In my first chapter I dealt mainly with those political institutions of
the earliest times—institutions common to our whole race, institutions
which still live on untouched among some small primitive communities of
our race—out of which the still living Constitution of England grew.
It is now my business, as the second part of my subject, to trace the
steps by which that Constitution grew out of a political state with
which at first sight it seems to have so little in common. My chief
point is that it did thus, in the strictest sense, grow out of that
state. Our English Constitution was never made, in the sense in which
the Constitutions of many other countries have been made. There never
was any moment when Englishmen drew out their political system in the
shape of a formal document, whether as the carrying out of any abstract
political theories or as the imitation of the past or present system of
any other nation. There are indeed certain great political documents,
each of which forms a landmark in our political history. There is the
Great Charter, the Petition of Right, the Bill of Rights. But not one
of these gave itself out as the enactment of anything new. All claimed
to set forth, with new strength, it might be, and with new clearness,
those rights of Englishmen which were already old. In all our great
political struggles the voice of Englishmen has never called for the
assertion of new principles, for the enactment of new laws; the cry has
always been for the better observance of the laws which were already
in force, for the redress of grievances which had arisen from their
corruption or neglect(1). Till the Great Charter was wrung from John,
men called for the laws of good King Eadward. And when the tyrant had
unwillingly set his seal to the groundwork of all our later Law, men
called for the stricter observance of a Charter which was deemed to
be itself only the laws of Eadward in a newer dress(2). We have made
changes from time to time; but they have been changes which have been
at once conservative and progressive—conservative because progressive,
progressive because conservative. They have been the application of
ancient principles to new circumstances; they have been the careful
repairs of an old building, not the pulling down of an old building
and the rearing up of a new. The life and soul of English law has ever
been precedent; we have always held that whatever our fathers once did
their sons have a right to do again. When the Estates of the Realm
declared the throne of James the Second to be vacant, they did not seek
to justify the act by any theories of the right of resistance, or by
any doctrines of the rights of man. It was enough that, three hundred
years before, the Estates of the Realm had declared the throne of
Richard the Second to be vacant(3). By thus walking in the old paths,
by thus hearkening to the wisdom of our forefathers, we have been able
to change whenever change has been needed, and we have been kept back
from changing out of the mere love of abstract theory. We have thus
been able to advance, if somewhat slowly, yet the more surely; and when
we have made a false step, we have been able to retrace it. On this
last power, the power of undoing whatever has been done amiss, I wish
specially to insist. In tracing the steps by which our Constitution
has grown into its present shape, I shall try specially to show in how
many cases the best acts of modern legislation have been, wittingly or
unwittingly, a falling back on the principles of our earliest times.
In my first chapter I tried to show how our fathers brought with
them into the Isle of Britain those primæval institutions which were
common to them with the whole Teutonic race. I tried to show how those
institutions were modified in the course of time by the circumstances
of the English Conquest of Britain, and by the events which followed
that Conquest. I showed how the kingly power grew with every increase
of the territorial extent of the kingdom; how the old nobility of birth
gave way to a new nobility of personal relation to the sovereign; and
how the effect of these changes seems to have been to make it easier
for the individual freeman of the lower rank to rise, but at the same
time to lower the position of the ordinary freemen as a class. This
last change was still more largely brought about as an independent
result of the same changes which tended to increase the kingly power.
In a state of things where representation is unknown, where every
freeman is an elector and a lawgiver, but where, if he exercises his
elective and legislative rights, he must exercise them directly in
his own person—in such a state of things as this every increase of
the national territory makes those rights of less practical value,
and causes the actual powers of government to be shut up in the hands
of a smaller body. There is no doubt that in the earliest Teutonic
assemblies every freeman had his place. There is no doubt that in
England every freeman kept his place in the smaller local assemblies of
the _mark_, the _hundred_, and the _shire_(4). He still, where modern
legislation has not wholly swept it away, keeps, as I hinted in my
former lecture, some faint shadow of the old right when he gives a vote
in the assembly, in which the assembly of the mark still lives on, that
is, in the vestry of his parish. But how as to the great assembly of
all, the Assembly of the Wise, the Witenagemót of the whole realm? No
ancient record gives us any clear or formal account of the constitution
of that body. It is commonly spoken of in a vague way as a gathering of
the wise, the noble, the great men(5). But, alongside of passages like
these, we find other passages which speak of it in a way which implies
a far more popular constitution. King Eadward is said to be chosen King
by “all folk.” Earl Godwine “makes his speech before the King and all
the people of the land.” Judicial sentences and other acts of authority
are voted by the army, that is by the people under arms. Sometimes we
find direct mention of the presence of large and popular classes of
men, as the citizens of London or Winchester(6). The inference from all
this is obvious. The right of the ordinary freeman to attend, to
vote—it might perhaps be nearer the truth to say to shout(7)—in the
general Assembly of the whole realm was never formally taken away. But
it was a right which, in its own nature, most men could hardly ever
exercise. None but men of wealth would have the means, none but men
of some personal importance would have any temptation, to take long
journeys for such a purpose. It is not likely that any great multitude
would, under ordinary circumstances, set off from Northern England to
attend meetings which were habitually held at Westminster, Winchester,
and Gloucester. It is plain that the habitual attendance would not go
beyond a small body of chief men, Earls, Bishops, Abbots, the officers
of the King’s court, the Thegns of the greatest wealth or the highest
personal influence. But it is plain that, when the heart of the nation
was specially stirred by some overwhelming interest, many men would
find their way to the Assembly who would not find their way to it
in ordinary times. And, when the Assembly was held in a town, the
citizens of that town at once formed a popular element ready on the
spot. Hence we can account for the seemingly contradictory way in which
the Assembly is spoken of, sometimes in language which would imply
an aristocratic body, sometimes in language which would imply a body
highly democratic. It was in fact a body, democratic in ancient theory,
aristocratic in ordinary practice, but to which any strong popular
impulse could at any time restore its ancient democratic character(8).
Acts done by a freely chosen representative body may, without much
straining of language, be said to be done by the whole people. But
acts done by a body not representative could never be called the acts
of the whole people, unless the whole people had an acknowledged right
to attend its meetings, though that right might, under all ordinary
circumstances, be exercised only by a few of their number.
Out of this body, whose constitution, by the time of the Norman
Conquest, had become not a little anomalous and not a little
fluctuating, our Parliament directly grew. Of one House of that
Parliament we may say more; we may say, not that it grew out of the
ancient Assembly but that it is absolutely the same by personal
identity. The House of Lords not only springs out of, it actually is,
the ancient Witenagemót. I can see no break between the two. King
William summoned his Witan as King Eadward had summoned them before
him. In one memorable assembly of the Conqueror’s reign, we read that
the great men of the realm were reinforced by the presence of the
whole body of the landholders of England, whose number tradition handed
down as sixty thousand(9). But, as a rule, the Great Councils after
the Norman Conquest bear the same uncertain and fluctuating character
as the Gemóts of earlier days. In the constitution of the House of
Lords I can see nothing mysterious or wonderful. Its hereditary
character came in, like other things, step by step, by accident rather
than by design. And it should not be forgotten that, as long as the
Bishops keep their seats in the House, the hereditary character of the
House does not extend to all its members. To me it seems simply that
two classes of men, the two highest classes, the Earls and the Bishops,
never lost or disused that right of attending in the National Assembly
which was at first common to them with all other freemen. Besides these
two classes, the King summoned other men to our early Parliaments,
pretty much, it would seem, at his own pleasure. The right of the
King so to do could not be denied; when all had an abstract right to
attend, we cannot blame the King for specially summoning those for
whose attendance he specially wished. But it would almost naturally
follow that such a special summons would gradually be held to bestow an
exclusive right, and that those who were not specially summoned would
soon be looked upon as having no part or lot in the matter. But it is
certain that it was long before such a summons was held to confer a
hereditary, or even a lasting personal right. The King did not always
summon the same men to every Parliament. Besides the Earls and the
Bishops, others both of the laity and the clergy were always summoned,
but the list of those who were summoned, both of the laity and of the
lesser ecclesiastical dignitaries, constantly varies from Parliament
to Parliament(10). That the personal summons conveyed an exclusive
hereditary right was one of those devices of lawyers of which so many
have crept into our constitution. When the notion of hereditary right
had once established itself, the formal creation of peerages by patent
was a natural stage. Looking at the matter from this historical point
of view, it seems to me simply wonderful how any one can doubt the
power of the Crown to create life-peerages, or to regulate the tenure
or succession of a peerage in any way that it thinks good.
The House of Lords then, I do not hesitate to say, represents, or
rather is, the ancient Witenagemót. An assembly in which at first every
freeman had a right to appear has, by the force of circumstances, step
by step, without any one moment of sudden change, shrunk up into an
Assembly wholly hereditary and official, an Assembly to which the Crown
may summon any man, but to which, it is now strangely held, the Crown
cannot refuse to summon the representatives of any man whom it has
once summoned. As in most other things, the tendency to shrink up into
a body of this kind began to show itself before the Norman Conquest,
and was finally confirmed and established through the results of the
Norman Conquest. But the special function of the body into which the
old national Assembly has changed, the function of “another House,” an
Upper House, a House of Lords as opposed to a House of Commons, could
not show itself till a second House of a more popular constitution
had arisen by its side. Like everything else in our English polity,
both Houses in some sort came of themselves. Neither of them was the
creation of any ingenious theorist, though we need not doubt that many
of the several steps in the growth of each were, each in its own time,
the work of practical statesmanship. Our forefathers had no theories;
but men, each in his own generation, had eyes keen enough to see that
such and such a change in detail would get rid of such and such an
immediate evil, or would bring with it such and such an immediate
advantage. Nay more, it has sometimes happened that a change which
was brought in with an evil intent has in the end worked for good.
Measures which were taken with a view of strengthening the power of
the Crown have come in the end to widen the rights of the people. On
the other hand, institutions which once answered a good and needful
purpose have sometimes, through change of times, changed their nature
and have become instruments of evil instead of good. But in neither
case were the institutions of our fathers the work of abstract theory.
They have therefore lived on, and they have borne good fruit. Our
national Assembly has changed its name and its constitution, but
its corporate identity has lived on unbroken. We can therefore at
any moment reform without destroying. In France, on the other hand,
institutions have been the work of abstract theory; they have been the
creations, for good or for evil, of the minds of individual men. The
English Parliament is immemorial; it grew step by step out of the older
order of things. In France the older order of things utterly vanished;
the ground lay open for the creation of a wholly new institution, and
the States-General were called into being at the bidding of Philip the
Fair(11). Englishmen in the fourteenth and fifteenth centuries had no
theories of the rights of man or of universal humanity. But when they
saw a practical grievance, they called for its redress. Frenchmen in
the fourteenth and fifteenth centuries had theories as magnificent as
any that have been put forth in the eighteenth or the nineteenth. And
they had even then already learned to do deeds of blood in the name
of freedom and philanthropy(12). Therefore French institutions have
not lasted. The States-General lived but a fitful life from century
to century, and they perished for ever in the Great Revolution. Since
that time no French institution, no form either of the legislative or
of the executive power, has been able to keep up a continuous being of
twenty years. This difference has not been owing to any lack of great
men or of noble purposes on the part of our continental neighbours. It
has been owing, partly, we may believe, to differences in the inborn
character of the two nations, partly to differences in the course
taken by their several histories. In France the Kings gradually swept
away all traces of older free institutions, and established a simple
despotism in the Crown(13). The French therefore have been left
without any traditional foundation to build on. In all their changes
for good or for evil they have been driven to build afresh from the
beginning. Our Kings never wholly wiped out our free institutions;
they found means to turn them to their own purposes, and to establish
a practical despotism without destroying the outward forms of freedom.
The forms thus lived on, and in better times they could again be
clothed with their substance. We ever had traditional principles to
fall back upon, a traditional basis to build upon. It would be hard to
reckon up the number of Assemblies, Conventions, Chambers of Deputies,
and Legislative Bodies, which have risen and fallen in France, while
the House of Lords and the House of Commons have lived on, with their
powers, their duties, their relations to the Crown, to the Nation, and
to one another, ever silently changing, but with their continuous being
remaining throughout unbroken.
But I would again point out that, while the growth of English
institutions has thus gone on almost in obedience to a natural law, the
wisdom, the foresight, the patriotism, of individual statesmen is never
to be put out of our reckoning. There was a given state of things, and
some man had keenness of sight to see what was the right thing to do
in that state of things. Our Constitution has no founder; but there is
one man to whom we may give all but honours of a founder, one man to
whose wisdom and self-devotion we owe that English history has taken
the course which it has taken for the last six hundred years. It might
no doubt have taken that course without him; things might have come
about as they did without any one man coming so prominently to the
front; or, if he had not arisen, some other man might have arisen to do
his work. But we need not speculate as to what might have been; it is
enough that one man did arise to do the work, that there is one man to
whom we owe that the wonderful thirteenth century, the great creative
and destructive age throughout the world(14), was to us an age of
creation and not of destruction. That man, the man who finally gave to
English freedom its second and more lasting shape, the hero and martyr
of England in the greatest of her constitutional struggles, was Simon
of Montfort, Earl of Leicester. If we may not call him the founder of
the English Constitution, we may at least call him the founder of the
House of Commons(15). It was in his age that the new birth of English
freedom began to show itself; it was mainly by his work that that new
birth was not stifled before it had brought forth lasting fruits.
Strange it may at first sight seem that the founder of the later
liberties of England was not an Englishman. Simon of Montfort, a native
of France, did for the land of his adoption what even he might not
have been able to do for the land of his birth. And why? The land of
his birth was—shall I say flourishing or suffering?—under the baleful
virtues of the most righteous of Kings. Saint Lewis reigned in France,
Saint Lewis the just and holy, the man who never swerved from the path
of right, the man who swared to his neighbour and disappointed him not,
though it were to his own hindrance. Under his righteous rule there
could be no ground for revolt or disaffection. By surrounding the Crown
with the reflected glory of his own virtues, he did more than any other
man to strengthen its power. He thus did more than any other man to
pave the way for that foul despotism of his successors whose evil deeds
would have daily vexed his righteous soul. In England, on the other
hand, we had the momentary curse, the lasting blessing, of a succession
of evil Kings. We had Kings who had no spark of English feeling in
their breasts, but from whose follies and necessities our fathers were
able to wring their freedom, all the more lastingly because it was bit
by bit that it was wrung. A Latin poet once sang that freedom never
flourishes more brightly than it does under a righteous King(16). And
so it does while that righteous King himself tarries among men. But
to win freedom as an heritage for ever there are times when we have
more need of the vices of Kings than of their virtues. The tyranny of
our Angevin masters woke up English freedom from its momentary grave.
Had Richard and John and Henry been Kings like Ælfred and Saint Lewis,
the crosier of Stephen Langton, the sword of Robert Fitzwalter, would
never have flashed at the head of the Barons and people of England; the
heights of Lewes would never have seen the mightiest triumph of her
freedom; the pavement of Evesham choir would never have closed over the
mangled relics of her noblest champion(17).
The career of Simon of Montfort is the most glorious in our later
history. Cold must be the heart of every Englishman who does not feel
a thrill of reverence and gratitude as he utters that immortal name.
But, fully to understand his work, we must go back somewhat before his
own time, we must go back and trace how the sway of foreign invaders
first made the path ready for the course of the foreign deliverer. I
have shown in what state our Constitution stood at the time of the
Norman Conquest. In that Constitution, be it ever remembered, the
Norman Conquest made no formal change whatever. Nothing has had a more
lasting effect on all later English history than the personal character
and position of the Norman Conqueror. But it was not in the character
of a legislator that the main work of William was done. His greatest
work of all was to weld together the still imperfectly united kingdoms
of our ancient England into one indivisible body, a body which, since
his day, no man has ever dreamed of rending asunder. But this was not
the work of any formal legislative enactment; it was the silent result
of the compression of foreign conquest. So it was with William’s whole
policy and position. He was in truth a Conqueror, King by the edge of
the sword, but it was his aim in everything to disguise the fact. He
claimed the Crown by legal right; he received it by the formal election
of the English people, and he was consecrated to his kingly office by
the hands of an English Primate. He professed to rule, not according
to his own will, not according to any laws of his own devising, but
according to the laws of his predecessor and kinsman King Eadward
(18). The great immediate change which was wrought under him was not
any formal legislative change; it was the silent revolution implied in
the transfer—the wary and gradual transfer—of all the greatest estates
and highest offices in England to the hands of foreign holders. The
momentary effect was to make Englishmen on their own soil the subjects
of foreign conquerors. The lasting effect was to change those foreign
conquerors into Englishmen, and to call forth the spirit of English
freedom in a more definite and antagonistic shape than it had ever
before put on. What was the real position of a landowner of Norman
descent within a generation or two after the Conquest? He held English
lands according to English law; in all but the highest rank he lived
on equal terms with other landowners of English birth; he was himself
born on English soil, often of an English mother; he was called on
in endless ways to learn, to obey, and to administer, the laws of
England. Such a man soon became in feeling, and before long in speech
also, as good an Englishman as if he had come of the male line of
Hengest or Cerdic. There was nothing to hinder even one of the actual
conquerors from thoroughly throwing in his lot with his new country
and with its people. His tongue was French, but in truth he had far
more in common with the Englishman than with the Frenchman. He was
but a near kinsman slightly disguised. The Norman was a Dane who, in
his sojourn in Gaul, had put on a slight French varnish, and who came
into England to be washed clean again. The blood of the true Normans,
in the real Norman districts of Bayeux and Coutances, differs hardly
at all from the blood of the inhabitants of the North and East of
England(19). See a French soldier and a Norman farmer side by side,
and you feel at once that the Norman is nothing but a long-parted
kinsman. The general effect of him is that of a man of Yorkshire or
Lincolnshire who has somehow picked up a bad habit of talking French.
Such men readily became Englishmen. We have the distinct assertions
of contemporary writers, and every incidental notice bears out their
assertions, that, among all classes between the highest and the lowest,
among all between the great noble and the villain, the distinction of
Norman and Englishman had been forgotten within little more than a
hundred years after the time when King William came into England(20).
And presently other causes came to make all the sons of the soil draw
nearer and nearer together. A new dynasty filled the throne, a dynasty
which claimed by female descent to be at once Norman and English, but
which, in origin and feeling, was neither Norman nor English(21).
Henry the Second, Count of Anjou through his father, Duke of Aquitaine
through his wife, inherited also his mother’s claims on Normandy and
England, but under him Normandy and England alike were but parts of a
vast dominion which stretched from the Orkneys to the Pyrenees. Under
the mighty, and on the whole the righteous, sway of the great Henry
the worst side of this state of things did not show itself(22). Under
his sons and his grandson England felt to the full the bitterness and
the blessings of the Conquest. The land was overrun by utter strangers;
the men of Old-English birth and the descendants of the first Norman
settlers both saw the natives of other lands placed over the heads of
both alike. Places of trust and honour and wealth were handed over to
foreign favourites, and every man in the land was exposed to a yet
heavier scourge, to the violence and insolence of foreign mercenaries.
Under John Normandy was lost(23), and England again became the chief
possession of the King of England. But neither John nor Henry learned
the lesson. The personal vices of the father, the personal virtues of
the son, worked to the same end as far as their kingdom was concerned.
The King whose wickedness became a proverb, who surrounded himself
with the kindred ruffians of every nation, and the King whose chief
fault was that he could never say No to his wife or his mother, helped
alike to call forth the spirit of resistance, to draw all Englishmen of
whatever origin nearer together, and thereby to work out the great work
of giving England a free and lasting Constitution. For such Kings we
may well be thankful, but to such Kings we owe no thanks. Our feelings
of personal thankfulness towards any of our later Kings begin only when
a King arose who joined the political skill of Henry the Second to the
personal virtues of Henry the Third, and who added to both a feeling
of English patriotism, a ruling sense of right in public affairs, of
which neither Henry ever felt the slightest spark in his bosom. Edward
the First, the first of our later Kings who bore an English name and an
English heart, was the first round whose name can gather any feelings
of personal thankfulness. In him we see the first of our Kings of
foreign blood who did aught for the growth of our constitutional rights
in some other way than that of calling forth the spirit of resistance
to his rule.
Thus it was that the misgovernment of our Angevin Kings called forth
among all the natives of the land an universal spirit of revolt against
the domination of strangers within the realm. And they called forth the
spirit of revolt in another way, a way hardly less important, by their
base subserviency to a foreign power in ecclesiastical matters. I have
here nothing to do with theological dogmas, with their truth or their
falsehood, but the ecclesiastical position of the nation forms a most
important aspect of its history throughout these times. In Old-English
times there can be no doubt as to the existence of an effective
supremacy in ecclesiastical matters on the part of the Crown. The King
was the Supreme Governor of the Church, because he was the Supreme
Governor of the Nation. The Church and the Nation were absolutely the
same; the King and his Witan dealt with ecclesiastical questions and
disposed of ecclesiastical offices by the same right by which they
dealt with temporal questions and disposed of temporal offices(24).
The Bishop and the Ealdorman, each appointed by the same authority,
presided jointly in the assembly of the shire, and the assembly over
which they presided dealt freely both with ecclesiastical and with
temporal causes. One of the few formal changes in our Law which took
place in the days of the Conqueror was the separation of the two
jurisdictions of the Bishop and the Ealdorman. One of William’s extant
laws ordained the establishment, according to continental models, of
distinct ecclesiastical courts for the trial of ecclesiastical causes
(25). But more important than this formal change was the practical
result of the Conquest in bringing England into closer connexion than
before with the See of Rome. The enterprise of the Conqueror was
approved by Hildebrand, and it was blessed by the Pope in whose name
Hildebrand already ruled(26). While William lived, the royal supremacy
remained untouched, and, allowing for his position in a conquered
land, we may fairly say that it was not abused. But in meaner hands
the ancient power of the Crown as the representative of the nation was
often abused and often disputed. Quarrels arose as to the limits of
the ecclesiastical and the civil power such as had never been heard of
in the old times. And we must remember that claims which seem utterly
monstrous now were far from seeming monstrous in a state of things so
wholly unlike our times. Even the claim of the clergy to an exemption
from temporal jurisdiction in criminal cases had a very different look
then from what it has now. The privilege thus claimed was by no means
confined to the priesthood; it took in a large part of those among
the people who were least able to defend themselves(27). And when we
think of the horrible punishments, death, and mutilations worse than
death, which the courts of our Angevin Kings freely inflicted for very
slight offences, we can understand that men looked favourably on the
courts of the Bishops, where the heaviest penalties were stripes and
imprisonment. In the disputes between the Crown and the Church, from
William Rufus to Henry the Second, we find popular feeling always
enlisted on the ecclesiastical side(28). Nor need we wonder at this,
when we find among the Constitutions of Clarendon, which King Henry
strove to enforce and which Archbishop Thomas withstood, one which
forbad the ordination of villains without the consent of their lords.
That is to say, it cut off from the lowest class the only path by which
they had any hope of rising to posts of honour and authority(29). But
from the reign of John onwards we get a new state of things. A foreign
power stepped in, a power which had as yet meddled but little in the
strictly internal affairs of England, and which, so far as it had
meddled at all, had on the whole taken the popular side. In the latter
days of John and through the whole reign of Henry the Third, we find
the Pope and the King in strict alliance against the English Church
and Nation. The last good deed done by a Pope towards England was when
Innocent the Third sent us Stephen Langton(30). Ever afterwards we
find Pope and King leagued together to back up each other’s oppressions
and exactions. The Papal power was always ready to step in on behalf
of the Crown, always ready to hurl spiritual censures against the
champions of English freedom. The Great Charter was denounced at
Rome; so was its author the patriot Primate(31). Earl Simon died
excommunicate; but, in the belief of Englishmen, the excommunications
of Rome could not hinder an English Earl from working countless signs
and wonders(32)—a pretty convincing argument, one might deem, that the
Bishop of Rome had no jurisdiction in this realm of England. Against
King and Pope the whole nation stood united; clergy and laity, nobles
and commons, men of Norman and men of Old-English birth, all stood
together alike against the King’s foreign favourites and against the
aggressions of Rome. The historians of the age, all of them churchmen,
most of them monks, are all but unanimous on the popular side. Prelates
like the Primate Stephen, like Robert Grosseteste of Lincoln and
Walter of Cantelupe of Worcester, were foremost in the good cause;
the two latter were among the closest friends and counsellors of the
patriot Earl(33). We see how old distinctions and old enmities had
been wiped out, how all the sons of the soil were banded together in
one fellowship, when we read the letter denouncing the abuses of the
Roman See which was sent to that See in the name of no less a body
than the whole Nobility, Clergy, and Commons of the English realm.
In that letter, an out-spoken and truly English document, which has
been preserved by an historian who well appreciated it, the writers
set forth that, as the Nobles, Clergy, and Commons in whose name it
is written have no common seal, they have, for the signature of their
document, borrowed the seal of the city of London(34).
This last fact brings me round to what I first spoke of long ago,
what I may perhaps seem to have forgotten, but what I have in truth
had constantly before my eyes, the distinctly constitutional reforms
which we owe to Earl Simon of Montfort. The fact that a document
which professed to speak in the name of all classes of the whole
nation could not be so fittingly signed as with the seal of the city
of London marks the place which that city held in the political
estimation of the time. But London held that position only as the
greatest member of an advancing class, as the foremost among the
cities and boroughs of England. Now the great work of Earl Simon was
to give those cities and boroughs their distinct place as one of the
elements of the body politic. Let us trace the steps by which that
great work was done. When we reach the thirteenth century, we may look
on the old Teutonic constitution as having utterly passed away. Some
faint traces of it indeed we may find here and there in the course
of the twelfth century, as when both sides in the wars of Stephen and
Matilda acknowledged the right of the citizens of London to a voice
in the disposal of the Crown(35). But the regular Great Council, the
lineal representatives of the ancient _Mycel Gemôt_ or _Witenagemôt_,
was shrinking up into a body not very unlike our House of Lords. Its
constitution, as I have already hinted, was far more fluctuating, far
less strictly hereditary, than the modern body, but it was almost as
far from being in any sense a representation of the people. The Great
Charter secures the rights of the nation and of the national Assembly
as against arbitrary legislation and arbitrary taxation on the part of
the Crown. But it makes no change in the constitution of the Assembly
itself. The greater Barons were to be summoned personally; the lesser
tenants in chief, the representatives of the _landsittende menn_ of
Domesday, were to be summoned by a general writ(36). The Great Charter
in short is a Bill of Rights; it is not what, in modern phrase, we
understand by a Reform Bill. But, during the reigns of John and Henry
the Third, a popular element was fast making its way into the national
Councils in a more practical form. The right of the ordinary freeman
to attend in person had long been a shadow; that of the ordinary
tenant-in-chief was becoming hardly more practical; it now begins to be
exchanged for what had by this time become the more practical right of
choosing representatives to act in his name. Like all other things in
England, this right has grown up by degrees and as the result of what
we might almost call a series of happy accidents. Both in the reign
of John and in the former part of the reign of Henry, we find several
instances of knights from each county being summoned(37). Here we
have the beginning of our county members and of the title which they
still bear, of knights of the shire. Here is the beginning of popular
representation, as distinct from the gathering of the people in their
own persons; but we need not think that those who first summoned them
had any conscious theories of popular representation. The earliest
object for which they were called together was probably a fiscal
one; it was a safe and convenient way of getting money. The notion
of summoning a small number of men to act on behalf of the whole was
doubtless borrowed from the practice in judicial proceedings and in
inquests and commissions of various kinds, in which it was usual for
certain select men to swear on behalf of the whole shire or hundred.
We must not forget, though it is a matter on which I have no time to
insist here, that our judicial and our parliamentary institutions are
closely connected, that both sprang out of the primitive Assemblies,
that things which now seem so unlike as our popular juries and the
judicial powers of the House of Lords are in truth both of them
fragments of the judicial powers which Tacitus speaks of as being
vested in those primitive Assemblies. It was only step by step that the
functions of judge, juror, witness, and legislator became the utterly
distinct functions which they are now(38).
Thus we find the beginnings of the House of Commons, as we might have
expected, in that class of its members which, for the most part, has
most in common with the already established House of Lords. Thus
far the developement of the Constitution had gone on in its usual
incidental way. Each step in advance, however slight, was doubtless
the work of the discernment of some particular man, even though his
views may not have gone beyond the compassing of some momentary
advantage. But now we come to that great change, that great measure of
Parliamentary Reform, which has left to all later reformers nothing
to do but to improve in detail. We come to that great act of the
patriot Earl which made our popular Chamber really a popular Chamber.
A House of knights, of county members, would have been comparatively
an aristocratic body; it would have left out one of the most healthy
and vigorous, and by far the most progressive, element in the nation.
When, after the fight of Lewes, Earl Simon, then master of the kingdom
with the King in his safe keeping, summoned his famous Parliament, he
summoned, not only two knights from every county, but also two citizens
from every city and two burgesses from every borough(39). The Earl had
long known the importance and value of the growing civic element in the
political society of his age. When, in an earlier stage of his career,
he held the government of Gascony, he had, on his return to England, to
answer charges brought against him by the Archbishop of Bourdeaux and
the nobles of the province. The Earl’s answer was to bring forward a
writing, giving him the best of characters, which was signed with the
common seal of the city of Bourdeaux(40). As it was in Gascony, so it
was in England. The Earl was always a reformer, one who set himself
to redress practical grievances, to withstand the royal favourites,
to put a check on the oppressions of Pope and King. But his first
steps in the way of reform were made wholly on an aristocratic basis.
He tried to redress the grievances of the nation by the help of his
fellow nobles only. Step by step he learned that no true reform could
be wrought for so narrow a platform, and step by step he took into his
confidence, first the knights of the counties, and lastly the class to
whose good will he had owed so much in his earlier trial, the citizens
and burgesses. Through the whole struggle they stood steadily by him;
London was as firm in his cause as Bourdeaux had been, and its citizens
fought and suffered and triumphed with him on the glorious day of
Lewes(41). By a bold and happy innovation, he called a class which had
done so much for him and for the common cause to take their place in
the councils of the nation. It was in Earl Simon’s Parliament of 1265
that the still abiding elements of the popular chamber, the Knights,
Citizens, and Burgesses, first appeared side by side. Thus was formed
that newly developed Estate of the Realm which was, step by step, to
grow into the most powerful of all, the Commons’ House of Parliament.
Such was the gift which England received from her noblest champion
and martyr. Nor should it sound strange in our ears that her champion
and martyr was by birth a stranger. We boast ourselves that we have
led captive our conquerors, and that we have made them into sons of
the soil as faithful as ourselves. What we have done with conquerors
we have also done with peaceful settlers. In after days we welcomed
every victim of oppression and persecution, the Fleming, the Huguenot,
and the Palatine. And what we welcomed we adopted and assimilated,
and strengthened our English being with all that was worthiest in
foreign lands. So can we honour, along with the men of English birth,
those men of other lands who have done for England as sons for their
own mother. The Danish Cnut ranks alongside of the worthiest of our
native Kings. Anselm of Aosta ranks alongside of the worthiest of our
native Prelates. And so alongside of the worthiest of our native Earls
we place the glorious name of Simon the Righteous. A stranger, but a
stranger who came to our shores to claim lands and honours which were
his lawful heritage, he became our leader against strangers of another
mould, against the adventurers who thronged the court of a King who
turned his back on his own people. The first noble of England, the
brother-in-law of the King, he threw in his lot, not with princes
or nobles, but with the whole people. He was the chosen leader of
England in his life, and in death he was worshipped as her martyr. In
those days religion coloured every feeling; the patriot who stood up
for right and freedom was honoured alongside of him who suffered for
his faith. We fill our streets and market-places with the statues of
worthies of later days; Peel and Herbert and Lewis and Cobden yet live
among us in bronze or marble. In those days honour to the statesman
was not well distinguished from worship to the saint, and Waltheof
and Simon and Thomas of Lancaster(42) were hailed as sainted patrons
of England, and wonders were held to be wrought by their relics or at
their tombs. The poets of three languages vied in singing the praises
of the man who strove and suffered for right, and Simon, the guardian
of England on the field and in the senate, was held to be her truer
guardian still in the heavenly places from which our fathers deemed
that the curse of Rome had no power to shut him out(43).
The great work of the martyred Earl had a strange destiny. His personal
career was cut short, his political work was brought to perfection, by
a rival and a kinsman only less to be honoured than himself. On the
field of Evesham Simon died and Edward triumphed. But it was on Edward
that Simon’s mantle fell; it was to his destroyer that he handed on the
torch which fell from his dying grasp. For a moment his work seemed
to have died with him; for some years Parliaments were still summoned
which were not after the model of the great Assembly which answered
to the writs of the captive Henry. But the model still lived in men’s
hearts, and presently the wisdom of the great Edward saw that his
uncle’s gift could no longer be denied to his people. Parliaments after
Simon’s model have been called together in unbroken succession from
Edward’s day to our own(44). Next to the name of Simon we may honour
the name of Edward himself and the names of the worthies who withstood
him. To Roger Bigod of Norfolk and Humfrey Bohun of Hereford we owe the
crowning of the work(45). The Parliament of England was now wrought
into the fulness of its perfect form, and the most homely, but not the
least important, of its powers was now fully acknowledged. No tax or
gift could the King of England claim at the hands of Englishmen save
such as the Lords and Commons of England had granted him of their free
will(46).
Thus we may say that, in the time of Edward the First, the English
Constitution definitely put on the same essential form which it
has kept ever since. The germs of King, Lords, and Commons we had
brought with us from our older home eight hundred years before. But,
from King Edward’s days onwards, we have King, Lords, and Commons
themselves, in nearly the same outward shape, with nearly the same
strictly legal powers, which they still keep. All the great principles
of English freedom were already firmly established. There is indeed
a wide difference between the political condition of England under
Edward the First and the political condition of England in our own
day. But the difference lies far more in the practical working of the
Constitution than in its outward form. The changes have been many; but
a large portion of those changes have not been formal enactments, but
those silent changes whose gradual working has wrought out for us a
conventional Constitution existing alongside of our written Law. Other
changes have been simply improvements in detail; others have been
enactments made to declare more clearly, or to secure more fully in
practice, those rights whose existence was not denied. But, speaking
generally, and allowing for the important class of conventional
understandings which have never been clothed with the form of written
enactments, the main elements of the English Constitution remain now
as they were fixed then. From that time English constitutional history
is not merely an inquiry, however interesting and instructive, into
something which has passed away. It is an inquiry into something which
still lives; it is an inquiry into laws which, whenever they have
not been formally repealed, are in full force at this day. Up to the
reign of Edward the First English history is strictly the domain of
antiquaries. From the reign of Edward the First it becomes the domain
of lawyers(47).
We find then—it will be understood with what qualifications I am
speaking—the English Constitution fully grown by the end of the
thirteenth century, and we find it to be, in the shape which it then
took, the work of Earl Simon of Montfort and of King Edward the
First. Now there are several points in which the shape which our
Constitution thus finally took differed from the shapes which were
taken by most of the kindred Constitutions on the Continent. The usual
form taken by a national or provincial assembly in the middle ages
was that of an Assembly of _Estates_. That is to say, it consisted
of representatives of all those classes in the nation which were
possessed of political rights. These in most countries were three,
Nobles, Clergy, and Commons. And the name of the Three Estates, that
is the Nobles, Clergy, and Commons, is equally well known in England,
though the meaning of the three names differs not a little in England
from what it meant elsewhere. In England we never had, unless it were
in the old days of the _Eorlas_, a Nobility such as is understood by
that name in other countries. Elsewhere the nobles formed a distinct
class, a class into which it was perhaps not absolutely impossible for
those who were beneath it to be raised, but from which it was at least
absolutely impossible for any of its members to come down. Whatever the
privileges of the noble might be, they extended to all his children
and their children for ever and ever. In some countries his titles
descend in this way to all his descendants; all the children of a Duke,
for instance, are Dukes and Duchesses. In France, and in most other
countries where the system of Estates existed, the Estate of the Nobles
in the National Assembly was a representation, in some shape or other,
of the whole class of nobles as a distinct body. How different this is
from our House of Lords I need not point out. In strictness, I repeat,
we have no nobility. The seats in our Upper Chamber go by descent and
not by election or nomination; but no political privilege attaches
to the children of their holders. Even the eldest son of the peer,
the future holder of the peerage, is a commoner as long as his father
lives. Whatever titles he bears are simply titles of courtesy which
carry with them no political privileges above other commoners. Nay,
we may go higher still. As the children of the peer have no special
advantage, so neither have the younger children of the King himself.
The King’s wife, his eldest son, his eldest daughter, his eldest son’s
wife, all have special privileges by Law. His other children are
simple commoners, unless their father thinks good to raise them, as
he may raise any other of his subjects, to the rank of peerage(48).
There is perhaps no feature in our Constitution more important and
more beneficial than this, which binds all ranks together, and which
has hindered us from suffering at any time under the curse of a noble
caste. Yet this marked distinction between our own Constitution and
that of most other countries is purely traditional. We cannot say that
it was enacted by any particular man or in any particular Assembly. But
it is easy to see that the fact that in England our national Assemblies
always went on in some shape or other, that the right of all freemen
to attend in person was never formally abolished, that the King kept
the right of specially summoning whom he would, all helped to hinder
the growth of an exclusive noble caste. The aristocratic sentiment, the
pride of birth, has doubtless been very strong at all times. But it has
been merely a sentiment, resting on no legal foundation. The Crown
could always ennoble any one; but the nobility so granted belonged to
one only of the family at the time, to the actual owner of the peerage.
All ranks could at all times freely intermarry; all offices were open
to all freemen; and England, unlike Germany, never saw ecclesiastical
foundations whose members were bound to be of noble birth.
The position of the Estate of the Clergy was also widely different in
England from what it was in other countries. In fact the political
position of the Clergy has, ever since Edward the First, been something
utterly anomalous and inconsistent. Elsewhere the representatives of
the Clergy, just like those of the Nobles, formed one distinct Estate
in the Assembly. In England the great Prelates had seats in the House
of Lords, where the Bishops keep them still. But there also existed
the anomalous body called Convocation, whose character has always
fluctuated between that of an ecclesiastical Synod and that of a
parliamentary Estate of the realm(49). The Clergy are still summoned
along with every Parliament; and one distinctly parliamentary function
they held down to the reign of Charles the Second, which was then
taken away without any formal enactment. It was one of our great
constitutional principles established in King Edward’s days that no tax
could be granted to the King except by those who had to pay it. But for
a long time the Lords and the Commons taxed themselves separately, and
the Clergy in their Convocation taxed themselves separately also. And,
till this power was given up, an ecclesiastical benefice gave no right
to vote in the election of members of the House of Commons(50).
The Commons too themselves bear a name which had a far different
meaning in England from what it bore elsewhere. The usage by which
the Knights of the shire and the Citizens and Burgesses were brought
together in a single House, whatever was its origin, whether it were
at first the result of design or of happy accident, has been an
usage no less wholesome, no less needful to our full constitutional
developement, than that which decreed that the children of peers
should be commoners. In most other countries the class of men who
were returned as representatives of the counties, the Knights of
the Shire, would have been members of the Estate of the Nobles. In
France the words _nobleman_ and _gentleman_ had the same meaning,
that of the members of an exclusive aristocratic caste. The Commons,
the Third Estate, consisted of the citizens of the privileged towns
only(51). But in England the middle class was not confined to the
towns; it spread itself, in the form of a lesser gentry and a wealthy
yeomanry, over the whole face of the land. That class, the smaller
landowners, was for a long time the strength of the country, and the
happiest results came from the union of their representatives in a
single chamber with those of the cities and boroughs. Each class gained
strength from its fellowship with the other, and the citizen class
gained, from their union on equal terms with the landed gentry, a
consideration which otherwise they might never have reached. In short,
the union of the two, the union of all classes of freemen except the
clergy and the actual members of the peerage, of all classes from the
peer’s eldest son to the smallest freeholder or burgess, made the House
of Commons a real representation of the whole nation, and not of any
single order in the nation.
Mark again that the form of government which political writers call
_bi-cameral_, that is to say, where the Legislative Assembly consists
of two Chambers or Houses, arose out of one of the accidents of English
History. The merits of that form of government are now freely under
discussion, but it is assumed on both sides that the only choice
lies between one chamber and two; no one proposes to have three or
four(52). But most of the continental bodies of Estates consisted,
as we have seen, of three Houses; in Sweden, where the peasants, the
small freeholders, were important enough to be separately represented
alongside of the Nobles, Clergy, and Citizens, there were till lately
four(53). The number two became the number of our Houses of Parliament,
not out of any conviction of the advantages of that number, but because
it was found impossible to get the Clergy in England habitually to
act, as they did elsewhere, as a regular member of the parliamentary
body. They shrank from the burthen, or they deemed secular legislation
inconsistent with their profession. Thus, instead of the Clergy
forming, as they did in France, a distinct Estate of the Legislature,
we got a Parliament of two Houses, Lords and Commons, attended by a
kind of ecclesiastical shadow of the Parliament in the shape of the
two Houses of the ecclesiastical Convocation. Thus, for all practical
purposes, there were only two Estates in the English Parliament, Lords
and Commons. Thus the phrase of the Three Estates, which had a meaning
in France, became meaningless in England. For centuries back there has
been no separate Estate of the Clergy; some of their highest members
have belonged to the Estate of the Lords, and the rest to the Estate of
the Commons. Hence has arisen a common but not unnatural misconception,
a misconception as old as the days of the Long Parliament, as to the
meaning of the phrase of the Three Estates. Men constantly use those
words as if they meant the three elements among which the legislative
power is divided, King, Lords, and Commons. But an Estate means a rank
or order or class of men, like the Lords, the Clergy, or the Commons.
The King is not an Estate, because there is no class or order of
Kings, the King being one person alone by himself. The proper phrase
is the King and the three Estates of the Realm. But in England, as I
have already shown, the phrase is meaningless, as we have in truth two
Estates only(54).
We thus had in England, not an Estate of Nobles, forming a distinct
class from the people, but an Upper House of hereditary and official
Lords, whose privileges were purely personal, and whose children had
no political privilege above other men. Our Bishops and some other of
our ecclesiastical dignitaries had seats in the Upper House, but there
was no distinct Estate of the Clergy, having its distinct voice in
legislation. Our Lower House, lower in name, but gradually to become
upper in real power, came to represent, not merely the inhabitants
of privileged towns, but the whole nation, with the single exception
of the personal holders of hereditary or official seats in the Upper
House. That such an Assembly should gradually draw to itself all the
real powers of the state was in the nature of things; but it was only
gradually that it did so. Few things in our parliamentary history are
more remarkable than the way in which the two Houses have for the most
part worked together. I am not talking of very modern times, but of
times when the two Houses were really coordinate powers in the state.
During the six hundred years that the two Houses have lived side by
side, serious disputes between them have been very rare, and those
disputes which have happened have generally had to do with matters of
form and privilege which were chiefly interesting to members of the two
Houses themselves, not with questions which had any great importance
for the nation at large(55). For a while the Commons followed the lead
of the Lords; then the Lords came gradually to follow the lead of the
Commons; but open and violent breaches between the Houses have been
rare indeed. From the days of Earl Simon onwards, both the power of
Parliament as a whole, and the special power of the House of Commons,
was constantly growing. The Parliaments of the fourteenth century
exercised all the powers which our Parliament exercises now, together
with some which modern Parliaments shrink from exercising. That is to
say, the Parliaments of those days were obliged either to do directly
or to leave undone many things which the developement of political
conventionality enables a modern Parliament to do indirectly. The
ancient Parliaments demanded the dismissal of the King’s ministers;
they regulated his personal household; they put his authority into
commission; if need called for such a step, they put forth their last
and greatest power and deposed him from his kingly office. In those
days a change of government, a change of policy, the getting rid of
a bad minister and the putting a better in his place, were things
which never could be done without an open struggle between King and
Parliament; often they could not be done without the bondage, the
imprisonment, or the death, perhaps only of the minister, perhaps even
of the King himself. The same ends can now be gained by a vote of
censure in the House of Commons; in many cases they can be gained even
without a vote of censure, by the simple throwing out of a measure by
which a Ministry has given out that it will stand or fall(56).
The fifteenth century, as compared with the thirteenth and fourteenth,
was in some respects a time in which things went back. It is plain
that the Parliaments of that day were bodies which were much less
independent than the Parliaments of earlier times. During the Wars of
the Roses each successive military victor found a Parliament ready to
confirm his claim to the Crown and to decree the condemnation of his
enemies(57). And it was a Parliament of Henry the Sixth which passed
the most reactionary measure which any Parliament ever did pass,
that by which the qualification for a county elector was narrowed to
those freeholders whose estates were of the yearly value of forty
shillings(58). In this case time and the change in the value of money
have redressed the wrong; there may be freeholders whose estates are
under the value of forty shillings, but I cannot think that they are
now a very large or important class. But, to understand the meaning of
the restriction in the fifteenth century, for forty shillings we may
fairly read forty pounds; and certainly, if we struck off the register
all those electors whose qualification is a freehold—much more those
whose qualification is an estate less than a freehold—under the value
of forty pounds, the lessening of the constituencies of our counties
would not be small. On the other hand, during the revolutionary times
which followed, we more than once hear of direct appeals to the people
which remind us of days far earlier. Edward the Fourth and Richard the
Third were chosen Kings, or at least had their claims to the Crown
acknowledged, by gatherings of the citizens of London which remind us
of the wars of Stephen and Matilda(59). Still even in this age, the
power of Parliament was advancing(60); the anxiety of every pretender
to get a parliamentary sanction for his claims was a sign of the
growing importance of Parliament, and we get incidental notices which
show that a seat in the House of Commons, and that not as a knight of a
shire, but as a burgess of a borough, was now an object of ambition for
men of the class from which knights of the shire were chosen, and even
for the sons of members of the Upper House(61).
At last came the sixteenth century, the time of trial for parliamentary
institutions in so many countries of Europe. Not a few assemblies which
had once been as free as our own Parliament were, during that age,
either utterly swept away or reduced to empty formalities. Then it
was that Charles the Fifth and Philip the Second overthrew the free
constitutions of Castile and Aragon; before long the States-General
of France met for the last time before their last meeting of all
on the eve of the great Revolution(62). In England parliamentary
institutions were not swept away, nor did Parliament sink into an empty
form. But, for a while, Parliaments, like all our other institutions,
became perverted into instruments of tyranny. Under Henry the Eighth,
Parliaments, like Judges, Juries, and ecclesiastical Synods, decreed
whatever seemed good to the caprice of the despot. Why had they so
fallen away from what they had been in a past age, from what they
were to be again? The reason is plain; the Commons had not yet gained
strength enough to act without the Lords, and the Lords had ceased to
be an independent body. The old nobility had been cut off at Towton
and Barnet, and the new nobility were the abject slaves of the King
to whom they owed their honours. A century later, the new nobility
had inherited the spirit of the old, and the Commons had grown to the
fulness of their power. Thus it came that we find in the Parliaments
of the sixteenth century an abject submission to a tyrant’s will, of
which we find no sign in the Parliaments either of the fourteenth or
of the seventeenth. Very different indeed from the Parliaments which
overthrew Richard the Second and Charles the First were the Parliaments
which, almost without a question, passed bills of attainder against
any man against whom Henry’s caprice had turned, the Parliaments
which, in the great age of religious controversy, were ever ready
to enforce by every penalty that particular shade of doctrine which
for the moment commended itself to the Defender of the Faith, to his
son or to his daughters. Why, it may be asked, in such a state of
things, did not parliamentary institutions perish in England as they
perished in so many other lands? It might be enough to say that no
ruler had an interest in destroying institutions which he found that
he could so conveniently turn to his own purposes. But why did not
those institutions sink into mere forms, which they certainly did not
do, even in the worst times? One reason undoubtedly is that special
insular position of our country which has in so many other ways
given a peculiar turn to our history. The great foe of parliamentary
institutions was the introduction of standing armies. But the sovereign
of England, shut up within his island, had far less need of a standing
army than the sovereigns of the Continent, engaged as they were in
their ceaseless wars with neighbours on their frontiers. But I believe
that the personal character of Henry the Eighth had a great deal to
do with the final preservation of our liberties. Do not for a moment
fancy that I belong to that school of paradox which sets up Henry the
Eighth as a virtuous and beneficent ruler. Do not think that I claim
for him any feelings of direct thankfulness such as I do claim for
Earl Simon and King Edward. The position of Henry is more like the
position of William the Conqueror, though I certainly hold that the
Conqueror was in everything the better man of the two. Both served the
cause of freedom indirectly, and both served it by means of features
in the personal character of each. In one respect indeed William and
Henry stood in utterly different positions towards England. William was
a stranger, and it was largely because he was a stranger that he was
able to do us indirect good. Henry, with all his crimes, was a thorough
Englishman; throughout his reign there was a sympathy between him and
the mass of his subjects, who, after all, did not greatly suffer by the
occasional beheading of a Queen or a Duke. But the despotism of William
and the despotism of Henry agreed in this, that each, even in his worst
deeds, retained a scrupulous regard for the letter of the Law. In the
case of William this is not hard to see for any one who carefully
studies the records of his age(63); in the case of Henry it stands
boldly proclaimed in the broadest facts of English history. While his
fellow-tyrants abroad were everywhere overthrowing free institutions,
Henry was in all things showing them the deepest outward respect.
Throughout his reign he took care to do nothing except in outward and
regular legal form, nothing for which he could not shelter himself
under the sanction either of precedent or of written Law. In itself,
this perversion of Law, this clothing of wrong with the garb of right,
is really worse—at all events it is more corrupting—than deeds of open
violence against which men are tempted openly to revolt. But such a
tyranny as Henry’s is one form of the homage which vice pays to virtue;
the careful preservation of the outward forms of freedom makes it
easier for another and happier generation again to kindle the form into
its ancient spirit and life. Every deed of wrong done by Henry with the
assent of Parliament was in truth a witness to the abiding importance
of Parliament; the very degradation of our ancient Constitution was a
step to its revival with new strength and in a more perfect form(64).
A like witness to the importance of Parliament in this age was shown
in two other very remarkable ways, whereby the power and importance of
the House of Commons was acknowledged in the very act of corrupting
it. One was the active interference of the Government in parliamentary
elections; the other was the creation of boroughs in order to be
corrupt. One needs no stronger proofs than these of the importance
of the body which it was found needful thus to pack and to manage.
The Crown still kept the power of summoning members from any boroughs
which it thought fit, and throughout the Tudor reigns the power was
freely abused by sending writs to places which were likely to return
members who would be subservient to the Court(65). Thus arose many
of the wretched little boroughs in Cornwall and elsewhere which were
disfranchised by our successive Reform Bills. These boroughs, which
always were corrupt and which were created in order to be corrupt, must
be carefully distinguished from another class which perished with them.
Many towns to which Earl Simon and King Edward sent writs decayed in
process of time; sometimes they decayed positively; more commonly they
decayed relatively, by being utterly outstripped by younger towns and
so losing the importance which they had once had. The disfranchisement
of both classes was equally just; but the different history of the two
classes should be carefully borne in mind. It was right to take away
its members from Old Sarum, but there had been a time when it was right
to give Old Sarum members. In the case of a crowd of Cornish boroughs,
it not only was right to take away their members, but they never ought
to have had members at all(66).
It was in the days of Elizabeth that something of the ancient spirit
again breathed forth. It is then that we come to the beginning of that
long line of parliamentary worthies which stretches on in unbroken
order from her days to our own. A few daring spirits in the Commons’
House now began once more to speak in tones worthy of those great
Assemblies which had taught the Edwards and the Richards that there
was a power in England mightier than their own(67). Under the puny
successor of the great Queen the voice of freedom was heard more
loudly(68). In the next reign the great strife of all came, and a King
of England once more, as in the days of Henry and Simon, stood forth
in arms against his people to learn that the power of his people was
a greater power than his. But in the seventeenth century, just as in
the thirteenth, men did not ask for any rights and powers which were
admitted to be new; they asked only for the better security of those
rights and powers which had been handed on from days of old. Into the
details of that great struggle and of the times which followed it is
not my purpose to enter. I have traced at some length the origin and
growth of our Constitution from the earliest times to its days of
special trial in the days of Tudor and Stewart despotism. Our later
constitutional history rather belongs to an inquiry of another kind.
It is mainly a record of silent changes in the practical working of
institutions whose outward and legal form remained untouched. I will
therefore end my consecutive historical sketch—if consecutive it can
claim to be—at the point which we have now reached. Instead of carrying
on any regular constitutional narrative into times nearer to our own, I
will rather choose, as the third part of my subject, the illustration
of one of the special points with which I set out, namely the power
which our gradual developement has given us of retracing our steps, of
falling back, whenever need calls for falling back, on the principles
of earlier, often of the earliest, times. Wittingly or unwittingly,
much of our best modern legislation has, as I have already said, been
a case of advancing by the process of going back. As the last division
of the work which I have taken in hand, I shall try to show in how
many cases we have, as a matter of fact, gone back from the cumbrous
and oppressive devices of feudal and royalist lawyers to the sounder,
freer, and simpler principles of the days of our earliest freedom.