CHAPTER I.

THE GROWTH

OF

THE ENGLISH CONSTITUTION

_FROM THE EARLIEST TIMES_.

[Illustration]

THE GROWTH

OF THE

ENGLISH CONSTITUTION

_FROM THE EARLIEST TIMES_.

BY

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

LATE FELLOW OF TRINITY COLLEGE, OXFORD.

‘Concedis justas leges et consuetudines esse tenendas, et

promittis eas per te esse protegendas et ad honorem Dei

roborandas, _quas vulgus elegerit_ secundum vires tuas?’—ANCIENT

CORONATION OATH.

‘Rex habet superiorem, Deum. Item Legem, per quam factus est

Rex. Item curiam suam.’—BRACTON.

‘Igitur communitas regni consulatur,

Et quid universitas sentiat sciatur.’

POLITICAL POEM, _XIII. Cent._

_SECOND EDITION._

London:

MACMILLAN AND CO.

1873.

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

LONDON:

R. CLAY, SONS, AND TAYLOR, PRINTERS,

BREAD STREET HILL.

PREFACE TO THE FIRST EDITION.

The proverb “_qui s’excuse s’accuse_” is so regularly turned against

any author who gives any account of the origin of his work that it

may be well to prevent its quotation by quoting it oneself. I have to

ask that these three Chapters and their accompanying Notes may not

be judged by the standard of a book. If I were to write a book on

the English Constitution, it would be different in form and, in many

points, different in style. What the reader has here is a somewhat

extended form of two Lectures given at Leeds and Bradford last January.

I had thought that they might be worth printing in the shape of two

magazine-papers; others thought that they might do good in their

present shape. I therefore expanded the latter part of the second

Lecture, which had to be cut very short in delivery, so as to make a

third Chapter, and I added such notes and references as seemed to be

needed.

I say all this, in order that what I have now written may be judged by

the standard of lectures, not by the standard of a book. In a popular

lecture it is impossible to deal with everything with which it is

desirable to deal; it is impossible to go to the bottom of those things

which one picks out to deal with. It is enough—because it is all that

can be done—if the choice of subjects is fairly well made, and if the

treatment of those that are chosen, though necessarily inadequate, is

accurate as far as it goes. Many things must be left out altogether;

many things must be treated very imperfectly; the attention of the

hearers must be caught by putting some things in a more highly wrought

shape than one would choose at another time. The object is gained, if

the lecturer awakens in his hearers a real interest in the subject on

which he speaks, and if he sends them to the proper sources of more

minute knowledge. If I can in this way send every one who wishes to

understand the early institutions of his country to the great work of

Professor Stubbs—none the less great because it lies in an amazingly

small compass—my own work will be effectually done. In Mr. Stubbs’

“Documents Illustrative of English History,” the ordinary student

will find all that he can want to learn; while he who means to write

a book, or to carry out his studies in a more minute way, will find

the best of guidance towards so doing. The great documents of early

English history, hitherto scattered far and wide, are now for the first

time brought together, and their bearing is expounded in a continuous

narrative worthy of the unerring learning and critical power of the

first of living scholars.

For my own part, my object has been to show that the earliest

institutions of England and of other Teutonic lands are not mere

matters of curious speculation, but matters closely connected with

our present political being. I wish to show that, in many things, our

earliest institutions come more nearly home to us, and that they have

more in common with our present political state, than the institutions

of intermediate ages which at first sight seem to have much more in

common with our own. As the continuity of our national life is to many

so hard a lesson to master, so the continuity of our political life,

and the way in which we have so often fallen back on the very earliest

principles of our race, is a lesson which many find specially hard. But

the holders of Liberal principles in modern politics need never shrink

from tracing up our political history to its earliest beginnings. As

far at least as our race is concerned, freedom is everywhere older

than bondage; we may add that toleration is older than intolerance.

Our ancient history is the possession of the Liberal, who, as being

ever ready to reform, is the true Conservative, not of the self-styled

Conservative who, by refusing to reform, does all he can to bring on

destruction. One special point on which I have dwelt is the way in

which our constitutional history has been perverted at the hands of

lawyers. It is perfectly true that the history of England must be

studied in the Statute-Book, but it must be in a Statute-Book which

begins at no point later than the Dooms of Æthelberht.

As I have often had need to take facts and doctrines for granted which

I believe myself to have proved in my larger works, I have in the Notes

given frequent references to those works, instead of bringing in the

evidence for the same things over again. And in the more modern part

of the subject, I have given several extracts at full length, even

from very familiar authors, because I know that a reader is often well

pleased to have a striking passage set before him at once, without

having to seek for it in the original. On the other hand, I have given

at full length several extracts from statutes and other documents which

most readers are not likely to have at hand. The historical portions

of any Act of Parliament can be studied only in the Acts themselves,

and not in the summaries of lawyers. Legal writers and speakers seem

constantly to repeat what has been said before them, without any

reference to the original sources. A memorable example is to be found

in the assertion of Blackstone and of a crowd of lawyers after him, in

Parliament and out of Parliament, that the King or Queen is by Law Head

of the Church. I need hardly say that that title was used by Henry,

Edward, and Mary, but that it was given up by Mary, and was not taken

up again by any later Sovereign.

SOMERLEAZE, WELLS,

_March 25, 1872_.

PREFACE TO THE SECOND EDITION.

In this Second Edition I have made a few verbal corrections and

improvements, and I have made two or three additions to the Notes.

Otherwise the book is unchanged.

SOMERLEAZE, WELLS,

_October 30, 1872_.

CONTENTS.

CHAPTER I.

The _Landesgemeinden_ of Uri and Appenzell—their bearing on

English Constitutional History—political elements common

to the whole Teutonic race—monarchic, aristocratic, and

democratic elements to be found from the beginning—the

three classes of men, the noble, the common freeman, and

the slave—universal prevalence of slavery—the Teutonic

institutions common to the whole Aryan family—witness

of Homer—description of the German Assemblies by

Tacitus—continuity of English institutions—English

nationality assumed—Teutonic institutions brought into

Britain by the English conquerors—effects of the settlement

on the conquerors—probable increase of slavery—Earls and

Churls—growth of the kingly power—nature of kingship—special

sanctity of the King—immemorial distinction between Kings

and Ealdormen—kingship not universal—names expressing

kingship—beginning of kingship in England—fluctuation between

Kings and Ealdormen—the kingly power strengthened by the

increase of the King’s territory—relations between the King

and the nation—power of the Witan—right of election and

deposition—growth of the kingly power by the _commendation_ of

the chief men—the _Comitatus_ as described by Tacitus—poem on

the Battle of Maldon—contrast of Roman and Teutonic feeling as

to personal service—instances of personal service in later

times—personal service and the holding of land not originally

connected—their union produces the feudal relation—growth

of the Thegns—they supplant the Earls—effects of the

change—change confirmed by the Norman Conquest _Pp._ 1-55

CHAPTER II.

Gradual growth of the English Constitution—new laws seldom

called for—importance of precedent—return to early principles

in modern legislation—shrinking up of the ancient national

Assemblies—constitution of the Witenagemót—the Witenagemót

continued in the House of Lords—Gemóts after the Norman

Conquest—the King’s right of summons—Life Peerages—origin of

the House of Commons—comparison of English and French national

Assemblies—of English and French history generally—course of

events influenced by particular men—Simon of Montfort—France

under Saint Lewis—bad effect of his virtues—good effect of

the vices of the Angevin Kings in England—effect of the

personal character of William the Conqueror—the Normans

in England gradually become English—the Angevins neither

Norman nor English—their love of foreigners—struggle against

the King and the Pope—national character of the English

Church—separation of ecclesiastical and temporal jurisdiction

under William—supremacy of the Crown—its abuse—good side of

ecclesiastical claims—interference of the Popes in English

affairs—the Pope and the King in league against the English

Church and nation—importance of London—general growth

of the towns—beginning of representation—Knights of the

shire—judicial powers of Parliament—citizens and burgesses

first summoned by Earl Simon—his connexion with Bourdeaux and

London—Simon a foreigner—religious reverence shown to him and

to other political worthies—Edward the First—the Constitution

finally completed under him—nature of later changes—difference

between English and continental legislatures—system of

Estates—three Estates of the Realm—no nobility in England—no

separate Estate of the Clergy practically established—effects

of the union of knights and citizens in one House—incidental

origin of the system of two Houses—misuse of the phrase “three

Estates”—growth of the House of Commons—general harmony of the

two Houses—great powers of the early Parliaments—character of

the fifteenth century—Parliaments less independent—narrowing

of the county franchise—popular elections of Kings—signs

of the importance of Parliament—character of the sixteenth

century—general decay of free institutions in Europe—their

preservation in England—subserviency of Parliament—its

causes—effects of the personal character of Henry the

Eighth—his respect for the outward forms of Law—indirect

witnesses to the importance of Parliament—tampering with

elections—enfranchisement of corrupt boroughs—Parliament under

Elizabeth—James the First—Charles the First—nature of later

changes. _Pp._ 56-110

CHAPTER III.

Character of later constitutional developments—greater

importance of silent changes—growth of the unwritten

_Constitution_ as distinguished from the written _Law_—Sir

Robert Peel’s vote of want of confidence—its bearings—the

growth of the Constitution implies the firm establishment of

the Law—relations between the Crown, the Ministry, and the

Parliament—indirect exercise of parliamentary power—origin

of the Ministry—recent use of the word _Government_—causes

and advantages of indirect parliamentary action—growth of

professional lawyers—their influence on constitutional

doctrines—their reasoning mainly sound, but their premisses

commonly worthless—return of modern legislation to the

earliest state of things—doctrine that Parliament expires by

a demise of the Crown—an inference from the doctrine about

the King’s writ—contrast with Old-English constitutional

doctrines—doubts and difficulties which Old-English

principles would have answered—case of 1399—deposition

of Richard and election of Henry—legal subtleties about

the character and continuance of the Parliament—case of

1660—question as to the continuance of the Long Parliament

after the execution of Charles the First—question as to the

nature and powers of the Convention Parliament—the Convention

declared to be a Parliament by its own act—question of

1688-9—history of the second Convention Parliament—question as

to the effects of Mary’s death—each of these acts a return to

earlier doctrines—their value as possible precedents—modern

legislation as to the demise of the Crown—Parliament no longer

dissolved by it—Act of William the Third—Act of George the

Third—Act of Victoria—reasonableness of this legislation—case

of the _Folkland_ or public land—its gradual change into

_Terra Regis_ or demesne land—the national revenue disposed of

at the King’s pleasure—return to earlier doctrines in modern

practice—case of the private estates of the King—dealt with in

earlier times like any other estates—doctrine that the private

estates of the King merged in the demesne of the Crown—return

to ancient practice by modern legislation—other cases of

return to ancient principles—history of the succession to the

Crown—the Crown anciently elective—preference for members

of the royal family—growth of the doctrine of hereditary

right—treatment of the law of succession by lawyers—twofold

election of the King—his ecclesiastical coronation—the

ecclesiastical election survives the civil—state of the

succession in the fourteenth and fifteenth centuries—right

of Parliament to dispose of the Crown—election of Henry the

Eighth—settlement of the Crown by his will—usurpation of the

Stewarts—their doctrine of divine right—the ancient right

asserted by the election of William and Mary—the Crown made

hereditary by the Act of Settlement—good side of hereditary

succession in modern times—conclusion. _Pp._ 111-160

NOTES _Pp._ 161-230

THE GROWTH OF THE ENGLISH CONSTITUTION FROM THE _EARLIEST TIMES_.

CHAPTER I.

Year by year, on certain spots among the dales and the mountain-sides

of Switzerland, the traveller who is daring enough to wander out of

beaten tracks and to make his journey at unusual seasons may look on a

sight such as no other corner of the earth can any longer set before

him. He may there gaze and feel, what none can feel but those who have

seen with their own eyes, what none can feel in its fulness more than

once in a lifetime, the thrill of looking for the first time face to

face on freedom in its purest and most ancient form. He is there in a

land where the oldest institutions of our race, institutions which may

be traced up to the earliest times of which history or legend gives us

any glimmering, still live on in their primæval freshness. He is in

a land where an immemorial freedom, a freedom only less eternal than

the rocks that guard it, puts to shame the boasted antiquity of kingly

dynasties, which, by its side, seem but as innovations of yesterday.

There, year by year, on some bright morning of the spring-tide, the

Sovereign People, not entrusting its rights to a few of its own number,

but discharging them itself in the majesty of its corporate person,

meets in the open market-place or in the green meadow at the mountain’s

foot, to frame the laws to which it yields obedience as its own work,

to choose the rulers whom it can afford to greet with reverence as

drawing their commission from itself. Such a sight there are but few

Englishmen who have seen; to be among those few I reckon among the

highest privileges of my life. Let me ask you to follow me in spirit

to the very home and birth-place of freedom, to the land where we need

not myth and fable to add aught to the fresh and gladdening feeling

with which we for the first time tread the soil and drink in the

air of the immemorial democracy of Uri(1). It is one of the opening

days of May; it is the morning of Sunday; for men there deem that

the better the day the better the deed; they deem that the Creator

cannot be more truly honoured than in using, in His fear and in His

presence, the highest of the gifts which He has bestowed on man. But

deem not that, because the day of Christian worship is chosen for the

great yearly assembly of a Christian commonwealth, the more directly

sacred duties of the day are forgotten. Before we, in our luxurious

island, have lifted ourselves from our beds, the men of the mountains,

Catholic and Protestant alike, have already paid the morning’s worship

in God’s temple. They have heard the mass of the priest or they have

listened to the sermon of the pastor, before some of us have awakened

to the fact that the morn of the holy day has come. And when I saw men

thronging the crowded church, or kneeling, for want of space within,

on the bare ground beside the open door, when I saw them marching

thence to do the highest duties of men and citizens, I could hardly

forbear thinking of the saying of Holy Writ, that “where the Spirit

of the Lord is, there is liberty.” From the market-place of Altdorf,

the little capital of the Canton, the procession makes its way to the

place of meeting at Böblingen. First marches the little army of the

Canton, an army whose weapons never can be used save to drive back an

invader from their land(2). Over their heads floats the banner, the

bull’s head of Uri, the ensign which led men to victory on the fields

of Sempach and Morgarten. And before them all, on the shoulders of men

clad in a garb of ages past, are borne the famous horns, the spoils of

the wild bull of ancient days, the very horns whose blast struck such

dread into the fearless heart of Charles of Burgundy(3). Then, with

their lictors before them, come the magistrates of the commonwealth on

horseback(4), the chief magistrate, the Landammann, with his sword by

his side. The people follow the chiefs whom they have chosen to the

place of meeting, a circle in a green meadow, with a pine forest rising

above their heads and a mighty spur of the mountain range facing them

on the other side of the valley. The multitude of freemen take their

seats around the chief ruler of the commonwealth, whose term of office

comes that day to an end. The Assembly opens; a short space is first

given to prayer, silent prayer offered up by each man in the temple

of God’s own rearing. Then comes the business of the day. If changes

in the law are demanded, they are then laid before the vote of the

Assembly, in which each citizen of full age has an equal vote and an

equal right of speech. The yearly magistrates have now discharged all

their duties; their term of office is at an end; the trust which has

been placed in their hands falls back into the hands of those by whom

it was given, into the hands of the sovereign people. The chief of the

commonwealth, now such no longer, leaves his seat of office and takes

his place as a simple citizen in the ranks of his fellows. It rests

with the free will of the Assembly to call him back to his chair of

office, or to set another there in his stead. Men who have neither

looked into the history of the past, nor yet troubled themselves

to learn what happens year by year in their own age, are fond of

declaiming against the caprice and ingratitude of the people, and of

telling us that under a democratic government neither men nor measures

can remain for an hour unchanged. The witness alike of the present and

of the past is an answer to baseless theories like these. The spirit

which made democratic Athens year by year bestow her highest offices

on the patrician Periklês and the reactionary Phôkiôn(5) still lives

in the democracies of Switzerland, alike in the Landesgemeinde of Uri

and in the Federal Assembly at Bern. The ministers of Kings, whether

despotic or constitutional, may vainly envy the sure tenure of office

which falls to the lot of those who are chosen to rule by the voice of

the people. Alike in the whole Confederation and in the single Canton

reelection is the rule; the rejection of the out-going magistrate is

the rare exception(6). The Landammann of Uri, whom his countrymen

have raised to the seat of honour, and who has done nothing to lose

their confidence, need not fear that when he has gone to the place of

meeting in the pomp of office, his place in the march homeward will be

transferred to another against his will.

Such is the scene, which, save for a moment, when the world was turned

upside down by the inroads of revolutionary France(7), has gone on

year by year as far as history goes back in the most unchanged of

European states. Let me ask you to follow me yet again to the place of

assembly of a younger member of the same noble band of commonwealths

(8), to pass from Uri to Appenzell, from the green meadows of Bözlingen

to the hill-side market-place of Trogen. Somewhat of the pomp and

circumstance which marks the assembly of Catholic and pastoral Uri is

lacking in the assembly of the Protestant and industrial population of

the Outer Rhodes of Appenzell. But the stamp of antiquity, the stamp

of immemorial freedom, is impressed alike on the assembly and on the

whole life of either commonwealth. We miss in Appenzell the solemn

procession, the mounted magistrates, the military pomp, of Uri, but

we find in their stead an immemorial custom which breathes perhaps

more than any other the spirit of days when freedom was not a thing of

course, but a thing for which men had to give their toil and, if need

be, their blood. Each man who makes his way to the Landesgemeinde of

Trogen bears at his side the sword which the law at once commands him

to carry and forbids him to draw(9). And in the proceedings of the

assembly itself, the men of Appenzell have kept one ancient rite, which

surpasses all that I have ever seen or heard of in its heart-stirring

solemnity. When the newly chosen Landammann enters on his office,

his first duty is to bind himself by an oath to obey the laws of the

commonwealth over which he is called to rule. His second duty is to

administer to the multitude before him the same oath by which he has

just bound himself. To hear the voice of thousands of freemen pledging

themselves to obey the laws which they themselves have made is a moment

in one’s life which can never be forgotten, a moment for whose sake it

would be worth while to take a far longer and harder journey than that

which leads us to Uri or Appenzell.

And now I may be asked why I have begun a discourse on the constitution

of England with a picture of the doings of two small commonwealths

whose political and social state is so widely different from our own. I

answer that I have done so because my object is, not merely to speak of

the constitution of England in the shape which the changes of fourteen

hundred years have at last given it, but to trace back those successive

changes to the earliest times which either history or tradition sets

before us. In the institutions of Uri and Appenzell, and in others of

the Swiss Cantons which have never departed from the primæval model, we

may see the institutions of our own forefathers, the institutions which

were once common to the whole Teutonic race, institutions whose outward

form has necessarily passed away from greater states, but which contain

the germs out of which every free constitution in the world has grown.

Let us look back to the earliest picture which history can give us of

the political and social being of our own forefathers. In the Germany

of Tacitus we have the picture of the institutions of the Teutonic race

before our branch of that race sailed from the mouths of the Elbe and

the Weser to seek new homes by the Humber and the Thames. There, in the

picture of our fathers and brethren seventeen hundred years back, the

free Teutonic Assembly, the armed Assembly of the whole people, is set

before us, well nigh the same, in every essential point, as it may

still be seen in Uri, Unterwalden, Glarus, and Appenzell. One point

however must be borne in mind. In the assemblies of those small Cantons

it is only the most democratic side of the old Teutonic constitution

which comes prominently into sight. The commonwealth of Uri, by the

peculiar circumstances of its history, grew into an independent and

sovereign state. But in its origin it was not a nation, it was not

even a tribe(10). The Landesgemeinden of which I have been speaking

are the Assemblies, not of a nation but of a district; they answer in

our own land, not to the Assemblies of the whole Kingdom, but to the

lesser Assemblies of the shire or the hundred. But they are not on

that account any the less worthy of our notice, they do not on that

account throw any the less light on that common political heritage

which belongs alike to Swabia and to England. In every Teutonic land

which still keeps any footsteps of its ancient institutions, the

local divisions are not simply administrative districts traced out

for convenience on the map. In fact, they are not divisions at all;

they are not divisions of the Kingdom, but the earlier elements out

of whose union the Kingdom grew. Yorkshire, by that name, is younger

than England, but Yorkshire, by its elder name of Deira, is older than

England(11). And Yorkshire or Deira itself is younger than the smaller

districts of which it is made up, Craven, Cleveland, Holderness, and

others. The Landesgemeinde of Uri answers, not to an Assembly of

all England, not to an Assembly of all Deira, but to an Assembly of

Holderness or Cleveland. But in the old Teutonic system the greater

aggregate was simply organized after the model of the lesser elements

out of whose union it was formed. In fact, for the political unit,

for the atom which joined with its fellow atoms to form the political

whole, we must go to areas yet smaller than those of Holderness or

Uri. That unit, that atom, the true kernel of all our political life,

must be looked for in Switzerland in the _Gemeinde_ or _Commune_; in

England—smile not while I say it—in the parish vestry(12).

The primitive Teutonic constitution, the constitution of the Germans

of Tacitus, the constitution which has lingered on in a few remote

corners of the old German realm, is democratic, but it is not purely

democratic. Or rather it is democratic, purely democratic, in the

truer, older, and more honourable sense of that much maligned word;

it is not purely democratic in that less honourable, but purely

arbitrary, sense which is often put upon it in modern controversy.

Democracy, according to Periklês, is a government of the whole

people, as opposed to oligarchy, a government of only a part of the

people(13). A government which vests all power in any one class, a

government which shuts out any one class, whether that class be the

highest or the lowest, does not answer the definition of Periklês;

it is not a government of the whole but only of a part; it is not a

democracy but an oligarchy(14). Democracy, in the sense of Periklês,

demands that every freeman shall have a voice in the affairs of the

commonwealth; it does not necessarily demand that every freeman should

have an equal voice. It does not forbid the existence of magistrates

clothed with high authority and held in high reverence, nor does it

forbid respect for ancient birth or even an attachment to an hereditary

line of rulers. The older school of English constitutional writers

delighted to show that the English Constitution contained a monarchic,

an aristocratic, and a democratic element, the three being wrought

together in such true and harmonious proportion that we could enjoy

the good side of all the three great forms of government without ever

seeing the evil side of any of them. These worthy speculators were

perhaps a little Utopian in their theories; still there is no doubt

that, in every glimpse we get of old Teutonic politics, we see what we

may fairly call a monarchic, an aristocratic, and a democratic element.

Those earliest glimpses set before us three classes of men as found in

every Teutonic society, the noble, the common freeman, and the slave

(15). The existence of the slave, harshly as the name now grates on our

ears, is no special shame or blame to our own forefathers. Slavery, in

some shape or other, has unhappily been the common law of most nations

in most ages; it is a mere exception to the general rule that, partly

through the circumstances of most European countries, partly through

the growth of humanity and civilization, the hateful institution has,

during a few centuries past, gradually disappeared from a certain

portion of the earth’s surface. And we must not forget that, in many

states of society, the doom of slavery may have been thankfully

received as an alleviation of his lot by the man whose life was

forfeited either as a prisoner in merciless warfare or as a wrong-doer

sentenced for his crimes(16). But I mention the existence of slavery

only that we may remember that when we speak of freedom, freeman,

democracy, and the like, we are after all speaking of the rights of

a privileged class—that, whether in Athens, in Rome, or in the early

Teutonic communities, there was always a large mass of human beings

who had no share in the freedom, the victory, or the glory of their

masters. We are now more closely concerned with those distinctions

which, from the earliest times, we find among the freemen themselves.

In the Germany of Tacitus, as at this day in the democratic Cantons,

the sovereign power is vested in the whole people, acting directly in

their own persons. But if the sovereignty of the popular Assembly is

plainly set before us, we have also no less plainly set before us the

existence of a Council smaller than the popular Assembly, and also

the existence of a class of nobles, the nature and extent of whose

privileges is not very well defined, but who clearly had privileges

of some kind or other, and whose privileges passed on by hereditary

descent. Here we have an aristocratic element as distinctly marked as

the democratic element which is supplied by the popular Assembly. And

at the head of all we see personal chiefs of tribes and nations, chiefs

bearing different titles, Kings, Dukes, or Ealdormen, who in most cases

drew their title to rule from an union of birth and election, rulers

whom the nation chose and whom the nation could depose, but who still

were the personal leaders of the nation, its highest magistrates in

peace, its highest leaders in war. Here then, besides the democratic

and the aristocratic elements, we have a distinct monarchic element

standing out clearly in our earliest glimpses of Teutonic political

life. King, Lords, and Commons, in their present shapes, are something

comparatively recent, but we may see something which may fairly pass as

the germ of King, Lords, and Commons, from the very beginning of our

history.

I will even go a step further. The Constitution which I have just

sketched is indeed the common possession of the Teutonic race, but it

is something more. We should perhaps not be wrong if we were to call

it a common possession of the whole Aryan family of mankind. It is

possible that we may even find traces of it beyond the bounds of the

Aryan family(17). But I will put speculations like these aside. It is

enough for me that the Constitution which was the common heritage of

the Teutonic race, was an heritage which the Teuton shared with his

kinsfolk in Greece and Italy. Turn to the earliest records of European

civilization. In the Homeric poems we see a constitution, essentially

the same as that which is set before us in the Germany of Tacitus,

established alike in the Achaian camp before Ilios, in the island

realm of Ithakê, and even among the Gods on Olympos. Zeus is the King

of all; but he has around him his Council of the greater Gods, and

there are times when he summons to his court the whole Assembly of the

Divine nation, when Gods of all ranks gather together in the court of

their chief, when, save old Ocean himself, even all the River-gods were

there, and when we are specially told—a fact which might perhaps be

pressed into the service of very recent controversies—that not one of

the Nymphs stayed away(18). If we come down to earth, we find the King

of Men as the common leader of all, but we find him surrounded by his

inner Council of lesser princes and captains. And on great occasions,

Agamemnôn on earth, like Zeus in heaven, gathers together the general

Assembly of freeborn warriors, an assembly in which, if debate was

mainly confined to a few eloquent leaders, the common freeman, the

undistinguished citizen and soldier, had at least the right of speaking

his mind as to the proposals of his chiefs, by loud applause or by

emphatic silence(19). Nor is this picture confined to the host in

battle array beneath the walls of Ilios; we must remember that in

all early societies the distinction between soldier and civilian is

unknown; the army is the nation, and the nation is the army. The same

picture which the Iliad sets before us as the constitution of the

Achaian army is set before us in the glimpses of more peaceful life

which we find in the Odyssey as being no less the constitution of

every Hellenic commonwealth on its own soil. Everywhere we find the

same three elements, the supreme leader or King, the lesser chiefs who

form his Council, and the final authority of all, the general Assembly

of the freemen(20). We see the same in every glimpse which history

or legend gives us of the political state of Rome and the other old

Italian commonwealths(21). Everywhere we find the King, the Senate,

the Assembly of the people, and the distribution of powers is not

essentially changed when the highest personal authority is transferred

from the hands of a King chosen for life to the hands of Consuls

chosen for a year(22). The likeness between the earliest political

institutions of the Greek, the Italian, and the Teuton is so close,

so striking in every detail, that we can hardly fail to see in it

possession handed on from the earliest times, a possession which Greek,

Italian, and Teuton already had in the days before the separation, in

those unrecorded but still authentic times when Greek, Italian, and

Teuton were still a single people speaking a single tongue.

I have referred more than once to the picture of our race in its

earliest recorded times, as set before us by the greatest of Roman

historians in the Germany of Tacitus. Let me now set before you some

special points of his description in his own words as well as I am able

to clothe them in an English dress(23).

“They choose their Kings on account of their nobility, their leaders on

account of their valour. Nor have the Kings an unbounded or arbitrary

power, and the leaders rule rather by their example than by the right

of command; if they are ready, if they are foreward, if they are

foremost in leading the van, they hold the first place in honour....

On smaller matters the chiefs debate, on greater matters all men; but

so that those things whose final decision rests with the whole people

are first handled by the chiefs.... The multitude sits armed in such

order as it thinks good; silence is proclaimed by the priests, who have

also the right of enforcing it. Presently the King or chief, according

to the age of each, according to his birth, according to his glory in

war or his eloquence, is listened to, speaking rather by the influence

of persuasion than by the power of commanding. If their opinions give

offence, they are thrust aside with a shout; if they are approved, the

hearers clash their spears. It is held to be the most honourable kind

of applause to use their weapons to signify approval. It is lawful also

in the assembly to bring matters for trial and to bring charges of

capital crimes.... In the same assembly chiefs are chosen to administer

justice through the districts and villages. Each chief in so doing has

a hundred companions of the commons assigned to him, as at once his

counsellors and his authority. Moreover they do no matter of business,

public or private, except in arms.”

Here we have a picture of a free commonwealth of warriors, in which

each freeman has his place in the state, where the vote of the general

Assembly is the final authority on all matters, but where both

hereditary descent and elective office are held in high honour. We

see also in a marked way the influence of personal character and of

the power of speech; we see the existence of local divisions, local

assemblies, local magistrates; in a word, we see in this picture of

our forefathers in their old land, seventeen hundred years ago, the

germs of all the institutions which have grown up step by step among

ourselves in the course of ages. And a Swiss of the democratic Cantons

would see in it, not merely the germs of his constitution, but the

living picture of the thing itself.

This immemorial Teutonic constitution was thus the constitution of our

forefathers in their old land of Northern Germany, before they made

their way into the Isle of Britain. And that constitution, in all its

essential points, they brought with them into their new homes, and

there, transplanted to a new soil, it grew and flourished, and brought

forth fruit richer and more lasting than it brought forth in the land

of its earlier birth. On the Teutonic mainland, the old Teutonic

freedom, with its free assemblies, national and local, gradually died

out before the encroachments of a brood of petty princes(24). In the

Teutonic island it has changed its form from age to age; it has lived

through many storms and it has withstood the attacks of many enemies,

but it has never utterly died out. The continued national life of the

people, notwithstanding foreign conquests and internal revolutions, has

remained unbroken for fourteen hundred years. At no moment has the tie

between the present and the past been wholly rent asunder; at no moment

have Englishmen sat down to put together a wholly new constitution in

obedience to some dazzling theory. Each step in our growth has been the

natural consequence of some earlier step; each change in our law and

constitution has been, not the bringing in of anything wholly new, but

the developement and improvement of something that was already old.

Our progress has in some ages been faster, in others slower; at some

moments we have seemed to stand still, or even to go back; but the

great march of political developement has never wholly stopped; it has

never been permanently checked since the day when the coming of the

Teutonic conquerors first began to change Britain into England. New

and foreign elements have from time to time thrust themselves into our

law; but the same spirit which could develope and improve whatever was

old and native has commonly found means sooner or later to cast forth

again whatever was new and foreign. The lover of freedom, the lover of

progress, the man who has eyes keen enough to discover real identity

under a garb of outward unlikeness, need never shrink from tracing up

the political institutions of England to their earliest shape. The

fourteen hundred years of English history are the possession of those

who would ever advance, not the possession of those who would stand

still or go backwards. The wisdom of our forefathers was ever shown,

not in a dull and senseless clinging to things as they were at any

given moment, but in that spirit, the spirit alike of the true reformer

and the true conservative, which keeps the whole fabric standing, by

repairing and improving from time to time whatever parts of it stand in

need of repair or improvement. Let ancient customs prevail(25); let

us ever stand fast in the old paths. But the old paths have in England

ever been the paths of progress; the ancient custom has ever been to

shrink from mere change for the sake of change, but fearlessly to

change whenever change was really needed. And many of the best changes

of later times, many of the most wholesome improvements in our Law and

Constitution, have been only the casting aside of innovations which

have crept in in modern and evil times. They have been the calling up

again, in an altered garb, of principles as old as the days when we get

our first sight of our forefathers in their German forests. Changed as

it is in all outward form and circumstance, the England in which we

live, has, in its true life and spirit, far more in common with the

England of the earliest times than it has with the England of days far

nearer to our own. In many a wholesome act of modern legislation, we

have gone back, wittingly or unwittingly, to the earliest principles

of our race. We have advanced by falling back on a more ancient state

of things; we have reformed by calling to life again the institutions

of earlier and ruder times, by setting ourselves free from the slavish

subtleties of Norman lawyers, by casting aside as an accursed thing the

innovations of Tudor tyranny and Stewart usurpation.

I have said that the primæval Teutonic constitution was brought with

them by our Teutonic forefathers when they came as conquerors into the

Isle of Britain. I will not again go into the details of the English

Conquest, the settlement which gave us a new home in a new land, nor

into all the questions and controversies to which the details of the

English Conquest have given rise. I have spoken of them over and over

again with my voice and with my pen, and I hope I may now take for

granted what I have fully argued out elsewhere(26). I hope that I

may be allowed to assume the plain facts of the case, without going

through the details of every point. I will assume then—for it is that

to which the question really comes—that England is England and that

Englishmen are Englishmen. I will assume that we are not Romans or

Welshmen, but that we are the descendants of the Angles, Saxons, and

Jutes who came hither in the fifth and sixth centuries, of the Danes

and Northmen who came hither in the ninth. I will assume that we are

a people, not indeed of unmixed Teutonic blood—for no people in the

world is of absolutely unmixed blood—but a people whose blood is not

more mixed than that of any other nation; that Englishmen are as truly

Englishmen as Britons are Britons or as High-Germans are High-Germans.

I will assume that what is Teutonic in us is not merely one element

among others, but that it is the very life and essence of our national

being; that whatever else we may have in us, whatever we have drawn

from those whom we conquered or from those who conquered us, is no

coordinate element, but a mere infusion into our Teutonic essence;

in a word I will assume that Englishmen are Englishmen, that we are

ourselves and not some other people. I assume all this; if any man

disputes it, if any man chooses not to be an Englishman but to be a

Welshman or a Roman, I cannot argue with him now; I can only ask him to

turn to the arguments which I have urged on all those points in other

times and places. I assume that, as we have had one national name, one

national speech, from the beginning, we may be fairly held to have an

unbroken national being. And when we find a Teutonic-speaking people

in Britain living under the same political and social forms as the

Teutonic-speaking people of the mainland, it is surely no very rash or

far-fetched inference that the tongue and the laws which they have in

common are a common possession drawn from a common source; that the

island colony in short came itself, and brought its laws and language

with it, from the elder mother-land beyond the sea.

Our fathers then came into Britain, and they brought with them the

same primæval political system, the same distinctions of rank, the

same division of political power, which they had been used to in their

elder Anglian and Saxon homes. The circumstances of the Conquest would

no doubt bring about some changes. It would probably tend to increase

the numbers of the class of slaves. Such of the natives as were neither

slain nor driven out would of course pass into that class. Especially,

though there is no doubt that our forefathers brought their women with

them from their own homes, there is no doubt that many British women

passed into bondage, so much so that one of the common Old-English

names for a female slave is _Wylne_ or _Welshwoman_(27). And we may

infer that this increased familiarity with slavery would tend to

strengthen the custom by which freemen guilty of crimes were reduced

to slavery by sentence of law. Again, I suspect that the circumstances

of the Conquest did something to raise the position both of the common

freeman and of the King or leader, as compared with the intermediate

class of nobles. No two things are more levelling than colonization and

successful warfare. The levelling effect of colonization is obvious;

the levelling effect of warfare is not so obvious in modern times. In

modern armies, where there is a strictly defined system of military

ranks, where the distinction of officer and private is broadly drawn,

where the private soldier is little more than a machine in the hands of

his commander, the effect may even be the other way. But in an earlier

state of things, where victory depends on the individual prowess of

each man, nothing can be more levelling than warfare. Honour and profit

fall to the lot of the stoutest heart and the strongest arm, whether

their owner be noble or peasant in his own land. And this would be

still more the case when war and colonization went hand in hand, when

success brought not only victory but conquest, when men fought, not

to go back loaded with glory and plunder to their old homes, but to

win for themselves new homes as the reward of their valour. On the

other hand, in an early state of things personal influence is almost

everything; a vigorous and popular ruler is practically absolute,

because no one has the wish to withstand his will, but a weak or

unpopular ruler can exercise no authority whatever. In such a state of

things as this no one can so easily gain the authority of unbounded

influence as the military chief who leads his tribe to victory. And

again, that influence would be increased tenfold when the successful

chief led them not only to victory but to conquest, when he was not

only a ruler but a founder, the man who had led his people to win for

themselves a new land, to create a new state, the prize of his sword

and of theirs. Mere nobility of birth, however highly honoured, would

be but a feeble influence compared with either of these influences

above and below it. I think that we may trace something of the results

of these influences in the position of the oldest English nobility.

That there was a difference between the noble and the common freeman,

in Old-English phrase between the _Eorl_ and the _Ceorl_(28), is shown

by countless allusions to the distinction in our earliest records. But

it is by no means easy to say what the distinction really was. And,

as we shall presently see that this primitive nobility gradually gave

way to a nobility of quite another kind and founded on quite another

principle, we may perhaps be inclined to think that, at least after the

settlement of the English in Britain, the privileges of the _Eorlas_

were little more than honorary. I need hardly say that a traditional

deference for high birth, a traditional preference for men of certain

families in the disposal of elective offices, may go on when birth

carries with it no legal privilege whatever. Nowhere has this been more

strikingly shown than in those democratic Cantons of Switzerland of

which I have already spoken. In a commonwealth where magistrates were

chosen yearly, where every freeman had an equal vote in their choice,

it still happened that, year after year, the representatives of certain

famous houses were chosen as if by hereditary right. Such were the

Barons of Attinghausen in Uri and the house of Tschudi in Glarus(29).

And, whatever we say of such a custom in other ways, it was surely

well suited to have a good effect on the members of these particular

families; it was well suited to raise up in them a succession of men

fitted to hold the high offices of the commonwealth. A man who knows

that, if he be at all worthy of a certain post of honour, he will be

chosen to it before any other man, but who also knows that, if he

shows himself unworthy of it, he may either fail to attain it at all

or may be peacefully removed from it at the end of any twelvemonth, is

surely under stronger motives to make himself worthy of the place which

he hopes to fill than either the man who has to run the chance of an

unlimited competition or the man who succeeds to honour and authority

by the mere right of his birth.

Our fathers then came into Britain, bringing with them the three

elements of the primitive constitution which we find described by

Tacitus; but as I am inclined to think, the circumstances of the

Conquest did something, for a while at least, to strengthen the powers

both of the supreme chief and of the general body of the people at the

expense of the intermediate class of _Eorlas_ or nobles. Let us first

trace the origin and growth of the power of the supreme leader, in

other words, the monarchic element, the kingly power. What then is a

King? The question is much more easily asked than answered. The name

of King has meant very different things in different times and places;

the amount of authority attached to the title has varied greatly in

different times and places. Still a kind of common idea seems to run

through all its different uses; if we cannot always define a King,

we at least commonly know a King when we see him. The King has, in

popular sentiment at least, a vague greatness and sanctity attaching

to him which does not attach to any mere magistrate, however high

in rank and authority. I am not talking of the reason of the thing,

but of what, as a matter of fact, has at all times been the popular

feeling. Among the heathen Swedes, it is said that, when public affairs

went wrong,—that is, in the state of things when we should now turn

a Minister out of office and when our forefathers some generations

back would have cut off his head,—they despised any such secondary

victims, and offered the King himself in sacrifice to the Gods(30).

Such a practice certainly implies that our Scandinavian kinsfolk

had not reached that constitutional subtlety according to which the

responsibility of all the acts of the Sovereign is transferred to some

one else. They clearly did not, like modern constitution-makers, look

on the person of the King as inviolable and sacred. But I suspect

that the very practice which shows that they did not look on him as

inviolable shows that they did look on him as sacred. Surely the reason

why the King was sacrificed rather than any one else was because there

was something about him which there was not about any one else, because

no meaner victim would have been equally acceptable to the Gods. On

the other hand—to stray for a moment beyond the range of Teutonic and

even of Aryan precedent—we read that the ancient Egyptians forestalled

the great device of constitutional monarchy, that their priests,

in a yearly discourse, dutifully attributed all the good that was

done in the land to the King personally and all the evil to his bad

counsellors(31). These may seem two exactly opposite ways of treating

a King; but the practice of sacrificing the King, and the practice of

treating the King as one who can do no wrong, both start from the

same principle, the principle that the King is, somehow or other,

inherently different from everybody else. Our own Old-English Kings,

like all other Teutonic Kings, were anything but absolute rulers; the

nation chose them and the nation could depose them; they could do no

important act in peace or war without the national assent; yet still

the King, as the King, was felt to hold a rank differing in kind from

the rank held by the highest of his subjects. Perhaps the distinction

mainly consisted in a certain religious sentiment which attached

to the person of the King, and did not attach to the person of any

inferior chief. In heathen times, the Kings traced up their descent

to the Gods whom the nation worshipped; in Christian times, they were

distinguished from lesser rulers by being admitted to their office

with ecclesiastical ceremonies; the chosen of the people became also

the Anointed of the Lord. The distinction between Kings and rulers of

any other kind is strictly immemorial; it is as old as anything that

we know of the political institutions of our race. The distinction is

clearly marked in the description which I read to you from Tacitus. He

distinguishes in a marked way _Reges_ and _Duces_, Kings and Leaders;

Kings whose claim to rule rested on their birth, and leaders whose

claim to rule rested on their personal merit. But from the same writer

we learn that, though the distinction was so early established and so

well understood, it still was not universal among all the branches of

the Teutonic race. Of the German nations described by Tacitus, some,

he expressly tells us, were governed by Kings, while others were

not(32). That is to say, each tribe or district had its own chief, its

magistrate in peace and its leader in war, but the whole nation was

not united under any one chief who had any claim to the special and

mysterious privileges of kingship. That is to say, though we hear of

kingship as far back as our accounts will carry us, yet kingship was

not the oldest form of government among the Teutonic tribes. The King

and his Kingdom came into being by the union of several distinct tribes

or districts, which already existed under distinct leaders of their

own, and in our own early history we can mark with great clearness the

date and circumstances of the introduction of kingship. We should be

well pleased to know what were the exact Teutonic words which Tacitus

expressed by the Latin equivalents _Rex_ and _Dux_. As for the latter

at least, we can make a fair guess. The Teutonic chief who was not a

King bore the title of _Ealdorman_ in peace and of _Heretoga_ in war.

The former title needs no explanation. It still lives on among us,

though with somewhat less than its ancient dignity. The other title

of _Heretoga_, army-leader, exactly answering to the Latin _Dux_, has

dropped out of our own language, but it survives in High-German under

the form of _Herzog_, which is familiarly and correctly translated

by _Duke_(33). The _Duces_ of Tacitus, there can be no doubt, were

_Ealdormen_ or _Heretogan_. It is less clear what the title was which

he intended by _Rex_. Our word _Cyning, King_, is common to all the

existing Teutonic tongues, and we find it as far back as we can trace

the English language(34). But it is not the only, nor seemingly the

oldest, word to express the idea. In the oldest monument of Teutonic

speech, the Gothic translation of the Scriptures, the word _King_, in

any of its forms, is not found. The word there used is _Thiudans_(35).

And there is a third word _Drihten_, which in English is most commonly

used in a religious sense(36). I would ask you to bear with me while

I plunge for a moment into some obsolete Teutonic etymologies, as

I think that the analogies of these three words are not a little

interesting. All three names come from, or are closely connected with,

words meaning the race or people. One of those words, _Cyn_ or _Kin_,

we still keep in modern English with no change of sound and with very

little change of meaning. Now, the word _Cyning_, in its shortened

form _King_, either comes straight from the substantive _Cyn_, or else

from a closely connected adjective _Cyne_, noble, just like the Latin

_generosus_ from Genus, which, let me add, is the same word as our

English _Cyn_. Let no one delude you into thinking that _King_ has

anything to do with the _canning_ or _cunning_ man. The man who first

said that it had had simply not learned his Old-English grammar(37).

It has to do with _Cyn_ and _Cyne_, and it may be taken as “the noble

one,” or, as _ing_ is the Teutonic patronymic, any one that chooses may

thus form _Cyning_ from _Cyn_, and make the King, not the father of his

people, but their offspring(38). Now the other two names, _Thiudans_

or _Theoden_, and _Drihten_, have dropped out of our language, and so

have the two words with which they are connected, just as _Cyning_ is

connected with _Cyn_. _Thiduans_ or _Theoden_ comes from _Thiuda_ or

_Theod_, also meaning _people_, a word which you will recognize in many

of the old Teutonic names, _Theodric_, _Theodberht_, _Theodbald_, and

the like. So _Drihten_ either comes straight from _Driht_, a family or

company, or else, just like _Cyn_ and _Cyne_, from an adjective _driht_

meaning noble or lordly. All these three names expressing kingship have

thus to do with words meaning the race or people. They imply the chief

of a people, something more than the chief of a mere tribe or district.

Now in our Old-English Chronicles, when they tell how the first English

Conquerors, Hengest and Horsa, settled in Kent, they do not call them

_Cyningas_ but _Heretogan_, Leaders or Dukes. It is not till after some

victories over the Britons that we hear that Hengest took the _rice_ or

kingdom, and that his son Æsc is called _King_. So in Wessex, the first

conquerors Cerdic and Cynric are called _Ealdormen_ when they land;

but, when they have established a settled dominion at the expense of

the Welsh, we read that they too took the _rice_, and the leaders of

the West-Saxons are henceforth spoken of as Kings(39). It is plain then

that the first leaders of the English settlements in Britain, when they

came over, bore only the lowlier title of _Heretoga_ or _Ealdorman_; it

was only when they had fought battles and found themselves at the head

of a powerful and victorious settlement on the conquered soil that they

were thought worthy of the higher title of Kings. And we may further

believe that, with all their exploits they would not have been thought

worthy of it, if they had not been held to come of the blood of the

Gods, of the divine stock of Woden.

We thus see that kingship in the strict sense of the word, as

distinguished from the government of Dukes or Ealdormen, had its

beginning among the English in Britain, not in the very first moment

of the Conquest, but in the years which immediately followed it,

within the lifetime of the first generation of conquerors. The same

distinction which we find among the Angles and Saxons we find also

among the kindred nations of Scandinavia. When the Danes and Northmen

began those invasions which led to such important settlements in

Northern and Eastern England, we always find two marked classes of

leaders, the Kings and the _Jarls_, the same word as _Eorl_. Of these

the _Jarls_ answer to the English _Ealdormen_(40). The distinction is

again clearly marked, when we read that the Old-Saxons, the Saxons

of the mainland, were ruled, not by Kings, but by what our Latin

writer is pleased to call _Satraps_—that is, of course, _Dukes_ or

_Ealdormen_(41). But it is most strongly marked of all in several

accounts where we read of nations which had been united under Kings

falling back again upon the earlier dominion of these smaller local

chiefs. Thus the Lombards in Italy, who had been led by Kings to

their great conquest, are said for a while to have given up kingly

government, and to have again set up a rule of independent Dukes.

So the West-Saxons in our own island are said at one time to have

cast away kingly government, and to have in the like sort fallen back

on the rule of independent _Ealdormen_(42). In all these cases, we

should be glad to know more clearly than we do what was the exact

distinction between the _King_ and the _Duke_ or _Ealdorman_. But it

is plain that the King was the representative of a closer national

unity, while the Ealdorman represented the tendency on the part of each

tribe or district to claim independence for itself. The government of

the Ealdorman may not have been less effective than that of the King.

If we remember the distinction drawn by Tacitus as to the respective

qualifications for the two offices, we may even believe that the rule

of the Ealdorman may have been the more effective. But we may be sure

that the Ealdorman was felt to be, in some way or other, less distant

from the mass of his people than the King was; the place of King could

be held only by one of the stock of Woden; the place of Ealdorman, it

would seem, was open to any man who showed that he possessed the gifts

which were needed in a leader of men.

Kingship thus became the law of all the Teutonic tribes which settled

in Britain and whose union made up the English nation. That union, we

must always remember, was very gradual. Step by step, smaller Kings or

independent Ealdormen admitted the supremacy of a more powerful King.

Then, in a second stage, the smaller state was absolutely incorporated

with the greater. Its ruler now, if he continued to rule at all, ruled

no longer as an independent or even as a vassal sovereign, but as a

mere magistrate, acting by the deputed authority of the sovereign of

whom he held his office(43). The settlement made by Cerdic and Cynric

on the southern coast grew, step by step, by the incorporation of many

small kingdoms and independent Ealdormanships, into the lordship of the

whole Isle of Britain, into the immediate kingship of all its English

inhabitants. The Ealdorman of a corner of Hampshire thus grew step by

step into the King of the West-Saxons, the King of the Saxons, the King

of the English, the Emperor of all Britain, the lord, in later times,

of a dominion reaching into every quarter of the world(44). But the

point which now concerns us is that, with each step in the growth of

the King’s territorial dominion, his political authority within that

dominion has grown also. The change from an Ealdorman to a King, the

change from a heathen King to a Christian King crowned and anointed,

doubtless did much to raise the power and dignity of the ruler who

thus at each change surrounded himself with new titles to reverence.

But this was not all. The mere increase in the extent of territorial

dominion would at each step work most powerfully to increase the direct

power of the King, and still more powerfully to increase the vague

reverence which everywhere attaches to kingship. In Homer we read of

Kings, some of whom were “more kingly,” more of Kings, than others.

So it was among ourselves. A King who reigned over all Wessex was

more of a King than a King who reigned only over the Isle of Wight,

and a King who reigned over all England was more of a King than a

King who reigned only over Wessex(45). The greater the territory over

which a King reigns the less familiar he becomes to the mass of his

people; he is more and more shrouded in a mysterious awe, he is more

and more looked on as a being of a different nature from other men,

of a different nature even from other civil magistrates and military

leaders, however high their authority and however illustrious their

personal character. Such a separation of the King from the mass of his

people may indeed, in some states of things, lead, not to the increase,

but to the lessening of his practical power. He may become in popular

belief too great and awful for the effectual exercise of power, and, by

dint of his very greatness, his practical authority may be transferred

to his representatives who govern in his name. He may be surrounded

with a worship almost more than earthly, while the reality of power

passes to a Mayor of the Palace, or is split up among the satraps of

distant provinces(45). But, with a race of vigorous and politic Kings

ruling over a nation whose tendencies are to closer unity and not to

wider separation, each step in the territorial growth of the kingdom

is also a step in the growth, not only of the formal dignity, but of

the practical authority of the King. The King of the English, who in

the eleventh century held the direct sovereignty of all England, the

over-lordship of all Britain, was a very different person from his

forefather, who in the sixth century deemed that another victory over

the Briton, the acquisition of another strip of British territory,

another hundred, it may be, of modern Hampshire, had made him great

enough to change his title of Ealdorman for that of King. Such a King

was every inch a King; his personal character was of the highest moment

for the good or evil fortune of his kingdom. His will counted for much

in the making of the laws by which his people were to be governed, and

in the disposal of honours and offices among those who were to govern

under him. But yet he was not a despot; men never forgot that the

King was what his name implied, the representative, the impersonation,

the offspring of the people. It was from the choice of the people that

he received his authority to rule over them, a choice limited under

all ordinary circumstances to the royal house, but which, within that

house, was not tied down by a blind regard to any particular law of

succession. It was a choice which at any time could fix itself on the

worthiest man of the royal house, and which, when the royal house

failed to supply a fitting candidate, could boldly fix itself on the

worthiest man of the whole people(47). And those from whom the King

first drew his power ever shared with him in its exercise. The laws,

the grants, the appointments to offices, which the King made, needed

the assent of the people in their national Assembly, the gathering of

the Wise Men of the whole land(48). And those who gave him his power

and who guided him in its exercise could also, when need so called,

take away the power which they had given. At rare intervals—for it is

only at rare intervals that so great a step is likely to be taken—has

the English nation exercised its highest power by taking away the

Crown from Kings who were unworthy to wear it. I speak not of acts of

violence or murder, or of processes which, though clothed under legal

form, were without precedent in our history. I speak not of the secret

death of Henry the Sixth or of the open execution of Charles the First.

I speak of the regular process of the Law. In Northumberland the right

of deposition was exercised with special frequency(49). But I will

speak only of that direct and unbroken line of Kings who from Kings of

the West-Saxons grew into the Kings of the English. Six times at least,

in the space of nine hundred years, from Sigeberht of Wessex to James

the Second, has the Great Council of the Nation thus put forth the

last and greatest of its powers(50). The last exercise of this power

has made its future exercise needless. All that in old times was to

be gained by the deposition of a King can now be gained by a vote of

censure on a Minister, or, in the extremest case, by his impeachment.

But, besides that growth of the King’s power which followed naturally

on the growth of the King’s dominions, another cause was busily at

work which clothed him with a personal influence which was of almost

greater moment than his political authority. To a large portion of

his subjects, to all the men of special wealth or power, the King

gradually became, not only King but _lord_; his subjects gradually

became, not only his subjects but his _men_. These names may need some

explanation, and I will again go back to Tacitus as our starting-point.

Side by side with the political community, the King, the nobles, the

popular Assembly, all of them strictly political powers, he describes

another institution, a relation in itself not political but purely

personal, but which gradually became of the highest political moment.

This was the institution of the _comitatus_, the system of personal

relation between a man and his lord, a relation of faithful service on

one side, of faithful protection on the other. Let us again hear the

words of the great Roman interpreter of our own earliest days(51).

“It is no shame among the Germans to be seen among the companions

(_comites_) of a chief. And there are degrees of rank in the

companionship (_comitatus_), according to the favour of him whom they

follow; and great is the rivalry among the companions which shall stand

highest in the favour of his chief, and also among the chiefs which

shall have the most and the most valiant companions.... When they come

to battle, it is shameful for the chief to be surpassed in valour; it

is shameful for his companions not to equal the valour of their chief.

It is even a badge of disgrace for the remainder of life if a man comes

away alive from the field on which his chief has fallen. To guard, to

defend him, to assign their own valiant deeds to his credit, is their

first religious duty. The chiefs fight for victory; the companions

fight for their chief.”

This is the description given by a Roman historian of the second

century; let me set beside it the words of an English poet of the

tenth. He is describing the battle of Maldon in 991, which was fought

by the East-Saxons under their Ealdorman Brihtnoth against the invading

Northmen. The Ealdorman has been killed; two of his followers have

fled, one of them on the Ealdorman’s horse, and every word that is put

into the mouth of his faithful companions turns upon the personal tie

between them and their lord(52).

“Thereon hewed him

The heathen soldiers;

And both the warriors

That near him by-stood,

Ælfnoth and Wulfmær both,

Lay there on the ground

By their lord;

Their lives they sold.

There bowed they from the fight

That there to be would not;

There were Odda’s bairns

Erst in flight;

Godric from battle went,

And the good man forsook

That to him ofttimes

Horses had given.

He leapt on the horse

That his lord had owned,

On the housings

That it not right was.”

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

“There was fallen

The folk’s Elder,

Æthelred’s Earl;

All there saw

Of his hearth’s comrades

That their lord lay dead.

Then there went forth

The proud Thanes,

The undaunted men

Hastened gladly;

They would there all

One of two things,

Either life forsake,

Or the loved one wreak.”

Then one of the Thegns speaks;

“Neither on that folk

Shall the Thanes twit me

That I from this host

Away would go

To seek my home,

Now mine Elder lieth

Hewn down in battle;

To me is that harm most;

He was both my kinsman

And my lord.”

Then another speaks in answer;

“How thou, Ælfwine, hast

All our Thanes

In need-time cheered.

Now our lord lieth,

The Earl on the earth,

That of us each one

Others should embolden,

Warmen to the war,

That while we weapons may

Have and hold,

The hard falchion,

Spear and good sword.”

Then another speaks;

“I this promise

That I hence nill

Flee a footstep,

But will further go,

To wreak in the fight

My lord and comrade.

Nor by Stourmere

Any steadfast hero

With words need twit me

That I lordless

Homeward should go,

And wend from the fight.”

The story goes on a little later;

“Rath was in battle

Offa hewn down,

Yet had he furthered

That his lord had pledged,

As he ere agreed

With his ring-giver

That they should both

To the borough ride

Hale to home,

Or in the host cringe

On the slaughter place,

Of their wounds die.

He lay thane-like

His lord hard by.”

Lastly another Thegn speaks;

“Mind shall the harder be,

Heart shall the keener be,

Mood shall the more be,

As our main lessens.

Here lies our Elder,

All down hewn,

A good man in the dust;

Ever may he groan

Who now from this war-play

Of wending thinketh.

I am old of life;

Hence stir will I not,

And I by the half

Of my lord,

By such a loved man

To lie am thinking.”

This institution of military companionship seems to have struck Tacitus

with some amazement. He says that this kind of personal relation was

among the Germans not thought shameful. This was the natural feeling

of a Roman. The duty of a Roman citizen was wholly towards the state.

The state might be represented either by a responsible magistrate or

by an irresponsible Emperor; in either case obedience was due to the

representative of the state; but there was no personal relation to

the man. The old Roman institution of patron and client, which was

so like the German _comitatus_, had pretty well died out by the time

of Tacitus, and it had at no time been entered into by men of high

rank(53). What amazed Tacitus was that among the Germans the noblest in

birth and exploits were not looked on as dishonoured by entering the

service of a personal lord. To Tacitus himself Trajan was the chief

magistrate of the Roman commonwealth, the chief commander of the Roman

army; he was a personal master to none but his slaves and freedmen(54).

It was only in a much later stage of the Roman Empire that personal

service in the court and household of the Emperor began to be looked

on as honourable(55). But among the Teutonic nations the personal

relation coloured everything; personal service towards a King or other

chief was honourable from the beginning; the proudest nobles of Europe

have down to this day thought themselves honoured by filling offices

about the persons of Emperors, Kings, and other princes which Tacitus

would have deemed beneath the dignity of any Roman citizen. We are

now accustomed to see this kind of service paid in the case of royal

personages only; a few centuries back men of any rank deemed themselves

honoured by paying the like service to men of the rank next above their

own, or even to men of their own rank who had the start of them in age

and reputation. The knight was served by his esquire and the master

by his scholar; and the same principle, laid aside everywhere else,

lingers on in what is undoubtedly a trace of the Teutonic _comitatus_,

the fagging of our public schools. Now the political effect of the

existence of the principle of personal service, the institution of

the _comitatus_, alongside of the primitive political community, was

most important in our early history. The personal relation went far to

swallow up the purely political one. To enter the service of a chief

became so established a practice that at last it was deemed that it was

the part of every man to “seek a lord,” as the phrase was, to commend

himself, to put himself under the protection of some man more powerful

than himself(56). The _man_ owed faithful service to his _lord_; the

lord owed faithful protection to his man. The very word _Lord_, in its

older and fuller form _Hlaford_, implies the rewards which the lord

bestowed on his faithful man. The word is in some sort a puzzling one;

but there can be no doubt that it is connected with _hlaf_, _loaf_, and

that its general meaning is _the giver of bread_(57). Now herein lurks

something which has greatly affected all later political and social

arrangements. The institution of the _comitatus_ in its first state

had nothing whatever to do with the holding of land. But the _man_

looked for reward of his faithful service at the hands of his _lord_;

he looked for the bread of which his lord’s title proclaimed him as

the giver. There was of course no form of reward, no form of _bread_,

so convenient or so honourable as that of a grant of land to be held

as the reward of past and the condition of future service. Moreover

the custom of granting out lands to be held by the tenure of military

service had become common in the later days of Roman power(58). Such

lands were of course held, not of the Emperor as a personal lord, but

of the Roman Commonwealth of which he was the head and representative.

But the custom of holding lands by military service fell in well with

the Teutonic institution of personal service, and the union of the two

in the same person produced that feudal relation which has had such

an important bearing on all political and social life through the

whole of the middle ages and down to our own time. The land granted

by the lord to his man, or the land which the man agreed to hold as

if it had been so granted, might be a kingdom held of the Emperor or

the Pope, or it might be the smallest estate held of a more powerful

neighbour. In either case, such a holding by military service was a

_fief_, and from the institution of such fiefs the so-called Feudal

System, with all its manifold workings for good and for evil, had its

rise. But so far as the Feudal System existed, either in England or in

any other country, it existed wholly as a system which had grown up by

the side of an earlier system which it wholly or partially displaced.

The feudal tenant, holding his land of a lord by military service

gradually supplanted, wholly or partially, in most countries of Europe,

the _allodial_ holder who held his land of no other man, and who knew

no superior but God and the Law(59). In England this change took place

only gradually and partially; it was through the Norman Conquest, or,

more accurately, through the subtle legal theories which came in with

the Norman Conquest, that it was finally established. And, after all,

it was rather in theory than in fact that it was established. The

Feudal System, as something spreading into every corner of the land,

and affecting every relation of life, never obtained the same complete

establishment in England which it did in some continental countries.

But it is only indirectly that my subject has anything to do with the

Feudal System, and especially with its social working. I have to do

with the _comitatus_, out of which the feudal relation grew, mainly in

another aspect equally indirect, namely, the way in which it affected

our earliest political institutions. It gave us a new form of nobility,

a nobility of office and of personal relation to the King, instead of

a nobility founded on birth only. It gave us a nobility of _Thegns_,

which gradually supplanted the earlier nobility of the _Eorls_. As the

royal power and dignity grew, it came to be looked on as the highest

honour to enter into the personal service of the King. Two results

followed; service towards the King, a place, that is, in the King’s

_comitatus_, became the badge and standard of nobility(60). And it

greatly strengthened the power of the King that he stood to all the

chief men of his kingdom in the relation, not only of a political

ruler, but of a personal lord, a lord to whose service they were bound

by a personal tie, and of whom they held their lands as the gift of

his personal bounty. It marks perhaps a decline from the first idea of

the _comitatus_ that the old word _Gesith_, _companion_, answering

exactly to the Latin _Comes_ used by Tacitus, was supplanted by the

name _Thegn_, literally _servant_(61). But when personal service was

deemed honourable, the name of servant was no degradation, and the

name _Thegn_ became equivalent to the older _Eorl_. The King’s Thegn,

the men who held their land of the King and who were bound to him by

the tie of personal service, formed the highest class of nobility. The

Thegns of inferior lords, of Bishops and Ealdormen, formed a secondary

class. A nobility of this kind, there can be no doubt, was so far more

liberal than the elder nobility of birth that admission to it was not

forbidden to men of lower degree. The _Ceorl_, the ordinary freeman,

could not in strictness become an _Eorl_, for the simple reason that

he could not change his forefathers; but he might, and he often did,

become a _Thegn_(62). But, on the other hand, such a nobility, while

it made it easier for the common freeman to rise, tended to lower the

condition of the common freemen who did not rise. For the very reason

that the barrier of birth is one which cannot be passed, it is in

some respects less irksome than the barrier of wealth or office. The

privileges of a strictly hereditary nobility are much more likely to

sink into mere honorary distinctions than the privileges of a nobility

whose rank is backed by the solid advantages of office and of a

personal relation to the sovereign.

The tendency then of the first six hundred years after the settlement

of the English in Britain was to increase the power of the Crown, to

depress the lower class of freemen, to exchange a nobility of birth for

a nobility of personal service to the King. That is to say, England

had, before the Norman Conquest, already begun to walk, though with

less speed than most other nations, in the path which led to the

general overthrow of liberty throughout Europe. The foreign invasion

which for a moment seemed to have crushed her freedom for ever did in

truth only lead to its new birth, to its fresh establishment in forms

better fitted to the altered state of things, forms better fitted

to be handed on to later times, forms better fitted to preserve the

well-being of a great nation, than those forms of the old Teutonic

community which still linger on in those remote corners of the world

which I spoke of at my beginning. That momentary overthrow, that

lasting new birth, will be the subject of my second chapter. I will

now only call you to bear in mind that England has never been left

at any time without a National Assembly of some kind or other. Be it

Witenagemót, Great Council, or Parliament, there has always been some

body of men claiming, with more or less of right, to speak in the name

of the nation. And bear too in mind that, down to the Norman Conquest,

the body which claimed to speak in the name of the nation was, in legal

theory at least, the nation itself. This is a point on which I mean

again to speak more fully; I would now simply suggest the thought, new

perhaps to many, that there was a time when every freeman of England,

no less than every freeman of Uri, could claim a direct voice in the

councils of his country. There was a time when every freeman of England

could raise his voice or clash his weapon in the Assembly which chose

Bishops and Ealdormen and Kings, when he could boast that the laws

which he obeyed were laws of his own making, and that the men who bore

rule over him were rulers of his own choosing. Those days are gone, nor

need we seek to call them back. The struggles of ages on the field and

in the Senate have again won back for us the selfsame rights in forms

better suited to our times than the barbaric freedom of our fathers.

Yet it is well that we should look back to the source whence comes all

that we boast of as our own possession, all that we have handed on to

our daughter commonwealths in other continents. Let us praise famous

men and our fathers that begat us. Let us look to the rock whence we

were hewn and to the hole of the pit whence we were digged. Freedom,

the old poet says, is a noble thing(63); it is also an ancient thing.

And those who love it now in its more modern garb need never shrink

from tracing back its earlier forms to the first days when history has

aught to tell us of the oldest life of our fathers and our brethren.