IN my two former chapters I have carried my brief sketch of the history
of the English Constitution down to the great events of the seventeenth
century. I chose that point as the end of my consecutive narrative,
because the peculiar characteristic of the times which have followed
has been that so many and such important practical changes have been
made without any change in the written Law, without any re-enactment of
the Law, without any fresh declaration of its meaning. The movements
and revolutions of former times, as I have before said, seldom sought
any acknowledged change in the Law, but rather its more distinct
enactment, its more careful and honest administration. This was the
general character of all the great steps in our political history, from
the day when William of Normandy renewed the Laws of Eadward to the day
when William of Orange gave his royal assent to the Bill of Rights.
But, though each step in our progress took the shape, not of the
creation of a new right, but of the firmer establishment of an old one,
yet each step was marked by some formal and public act which stands
enrolled among the landmarks of our progress. Some Charter was granted
by the Sovereign, some Act of Parliament was passed by the Estates
of the Realm, setting forth in legal form the nature and measure of
the rights which it was sought to place on a firmer ground. Since
the seventeenth century things have in this respect greatly altered.
The work of legislation, of strictly constitutional legislation, has
never ceased; a long succession of legislative enactments stand out as
landmarks of political progress no less in more recent than in earlier
times. But alongside of them there has also been a series of political
changes, changes of no less moment than those which are recorded in the
statute-book, which have been made without any legislative enactment
whatever. A whole code of political maxims, universally acknowledged
in theory, universally carried out in practice, has grown up, without
leaving among the formal acts of our legislature any trace of the
steps by which it grew. Up to the end of the seventeenth century,
we may fairly say that no distinction could be drawn between the
Constitution and the Law. The prerogative of the Crown, the privilege
of Parliament, the liberty of the subject, might not always be clearly
defined on every point. It has indeed been said that those three things
were all of them things to which in their own nature no limit could be
set. But all three were supposed to rest, if not on the direct words
of the Statute Law, yet at least on that somewhat shadowy yet very
practical creation, that mixture of genuine ancient traditions and of
recent devices of lawyers, which is known to Englishmen as the Common
Law. Any breach either of the rights of the Sovereign or of the rights
of the subject was a legal offence, capable of legal definition and
subjecting the offender to legal penalties. An act which could not be
brought within the letter either of the Statute or of the Common Law
would not then have been looked upon as an offence at all. If lower
courts were too weak to do justice, the High Court of Parliament stood
ready to do justice even against the mightiest offenders. It was armed
with weapons fearful and rarely used, but none the less regular and
legal. It could smite by impeachment, by attainder, by the exercise
of the greatest power of all, the deposition of the reigning King.
But men had not yet reached the more subtle doctrine that there may
be offences against the Constitution which are no offences against
the Law. They had not learned that men in high office may have a
responsibility practically felt and acted on, but which no legal
enactment has defined, and which no legal tribunal can enforce. It had
not been found out that Parliament itself has a power, now practically
the highest of its powers, in which it acts neither as a legislature
nor as a court of justice, but in which it pronounces sentences which
have none the less practical force because they carry with them none of
the legal consequences of death, bonds, banishment, or confiscation. We
now have a whole system of political morality, a whole code of precepts
for the guidance of public men, which will not be found in any page of
either the Statute or the Common Law, but which are in practice held
hardly less sacred than any principle embodied in the Great Charter
or in the Petition of Right. In short, by the side of our written Law
there has grown up an unwritten or conventional Constitution. When an
Englishman speaks of the conduct of a public man being constitutional
or unconstitutional, he means something wholly different from what he
means by his conduct being legal or illegal. A famous vote of the House
of Commons, passed on the motion of a great statesman, once declared
that the then Ministers of the Crown did not possess the confidence
of the House of Commons, and that their continuance in office was
therefore at variance with the spirit of the Constitution(1). The truth
of such a position, according to the traditional principles on which
public men have acted for some generations, cannot be disputed; but
it would be in vain to seek for any trace of such doctrines in any
page of our written Law. The proposer of that motion did not mean to
charge the existing Ministry with any illegal act, with any act which
could be made the subject either of a prosecution in a lower court
or of impeachment in the High Court of Parliament itself. He did not
mean that they, Ministers of the Crown, appointed during the pleasure
of the Crown, committed any breach of the Law of which the Law could
take cognizance, merely by keeping possession of their offices till
such time as the Crown should think good to dismiss them from those
offices. What he meant was that the general course of their policy was
one which to a majority of the House of Commons did not seem to be
wise or beneficial to the nation, and that therefore, according to a
conventional code as well understood and as effectual as the written
Law itself, they were bound to resign offices of which the House of
Commons no longer held them to be worthy. The House made no claim to
dismiss those Ministers from their offices by any act of its own; it
did not even petition the Crown to remove them from their offices. It
simply spoke its mind on their general conduct, and it was held that,
when the House had so spoken, it was their duty to give way without
any formal petition, without any formal command, on the part either
of the House or of the Sovereign(2). The passing by the House of
Commons of such a resolution as this may perhaps be set down as the
formal declaration of a constitutional principle. But though a formal
declaration, it was not a legal declaration. It created a precedent for
the practical guidance of future Ministers and future Parliaments, but
it neither changed the Law nor declared it. It asserted a principle
which might be appealed to in future debates in the House of Commons,
but it asserted no principle which could be taken any notice of by a
Judge in any Court of Law. It stands therefore on a wholly different
ground from those enactments which, whether they changed the Law or
simply declared the Law, had a real legal force, capable of being
enforced by a legal tribunal. If any officer of the Crown should levy a
tax without the authority of Parliament, if he should enforce martial
law without the authority of Parliament, he would be guilty of a legal
crime. But, if he merely continues to hold an office conferred by the
Crown and from which the Crown has not removed him, though he hold it
in the teeth of any number of votes of censure passed by both Houses of
Parliament, he is in no way a breaker of the written Law. But the man
who should so act would be universally held to have trampled under foot
one of the most undoubted principles of the unwritten but universally
accepted Constitution.
The remarkable thing is that, of these two kinds of hypothetical
offences, the latter, the guilt of which is purely conventional, is
almost as unlikely to happen as the former, whose guilt is a matter
established by Law. The power of the Law is so firmly established among
us that the possibility of breaches of the Law on the part of the
Crown or its Ministers hardly ever comes into our heads. And conduct
sinning against the broad lines of the unwritten Constitution is looked
on as hardly less unlikely. Political men may debate whether such and
such a course is or is not constitutional, just as lawyers may debate
whether such a course is or is not legal. But the very form of the
debate implies that there is a Constitution to be observed, just as
in the other case it implies that there is a Law to be observed. Now
this firm establishment of a purely unwritten and conventional code
is one of the most remarkable facts in history. It is plain that it
implies the firmest possible establishment of the power of the written
Law as its groundwork. If there were the least fear of breaches of the
written Law on the part of the Crown or its officers, we should be
engaged in finding means for getting rid of that more serious danger,
not in disputing over points arising out of a code which has no legal
existence. But it is well sometimes to stop and remember how thoroughly
conventional the whole of our received system is. The received doctrine
as to the relations of the two Houses of Parliament to one another, the
whole theory of the position of the body known as the Cabinet and of
its chief the Prime Minister, every detail in short of the practical
working of government among us, is a matter belonging wholly to the
unwritten Constitution and not at all to the written Law. The limits
of the royal authority are indeed clearly defined by the written Law.
But I suspect that many people would be amazed at the amount of power
which the Crown still possesses by Law, and at the many things, which
in our eyes would seem utterly monstrous, but which might yet be done
by royal authority without any law being broken. The Law indeed secures
us against arbitrary legislation, against the repeal of any old laws,
or the enactment of any new ones, without the consent of both Houses
of Parliament(3). But it is the unwritten Constitution alone which
makes it practically impossible for the Crown to refuse its assent to
measures which have passed both Houses of Parliament, and which in many
cases makes it almost equally impossible to refuse the prayer of an
address sent up by one of those Houses only. The written Law leaves to
the Crown the choice of all its ministers and agents, great and small;
their appointment to office and their removal from office, as long as
they commit no crime which the Law can punish, is a matter left to
the personal discretion of the Sovereign. The unwritten Constitution
makes it practically impossible for the Sovereign to keep a Minister
in office of whom the House of Commons does not approve, and it makes
it almost equally impossible to remove from office a Minister of
whom the House of Commons does approve(4). The written Law and the
unwritten Constitution alike exempt the Sovereign from all ordinary
personal responsibility(5). They both transfer the responsibility from
the Sovereign himself to his agents and advisers. But the nature and
extent of their responsibility is widely different in the eyes of the
written Law and in the eyes of the unwritten Constitution. The written
Law is satisfied with holding that the command of the Sovereign is no
excuse for an illegal act, and that he who advises the commission of
an illegal act by royal authority must bear the responsibility from
which the Sovereign himself is free. The written Law knows nothing of
any responsibility but such as may be enforced either by prosecution in
the ordinary Courts or by impeachment in the High Court of Parliament.
The unwritten Constitution lays the agents and advisers of the Crown
under a responsibility of quite another kind. What we understand by
the responsibility of Ministers is that they are liable to have all
their public acts discussed in Parliament, not only on the ground
of their legal or illegal character, but on the vaguest grounds of
their general tendency. They may be in no danger of prosecution or
impeachment; but they are no less bound to bow to other signs of the
will of the House of Commons; the unwritten Constitution makes a
vote of censure as effectual as an impeachment, and in many cases it
makes a mere refusal to pass a ministerial measure as effectual as a
vote of censure. The written Law knows nothing of the Cabinet or the
Prime Minister; it knows them as members of one or the other House of
Parliament, as Privy Councillors, as holders, each man in his own
person, of certain offices; but, as a collective body bound together
by a common responsibility, the Law never heard of them(6). But in the
eye of the unwritten Constitution the Prime Minister and the Cabinet of
which he is the head form the main feature of our system of government.
It is plain at a moment’s glance that the practical power of the Crown
is not now what it was in the reign of William the Third or even in
that of George the Third. But the change is due, far less to changes in
the written Law than to changes in the unwritten Constitution. The Law
leaves the powers of the Crown untouched, but the Constitution requires
that those powers should be exercised by such persons, and in such a
manner, as may be acceptable to a majority of the House of Commons. In
all these ways, in a manner silent and indirect, the Lower House of
Parliament, as it is still deemed in formal rank, has become the really
ruling power in the nation. There is no greater contrast than that
which exists between the humility of its formal dealings with the Crown
and even with the Upper House(7), and the reality of the irresistible
power which it exercises over both. It is so conscious of the mighty
force of its indirect powers that it no longer cares to claim the
direct powers which it exercised in former times. There was a time
when Parliament was directly consulted on questions of War and Peace.
There was a time when Parliament claimed directly to appoint several
of the chief officers of state(8). There were much later times when it
was no unusual thing to declare a man in power to be a public enemy,
or directly to address the Crown for his removal from office and from
the royal presence. No such direct exercises of parliamentary power are
needed now, because the whole machinery of government may be changed by
the simple process of the House refusing to pass a measure on which the
Minister has made up his mind to stake his official being.
Into the history of the stages by which this most remarkable state
of things has been brought about I do not intend here to enter. The
code of our unwritten Constitution has, like all other English things,
grown up bit by bit, and, for the most part, silently and without any
acknowledged author. Yet some stages of the developement are easily
pointed out, and they make important landmarks. The beginning may be
placed in the reign of William the Third, when we first find anything
at all like a _Ministry_ in the modern sense. Up to that time the
servants of the Crown had been servants of the Crown, each man in
the personal discharge of his own office. The holder of each office
owed faithful service to the Crown, and he was withal responsible to
the Law; but he stood in no special fellowship towards the holder
of any other office. Provided he discharged his own duties, nothing
hindered him from being the personal or political enemy of any of his
fellow-servants. It was William who first saw that, if the King’s
government was to be carried on, there must be at least a general
agreement of opinions and aims among the King’s chief agents in his
government(9). From this beginning a system has gradually grown up
which binds the chief officers of the Crown to work together in at
least outward harmony, to undertake the defence of one another, and
on vital points to stand and fall together. Another important stage
happened in much later times, when the King ceased to take a share in
person in the deliberations of his Cabinet. And I may mark a change
in language which has happened within my own memory, and which, like
other changes of language, is certainly not without its meaning. We
now familiarly speak, in Parliament and out of Parliament, of the body
of Ministers actually in power, the body known to the Constitution but
wholly unknown to the Law, by the name of “the Government.” We speak
of “Mr. Gladstone’s Government” or “Mr. Disraeli’s Government.” I can
myself remember the time when such a form of words was unknown, when
“Government” still meant “Government by King, Lords, and Commons,” and
when the body of men who acted as the King’s immediate advisers were
spoken of as “Ministers” or “the Ministry”(10).
This kind of silent, I might say stealthy, growth, has, without
the help of any legislative enactment, produced that unwritten
and conventional code of political rules which we speak of as the
Constitution. This process I have spoken of as being characteristic
of the days since the Revolution of 1688, as distinguished from
earlier times. And so it undoubtedly is. At no earlier time have so
many important changes in constitutional doctrine and practice won
universal acceptance without being recorded in any written enactment.
Yet this tendency of later times is, after all, only a further
developement of a tendency which was at work from the beginning. It
is simply another application of the Englishman’s love of precedent.
The growth of the unwritten Constitution has much in common with the
earlier growth of the unwritten Common Law. I have shown in earlier
chapters that some of the most important principles of our earlier
Constitution were established silently and by the power of precedent,
without resting on any known written enactment. If we cannot show any
Act of Parliament determining the relations in which the members of
the Cabinet stand to the Crown, to the House of Commons, and to one
another, neither can we show the Act of Parliament which decreed, in
opposition to the practice of all other nations, that the children of
the hereditary Peer should be simple Commoners. The real difference is
that, in more settled times, when Law was fully supreme, it was found
that many important practical changes might be made without formal
changes in the Law. It was also found that there is a large class of
political subjects which can be better dealt with in this way of tacit
understandings than they can be in the shape of a formal enactment by
Law. We practically understand what is meant by Ministers having or not
having the confidence of the House of Commons; we practically recognise
the cases in which, as not having the confidence of the House, they
ought to resign office and the cases in which they may fairly appeal
to the country by a dissolution of Parliament. But it would be utterly
impossible to define such cases beforehand in the terms of an Act of
Parliament. Or again, the Speaker of the House of Commons is an officer
known to the Law. The Leader of the House of Commons is a person as
well known to the House and the country, his functions are as well
understood, as those of the Speaker himself. But of the Leader of the
House of Commons the Law knows nothing. It would be hopeless to seek to
define his duties in any legal form, and the House itself has, before
now, shrunk from recognising the existence of such a person in any
shape of which a Court of Law could take notice(11).
During a time then which is now not very far short of two hundred
years, the silent and extra-legal growth of our conventional
Constitution has been at least as important as the actual changes
in our written Law. With regard to these last, the point on which I
wish chiefly to dwell is the way in which not a few pieces of modern
legislation have been—whether wittingly or unwittingly I do not profess
to know—a return to the simpler principles of our oldest constitution.
I trust to show that, in many important points, we have cast aside
the legal subtleties which grew up from the thirteenth century to the
seventeenth, and that we have gone back to the plain common sense of
the eleventh or tenth, and of times far earlier still. In those ancient
times we had already laws, but we had as yet no lawyers. We hear in
early times of men who were versed above others in the laws of the
land; but such special knowledge is spoken of as the attribute of age
or of experience in public business, not as the private possession of
a professional class(12). The class of professional lawyers grew up
along with the growth of a more complicated and technical jurisprudence
under our Norman and Angevin Kings. Now I mean no disrespect to
a profession which in our present artificial state of society we
certainly cannot do without, but there can be no kind of doubt that
lawyers’ interpretations and lawyers’ ways of looking at things have
done no small mischief, not only to the true understanding of our
history but to the actual course of our history itself. The lawyer’s
tendency is to carry to an unreasonable extent that English love of
precedent which, within reasonable bounds, is one of our most precious
safeguards. His virtue is that of acute and logical inference from
given premisses; the premisses themselves he is commonly satisfied to
take without examination from those who have gone before him. It is
often wonderful to see the amazing ingenuity with which lawyers have
piled together inference upon inference, starting from some purely
arbitrary assumption of their own. Each stage of the argument, taken
by itself, is absolutely unanswerable; the objection must be taken
earlier, before the argument begins. The argument is perfect, if we
only admit the premisses; the only unlucky thing is that the premisses
will constantly be found to be historically worthless. Add to this that
the natural tendency of the legal mind is to conservatism and deference
to authority. This will always be the case, even with thoroughly
honest men in an age when honesty is no longer dangerous. But this
tendency will have tenfold force in times when an honest setting forth
of the Law might expose its author to the disfavour of an arbitrary
government. We shall therefore find that the premisses from which
lawyers’ arguments have started, but which historical study shows to be
unsound, are commonly premisses devised in favour of the prerogative
of the Crown, not in favour of the rights of the people. Indeed the
whole ideal conception of the Sovereign, as one, personally at least,
above the Law, as one personally irresponsible and incapable of doing
wrong, the whole conception of the Sovereign as the sole fountain of
all honour, as the original grantor of all property, as the source
from which all authority of every kind issues in the first instance,
is purely a lawyer’s conception, and rests upon no ground whatever in
the records of our early history(13). In later times indeed the evil
has largely corrected itself; the growth of our unwritten Constitution
under the hands of statesmen has done much practically to get rid of
these slavish devices of lawyers. The personal irresponsibility of the
Sovereign becomes practically harmless when the powers of the Crown are
really exercised by Ministers who act under a twofold responsibility,
both to the written Law and to the unwritten Constitution. Yet even
now small cases of hardship sometimes happen in which some traditional
maxim of lawyers, some device devised in favour of the prerogative of
the Crown, stands in the way of the perfectly equal administration
of justice. But in several important cases the lawgiver has directly
stepped in to wipe out the inventions of the lawyer, and modern Acts of
Parliament have brought things back to the simpler principles of our
earliest forefathers. I will wind up my sketch of our constitutional
history by pointing out several cases in which this happy result has
taken place.
For many ages it was a legal doctrine universally received that
Parliament at once expired at the death of the reigning King. The
argument by which the lawyers reached this conclusion is, like most of
their arguments, altogether unanswerable, provided only we admit their
premisses. According to the lawyers’ conception, whatever might be the
powers of Parliament when it actually came together, however much the
King might be bound to act by its advice, consent, and authority, the
Parliament itself did nevertheless derive its being from the authority
of the King. Parliament was summoned by the King’s writ. The King
might indeed be bound to issue the writs for its summons; still it was
from the King’s writ that the Parliament actually derived its being
and its powers. By another legal assumption, the force of the King’s
writ was held to last only during the lifetime of the King who issued
it. It followed therefore that Parliament, summoned by the King’s
writ and deriving its authority from the King’s writ, was dissolved
_ipso facto_ by the death of the King who summoned it. Once admit the
assumptions from which this reasoning starts, and the reasoning itself
is perfect. But what is the worth of the assumptions? Let us see how
this mass of legal subtlety would have looked in the eyes of a man of
the eleventh century, in the eyes of a man who had borne his part in
the elections of Eadward and of Harold, and who had raised his voice
and clashed his arms in the great Assembly which restored Godwine to
his lands and honours(14). To such an one the doctrine that a national
Assembly could be gathered together only by the King’s writ, and the
consequent doctrine that the national Assembly ceased to exist when the
breath went out of the King’s body, would have seemed like the babble
of a madman. When was the gathering together of the national Assembly
more needed, when was it called upon to exercise higher and more
inherent powers, than when the throne was actually vacant, and when
the Assembly of the nation came together to determine who should fill
it? And how could the Assembly be gathered together by the King’s writ
when there was no King in the land to issue a writ? The King’s writ
would be, in his eyes, a convenient way in ordinary times for fixing
a time and place for the meetings of the Assembly, but it would be
nothing more. It would be in no sense the source of the powers of the
Assembly, powers which he would look upon as derived from the simple
fact that the Assembly was itself the nation. In his eyes it was not
the King who created the Assembly, but the Assembly which created the
King. The doctrine that the King never dies, that the throne never can
be vacant, would have seemed gibberish to one who had seen the throne
vacant and had borne his part in filling it. The doctrine that the
King can do no wrong would have seemed no less gibberish to one who
knew that he might possibly be called on to bear his part in deposing
a King. Three of the most famous Assemblies in English history have
ever been puzzles in the eyes of mere legal interpreters; to the man of
the eleventh century they would have seemed to be perfectly legal and
regular, alike in their constitution and in their acts. The Assembly
which in 1399 deposed Richard the Second and elected Henry the Fourth,
though summoned by the King’s writ, was not opened by his commission,
and it seems to have shrunk from taking the name of Parliament, and to
have acted only by the name of the Estates of the Realm. As an Assembly
which was in some sort irregular, it seems to have shrunk from going
through the usual forms of a regular Parliament, and, though it did
in the end exercise the greatest of parliamentary powers, it seems to
have been afraid to look its own act in the face. Richard was deposed,
but his deposition was mixed up with a resignation of the Crown on
his own part, and with a challenge of the Crown on the part of Henry.
Then, as a demise of the Crown had taken place, it was held that the
same legal consequences followed as if that demise had been caused by
the death of the King. It was held that the Parliament which had been
summoned by the writ of King Richard ceased to exist when Richard
ceased to be King, and, as it was not thought good to summon a new
Parliament, the same Parliament was, by a legal fiction, summoned again
under the writ of King Henry(15). All these doubts and difficulties,
all these subtleties of lawyers, would have been wholly unintelligible
to a man of the eleventh century. In his eyes the Witan would have come
together, whether by King Richard’s writ or not it mattered little;
having come together, they had done the two greatest of national acts
by deposing one King and choosing another; having done this, if there
was any other national business to be done, there was no reason on
earth why they should not go on and do it. Take again another Assembly
of equal importance in our history, the Convention which voted the
recall—that is, in truth, the election—of Charles the Second. That
Assembly succeeded a Parliament which had ventured on a still stronger
step than deposing a King, that of sending a reigning King to trial and
execution(16). It was not held in 1649 that the Long Parliament came
to an end when the axe fell on the neck of Charles the First, but the
doctrine that it ought to have done so was not forgotten eleven years
later(17). And the Convention which was elected, as freely as any
Parliament ever was elected(18), in answer to the vote of the expiring
Long Parliament, was, because it was so elected and not in answer to
the King’s writ, looked on as an Assembly of doubtful validity. It
acted as a Parliament; it restored the King; it granted him a revenue;
and it did a more wonderful work than all, for it created itself, and
passed an Act declaring itself to be a lawful Parliament(19). Yet,
after all, it was deemed safer that all the Acts of the Convention
Parliament should be confirmed by its successor which was summoned in
due form by the King’s writ. These fantastic subtleties, subtleties
worthy of the kindred device by which the first year of Charles’s reign
was called the twelfth, would again have been wholly unintelligible
to our man of the eleventh century. He might have remembered that the
Assembly which restored Æthelred—which restored him on conditions,
while Charles was restored without conditions—did not scruple to go on
and pass a series of the most important decrees that were passed in
any of our early Assemblies(20). Once more again, the Convention which
deposed James and elected William, seemed, like that which deposed
Richard and elected Henry, to doubt its own existence and to shrink
from its own act. James was deposed; but the Assembly which deposed
him ventured not to use the word, and, as an extorted abdication was
deemed expedient in the case of Richard, so a constructive abdication
was imagined in the case of James(21). And the Assembly which elected
William, like the Assembly which elected Henry and that which elected
Charles, prolonged its own existence by the same transparent fiction
of voting itself to be a lawful Parliament. Wise men held at the time
that, at least in times of revolution, a Parliament might be called
into being by some other means than that of the writ of a King. Yet it
was deemed that some additional security was given to the existence of
the Assembly and to the validity of its acts by this second exercise
of the mysterious power of self-creation(22). Once more in the same
reign the question was brought forward whether a Parliament summoned
by the joint writ of William and Mary did not expire when Mary died
and William reigned alone. This subtlety was suggested only to be
contemptuously cast aside; yet it may be fairly doubted whether it was
not worth at least as much as any of the kindred subtleties which on
the three earlier occasions were deemed of such vast importance(23).
The untutored wisdom of Englishmen, in the days when we had laws but
when those laws had not yet been made the sport of the subtleties of
lawyers, would have seen as little force in the difficulties which it
was deemed necessary to get over by solemn parliamentary enactments as
in the difficulty which neither House of Parliament thought worthy of
any serious discussion.
And now what has modern legislation done towards getting rid of all
these pettifogging devices, and towards bringing us back to the simpler
doctrines of our forefathers? Parliament is still summoned by the
writ of the Sovereign; in settled times no other way of bringing it
together can be so convenient. But, if times of revolution should ever
come again, we, who do even our revolutions according to precedent,
shall probably have learned something from the revolutionary precedents
of 1399, of 1660, and of 1688. In each later case the subtlety is
one degree less subtle than in the former. The Estates of the Realm
which deposed Richard were changed into a Parliament of Henry by the
transparent fiction of sending out writs which were not, and could not
be, followed by any real elections. The Convention which recalled or
elected Charles the Second did indeed turn itself into a Parliament,
but it was deemed needful that its acts should be confirmed by another
Parliament. The acts of the Convention of 1688 were not deemed to need
any such confirmation. Each of these differences marks a stage in the
return to the doctrine of common sense, that, convenient as it is in
all ordinary times that Parliament should be summoned by the writ of
the Sovereign, yet it is not from that summons, but from the choice of
the people, that Parliament derives its real being and its inherent
powers. As for the other end of the lawyers’ doctrine, the inference
that Parliament is _ipso facto_ dissolved by a demise of the Crown,
from that a more rational legislation has set us free altogether.
Though modern Parliaments are no longer called on to elect Kings, yet
experience and common sense have taught us that the time when the
Sovereign is changed is exactly the time when the Great Council of
the Nation ought to be in full life and activity. By a statute only a
few years later than the raising of the question whether a Parliament
of William and Mary did or did not expire by the death of Mary, all
such subtleties were swept away. It was now deemed so needful that the
new Sovereign should have a Parliament ready to act with him, that it
became the Law that the Parliament which was in being at the time of
a demise of the Crown should remain in being for six months, unless
specially dissolved by the new Sovereign. A later statute went further
still, and provided that, if a demise of the Crown should take place
during the short interval when there is no Parliament in being, the
last Parliament should _ipso facto_ revive, and should continue in
being, unless a second time dissolved, for six months more. Thus the
event which, by the perverted ingenuity of lawyers, was held to have
the power of destroying a Parliament, was, by the wisdom of later
legislation, clothed with the power of calling a Parliament into being.
Lastly, in our own days, all traces of the lawyers’ superstition have
been swept away, and the demise of the Crown now in no way affects the
duration of the existing Parliament(24). Truly this is a case where
the letter killeth and the spirit giveth life. The doctrine which had
been inferred by unanswerable logic from an utterly worthless premiss
has been cast aside in favour of the dictate of common sense. We have
learned that the moment when the State has lost its head is the last
moment which we ought to choose for depriving it of its body also.
Here then is a notable instance of the way in which the latest
legislation of England has fallen back upon the principles of the
earliest. Here is a point on which the eleventh century and the
nineteenth are of one mind, and on which the fanciful scruples of the
fourteenth and the seventeenth centuries are no longer listened to. Let
us take another instance. In the old Teutonic Constitution, just as in
the old Roman Constitution, large tracts of land were the property of
the State, the _ager publicus_ of Rome, the _folkland_ of England. As
the royal power grew, as the King came to be more and more looked on
as the impersonation of the nation, the land of the people came to be
more and more looked on as the land of the King, and the _folkland_
of our Old-English charters gradually changed into the _Terra Regis_
of Domesday(25). Like other changes of the kind, the Norman Conquest
only strengthened and brought to its full effect a tendency which was
already at work; but there can be no doubt that, down to the Norman
Conquest, the King at least went through the form of consulting his
Witan, before he alienated the land of the people to become the
possession of an individual—in Old-English phrase, before he turned
_folkland_ into _bookland_(26). After the Norman Conquest we hear no
more of the land of the people; it has become the land of the King, to
be dealt with according to the King’s personal pleasure. From the days
of the first William to those of the Third, the land which had once
been the land of the people was dealt with without any reference to
the will of the people. Under a conscientious King it might be applied
to the real service of the State, or bestowed as the reward of really
faithful servants of the State. Under an unconscientious King it might
be squandered broadcast among his minions or his mistresses(27). Now
this wrong too is redressed. A custom as strong as law now requires
that, at the beginning of each fresh reign, the Sovereign shall, not
by an act of bounty but by an act of justice, give back to the nation
the land which the nation lost so long ago. The royal demesnes are now
handed over to be dealt with like the other revenues of the State, to
be disposed of by Parliament for the public service(28). That is to
say, the people have won back their own; the usurpation of the days of
foreign rule has been swept away. We have in this case too gone back
to the sound principles of our forefathers; the _Terra Regis_ of the
Norman has once more become the _folkland_ of the days of our earliest
freedom.
I will quote another case, a case in which the return from the
fantasies of lawyers to the common sense of antiquity has been
distinctly to the profit, if not of the abstraction called the Crown,
yet certainly to that of its personal holder. As long as the _folkland_
remained the land of the people, as long as our monarchy retained
its ancient elective character, the King, like any other man, could
inherit, purchase, bequeath, or otherwise dispose of, the lands which
were his own private property as much as the lands of other men were
theirs. We have the wills of several of our early Kings which show that
a King was in this respect as free as any other man(29). But as the
lawyers’ figment of hereditary right took root, as the other lawyers’
figment also took root by which the lands of the people were held to
be at the personal disposal of the King, a third figment grew up, by
which it was held that the person and the office of the King were so
inseparably fused into one that any private estates which the King held
before his accession to the throne became _ipso facto_ part and parcel
of the royal demesne. As long as the Crown remained an elective office,
the injustice of such a rule would have made itself plain; it would
have been at once seen to be as unreasonable as if it had been held
that the private estates of a Bishop should merge in the estates of
his see. As long as there was no certainty that the children or other
heirs of the reigning King would ever succeed to his Crown, it would
have been the height of injustice to deprive them in this way of their
natural inheritance. The election of a King would have carried with
it the confiscation of his private estate. But when the Crown was held
to be hereditary, when the _folkland_ was held to be _Terra Regis_,
this hardship was no longer felt. The eldest son was provided for by
his right of succession to the Crown, and the power of disposing of the
Crown lands at pleasure gave the King the means of providing for his
younger children. Still the doctrine was none the less unreasonable;
it was a doctrine founded on no ground either of natural justice or of
ancient law; it was a mere inference which had gradually grown up out
of mere arbitrary theories about the King’s powers and prerogatives.
And, as the old state of things gradually came back again, as men
began to feel that the demesnes of the Crown were not the private
possession of the reigning King, but were the true possession of the
people—that is, as the _Terra Regis_ again came back to its old state
of _folkland_—it was felt to be unreasonable to shut out the Sovereign
from a natural right which belonged to every one of his subjects. The
land which, to put it in the mildest form, the King held in trust for
the common service of the nation was now again employed to its proper
use. It was therefore reasonable that a restriction which belonged
to a past state of things should be swept away, and that Sovereigns
who had given up an usurped power which they ought never to have held
should be restored to the enjoyment of a natural right which ought
never to have been taken from them. As our present Sovereign in so many
other respects holds the place of Ælfred rather than the place of the
Richards and Henries of later times, so she again holds the right which
Ælfred held, of acquiring and disposing of private property like any
other member of the nation(30).
These examples are, I hope, enough to make out my case. In each of them
modern legislation has swept away the arbitrary inferences of lawyers,
and has gone back to those simpler principles which the untutored
wisdom of our forefathers never thought of calling in question. I
could easily make the list much longer. Every act which has restrained
the arbitrary prerogative of the Crown, every act which has secured
or increased either the powers of Parliament or the liberty of the
subject, has been a return, sometimes to the letter, at all times to
the spirit, of our earliest Law. But I would enlarge on one point
only, the most important point of all, and a point in which we may
at first sight seem, not to have come nearer, but to have gone away
further from the principles of early times. I mean with regard to the
succession to the Crown. The Crown was of old, as I have already said,
elective. No man had a right to become King till he had been called
to the kingly office by the choice of the Assembly of the nation. No
man actually was King till he had been admitted to the kingly office
by the consecration of the Church. The doctrines that the King never
dies, that the throne never can be vacant, that there can be no
interregnum, that the reign of the next heir begins the moment the
reign of his predecessor is ended, are all figments of later times.
No signs of such doctrines can be found at any time earlier than the
accession of Edward the First(31). The strong preference which in early
times belonged to members of the kingly house, above all to the born
son of a crowned King(32), gradually grew, under the influences which
the Norman Conquest finally confirmed, into the doctrine of absolute
hereditary right. That doctrine grew along with the general growth of
the royal power; it grew as men gradually came to look on kingship as
a possession held by a single man for his own profit, rather than as
an office bestowed by the people for the common good of the realm. It
might seem that, in this respect at least, we have not gone forward,
but that we rather have gone back. For nothing is more certain than
that the Crown is more strictly and undoubtedly hereditary now than it
was in the days of Normans, Angevins, or Tudors. But a little thought
will show that in this case also, we have not gone back but have gone
forward. That is to say, we have gone forward by going back, by going
back, in this case, not to the letter, but assuredly to the spirit of
earlier times. The Crown is now more undoubtedly hereditary than it
was in the fifteenth or sixteenth century; but this is because it is
now hereditary by Law, because its powers are distinctly defined by
Law. The will of the people, the source of all Law and of all power,
has been exercised, not in the old form of personally choosing a King
at every vacancy of the Crown, but by an equally lawful exercise of
the national will, which has thought good to entail the Crown on a
particular family.
It was in the reign of our last elective King that the Crown first
became legally hereditary. The doctrine may seem a startling one, but
it is one to which an unbiassed study of our history will undoubtedly
lead us. Few things are more amusing than the treatment which our early
history has met with at the hands of purely legal writers. There is
something almost pitiable in the haltings and stumblings of such a
writer as Blackstone, unable to conceive that his lawyer’s figment
of hereditary right was anything short of eternal, and yet coming at
every moment across events which showed that in early times all such
figments were utterly unknown(33). In early times the King was not
only elected, but he went through a twofold election. I have already
said that the religious character with which most nations have thought
good to clothe their Kings took in England, as in most other Christian
lands, the form of an ecclesiastical consecration to the kingly office.
That form we still retain; but in modern times it has become a mere
form, a pageant impressive no doubt and instructive, but still a mere
pageant, which gives the crowned King no powers which he did not
equally hold while still uncrowned. The death of the former King at
once puts his successor in possession of every kingly right and power;
his coronation in no way adds to his legal authority, however much it
may add to his personal responsibility towards God and his people. But
this was not so of old time. The choice of the national Assembly gave
the King so chosen the sole right to become King, but it did not make
him King. The King-elect was like a Bishop-elect. The recommendation
of the Crown, the election of the Chapter, and the confirmation of the
Archbishop, give a certain man the sole right to a certain see, but
it is only the purely religious rite of consecration which makes him
actually Bishop of it(34). So it was of old with a King. The choice
of the Witan made him King-elect, but it was only the ecclesiastical
crowning and anointing which made him King. And this ecclesiastical
ceremony involved a further election. Chosen already to the civil
office by the Nation in its civil character, he was again chosen by
the Church—that is, by the Nation in its religious character, by the
Clergy and People assembled in the church where the crowning rite was
to be done(35). This second ecclesiastical election must always have
been a mere form, as the choice of the nation was already made before
the ecclesiastical ceremony began. But the ecclesiastical election
survived the civil one. The state of things which lawyers dream of
from the beginning is a law of strict hereditary succession, broken
in upon by occasional interruptions. These interruptions, which, in
the eye of history, are simply exercises of an ancient right, are, in
the eyes of lawyers, only revolutions or usurpations. But this state
of things, a state in which a fixed rule was sometimes broken, which
Blackstone dreams of in the tenth and eleventh centuries, really did
exist from the thirteenth century onwards. From the accession of
Edward the First, the first King who reigned before his coronation,
hereditary succession became the rule in practice. The son, or even the
grandson, of the late King(36) was commonly acknowledged as a matter
of course, without anything which could fairly be called an election.
But the right of Parliament to settle the succession was constantly
exercised, and ever and anon we come across signs which show that
the ancient notion of an election of a still more popular kind had
not wholly passed away out of men’s minds. Two Kings were formally
deposed, and on the deposition of the second the Crown passed, as
it might have done in ancient times, to a branch of the royal house
which was not the next in lineal succession. Three Kings of the House
of Lancaster reigned by a good parliamentary title, and the doctrine
of indefeasible hereditary right, the doctrine that there was some
virtue in a particular line of succession which the power of Parliament
itself could not set aside, was first brought forward as the formal
justification of the claims of the House of York(37). Those claims
in truth could not be formally justified on any showing but that of
the most slavish doctrine of divine right, but it was not on any such
doctrine as that that the cause of the House of York really rested.
The elaborate list of grandmothers and great-grandmothers which was
brought forward to show that Henry the Fifth was an usurper would never
have been heard of if the government of Henry the Sixth had not become
utterly unpopular, while Richard Duke of York was the best beloved man
of his time. Richard accepted a parliamentary compromise, which of
course implied the right of Parliament to decide the question. Henry
was to keep the Crown for life, and Richard was to displace Henry’s
son as heir-apparent. That is to say, according to a custom common in
Germany, though rare in England, Richard was chosen to fill a vacancy
in the throne which had not yet taken place(38). Duke Richard fell at
Wakefield; in the Yorkist reading of the Law the Crown was presently
forfeited by Henry, and Edward, the heir of York, had his claim
acknowledged by a show of popular election which carries us back to
far earlier times. The claim of Richard the Third, whatever we make
of it on other grounds, was acknowledged in the like sort by what had
at least the semblance of a popular Assembly(39). In short, though
the hereditary principle had now taken firm root, though the disputes
between the pretenders to the Crown were mainly disputes as to the
right of succession, yet the remembrance of the days when the Crown
had been truly the gift of the people had not wholly passed away.
The last King who could bring even the shadow of a claim to have
been chosen by the voice of the people beneath the canopy of heaven
was no other than Richard the Third. The last King who could bring
a better claim to have been chosen by the same voice beneath the
vault of the West Minster was no other than Henry the Eighth. Down to
his time the old ecclesiastical form of choosing the King remained
in the coronation-service, and it was not wholly out of character
that Henry should issue a _congé d’élire_ for his own election. The
device for Henry’s coronation survives in his own handwriting, and,
while it contains a strong assertion of his hereditary right, it also
contains a distinct provision for his election by the people in ancient
form(40). The claim of Henry was perfectly good, for a Parliament of
his father’s reign had declared that the Crown should abide in Henry
the Seventh and the heirs of his body(41). But it was in his case that
the hereditary and parliamentary claim was confirmed by the ancient
rite of ecclesiastical election for the last time in our history. His
successor was not thus distinctly chosen. This was perhaps, among
other reasons, because in his case the form was specially needless.
For the right of Edward the Sixth to succeed his father was beyond
all dispute. By an exercise of parliamentary power, which we may well
deem strange, but which was none the less lawful, Henry had been
entrusted with the power of bequeathing and entailing the Crown as he
thought good. That power he exercised on behalf of his own children in
order, and, failing them and their issue, on the issue of his younger
sister(42). Edward, Mary, Elizabeth, therefore all reigned lawfully by
virtue of their father’s will. A moment’s thought will show that Mary
and Elizabeth could not both reign lawfully according to any doctrine
of hereditary succession. On no theory, Catholic or Protestant, could
both be the legitimate daughters of Henry. Parliament indeed had
declared both to be illegitimate; on any theory one or the other must
have been so(43). But each reigned by a perfectly lawful title, under
the provisions of the Act which empowered their father to settle the
succession according to his pleasure. While Elizabeth reigned, almost
divine as she might be deemed to be in her own person, it was at
least not held that there was any divine right in any other person to
succeed her. The doctrine which came into vogue under her successors
was in her day looked upon as treasonable(44). Elizabeth knew where
her strength lay, and the Stewarts knew where their strength, such
as it was, lay also. In the eye of the Law the first Stewart was an
usurper; he occupied the Crown in the teeth of an Act of Parliament
still in force, though he presently procured a fresh Act to salve
over his usurpation(45). There can be no doubt that, on the death of
Elizabeth, the lawful right to the Crown lay in the house of Suffolk,
the descendants of Henry’s younger sister Mary. But the circumstances
of the time were unfavourable to their claims; by a tacit agreement,
politically convenient, but quite in the teeth of the existing Law, the
Crown silently passed to the King of Scots, the descendant of Henry’s
elder sister Margaret. She had not been named in Henry’s entail; her
descendants therefore, lineal heirs of William and Cerdic as they were,
had no legal claim to the Crown beyond what was given them by the Act
of Parliament which was passed after James was already in possession.
They were therefore driven, like the Yorkists at an earlier time, to
patch up the theory of the divine right of hereditary succession, in
order to justify an occupation of the throne which had nothing to
justify it in English Law(46).
On one memorable day a Stewart King was reminded that an English King
received his right to reign from the will of the English people.
Whatever else we may say of the nature or the acts of the tribunal
before which Charles the First was arraigned, it did but assert the
ancient Law of England when it told how “Charles Stewart was admitted
King of England, and therein trusted with a limited power, to govern
by and according to the laws of the land and not otherwise.” It did
but assert a principle which had been acted on on fitting occasions
for nine hundred years, when it told its prisoner that “all his
predecessors and he were responsible to the Commons of England.”
Forgetful of the fate of Sigeberht and Æthelred, of Edward and of
Richard, Charles ventured to ask for precedents, and told his judges
that “the Kingdom of England was hereditary and not successive”(47).
After a season, the intruding dynasty passed away, on that great day
when the English people exercised for the last time its ancient right
of deposing and electing Kings. The Convention of which we have so
often spoken, that great Assembly, irregular in the eyes of lawyers,
but in truth all the more lawful because no King’s writ had summoned
it, cast all fantasies and subtleties to the winds by declaring that
the throne was vacant. A true Assembly of the nation once more put
forth its greatest power, and chose William of Orange, as, six hundred
years before, another Assembly of the nation had chosen Harold the
son of Godwine. The cycle had come round, and the English people had
won back again the rights which their fathers had brought with them
from their old home beyond the sea. Nor was it without fitness that
their choice went back to those kindred lands, and that a new William
crossed the sea to undo, after so many ages, the wrongs which England
had suffered from his namesake. And now, under the rule of an elective
King, England could at last afford to make her Crown strictly and
permanently hereditary. The Act of Settlement, as we all know, entailed
the Crown on the Electress Sophia and her heirs(48). Therefore no
Kings have ever reigned by a better right than those who, by virtue
of that Act, have been called to reign by the direct operation of the
Law. They are in truth Kings—_Cyningas_ in the most ancient sense—whose
power flows directly from the will of the nation. In the existing state
of our institutions, the hereditary character of our modern kingship
is no falling away from ancient principles; it in truth allows us
to make a fuller application of them in another shape. In an early
state of things no form of government is so natural as that which
we find established among our forefathers. A feeling which was not
wholly sentimental demanded that the King should, under all ordinary
circumstances, be the descendant of former Kings. But a sense that
some personal qualification was needed in a ruler required that the
electors should have the right of freely choosing within the royal
house. In days when Kings governed as well as reigned, such a choice,
made with some regard to the personal qualities of the King chosen, was
the best means for securing freedom and good government. Under the rule
of a conventional constitution, when Kings reign but do not govern,
when it is openly professed in the House of Commons that it is to that
House that the powers of government have passed(49), the objects
which were once best secured by making kingship elective are now best
secured by making kingship hereditary. It is as the Spartan King said:
by lessening the powers of the Crown, its possession has become more
lasting(50). A political system like ours would be inconsistent with
an elective kingship. An elective King could not be trusted simply to
reign; he would assuredly govern, or try to govern. We need not suppose
that he would attempt any breaches of the written Law. But those powers
which the written Law attaches to the Crown he would assuredly try to
exercise according to his own personal views of what was right and
expedient. And he would assuredly be justified in so doing. For the
personal choice of a certain man to be King would in all reason be held
to imply that he was personally fit for the work of government. He
would be a President or Prime Minister chosen for life, one whom there
would be no means of removing from office except by the most extreme
and most unusual exercise of the powers of Parliament. There are states
of society in which an elective Monarchy is a better kind of government
than either a Commonwealth or an hereditary Monarchy. But, under the
present circumstances of the civilized states of Europe and America,
the choice lies between the hereditary Monarchy and the Commonwealth.
The circumstances of our history have made us an hereditary Monarchy,
just as the circumstances of the history of Switzerland have made that
country a Federal Commonwealth. And no reasonable person will seek to
disturb an institution which, like other English institutions, has
grown up because it was wanted(51). Our unwritten Constitution, which
gives us an hereditary Sovereign, but which requires his government to
be carried on by Ministers who are practically chosen by the House of
Commons, does in effect attain the same objects which were sought to
be attained by the elective kingship of our forefathers. Our system
gives the State a personal chief, a personal embodiment of the national
being, which draws to itself those feelings of personal homage and
personal duty which a large class of mankind find it hard to look
upon as due to the more abstract ideas of Law and Commonwealth. And,
when the duties of constitutional royalty are discharged as our own
experience tells us that they may be discharged, the feeling awakened
is more than a mere sentiment; it is a rational feeling of genuine
personal respect. But widely as the hereditary kingship of our latest
times differs in outward form from the hereditary kingship of our
earliest times, the two have points of likeness which are not shared by
kingship in the form which it took in the ages between the two. In our
earliest and in our latest system, the King exists for the sake of the
people; in the intermediate times it sometimes seemed that the people
existed for the sake of the King. In our earliest and in our latest
system, the King is clothed with an office, the duties of which are to
be discharged for the common good of all. In the intermediate times it
sometimes seemed as if the King had been made master of a possession
which was to be enjoyed for his personal pleasure and profit. In the
intermediate times we constantly hear of the rights and powers of the
Crown as something distinct from, and almost hostile to, the common
rights of the people. In our earliest and in our latest times, the
rights of the Crown and the rights of the people are the same, for it
is allowed that the powers of the Crown are to be exercised for the
welfare of the people by the advice and consent of the people or their
representatives. Without indulging in any Utopian dreams, without
picturing to ourselves the England of a thousand years back as an
earthly paradise, the voice of sober history does assuredly teach us
that those distant times have really much in common with our own, much
in which we are really nearer to them than to times which, in a mere
reckoning of years, are far less distant from us. Thus it is that the
cycle has come round, that the days of foreign rule have been wiped
out, and that England is England once again. Our present Sovereign
reigns by as good a right as Ælfred or Harold, for she reigns by the
same right by which they reigned, by the will of the people, embodied
in the Act of Parliament which made the crown of Ælfred and Harold
hereditary in her ancestress. And, reigning by the same right by which
they reigned, she reigns also for the same ends, for the common good
of the nation of which the Law has made her the head. And we can
wish nothing better for her kingdom than that the Crown which she so
lawfully holds, which she has so worthily worn among two generations
of her people, she may, like Nestor of old, continue to wear amid the
well-deserved affection of a third(52).
NOTES.
CHAPTER I.
(1) What I say of Uri and the other democratic Cantons must not be
misunderstood, as if I all accepted the now exploded dreams which
made out the _Waldstädte_ or Forest Cantons to have had some special
origin, and some special independence, apart from the rest of Germany.
The researches of modern scholars have shown, not only that the
Forest Cantons were members of the Empire like their neighbours, but
that various lesser lords, spiritual and temporal, held different
rights within them. Their acquisition of perfect independence, even
their deliverance from other lords and promotion to the state of
_Reichsunmittelbarkeit_ or immediate dependence on the Empire, was a
work of time. Thus Uri itself, or part of it, was granted in 853 by
Lewis the German to the Abbey of Nuns (_Fraumünster_) in Zürich, and
it was not till 1231 that its independence of any lord but the Emperor
was formally acknowledged. But the universal supremacy of the Empire
in no way interfered with the internal constitution of any district,
city, or principality; nor was such interference necessarily implied
even in subjection to some intermediate lord. The rule of a female
monastery especially would be very light. And from the earliest times
we find both the men of Uri in general and the men of particular parts
of the district (_Gemeinden_, _Communes_, or parishes) spoken of as
communities capable of acting together, and even of treating with those
who claimed to be their masters. (“Nos inhabitantes Uroniam” appear in
a deed of 955 as capable of making an agreement with the officer of the
Abbey at Zürich.) All this is in no way peculiar to the Forest Cantons;
it is no more than what we find everywhere; what is peculiar is that,
whereas elsewhere the old local communities gradually died out, in the
Forest Cantons they lived and flourished, and gained new rights and
powers till they grew into absolutely independent commonwealths. I
think therefore that I have a right to speak of the democracy of Uri as
immemorial. It is not immemorial in its fully developed shape, but that
fully developed shape grew step by step out of earlier forms which are
strictly immemorial and common to the whole Teutonic race.
On the early history of the democratic Cantons, a subject than which
none has been more thoroughly misunderstood, I am not able to point
to any one trustworthy work in English. Among the writings of Swiss
scholars—shut up for the most part from readers of other nations in the
inaccessible Transactions of local Societies—there is a vast literature
on the subject, of the whole of which I am far from pretending to be
master. But I may refer to the _Essai sur l’Etat des Personnes et la
Condition des Terres dans le Pays d’Ury au XIIIe Siècle_, by the Baron
Frederick de Gingins-la-Sarraz, in the _Archiv für schweizerische
Geschichte_, i. 17; to Dr. J. R. Burckhardt’s _Untersuchungen über
die erste Bevölkerung des Alpengebirgs_ in the same collection, iv.
3; to the early chapters of the great work of Bluntschli, _Geschichte
des schweizerischen Bundesrechtes_ (Zürich, 1849), and of Blumer’s
_Staats-und Rechtsgeschichte der schweizerischen Demokratien_ (St.
Gallen, 1850); to Dr. Alfons Huber, _Die Waldstaette_ (Innsbruck,
1861), and Dr. Wilhelm Vischer, _Die Sage von der Befreiung der
Waldstädte_ (Leipzig, 1867). Dr. H. von Liebenau, in _Die Tell-Sage
zu dem Jahre_ 1230, takes a line of his own. The results of the
whole inquiry will be found in the most accessible form in M. Albert
Rilliet’s _Les Origines de la Confédération Suisse_ (Genève et Bâle,
1868).
(2) Individual Swiss mercenaries may doubtless still be found in
foreign armies, as Italy some years back knew to her cost. But the
Federal Constitution of 1848 altogether swept away the system of
military capitulations which used to be publicly entered into by the
Cantons.
(3) See Johannes von Müller, _Geschichte der schweizerische
Eidgenossenschaft_, Book v., c. 1 (vol. xvi. p. 25, of his _sämmtliche
Werke_, Stuttgart und Tübingen, 1832, and the note in vol. xxii. p. 14;
or the French translation, vol. viii. p. 35: Paris and Geneva, 1840).
The description in Peterman Etterlin’s Chronicle, p. 204 (Basel, 1752),
is worth quoting in the original. “Dann do der Hertzog von Burgunn
gesach den züg den berg ab züchen, schein die sunn gerad in sy, und
glitzet als wie ein spiegel, des gelichen lüyet das horn von Ury,
auch die harschorne von Lutzern, und was ein sölich toffen, das des
Hertzogen von Burgunn lüt ein grusen darab entpfiengent, und trattent
hinder sich.”
(4) The magistrates rode when I was present at the Landesgemeinden of
1863 and 1864. I trust that so good a custom has not passed away.
(5) On the character and position of Phôkiôn, see Grote, xi. 382, xii.
481; and on the general question of the alleged fickleness of the
Athenian people, see iv. 496.
(6) Some years ago I went through all the elections to the _Bundesrath_
or Executive Council in Switzerland, and found that in eighteen years
it had only twice happened that a member of the Council seeking
reelection had failed to obtain it. I therefore think that I was
right in congratulating a member of the Federal Council, whom I had the
pleasure of meeting last year, on being a member of the most permanent
government in Europe.
(7) Under the so-called Helvetic Republic of 1798, the Cantons ceased
to be sovereign States, and became mere divisions, like counties or
departments. One of the earliest provisions of this constitution
abolishes the ancient democracies of the Forest Cantons. “Die
Regierungsform, wenn sie auch sollte verändert werden, soll allezeit
eine repräsentative Demokratie sein.” (See the text in Bluntschli, ii.
305.) The “repräsentative Demokratie” thus forced on these ancient
commonwealths by the sham democrats of Paris was meant to exclude the
pure democracy of Athens and Uri.
The Federal system was in some sort restored by the Act of Mediation
(_Vermittlungsakte_) of Napoleon Buonaparte, when First Consul in 1803.
See the text in Bluntschli, ii. 322.
(8) Appenzell, though its history had long been connected with that
of the Confederates, was not actually admitted as a Canton till
December 1513, being the youngest of the thirteen Cantons which
formed the Confederation down to 1798. See Zellweger, _Geschichte des
Appenzellischen Volkes_, ii. 366, and the text in his _Urkunden_,
ii. part 2, p. 481, or in the older _Appenzeller Chronick_ of
Walser (Saint Gallen, 1740), 410, and the Act in his _Anhang_, p.
18. The frontispiece of this volume contains a lively picture of
a _Landesgemeinde_. In 1597 the Canton was divided into the two
Half-cantons of _Ausser-Rhoden_, Protestant, and _Inner-Rhoden_,
Catholic. See Zellweger, iii. part 2, p. 160; Walser, 553.
(9) On armed assemblies see Norman Conquest, ii. 331.
(10) I perhaps need hardly insist on this point after the references
given in my first note; but I find it constantly needful to explain
that there is no such thing as a Swiss _nation_ in any but a political
sense. The Cantons were simply members of the Empire which gradually
won a greater independence than their fellows. And the Forest Cantons,
and the German-speaking Swiss generally, do not even form a distinct
part of the German nation; they are simply three settlements of the
Alemanni, just as the three divisions of Lincolnshire are three
settlements of the Angles.
(11) The earliest instance that I know of the use of the word
_Englaland_ is in the Treaty with Olaf and Justin in 991. Its earliest
use in the English Chronicles is in 1014. See Norman Conquest, i.
78, 276, 605, 629. The oldest use that I know of the name Yorkshire
(_Eoforwicscír_) is in the Chronicles under 1065. See Norman Conquest,
ii. 478. Deira is, of course, as old as Gregory the Great’s pun.
(12) The real history of English parishes has yet to be worked out. I
feel sure that they will be found to have much more in common with the
continental _Gemeinden_ than would seem at first sight. Some hints may
be found in a little pamphlet which I lately came across, called “The
Parish in History.”
(13) The nature of democracy is set forth by Periklês in the Funeral
Oration, Thucydides, ii. 37: ὄνομα μὲν διὰ τὸ μὴ ἐς ὀλίγους ἀλλ' ἐς
πλείονας οἰκεῖν δημοκρατία κέκληται· μέτεστι δὲ κατὰ μὲν τοὺς νόμους
πρὸς τὰ ἴδια διάφορα πᾶσι τὸ ἴσον, κατὰ δὲ τὴν ἀξίωσιν ὡς ἕκαστος
ἐν τῷ εὐδοκιμεῖ. It is set forth still more clearly by Athênagoras
of Syracuse, vi. 39, where the functions of different classes in a
democracy are clearly distinguished: ἐγὼ δέ φημι πρῶτα μὲν δῆμον
ξύμπαν ὠνομάσθαι, ὀλιγαρχίαν δὲ μέρος, ἔπειτα φύλακας μὲν ἀρίστους
εἶναι χρημάτων τοὺς πλουσίους, βουλεῦσαι δ' ἂν βέλτιστα τοὺς ξυνετοὺς,
κρῖναι δ' ἂν ἀκούσαντας ἄριστα τοὺς πολλοὺς, καὶ ταῦτα ὁμοίως καὶ κατὰ
μέρη καὶ ξύμπαντα ἐν δημοκρατίᾳ ἰσομοιρεῖν. Here a distinct sphere
is assigned both to wealth and to special intelligence. Nearly the
same division is drawn by a writer who might by comparison be called
aristocratic. Isokratês (Areop. 29) holds that the management of public
affairs should be immediately in the hands of the men of wealth and
leisure, who should act as servants of the People, the People itself
being their master—or, as he does not scruple to say, _Tyrant_—with
full power of reward and punishment: ἐκεῖνοι διεγνωκότες ἦσαν ὅτι δεῖ
τὸν μὲν δῆμον ὥσπερ τύραννον καθιστάναι τὰς ἀρχὰς καὶ κολάζειν τοὺς
ἐξαμαρτάνοντας καὶ κρίνειν περὶ τῶν ἀμφισβητουμένων, τοὺς δὲ σχολὴν
ἄγειν δυναμένους καὶ βίον ἱκανὸν κεκτημένους ἐπιμελεῖσθαι τῶν κοινῶν
ὥσπερ οἰκέτας, καὶ δικαίους μὲν γενομένους ἐπαινεῖσθαι καὶ στέργειν
ταύτῃ τῇ τιμῇ, κακῶς δὲ διοικήσαντας μηδεμιᾶς συγγνώμης τυγχάνειν,
ἀλλὰ ταῖς μεγίσταις ζημίαις περιπίπτειν. This he elsewhere (Panath
166) calls democracy with a mixture of aristocracy—not oligarchy. (τὴν
δημοκρατίαν τὴν ἀριστοκρατίᾳ μεμιγμένην).
The unfavourable meaning which is often attached to the word democracy,
when it does not arise from simple ignorance, probably arises from
the use of the word by Aristotle. He makes (Politics, iii. 7) three
lawful forms of government, _kingship_ (βασιλεία), _aristocracy_
(ἀριστοκρατία), and what he calls specially πολιτεία or _commonwealth_.
Of these he makes three corruptions, _tyranny_, _oligarchy_, and
_democracy_ (τυραννίς, ὀλιγαρχία, δημοκρατία), defining _democracy_ to
be a government carried on for the special benefit of the poor (πρὸς τὸ
συμφέρον τὸ τῶν ἀπόρων). In this there is something of a philosopher’s
contempt for all popular government, and it is certain that Aristotle’s
way of speaking is not that which is usual in the Greek historians.
Polybios, like Herodotus and Thucydides, uses the word democracy in
the old honourable sense, and he takes (ii. 38) as his special type of
democracy the constitution of the Achaian League, which certainly had
in it a strong element of practical aristocracy (see History of Federal
Government, cap. v.): ἰσηγορίας καὶ παρρησίας καὶ καθόλου δημοκρατίας
ἀληθινῆς σύστημα καὶ προαίρεσιν εἰλικρινεστέραν οὐκ ἂν εὕροι τις τῆς
παρὰ τοῖς Ἀχαιοῖς ὑπαρχούσης. In short, what Aristotle calls πολιτεία
Polybios calls δημοκρατία; what Aristotle calls δημοκρατία Polybios
calls ὀχλοκρατία.
(14) It follows that, when the commonwealth of Florence disfranchised
the whole of the noble families, it lost its right to be called a
democracy. See the passing of the Ordinance of Justice in Sismondi,
Républiques Italiennes, iv. 65; Chroniche di Giovanni Villani, viii. 1.
(15) On Slavery in England, see Norman Conquest, i. 81, 333, 368,
432, iv. 385. For fuller accounts, see Kemble’s Saxons in England,
i. 185; Zöpfl, _Geschichte der deutschen Rechtsinstitute_, 62. The
three classes of nobles, common freemen, and slaves cannot be better
set forth than in the Life of Saint Lebuin (Pertz, ii. 361): “Sunt
denique ibi, qui illorum lingua edlingi, sunt qui frilingi, sunt qui
lassi dicuntur, quod in Latina sonat lingua, nobiles, ingenuiles, atque
serviles.”
(16) On the _Wite-þeow_, the slave reduced to slavery for his crimes,
see Kemble, Saxons in England, i. 200. He is mentioned several times in
the laws of Ine, 24, 48, 54, where, as usual in the West-Saxon laws, a
distinction is drawn between the English and the Welsh _wite-þeow_. The
second reference contains a provision for the case of a newly enslaved
_þeow_ who should be charged with a crime committed before he was
condemned to slavery.
(17) I wish to leave the details of Eastern matters to Eastern
scholars. But there are several places in the Old Testament where
we see something very much like a general assembly, combined with
distinctions of rank among its members, and with the supremacy of a
single chief over all.
(18) Iliad, xx. 4.
Ζεὺς δὲ Θέμιστα κέλευσε θεοὺς ἀγορήνδε καλέσσαι
Κρατὸς ἄπ' Οὐλύμποιο πολυπτύχου· ἡ δ’ ἄρα πάντη
Φοιτήσασα κέλευσε Διὸς πρὸς δῶμα νέεσθαι.
Οὔτε τις οὖν Ποταμῶν ἀπέην, νόσφ' Ὠκεανοῖο,
Οὔτ' ἄρα Νυμφάων ταί τ' ἄλσεα καλὰ νέμονται,
Καὶ πηγὰς ποταμῶν, καὶ πίσεα ποιήεντα.
Besides the presence of the Nymphs in the divine _Mycel Gemót_,
something might also be said about the important position of Hêrê,
Athênê, and other female members of the inner council.
We find the mortal Assembly described at length in the second book of
the Iliad, and indeed by implication at the very beginning of the first
book.
(19) We hear the applause of the assembly in i. 23 and ii. 333, and in
the Trojan Assembly, xviii. 313.
(20) On the whole nature of the Homeric ἀγορή see Gladstone’s Homer and
the Homeric Age, iii. 14. Mr. Gladstone has to my thinking understood
the spirit of the old Greek polity much better than Mr. Grote.
(21) There is no need to go into any speculations as to the early
Roman Constitution, as to the origin of the distinction of _patres_
and _plebs_, or any of the other points about which controversies
have raged among scholars. The three elements stand out in every
version, legendary and historical. In Livy, i. 8, Romulus first holds
his general Assembly and then chooses his Senate. And in c. 26 we get
the distinct appeal from the King, or rather from the magistrates
acting by his authority, to an Assembly which, whatever might be its
constitution, is more popular than the Senate.
(22) It is hardly needful to show how the Roman Consuls simply stepped
into the place of the Kings. It is possible, as some have thought, that
the revolution threw more power into patrician hands than before, but
at all events the Senate and the Assembly go on just as before.
(23) Tacitus, de Moribus Germaniæ, c. 7-13:
“Reges ex nobilitate; Duces ex virtute sumunt. Nec Regibus infinita aut
libera potestas; et Duces exemplo potius quam imperio: si prompti, si
conspicui, si ante aciem agant, admiratione præsunt.... De minoribus
rebus Principes consultant; de majoribus omnes; ita tamen ut ea quoque
quorum penes plebem arbitrium est apud Principes pertractentur....
Ut turbæ placuit, considunt armati. Silentium per Sacerdotes, quibus
tum et coercendi jus est, imperatur. Mox Rex, vel Princeps, prout
ætas cuique, prout nobilitas, prout decus bellorum, prout facundia
est audiuntur, auctoritate suadendi magis quam jubendi potestate.
Si displicuit sententia, fremitu adspernantur; sin placuit, frameas
concutiunt. Honoratissimum adsensûs genus est, armis laudare. Licet
apud concilium adcusare quoque et discrimen capitis intendere....
Eliguntur in iisdem conciliis et Principes, qui jura per pagos vicosque
reddant. Centeni singulis ex plebe comites, consilium simul et
auctoritas, adsunt. Nihil autem neque publicæ neque privatæ rei nisi
armati agunt.”
For a commentary, see Zöpfl, _Geschichte der deutschen
Rechtsinstitute_, p. 94. See also Allen, Royal Prerogative, 12, 162.
(24) See Norman Conquest, i. 95. The primitive Constitution lasted
longest at the other end of the Empire, in Friesland. See Eichhorn,
_Deutsche Staats-und Rechtsgeschichte_, ii. 265, iii. 158. Zöpfl,
_Geschichte der deutschen Rechtsquellen_, p. 154.
(25) Τὰ ἀρχαῖα ἤθη κρατείτω is an ecclesiastical maxim; rightly
understood, it is just as true in politics.
(26) See my papers on “the Origin of the English Nation” and “the
Alleged Permanence of Roman Civilization in England” in Macmillan’s
Magazine, 1870.
(27) See Schmid, _Gesetze der Angel-Sachsen_, on the words “_wealh_”
and “_wylne_.” Earle, Philology of the English Tongue, 318. On the fact
that the English settlers brought their women with them, see Historical
Essays, p. 36.
(28) On _Eorlas_ and _Ceorlas_ I have said something in the History
of the Norman Conquest, i. 80. See the two words in Schmid, and the
references there given.
(29) On the Barons of Attinghausen, see Blumer, _Staats- und
Rechtsgeschichte der schweizerischen Demokratien_, i. 122, 214, 272.
(30) I cannot at this moment lay my hand on my authority for this
curious, and probably mythical, custom, but it is equally good as an
illustration any way.
(31) This custom is described by Diodôros, i. 70. The priest first
recounted the good deeds of the King and attributed to him all possible
virtues; then he invoked a curse for whatever has been done wrongfully,
absolving the King from all blame and praying that the vengeance might
fall on his ministers who had suggested evil things (τὸ τελευταῖον
ὑπὲρ τῶν ἀγνοουμένων ἀρὰν ἐποιεῖτο, τὸν μὲν βασιλέα τῶν ἐγκλημάτων
ἐξαιρούμενος, εἰς δὲ τοὺς ὑπηρετοῦντας καὶ διδάξαντας τὰ φαῦλα καὶ τὴν
βλαβὴν καὶ τὴν τιμωρίαν ἀξιῶν ἀποσκῆψαι). He wound up with some moral
and religious advice.
(32) Tacitus (Germ. 25) distinguishes “eæ gentes quæ regnantur” from
others. And in 43 he speaks of “erga Reges obsequium” as characteristic
of some particular tribes: see Norman Conquest, i. 579.
(33) On the use of the words _Ealdorman_ and _Heretoga_, see Norman
Conquest, i. 581, and the references there given.
(34) See Norman Conquest, i. 583, and the passages in Kemble and Allen
there referred to.
(35) See Kemble’s Saxons in England, i. 152, and Massmann’s Ulfilas,
744.
(36) See the words _driht_, _drihten_ in Bosworth’s Anglo-Saxon
Dictionary.
(37) To say nothing of other objections to this derivation, its author
must have fancied that _ing_ and not _end_ was the ending of the
Old-English participle. The mistake is as old as Sir Thomas Smith. See
his Commonwealth of England, p. 12.
(38) See Norman Conquest, i. 583, and the passages there quoted. I am
afraid of meddling with Sanscrit, but it strikes me that the views
of Allen and Kemble are not inconsistent with a connexion with the
Sanscrit _Ganaka_. As one of the curiosities of etymology, it is worth
noticing that Mr. Wedgwood makes the word “probably identical with
Tartar _chan_.”
(39) We read in the Chronicles, 449, how, on the first Jutish landing
in Kent, “heora _heretogan_ wæron twegen gebroðra Hengest and Horsa.”
It is only in 455, on the death of Horsa, that “æfter Þam Hengest feng
to _rice_ and Æsc his sunu”; and in 488, seemingly on the death of
Hengest, “Æsc feng to _rice_ and was xxiiii wintra Cantwara _cyning_.”
So among the West-Saxons, in 495, “coman twegen _ealdormen_ on Brytene,
Cerdic and Cynric his sunu.” It is only in 519 that we read “her Cerdic
and Cynric West-Sexena _rice_ onfengun.”
(40) The distinction between Kings and Jarls comes out very strongly
in the account of the battle of Ashdown (Æscesdune) in the Chronicles
in 871. The Danes “wæron on twam gefylcum, on oþrum wæs Bagsecg and
Healfdene, þa hæðenan _cingas_ and on oðrum wæron þa _eorlas_.” It may
be marked that in the English army King Æthelred is set against the
Danish Kings, and his brother the Ætheling Ælfred against the Jarls. So
in the Song of Brunanburh we read of the five Kings and seven Jarls who
were slain.
“Fife lagon sweordum aswefede,
on ðæm campstede swilce seofone eac
ciningas geonge, eorlas Anlafes.”
We may mark that the Kings were young, as if they had been chosen
“ex nobilitate;” nothing is said of the age of the Jarls, who were
doubtless chosen “ex virtute.”
(41) I have quoted the passage from Bæda about the satraps in Norman
Conquest, i. 579. The passage in the Life of Saint Lebuin, quoted in
note 15, also speaks of “principes” as presiding over the several
_pagi_ or _gauen_, but he speaks of no King or other common chief over
the whole country. And this is the more to be marked, as there was a
“generale concilium” of the whole Old-Saxon nation, formed, as we are
told, of twelve chosen men from each _gau_. This looks like an early
instance of representation, but it should be remembered that we are
here dealing with a constitution strictly Federal.
In the like sort we find the rulers of the West-Goths at the time of
their crossing the Danube spoken of as _Judices_. See Ammianus, xxvii.
5, and the notes of Lindenbrog and Valesius. So also Gibbon, c. xxv.
(iv. 305, ed. Milman). So Jornandes(26) speaks of “primates eorum, et
duces, qui regum vice illis præerant.” Presently he calls Fredigern
“Gothorum regulus,” like the _subreguli_ or _under-cyningas_ of our own
History. Presently in c. 28 Athanaric, the successor of Fredigern, is
pointedly called _Rex_.
On all this, see Allen, Royal Prerogative, 163.
(42) See Norman Conquest, i. 75, 580.
(43) The best instance in English History of the process by which a
kingdom changed into a province, by going through the intermediate
stage of a half-independent Ealdormanship, is to be found in the
history of South-Western Mercia under its Ealdorman Æthelred and the
Lady Æthelflæd, in the reigns of Ælfred and Eadward the Elder. See
Norman Conquest, i. 563.
(44) See Norman Conquest, i. 39, 78.
(45) Iliad, ix. 160:—
καὶ μοὶ ὑποστήτω, ὅσσον β α σ ι λ ε ύ τ ε ρ ό ς ἐιμι.
(46) The instances in which a great kingdom has been broken up into a
number of small states practically independent, but owning a nominal
superiority in the successor of the original Sovereign, are not few.
In the case of the Empire I have found something to say about it in my
Historical Essays, 151, and in the case of the Caliphate in my History
and Conquest of the Saracens, 137. How the same process took place with
the Mogul Empire in India is set forth by Lord Macaulay in his Essays
on Lord Clive and Warren Hastings. But he should not have compared
the great Mogul, with his nominal sovereignty, to “the most helpless
driveller among the later Carlovingians,” a class whom Sir Francis
Palgrave has rescued from undeserved contempt. But the breaking up of
the Western Kingdom is none the less an example of the same law. The
most remarkable thing is the way, or rather the three different ways,
in which the scattered members have been brought together again in
Germany, Italy, and France.
This process of dismemberment, where a nominal supremacy is still kept
by the original Sovereign, must be distinguished from that of falling
back upon Dukes or Ealdormen after a period of kingly rule. In this
latter case it would seem that no central sovereignty went on.
(47) At this time of day I suppose it is hardly necessary to prove the
elective character of Old-English kingship. I have said what I have
to say about it in Norman Conquest, i. 106, 596. But I may quote one
most remarkable passage from the report made in 787 to Pope Hadrian the
First by George and Theophylact, his Legates in England (Haddan and
Stubbs, Councils and Ecclesiastical Documents, iii. 453). “Sanximus
ut in ordinatione Regum nullus permittat pravorum prævalere assensum:
sed legitime Reges a sacerdotibus et senioribus populi eligantur.”
One would like to know who the “pravi” here denounced were. The
passage sounds very like a narrowing of the franchise or some other
interference with freedom of election, but in any case it bears witness
to the elective character of our ancient kingship, and to the general
popular character of the constitution.
(48) I have described the powers of the Witan, as I understand them
and as they were understood by Mr. Kemble, at vol. i. p. 108 of the
History of the Norman Conquest and in some of the Appendices to that
volume. With regard to the powers of the Witan, I find no difference
between my own views and those of Professor Stubbs in the Introductory
Sketch to his Select Charters (p. 11), where the relations between
the King and the Witan, and the general character of our ancient
constitution, are set forth with wonderful power and clearness. But I
find Mr. Stubbs and myself differing altogether as to the constitution
of the Witenagemót. I look upon it as an Assembly of the whole kingdom,
after the type of the smaller assemblies of the shire and other lesser
divisions. Mr. Stubbs fully admits the popular character of the smaller
assemblies, but denies any such character to the national gathering. It
is dangerous to set oneself up against the greatest master of English
constitutional history, but I must ask the reader to weigh what I say
in note Q in the Appendix to my first volume.
(49) I have collected some of the instances of deposition in
Northumberland in the note following that on the constitution of the
Witenagemót. (Norman Conquest, i. 593.) It is not at all unlikely that
the report of George and Theophylact quoted above may have a special
reference to the frequent changes among the Northumbrian Kings.
(50) I have mentioned all the instances at vol. i. p. 105 of the Norman
Conquest: Sigeberht, Æthelred, Harthacnut, Edward the Second, Richard
the Second, James the Second. It is remarkable that nearly all are
the second of their respective names; for, besides Æthelred, Edward,
Richard, and James, Harthacnut might fairly be called Cnut the Second.
(51) Tacitus, De Moribus Germaniæ, 13, 14:—“Nec rubor inter comites
adspici. Gradus quinetiam et ipse comitatus habet, judicio ejus quem
sectantur; magnaque et comitum æmulatio quibus primus apud Principem
suum locus; et Principum cui plurimi et acerrimi comites.... Quum
ventum in aciem, turpe Principi virtute vinci, turpe comitatui virtutem
Principis non adæquare. Jam vero infame in omnem vitam ac probrosum,
superstitem Principi suo ex acie recessisse. Illum defendere, tueri,
sua quoque fortia facta gloriæ ejus adsignare, præcipuum sacramentum
est. Principes pro victoria pugnant; comites pro Principe.” See Allen,
Royal Prerogative, 142.
(52) The original text of the Song of Maldon will be found in Thorpe’s
Analecta Anglo-Saxonica. My extracts are made from the modern English
version which I attempted in my Old-English History, p. 192. I went
on the principle of altering the Old-English text no more than was
actually necessary to make it intelligible. When a word has altogether
dropped out of our modern language, I have of course changed it; when
a word is still in use, in however different a sense, I have kept it.
Many words which were anciently used in a physical sense are now used
only metaphorically; thus “cringe” is used in one of the extracts in
its primary meaning of bowing or falling down, and therefore of dying.
(53) The history of the Roman clientship is another of those points on
which legend and history and ingenious modern speculation all come to
much the same, as far as our present purpose is concerned. Whether the
clients were the same as the _plebs_ or not, at any rate no patricians
entered into the client relation, and this at once supplies the
contrast with Teutonic institutions.
(54) The title of _dominus_, implying a master of slaves, was always
refused by the early Emperors. This is recorded of Augustus by
Suetonius (Aug. 53) and Dion (lv. 12), and still more distinctly of
Tiberius (Suetonius, Tib. 27; Dion, lvii. 8). Tiberius also refused
the title of _Imperator_, except in its strictly military sense:
οὔτε γὰρ δεσπότην ἑαυτὸν τοῖς ἐλευθέροις οὔτε αὐτοκράτορα πλὴν τοῖς
στρατιώταις καλεῖν ἐφίει. Caius is said (Aurelius Victor, Cæs. xxxix.
4) to have been called _dominus_, and there is no doubt about Domitian
(Suetonius, Dom. 13; Dion, lxvii. 13, where see Reimar’s Note). Pliny
in his letters constantly addresses Trajan as _dominus_; yet in his
Panegyric(45) he draws the marked distinction: “Scis, ut sunt diversa
natura dominatio et principatus, ita non aliis esse principem gratiorem
quam qui maxime dominum graventur.” This marks the return to older
feelings and customs under Trajan. The final and formal establishment
of the title seems to have come in with the introduction of Eastern
ceremonies under Diocletian (see the passage already referred to in
Aurelius Victor). It is freely used by the later Panegyrists, as
for instance Eumenius, iv. 21, v. 13: “Domine Constanti,” “Domine
Maximiane, Imperator æterne,” and so forth.
(55) Vitellius (Tac. Hist. i. 58) was the first to employ Roman knights
in offices hitherto always filled by freedmen; but the system was not
fully established till the time of Hadrian (Spartianus, Hadrian, 22).
(56) See Norman Conquest, i. 89, 587, and the passages here quoted.
(57) Both _hlàford_ and _hlæfdige_ (_Lord_ and _Lady_) are very
puzzling words as to the origin of their later syllables. It is enough
for my purpose if the connexion of the first syllable with _hlàf_ be
allowed. Different as is the origin of the two words, _hlàford_ always
translates _dominus_. The French _seigneur_, and the corresponding
forms in Italian and Spanish, come from the Latin _senior_, used as
equivalent to _dominus_. This is one of the large class of words which
are analogous to our _Ealdorman_.
(58) This is fully treated by Palgrave, English Commonwealth, i. 350,
495, 505.
(59) On the change from the _alod_, _odal_, or _eðel_, a man’s very own
property, to the land held of a lord, see Hallam, Middle Ages, i. 113.
(60) See Norman Conquest, i. 85-88. I have there chiefly followed Mr.
Kemble in his chapter on the Noble by Service, Saxons in England, i.
162.
(61) See the whole history and meaning of the word in the article
_þegen_ in Schmid’s Glossary.
(62) See Norman Conquest, i. 89.
(63) Barbour, Bruce, i. 224:
“A! fredome is A noble thing.”
So said Herodotus (v. 78) long before:
ἡ ἰσηγορίη ὡς ἔστι χρῆμα σπουδαῖον.
CHAPTER II.
(1) In the great poetical manifesto of the patriotic party in Henry the
Third’s reign, printed in Wright’s Political Songs of England (Camden
Society, 1839), there seems to be no demand whatever for new laws, but
only for the declaration and observance of the old. Thus, the passage
which I have chosen for one of my mottoes runs on thus:—
“Igitur communitas regni consulatur;
Et quid universitas sentiat sciatur,
Cui leges propriæ maxime sunt notæ.
Nec cuncti provinciæ sic sunt idiotæ,
Quin sciant plus cæteris regni sui mores,
Quos relinquant posteris hii qui sunt priores.
Qui reguntur legibus magis ipsas sciunt;
Quorum sunt in usibus plus periti fiunt;
Et quia res agitur sua, plus curabunt,
Et quo pax adquiritur sibi procurabunt.”
(2) On the renewal of the Laws of Eadward by William, see Norman
Conquest, iv. 324. Stubbs, Documents, 25. It should be marked that the
Laws of Eadward were again confirmed by Henry the First (see Stubbs,
90-99), and, as the Great Charter grew out of the Charter of Henry
the First produced by Archbishop Stephen Langton in 1213, the descent
of the Charter from the Laws of Eadward is very simple. See Roger of
Wendover, iii. 263 (ed. Coxe). The Primate there distinctly says that
he had made John swear to renew the Laws of Eadward. “Audistis quomodo,
tempore quo apud Wintoniam Regem absolvi, ipsum jurare compulerim, quod
leges iniquas destrueret et leges bonas, videlicet leges Eadwardi,
revocaret et in regno faceret ab omnibus observari.” It must be
remembered that the phrase of the Laws of Eadward or of any other King
does not really mean a code of laws of that King’s drawing up, but
simply the way of administering the Law, and the general political
condition, which existed in that King’s reign. This is all that would
be meant by the renewal of the Laws of Eadward in William’s time. It
simply meant that William was to rule as his English predecessors had
ruled before him. But, by the time of John, men had no doubt begun to
look on the now canonized Eadward as a lawgiver, and to fancy that
there was an actual code of laws of his to be put in force.
On the various confirmations of the Great Charter, see Hallam, Middle
Ages, ii. 111.
(3) Macaulay, ii. 660. “When they were told that there was no precedent
for declaring the throne vacant, they produced from among the records
of the Tower a roll of parchment, near three hundred years old, on
which, in quaint characters and barbarous Latin, it was recorded that
the Estates of the Realm had declared vacant the throne of a perfidious
and tyrannical Plantagenet.” See more at large in the debate of the
Conference between the Houses, ii. 645.
(4) See Kemble, Saxons in England, ii. 186—194. This, it will be
remembered, is admitted by Professor Stubbs. See above, note 48 to
Chapter I.
(5) See Kemble, ii. 199, 200, and compare page 194.
(6) I have collected these passages in my History of the Norman
Conquest, i. 591.
(7) On the acclamations of the Assembly, see note 19 to Chapter I. I
suspect that in all early assemblies, and not in that of Sparta only,
κρίνουσι βοῇ καὶ οὐ ψήφῳ (Thuc. i. 87). We still retain the custom in
the cry of “Aye” and “No,” from which the actual vote is a mere appeal,
just like the division ordered by Sthenelaïdas when he professed not to
know on which side the shout was.
(8) See Norman Conquest, i. 100, and History of Federal Government, i.
263.
(9) See Norman Conquest, iv. 694. In this case the Chronicler, under
the year 1086, distinguishes two classes in the Assembly, “his witan
and ealle Þa landsittende men Þe ahtes wæron ofer eall Engleland.”
These “landsittende men” were evidently the forerunners of the “libere
tenentes,” who, whether their holdings were great or small, kept their
place in the early Parliaments. See Hallam, ii. 140-146, where will be
found many passages showing the still abiding traces of the popular
constitution of the Assembly.
(10) The practice of summoning particular persons can be traced up to
very early times. See Kemble, ii. 202, for instances in the reign of
Æthelstan. On its use in later times, see Hallam, ii. 254-260; and on
the irregularity in the way of summoning the spiritual peers, ii. 253.
The bearing of these precedents on the question of life peerages
will be seen by any one who goes through Sir T. E. May’s summary,
Constitutional History, i. 291-298.
(11) Sismondi, Histoire des Français, v. 289: “Ce roi, le plus absolu
entre ceux qui ont porté la couronne de France, le moins occupé du
bien de ses peuples, le moins consciencieux dans son observation des
droits établis avant lui, est cependant le restaurateur des assemblées
populaires de la France, et l’auteur de la représentation des communes
dans les états généraux.” See Historical Essays, 45.
(12) See the history of Stephen Martel in Sismondi, Histoire des
Français, vol. vi. cap. viii. ix., and the account of the dominion of
the Butchers, vii. 259, and more at large in Thierry’s History of the
Tiers-État, capp. ii. iii.