitate;” nothing is said of the age of the Jarls, who were
doubtless chosen “ex virtute.”

(41) I have quoted the passage from Bæda about the satraps in Norman
Conquest, i. 579. The passage in the Life of Saint Lebuin, quoted in
note 15, also speaks of “principes” as presiding over the several
_pagi_ or _gauen_, but he speaks of no King or other common chief over
the whole country. And this is the more to be marked, as there was a
“generale concilium” of the whole Old-Saxon nation, formed, as we are
told, of twelve chosen men from each _gau_. This looks like an early
instance of representation, but it should be remembered that we are
here dealing with a constitution strictly Federal.

In the like sort we find the rulers of the West-Goths at the time of
their crossing the Danube spoken of as _Judices_. See Ammianus, xxvii.
5, and the notes of Lindenbrog and Valesius. So also Gibbon, c. xxv.
(iv. 305, ed. Milman). So Jornandes(26) speaks of “primates eorum, et
duces, qui regum vice illis præerant.” Presently he calls Fredigern
“Gothorum regulus,” like the _subreguli_ or _under-cyningas_ of our own
History. Presently in c. 28 Athanaric, the successor of Fredigern, is
pointedly called _Rex_.

On all this, see Allen, Royal Prerogative, 163.

(42) See Norman Conquest, i. 75, 580.

(43) The best instance in English History of the process by which a
kingdom changed into a province, by going through the intermediate
stage of a half-independent Ealdormanship, is to be found in the
history of South-Western Mercia under its Ealdorman Æthelred and the
Lady Æthelflæd, in the reigns of Ælfred and Eadward the Elder. See
Norman Conquest, i. 563.

(44) See Norman Conquest, i. 39, 78.

(45) Iliad, ix. 160:—

       καὶ μοὶ ὑποστήτω, ὅσσον β α σ ι λ ε ύ τ ε ρ ό ς ἐιμι.

(46) The instances in which a great kingdom has been broken up into a
number of small states practically independent, but owning a nominal
superiority in the successor of the original Sovereign, are not few.
In the case of the Empire I have found something to say about it in my
Historical Essays, 151, and in the case of the Caliphate in my History
and Conquest of the Saracens, 137. How the same process took place with
the Mogul Empire in India is set forth by Lord Macaulay in his Essays
on Lord Clive and Warren Hastings. But he should not have compared
the great Mogul, with his nominal sovereignty, to “the most helpless
driveller among the later Carlovingians,” a class whom Sir Francis
Palgrave has rescued from undeserved contempt. But the breaking up of
the Western Kingdom is none the less an example of the same law. The
most remarkable thing is the way, or rather the three different ways,
in which the scattered members have been brought together again in
Germany, Italy, and France.

This process of dismemberment, where a nominal supremacy is still kept
by the original Sovereign, must be distinguished from that of falling
back upon Dukes or Ealdormen after a period of kingly rule. In this
latter case it would seem that no central sovereignty went on.

(47) At this time of day I suppose it is hardly necessary to prove the
elective character of Old-English kingship. I have said what I have
to say about it in Norman Conquest, i. 106, 596. But I may quote one
most remarkable passage from the report made in 787 to Pope Hadrian the
First by George and Theophylact, his Legates in England (Haddan and
Stubbs, Councils and Ecclesiastical Documents, iii. 453). “Sanximus
ut in ordinatione Regum nullus permittat pravorum prævalere assensum:
sed legitime Reges a sacerdotibus et senioribus populi eligantur.”
One would like to know who the “pravi” here denounced were. The
passage sounds very like a narrowing of the franchise or some other
interference with freedom of election, but in any case it bears witness
to the elective character of our ancient kingship, and to the general
popular character of the constitution.

(48) I have described the powers of the Witan, as I understand them
and as they were understood by Mr. Kemble, at vol. i. p. 108 of the
History of the Norman Conquest and in some of the Appendices to that
volume. With regard to the powers of the Witan, I find no difference
between my own views and those of Professor Stubbs in the Introductory
Sketch to his Select Charters (p. 11), where the relations between
the King and the Witan, and the general character of our ancient
constitution, are set forth with wonderful power and clearness. But I
find Mr. Stubbs and myself differing altogether as to the constitution
of the Witenagemót. I look upon it as an Assembly of the whole kingdom,
after the type of the smaller assemblies of the shire and other lesser
divisions. Mr. Stubbs fully admits the popular character of the smaller
assemblies, but denies any such character to the national gathering. It
is dangerous to set oneself up against the greatest master of English
constitutional history, but I must ask the reader to weigh what I say
in note Q in the Appendix to my first volume.

(49) I have collected some of the instances of deposition in
Northumberland in the note following that on the constitution of the
Witenagemót. (Norman Conquest, i. 593.) It is not at all unlikely that
the report of George and Theophylact quoted above may have a special
reference to the frequent changes among the Northumbrian Kings.

(50) I have mentioned all the instances at vol. i. p. 105 of the Norman
Conquest: Sigeberht, Æthelred, Harthacnut, Edward the Second, Richard
the Second, James the Second. It is remarkable that nearly all are
the second of their respective names; for, besides Æthelred, Edward,
Richard, and James, Harthacnut might fairly be called Cnut the Second.

(51) Tacitus, De Moribus Germaniæ, 13, 14:—“Nec rubor inter comites
adspici. Gradus quinetiam et ipse comitatus habet, judicio ejus quem
sectantur; magnaque et comitum æmulatio quibus primus apud Principem
suum locus; et Principum cui plurimi et acerrimi comites.... Quum
ventum in aciem, turpe Principi virtute vinci, turpe comitatui virtutem
Principis non adæquare. Jam vero infame in omnem vitam ac probrosum,
superstitem Principi suo ex acie recessisse. Illum defendere, tueri,
sua quoque fortia facta gloriæ ejus adsignare, præcipuum sacramentum
est. Principes pro victoria pugnant; comites pro Principe.” See Allen,
Royal Prerogative, 142.

(52) The original text of the Song of Maldon will be found in Thorpe’s
Analecta Anglo-Saxonica. My extracts are made from the modern English
version which I attempted in my Old-English History, p. 192. I went
on the principle of altering the Old-English text no more than was
actually necessary to make it intelligible. When a word has altogether
dropped out of our modern language, I have of course changed it; when
a word is still in use, in however different a sense, I have kept it.
Many words which were anciently used in a physical sense are now used
only metaphorically; thus “cringe” is used in one of the extracts in
its primary meaning of bowing or falling down, and therefore of dying.

(53) The history of the Roman clientship is another of those points on
which legend and history and ingenious modern speculation all come to
much the same, as far as our present purpose is concerned. Whether the
clients were the same as the _plebs_ or not, at any rate no patricians
entered into the client relation, and this at once supplies the
contrast with Teutonic institutions.

(54) The title of _dominus_, implying a master of slaves, was always
refused by the early Emperors. This is recorded of Augustus by
Suetonius (Aug. 53) and Dion (lv. 12), and still more distinctly of
Tiberius (Suetonius, Tib. 27; Dion, lvii. 8). Tiberius also refused
the title of _Imperator_, except in its strictly military sense:
οὔτε γὰρ δεσπότην ἑαυτὸν τοῖς ἐλευθέροις οὔτε αὐτοκράτορα πλὴν τοῖς
στρατιώταις καλεῖν ἐφίει. Caius is said (Aurelius Victor, Cæs. xxxix.
4) to have been called _dominus_, and there is no doubt about Domitian
(Suetonius, Dom. 13; Dion, lxvii. 13, where see Reimar’s Note). Pliny
in his letters constantly addresses Trajan as _dominus_; yet in his
Panegyric(45) he draws the marked distinction: “Scis, ut sunt diversa
natura dominatio et principatus, ita non aliis esse principem gratiorem
quam qui maxime dominum graventur.” This marks the return to older
feelings and customs under Trajan. The final and formal establishment
of the title seems to have come in with the introduction of Eastern
ceremonies under Diocletian (see the passage already referred to in
Aurelius Victor). It is freely used by the later Panegyrists, as
for instance Eumenius, iv. 21, v. 13: “Domine Constanti,” “Domine
Maximiane, Imperator æterne,” and so forth.

(55) Vitellius (Tac. Hist. i. 58) was the first to employ Roman knights
in offices hitherto always filled by freedmen; but the system was not
fully established till the time of Hadrian (Spartianus, Hadrian, 22).

(56) See Norman Conquest, i. 89, 587, and the passages here quoted.

(57) Both _hlàford_ and _hlæfdige_ (_Lord_ and _Lady_) are very
puzzling words as to the origin of their later syllables. It is enough
for my purpose if the connexion of the first syllable with _hlàf_ be
allowed. Different as is the origin of the two words, _hlàford_ always
translates _dominus_. The French _seigneur_, and the corresponding
forms in Italian and Spanish, come from the Latin _senior_, used as
equivalent to _dominus_. This is one of the large class of words which
are analogous to our _Ealdorman_.

(58) This is fully treated by Palgrave, English Commonwealth, i. 350,
495, 505.

(59) On the change from the _alod_, _odal_, or _eðel_, a man’s very own
property, to the land held of a lord, see Hallam, Middle Ages, i. 113.

(60) See Norman Conquest, i. 85-88. I have there chiefly followed Mr.
Kemble in his chapter on the Noble by Service, Saxons in England, i.
162.

(61) See the whole history and meaning of the word in the article
_þegen_ in Schmid’s Glossary.

(62) See Norman Conquest, i. 89.

(63) Barbour, Bruce, i. 224:

  “A! fredome is A noble thing.”

So said Herodotus (v. 78) long before:

   ἡ ἰσηγορίη ὡς ἔστι χρῆμα σπουδαῖον.


CHAPTER II.

(1) In the great poetical manifesto of the patriotic party in Henry the
Third’s reign, printed in Wright’s Political Songs of England (Camden
Society, 1839), there seems to be no demand whatever for new laws, but
only for the declaration and observance of the old. Thus, the passage
which I have chosen for one of my mottoes runs on thus:—

  “Igitur communitas regni consulatur;
   Et quid universitas sentiat sciatur,
   Cui leges propriæ maxime sunt notæ.
   Nec cuncti provinciæ sic sunt idiotæ,
   Quin sciant plus cæteris regni sui mores,
   Quos relinquant posteris hii qui sunt priores.
   Qui reguntur legibus magis ipsas sciunt;
   Quorum sunt in usibus plus periti fiunt;
   Et quia res agitur sua, plus curabunt,
   Et quo pax adquiritur sibi procurabunt.”

(2) On the renewal of the Laws of Eadward by William, see Norman
Conquest, iv. 324. Stubbs, Documents, 25. It should be marked that the
Laws of Eadward were again confirmed by Henry the First (see Stubbs,
90-99), and, as the Great Charter grew out of the Charter of Henry
the First produced by Archbishop Stephen Langton in 1213, the descent
of the Charter from the Laws of Eadward is very simple. See Roger of
Wendover, iii. 263 (ed. Coxe). The Primate there distinctly says that
he had made John swear to renew the Laws of Eadward. “Audistis quomodo,
tempore quo apud Wintoniam Regem absolvi, ipsum jurare compulerim, quod
leges iniquas destrueret et leges bonas, videlicet leges Eadwardi,
revocaret et in regno faceret ab omnibus observari.” It must be
remembered that the phrase of the Laws of Eadward or of any other King
does not really mean a code of laws of that King’s drawing up, but
simply the way of administering the Law, and the general political
condition, which existed in that King’s reign. This is all that would
be meant by the renewal of the Laws of Eadward in William’s time. It
simply meant that William was to rule as his English predecessors had
ruled before him. But, by the time of John, men had no doubt begun to
look on the now canonized Eadward as a lawgiver, and to fancy that
there was an actual code of laws of his to be put in force.

On the various confirmations of the Great Charter, see Hallam, Middle
Ages, ii. 111.

(3) Macaulay, ii. 660. “When they were told that there was no precedent
for declaring the throne vacant, they produced from among the records
of the Tower a roll of parchment, near three hundred years old, on
which, in quaint characters and barbarous Latin, it was recorded that
the Estates of the Realm had declared vacant the throne of a perfidious
and tyrannical Plantagenet.” See more at large in the debate of the
Conference between the Houses, ii. 645.

(4) See Kemble, Saxons in England, ii. 186—194. This, it will be
remembered, is admitted by Professor Stubbs. See above, note 48 to
Chapter I.

(5) See Kemble, ii. 199, 200, and compare page 194.

(6) I have collected these passages in my History of the Norman
Conquest, i. 591.

(7) On the acclamations of the Assembly, see note 19 to Chapter I. I
suspect that in all early assemblies, and not in that of Sparta only,
κρίνουσι βοῇ καὶ οὐ ψήφῳ (Thuc. i. 87). We still retain the custom in
the cry of “Aye” and “No,” from which the actual vote is a mere appeal,
just like the division ordered by Sthenelaïdas when he professed not to
know on which side the shout was.

(8) See Norman Conquest, i. 100, and History of Federal Government, i.
263.

(9) See Norman Conquest, iv. 694. In this case the Chronicler, under
the year 1086, distinguishes two classes in the Assembly, “his witan
and ealle Þa landsittende men Þe ahtes wæron ofer eall Engleland.”
These “landsittende men” were evidently the forerunners of the “libere
tenentes,” who, whether their holdings were great or small, kept their
place in the early Parliaments. See Hallam, ii. 140-146, where will be
found many passages showing the still abiding traces of the popular
constitution of the Assembly.

(10) The practice of summoning particular persons can be traced up to
very early times. See Kemble, ii. 202, for instances in the reign of
Æthelstan. On its use in later times, see Hallam, ii. 254-260; and on
the irregularity in the way of summoning the spiritual peers, ii. 253.

The bearing of these precedents on the question of life peerages
will be seen by any one who goes through Sir T. E. May’s summary,
Constitutional History, i. 291-298.

(11) Sismondi, Histoire des Français, v. 289: “Ce roi, le plus absolu
entre ceux qui ont porté la couronne de France, le moins occupé du
bien de ses peuples, le moins consciencieux dans son observation des
droits établis avant lui, est cependant le restaurateur des assemblées
populaires de la France, et l’auteur de la représentation des communes
dans les états généraux.” See Historical Essays, 45.

(12) See the history of Stephen Martel in Sismondi, Histoire des
Français, vol. vi. cap. viii. ix., and the account of the dominion of
the Butchers, vii. 259, and more at large in Thierry’s History of the
Tiers-État, capp. ii. iii.

(13) The Parliament of Paris, though it had its use as some small check
on the mere despotism of the Crown, can hardly come under the head of
free institutions. France, as France, under the old state of things,
cannot be said to have kept any free institutions at all; the only
traces of freedom were to be found in the local Estates which still met
in several of the provinces. See De Tocqueville, Ancien Régime, 347.

(14) The thirteenth century was the time when most of the existing
states and nations of Europe took something like their present form and
constitution. The great powers which had hitherto, in name at least,
divided the Christian and Mahometan world, the Eastern and Western
Empires and the Eastern and Western Caliphates, may now be looked on
as practically coming to an end. England, France, and Spain began to
take something like their present shape, and to show the beginnings of
the characteristic position and policy of each. The chief languages of
Western Europe grew into something like their modern form. In short,
the character of this age as a time of beginnings and endings might be
traced out in detail through the most part of Europe and Asia.

(15) Dr. Pauli does not scruple to give him this title in his admirable
monograph, “_Simon von Montfort Graf von Leicester, der Schöpfer des
Hauses der Gemeinen_.” The career of the Earl should be studied in this
work, and in Mr. Blaauw’s “Barons’ War.”

(16)                “Numquam libertas gratior exstat
      Quam sub rege pio.”—Claudian, ii. Cons. Stil. 114.

(17) Macaulay, i. 15. “England owes her escape from such calamities
to an event which her historians have generally represented as
disastrous. Her interest was so directly opposed to the interest of her
rulers that she had no hope but in their errors and misfortunes. The
talents and even the virtues of her six first French Kings were a curse
to her. The follies and vices of the seventh were her salvation....
England, which, since the battle of Hastings, had been ruled generally
by wise statesmen, always by brave soldiers, fell under the dominion
of a trifler and a coward. From that moment her prospects brightened.
John was driven from Normandy. The Norman nobles were compelled to make
their election between the island and the continent. Shut up by the sea
with the people whom they had hitherto oppressed and despised, they
gradually came to regard England as their country, and the English as
their countrymen. The two races so long hostile, soon found that they
had common interests and common enemies. Both were alike aggrieved by
the tyranny of a bad King. Both were alike indignant at the favour
shown by the court to the natives of Poitou and Aquitaine. The great
grandsons of those who had fought under William and the great grandsons
of those who had fought under Harold began to draw near to each other
in friendship; and the first pledge of their reconciliation was the
Great Charter, won by their united exertions, and framed for their
common benefit.”

(18) I have tried to work out the gradual character of the transfer of
lands and offices under William in various parts of the fourth volume
of my History of the Norman Conquest; see especially p. 22, et seqq.
The popular notion of a general scramble for everything gives a most
false view of William’s whole character and position.

(19) See Norman Conquest, i. 176.

(20) This is distinctly asserted in the Dialogus de Scaccario (i. 10),
under Henry the Second: “Jam cohabitantibus Anglicis et Normannis,
et alterutrum uxores ducentibus vel nubentibus, sic permixtæ sunt
nationes, ut vix discerni possit hodie, de liberis loquor, quis
Anglicus quis Normannus sit genere; exceptis duntaxat ascriptitiis qui
villani dicuntur, quibus non est liberum obstantibus dominis suis a sui
statûs conditione discedere.”

(21) The Angevin family are commonly known as the Plantagenets; but
that name was never used as a surname till the fifteenth century.
The name is sometimes convenient, but it is not a really correct
description, like Tudor and Stewart, both of which were real surnames,
borne by the two families before they came to the Crown. In the
almanacks the Angevins are called “The Saxon line restored,” a name
which gives a false idea, though there can be no doubt that Henry the
Second was fully aware of the advantages to be drawn from his remote
female descent from the Old-English Kings. The point to be borne in
mind is that the accession of Henry is the beginning of a distinct
dynasty which could not be called either Norman or English in any but
the most indirect way.

(22) I do not remember anything in any of the writers of Henry the
Second’s time to justify the popular notions about “Normans and
Saxons” as two distinct and hostile bodies. Nor do we as yet hear many
complaints of favour being shown to absolute foreigners in preference
to either, though it is certain that many high preferments, especially
in the Church, were held by men who were not English in either sense.
The peculiar position of Henry the Second was something like that of
the Emperor Charles the Fifth, that of a prince ruling over a great
number of distinct states without being nationally identified with any
of them. Henry ruled over England, Normandy, and Aquitaine, but he was
neither English, Norman, nor Gascon.

(23) That is the greater, the continental, part of the Duchy. The
insular part of Normandy, the Channel Islands, was not lost, and it
still remains attached to the English Crown, not as part of the United
Kingdom, but as a separate dependency. See Norman Conquest, i. 187.

(24) See Norman Conquest, i. 310, 367; and on the appointment of
Bishops and Abbots, i. 503, ii. 66, 571.

(25) See the Ordinance in Norman Conquest, iv. 392. Stubbs, Select
Charters, 81.

(26) See Norman Conquest, iii. 317.

(27) It should be remembered that the clerical immunities which were
claimed in this age were by no means confined to those whom we should
now call clergymen, but that they also took in that large class of
persons who held smaller ecclesiastical offices without being what we
should call in holy orders. The Church also claimed jurisdiction in
the causes of widows and orphans, and in various cases where questions
of perjury, breach of faith, and the like were concerned. Thus John
Bishop of Poitiers writes to Archbishop Thomas (Giles, Sanctus Thomas,
vi. 238) complaining that the King’s officers had forbidden him to hear
the causes of widows and orphans, and also to hear causes in matters
of usury: “prohibentes ne ad querelas viduarum vel orphanorum vel
clericorum aliquem parochianorum meorum in causam trahere præsumerem
super quacumque possessione immobili, donec ministeriales regis, vel
dominorum ad quorum feudum res controversiæ pertineret, in facienda
justitia eis defecissent. Deinde ne super accusatione fœnoris
quemquam audirem.” This gives a special force to the acclamations
with which Thomas was greeted on his return as “the father of the
orphans and the judge of the widows:” “Videres mox pauperum turbam
quæ convenerat in occursum, hos succinctos ut prævenirent et patrem
suum applicantem exciperent, et benedictionem præriperent, alios vero
humi se humiliter prosternentes, ejulantes hos, plorantes illos præ
gaudio, et omnes conclamantes, Benedictus qui venit in nomine Domini,
pater orphanorum et judex viduarum! et pauperes quidem sic.” Herbert
of Bosham, Giles, Sanctus Thomas, vii. 315, cf. 148. See more in
Historical Essays, 99.

(28) On the cruel punishments inflicted in the King’s courts Herbert
of Bosham is very emphatic in more than one passage. He pleads (vii.
101) as a merit of the Bishops’ courts that in them no mutilations
were inflicted. Men were punished there “absque omni mutilatione
vel deformatione membrorum.” But he by no means claims freedom from
mutilation as a mere clerical privilege; he distinctly condemns it in
any case. “Adeo etiam quod ordinis privilegium excludat cauterium: quam
tamen pœnam communiter inter homines etiam jus forense damnat: ne
videlicet in homine Dei imago deformetur.” (vii. 105.) A most curious
story illustrative of the barbarous jurisprudence of the time will be
found in Benedict’s Miracula Sancti Thomæ, 184.

(29) One of the Constitutions of Clarendon forbade villains to be
ordained without the consent of their lords. “Filii rusticorum non
debent ordinari absque assensu domini de cujus terra nati dignoscuntur”
(Stubbs, Select Charters, 134). On the principles of feudal law nothing
can be said against this, as the lord had a property in his villain
which he would lose by the villain’s ordination. The prohibition
is noticed in some remarkable lines of the earliest biographer of
Thomas, Garnier of Pont-Sainte-Maxence (La Vie de Saint Thomas le
Martyr, Paris, 1859, p. 89), where he strongly asserts the equality of
gentleman and villain before God:—

  “Fils à vilains ne fust en nul liu ordenez
   Sanz l’otrei sun seigneur de cui terre il fu nez.
   Et deus à sun servise nus a tuz apelez!
   Mielz valt filz à vilain qui est preux e senez,
   Que ne feit gentilz hum failliz et debutez.”

Thomas himself was not the son of a villain, but his birth was such
that the King could sneer at him as “plebeius quidam clericus.”

(30) We are not inclined to find fault with such an appointment as
that of Stephen Langton; still his forced election at the bidding
of Innocent was a distinct breach of the rights of the King, of the
Convent of Christ Church, and of the English nation generally. See the
account of his election in Roger of Wendover, iii. 212; Lingard, ii.
314; Hook’s Archbishops, ii. 668.

(31) See the Bulls and Letters by which Innocent professed to annul the
Great Charter in Roger of Wendover, iii. 323, 327; the excommunication
of the Barons in iii. 336; and the suspension of the Archbishop in iii.
340.

(32) There is a separate treatise on the Miracles of Simon of Montfort,
printed along with Rishanger’s Chronicle by the Camden Society, 1840.

(33) I think I may safely say that the only royalist chronicler of the
reign of Henry the Third is Thomas Wykes, the Austin Canon of Osney.
There is also one poem on the royalist side, to balance many on the
side of the Barons, among the Political Songs published by the Camden
Society, 1839, page 128.

Letters to Earl Simon and his Countess Eleanor form a considerable part
of the letters of Robert Grosseteste, published by Mr. Luard for the
Master of the Rolls. Matthew Paris also (879, Wats) speaks of him as
“episcopus Lincolniensis Robertus, cui comes tamquam patri confessori
exstitit familiarissimus.” This however was in the earlier part of
Simon’s career, before the war had broken out. The share of Bishop
Walter of Cantilupe, who was present at Evesham and absolved the Earl
and his followers, will be found in most of the Chronicles of the time.
It comes out well in the riming Chronicle of Robert of Gloucester (ii.
558):—

  “Þe bissop Water of Wurcetre asoiled hom alle pere
   And prechede hom, þat hii adde of deþ þe lasse fere.”

This writer says of the battle of Evesham:—

  “Suich was þe morþre of Eivesham (vor bataile non it was).”

(34) This letter, addressed in 1247 to Pope Innocent the Fourth, will
be found in Matthew Paris (721, Wats). It is written in the name of
“universitas cleri et populi per provinciam Cantuariensem constituti,”
and it ends, “quia communitas nostra sigillum non habet, præsentes
literas signo communitatis civitatis Londinensis vestræ sanctitati
mittimus consignatas.” Another letter in the same form follows to the
Cardinals. There are two earlier letters in 1245 and 1246 (Matthew
Paris, 666, 700), the former from the “magnates et universitas regni
Angliæ,” the other in the name of Richard Earl of Cornwall (afterwards
King of the Romans), Simon Earl of Leicester, and other Earls, “et alii
totius regni Angliæ Barones, proceres, et magnates, et nobiles portuum
maris habitatores, necnon et clerus et populus universus.” The distinct
mention of the Cinque Ports, whose representatives in Parliament are
still called Barons—the “nobiles” of the letter—should be noticed.

(35) The writer of the Gesta Stephani(3) distinctly attributes the
election of Stephen to the citizens of London: “Majores igitur natu,
consultuque quique provectiores, concilium coegere, deque regni
statu, pro arbitrio suo, utilia in commune providentes, ad regem
eligendum unanimiter conspiravere.” He then goes on with the details
of the election. He is borne out by the Chronicle 1135: “Stephne de
Blais com to Lundene and te Lundenisce folc him underfeng;” and by
William of Malmesbury, Historia Novella, i. 11: “A Londoniensibus et
Wintoniensibus in Regem exceptus est.” So again when the Legate, Henry
Bishop of Winchester, holds a council for the election of the Empress
Matilda, the citizens of London were summoned, and it is distinctly
said that they held the rank of nobles or barons: “Londonienses
(qui sunt quasi optimates, pro magnitudine civitatis, in Anglia).”
“Londonienses, qui præcipui habebantur in Anglia, sicut proceres”
(Historia Novella, iii. 45, 46). All this is exactly like the earlier
elections of Kings before the Conquest.

(36) The words of the Charter 12-14 (Stubbs, 290) are: “Nullum
scutagium vel auxilium ponatur in regno nostro, nisi per commune
consilium regni nostri, nisi ad corpus nostrum redimendum, etc.....
Et ad habendum commune consilium regni, de auxilio assidendo aliter
quam in tribus casibus prædictis, vel de scutagio assidendo, summoneri
faciemus archiepiscopos, episcopos, abbates, comites, et majores
barones, sigillatim per litteras nostras; et præterea faciemus
summoneri in generali, per vicecomites et ballivos nostros, omnes
illos qui de nobis tenent in capite.” This is exactly like the entry
in the Chronicle (1123), describing the summoning of a Witenagemót by
Henry the First: “Da sone Þæræfter sende se kyng hise write ofer eal
Englalande, and bed hise biscopes and hise abbates and hise Þeignes
ealle Þet hi scolden cumen to his gewitenemot on Candelmesse deig to
Gleawceastre him togeanes; and hi swa diden.”

(37) These first glimmerings of parliamentary representation were
carefully traced out by Hallam (Middle Ages, ii. 146-152). They can
now be more fully studied in the work of Professor Stubbs. On the
summons in 1213 of four men for each shire besides “milites et barones”
(“quatuor discretos homines de comitatu tuo illuc venire facias”),
the Professor remarks (278): “It is the first writ in which the ‘four
discreet men’ of the county appear as representatives; the first
instance of the summoning of the folkmoot to a general assembly by the
machinery already used for judicial purposes.”

(38) On this subject the eighth chapter of Sir Francis Palgrave’s
English Commonwealth should be studied.

(39) For the whole career of Simon I must again refer generally to
Pauli and Blaauw. The great writ itself, dated at Worcester, December
14th, 1264, will be found in Rymer’s Fœdera, i. 449. It has often
been noticed how small is the number of Earls and other lay Barons, and
how unusually large the number of churchmen, who are summoned to this
Parliament. The whole list will be found in Rymer. The parts of the
writ which concern us stand thus:

“Item mandatum est singulis vicecomitibus per Angliam; quod venire
faciant duos milites de legalioribus, probioribus et discretioribus
militibus singulorum comitatuum, ad Regem London’ in octab’ prædictis,
in formâ supradictâ.

“Item in formâ prædictâ scribitur civibus Ebor’, civibus Lincoln’,
et cæteris burgis Angliæ; quod mittant in formâ prædictâ duos de
discretioribus, legalioribus, et probioribus, tam civibus, quam
burgensibus suis.

“Item in formâ prædictâ mandatum est baronibus, et probis hominibus
Quinque Portuum.”

“This is often regarded as the origin of popular representation; but it
is not in any sense entitled to that praise. The novelty was simply the
assembling the representatives of the towns in conjunction with those
of the counties; this was now done for the first time for the purpose
of the national council.” Stubbs, 401.

(40) The account of this most remarkable trial, held on June 11th,
1252, is given in a letter from Simon’s intimate friend the famous
Franciscan Adam Marsh (de Marisco) to Bishop Robert Grosseteste. The
Latin text is printed in Mr. Brewer’s Monumenta Franciscana, p. 122,
and there is an English translation in the Appendix to Mrs. Green’s
Life of Countess Eleanor, English Princesses, ii. 447. Simon’s
witnesses, knights and citizens, come “muniti litteris patentibus
communitatis Burdegalensis, in quâ quasi totum robur Vasconiæ ad
distringendum hostiles et fideles protegendum consistere dignoscitur,”
setting forth how good Simon’s government was in every way, and how
those who brought charges against him did it only because his strict
justice had put a check on their misdoings. We may compare the words of
the great poetical manifesto (Political Songs, 76).

  “Seductorem nominant S. atque fallacem,
   Facta sed examinant probantque veracem.”

(41) For the Londoners at Lewes let us take the account of an enemy.
Thomas Wykes (148) tells us how the Earl set out, “glorians in virtute
sua congregata baronum multitudine copiosa, Londoniensium innumerabili
agmine circumcinctus, quia legitur stultorum infinitus est numerus.”
Presently we read how the “Londoniensium innumera multitudo, bellorum
ignara,” were put to flight by the Lord Edward very much after the
manner of Prince Rupert.

(42) On the religious reverence paid to Earl Waltheof, see Norman
Conquest, ii. 602. I have there referred to the office of Thomas of
Lancaster, which will be found in Political Songs, 268. Some of the
pieces are what we should think most daring parodies of parts of the
Church Service, but we may be sure that what was intended was reverence
and not irreverence. There is another parody of the same kind in honour
of Earl Thomas, a little earlier back in the volume, p. 258. It was a
matter of course that Thomas of Lancaster should be likened to Thomas
of Canterbury.

  “Gaude, Thoma, ducum decus, lucerna Lancastriæ,
   Qui per necem imitaris Thomam Cantuariæ;
   Cujus caput conculcatur pacem ob ecclesiæ,
   Atque tuum detruncatur causa pacis Angliæ.

(43) Let us take a Latin, a French, and an English specimen of the
poems in which Simon’s death was lamented and his intercession implored.

  “Salve, Symon Montis Fortis,
     Totius flos militiæ,
   Durus pœnas passus mortis,
     Protector gentis Angliæ.
   Sunt de sanctis inaudita
   Cunctis passis in hac vita,
     Quemquam passum talia;
   Manus, pedes, amputari,
   Caput, corpus, vulnerari,
     Abscidi virilia.
   Sis pro nobis intercessor
   Apud Deum, qui defensor
     In terris exstiteras.”—(Political Songs, 124.)

The French poem which follows directly in the collection is too long to
copy in full. This is perhaps the most remarkable stanza, in which we
again find the comparison with Thomas of Canterbury:—

  “Mès par sa mort, le cuens Mountfort conquist la victorie,
   Come ly martyr de Caunterbyr, finist sa vie;
   Ne voleit pas li bon Thomas qe perist seinte Eglise,
   Le cuens auxi se combati, e morust sauntz feyntise.
   Ore est ocys la flur de pris, qe taunt savoit de guerre,
   Ly quens Montfort, sa dure mort molt emplorra la terre.”

In this poem there is not, as in the Latin one, any direct prayer to
the martyred Earl, but in the last stanza we read:—

  “Sire Simoun ly prodhom, e sa compagnie,
   En joie vont en ciel amount, en pardurable vie.”

The only English piece on these wars belongs to an earlier date,
namely, the satirical poem against King Richard, how the one English
Augustus

  “Makede him a castel of a mulne post;”

but we get verses on Simon’s death in the Chronicle of Robert of
Gloucester (ii. 559):—

  “& sir Simond was aslawe, & is folk al to grounde,
   More murÞre are nas in so lute stounde.
   Vor Þere was werst Simond de Mountfort aslawe, alas!
   & sir Henri is sone, Þat so gentil knizt was.

       *       *       *       *       *

   & among alle oÞere mest reuÞe it was ido,
   Þat sir Simon Þe olde man demembred was so.”

He then goes on with the details of the dismemberment, of which a
picture may be seen opposite p. 254 of Mr. Blaauw’s book, and then goes
on with the lines which I have before quoted:—

  “Suich was Þe morÞre of Eivesham (vor bataile non it was),
   And Þer wiÞ Jesu Crist wel vuele ipaied was,
   As he ssewede bitokninge grisliche and gode,
   As it vel of him sulue, Þo he deide on Þe rode,
   Þat Þoru al Þe middelerd derk hede Þer was inou.”

(44) On the occasional and irregular summoning of the borough members
between 1265 and 1295 see Hallam, Middle Ages, ii. 160, 165, and
more fully in Stubbs, Select Charters, 420, 427, where the gradual
developement of parliamentary representation is treated as it has
never been treated before, with a full citation of the authorities.
The language in which the chroniclers speak of the constitution of the
early Parliaments of Edward is as vague as that in which our ancient
Gemóts are described. Sometimes they speak only of “proceres” and the
like; sometimes they distinctly mention the popular element. Curiously
enough, the official language is sometimes more popular than that of
the annalists. Thus the Winchester Annals, recording the Statute of
Westminster in 1273, call the Assembly which passed it a “communis
convocatio omnium magnatum regni,” though it incidentally implies the
presence of other persons, “quamplures de regno qui aliqua feoda de
corona regia tenuerunt.” But the preamble of the Statute itself records
the “assentement des erceveskes, eveskes, abbes, priurs, contes,
barons, et _la communaute de la tere_ ileokes somons.” So in the later
Parliament of the same year the Annals speak only of the “communis
consensus archiepiscoporum, comitum, et baronum,” while the official
description is “prælati, comites, barones, et alii de regno nostro.”
But in an earlier Assembly, that held in 1273, before Edward had come
back to England, the same Winchester Annals tell us how “convenerunt
archiepiscopi et episcopi, comites et barones, et _de quolibet comitatu
quatuor milites et de qualibet civitate quatuor_.” This and the
summons to the Parliament of 1285, which sat in judgement on David
of Wales (Stubbs, 453, 457), seem the most distinct cases of borough
representation earlier than 1295, since which time the summoning of the
borough members has gone on regularly. See Stubbs, 473. Mr. Stubbs’
remarks on the Assemblies of “the transitionary period” in pp. 465, 469
should be specially studied.

(45) The history of the resistance of these two Earls to King Edward,
which led to the great Confirmation of the Charters in 1297, will be
found in all the histories of the time, old and new. See also Stubbs,
431, 479. I feel no difficulty in reconciling respect for Edward with
respect for the men who withstood him. The case is well put by Stubbs,
34, 35.

(46) The exact value of the document commonly known as the statute “De
Tallagio non concedendo” is discussed by Professor Stubbs, p. 487. It
is perhaps safest to look on it, like many of the earlier collections
of laws, not indeed as an actual statute, but as good evidence of a
principle which, from the time of the Confirmation of the Charters, has
been universally received. The words are—

“Nullum tallagium vel auxilium per nos vel hæredes nostros de cetero in
regno nostro imponatur seu levetur, sine voluntate et assensu communi
archiepiscoporum, episcoporum et aliorum prælatorum, comitum, baronum,
militum, burgensium, et aliorum liberorum hominum in regno nostro.”
This, it will be seen, is the same provision which I have already
quoted (see above, Note 36) from the Great Charter of John, but which
was left out in the Charter in the form in which it was confirmed by
Henry the Third. See Stubbs, 330, 332, 336.

(47) I have said this before in Historical Essays, p. 41. On the
strongly marked legal character of Edward’s age, and especially of
Edward’s own mind, see Stubbs, 417.

(48) The great statute of treason of 25 Edward the Third (see the
Revised Edition of the Statutes, i. 185) secures the life of the King,
his wife, and his eldest son, and the chastity of his wife, his eldest
daughter, and his eldest son’s wife. But the personal privilege goes no
further. As the Law of England knows no classes of men except peers and
commoners, it follows that the younger children of the King—the eldest
is born Duke of Cornwall—are, in strictness of speech, commoners,
unless they are personally raised to the peerage. I am not aware that
either case has ever arisen, but I conceive that there is nothing to
hinder a King’s son, not being a peer, from voting at an election, or
from being chosen to the House of Commons, and I conceive that, if
he committed a crime, he would be tried by a jury. Mere precedence
and titles have nothing to do with the matter, though probably a good
deal of confusion arises from the very modern fashion—one might almost
say the modern vulgarism—of calling all the children of the King or
Queen “Princes” and “Princesses.” As late as the time of George the
Second uncourtly Englishmen were still found who eschewed the foreign
innovation, and who spoke of the Lady Caroline and the Lady Emily, as
their fathers had done before them.

Another modern vulgarism is that of using the word “royal”—“royal
visit,” “royal marriage,” and so forth—when there is no royalty in the
case, the person spoken of being a subject, perhaps a commoner.

(49) On the parliamentary position of the clergy see Hallam, Middle
Ages, ii. 263. And as far as the reign of Edward the First is
concerned, see the series of summonses in Stubbs, 442.

(50) On this important constitutional change, which was made in
1664, without any Act of Parliament, but by a mere verbal agreement
between Archbishop Sheldon and Lord Chancellor Clarendon, see Hallam,
Constitutional History, ii. 405.

(51) This is true on the whole, especially at the beginning of the
institution of the States General, though there were also _roturiers_
who were the immediate burgesses of the King. See Thierry, History
of the Tiers Etat, i. 56 (Eng. trans.). It is in that work that the
history of that branch of the States General should be studied.

(52) The question of one or two Chambers in an ordinary monarchy or
commonwealth is altogether different from the same question under a
Federal system. In England or France the question between one or two
Chambers in the Legislature is simply a question in which of the two
ways the Legislature is likely to do its work best. But in a Federal
constitution, like that of Switzerland or the United States, the two
Chambers are absolutely necessary. The double sovereignty, that of
the whole nation and that of the independent and equal States which
have joined together to form it, can be rightly represented only
by having two Chambers, one of them, the _Nationalrath_ or House
of Representatives, directly representing the nation as such, and
the other, the _Ständerath_ or Senate, representing the separate
sovereignty of the Cantons. In the debates early in 1872 as to the
revision of the Swiss Federal Constitution, a proposal made in the
_Nationalrath_ for the abolition of the _Ständerath_ was thrown out by
a large majority.

(53) On the old Constitution of Sweden, see Laing’s Tour in Sweden.

(54) This common mistake and its cause are fully explained by Hallam,
Middle Ages, ii. 237.

(55) “The two Houses had contended violently in 1675, concerning the
appellate jurisdiction of the Lords; they had contended, with not less
violence, in 1704, upon the jurisdiction of the Commons in matters of
election; they had quarrelled rudely, in 1770, while insisting upon
the exclusion of strangers. But upon general measures of public policy
their differences had been rare and unimportant.” May’s Constitutional
History, i. 307. The writer goes on to show why differences between the
two Houses on important points have become more common in very recent
times.

(56) The share of the Witan in early times in the appointment of
Bishops, Ealdormen, and other great officers, need hardly be dwelled
upon. For a debate in a Witenagemót of Eadward the Confessor on a
question of peace or war, see Norman Conquest, ii. 90. For the like
under Henry the Third, see the account in Matthew Paris, in the year
1242 which will be found in Stubbs, 359. The state of the case under
Edward the Third is discussed by Hallam, Middle Ages, ii. 184. See
also May, ii. 86. But the most remarkable passage of all is one in the
great poetical manifesto which I have several times quoted: it is there
(Political Songs, 96) made one of the charges against Henry the Third
that he wished to keep the appointment of the great officers of state
in his own hands. The passage is long, but it is well worth quoting at
length.

  “Rex cum suis voluit ita liber esse;
   Et sic esse debuit, fuitque necesse
   Aut esse desineret rex, privatus jure
   Regis, nisi faceret quidquid vellet; curæ
   Non esse magnatibus regni quos præferret
   Suis comitatibus, vel quibus conferret
   Castrorum custodiam, vel quem exhibere
   Populo justitiam vellet, et habere
   Regni cancellarium thesaurariumque.
   Suum ad arbitrium voluit quemcumque,
   Et consiliarios de quacumque gente,
   Et ministros varios se præcipiente,
   Non intromittentibus se de factis regis
   Angliæ baronibus, vim habente legis
   Principis imperio, et quod imperaret
   Suomet arbitrio singulos ligaret.”

(57) Take for example the Act passed after Edward the Fourth’s success
at Towton. Rot Parl. v. 466. Among other things, poor Henry the Sixth
is not only branded as an usurper, but is charged with personally
stirring up the movement in the North, which led to the battle of
Wakefield and the death of Richard Duke of York. “The seid Henry
Usurpour, late called Kyng Henry the Sixt, contynuyng in his olde
rancour & malice, usyng the fraude & malicious disceit & dissimulacion
ayenst trouth & conscience, that accorde not with the honoure of eny
Cristen Prynce, ... with all subtill ymaginacions & disceitfull weyes
& meanes to hym possible, intended & covertely laboured, excited &
procured the fynal destruction, murdre & deth of the seid Richard Duc,
and of his Sonnes, that is to sey, of oure seid nowe Soverayne Lord
Kyng Edward the fourth, then Erle of Marche, & of the noble Lord Edmund
Erle of Ruthlande; & for th’ execution of his dampnable & malicious
purpose, by writing & other messages, mowed, excited, & stured therunto
the Duks of Excestr’ & Somerset, & other lordes beyng then in the North
parties of this Reame.”

(58) This statute was passed in 8 Henry VI. A.D. 1420. The complaint
which it makes is well worth notice, and shows the reactionary
tendencies of the time. The county elections had been made by “very
great, outrageous, and excessive number of people dwelling within the
same counties, of which most part was people of small substance, and
of no value, whereof every of them pretended a voice equivalent, as to
such elections to be made, with the most worthy knights and esquires
dwelling within the same counties.” To hinder “the manslaughters,
riots, batteries, and divisions,” which were likely to take place—it is
not said that they had taken place—no one is to be allowed to vote who
has not “free land or tenement to the value of forty shillings by the
year at the least above all charges.” It is also provided that both the
electors and the elected are to be actually resident in the county. The
original French is worth quoting.

“Item come lez eleccions dez Chivalers des Countees esluz a venir as
parlements du Roi en plusours Countees Dengleterre, ore tarde ount
este faitz par trop graunde & excessive nombre dez gents demurrantz
deinz mesmes les Countes, dount la greindre partie estoit par gentz
sinon de petit avoir ou de null valu, dount chescun pretende davoir
voice equivalent quant a tielx eleccions faire ove les plius valantz
chivalers ou esquiers demurrantz deins mesmes les Countes; dount
homicides riotes bateries & devisions entre les gentiles & autres
gentz de mesmes les Countees verisemblablement sourdront & seront, si
covenable remedie ne soit purveu en celle partie: Notre seigneur le
Roy considerant les premisses ad pourveu & ordene par auctorite de cest
parlement que les Chivalers des Countes deins le Roialme Dengleterre,
a esliers a venir a les parlementz en apres atenirs, soient esluz
en chescun Counte par gentz demurrantz & receantz en icelles dount
chescun ait frank tenement a le valu de xl s. par an al meins outre les
reprises; & que ceux qui seront ensy esluz soient demurrantz & receantz
deins mesmes les Countes.” Revised Statutes, i. 306.

The necessity of residence in the case of either electors or
representatives was repealed by 14 Geo. III. c. 58.

The statute goes on to give the Sheriff power to examine the electors
on oath as to the amount of their property. It also gives the Judges of
Assize a power foreshadowing that of our present Election Judges, that
of inquiring into false returns made by the Sheriff.

Another statute of the same kind was passed later in the same reign,
23 Henry VI. A.D. 1444-5, from which it appears that the knights of
the shire were ceasing to be in all cases knights in the strict sense,
and that it was beginning to be found needful to fence them about with
oligarchic restrictions.

“Issint que lez Chivalers dez Counteez pour le parlement en après a
esliers so ent notablez Chivalers dez mesmez lez Counteez pour lez
queux ils serront issint esluz, ou autrement tielx notablez Esquiers
gentils homez del Nativite dez mesmez lez Counteez comme soient ablez
destre Chivalers; et null home destre tiel Chivaler que estoise en la
degree de vadlet et desouth.” Revised Statutes, i. 346.

Every enactment of this kind bears witness to the growth of the power
of the Commons, and to the endeavours of the people to make their
representation really popular.

(59) Take for instance the account given by the chronicler Hall (p.
253) of the election of Edward the Fourth.

“After the lordes had considered and weyghed his title and declaracion,
they determined by authoritie of the sayd counsaill, for as much as
kyng Henry, contrary to his othe, honor and agreement, had violated
and infringed, the order taken and enacted in the last Parliament,
and also, because he was insufficient to rule the Realme, & inutile
to the common wealth, & publique profite of the pore people, he was
therefore by the aforesayed authoritie, depriued & deiected of all
kyngly honor, & regall souereigntie. And incontinent, Edward erle of
Marche, sonne and heyre to Richard duke of Yorke, was by the lordes in
the sayd counsaill assembled, named, elected, & admitted, for kyng &
gouernour of the realme; on which day, the people of the erles parte,
beyng in their muster in sainct Ihons felde, & a great number of the
substanciall citezens there assembled, to behold their order: sodaynly
the lord Fawconbridge, which toke the musters, wisely declared to
the multitude, the offences & breaches of the late agremente done &
perpetrated by kyng Henry the vi. & demaunded of the people, whether
they woulde haue the sayd kyng Henry to rule & reigne any lenger ouer
them: To whome they with a whole voyce, aunswered, nay, nay. Then
he asked them, if they would serue, loue, & obey the erle of March
as their earthly prince & souereign lord. To which question they
aunswered, yea, yea, crieng, king Edward, with many great showtes and
clappyng of handes.... The erle, ... as kyng, rode to the church of
sainct Paule, and there offered. And after _Te deum_ song, with great
solempnitie, he was conueyed to Westmynster, and there set in the
hawle, with the scepter royall in his hand, where to all the people
which there in a great number were assembled, his title and clayme
to the croune of England, was declared by, ii. maner of ways: the
firste, as sonne and heyre to duke Richard his father, right enheritor
to the same; the second, by aucthoritie of Parliament and forfeiture
committed by, kyng Henry. Wherupon it was agayne demaunded of the
commons, if they would admitte, and take the sayd erle as their prince
and souereigne lord, which al with one voice cried, yea, yea.... On
the morow he was proclaymed kyng by the name of kyng Edward the iiij.
throughout the citie.”

This was in Lent 1461, before the battle of Towton. Edward was crowned
June 29th in the same year. The same chronicler describes the election
or acknowledgement of Richard the Third, p. 372.

(60) One special sign of the advance of the power of Parliament in the
fifteenth century was the practice of bringing in bills in the form
of Statutes ready made. Hitherto the Acts of the Commons had taken
the form of petitions, and it was sometimes found that, after the
Parliament had broken up, the petitions had been fraudulently modified.
They now brought in bills, which the King accepted or rejected as they
stood. See Hallam, Middle Ages, ii. 222.

(61) Macaulay, i. 38. “The knight of the shire was the connecting link
between the baron and the shopkeeper. On the same benches on which
sate the goldsmiths, drapers, and grocers who had been returned to
Parliament by the commercial towns, sate also members who, in any other
country, would have been called noblemen, hereditary lords of manors,
entitled to hold courts and to bear coat armour, and able to trace
back an honourable descent through many generations. Some of them were
younger sons and brothers of great lords. Others could boast even of
royal blood. At length the eldest son of an Earl of Bedford, called
in courtesy by the second title of his father, offered himself as a
candidate for a seat in the House of Commons, and his example was
followed by others. Seated in that house, the heirs of the grandees of
the realm naturally became as zealous for its privileges as any of the
humble burgesses with whom they were mingled.”

Hallam remarks (ii. 250) that it is in the reign of Edward the Fourth
that we first find borough members bearing the title of Esquire, and
he goes on to refer to the Paston Letters as showing how important
a seat in Parliament was then held, and as showing also the undue
influences which were already brought to bear upon the electors. Since
Hallam’s time, the authenticity of the Paston Letters has been called
in question, but it has, I think, been fully established. Some of the
entries are very curious indeed. In one (i. 96), without any date of
the year, the Duchess of Norfolk writes to John Paston, Esquire, to
use his influence at a county election on behalf of some creatures of
the Duke’s: “It is thought right necessarie for divers causes þͭ my
Lord have at this tyme in the p’lement suche p’sones as longe unto him
and be of his menyall S’vaunts wherin we conceyve yoͬ good will and
diligence shal be right expedient.” The persons to be thus chosen for
the convenience of the Duke are described as “our right wel-belovid
Cossin and S’vaunts John Howard and Syr Roger Chambirlayn.” This is
followed by a letter from the Earl of Oxford in 1455, much to the same
effect. In ii. 98, we have a letter addressed to the Bailiff of Maldon,
recommending the election of Sir John Paston on behalf of a certain
great lady not named. The letter is worth giving in full.

“Ryght trusty frend I comand me to yow preyĩg yow to call to yoʳ
mynd that lyek as ye and I comonyd of it were necessary for my Lady
and you all hyr Serũnts and teñnts to have thys p’lement as for
õn of the Burgeys of the towne of Maldon syche a man of worchep
and of wytt as wer towardys my seyd Lady and also syche on as is in
favor of the Kyng and of the Lords of hys consayll nyghe abought hys
p’sone. Sertyfyĩg yow that my seid Lady for her parte and syche as
be of hyr consayll be most agreeabyll that bothe ye and all syche as
be hyr fermors and teñntys and wellwyllers shold geve your voyse to a
worchepfull knyght and on’ of my Ladys consayll Sʳ John Paston whyche
standys gretly in favore wͭ my Lord Chamberleyn and what my seyd Lord
Chamberleyn may do wͭ the Kyng and wͭ all the Lordys of Inglond I
trowe it be not unknowyn to you most of eny on man alyve. Wherefor by
the meenys of the seyd Sʳ John Paston to my seyd Lord Chamberleyn
bothe my Lady and ye of the towne kowd not have a meeter man to be for
yow in the perlement to have yoʳ needys sped at all seasons. Wherefor
I prey yow labor all syche as be my Ladys serũntts tennts and
wellwyllers to geve ther voyseys to the seyd Sʳ John Paston and that
ye fayle not to sped my Ladys intent in thys mater as ye entend to do
hyr as gret a plesur as if ye gave hyr an Cˡͥ [100_l._] And God have
yow in hys kepĩg. Wretyn at Fysheley the xx day of Septebyr.—J.
ARBLASTER.”

(62) On the effects of the reign of Charles the Fifth in Spain and
his overthrow of the liberties of Castile, see the general view in
Robertson, iii. 434, though in his narrative (ii. 186) he glorifies
the King’s clemency. See also the first chapter of the sixth book
of Prescott’s Philip the Second, and on the suppression of the
constitution of Aragon by Philip, Watson, Philip the Second, iii. 223.

The last meeting of the French States-General before the final meeting
in 1789 was that in 1614, during the minority of Lewis the Thirteenth.
See Sismondi, xiii. 342.

(63) The legal character of William’s despotism I have tried to set
forth almost throughout the whole of my fourth volume. See especially
pp. 8, 617; but it is plain to everyone who has the slightest knowledge
of Domesday. Nothing can show more utter ignorance of the real
character of the man and his times than the idea of William being a
mere “rude man of war,” as I have seen him called.

(64) On the true aspect of the reign of Henry the Eighth I have said
something in the Fortnightly Review, September 1871.

(65) Both these forms of undue influence on the part of the Crown
are set forth by Hallam, Constitutional History, i. 45, ii. 203.
“It will not be pretended,” he says, “that the wretched villages,
which corruption and perjury still hardly keep from famine [this was
written before the Reform Bill, in 1827], were seats of commerce and
industry in the sixteenth century. But the county of Cornwall was more
immediately subject to a coercive influence, through the indefinite and
oppressive jurisdiction of the stannary court. Similar motives, if we
could discover the secrets of those governments, doubtless operated in
most other cases.”

In the same page the historian, speaking of the different boroughs and
counties which received the franchise in the sixteenth century, says,
“It might be possible to trace the reason, why the county of Durham was
passed over.” And he suggests, “The attachment of those northern parts
to popery seems as likely as any other.” The reason for the omission
of Durham was doubtless that the Bishoprick had not wholly lost the
character of a separate principality. It was under Charles the Second
that Durham city and county, as well as Newark, first sent members to
Parliament. Durham was enfranchised by Act of Parliament, as Chester
city and county—hitherto kept distinct as being a Palatinate—were by
34 & 35 Hen. VIII. c. 13. (Revised Statutes, i. 522.) Newark was
enfranchised by a Royal Charter, the last case of that kind of exercise
of the prerogative. Hallam, ii. 204.

(66) I do not know what was the exact state of Old Sarum in 1265 or
in 1295, but earlier in the thirteenth century it was still the chief
dwelling-place both of the Earl and of the Bishop. But in the reign
of Edward the Third it had so greatly decayed that the stones of the
Cathedral were used for the completion of the new one which had arisen
in the plain.

(67) On the relations between Queen Elizabeth and her Parliaments,
and especially for the bold bearing of the two Wentworths, Peter and
Paul, see the fifth chapter of Hallam’s Constitutional History, largely
grounded on the Journals of Sir Simonds D’Ewes. The frontispiece to
D’Ewes’ book (London, 1682) gives a lively picture of a Parliament of
those days.

(68) On the relations between the Crown and the House of Commons under
James the First, see the sixth chapter of Hallam’s Constitutional
History, and the fifth chapter of Gardner’s History of England from
1603 to 1616.


CHAPTER III.

(1) This was the famous motion made by Sir Robert Peel against the
Ministry of Lord Melbourne, and carried by a majority of one, June 4,
1841. See May’s Constitutional History, i. 158. Irving’s Annals of our
Times, 86.

(2) This of course leaves to the Ministry the power of appealing to the
country by a dissolution of Parliament; but, if the new Parliament also
declares against them, it is plain that they have nothing to do but to
resign office. In the case of 1841 Lord Melbourne dissolved Parliament,
and, on the meeting of the new Parliament, an amendment to the address
was carried by a majority of ninety-one, August 28, 1841. The Ministry
therefore resigned.

(3) This is well set forth by Sir John Fortescue, De Laudibus Legum
Angliæ, cap. 36: “Neque Rex ibidem, per se aut ministros suos,
tallegia, subsidia, aut quævis onera alia, imponit legiis suis, aut
leges eorum mutat, vel novas condit, sine concessione vel assensu
totius regni sui in parliamento suo expresso.”

(4) How very recent the establishment of these principles is will be
seen by anyone who studies the history of the reign of George the Third
in the work of Sir T. E. May. Mr. Pitt, as is well known, kept office
in defiance of repeated votes of the House of Commons, and at last, by
a dissolution at a well-chosen moment, showed that the country was on
his side. Such conduct would not be deemed constitutional now, but the
wide difference between the constitution of the House of Commons then
and now should be borne in mind.

(5) Though the command of the Sovereign would be no excuse for any
illegal act, and though the advisers of any illegal act are themselves
responsible for it, yet there would seem to be no way provided for
punishing an illegal act done by the Sovereign in his own person. The
Sovereign may therefore be said to be personally irresponsible.

(6) See Macaulay, iv. 435. It should not be forgotten that writers like
Blackstone and De Lolme say nothing about the Cabinet. Serjeant Stephen
supplies the omission, ii. 447.

(7) The lowly outward position of the really ruling assembly comes out
in some degree at the opening of every session of Parliament. But it is
far more marked in the grotesque, and probably antiquated, ceremonies
of a Conference of the two Houses. This comes out most curiously of all
in the Conference between the two Houses of the Convention in 1688. See
Macaulay, ii. 660.

(8) See Note 56, Chapter ii.

(9) See Macaulay, iv. 437.

(10) “Ministers” or “Ministry” were the words always used at the
time of the Reform Bill in 1831-1832. It would be curious to trace
at what time the present mode of speech came into vogue, either in
parliamentary debates or in common speech.

Another still later change marks a step toward the recognition of the
Cabinet. It has long been held that a Secretary of State must always
accompany the Sovereign everywhere. It is now beginning to be held that
any member of the Cabinet will do as well as a Secretary of State. But
if any member of the Cabinet, why not any Privy Councillor?

(11) In February 1854 Mr. Cayley moved for a “Select Committee to
consider the duties of the Member leading the Government business in
this House, and the expediency of attaching office and salary thereto.”
The motion was withdrawn, after being opposed by Sir Charles Wood
(now Viscount Halifax), Mr. Walpole, and Lord John Russell (now Earl
Russell). Sir Charles Wood described the post of Leader of the House
as “an office that does not exist, and the duties of which cannot be
defined.” Mr. Walpole spoke of it as a “position totally unknown to the
constitution of the country.” Yet I presume that everybody practically
knew that Lord John Russell was Leader of the House, though nobody
could give a legal definition of his position. A discussion then
followed between Mr. Walpole and Lord John Russell on the nature of
ministerial responsibility. Mr. Walpole said that “members were apt to
talk gravely of ministerial responsibility; but responsibility there is
none, except by virtue of the office that a Minister holds, or possibly
by the fact of his being a Privy Councillor. A Minister is responsible
for the acts done by him; a Privy Councillor for advice given by him in
that capacity. Until the reign of Charles the Second, Privy Councillors
always signed the advice they gave; and to this day the Cabinet is not
a body recognised by law. As a Privy Councillor, a person is under
little or no responsibility for the acts advised by him, on account of
the difficulty of proof.” Lord John Russell “asked the House to pause
before it gave assent to the constitutional doctrines laid down by Mr.
Walpole. He unduly restricted the responsibility of Ministers.” ... “I
hold,” continued Lord John, “that it is not really for the business the
Minister transacts in performing the particular duties of his office,
but it is for any advice which he has given, and which he may be
proved, before a Committee of this House, or at the bar of the House of
Lords, to have given, that he is responsible, and for which he suffers
the penalties that may ensue from impeachment.”

It is plain that both Mr. Walpole and Lord Russell were here speaking
of real legal responsibility, such responsibility as might be enforced
by impeachment or other legal process, not of the vaguer kind of
responsibility which is commonly meant when we speak of Ministers being
“responsible to the House of Commons.” This last is enforced, not by
legal process, but by such motions as that of Sir Robert Peel in 1841,
or that of the Marquess of Hartington in June 1859.

I have made my extracts from the Spectator newspaper of February 11,
1854.

(12) We read (Anglia Sacra, i. 335) of Æthelric, Bishop of the
South-Saxons at the time of the Conquest, as “vir antiquissimus et
legum terræ sapientissimus.” So Adelelm, the first Norman Abbot of
Abingdon, found much benefit from the legal knowledge of certain of his
English monks (Chronicon Monasterii de Abingdon, ii. 2), “quibus tanta
secularium facundia et præteritorum memoria eventorum inerat, ut cæteri
circumquaque facile eorum sententiam ratam fuisse, quam edicerent,
approbarent.” The writer adds, “Sed et alii plures de Anglis causidici
per id tempus in abbatia ista habebantur quorum collationi nemo sapiens
refragabatur.” But knowledge of the law was not an exclusively clerical
accomplishment; for among the grounds for the election of King Harold
himself, we find (de Inventione Sanctæ Crucis Walthamensis, p. 25,
Stubbs) that one was “quia non erat eo prudentior in terra, armis
strenuus magis, legum terræ sagacior.” See Norman Conquest, ii. 538,
iv. 366, 478.

(13) On the growth of the lawyers’ theory of the royal prerogative, and
its utter lack of historical standing-ground, I must refer once for all
to Allen’s Inquiry into the Rise and Growth of the Royal Prerogative in
England.

(14) See Norman Conquest, ii. 330.

(15) The history of this memorable revolution will be found in
Lingard, iii. 392-405, and the legal points are brought out by Hallam,
Middle Ages, ii. 214. He remarks that “In this revolution of 1399
there was as remarkable an attention shown to the formalities of the
constitution, allowance made for the men and the times, as in that
of 1688;” and, speaking of the device by which the same Parliament
was brought together again, he adds, “In this contrivance, more than
in all the rest, we may trace the hand of lawyers.” The official
version entered on the rolls of Parliament by command of Henry will
be found in Walsingham, ii. 234-238. Some care seems to be used to
avoid using the name of Parliament in the account of the actual
proceedings. It is said just before, “Rex perductus est Londonias,
conservandus in Turri usque ad Parliamentum proximo celebrandum.”
And the writs are said to have been sent “ad personas regni qui de
jure debeant interesse Parliamento.” But when they have come together
(“quibus convenientibus”) care seems to be taken to give the Assembly
no particular name, till, in the Act of Richard’s deposition, the
actors are described as “pares et proceres regni Angliæ spirituales
et temporales, et ejus regni communitates, omnes status ejusdem regni
repræsentantes;” and in the Act of Henry’s election they are described
as “domini tam spirituales quam temporales, et omnes regni status.” In
the Act of deposition Richard’s resignation of the Crown is recorded,
as well as his particular crimes and his general unfitness to wear it,
all which are classed together as reasons for his deposition. The
actual formula of deposition runs thus:—“propter præmissa, et eorum
prætextu, ab omni dignitate et honore regiis, _si quid dignitatis et
honoris hujusmodi in eo remanserit_, merito deponendum pronunciamus,
decernimus, et declaramus; et etiam simili cautela deponimus.” They
then declare the throne to be vacant (“ut constabat de præmissis,
et eorum occasione, regnum Angliæ, cum pertinentiis suis, vacare”).
Henry then makes his challenge, setting forth that strange mixture of
titles which is commented on in most narratives of the event, and the
Estates, without saying which of Henry’s arguments they accept, grant
the kingdom to him (“concesserunt unanimiter ut Dux præfatus super eos
regnaret”). A more distinct case of deposition and election can hardly
be found; only in the words which I have put in italics there seems a
sort of anxiety to complete, by the act of deposition, any possible
defect in Richard’s doubtless unwilling abdication.

The French narrative by a partisan of Richard (Lystoire de la Traison
et Mort du Roy Richart Dengleterre, p. 68) gives, in some respects, a
different account. The Assembly is called a Parliament, and the Duke
of Lancaster is made to seat himself on the throne at once. Then Sir
Thomas Percy “cria ‘Veez Henry de Lencastre Roy Dengleterre.’ Adonc
crierent tous les seigneurs prelaz et _le commun de Londres_, Ouy Ouy
nous voulons que Henry duc de Lencastre soit nostre Roy et nul autre.”
For “le commun de Londres” there are other readings, “le commun,” “le
commun Dangleterre et de Londres,” and “tout le commun et conseil de
Londres.”

(16) It should be remembered that Charles the First was not deposed,
but was executed being King. He was called King both in the indictment
at his trial and in the warrant of his beheading.

(17) Monk raised this point in 1660. See Lingard, viii. 607.

(18) Lingard (viii. 612) remarks that at this particular moment “there
was no court to influence, no interference of the military to control
the elections.” The Convention may therefore be supposed to have been
more freely elected than most Parliaments.

(19) The Long Parliament had dissolved itself, and had decreed the
election of its successor. By the Act 13 Charles II. (Revised Statutes,
i. 733) the Long Parliament is “declared and adjudged to be fully
dissolved and determined;” but it is not said when it was dissolved and
determined. See also Lingard, ix. 5; Hallam’s Constitutional History,
ii. 21, where the whole matter is discussed, and it is remarked that
“the next Parliament never gave their predecessors any other name in
the Journals than ‘the late assembly.’”

(20) See Norman Conquest, i. 365, 366.

(21) See the discussion on the famous vote of the Convention Parliament
in Hallam, Constitutional History, ii. 260-263. Macaulay, ii. 623.
Hallam remarks that “the word ‘forfeiture’ might better have answered
this purpose than ‘abdication’ or ‘desertion,’” and he adds, “they
proceeded not by the stated rules of the English government, but by
the general rights of mankind. They looked not so much to Magna Charta
as the original compact of society, and rejected Coke and Hale for
Hooker and Harrington.” My position is that there is no need to go to
what Hallam calls “higher constitutional laws” for the justification
of the doings of the Convention, but that they were fully justified
by the precedents of English History from the eighth century to the
fourteenth.

The Scottish Estates, it should be remembered, did not shrink from
using the word “forfeited.” Macaulay, iii. 285.

(22) See the Act 1 William and Mary “for removing and preventing all
Questions and Disputes concerning the Assembling and Sitting of this
Present Parliament” (Revised Statutes, ii. 1). It decrees “That the
Lords Spiritual and Temporal, and Commons convened at Westminster the
two and twentieth day of January, in the year of our Lord one thousand
six hundred eighty-eight, and there sitting on the thirteenth day of
February following, are the two Houses of Parliament, and so shall be
and are hereby declared enacted and adjudged to be to all intents,
constructions, and purposes whatsoever, notwithstanding any fault of
writ or writs of summons, or any defect of form or default whatsoever,
as if they had been summoned according to the usual form.” The whole
history of the question is given in Macaulay, iii. 27-31. The whole
matter is summed up in the words (iii. 27), “It was answered that the
royal writ was mere matter of form, and that to expose the substance
of our laws and liberties to serious hazard for the sake of a form
would be the most senseless superstition. Wherever the Sovereign, the
Peers spiritual and temporal, and the Representatives freely chosen by
the constituent bodies of the realm were met together, there was the
essence of a Parliament.” In earlier times it might perhaps have been
held that there might be the essence of a Parliament even without the
Sovereign.

(23) Macaulay, iv. 535. “A paper had been circulated, in which the
logic of a small sharp pettifogger was employed to prove that writs,
issued in the joint names of William and Mary, ceased to be of force
as soon as William reigned alone. But this paltry cavil had completely
failed. It had not even been mentioned in the Lower House, and had been
mentioned in the Upper only to be contemptuously overruled.” From my
point of view the cavil is certainly paltry, but it is hard to see that
it is more paltry than the others.

(24) This is by the Acts 7 and 8 Will. III. c. 15; 6 Anne, c. 7; and
39 Geo. III. c. 127. See Stephen’s Commentaries, ii. 380. Blackstone’s
reasoning runs thus: “This dissolution formerly happened immediately
upon the death of the reigning sovereign; for he being considered in
law as the head of the parliament (caput principium, et finis), that
failing, the whole body was held to be extinct. But the calling a new
parliament immediately on the inauguration of the successor being found
inconvenient, and dangers being apprehended from having no parliament
in being, in case of a disputed succession, it was enacted,” etc. By
the Reform Act of 1867 the whole tradition of the lawyers was swept
away.

(25) I have said something on this head in Norman Conquest, i. 94,
but the whole thing should be studied in Allen’s great section on the
Tenure of Landed Property; Royal Prerogative, 125-155. It is to Allen
that the honour belongs of showing what _bookland_ and _folkland_
really were.

(26) I have given a few examples in Norman Conquest, i. 589. Endless
examples will be found in Kemble’s Codex Diplomaticus.

(27) See the complaints on this head as late as the time of William
the Third, in Macaulay, iv. 646. On the Acts by which the power of the
Crown in this matter is restrained, see Stephen’s Commentaries, ii.
520. See also May’s Constitutional History, i. 229.

(28) See May, i. 234—248.

(29) This is discussed in full by Allen, Royal Prerogative, 143-145.
The great example is the will of King Ælfred. See Codex Diplomaticus,
ii. 112, v. 127.

(30) See May, i. 249; Allen, 154-155, who remarks: “By a singular
revolution of policy there was a recurrence in the late reign to the
ancient policy of the Anglo-Saxons. The crown lands were virtually
restored to the public, while the King obtained the right of acquiring
landed property by purchase, and of bequeathing it by will like a
private person.”

(31) Edward the First was the earliest King whose reign is dated from
a time earlier than his coronation. He was out of the kingdom at his
father’s death, and his right was acknowledged without opposition. But
even in this case there was an interregnum. The regnal years of Edward
the First are not reckoned from the day of his father’s death, but
from the day of his funeral, when Edward was acknowledged King, and
when the prelates and nobles swore allegiance to him. See the account
in the Worcester Annals, Annales Monastici, iv. 462, and the documents
in Rymer, i. part ii. 497. See also the remarks of Allen, 46, 47. The
doctrine that there can be no interregnum seems to have been put into
shape to please James the First, and it was of course altogether upset
by the great vote of 1688. Now of course there is no interregnum; not
indeed from any mysterious prerogative of the Crown, but simply because
the Act of Settlement has entailed the Crown in a particular way.

(32) On this see Norman Conquest, i. 107, 263, 625. See the same
question discussed in quite another part of the world in Herodotus,
vii. 3.

(33) The helpless way in which Blackstone himself wrote was perhaps
pardonable in the dark times in which he lived. But it is really too
bad when lawyer after lawyer, in successive editions, gives again to
the world the astounding rubbish which in Blackstone’s day passed
for early constitutional history. In Kerr’s edition of Blackstone,
published in 1857, vol. i. p. 180, I find repeated, without alteration
or comment, the monstrous assertion of Blackstone: “I believe there
is no instance wherein the Crown of England has ever been asserted to
be elective, except by the regicides at the infamous and unparalleled
trial of King Charles I.” And in Serjeant Stephen’s Commentaries
(1853), which are not a mere edition of Blackstone, but “New
Commentaries partly founded on Blackstone,” the same words are found
in vol. ii. p. 403, only leaving out the epithet “unparalleled,” which
might with truth have been allowed to stay. In another place (iv.
481-2) we read how “after the Saxon government was firmly established
in this island” came “the subdivision of the kingdom into a heptarchy,
consisting of seven independent kingdoms, peopled and governed by
different clans and colonies.” It seems then that in 1857 there
were learned gentlemen who believed in a kingdom subdivided into a
heptarchy. But when, in the next page, Blackstone tells us how Ælfred
set about “to new-model the constitution, to rebuild it on a plan that
should endure for ages,” and goes on in the usual style to attribute
everything whatever to Ælfred personally, this seems to have been too
much, and the editor gives an extract from Kemble by way of correction.
One wonders that, if he had read Kemble at all, he had not learned a
little more from him. It is amusing again when Blackstone tells us (i.
186, Kerr), “From Egbert to the death of Edmund Ironside, a period
of above two hundred years, the Crown descended regularly through a
succession of fifteen princes, without any deviation or interruption:
save only”—all the cases where it did not descend regularly, according
to Blackstone’s notions of regularity: But it is almost more amusing
when Serjeant Stephen (ii. 410) throws Blackstone’s exceptions, which
are at least historical facts, into a note, and gives us instead as
his own exceptions, the statement, very doubtful and, if true, utterly
irrelevant, that Æthelstan and Eadmund Ironside were illegitimate (see
Norman Conquest, i. 669-673). We of course get the usual talk about the
usurpations of Harold, Stephen, John, and Henry the Fourth, and about
the rights of Eadgar and Arthur of Britanny. For the former we get a
quotation from Matthew Paris, to whom it would have been more to the
purpose to go for the great speech of Archbishop Hubert. The comments
on the succession of John (i. 189, Kerr) are singularly amusing, but
too long to quote.

One point however must be mentioned. To prove the strictly hereditary
nature of the succession, Blackstone (i. 189, Kerr) quotes the Statute
of 25 Edward III. “that the law of the Crown of England is, and always
hath been, that the children of the King of England, whether born in
England or elsewhere, ought to bear the inheritance after the death of
their ancestors.” We are bound to suppose that these learned lawyers
had read through the statute which they quoted; but it is wonderful
that they did not see that it had nothing whatever to do with fixing
the hereditary succession of the Crown. The original text (Revised
Statutes, i. 176) runs thus:—

“La lei de la Corone Dengleterre est, et ad este touz jours tiele,
que les enfantz des Rois Dengleterre, _queu part qils soient neez en
Engleterre ou aillors_, sont ables et deivent porter heritage, apres la
mort lour auncestors.”

The object of the statute is something quite different from what any
one would think from Blackstone’s way of quoting it. The emphatic words
are those which are put in italics. The object of the statute is to
make the King’s children and others born of English parents beyond sea
capable of inheriting in England. As far as the succession to the Crown
is concerned, its effect is simply to put a child of the King born out
of the realm on a level with his brother born in the realm; that is,
in the view of our older Law, to give both alike the preference due to
an Ætheling.

(34) It is as well to explain this, because most people seem to think
that a man becomes a Bishop by virtue of receiving a private letter
from the First Lord of the Treasury. We constantly see a man spoken of
as Bishop of such a see, and his works advertised as such, before a
single ecclesiastical or legal step has been taken to make him so.

(35) See Norman Conquest, iii. 44, 623.

(36) The succession of a grandson, which first took place in England in
the case of Richard the Second, marks a distinct stage in the growth
of the doctrine of hereditary right. It involves the doctrine of
representation, which is a very subtle and technical one, and is not
nearly so obvious or so likely to occur in an early state of society
as the doctrine of nearness of kin. No opposition was made to the
accession of Richard the Second, but there seems to have been a strong
notion in men’s minds that John of Gaunt sought to displace his nephew.
In earlier times, as the eldest and most eminent of the surviving sons
of Edward the Third, John would probably have been elected without any
thought of the claims of young Richard.

(37) In Yorkist official language the three Lancastrian Kings were
usurpers, and Duke Richard was _de jure_, though not _de facto_, King.
Henry the Sixth is, in the Act of 1461, “Henry Usurpour, late called
Kyng Henry the sixt.” The claim of the House of York was through an
intricate female descent from Lionel Duke of Clarence, a son of Edward
the Third older than John of Gaunt. A claim so purely technical had
never been set forth before; but we may be quite sure that it would not
have been thought to have much weight, if Duke Richard had not been, by
another branch, descended from Edward the Third in the male line, and
if he had not moreover been the ablest and most popular nobleman in the
country.

(38) A prospective election before the vacancy of course hindered
any interregnum. In this case the formula “Le Roi est mort; vive le
Roi,” was perfectly true. The new King was already chosen and crowned,
and he had nothing to do but to go on reigning singly instead of in
partnership with his father, just as William went on reigning alone
after the death of Mary. In Germany this took place whenever a King
of the Romans was chosen in the lifetime of the reigning Emperor. In
France, under the early Kings of the Parisian dynasty, the practice
was specially common, and the fact that there seldom or never was an
interregnum doubtless helped much to make the French Crown become, as
it did, the most strictly hereditary crown in Christendom. In England,
the only distinct case of a coronation of a son during the lifetime of
his father was that of Henry, the son of Henry the Second, known as the
younger King, and sometimes as Henry the Third. In earlier times we get
something like it in the settlement of the Crown by Æthelwulf, with the
consent of his Witan (see Old-English History, 105, 106), but it does
not seem clear whether there was in this case any actual coronation
during the father’s lifetime. If there was not, this would be the case
most like that of Duke Richard. The compromise placed the Duke in the
same position as if he had been Prince of Wales, or rather in a better
position, for it might be held to shut out the need of even a formal
election on the King’s death.

(39) See note 59 on Chapter II.

(40) See Norman Conquest, iii. 623.

(41) See Hallam’s Constitutional History, i. 8. It is to be noticed
that the settlement enacts that “the inheritance of the Crown, &c.,
should remain in Henry the Seventh and the heirs of his body for ever,
and in none other.” This would seem to bar a great number of contingent
claims in various descendants of earlier Kings. As it happens, this Act
has been literally carried out, for every later Sovereign of England
has been a descendant of the body of Henry the Seventh.

(42) The will of Henry the Eighth is fully discussed by Hallam, i. 34,
288, 294; Lingard, vi. 213. There are two Acts of Henry’s reign bearing
on the matter. In the earlier one, 28 Henry VIII. c. 7, the Crown is
entailed on the King’s sons by Jane Seymour or any other wife; then
on the King’s legitimate daughters, no names being mentioned; the Act
then goes on to say, “your Highnes shall have full and plenar power
and auctorite to geve despose appoynte assigne declare and lymytt by
your letters patentes under your great seale or ells by your laste Will
made in wrytynge and signed with your moste gracious hande, at your
onely pleasure from tyme to tyme herafter, the imperiall Crowne of this
Realme and all other the premisses thereunto belongyng, to be remayne
succede and come after your decease and for lack of lawfull heires of
your body to be procreated and begoten as is afore lymytted by this
Acte, to such person or persones in possession and remaynder as shall
please your Highnes and according to such estate and after such maner
forme facion ordre and condicion as shalbe expressed declared named and
lymytted in your said letters patentes or by your said laste will.”
The later Act, 35 Henry VIII. c. 1, puts Henry’s two daughters, Mary
and Elizabeth, into the entail, but in a very remarkable way. The Acts
declaring their illegitimacy are not repealed, nor is the legitimacy of
either of them in any way asserted; in fact it is rather denied when
the preamble rehearses that “The king’s Majesty hath only issue of his
body lawfully begotten betwixt his Highness and his said late wife
Queen Jane the noble and excellent Prince Edward.” The Act then goes
on to enact that, although the King had been enabled to “dispose” the
Crown “to any person or persons of such estate therein as should please
his Highness to limit and appoint,” yet that, in failure of heirs of
the body of either the King or his son, “the said imperial Crown and
all other the premises shall be to the Lady Mary the King’s Highness
daughter, and to the heirs of the body of the same Lady Mary lawfully
begotten, with such conditions as by his Highness shall be limited by
his letters patents under his great seal, or by his Majesty’s last will
in writing signed with his gracious hand.” Failing Mary and her issue,
the same conditional entail is extended to Elizabeth and her issue. The
power of creating a remainder after the issue of Elizabeth of course
remained with Henry, and he exercised it in favour of the issue of his
younger sister Mary. Mary and Elizabeth therefore really reigned, not
by virtue of any royal descent, but by virtue of a particular entail by
which the Crown was settled on the King’s illegitimate daughters, as it
might have been settled on a perfect stranger. It was an attempt on the
part of Edward the Sixth to do without parliamentary authority what his
father had done by parliamentary authority which led to the momentary
occupation of the throne by Lady Jane Grey. Mary, on her accession,
raked up the whole story of her mother’s marriage and divorce, and the
Act of the first year of her reign recognized her as inheriting by
legitimate succession. The Act passed on the accession of Elizabeth,
1 Eliz. c. 3, is much vaguer. It enacts “that your majestie our sayd
Sovereigne Ladye ys and in verye dede and of most meere right ought
to bee by the Lawes of God and the Lawes and Statutes of this Realme
our most rightfull and lawfull Sovereigne liege Ladie and Quene; and
that your Highness ys rightlye lynyallye and lawfully discended and
come of the bloodd royall of this Realme of Englande in and to whose
princely person and theires of your bodye lawfully to bee begotten
after youe without all doubte ambiguitee scruple or question the
imperiall and Royall estate place crowne and dignitie of this Reallme
withe all honnours stiles titles dignities Regalities Jurisdiccons and
preheminences to the same nowe belonging & apperteyning arre & shalbee
most fully rightfully really & entierly invested & incorporated united
& annexed as rightfully & lawfully to all intentes construccons &
purposes as the same were in the said late Henrye theight or in the
late King Edwarde the Syxte your Highnes Brother, or in the late Quen
Marye your Highnes syster at anye tyme since thacte of parliament made
in the xxxvth yere of the reigne of your said most noble father king
Henrye theight.”

It should be remembered that Sir Thomas More, though he refused to
swear to the preamble of the oath prescribed by the Act of Supremacy,
was ready to swear to the order of succession which entailed the Crown
on the issue of Anne Boleyn. On his principles the issue of Anne Boleyn
would be illegitimate; but he also held that Parliament could settle
the Crown upon anybody, on an illegitimate child of the King or on an
utter stranger; to the succession therefore he had no objection to
swear.

For a parallel to the extraordinary power thus granted to Henry we have
to go back to the days of Æthelwulf.

(43) The position of the daughters of Henry the Eighth was of course
practically affected by the fact that each was the child of a mother
who was acknowledged as a lawful wife at the time of her daughter’s
birth. There was manifest harshness in ranking children so born with
ordinary illegitimate children; but, in strictness of Law, as Henry
married Anne Boleyn while Katharine of Aragon was alive, the daughter
of Katharine and the daughter of Anne could not both be legitimate.
The question was, which marriage was lawful. It should also be
remembered that the marriage of Anne Boleyn was declared void, and her
daughter declared illegitimate, on grounds—whatever they were—which had
nothing to do with the earlier question of the marriage and divorce of
Katharine.

(44) See Hallam, i. 129; Lingard, vi. 239, 243. The Act 13 Elizabeth,
c. 1, declares it to be treason “yf any person shall in any wyse holde
and affyrme or mayntayne that the Common Lawes of this Realme not
altred by Parlyament, ought not to dyrecte the Ryght of the crowne
of England, or that our said sovrayne Ladye Elizabeth the Quenes
Majestie that nowe is, with and by the aucthoritye of the Parlyament
of Englande is not able to make Lawes and Statutes of suffycyent force
and valyditie to lymit and bynd the Crowne of this Realme, and the
Descent Lymitacion Inheritaunce and Government thereof.” The like is
the crime of “whosoever shall hereafter duryng the Lyef of our said
Soveraigne Ladye, by any Booke or Worke prynted or written, dyrectly
and expresly declare and affyrme at any tyme before the same be by Acte
of Parlyament of this Realme established and affyrmed, that any one
particular person whosover it be, is or ought to be the ryght Heire
and Successor to the Queenes Majestie that nowe is (whome God longe
preserve) except the same be the naturall yssue of her Majesties bodye.”

This statute may possibly be taken as setting aside the claims of the
House of Suffolk; but, if so, it sets aside the claims of the House of
Stewart along with them.

(45) James’s right was acknowledged by his own first Parliament, just
as the claims of other Kings who entered in an irregular way had
been. It should be marked however that he was crowned before he was
acknowledged. The Act 1 Jac. I. c. 1, declares that “immediatelie upon
the Dissolution and Decease of Elizabeth late Queene of England, the
Imperiall Crowne of the Realme of England, and of all the Kingdomes
Dominions and Rights belonging to the same, did by inherent Birthright
and lawfull undoubted Succession, descend and come to your moste
excellent Majestie, as beinge lineallie justly and lawfullie next and
sole Heire of the Blood Royall of this Realme as is aforesaid.” It is
worth noticing that in this Act we get the following definition of
Parliament; “this high Court of Parliament, where all the whole Body of
the Realm and every particular member thereof, either in Person or by
Representation (upon their own free elections), are by the Laws of this
Realm deemed to be personally present.”

(46) The fact that James the First, a King who came in with no title
whatever but what was given him by an Act of Parliament passed after
his coronation, was acknowledged without the faintest opposition is
one of the most remarkable things in our history. Hallam (i. 294)
remarks that “there is much reason to believe that the consciousness of
this defect in his parliamentary title put James on magnifying, still
more than from his natural temper he was prone to do, the inherent
rights of primogenitory succession, as something indefeasible by the
legislature; a doctrine which, however it might suit the schools of
divinity, was in diametrical opposition to our statutes.” Certainly no
opposition can be more strongly marked than that between the language
of James’s own Parliament and the words quoted above from 13 Eliz. c.
1. But see the remarks of Hallam a few pages before (i. 288) on the
kind of tacit election by which it might be said that James reigned.
“What renders it absurd to call him and his children usurpers? He had
that which the flatterers of his family most affected to disdain—the
will of the people; not certainly expressed in regular suffrage or
declared election, but unanimously and voluntarily ratifying that which
in itself could surely give no right, the determination of the late
Queen’s Council to proclaim his accession to the throne.”

(47) Whitelocke’s Memorials, 367. “The heads of the charge against the
King were published by leave, in this form: That Charles Stuart, being
admitted King of England, & therein trusted with a limited power, to
govern by, & according to the Laws of the Land, & not otherwise, &
by his trust being obliged, as also by his Oath, & office to use the
power committed to him, for the good & benefit of the people, & for the
preservation of their Rights and Privileges,” etc.

At an earlier stage (365) the President had told the King that the
Court “sat here by the Authority of the Commons of England: & all your
predecessours, & you are responsible to them.” The King answered “I
deny that, shew me one Precedent.” The President, instead of quoting
the precedents which were at least plausible, told the prisoner that
he was not to interrupt the Court. Earlier still the King had objected
to the authority of the Court that “he saw no Lords there which should
make a Parliament, including the King, & urged that the Kingdom
of England was hereditary, & not successive.” The strong point of
Charles’s argument undoubtedly was the want of concurrence on the part
of the Lords. Both Houses of Parliament had agreed in the proceedings
against Edward the Second and Richard the Second.

It is a small point, but it is well to notice that the description of
the King as Charles Stewart was perfectly accurate. Charles, the son
of James, the son of Henry Stewart Lord Darnley, really had a surname,
though it might not be according to Court etiquette to call him by
it. The helpless French imitators in 1793 summoned their King by the
name of “Louis Capet,” as if Charles had been summoned by the name of
“Unready,” “Bastard,” “Lackland,” “Longshanks,” or any other nickname
of an earlier King and forefather.

I believe that many people fancy that Guelph or Welf is a surname of
the present, or rather late, royal family.

(48) The Act 1 William and Mary (Revised Statutes, ii. 11) entailed the
Crown “after their deceases,” “to the heires of the body of the said
princesse & for default of such issue to the Princesse Anne of Denmarke
& the heires of her body & for default of such issue to the heires of
the body of the said Prince of Orange.” It was only after the death of
“the most hopeful Prince William Duke of Gloucester” that the Crown
was settled (12 and 13 Will. III. c. 2; Revised Statutes, ii. 94) on
“the most excellent Princess Sophia Electress and Dutchess Dowager of
Hannover, daughter of the most excellent Princess Elizabeth, late Queen
of Bohemia, daughter of our late sovereign lord King James the First of
happy memory,” “and the heirs of her body being protestants.”

(49) We hardly need assurance of the fact, but if it were needed,
something like an assurance to that effect was given by an official
member of the House during the session of 1872. At all events we
read in Sir T. E. May (ii. 83); “The increased power of the House
of Commons, under an improved representation, has been patent and
indisputable. Responsible to the people, it has, at the same time,
wielded the people’s strength. No longer subservient to the crown, the
ministers, and the peerage, it has become the predominant authority
in the state.” But the following strange remark follows: “But it is
characteristic of the British constitution, and _a proof of its
freedom from the spirit of democracy_, that the more dominant the power
of the House of Commons,—the greater has been its respect for the law,
and the more carefully have its acts been restrained within the proper
limits of its own jurisdiction.”

  ὦ δημοκρατία, ταῦτα δῆτ' ἀνασχετά;

Has Mr. Grote lived and written so utterly in vain that a writer widely
indeed removed from the vulgar herd of oligarchic babblers looks on
“the spirit of democracy” as something inconsistent with “respect for
the law”?

(50) The story is told (Plutarch, Lycurgus, 7), that King Theopompos,
having submitted to the lessening of the kingly power by that of the
Ephors, was rebuked by his wife, because the power which he handed on
to those who came after him would be less than what he had received
from those who went before him. ὃν καί φασιν ὑπὸ τῆς ἑαυτοῦ γυναικὸς
ὀνειδιζόμενον ὡς ἐλάττω παραδώσοντα τοῖς παισὶ τὴν βασιλείαν, ἢ
παρέλαβε, μείζω μὲν οὖν, εἰπεῖν, ὅσῳ χρονιωτέραν· τῷ γὰρ ὄντι τὸ
ἄγαν ἀποβαλοῦσα μετὰ τοῦ φθόνου διέφυγε τὸν κίνδυνον. Aristotle also
(Pol. v. 11) tells the story to the same effect, bringing it in with
the comment, ὅσῳ γὰρ ἂν ἐλαττόνων ὦσι κύριοι, πλείω χρόνον ἀναγκαῖον
μένειν πᾶσαν τὴν ἀρχήν· αὐτοί τε γὰρ ἧττον γίνονται δεσποτικοὶ καὶ
τοῖς ἤθεσιν ἴσοι μᾶλλον, καὶ ὑπὸ τῶν ἀρχομένων φθονοῦνται ἧττον.
διὰ γὰρ τοῦτο καὶ ἡ περὶ Μολοττοὺς πολὺν χρόνον βασιλεία διέμεινεν,
καὶ ἡ Λακεδαιμονίων διὰ τὸ ἐξ ἀρχῆς τε εἰς δύο μέρη διαιρεθῆναι τὴν
ἀρχήν, καὶ πάλιν Θεοπόμπου μετριάσαντος τοῖς τε ἄλλοις καὶ τὴν τῶν
ἐφόρων ἀρχὴν ἐπικαταστήσαντος· τῆς γὰρ δυνάμεως ἀφελὼν ηὔξησε τῷ χρόνῳ
τὴν βασιλείαν, ὥστε τρόπον τινὰ ἐποίησεν οὐκ ἐλάττονα ἀλλὰ μείζονα
αὐτήν. The kingdom of the Molossians, referred to in the extract from
Aristotle, is one of those states of antiquity of which we should
be well pleased to hear more. Like the Macedonian kingdom, it was an
instance of the heroic kingship surviving into the historical ages of
Greece. But the Molossian kingship seems to have been more regular and
popular than that of Macedonia, and to have better deserved the name
of a constitutional monarchy. The Molossian people and the Molossian
King exchanged oaths not unlike those of the Landesgemeinde and the
Landammann of Appenzell-Ausserrhoden, the King swearing to rule
according to the laws, and the people swearing to maintain the kingdom
according to the laws. In the end the kingdom changed into a Federal
Republic. See History of Federal Government, i. 151.

(51) It is simply frivolous in the present state of England to discuss
the comparative merits of commonwealths and constitutional monarchies
with any practical object. Constitutional monarchy is not only firmly
fixed in the hearts of the people, but it has some distinct advantages
over republican forms of government, just as republican forms of
government have some advantages over it. It may be doubted whether
the people have not a more real control over the Executive, when the
House of Commons, or, in the last resort, the people itself in the
polling-booths (as in 1868), can displace a Government at any moment,
than they have in constitutions in which an Executive, however much
it may have disappointed the hopes of those who chose it, cannot be
removed before the end of its term of office, except on the legal
proof of some definite crime. But in itself, there really seems no
reason why the form of the Executive Government should not be held
to be as lawful a subject for discussion as the House of Lords, the
Established Church, the standing army, or anything else. It shows
simple ignorance, if it does not show something worse, when the word
“republican” is used as synonymous with cut-throat or pickpocket. I do
not find that in republican countries this kind of language is applied
to the admirers of monarchy; but the people who talk in this way are
just those who have no knowledge of republics either in past history or
in present times. They may very likely have climbed a Swiss mountain,
but they have taken care not to ask what was the constitution of the
country at its foot. They may even have learned to write Greek iambics
and to discuss Greek particles; but they have learned nothing from
the treasures of wisdom taught by Grecian history from Herodotus to
Polybios.

I have discussed the three chief forms of executive government, the
constitutional King and his Ministry, the President, and the Executive
Council, in the last of my first series of Historical Essays.

(52) Iliad, i. 250:—

  τῷ δ' ἤδη δύο μὲν γενεαὶ μερόπων ἀνθρώπων
  ἐφθίαθ', οἵ οἱ πρόσθεν ἅμα τράφεν ἠδ' ἐγένοντο
  ἐν Πύλῳ ἠγαθέῃ, μετὰ δὲ τριτάτοισιν ἄνασσεν.


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