The growth of the English constitution from the earliest times

THE

n

THE LIBRARY

OF
THE UNIVERSITY

OF CALIFORNIA
RIVERSIDE

THE GROWTH

OF

THE ENGLISH CONSTITUTION

FROM THE EARLIEST TIMES.

THE GROWTH

OF THE

ENGLISH CONSTITUTION

FROM THE EARLIEST TIMES.

BY

EDWARD AVFREEMAN, M.A., HON. D.C.L.,
w

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, qiias vulgns 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 sci uur.'

POLITICAL POEM, XIII. Cent.

SECOND EDITION.

MACMILLAN AND CO.
1873-

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

vi PREFACE TO THE

be cut very short in delivery, so as to make a
third Chapter, and I added such notes and refer-
ences 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

FIRST EDITION. iiv

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 Eng-
lish 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 narra-
tive 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

PREFACE TO THE

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-

FIRST EDITION.

Book which begins at no point later than the
Dooms of ^Ethelberht.

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, be-
cause 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 docu-
ments 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 them-
selves, 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 memo-
rable example is to be found in the assertion of

x PREFACE TO FIRST EDITION.

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 demo-
cratic 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 — de-
scription 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 — immemo-
rial 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 increas'e of the King's terri-
tory— 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 mien — the Comitatus
as described by Tacitus — poem on^.the Battle of Maldon —
contrast of Roman and Teutonic feeling as to personal service —

CONTENTS.

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 sup-
plant the Earls — effects of the change — change confirmed by
the Norman Conquest Pp. i — 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 Assem-
blies— constitution of the Witenagemot — the Witenagemot con-
tinued in the House of Lords — Gemots after the Norman Con-
quest— 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 Normau 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 he First — the Constitution finally completed under
him — nature of later changes — difference between English and

CONTENTS.

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 fif-
teenth 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 tree institutions in Europe — their preserva-
tion 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 — enfran-
chisement of corrupt boroughs — Parliament under Elizabeth —
James the First — Charles the First— nature of later changes.

Pp. 56 — no

CHAPTER III.

Character of later constitutional developements — greater importance
of silent changes — growth of the unwritten Constitution as dis-
tinguished from the written Law — Sir Robert Peel's vote o
want of confidence — its bearings — the growth of the Constitu-
tion implies the firm establishment of the Law — relations be-
tween 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 infer-
ence from the doctrine about the King's writ — contrast with
Old-English constitutional doctrines — doubts and difficulties

CONTENTS.

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 Parlia-
ment— 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 Parlia-
ment— 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 — reason-
ableness of this legislation — case of the Falkland 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 succes-
sion by lawyers — twofold election of the King — his ecclesias-
tical coronation — the ecclesiastical election survives the civil
— state of the succession in the fourteenth and fifteenth cen-
turies— 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. in — 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 life-
time, 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

E

2 THE GROWTH OF [CHAP.

their primaeval freshness. He .is in a land where an
immerhcniT 'ffe'edorii, :a,tr,cedpm 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 entrust-
ing its rights to a few of its own number, but
discharging them itself in the majesty of its cor-
porate 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 (x). 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

I.] THE ENGLISH CONSTITUTION. 3

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 common-
wealth, 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 kneel-
ing, 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 meet-
ing at Bozlingen. 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 (a). Over their heads floats the banner, the
B 2

4 THE GROWTH OF [CHAP.

bull's head of Uri, the ensign which led men to
victory on the fields of Sempach and Morgar-
ten. 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 ma-
gistrates 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

I.] THE ENGLISH CONSTITUTION. 5

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 demo-
cratic 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 Perikles and the reac-
tionary Phokion (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 constitu-
tional, 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 re-

6 THE GROWTH OF [CHAP.

election is the rule ; the rejection of the out-going
magistrate is the rare exception (6). The Landam-
mann 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 pf
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 common-
wealths (8), to pass from Uri to Appenzell, from
the green meadows of Bozlingen 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 popu-
lation of the Outer Rhodes of Appenzell. But the
stamp of antiquity, the stamp of immemorial free-
dom, 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

I.] THE ENGLISH CONSTITUTION. 7

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 com-
mands 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

8 THE GROWTH OF [CHAP.

whose political and social state is so widely dif-
ferent 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 tra-
dition sets before us. In the institutions of Uri
and Appenzell, and in others of the Swiss Cantons
which have never departed from the primaeval
model, we may see the institutions of our own
forefathers, the institutions which were once com-
mon 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

I.] THE ENGLISH CONSTITUTION. 9

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 consti-
tution which comes prominently into sight The
commonwealth of Uri, by the peculiar circum-
stances 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 (I0). The Landesge-
meinden 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 insti-
tutions, the local divisions are not simply adminis-
trative 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

io THE GROWTH OF [CHAP.

than England ("). 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 Switzer-
land in the Gemeinde or Commune ; in England —
smile not while I say it — in the parish vestry (").

The primitive Teutonic constitution, the consti-
tution 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

I.] THE ENGLISH CONSTITUTION. 1 1

Perikles,' 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 defini-
tion of Perikles ; it is not a government of the
whole but only of a part ; it is not a democracy
but an oligarchy (I4). Democracy, in the sense of
Perikles, 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 exist-
ence 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 mon-
archic, an aristocratic, and a democratic element,
the three being wrought together in such true and
harmonious proportion that wre could enjoy the
good side of all the three great forms of govern-
ment 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

12 THE GROWTH OF [CHAP.

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 (IS). 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 circum-
stances of most European countries, partly through
the growth of humanity and civilization, the hate-
ful 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 (l6). But I
mention the existence of slavery only that we may
remember that when we speak of freedom, free-
man, 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 Teu-
tonic communities, there was always a large mass

I.] THE ENGLISH CONSTITUTION, 13

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 sup-
plied 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

14 THE GROWTH OF [CHAP.

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 ('7). 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 civiliza-
tion. 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
Ithake, and even among the Gods on Olympos.
Zeus is the King of all ; but he has around him

I.] THE ENGLISH CONSTITUTION. 15

his Council pf 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 (l8). 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, Agamemnon 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 speak-
ing his mind as to the proposals of his chiefs, by
loud applause or by emphatic silence ('9). 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

16 THE GROWTH OF [CHAP.

of more peaceful life which we find in the Odys-
sey as being no less the constitution of every
Hellenic commonwealth on its own soil. Every-
where 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 (so). 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 (2I). 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 institu-
tions 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

I.] THE ENGLISH CONSTITUTION. 17

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 lead-
ing 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 elo-
quence, is listened to, speaking rather by the in-
fluence of persuasion than by the power of com-
manding. 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

C

1 8 THE GROWTH OF [CHAP.

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 com-
mons 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 common-
wealth 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 con-
stitution, 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

i.J THE ENGLISH CONSTITUTION. 19

way into the Isle of Britain. And that constitu-'
tion, 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 Teu-
tonic 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, notwith-
standing 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
C 2

20 THE GROWTH OF [CHAP.

•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 perma-
nently 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 com-
monly 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 (2S) ; let

I.] THE ENGLISH CONSTITUTION. 21

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 improve-
ments 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 circum-
stance, 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 fall-
ing back on a more ancient state of things ; we
have reformed by calling to life again the institu-
tions of earlier and ruder times, by setting ourselves
free from the slavish subtleties of Norman lawyers,
by casting aside as an accursed thing the innova-
tions of Tudor tyranny and Stewart usurpation.

22 THE GROWTH OF [CHAP.

I have said that the primaeval Teutonic consti-
tution 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 rny 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.] THE ENGLISH CONSTITUTION. 23

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 co-ordinate
element, but a mere infusion into our Teutonic
essence ; in a word I will assume that English-
men 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.

24 THE GROWTH OF [CHAP,

Our fathers then came into Britain, and they
brought with them the same primaeval 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. Especi-
ally, 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 (2?). 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 cir-
cumstances of the Conquest did something to raise
the position both of the common freeman and of
the King or leader, as compared with the inter-
mediate 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

I.] THE ENGLISH CONSTITUTION. 25

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 strong-
est 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 con-
quest, 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

26 THE GROWTH OF [CHAP.

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 bis 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(^~}, 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 prin-
ciple, 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

I.] THE ENGLISH CONSTITUTION. 27

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 (2?). 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 re-
moved 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 consti-

28 THE GROWTH OF [CHAP.

tution 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 ex-
pense 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 magis-
trate, 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

I.] THE ENGLISH CONSTITUTION, 29

generations back would have cut off his head, — they
despised any such secondary victims, and offered
the King himself in sacrifice to the Gods (3°). Such
a practice certainly implies that our Scandinavian
kinsfolk had not reached that constitutional sub-
tlety according to which the responsibility of all
the acts of the Sovereign is transferred to some
one else. They clearly did not, like modern con-
stitution-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 pre-
cedent— we read that the ancient Egyptians fore-
stalled 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 (3I). These may seem two exactly
opposite ways of treating a King ; but the practice
of sacrificing the King, and the practice of treating

30 THE GROWTH OF [CHAP.

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 every-
body 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 cere-
monies ; the chosen of the people became also the
Anointed of the Lord. The distinction between
Kings and rulers of any other kind is strictly im-
memorial ; it is as old as anything that we know
of the political institutions of our race. The dis-
tinction 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

I.] THE ENGLISH CONSTITUTION. 31

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 king-
ship 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 Here-

32 THE GROWTH OF [CHAP.

toga 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

I.] THE ENGLISH CONSTITUTION. 33

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 generosns 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 Theo*
den comes from Thiuda or Theod, also meaning
people, a word which you will recognize in many
of the old Teutonic names, Theodnc, 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

D

34 THE GROWTH OF [CHAP.

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 ^Esc 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 them-
selves 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

I.] THE ENGLISH CONSTITUTION. 35

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 imme-
diately 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 inva-
sions 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 (-»°). 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 (*'). 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 govern-
ment, and to have again set up a rule of inde-
pendent Dukes. So the West-Saxons in our own
D 2

36 THE GROWTH OF [CHAP.

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 Ealdor-
men («2). 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 Ealdor-
man 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 Teuto-
nic 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,

I.] THE ENGLISH CONSTITUTION. 37

smaller Kings or independent Ealdormen admitted
the supremacy of a more powerful King. Them
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 inde-
pendent 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 incor-
poration 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

38 THE GROWTH OF [CHAP.

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 power-
fully to increase the vague reverence which every-
where 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 («). 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 mili-
tary 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

I.] THE ENGLISH CONSTITUTION. 39

practical authority may be transferred to his repre-
sentatives 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 (*5). 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 autho-
rity 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

40 THE GROWTH OF [CHAP.

despot ; men never forgot that the King was what
his name implied, the representative, the impersona-
tion, 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 (*?). 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 (f]. 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 betaken — 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,

I.] THE ENGLISH CONSTITUTION. 41

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 pro-
cess 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 (5°). 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 sub-
jects, 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

42 THE GROWTH OF [CHAP.

but his men. These names may need some ex-
planation, 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 As-
sembly, 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 (SI).

" 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 shame-
ful 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

I.] THE ENGLISH CONSTITUTION. 43

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 his-
torian 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
Hrihtnoth against the invading Northmen. The
Kaldorman 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 (s2).

" Thereon hewed him
The heathen soldiers ;
And both the warriors
That near him by-stood,
yElfnoth and Wulfmasr 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

44 THE GROWTH OF [CHAP.

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,
vEthelred'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."

I.] THE ENGLISH CONSTITUTION. 45

Then another speaks in answer ;

" How thou, ^Elfwine, 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

46 THE GROWTH OF [CHAP.

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

I.] THE ENGLISH CONSTITUTION. 47

the Germans not thought shameful. This was the
natural feeling of a Roman. The duty of a Ro-
man 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 (5+). 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 (S5). 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

48 THE GROWTH OF [CHAP.

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 prin-
ciple, 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 impor-
tant 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 him-
self (s6). 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

l.> THE ENGLISH CONSTITUTION. 49

Hlaford, implies the rewards which the lord be-
stowed 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 (H). 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 what-
ever 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 con-
dition of future service. Moreover the custom of
granting out lands to be held by the tenure of mili-
tary service had become common in the later days
of Roman power (s8). 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

E

50 THE GROWTH OF [CHAP.

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 Eng-
land 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 affect-

i.] THE ENGLISH CONSTITUTION. 51

ing 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 any-
thing 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 T/iegns, which gradually sup-
planted 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 comi-
tatus, became the badge and standard of nobility (6o).
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,

E 2

52 THE GROWTH OF [CHAP.

answering exactly to the Latin Comes used by Taci-
tus, was supplanted by the name Thegn, literally
servant^]. But when personal service was deemed
honourable, the name of servant was no degrada-
tion, 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 fore-
fathers ; 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

I.] THE ENGLISH CONSTITUTION. 53

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 over-
throw, that lasting new birth, will be the subject
of my second chapter. 1 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 Witenagem6t, Great Council,
or Parliament, there has always been some body

J4 THE GROWTH OF [CHAP.

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

I.] THE ENGLISH CONSTITUTION. 55

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.

56 THE GROWTH OF

CHAPTER II.

IN my first chapter I dealt mainly with those
political institutions of the earliest times — institu-
tions 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.

II.] THE ENGLISH CONSTITUTION. 57

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 (').
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 ground-work 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 pro-
gressive— conservative because progressive, pro-
gressive because conservative. They have been the
application of ancient principles to new circum-
stances ; they have been the careful repairs of an

58 THE GROWTH OF [CHAP.

old building, not the pulling down of an old build-
ing 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 re-
sistance, 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 legis-
lation have been, wittingly or unwittingly, a falling
back on the principles of our earliest times.

n.] THE ENGLISH CONSTITUTION. 59

In my first chapter I tried to show how our
fathers brought with them into the Isle of Britain
those primaeval 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 fol-
lowed 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 rela-
tion 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 exer-
cises 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 prac-
tical value, and causes the actual powers of govern-
ment to be shut up in the hands of a smaller body.

60 THE GROWTH OF [CHAP.

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 Witenagemot 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 (s). 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 Eadvvard
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

II.] THE ENGLISH CONSTITUTION. 61

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 temp-
tation, 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

62 THE GROWTH OF [CHAP.

aristocratic body, sometimes in language which
would imply a body highly democratic. It was in
fact a body, democratic in ancient theory, aristo-
cratic in ordinary practice, but to which any strong
popular impulse could at any time restore its
ancient democratic character (e). 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 Parlia-
ment directly grew. Of one House of that Parlia-
ment 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 Witenagemot. I can see no break
between the two. King William summoned his
Witan as King Eadward had summoned them be-
fore him. In one memorable assembly of the Con-
queror's reign, we read that the great men of the

II.] THE ENGLISH CONSTITUTION. 63

realm were reinforced by the presence of the whole
body of the landholders of England, whose number
tradition handed down as sixty thousand (?). But,
as a rule, the Great Councils after the Norman
Conquest bear the same uncertain and fluctuating
character as the Gemots 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, qpd that those who were

64 THE GROWTH OF CHAP.

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 (I0). That
the personal summons conveyed an exclusive here-
ditary 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 Witenage-
m6t. An assembly in which at first every freeman
had a right to appear has, by the force of circum-
stances, step by step, without any one moment of

II.] THE ENGLISH CONSTITUTION. 65

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 Con-
quest, 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 fore-
fathers 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.

F

66 THE GROWTH OF [CHAP.

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, institu-
tions 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 destroy-
ing. 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 ("). Englishmen in the
fourteenth and fifteenth centuries had no theories

ii.] THE ENGLISH CONSTITUTION. 67

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 (I2). Therefore French institu-
tions 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 cha-
racter 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 (J3). 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

F 2.

68 THE GROWTH OF [CHAP.

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 sub-
stance. 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 un-
broken.

But I would again point out that, while the
growth of English institutious 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 Eng-

ii.] THE ENGLISH CONSTITUTION. 69

lish 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 (I+), 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 Eng-
land 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 (J5). 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

70 THE GROWTH OF [CHAP.

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
sware 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 momen-
tary 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 (l6). And so
it does while that righteous King himself tarries
among men. But to win freedom as an heritage

II.] THE ENGLISH CONSTITUTION. 71

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 Alfred 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 (I7).

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

72 THE GROWTH OF [CHAP.

Conqueror. But it was not in the character of a legis-
lator 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 legis-
lative 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 (l8J. The great immediate change which
was wrought under him was not any formal legisla-
tive 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

II.] THE ENGLISH CONSTITUTION. 73

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

74 THE GROWTH OF [CHAP.

North and East of England (^). 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 Nor-

o *

man 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 (2I). 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

II.] THE ENGLISH CONSTITUTION. 75

on the whole the righteous, sway of the great
Henry the worst side of this state of things did
not show itself ("). Under his sons and his grand-
son 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 pos-
session 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 be-
came 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

76 THE GROWTH OF [CHAP.

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 theolo-
gical dogmas, with their truth or their falsehood,
but the ecclesiastical position of the nation forms
a most important aspect of its history throughout

II.] THE ENGLISH CONSTITUTION. 77

these times. In Old-English times there can be
no doubt as to the existence of an effective supre-
macy 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 eccle-
siastical offices by the same right by which they
dealt with temporal questions and disposed of
temporal offices (2*). The Bishop and the Ealdor-
man, each appointed by the same authority, pre-
sided 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 conti-
nental models, of distinct ecclesiastical courts for
the trial of ecclesiastical causes (2s). 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

73 THE GROWTH OF [CHAP.

the Pope in whose name Hildebrand already
ruled (26). While William lived, the royal supre-
macy 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 (2?). 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 imprison-
ment. In the disputes between the Crown and
the Church, from William Rufus to Henry the

II.] THE ENGLISH CONSTITUTION. 79

Second, we find popular feeling always enlisted
on the ecclesiastical side (*8). 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 (2'). 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 med-
dled 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 (3°). Ever after-
wards 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

8o THE GROWTH OF [CHAP.

was its author the patriot Primate (31). Earl Simon
died excommunicate ; but, in the belief of English-
men, the excommunications of Rome could not
hinder an English Earl from working countless
signs and wonders (32) — a pretty convincing argu-
ment, 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 pre-

ii.] THE ENGLISH CONSTITUTION. 81

served 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 (3-*).

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 con-
stantly 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 in-
deed we may find here and there in the course

G

82 THE GROWTH OF [CHAP.

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 Gemot or Witenagemdt, 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 arbi-
trary 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 sum-
moned by a general writ (&}. 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 ordi-

li.] THE ENGLISH CONSTITUTION. 83

nary 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 (3?).
Here we have the beginning of our county mem-
bers and of the title which they still bear, of
knights of the shire. Here is the beginning of
popular representation, as distinct from the gather-
ing of the people in their own persons; but we
need not think that those who first summoned
them had any conscious theories of popular repre-
sentation. 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

G 2

84 THE GROWTH OF [CHAP.

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 frag-
ments 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 oi
the Constitution had gone on in its usual inci-
dental way. Each step in advance, however slight,
was doubtless the work of the discernment ot
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 Parliamen-
tary 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.

II.] THE ENGLISH CONSTITUTION. 85

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 arid 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 (4°). 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

86 THE GROWTH OF [CHAP.

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 (^). 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 deve-
loped 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 our-
selves that we have led captive our conquerors,
and that we have made them into sons of the

ii.] THE ENGLISH CONSTITUTION. 87

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 wel-
comed we adopted and assimilated, and strength-
ened 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

88 THE GROWTH OF [CHAP.

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 states-
man was not well distinguished from worship to
the saint, and Waltheof and Simon and Thomas
of Lancaster (^2) 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

ii.] THE ENGLISH CONSTlfUTION. 89

have died with him ; for some years Parliaments
were still summoned jwhich 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. Parlia-
ments after Simon's model have been called to-
gether 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 («).
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 Com-
mons of England had granted him of their free
will (4«).

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

90 THE GROWTH OF [CHAP.

•

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 inter-

ii.] THE ENGLISH CONSTITUTION. 91

esting 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 (•*?).

We find then — it will be understood with what
qualifications I am speaking — the English Consti-
tution 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 Con-
stitution thus finally took differed from the shapes
which were taken by most of the kindred Consti-
tutions 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

9^ THE GROWTH OF [CHAP.

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 under-
stood 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 strict-
ness, 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 cour-

ii.] THE ENGLISH CONSTITUTION. 93

tesy 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 (-»s). There is
perhaps no feature in our Constitution more im-
portant 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 aristo-
cratic sentiment, the pride of birth, has doubtless
been very strong at all times. But it has been

94 THE GROWTH OF [CHAP.

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 inter-
marry ; 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 anoma-
lous 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 parlia-
mentary 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

II.] THE ENGLISH CONSTITUTION. 95

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 Con-
vocation taxed themselves separately also. And,
till this power was given up, an ecclesiastical bene-
fice gave no right to vote in the election of mem-
bers of the House of Commons (s°).

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 con-
stitutional 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 (s1).

96 THE GROWTH OF [CHAP.

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 re-
presentation 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

II.] THE ENGLISH CONSTITUTION. 97

two ; no one proposes to have three or four (s2).
But most of the continental bodies of Estates
consisted, as we have seen, of three Houses ; in
Sweden, where the peasants, the small free-
holders, were important enough to be separately
represented alongside of the Nobles, Clergy, and
Citizens, there were till lately four (sa). 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 meaning-
less in England. For centuries back there has
been no separate Estate of the Clergy ; some of

H

98 THE GROWTH OF [CHAP.

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 (S4).

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

II.] THE ENGLISH CONSTITUTION. 99

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 As-
sembly 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 dis-
putes 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 (S5).
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 in-
deed. From the days of Earl Simon onwards,

H £

ioo THE GROWTH OF [CHAP.

both the power of Parliament as a whole, and the
special power of the House of Commons, was
constantly growing. The Parliaments of the four-
teenth 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 Parlia-
ment 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 imprison-
ment, 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

II.] THE ENGLISH CONSTITUTION. 101

simple throwing out of a measure by which a
Ministry has given out that it will stand or fail^s).
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 ("). 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 quali-
fication 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 can-
not think that they are now a very large or im-
portant 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

liBBJMW

102 THE GROWTH OF [CHAP.

than a freehold— ujrider the value of forty pounds,
the lessening of ' the constituencies of our counties
VJpiiW ;ript Be srxiall. ;LOn 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 (»). Still even in this age, the power
of Parliament was advancing (6o) ; 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 (6l).

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

n.] THE ENGLISH CONSTITUTION. 103

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 parlia-
mentary 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 Tow-
ton and Barnet, and the new nobility were the ab-
ject 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 six-
teenth 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.

104 THE GROWTH OF [CHAP.

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 institu-
tions 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

II.] THE ENGLISH CONSTITUTION, 105

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 thank-
fulness 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 every-
thing 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 indi-
rect 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

106 THE GROWTH OF [CHAP.

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 out-
ward respect. Throughout his reign he took care
to do nothing except in outward and regular legal
form, nothing for which he could not shelter him-
self 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 re-
vival with new strength and in a more perfect
form (<*).

A like witness to the importance of Parliament

II.] THE ENGLISH CONSTITUTION. 107

in this age was shown in two other very remark-
able 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 sub-
servient to the Court (6s). 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 posi-
tively ; 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

io8 THE GROWTH OF [CHAP.

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 Eng-
land mightier than their own (6?). 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

II.] THE ENGLISH CONSTITUTION. 109

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 consti-
tutional 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 prin-
ciples of earlier, often of the earliest, times. Wit-
tingly 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

i io THE GROWTH OF [CHAP.

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.

ill.] THE ENGLISH CONSTITUTION. in

CHAPTER III.

IN my two former chapters I have carried my
brief sketch of the history of the English Constitu-
tion down to the great events of the seventeenth
century. I chose that point as the end of my conse-
cutive 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

iia THE GROWTH OF [CHAP.

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 land-
marks 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 along-
side 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 seven-
teenth century, we may fairly say that no distinction
could be drawn between the Constitution and the
Law, The prerogative of the Crown, the privilege

in.] THE ENGLISH CONSTITUTION. 113

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 prac-
tical creation, that mixture of genuine ancient tra-
ditions 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 of-
fender 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

I

ii4 THE GROWTH OF [CHAP.

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 em-
bodied 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 dif-
ferent 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 states-
man, once declared that the then Ministers of the
Crown did not possess the confidence of the House

HI.] THE ENGLISH CONSTITUTION. 115

of Commons, and that their continuance in office
was therefore at variance with the spirit of the
Constitution (I). The truth of such a position, ac-
cording 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 im-
peachment 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, accord-
ing 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
I 2

ii6 THE GROWTH OF [CHAP.

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 Com-
mons of such a resolution as this may perhaps be
set down as the formal declaration of a constitu-
tional principle. But though a formal declaration,
it was not a legal declaration. It created a prece-
dent 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

III.] THE ENGLISH CONSTITUTION. 117

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 uni-
versally 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 establish-
ment of a purely unwritten and conventional code

ii8 THE GROWTH OF [CHAP.

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 govern-
ment 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 pos-
sesses 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

III.] THE ENGLISH CONSTITUTION. 119

of any old laws, or the enactment of any new
ones, without the consent of both Houses of Parlia-
ment (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 tiie
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__apj>rove (4). The written
Law and the unwritten Constitution alike exempt
the Sovereign from all ordinary personal responsi-
bility (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.

I

120 THE GROWTH OF [CHAP.

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 re-
sponsibility but such as may be enforced either by
prosecution in the ordinary Courts or by impeach-
ment in the High Court of Parliament. The un-
written 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 ten-
dency. 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

III.] THE ENGLISH CONSTITUTION. 121

own person, of certain offices ; but, as a collective
body bound together by a common responsibility,
the Law never heard of them (°). 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 eren 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 Constitu-
tion 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 Com-
mons. 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

122 THE GROWTH OF [CHAP.

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 un-
usual 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 parliamen-
tary 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

HI.] THE ENGLISH CONSTITUTION. 123

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 (?).
From this beginning a system has gradually
grown up which binds the chief officers of the
Crown to work together in at least outward har-
mony, 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 hap-
pened within my own memory, and which, like
other changes of language, is certainly not without
its meaning. We now familiarly speak, in Par-
liament 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

124 THE GROWTH OF [CHAP.

" 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 " (I0).

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 Consti-
tution. 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 ten-
dency of later times is, after all, only a further
developement of a tendency which was at work
from the beginning. It is simply another applica-
tion of the Englishman's love of precedent. The
growth of the unwritten Constitution has much in

o

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

in.] THE ENGLISH CONSTITUTION. 125

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 Parlia-
ment which decreed, in opposition to the practice
of all other nations, that the children of the here-
ditary 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 under-
stand 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

126 THE GROWTH OF [CHAP.

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 (").

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 legisla-
tion 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

in.] THE ENGLISH CONSTITUTION. 127

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 (I2). 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 look-
ing 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 examina-
tion 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 o their own. Each stage of the argu-
ment, taken by itself, is absolutely unanswerable ;

128 THE GROWTH OF [CHAP.

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 writh 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 govern-
ment. 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 pre-
rogative 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 in-
capable 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 (J3). In later times indeed

ill.] THE ENGLISH CONSTITUTION. 129

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 prac-
tically 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 admi-
nistration 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 univer-
sally 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. Accord-

K

130 THE GROWTH OF [CHAP.

ing 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 assump-
tions ? 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 re-
stored Godwine to his lands and honours (^). To
such an one the doctrine that a national Assembly

III.] THE ENGLISH CONSTITUTION. 131

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 doc-
trine 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
K 2

132 THE GROWTH OF [CHAP.

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 con-
stitution 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 sum-

in.] THE ENGLISH CONSTITUTION. 133

moned 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, sum-
moned again under the writ of King Henry (IS).
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 suc-
ceeded a Parliament which had ventured on a still
stronger step than deposing a King, that of send-
ing a reigning King to trial and execution (l6). 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 (I7). And the Convention which was elected,

134- THE GROWTH OF CHAP.

as freely as any Parliament ever was elected (l8),
in answer to the vote of the expiring Long Parlia-
ment, was, because it was so elected and not in
answer to the King's writ, looked on as an Assem-
bly 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 (J9). Yet, after all, it
was deemed safer that all the Acts of the Con-
vention Parliament should be confirmed by its
successor which was summoned in due form by
the King's writ. These fantastic subtleties, sub-
tleties 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
^Ethelred — 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 ;

III.] THE ENGLISH CONSTITUTION. 135

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 (2I). 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 revolu-
tion, 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 Assem-
bly and to the validity of its acts by this second
exercise of the mysterious power of self-crea-
tion (22). Once more in the same reign the ques-
tion 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^). The untutored wisdom of
Englishmen, in the days when we had laws but

136 THE GROWTH OF [CHAP.

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 parlia-
mentary enactments as in the difficulty which
neither House of Parliament thought worthy of
any serious discussion.

And now what has modern legislation done to-
wards getting rid of all these pettifogging devices,
and towards bringing us back to the simpler doc-
trines of our forefathers ? Parliament is still sum-
moned 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.

III.] THE ENGLISH CONSTITUTION. 137

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

138 THE GROWTH OF [CHAP.

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, un-
less 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 destroy-
ing 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 Par-
liament (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

ill.] THE ENGLISH CONSTITUTION. 139

fanciful scruples of the fourteenth and the seven-
teenth centuries are no longer listened to. Let us
take another instance. In the old Teutonic Con-
stitution, just as in the old Roman Constitution,
large tracts of land were the property of the State,
the ager publicus of Rome, the fo Ikland 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 gra-
dually changed into the Terra Regis of Domes-
day (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^}.
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

140 THE GROWTH OF [CHAP.

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

in.] THE ENGLISH CONSTITUTION. 141

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 (2?). 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 Kins'

142 THE GROWTH OF [CHAP.

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 suc-
cession 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 there-
fore reasonable that a restriction which belonged
to a past state of things should be swept away, and

ill.] THE ENGLISH CONSTITUTION. 143

that Sovereigns who had given up an usurped power
which they ought never to have held should be re-
stored 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 ^Elfred rather than the place of the
Richards and Henries of later times, so she again
holds the right which Alfred held, of acquiring
and disposing of private property like any other
member of the nation (3°).

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 in-
creased either the powers of Parliament or the
liberty of the subject, has been a return, some-
times 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

144 THE GROWTH OF [CHAP.

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 conse-
cration 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 pre-
decessor 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 doc-
trine 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

in.] THE ENGLISH CONSTITUTION. 145

the Crown is more strictly and undoubtedly here-
ditary 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 his-
tory 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 Black-

L

i4& -THE GROWTH OF [CHAP.

stone, 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 two-
fold 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 ecclesi-
astical 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 in-
structive, 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 for-
mer 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

in.] THE ENGLISH CONSTITUTION. 147

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 crown-
ing 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 as-
sembled in the church where the crowning rite was
to be done (3S). This second ecclesiastical election
must always have been a mere form, as the choice
of the nation was already made before the ecclesi-
astical ceremony began. But the ecclesiastical elec-
tion 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
L 2

148 THE GROWTH OF [CHAP.

of Edward the First, the first King who reigned
before his coronation, hereditary succession became
the rule in practice. The son, or even the grand-
son, of the late King (36) was commonly acknow-
ledged 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 suc-
cession 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

ill.] THE ENGLISH CONSTITUTION. 149

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 Eng-
land, 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 here-
ditary 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

ISO THE GROWTH OF [CHAP.

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 conge d'e'lire for his own election. The
device for Henry's coronation survives in his own
handwriting, and, while it contains a strong asser-
tion of his hereditary right, it also contains a dis-
tinct provision for his election by the people in
ancient form (*°). 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 (4I). But
it was in his case that the hereditary and parlia-
mentary 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

in.] THE ENGLISH CONSTITUTION. 151

of Edward the Sixth to succeed his father was be-
yond 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 exer-
cised 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, there-
fore 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 ac-
cording 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 («). But each reigned by a perfectly lawful
title, under the provisions of the Act which em-
powered their father to settle the succession ac-
cording 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 treason-
able (4«). Elizabeth knew where her strength lay,

152 THE GROWTH OF [CHAP.

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 (^5). 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 occu-
pation of the throne which had nothing to justify
it in English Law (*6).

On one memorable day a Stewart King was re-
minded that an English King received his right to

Hi.] THE ENGLISH CONSTITUTION, 153

reign from the will of the English people. What-
ever 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 ^thelred,
of Edward and of Richard, Charles ventured to
ask for precedents, and told his judges that "the
Kingdom of England was hereditary and not suc-
cessive " (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 Con-
vention 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 sub-
tleties 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

154 THE GROWTH OF [CHAP.

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 Elec-
tress 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

ill.] THE ENGLISH CONSTITUTION. 155

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 pro-
fessed 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 se-
cured 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 (s°). 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

156 THE GROWTH OF [CHAP.

own personal views of what was right and ex-
pedient. 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 govern-
ment. 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 ex-
treme and most unusual exercise of the powers of
Parliament. There are states of society in which
an elective Monarchy is a better kind of govern-
ment 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 Switzer-
land have made that country a Federal Common-
wealth. And no reasonable person will seek to
disturb an institution 'which, like other English in-
stitutions, has grown up because it was wanted (5I).
Our unwritten Constitution, which gives us an
hereditary Sovereign, but which requires his go-
vernment 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

in.] THE ENGLISH CONSTITUTION. 157

to be attained by the elective kingship of our fore-
fathers. 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 here-
ditary kingship of our latest times differs in out-
ward form from the hereditary kingship of our ear-
liest 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 some-
times seemed that the people existed for the sake
of the King. In our earliest and in our latest sys-
tem, 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

158 THE GROWTH OF [CHAP.

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 yElfred 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
yElfred 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

ill.] THE ENGLISH CONSTITUTION. 159

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.

(i) 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 Waldstadte or Forest
Cantons to have had some special origin, and some special
independence, apart from the rest of Germany. The re-
searches 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 acquisi-
tion of perfect independence, even their deliverance from
other lords and promotion to the state of Reichsunmittelbar-
keit 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 (Fraumiinsttr) in
Zurich, 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 subjec-
tion to some intermediate lord. The rule of a female monas-
tery 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

M

1 62 NOTES. LCHAP-

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 Zurich.) 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 I'Efat
ties Personnes et la Condition des Terras dans le Pays d'Ury
au XIIle Siecle, by the Baron Frederick de Gingins-la-
Sarraz, in the Archiv fiir schiveizerische Geschichte, i. 17 ;
to Dr. J. R. Burckhardt's Untersuchungen iiber die erstc
Bevolkernng des Alpengebirgs in the same collection, iv. 3 ; to
the early chapters of the great work of Bluntschli, Geschichte
des schweizerischen Bundesrcchtes (Ziirich, 1849), and of
Blumer's Staats- und Rechtsgcschiclite der scliiveizerischen
Demokratien (St. Gallen, 1850); to Dr. Alfons Huber, Die
Waldstaette (Innsbruck, 1861), and Dr. Wilhelm Vischer,
Die Sage von der Befreiung der Waldstddte (Leipzig, 1867).

I.] NOTES. 163

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 Confederation Suisse (Geneve
et Bale, 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 Miiller, Geschichte der schweizerischc
Eidgenossenschaft, Book v., c. i (vol. xvi. p. 25, of his
siimmtliche Werke, Stuttgart und Tubingen, 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 ziig den berg ab zuchen, schein die sunn gerad in
sy, und glitzet als wie ein spiegel, des gelichen liiyet das horn
von Ury, ouch die harschorne von Lutzern, und was ein
solich toffen, das des Hertzogen von Burgunn lut ein grusen
darab entpfiengent, und trattent hinder sich."

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

(5) On the character and position of Phokion, 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 re-election had failed to

M 2

1 64 NOTES. [CHAP.

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 per-
manent government in Europe.

(7) Under the so-called Helvetic Republic of 1798, the
Cantons ceased to be sovereign States, and became mere divi-
sions, like counties or departments. One of the earliest pro-
visions of this constitution abolishes the ancient democracies
of the Forest Cantons. " Die Regierungsform, wenn sie
auch sollte verandert werden, soil allezeit eine representative
Demokratie sein." (See the text in Bluntschli. ii. 305.)
The "representative 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 Appensellischen Volkes,
ii. 366, and the text in his Urkunden^ ii. part 2, p. 481, or
in the older Appenseller Chronick of Walser (Saint Gallen,
1740), 410, and the Act in his Anhang, p. 18. The frontis-
piece of this volume contains a lively picture of a Landesge-
meinde. In 1597 the Canton was divided into the two Half-
cantons of Ausscr-Rhoden, Protestant, and Jnner-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

I.] NOTES. 165

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 (Eoforivicscir) 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 Gcmeinden 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 Perikles in
the Funeral Oration, Thucydides, ii. 37: oj/o/za p.iv 8ia ro /ui/
€£ oXiyovc uXX «c irXtiovaf olxtiv ^/j/xocpur/a K€K\/jrar /J.tT-
ecrri 6e Kara yutr rove vo/jovc Trpoc Ta <Cia £ta<£opa Traai ro 'iaov,
Kara £c n)t> a£iwffiv we tKnaros kv ru eu£ow^£7. It is set
forth still more clearly by Athenagoras of Syracuse, vi. 39?
where the functions of different classes in a democracy are
clearly distinguished: e-yw c{ <£»/^t irpwra fjitv c?ipo
ttipo/jf'iflrdat, dXtyap^i'av £c/j('pr)e, (.irtira <f>v\aKaf /utr apia
e'ti'Ui xf>T)fjia.Twv TOI/G irXovttiovc, fiovXtvcrai 8' 5»' ftfXrtffra
rnvf ZuvCTOVf, xfnvai <T av uKOvvavTaq upiara -ovg -rroXXovc,
Kal Tai>Ta bfJLoiut; KOI Kara p.tpr] KOI E,v/j.irai'ra ec

1 66 NOTES. [CHAP.

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 aris-
tocratic. Isokrates (Areop. 29) holds that the manage-
ment 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 : iKCivoi SteyvwKortc j'/cray on fiti TOV ptv
Ctj/jint' &trtri.p rvpavvov Ka.6ivTa.vai TOQ dp^ac Kai KoXa^eiv
roi)c f£a/uaprai'oi'Tac fot Kpiveiv irepi TWV djucjbiT/JT/
-owe Se d"^o\i)v (j.yf.iv 8vi'a/j.erovg vrii fltOV IKCIVOV Kex
e^ijU£\«7(T0ai TWI> KotviLv utmrtp O'IKETHC, Kai Si
yerofjievovG tiraive1cr6a.i Kai arrtpystt' rairi; rf/

nrtTrTeu'. This he elsewhere (Panath
166) calls democracy with a mixture of aristocracy — not olig-
archy (ri/f $r)fioKpa-iat> TI]V dpurroitpaTiq. /ue/tiy/iEVqp).

The unfavourable meaning which is often attached to the
word democracy, when it does not arise from simple igno-
rance, probably arises from the use of the word by Aristotle.
He makes (Politics, iii. 7) three lawful forms of government,
kingship (/Jao-iXcm), aristocracy (aptffro/<-par/f(), and what he
calls specially iroXireta or commonwealth. Of these he makes
three corruptions, tyranny, oligarchy, and democracy (rvpav-
rt'c, oAtyap^/a, ^qjuoirpana), defining democracy to be a
government carried on for the special benefit of the poor
(TT/JOC TO avufopov TV TUV aTropwv). In this there is some-
thing 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 Hero-
dotus 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

I.] A'OTES. 167

certainly had in it a strong element of practical aristocracy
(sec History of Federal Government, cap. v.) : iflrijyop/ae; Kal
7rap/>?7<T/ac Kal Ka06\ov cifji/o^parms a.\7]0it>i)<; a'varri^a cat
Trpoaipfffiv il\iKfnV€arepav OVK av evpoi nc Trjs Trn^d TOIQ
'A^atoic vTrap^ovrrr}c. In short, what Aristotle calls TroAi-tin
Polybios calls SrjfioKparia ; what Aristotle calls fyfuiKpaTta.
Polybios calls 6

(14) It follows that, when the commonwealth of F!orence
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, Republiques Italiennes, iv. 65 ;
Chroniche di Giovanni Villani, viii. i.

(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; Zopfl, Geschichte tier deittxchen
Rechtsinstitnte, 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-fyeow, 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 ivitc-tyow. The
second reference contains a provision for the case of a newly
enslaved \>eow 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

1 68 NOTES. [CHAP.

assembly, combined with distinctions of rank among its
members, and with the supremacy of a single chief over all.

(18) Iliad, xx. 4.

Zevc c>£ ®^ui<rra KeXevffe deovg ayop/'/i'Se KaXlaffai
Kparog a?!* OU/\V/XTTOIO TroXwrv^ov' »/ 8' apa iravrt]
<botri](Ta.oa KeXevae Aioe Trpoe ct^ua veeaOai.
Oiire ric owy IIorajLtwv aTrerjv, voafy 'il/cearolo,
Our' apa Nu/^awy rat r' aArrea KaXa ve'/xotrai,
Kai Trrjyag Trorauwj^, «u Trtfffa

Besides the presence of the Nymphs in the divine Mycel
Gemot, something might also be said about the important
position of Here, Athene, 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 ayoprj 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 ele-
ments 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

I.] NOTES. 169

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 Germanise, c. 7 — 13 :

" Reges ex nobilitate ; Duces ex virtute sumunt. Nee
Regibus infmita aut libera potestas ; et Duces exemplo
potius quam imperio : si prompti, si conspicui, si ante aciem

agant, admiratione prassunt De minoribus rebus

Principes consultant ; de majoribus omnes ; ita tamen ut ea
quoque quorum penes plebem arbitrium est apud Principes

pertractentur Ut turbas placuit, considunt armati.

Silentium per Sacerdotes, quibus turn et coercendi jus est,
imperatur. Mox Rex, vel Princeps, prout astas cuique, prout
nobilitas, prout decus bellorum, prout facundia est audiuntur,
auctoritate suadendi magis quam jubendi potestate. Si
displicuit sententia, fremitu adspernantur ; sin placuit, fra-
meas concutiunt. Honoratissimum adsensus genus est, armis
laudare. Licet apud concilium adcusare quoque et discrhncn

capitis intendere Eliguntur in iisclem conciliis et

Principes, qui jura per pagos vicosque reddant. Centeni
singulis ex plebe comites, consilium simul et auctoritas,
adsunt. Nihil autcm neque publics neque privatae rei nisi
armati agunt."

For a commentary, see Zopfl, Geschichte der dcutschcn
Rechtsinstitutc, p. 94. See also Allen, Royal Prerogative,
12, 162.

(24) See Norman Conquest, i. 95. The primitive Con-
stitution lasted longest at the other end of the Empire, in

1 70 NOTES. [CHAP.

Friesland. See Eichhorn, Deutsche Staats- und Rechtsre-
schichte, ii. 265, iii. 158. Zopfl, Geschichte der deutschen
Rechtsquellen, p. 154.

(25) Td ap^aiia »/.'J>j Kpareirvj 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-Sac/isen,on the words
"vvealh" 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 Ccorlas 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-
iind Rechtsgeschichtc 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 Diodoros, i. 70. The
priest first recounted the good deeds of the King and attri-
buted 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 (TO TtXivramv
virtp rwv uyroovplvhiv apdv CTtoulTo, rov p.iir fiaaiXfa rwv

(i>v f£aipovfjiEVOC, tig Cf. roue vmjpfTOVVTas KOL ci-
rd <pa.i>Xa Kal rrjr fiXufiyiv KOL ri]

I.] NOTES. 171

HC wound up with some moral and religious

advice.

(32) Tacitus (Germ. 25) distinguishes " C3£ gentes quas
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 Here toga,
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 Mass-
mann's Ulfilas, 744.

(36) See the words drtht, 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 clian."

(39) We read in the Chronicles, 449, how, on the first
Jutish landing in Kent, "heora heretogan wasron twegcn
gebro^ra Hengest and Horsa." It is only in 45 5, on the death
of Horsa, that ''aefter )>am Hengest feng to rice and /Esc his

i?2 NOTES. [CHAP.

sunu"; and in 488, seemingly on the death of Hengest,
" ALsc feng to rice and was xxiiii wintra Cantwara cyning."
So among the West-Saxons, in 495, " coman twegen ealdor-
men 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
(vEscesdune) in the Chronicles in 871. The Danes " waeron
on twain gefylcum, on o}>rum waes Bagsecg and Healfdene,
>a haegenan cingas and on ogrum waeron }>a eorlas." It may
be marked that in the English army King /Ethelred is set
against the Danish Kings, and his brother the yEtheling
yElfred against the Jarls. So in the Song of Brunanburh
we read of the five Kings and seven Jarls who were slain.

" Fife lagon sweordum avwefede,

on Saem 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 Baeda 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 gaucn, 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^vw.
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

l.J NOTES. 173

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 praeerant." Presently he calls Fredigern
" Gothorum regulus," like the siibrcguli 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 Ealdor-
manship, is -to be found in the history of South-Western
Mercia under its Ealdorman ^thelred and the Lady yEthel-
fl;ed, in the reigns of yElfred and Eadward the Elder. See
Norman Conquest, i. 563.

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

(45) Iliad, ix. 160: —

KCU yuoi UTTOOT/'/TW, oaaot' fjaaiXEvrepoij e/yit.

(46) The instances in which a great kingdom has been
broken up into a number of small states practically indepen-
dent, but owning a nominal superiority in the successor of
the original Sovereign, are not few. In the case of the Em-
pire 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

T74 NOTES. [CHAP.

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 supre-
macy is still kept by the original Sovereign, must be distin-
guished 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 pra-
vorum prasvalere 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 under-
stand 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. n), where the relations

I.] NOTES. 175

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 \Vitenagemt5t. I look
upon it as an Assembly of the whole kingdom, after the type
of the smaller assemblies of the shire and other lesser divi-
sions. 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 con-
stitution of the Witenagemdt. (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, ./Ethelred, 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 /Ethclred, Edward, Richard,
and James, Harthacnut might fairly be called Cnut the
Second.

(51) Tacitus, De Moribus Germanise, 13, 14: — "Nee
rubor inter comites adspici. Gradus quinetiam et ipse comi-
tatus habet, judicio ejus quern sectantur ; magnaque et
comitum a^mulatio 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 adajquare. Jam vero in-
fame in omnem vitam ac probrosum, superstitcm Principi

1 76 NOTES. [CHAP.

suo ex acie recessisse. Ilium defendere, tueri, sua quoque
fortia facta gloriae ejus adsignare, praecipuum 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 alto-
gether 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 metaphori-
cally ; 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 dominns, implying a master of slaves, was
always refused by the early Emperors. This is recorded of
Augustus by Suetonius (Aug. 53) and Dion (Iv. 12), and still
more distinctly of Tiberius (Suetonius, Tib. 27; Dion, Ivii. 8).
Tiberius also refused the title of Impcrator, except in its
strictly military sense : OVTE yap ^wiri'm^v iavroi' role eAtu-
OipoiQ ov-e avroKparopa. TT^»)V role orfjaTiwTciu; KO\I~H' i<f>iei.
Caius is said (Aurelius Victor, Qes. xxxix. 4) to have been
called dominus, and there is no doubt about Domitian

I.] NOTES. 177

(Suetonius, Dom. 13; Dion, Ixvii. 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 aeterne," 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 hlaford and hlafdige (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 hlaf be allowed. Different as is the origin
of the two words, hlaford 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 Common-
wealth, i. 350, 495, 505.

(59) On the change from the alod, odal, or eScl, a man's
very own property, to the land held of a lord, see Hallam,
Middle Ages, i. 113.

N

1 78 NOTES. [CHA.P.

(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 \egen 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 :

j/ tor/yoony wq tori j^j^a airov^oiiov.

II.] NOTES. 179

CHAPTER II.

(i) 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 propria; maxime sunt notae.
Nee cuncti provincial sic sunt idiotx,
Quin sciant plus cajteris regni sui mores,
Quos relinquant poslcris hii qui sunt priores.
Qui reguntur Icgibus 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
N 2

i8o NOTES. [CHAP.

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. in.

(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, Kpivovai (3orj KO.I ov ^n<f>y (Thuc.

II.] NOTES. 181

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 Sthenelaidas 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 ]>a. landsittende men f>e
ahtes waeron ofer call 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 ^Ethelstan. 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 Francais, v. 289 : " Ce roi, le
plus absolu entre ceux qui ont portd la couronne de France,
le moins occupd du bien de ses peuplcs, le moins consciencieux
dans son observation des droits dtablis avant lui, est ce-
pendant le restaurateur des assemblies populaires de la
France, et 1'auteur de la representation des communes dans
les e"tats gene"raux." See Historical Essays, 45.

(12) See the history of Stephen Martel in Sismondi, His-
toire des Fran9ais, vol. vi. cap. viii. ix., and the account of

1 82 NOTES. [CHAP.

the dominion of the Butchers, vii. 259, and more at large
in Thierry's History of the Tiers-Etat, 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 Regime, 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 Schopfcr des Houses der Gemeinen." The
career of the Earl should be studied in this work, and in
Mr. Blaauw's " Barons' War."

(lo) " 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 gene-

ii.] NOTES. 183

rally 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 com-
pelled 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

1 84 NOTES. [CHAP.

Anglicis et Normannis, et alterutrum uxores ducentibus
vel nubentibus, sic permixtae sunt nationes, ut vix discern!
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 status
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 acces-
sion 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.

ii.] NOTES. 185

(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 dtpendancy. 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, 8r.

(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 \ve should now call clergymen, but that they also
took in that large class of persons who held smaller ecclesias-
tical 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
c'ericorum aliquem parochianorum meorum in causam trahere
prassumerem super quacumque possessione immobili, donee
ministeriales regis, vel dominorum ad quorum feudum res
controversial pertineret, in facienda justitia eis defecissent.
Deii de ne super accusatione foenoris 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 quae convenerat in occursum, hos
succinctos ut pra?venirent et patrem suum applicantcm

1 86 NOTES. [CHAP.

exciperent, et benedictionem praeriperent, alios vero humi
se humiliter prosternentes, ejul antes hos, plorantes illos pras
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 con-
demns it in any case. " Adeo etiam quod ordinis privilegium
excludat cauterium : quam tamen pcenam 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 Thomas, 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, Gamier 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 a vilains ne fust en mil liu ordenez
Sanz 1'otrei sun seigneur de cui terre il fu nez.
Et deus a sun servise nus a tuz apelez !

II.] NOTES. 187

Mielz valt filz a 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 " plcbeius
quidam clericus."

(30) We are not inclined to find fault with such an ap-
pointment 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 Wcndover, 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 Osncy. 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 "cpiscopus
Lincolnicnsis 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

1 88 NOTES. [CHAP.

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) : —

" J>e bissop Water of Wurcetre asoiled horn alle pere
And prechede horn, )>at hii adde of de]> }>e lasse fere."

This writer says of the battle of Evesham :—

" Suich was )>e morfre 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 writ-
ten in the name of " universitas cleri et populi per provinciam
Cantuariensem constituti," and it ends, " quia communit.i ;
nostra sigillum non habet, prassentes literas signo communi-
tatis civitatis Londinensis vestrae sanctitati mittimus consij-
natas." 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 Angliae," 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
Angliae 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, con-
cilium coegere, deque regni statu, pro arbitrio suo, utilia in
commune providentes, ad regem eligendum unanimiter conspi-
ravere." 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 ; "

11.] NOTES. 189

and by William of Malmesbury, Historia Novella, i. 1 1 : " A
Londoniensibus et Wintoniensibus in Regem cxceptus 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 praecipui habebantur in An-
glia, 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 nos-
trum redimendum, etc Et ad habendum commune

consilium regni, de auxilio assidendo aliter quam in tribus
casibus pradictis, vel de scutagio assidendo, summoned fa-
ciemus archiepiscopos, episcopos, abbates, comites, et majores
barones, sigillatim per litteras nostras ; et praeterea faciemus
summoned 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 sum-
moning of a Witenagemot by Henry the First : " Da sone
J>a2raefter sendc se kyng hise write ofer eal Englalande, and
bed hise biscopes and hise abbates and hise )>eignes ealle >et
hi scolde'n cumen to his gewitencmot on Candelmesse deig
to Gleawceastre him togcancs ; and hi swa diden."

(37) These first glimmerings of parliamentary representa-
tion 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 "militcs ct barones" (" quatuor
discretes homines de comitatu tuo illuc venire facias"), the

i go NOTES. [CHAP.

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 Hth, 1264, will be found in Rymer's
Fcedera, 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' praedictis, in forma supradicta.

" Item in forma prasdicta scribitur civibus Ebor', civibus
Lincoln', et cseteris burgis Anglias ; quod mittant in forma
praedicta duos de discretioribus, legalioribus, et probioribus,
tam civibus, quam burgensibus suis.

" Item in forma prasdicta mandatum est baronibus, et probis
hominibus Quinque Portuum."

" This is often regarded as the origin of popular repre-
sentation ; 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 nth, 1252, is given in a letter from Simon's intimate

II.] ArOJ*ES. 191

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 qua quasi to-
tum robur Vasconiae 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 com-
pare the words of the great poetical manifesto (Political
Songs, 76).

" Seductorem Dominant 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

192 NOTES. [CHAP.

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 Lancastriae,
Qui per necem imitaris Thoraam Cantuariae ;
Cujus caput conculcatur pacem ob ecclesiac,
Atque tuum detruncatur causa pacis Anglia;."

(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 militisc,
Durus poenas passus mortis,

Protector gentis Angliae.
Sunt de sanctis inaudita
Cunctis passis in hac vita,

Quemquam passum talia ;
Manus, pedes, araputari,
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 remark-
able stanza, in which we again find the comparison with
Thomas of Canterbury : —

" Mes 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

II.] NOTES. 193

earlier date, namely, the satirical poem against King Richard,
how the one English Augustus

" Makede him a castel of a raulne 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 murj>re are nas in so lute stounde.
Vor J>ere was werst Simond de Mountfort aslawe, alas !
& sir Henri is sone, }'at so gentil knijt was.
***** v

& among alle ofere mest reuj>e it was ido,
J>at sir Simon J>e 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 ]>e morj>re of Eivesham (vor bataile non it was),
And }>er wi)> Jesu Crist wel vuele ipaied was,
As he ssewede bitokninge grisliche and gode,
As it vel of him sulue, )>o he deide on J>e rode,
}>at )>oru al J'e middelerd derk hede J>er 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 parlia-
mentary 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 Gemdts are described. Sometimes they speak only
of " proceres " and the like ; sometimes they distinctly
mention the popular element. Curiously enough, the offi-
cial language is sometimes more popular than that of the
annalists. Thus the Winchester Annals, recording the

O

194 NOTES. [CHAP.

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 comtnunaute de la tere ileokes
somons." So in the later Parliament of the same year the
Annals speak only of the " communis consensus archiepisco-
porum, comitum, et baronum," while the official description is
" praslati, 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 repre-
sentation 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,

li.] NOTES, 195

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 uni-
versally received. The words are —

" Nullum tallagium vel auxilium per nos vel hasredes nostros
de cetero in regno nostro imponatur seu levetur, sine voluntate
et assensu communi archiepiscoporum, episcoporum et alio-
rum prcelatorum, 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 con-
firmed 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 chas-
tity 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 com-
moners, 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 com-
mitted a crime, he would be tried by a jury. Mere prece-
dence 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

O 2

196 NOTES. [CHAP.

— 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,
th? two Chambers are absolutely necessary. The double

ii.] NOTES. 197

sovereignty, that of the whole nation and that of the inde-
pendent 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
Standerath 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 Stdnderath was
thrown out by a large majority.

(53) On the old Constitution of Sweden, see Lying'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 juris-
diction 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." Mays
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 Witenagemdt
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

198 NOTES. [CHAP.

Ages, ii. 184. See also May, ii. 86. But the most remark-
able 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 ; curae
Non esse magnatibus regni quos prseferret
Suis comitatibus, vel quibus conferret
Castrorum custodiam, vel quern exhibere
Populo justitiam vellet, et habere
Regni cancellarium thesaurariumque.
Suum ad arbitrium voluit quemcumque,
Et consiliarios de quacumque gente,
Et ministros varies se prsecipiente,
Non intromittentibus se de factis regis
Anglian baronibus, vim habente legis
Principis imperio, et quod imperaret
Suomet arbitno singulos ligaret.'1

(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 move-
ment 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 Due, and of his Sonnes, that is to sey, of oure seid

II.] NOTES. 199

nowe Soverayne Lord Kyng Edward the fourth, then Erie of
Marche, & of the noble Lord Edmund Erie 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. 1429.
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 elcccions 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 dcins mesmes les
Countes ; dount homicides riotes bateries & devisions entre
les gentiles £ autres gentz de mesmes les Countees verisem.
blablement sourdront & seront, si covenable remedie ne soit

200 XOTES. [CHAP.

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 demur-
rantz & receantz en icelles dount chescun ait frank tene-
ment 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 Chivalcrs dez Counteez pour le parlement
en apres 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 mes-
mez 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.

ii.] NOTES. 201

(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 Tc dcum 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

202 NOTES. [CHAP.

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 2Qth 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 bring-
ing 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 com-
mercial 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

II.] NOTES. 203

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 |>l
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 yor 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 preyTg yow to
call to yor mynd that lyek as ye and I comonyd of it were
necessary for my Lady and you all hyr Serunts and tennts to
have thys p'lement as for on of the Burgeys of the towne of
Maldon syche a man of worthep and of wytt as wer to-

20! NOTES. [CHAP.

wardys 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. SertyfyTg 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 tenntys and wellwyllers
shold geve your voyse to a worchepfull knyght and on' of my
Ladys consayll Sr John Paston whyche standys gretly in
favore w* my Lord Chamberleyn and what my seyd Lord
Chamberleyn may do w' the Kyng and w* 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. Where-
for I prey yow labor all syche as be my Ladys seruntts 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 C1' [ioo£.l And God have yow in hys kepTg.
Wretyn at Fysheley the xx day of Septebyr. — J. AR-

BLASTER."

(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. 1 86) 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

li.J NOTES. 205

volume. See especially pp. 8, 617 ; but it is plain to every-
one who has the slightest knowledge of Domesday. No-
thing 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 Parlia-
ment. 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

206 NOTES. [CHAP.

Statutes, i. 522.) Newark was enfranchised by a Royal
Charter, the last case of that kind of exercise of the pre-
rogative. 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.

111.] NOTES. 207

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 Laudi-
bus Legum Anglian, cap. 36 : " Neque Rex ibidem, per se
aut ministros suos, tallegia, subsidia, aut quaevis 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

208 NOTES. [CHAP.

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 Con-
ference 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 com-
mon speech.

Another still later change marks a step toward the recog-
nition 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

%lll.] NOTES. 209

will do as well as a Secretary of State. But if any member
of the Cabinet, why not any Privy Councillor ?

(n) 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

P

210 NOTES. [CHAP.

f

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 yEthelric, Bishop
of the South-Saxons at the time of the Conquest, as " vir
antiquissimus et legum terras 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 prasteritorum memoria eventorum
inerat, ut casteri 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 Sanctae Crucis
Walthamensis, p. 25, Stubbs) that one was "quia non erat
eo prudentior in terra, armis strenuus magis, legum terras
sagacior." See Norman Conquest, ii. 538, iv. 366, 478.

ill.] NOTES. 211

(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, allow-
ance 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, conser-
vandus in Turri usque ad Parliamentum proximo celebran-
dum." 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 Angliae spirituales et temporales,
et ejus regni communitates, omnes status ejusdem regni
reprresentantes ; " and in the Act of Henry's election they
are described as " domini tarn spirituales quam temporales,
et omnes regni status." In the Act of deposition Richard's
resignation of the Crown is recorded, as well as his par-
ticular crimes and his general unfitness to wear it, all which
are classed together as reasons for his deposition. The

P 2

212 NOTES. [CHAP.

actual formula of deposition runs thus: — " propter praemissa,
et eorum prsetextu, 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 prasmissis, et eorum
occasione, regnum Anglite, 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 prsefatus super eos reg-
naret"). 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 depo-
sition, 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 Lenclastre Roy Dengleterre.' Adonc
crierent tons les seigneurs prelaz et le commun de Londres,
Ouy Ouy nous voulons que Henry due 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 con-
seil 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.

in.] NOTES. 213

(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 deter-
mined ;" but it is not said when it was dissolved and deter-
mined. 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 Conven-
tion 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.

214 NOTES. [CHAP.

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

(22) See the Act i William and Mary " for removing and
preventing all Questions and Disputes concerning the Assem-
bling and Sitting of this Present Parliament" (Revised
Statutes, ii. i). 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 liber-
ties 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

in.] NOTES. 215

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 Commen-
taries, 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,'1 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 Con-
quest, i. 94, but the whole thing should be studied in Allen's
great section on the Tenure of Landed Property ; Royal Pre-
rogative, 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 Kemblc'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 Con-
stitutional 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 /Elfred.
See Codex Diplomaticus, ii. 112, v. 127.

216 AOTES. [CHAP.

(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 inter-
regnum ; not indeed from any mysterious prerogative of the
Crown, but simply because the Act of Settlement has en-
tailed 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

ill.] NOTES. 217

history. In Kern'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 in-
famous 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 govern-
ment 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 yElfred 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 every-
thing whatever to^Elfred personally, this seems to have been
too much, and the editor gives an extract from Kemblc 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

218 NOTES. [CHAP.

his own exceptions, the statement, very doubtful and, if true,
utterly irrelevant, that ^Lthelstan 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 Eng-
land 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 in-
heriting 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

ill.] NOTES. 219

realm ; that is, in the view of our older Law, to give both
alike the preference due to an ^Etheling.

(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 ecclesias-
tical 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 acces-
sion 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 tech-
nical 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,

220 NOTES. [CHAP.

descended from Edward the Third in the male line, and if he
had not moreover been the ablest and most popular noble-
man 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, thg 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 some-
times as Henry the Third. In earlier times we get some-
thing like it in the settlement of the Crown by yEthelwulf,
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

in.] NOTES. 221

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
scale 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 belong) ng, to be re-
mayne 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 Actc, 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
lymitted in your said letters patentes or by your said laste
will." The later Act, 35 Henry VIII. c. i.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

222 NOTES. [CHAP.

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 Eliza-
beth 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 parlia-
mentary 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, I Eliz. c. 3, is much vaguer.
It enacts " that your majestic 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

ill.] NOTES. 223

Realme of Englande in and to whose princely person and
theires of your bodye lawfully to bee begotten aft«r youe
without all double 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 & apperteyn-
ing 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 yEthelwulf.

(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 ille-
gitimate 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

224 NOTES. ' . [CHAP.

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 Jo 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. i, declares it to be treason " yf any person
shall in any wyse holde and aflyrme 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 Ouenes Majestic
that nowe is, with and by the aucthoritye of the Parlyament
of Englande is not able to make Lawes and Statutes of suffy-
cyent 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 " whoso-
ever 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
Majestic 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
i Jac. I. c. i, declares that " immediatelie upon the Disso-

in.] NOTES. 22$

lution 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 Majestic, 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 opposi-
tion 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. i. 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

Q

226 NOTES, [CHAP.

declared election, but unanimously and voluntarily ratifying
that which in itself could surely give no right, the determi-
nation 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 un-
doubtedly 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 descrip-
tion 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

in.] NOTES. 227

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," " Long-
shanks," 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 i William and Mary (Revised Statutes, ii. n)
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,

NOTES. [CHAP.

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."

TO.VTO. r avarr^tra. ;

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. ov KO.I <f)a<rtv VTTO r//e ftivrov yuyaucos ov 'ttc)t£d pe-
vnv we i\a.TTti) TrapadwffovTa roig Tratcrt Ttjv fiafftXfiav, »/ irap-
fXafte, fJLti^iO [lev ovv, elireiv, b'ay j/povuit-epav' r^J yap ovn
TO ayav airofiaXovaa yuera rov <f>f)6vov ?tf'<^>uye TOV KivSvvov.
Aristotle also (Pol. v. 11) tells the story to the same effect,
bringing it in with the comment, 6Vw yap av iXarTovtav urn
Kvpioi, TrXetw "%p(>vov avajKaiov p.ivf.iv ira.aav rr)v apyftv'
avTOi rt yap TJTTOV yivovrai ^trworiKOi icat role rfdimv 'KTOL
/u-aXXov, teal VTTO rdiv a.p^o/jLei'Wf (pdovovvrai lyrrnv. CM yap
TOVTO Kal ff TTfpl MoXorrove TroXui' ^porov fiatnXeia Sie/jieivev,
Kill ?/ Aak-eSai/Joi/tco^ ^ia ro i£ ap^ij? T^ £'5 ^"O /"^P*? Staipe-
Ofji'at rrfv dp^?yr, Kal Tra'Xtv GeoTro^tTroi; ^erpidffnvros rolq re
KCU rt)v r&v t<j>r>pu)v apX7?" tf KoraaT^crairoc' TJ/C yap

ru> \pbvw T^V ftanXstav,
nva irolqvev OVK eXarrora dXXa \if.LZ,ova.
The kingdom of the Molossians, referred to in the extract from
Aristotle, is one of those states of antiquity of which w«

III.] NOTES. 229

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 king-
ship 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-ausser-
rhoden, 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.

(5 1) It is simply frivolous in the present state of England to
discuss the comparative merits of commonwealths and consti-
tutional 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 Govern-
ment 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 repub-

230 NOTES. [CHAP. in.

lican 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 govern-
ment, 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 : —

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