The Growth of the English Constitution From the Earliest Times

CHAPTER I.. The _landesgemeinden_ of Uri and Appenzell—Their Bearing on

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

CHAPTER II.. Gradual Growth of the English Constitution—New Laws Seldom

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

CHAPTER III.. Character of Later Constitutional Developments—Greater

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

NOTES Pp. 161-230

THE GROWTH OF THE ENGLISH CONSTITUTION FROM THE EARLIEST TIMES.

CHAPTER I.

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

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