XXXIII. THE GOVERNMENT OF SPAIN
1. The Beginnings of Constitutionalism 603
2. Political and Constitutional Development, 1833-1876 606
3. The Present Constitution 611
4. The Crown and the Ministry 613
5. The Cortes 616
6. Political Parties 620
7. The Judiciary and Local Government 626
XXXIV. THE GOVERNMENT OF PORTUGAL
1. A Century of Political Development 629
2. The Government of the Kingdom 634
3. The Revolution of 1910 639
4. The Constitution of 1911 643
GOVERNMENTS OF EUROPE (p. 001)
PART I.--GREAT BRITAIN
CHAPTER I
THE FOUNDATIONS OF THE CONSTITUTION
I. THE IMPORTANCE OF HISTORICAL BACKGROUND
*1. Political Pre-eminence of Great Britain.*--George III. is reported
to have pronounced the English constitution the most perfect of human
formations. One need hardly concur unreservedly in this dictum to be
impressed with the propriety of beginning a survey of the governmental
systems of modern Europe with an examination of the political
principles, rules, and practices of contemporary Britain. The history
of no other European nation, in the first place, exhibits a
development of institutions so prolonged, so continuous, and so
orderly. The governmental forms and agencies of no other state have
been studied with larger interest or imitated with clearer effect. The
public policy of no other organized body of men has been more
influential in shaping the progress, social and economic as well as
political, of the civilized world. For the American student,
furthermore, the approach to the institutions of the European
continent is likely to be rendered easier and more inviting if made by
way of a body of institutions which lies at the root of much that is
both American and continental. There are, it is true, not a few
respects in which the governmental system of the United States to-day
bears closer resemblance to that of France, Germany, Switzerland, or
even Italy than to that of Great Britain. The relation, however,
between the British and the American is one, in the main, of
historical continuity, while that between the French or German and the
American is one which arises largely from mere imitation or from
accidental resemblance.
*2. The Continuity of Institutional History.*--No government can be
studied adequately apart from the historical development which has (p. 002)
made it what it is; and this ordinarily means the tracing of origins
and of changes which stretch through a prolonged period of time. Men
have sometimes imagined that they were creating a governmental system
_de novo_, and it occasionally happens, as in France in 1791 and in
Portugal in 1911, that a régime is instituted which has little
apparent connection with the past. History demonstrates, however, in
the first place, that such a régime is apt to perpetuate more of the
old than is at the time supposed and, in the second place, that unless
it is connected vitally with the old, the chances of its achieving
stability or permanence are inconsiderable. In Germany, for example,
if the institutions of the Empire were essentially new in 1871, the
governmental systems of the several federated states, and of the towns
and local districts, exhibited numerous elements which in origin were
mediæval. In France, if central institutions, and even the political
arrangements of the department and of the arrondissement, do not
antedate the Revolution, the commune, in which the everyday political
activity of the average citizen runs its course, stands essentially as
it was in the age of Louis XIV.
If the element of continuity is thus important in the political system
of Germany, France, or Switzerland, in that of England it is
fundamental. It is not too much to say that the most striking aspect
of English constitutional history is the continual preservation, in
the teeth of inevitable changes, of a preponderating proportion of
institutions that reach far into the past. "The great difficulty which
presses on the student of the English constitution, regarded as a set
of legal rules," observes a learned commentator, "is that he can never
dissociate himself from history. There is hardly a rule which has not
a long past, or which can be understood without some consideration of
the circumstances under which it first came into being."[1] It is the
purpose of the present volume to describe European governments as they
to-day exist and operate. It will be necessary in all cases, however,
to accord some consideration to the origins and growth of the
political organs and practices which may be described. In respect to
Great Britain this can mean nothing less than a survey, brief as may
be, of a thousand years of history.
[Footnote 1: W. R. Anson, The Law and Custom of the
Constitution (3d ed., Oxford, 1897), I., 13.]
II. ANGLO-SAXON BEGINNINGS
The earliest form of the English constitution was that which existed
during the centuries prior to the Norman Conquest. Political
organization among the Germanic invaders of Britain was of the (p. 003)
most rudimentary sort, but the circumstances of the conquest and
settlement of the island were such as to stimulate a considerable
elaboration of governmental machinery and powers. From the point of
view of subsequent institutional history the most important features
of the Anglo-Saxon governmental system were kingship, the witenagemot,
and the units of local administration--shire, hundred, borough, and
township.[2]
[Footnote 2: See G. B. Adams, The Origin of the
English Constitution (New Haven, 1912), Chap. 1.
That the essentials of the English constitution of
modern times, in respect to forms and machinery,
are products of the feudalization of England which
resulted from the Norman Conquest, and not
survivals of Anglo-Saxon governmental arrangements,
is the well-sustained thesis of this able study.
That many important elements, however, were
contributed by Anglo-Saxon statecraft is beyond
dispute.]
*3. Kingship.*--The origins of Anglo-Saxon kingship are shrouded in
obscurity, but it is certain that the king of later days was
originally nothing more than the chieftain of a victorious war-band.
During the course of the occupation of the conquered island many
chieftains attained the dignity of kingship, but with the progress of
political consolidation one after another of the royal lines was
blotted out, old tribal kingdoms became mere administrative districts
of larger kingdoms, and, eventually, in the ninth century, the whole
of the occupied portions of the country were brought under the control
of a single sovereign. Saxon kingship was elective, patriarchal, and,
in respect to power, limited. Kings were elected by the important men
sitting in council, and while the dignity was hereditary in a family
supposedly descended from the gods, an immediate heir was not unlikely
to be passed over in favor of a relative who was remoter but abler.[3]
In both pagan and Christian times the royal office was invested with a
pronouncedly sacred character. As early as 690 Ine was king "by God's
grace." But the actual authority of the king was such as arose
principally from the dignity of his office and from the personal
influence of the individual monarch.[4] The king was primarily a
war-leader. He was a law-giver, but his "dooms" were likely to be
framed only in consultation with the wise men, and they pertained to
little else than the preservation of the peace. He was supreme (p. 004)
judge, and all crimes and breaches of the peace came to be looked upon
as offenses against him; but he held no court and he had in practice
little to do with the administration of justice. Over local affairs he
had no direct control whatever.
[Footnote 3: Thus, in 871, the minor children of
Ethelred I. were passed over in favor of Alfred,
younger brother of the late king.]
[Footnote 4: The Anglo-Saxon king was "not the
supreme law-giver of Roman ideas, nor the fountain
of justice, nor the irresponsible leader, nor the
sole and supreme politician, nor the one primary
landowner; but the head of the race, the chosen
representative of its identity, the successful
leader of its enterprises, the guardian of its
peace, the president of its assemblies; created by
it, and, although empowered with a higher sanction
in crowning and anointing, answerable to his
people." W. Stubbs, Select Charters Illustrative of
English Constitutional History (8th ed., Oxford,
1895), 12.]
*4. The Witenagemot.*--Associated with the king in the conduct of
public business was the council of wise men, or witenagemot. The
composition of this body, being determined in the main by the will of
the individual monarch, varied widely from time to time. The persons
most likely to be summoned were the members of the royal family, the
greater ecclesiastics, the king's gesiths or thegns, the ealdormen who
administered the shires, other leading officers of state and of the
household, and the principal men who held land directly of the king.
There were included no popularly elected representatives. As a rule,
the witan was called together three or four times a year. Acting with
the king, it made laws, imposed taxes, concluded treaties, appointed
ealdormen and bishops, and occasionally heard cases not disposed of in
the courts of the shire and hundred. It was the witan, furthermore,
that elected the king; and since it could depose him, he was obliged
to recognize a certain responsibility to it. "It has been a marked and
important feature in our constitutional history," it is pointed out by
Anson, "that the king has never, in theory, acted in matters of state
without the counsel and consent of a body of advisers."[5]
[Footnote 5: Law and Custom of the Constitution,
II., Pt. 1., 7. Cf. W. Stubbs, Constitutional
History of England, I., 127.]
*5. Township, Borough, and Hundred.*--By reason of their persistence,
and their comparative changelessness from earliest times to the later
nineteenth century, the utmost importance attaches to Anglo-Saxon
arrangements respecting local government and administration. The
smallest governmental unit was the township, comprising normally a
village surrounded by arable lands, meadows, and woodland. The
town-moot was a primary assembly of the freemen of the village, by
which, under the presidency of a reeve, the affairs of the township
were administered. A variation of the township was the burgh, or
borough, whose population was apt to be larger and whose political
independence was greater; but its arrangements for government
approximated closely those of the ordinary township. A group of
townships comprised a hundred. At the head of the hundred was a
hundred-man, ordinarily elected, but not infrequently appointed by a
great landowner or prelate to whom the lands of the hundred belonged.
Assisting him was a council of twelve or more freemen. In the (p. 005)
hundred-moot was introduced the principle of representation, for to
the meetings of that body came regularly the reeve, the parish priest,
and four "best men" from each of the townships and boroughs comprised
within the hundred. The hundred-moot met as often as once a month, and
it had as its principal function the adjudication of disputes and the
decision of cases, civil, criminal, and ecclesiastical.
*6. The Shire.*--Above the hundred was the shire. Originally, as a
rule, the shires were regions occupied by small but independent
tribes; eventually they became administrative districts of the united
kingdom. At the head of the shire was an ealdorman, appointed by the
king and witan, generally from the prominent men of the shire.
Subordinate to him at first, but in time overshadowing him, was the
shire-reeve, or sheriff, who was essentially a representative of the
crown, sent to assume charge of the royal lands in the shire, to
collect the king's revenue, and to receive the king's share of the
fines imposed in the courts. Each shire had its moot, and by reason of
the fact that the shires and bishoprics were usually coterminous, the
bishop sat with the ealdorman as joint president of this assemblage.
In theory, at least, the shire-moot was a gathering of the freemen of
the shire. It met, as a rule, twice a year, and to it were entitled to
come all freemen, in person or by representation. It was within the
competence of those who did not desire to attend to send as spokesmen
their reeves or stewards; so that the body was likely to assume the
character of a mixed primary and representative assembly. The
shire-moot decided disputes pertaining to the ownership of land, tried
suits for which a hearing could not be obtained in the court of the
hundred, and exercised an incidental ecclesiastical jurisdiction.[6]
[Footnote 6: The classic description of Anglo-Saxon
political institutions is W. Stubbs, Constitutional
History of England in its Origin and Development, 3
vols. (6th ed., Oxford, 1897), especially I.,
74-182; but recent scholarship has supplemented and
modified at many points the facts and views therein
set forth. A useful account (though likewise
subject to correction) is H. Taylor, The Origins
and Growth of the English Constitution, 2 vols.
(new ed., Boston, 1900), I., Bk. 1., Chaps. 3-5;
and a repository of information is J. Ramsay, The
Foundations of England, 2 vols. (London, 1898). A
valuable sketch is A. B. White, The Making of the
English Constitution, 449-1485 (New York, 1908),
16-62. A brilliant book is E. A. Freeman, The
Growth of the English Constitution (4th ed.,
London, 1884); but by reason of Professor Freeman's
over-emphasis of the perpetuation of Anglo-Saxon
institutions in later times this work is to be used
with caution. Political and institutional history
is well set forth in T. Hodgkin, History of England
to the Norman Conquest (London, 1906), and C. W. C.
Oman, England before the Norman Conquest (London,
1910). A useful manual is H. M. Chadwick, Studies
on Anglo-Saxon Institutions (Cambridge, 1905); and
an admirable bibliography is C. Gross, The Sources
and Literature of English History (London, 1900).]
III. THE NORMAN-PLANTAGENET PERIOD (p. 006)
At the coming of William the Conqueror, in 1066, two fundamental
principles may be said to have been firmly fixed in the English
political system. The first was that of thoroughgoing local
self-government. The second was that of the obligation of the king, in
all matters of first-rate importance, such as the laying of taxes and
the making of laws, to seek the counsel and consent of some portion of
his subjects. In the period which was inaugurated by the Conquest
neither of these principles was entirely subverted, yet the Norman era
stands out distinctly as one in which the powers of government were
gathered in the hands of the king and of his immediate agents in a
measure unknown at any earlier time. Building in so far as was
possible upon foundations already laid, William was able so to
manoeuver the consequences of the Conquest as to throw the advantages
all but wholly upon the side of the crown. Feudalism, land-tenure,
military service, taxation, the church--to all was imparted, by force
or by craft, such a bent that the will of the sovereign acquired the
practical effect of law, and monarchy in England, traditionally weak,
was brought to the verge of sheer absolutism.
*7. Extension of Centralized Control.*--In respect to the actual
mechanism of government the principal achievement of the
Norman-Plantagenet period was the overhauling and consolidation of the
agencies of administration. Despite the fact that local institutions
of Saxon origin were largely respected, so that they have continued to
this day the most substantial Anglo-Saxon contribution to English
polity, there was a notable linking-up of these hitherto largely
disassociated institutions with the institutions of the central
government. This was accomplished in part by the dissolution of the
earldoms by which the monarchy had been menaced in later Saxon days,
and in part by a tremendous increase of the power and importance of
the sheriffs. It was accomplished still more largely, however, by the
organization of two great departments of government--those of justice
and finance--presided over by dignitaries of the royal household and
manned by permanent staffs of expert officials. The department of
justice comprised the Curia; that of finance, the Exchequer. At the
head of the one was the Chancellor; at the head of the other, the
Treasurer. The principal officials within the two comprised a single
body of men, sitting now as _justitiarii_, or justices, and now as
_barones_ of the Exchequer. The profits and costs of asserting and
administering justice and the incomings and outgoings of the Exchequer
were but different aspects of the same fundamental concerns of (p. 007)
state.[7] The justices of the Curia who held court on circuit
throughout the realm and the sheriffs who came up twice a year to
render to the barons of the Exchequer an account of the sums due from
the shires served as the real and tangible agencies through which the
central and local governments were knit together. As will appear, it
was from the Norman Curia that, in the course of time, there sprang
immediately those diversified departments of administration whose
heads comprise the actual executive of the British nation to-day.
[Footnote 7: Anson, Law and Custom of the
Constitution, II., Pt. I., II.]
*8. King and Great Council.*--Untrammelled by constitutional
restrictions, the Conqueror and his earlier successors recognized such
limitations only upon the royal authority as were imposed by powerful
and turbulent subjects. Associated with the king, however, was from
the first a body known as the _Commune Concilium_, the Common, or
Great, Council. "Thrice a year," the Saxon Chronicle tells us, "King
William wore his crown every year he was in England; at Easter he wore
it at Winchester; at Pentecost, at Westminster; and at Christmas, at
Gloucester; and at these times all the men of England were with
him--archbishops, bishops and abbots, earls, thegns and knights." By
the phrase "all the men of England" is to be understood only the great
ecclesiastics, the principal officers of state, and the king's
tenants-in-chief--in truth, only such of the more important of these
as were summoned individually to the sovereign's presence. At least in
theory, however, the Norman kings were accustomed to consult this
gathering of magnates, very much as their predecessors had been
accustomed to consult the witenagemot, upon all important questions of
legislation, finance, and public policy. It may, indeed, be said that
it is the development of this Council that comprises the central
subject of English constitutional history; for, "out of it, directly
or indirectly, by one process or another, have been evolved
Parliament, the Cabinet, and the courts of law."[8]
[Footnote 8: W. Wilson, The State (rev. ed.,
Boston, 1903), 369.]
*9. The Plantagenet Monarchy.*--During the century and a half following
the death of the Conqueror the vigor of the monarchy varied
enormously, but not until the days of King John can there be said to
have been any loss of power or independence which amounted to more
than a passing circumstance. In a charter granted at the beginning of
his reign, in 1100, Henry I. confirmed the liberties of his subjects
and promised to respect the laws of Edward the Confessor; but the new
sovereign did not propose, and no one imagined that he intended to
propose, to relax any of the essential and legitimate power which had
been transmitted to him by his father and brother. The reign of (p. 008)
Stephen (1135-1154) was an epoch of anarchy happily unparalleled in
the history of the nation. During the course of it the royal authority
sank to its lowest ebb since the days of the Danish incursions. But
the able and wonderfully energetic Henry II. (1154-1189) recovered all
that had been lost and added not a little of his own account. "Henry
II.," it has been said, "found a nation wearied out with the miseries
of anarchy, and the nation found in Henry II. a king with a passion
for administration."[9] With the fundamental purpose of reducing all
of his subjects to equality before an identical system of law, the
great Plantagenet sovereign waged determined warfare upon both the
rebellious nobility and the independent clergy. He was not entirely
successful, especially in his conflict with the clergy; but he
effectually prevented a reversion of the nation to feudal chaos, and
he invested the king's law with a sanction which it had known hardly
even in the days of the Conqueror. The reign of Henry II. has been
declared, indeed, to "initiate the rule of law."[10] By reviving and
placing upon a permanent basis the provincial visitations of the royal
justices, for both judicial and fiscal purposes, and by extending in
the local administration of justice and finance the principle of the
jury, Henry contributed fundamentally to the development of the
English Common Law, the jury, and the modern hierarchy of courts. By
appointing as sheriffs lawyers or soldiers, rather than great barons,
he fostered the influence of the central government in local affairs.
By commuting military service for a money payment (_scutage_), and by
a revival of the ancient militia system (the _fyrd_), he brought the
control of the armed forces of the nation effectually under royal
control. By the frequent summons of the Great Council and the
systematic reference to it of business of moment he contributed to the
importance of an institution through whose amplification a century
later Parliament was destined to be brought into existence.
[Footnote 9: Anson, Law and Custom of the
Constitution, II., Pt. I., 13.]
[Footnote 10: Stubbs, Select Charters, 21.]
*10. The Great Charter, 1215.*--The period of Richard I. (1189-1199)
was, in constitutional matters, a continuation of that of Henry II.
Richard was absent from the kingdom throughout almost the whole of the
reign, but under the guidance of officials trained by Henry the
machinery of government operated substantially as before. Under John
(1199-1216) came a breakdown, occasioned principally by the sovereign's
persistence in evading certain limitations upon the royal authority
which already had assumed the character of established rules of the
constitution. One of these forbade that the king should impose fresh
taxation except with the advice and consent of the Great Council. (p. 009)
Another enjoined that a man should not be fined or otherwise despoiled
of his property except in virtue of judicial sentence. These and other
principles John habitually disregarded, with the consequence that in
time he found himself without a party and driven to the alternative of
deposition or acceptance of the guarantee of liberties which the
barons, the Church, and the people were united in demanding of him.
The upshot was the promulgation, June 15, 1215, of Magna Carta.
No instrument in the annals of any nation exceeds in importance the
Great Charter. The whole of English constitutional history, once
remarked Bishop Stubbs, is but one long commentary upon it. The
significance of the Charter arises not simply from the fact that it
was wrested from an unwilling sovereign by concerted action of the
various orders of society (action such as in France and other
continental countries never, in mediæval times, became possible), but
principally from the remarkable summary which it embodies of the
fundamental principles of English government in so far as those
principles had ripened by the thirteenth century. The Charter
contained little or nothing that was new. Its authors, the barons,
sought merely to gather up within a reasonably brief document those
principles and customs which the better kings of England had been wont
to observe, but which in the evil days of Richard and John had been
persistently evaded. There was no thought of a new form of government,
or of a new code of laws, but rather of the redress of present and
practical grievances. Not a new constitution, but good government in
conformity with the old one, was the essential object. Naturally
enough, therefore, the instrument was based, in most of its important
provisions, upon the charter granted by Henry I. in 1100, even as that
instrument was based, in the main, upon the righteous laws of Edward
the Confessor. After like manner, the Charter of 1215 became, in its
turn, the foundation to which reassertions of constitutional liberty
in subsequent times were apt to return; and, under greater or lesser
pressure, the Charter itself was "confirmed" by numerous sovereigns
who proved themselves none too much disposed to observe its
principles.
In effect the Charter was a treaty between the king and his dissatisfied
subjects. It was essentially a feudal document, and the majority of
its provisions relate primarily to the privileges and rights of the
barons. None the less, it contains clauses that affected all classes
of society, and it is especially noteworthy that the barons and clergy
pledged themselves in it to extend to their dependents the same
customs and liberties which they were themselves demanding of the
crown. Taking the Charter as a whole, it guaranteed the freedom of
the Church, defined afresh and in precise terms surviving feudal (p. 010)
incidents and customs, placed safeguards about the liberties of the
boroughs, pledged security of property and of trade, and stipulated
important regulations respecting government and law, notably that
whenever the king should propose the assessment of scutages or of
unusual aids he should take the advice of the General Council,
composed of the tenants-in-chief summoned individually in the case of
the greater ones and through the sheriffs in the case of those of
lesser importance. Certain general clauses, e.g., that pledging that
justice should neither be bought nor sold, and that prescribing that a
freeman might not be imprisoned, outlawed, or dispossessed of his
property save by the judgment of his peers or by the law of the land,
meant in effect considerably less than they sometimes have been
interpreted to mean.[11] Yet even they served to emphasize the
fundamental principle upon which the political and legal structure was
intended to be grounded, that, namely, of impartial and unvarying
justice.[12]
[Footnote 11: The term "peers," as here employed,
means only equals in rank. The clause cited does
not imply trial by jury. It comprises a guarantee
simply that the barons should not be judged by
persons whose feudal rank was inferior to their
own. Jury trial was increasingly common in the
thirteenth century, but it was not guaranteed in
the Great Charter.]
[Footnote 12: Good accounts of the institutional
aspects of the Norman-Angevin period are Stubbs,
Constitutional History, I., 315-682, II., 1-164;
Taylor, Origin and Growth of the English
Constitution, I., Bk. 2, Chaps. 2-3; Adams, The
Origin of the English Constitution, Chaps. 1-4; and
White, Making of the English Constitution, 73-119.
Two excellent little books are Stubbs, Early
Plantagenets (London, 1876) and Mrs. J. R. Green,
Henry II. (London, 1892). General accounts will be
found in T. F. Tout, History of England from the
Accession of Henry III. to the Death of Edward
III., 1216-1377 (London, 1905), and H. W. C. Davis,
England under the Normans and the Angevins (London,
1904). A monumental treatise, though one which
requires a considerable amount of correction, is E.
A. Freeman, History of the Norman Conquest, 6 vols.
(Oxford, 1867-69), and a useful sketch is Freeman,
Short History of the Norman Conquest (3d ed.,
Oxford, 1901). Among extended and more technical
works may be mentioned: F. Pollock and F. W.
Maitland, History of English Law, 2 vols. (2d ed.,
Cambridge, 1898), which, as a study of legal
history and doctrines, supersedes all earlier
works; F. W. Maitland, Domesday Book and Beyond
(Cambridge, 1897); J. H. Round, Feudal England
(London, 1895); K. Norgate, England under the
Angevin Kings, 2 vols. (London, 1887); ibid., John
Lackland (London, 1902), and J. H. Ramsay, The
Angevin Empire (London, 1903). The text of the
Great Charter is printed in Stubbs, Select
Charters, 296-306. English versions may be found in
G. B. Adams and H. M. Stephens, Select Documents of
English Constitutional History (New York, 1906),
42-52; S. Amos, Primer of the English Constitution
and Government (London, 1895), 189-201; and
University of Pennsylvania Translations and
Reprints (translation by E. P. Cheyney), I., No. 6.
The principal special work on the subject is W. S.
McKechnie, Magna Carta; a Commentary on the Great
Charter of King John (Glasgow, 1905). An
illuminating commentary is contained in Adams,
Origin of the English Constitution, 207-313.]
IV. THE RISE OF PARLIAMENT (p. 011)
*11. Beginnings of the Representative Principle.*--The thirteenth
century was clearly one of the most important periods in the growth of
the English constitution. It was marked not merely by the contest
which culminated in the grant of the Great Charter but also by the
beginnings, in its essentials, of Parliament. The formative epoch in
the history of Parliament may be said to have been, more precisely,
the second half of the reign of Henry III. (1216-1272), together with
the reign of the legislator-king Edward I. (1272-1307). The creation
of Parliament as we know it came about through the signal enlargement
of the Norman-Plantagenet Great Council by the introduction of
representative elements, followed by the splitting of the
heterogeneous mass of members definitely into two co-ordinate
chambers. The representative principle was in England no new thing in
the thirteenth century. As has appeared, there were important
manifestations of it in the local governmental system of Anglo-Saxon
times. As brought to bear in the development of Parliament, however,
the principle is generally understood to have sprung from the
twelfth-century practice of electing assessors to fix the value of
real and personal property for purposes of taxation, and of jurors to
present criminal matters before the king's justices. Thus, Henry II.'s
Saladin Tithe of 1188--the first national imposition upon incomes and
movable property--was assessed, at least in part, by juries of
neighbors elected by, and in a sense representative of, the taxpayers
of the various parishes. By the opening of the thirteenth century the
idea was fast taking hold upon the minds of Englishmen, not only that
the taxpayer ought to have a voice in the levying of taxes, but that
between representation and taxation there was a certain natural and
inevitable connection. In the Great Charter, as has been stated, it
was stipulated that in the assessment of scutages and of all save the
three commonly recognized feudal aids the king should seek the advice
of the General Council. The General Council of the earlier thirteenth
century was not regularly a representative body, but it was not beyond
the range of possibility to impart to it a representative character,
and in point of fact that is precisely what was done. To facilitate
the process of taxation it was found expedient by the central
authorities to carry over into the domain of national affairs that
principle of popular representation which already was doing approved
service within the sphere of local justice and finance, and from this
adaptation arose, step by step, the conversion of the old gathering of
feudal magnates into a national parliamentary assembly.
*12. Early Parliaments.*--The means by which the transformation (p. 012)
was accomplished consisted in the first instance, as has been said, in
the introduction into the Council of new and representative elements.
The earliest step in this direction was taken in 1213, when King John,
harassed by fiscal and political difficulties, addressed to the
sheriffs a series of writs commanding that four discreet knights from
every county be sent to participate in a deliberative council to be
held at Oxford. The practice took root slowly. In 1254 Henry III., in
sore need of money for the prosecution of his wars in Gascony,
required of the sheriffs that two knights be sent from each county to
confer with the barons and clergy relative to the subsidies which
should be accorded the crown. The desired vote of supplies was refused
and the long-brewing contest between the king and the barons broke in
civil war. But during the struggle that ensued the foundations of
Parliament were still more securely laid. Following the king's defeat
at Lewes, in 1264, Simon de Montfort, leader of the barons, convened a
parliament composed of not only barons and clergy but also four
knights from each shire, and at London during the following year, he
caused again to be assembled, in addition to five earls, eighteen
barons, and a large body of clergy, two knights from each of the
several shires and two burgesses from each of twenty-one towns known
to be friendly to the barons' cause. These proceedings were
essentially revolutionary and unauthorized. Even the gathering of
1265, as Stubbs remarks, presented the appearance largely of a party
convention, and there is no evidence that its author intended such a
body to be regularly or frequently summoned, or even summoned a second
time at all. None the less, now for the first time representatives of
the towns were brought into political co-operation with the barons,
clergy, and knights; and the circumstance was filled with promise.
During the ensuing thirty years there were several "parliaments,"
although the extent to which knights and burgesses participated in
them is uncertain. The period was one of experimentation. In 1273 four
knights from each shire and four citizens from each town joined the
magnates in taking the oath of fealty to the new and absent sovereign,
Edward I. The First Statute of Westminster, in 1275, declares itself
to have been adopted with the assent of the "commonalty of the realm."
In 1283 a parliament was held which almost precisely duplicated that
of 1265. In 1290, and again in 1294, there was one, in which, however,
representation of the towns was omitted.
The gathering which served to fix the type for all time to come was
Edward I.'s so-called Model Parliament of 1295. To this parliament the
king summoned severally the two archbishops, all of the bishops, the
greater abbots, and the more important earls and barons; while (p. 013)
every sheriff was enjoined to see that two knights were chosen from
each shire, two citizens from each city, and two burgesses from each
borough. Each bishop was authorized, furthermore, to bring with him
his prior or the dean of the cathedral chapter, the archdeacons of his
diocese, one proctor or agent for his cathedral chapter, and two of
his diocesan clergy. In the parliament as actually convened there were
2 archbishops, 18 bishops with their lesser clergy, 66 abbots, 3 heads
of religious orders, 9 earls, 41 barons, 63 knights of the shire, and
172 representatives of the cities and boroughs--an aggregate of
approximately 400 persons. There were thus present in the assemblage,
in person or by deputy, all of the constituent orders of English
society, and the irregular device of Simon de Montfort was vested at
last with the character of legality. After Edward I. Parliament may be
said to have been an established institution of the realm. Its
meetings long continued intermittent and infrequent, and its powers
from time to time varied enormously, but the place which it filled in
the economy of the nation grew ever more important.
*13. Establishment of the Bicameral System.*--Like its counterpart in
France, the Estates-General, the English Parliament comprised the
three great estates or orders--nobility, clergy, and commons--of
which, aside from the peasantry, mediæval society in all western
European countries was composed. In the working out of its internal
structure, however, two chambers resulted, rather than, as in France,
three. Originally the three estates sat separately. Their primary
business was the voting of supplies and, the principle being that a
tax ought to be conceded by those who would be called upon to pay it,
the natural course was for the lords to grant their scutages and aids,
the commoners their tenths and fifteenths, and the clergy their
subsidies, apart. Indeed there is reason to believe that at times even
the knights and the burgesses deliberated separately. Gradually,
however, there appeared certain affiliations of interest which
operated to modify the original practice. In the first place, the
lesser clergy, inconvenienced by attendance and preferring to vote
their contributions in the special ecclesiastical assemblages known as
the convocations of Canterbury and York, contrived to throw off
entirely their obligation of membership. The greater clergy and the
greater barons, in the next place, developed sufficiently large
interests in common to be amalgamated with ease in one body.
Similarly, the lesser barons found their interests essentially
identical with those of the country freeholders, represented by the
knights of the shire, and with those of the burgesses. The upshot was a
gradual alignment of the aggregate membership in two great groups, (p. 014)
the one of which became historically the House of Lords, the other the
House of Commons. At the beginning of the reign of Edward III.
(1327-1377) the three estates still sat separately, but before the
close of this period the bicameral arrangement seems definitely to
have been established. There is no evidence that at any stage of their
history the three groups ever sat as a single body. It need hardly be
emphasized that the entire course of English history since the
fourteenth century has been affected profoundly by the fact that the
national assembly took the form of two houses rather than of one, as
did the Scotch, of three as did the French, or of four as did the
Swedish. But for the withdrawal of the lesser clergy, the number might
very possibly have been three.
*14. Powers of Finance and Legislation.*--Structurally, the English
Parliament is a creation of the Middle Ages; politically, it is a
product of modern times, and, in no small measure, of the past hundred
years. Before the close of the Middle Ages, however, it had acquired a
sum total of authority which at least gave promise of its development
into a great co-ordinate, if not a preponderating, power in the state.
In the first place, it had forced the establishment of the twin
principles of public finance (1) that the right to levy taxes of every
sort lay within its hands and (2) that the crown might impose no
direct tax without its assent, nor any indirect tax save such as might
be justified under the customs recognized in Magna Carta. When Edward
I. confirmed the Charter, in 1297, he agreed that no tallages or aids
should thereafter be taken without the assent of the archbishops,
bishops, earls, barons, knights, burgesses, and other freemen of the
land. A statute of 1340 reiterated the principle still more
specifically. In 1395 appeared the formula employed to this day in the
making of parliamentary grants, "by the Commons with the advice and
assent of the Lords Spiritual and Temporal." And in 1407 Henry IV.
extended the royal approval to the principle that money grants should
be initiated in the Commons, assented to by the Lords, and only
thereafter reported to the king. For the ancient theory of taxation by
estates was substituted, slowly but inevitably, the modern doctrine of
the fiscal pre-eminence of the Commons.
The second point at which Parliament made decisive advance before the
close of the mediæval period was in respect to powers of ordinary
legislation. Originally, Parliament was not conceived of as, in the
strict sense, a law-making body at all. The magnates who composed the
General Council had exercised the right to advise the crown in
legislative matters, and their successors in Parliament continued to
do the same, but the commoners who in the thirteenth century were (p. 015)
brought in were present, in theory, for fiscal rather than legislative
purposes. The distinction, however, was difficult to maintain, and
with the continued growth of the parliamentary body the legislative
character was recognized eventually to be inherent in the whole of it.
At the opening of the fourteenth century laws were made, technically,
_by_ the king with the _assent_ of the magnates at the _request_ of
the commoners. The knights and burgesses were recognized as
petitioners for laws, rather than as legislators. They could ask for
the enactment of a statute, or for a clearer definition of law, but it
was for the king and his councillors to determine finally whether
legislation was required and what form it should assume. Even when a
law which was requested was promised it not infrequently happened that
the intent of the Commons was thwarted, for the text of the measure
was not drawn up, normally, until after the parliament was dissolved,
both form and content were determined arbitrarily by the crown and
council, and between petition and statute there might be, and often
was, gross discrepancy.
*15. Development of the Legislative Process.*--By a memorable statute of
1322, in the reign of Edward II., it was stipulated that "the matters
which are to be established for the estate of our lord the king and of
his heirs, and for the estate of the realm and of the people, shall be
treated, accorded, and established in parliaments, by our lord the king,
and by the assent of the prelates, earls, and barons, and the
commonalty of the realm; according as it hath been before accustomed."[13]
This declaration is understood to have established, not only the
essentially legislative character of Parliament, but the legislative
parity of the commoners with the magnates. It remained, however, to
substitute for the right of petition the right of legislating by bill.
Throughout the fourteenth century Parliament, and especially the
Commons, pressed for an explicit recognition of the principle that the
statute in its final form should be identical with the petition upon
which it was based. In 1414 Henry V. granted that "from henceforth
nothing be enacted to the petitions of his commons that be contrary to
their asking, whereby they should be bound without their assent."[14]
The promise tended in practice to be evaded, and late in the reign of
Henry VI. there was brought about an alteration of procedure in
accordance with which measures were henceforth to be introduced in
either house, in the form of drafted bills. The legislative process
was now essentially reversed. The right of initiative was secured to
the Commons, concurrently with the Lords; the crown was restricted to
a right of veto or assent. The change in procedure was reflected (p. 016)
in a change of formula. Statutes began to be made "by the King's most
excellent majesty by and with the advice and consent of the Lords
spiritual and temporal, and Commons in this present Parliament assembled,
and by the authority of the same." And these words comprise the
formula with which every act of Parliament to-day begins. Technically,
the laws were, and are still, made by the crown; practically
Parliament, once merely a petitioning and advising body, had become a
full-fledged legislative assemblage.
[Footnote 13: Adams and Stephens, Select Documents,
97.]
[Footnote 14: Ibid., 182.]
Throughout the later fourteenth and earlier fifteenth centuries the
growth of Parliament in self-assertiveness was remarkable. Twice
during the fourteenth century, in 1327 and in 1399, it exercised the
fundamental prerogative of deposing the sovereign and of bestowing the
crown upon a successor.[15] And before the close of the Lancastrian
era it had assumed advanced ground in demanding the right of
appropriating (as well as of voting) subsidies, the accounting by the
public authorities for moneys expended, the removal of objectionable
ministers, and the annual assembling of the two houses. During the
civil wars of the second half of the fifteenth century parliamentary
aggressiveness and influence materially declined, and at the opening
of the Tudor period, in 1485, the body was in by no means the
favorable position it had occupied fifty years earlier. As will
appear, its eclipse continued largely through the epoch of the Tudors.
Yet its broader aspects had been permanently fixed and its
perpetuation in the constitutional system positively assured.[16]
[Footnote 15: Strictly, upon the first of these
occasions the sovereign, Edward II., was driven by
threat of deposition to abdicate.]
[Footnote 16: On the rise of Parliament see Stubbs,
Constitutional History of England, II., Chaps. 15,
17; Taylor, Origins and Growth of the English
Constitution, I., 428-616; G. B. Smith, History of
the English Parliament, 2 vols. (London, 1892), I.,
Bks. 2-4; White, Making of the English
Constitution, 298-401; D. J. Medley, Students'
Manual of English Constitutional History (2d ed.,
Oxford, 1898), 127-150; Tout, History of England
from the Accession of Henry III. to the Death of
Edward III., Chaps. 5, 6, 10. Valuable biographical
treatises are G. W. Prothero, Life of Simon de
Montfort (London, 1877); E. Jenks, Edward
Plantagenet [Edward I.] the English Justinian (New
York, 1902); and T. F. Tout, Edward the First
(London, 1906).]
V. ADMINISTRATIVE AND JUDICIAL DEVELOPMENT
*16. The Permanent Council.*--One line, thus, along which were laid the
foundations of the English governmental system of to-day comprised the
transformation of the Norman Great Council into the semi-aristocratic,
semi-democratic assemblage known as Parliament. A parallel line (p. 017)
was the development from the Great Council of a body designated after
the thirteenth century as the Permanent, after the fifteenth as the
Privy, Council, and likewise of the four principal courts of law. By a
very gradual process those members of the original Council who were
attached in some immediate manner to the court or to the administrative
system acquired a status which was different from that of their
colleagues. The Great Council met irregularly and infrequently. So
likewise did Parliament. But the services of the court and the
business of government must go on continuously, and for the care of
these things there grew up a body which at first comprised essentially
a standing commission, an inner circle, of the Council, but which in
time acquired a virtually independent position and was designated, for
purposes of distinction, as the Permanent Council. The composition of
this body varied from time to time. Certain functionaries were
included regularly, while the remaining members owed their places to
special summons of the crown. Its powers were enormous, being at the
same time administrative, judicial, and financial, and the mass of
business to which it was required to give attention was increasingly
great.
*17. The Courts of Law.*--Three things resulted. In the first place, the
Permanent Council acquired, in practice, complete detachment from the
older and larger body. In the second place, to facilitate the
accomplishment of its work there were introduced into it trained
lawyers, expert financiers, and men of other sorts of special
aptitudes--men, often, who in rank were but commoners. Finally, there
split off from the body a succession of committees, to each of which
was assigned a particular branch of administrative or judicial
business. In this manner arose the four great courts of law: (1) the
Court of Exchequer, to which was consigned jurisdiction over all
fiscal causes in which the crown was directly concerned; (2) the Court
of Common Pleas, with jurisdiction over civil cases between subject
and subject; (3) the Court of King's Bench, presided over nominally by
the king himself and taking cognizance of a variety of cases for which
other provision was not made; and (4) the Court of Chancery, which,
under the presidency of the Chancellor, heard and decided cases
involving the principles of equity. The differentiation of these
tribunals, beginning in the early twelfth century, was completed by
the middle of the fourteenth. Technically, all were co-ordinate
courts, from which appeal lay to the King in Council; and of the
judicial prerogative which the Council as a whole thus retained there
are still, as will be pointed out, certain survivals. By the time
of Henry VI. (1422-1461) the enlargement of membership and the
specialization of functions of the Permanent Council had (p. 018)
progressed so far that the Council had ceased entirely to be a working
unit. In the end what happened was that, precisely as the Permanent
Council had been derived by selection from the original Great Council,
so from the overgrown Permanent Council was constituted, in the
fifteenth century, a smaller and more compact administrative body to
which was assigned the designation of "Privy Council."[17]
[Footnote 17: Stubbs, Constitutional History, II.,
Chap. 13; White, Making of the English
Constitution, 123-251; Adams, Origin of the English
Constitution, 136-143; W. S. Holdsworth, History of
English Law, 3 vols. (London, 1903-1909), I.,
1-169.]
VI. THE TUDOR MONARCHY
*18. Popular Absolutism.*--The salient fact of the Tudor period of
English history (1485-1603) is the vigor and dominance of the
monarchy. From the Wars of the Roses the nation emerged in need, above
all other things, of discipline and repose. It was the part of the
Tudors to enforce relentlessly the one and to foster systematically
the other. The period was one in which aristocratic turbulence was
repressed, extraordinary tribunals were erected to bring to justice
powerful offenders, vagrancy was punished, labor was found for the
unemployed, trade was stimulated, the navy was organized on a
permanent basis, the diffusion of wealth and of education was
encouraged, the growth of a strong middle class was promoted--in
short, one in which out of chaos was brought order and out of weakness
strength. These things were the work of a government which was
strongly paternal, even sheerly despotic, and, for a time at least,
the evolution of parliamentary machinery was utterly arrested. But it
should be observed that the question in sixteenth-century England was
not between strong monarchy on the one hand and parliamentary
government on the other. The alternatives were, rather, strong
monarchy and baronial anarchy. This the nation clearly perceived, and,
of the two, it much preferred the former.
"The Tudor monarchy," says an English scholar, "unlike most other
despotisms, did not depend on gold or force, on the possession of vast
estates, unlimited taxation, or a standing army. It rested on the
willing support of the nation at large, a support due to the
deeply-rooted conviction that a strong executive was necessary to the
national unity, and that, in the face of the dangers which threatened
the country both at home and abroad, the sovereign must be allowed a
free hand. It was this conviction, instinctively felt rather than
definitely realized, which enabled Henry VIII. not only to crush open
rebellion but to punish the slightest signs of opposition to his (p. 019)
will, to regulate the consciences of his subjects, and to extend the
legal conception of treason to limits hitherto unknown. It was this
which rendered it possible for the ministers of Edward VI. to impose a
Protestant régime upon a Romanist majority, and allowed Mary to enter
upon a hateful marriage and to drag the country into a disastrous war.
It was this, finally, which enabled Elizabeth to choose her own line
in domestic and foreign policy, to defer for thirty years the war with
Spain, and to resist, almost single-handed, the pressure for further
ecclesiastical change. The Tudor monarchy was essentially a national
monarchy. It was popular with the multitude, and it was actively
supported by the influential classes, the nobility, the gentry, the
lawyers, the merchants, who sat as members of Parliament at
Westminster, mustered the forces of the shire as Lords-Lieutenant, or
bore the burden of local government as borough magistrates and
justices of the peace."[18]
[Footnote 18: G. W. Prothero, Select Statutes and
other Constitutional Documents Illustrative of the
Reigns of Elizabeth and James I, (Oxford, 1898),
xvii--xviii.]
*19. The Privy Council.*--The times of the Tudors and of the early
Stuarts have been designated with aptness the period of "government by
council." Parliament continued to exercise a certain control over
legislation and taxation, but it was in and through the Privy Council,
together with certain subordinate councils, that the absolute
monarchy, in the main, performed its work. The Privy Council--or
simply "the Council"--comprised ordinarily about seventeen or eighteen
persons, although under Henry VIII. its membership at one time
approached forty. The councillors were almost invariably members of
one or the other of the two houses of Parliament, an arrangement by
which was facilitated the control of the proceedings of that body by
the Government, but which did not yet involve any recognized
responsibility of the executive to the legislative branch. After Queen
Mary the councillors were, with few exceptions, laymen. Technically,
the function of the Council was only advisory, but in practice even
those sovereigns, as Henry VIII. and Elizabeth, who were most vigilant
and industrious, were obliged to allow to the councillors large
discretion in the conduct of public business, and under the early
Stuarts the Council very nearly ruled the realm. Representing at all
times the sovereign, who was supposed invariably to be present at its
deliberations, the Council supervised the work of administration,
regulated trade, granted licenses, controlled the press, kept an eye
on the law courts, ferreted out plots, took measures to suppress
rebellion, controlled the movements of the fleet, assisted in the
management of ecclesiastical affairs, and, in short, considered (p. 020)
and took action upon substantially all concerns of state. By virtue of
its right to issue orders or ordinances it possessed a power that was
semi-legislative; through its regulation of trade, its management of
loans and benevolences, and its determination of military obligations,
it participated actively in the control of taxation; and, under the
presidency of the crown, it possessed the functions of a supreme
tribunal, whose jurisdiction, in part original and in part appellate,
was widespread and peculiarly despotic.[19]
[Footnote 19: Prothero, Statutes and Constitutional
Documents, cii. See A. V. Dicey, The Privy Council
(London, 1887); E. Percy, The Privy Council under
the Tudors (Oxford, 1907).]
*20. Other Councils: The Star Chamber.*--In 1487 there was created a
special tribunal, consisting at the outset of seven great officials
and members of the Council, including two judges, to take special
cognizance of cases involving breaches of the law by offenders who
were too powerful to be reached under the operation of the ordinary
courts. This was the tribunal subsequently known, from its
meeting-place, as the Court of Star Chamber. In effect it was from the
beginning a committee of the Privy Council, empowered to exercise a
jurisdiction which in truth had long been exercised extra-legally by
the Council as a whole. The relation of the two institutions inclined
in practice to become ever closer, and by the middle of the sixteenth
century the Star Chamber had been enlarged to include all of the
members of the Council, together with the two chief justices; and
since the Star Chamber possessed a statutory sanction which the
Council lacked, the judicial business of the older body was despatched
regularly by its members sitting under the guise of the newer one. The
tendency of the Tudor régime toward the conciliar type of government
is manifested further by the creation of numerous subsidiary councils
and courts whose history cannot be recounted here. Most of these were
brought into existence during the reign of Henry VIII. Those of
principal importance were (1) the Council of the North, set up in
1539; (2) the Council of Wales, confirmed by statute of 1542; (3) the
Court of Castle Chamber, reproducing in Ireland the principal features
of the English Star Chamber; (4) the Courts of Augmentation, First
Fruits and Annates, and Wards; and (5) the Elizabethan Court of High
Commission.[20]
[Footnote 20: A. T. Carter, Outlines of English
Legal History (London, 1899), Chap. 12; A. Todd,
Parliamentary Government in England, ed. by S.
Walpole, 2 vols. (London, 1892), I., Chap. 2;
Dicey, The Privy Council, 94-115.]
VII. PARLIAMENT UNDER THE TUDORS (p. 021)
*21. Control by the Crown.*--By the Tudors generally, and especially
Henry VIII. and Elizabeth, Parliament was regarded as a tool to be
used by the crown, rather than as in any sense an independent,
co-ordinate power in the state. When innovations were to be
introduced, such as those carried through by Henry VIII., it was Tudor
policy to clothe them with the vestments of parliamentarism, to the
end that they might be given the appearance and the sanction of
popular measures; and when subsidies were to be obtained, it was
recognized to be expedient to impart to them, in similar manner, the
semblance of voluntary gifts on the part of the nation. It was no part
of Tudor intent, however, that Parliament should be permitted to
initiate measures, or even to exercise any actual discretion in the
adoption, amendment, or rejection of proposals submitted by the
Government. There were several means by which the crown contrived to
impede the rise of Parliament above the subordinate position which
that body occupied at the accession of Henry VII. One was the practice
of convening Parliament irregularly and infrequently and of bringing
its sessions to an early close. Another, employed especially during
Thomas Cromwell's ministry under Henry VIII. and during the reign of
Elizabeth, was that of tampering with the freedom of borough and
county elections. A third was the habit, also notorious under Henry
VIII. and Elizabeth, of dictating and directing in all that was
essential in the proceedings of the chambers. Henry VIII. bullied his
parliaments systematically; Elizabeth, by cajolery, flattery, deceit,
and other arts of which she was mistress, attained through less
boisterous methods the same general end. Measures were thrust upon the
chambers accompanied by peremptory demand for their enactment;
objectionable projects originated by private members were stifled; and
the fundamental parliamentary privileges of free speech, freedom from
arrest, and access to the sovereign were arbitrarily suspended or
otherwise flagrantly violated.
*22. The Independence of the Crown.*--Finally must be mentioned certain
devices by which the crown was enabled to evade limitations
theoretically imposed by Parliament's recognized authority. One of
these was the issuing of proclamations. In the sixteenth century it
was generally maintained that the sovereign, acting alone or with the
advice of the Council, could issue proclamations controlling the
liberty of the subject, so long as such edicts did not violate statute
or common law. As a corollary, it was maintained also that the crown
could dispense with the action of law in individual cases and at (p. 022)
times of crisis. The range covered by these prerogatives was broad and
undefined, and in the hands of an aggressive monarch they constituted
a serious invasion of the powers of legislation nominally vested in
Parliament. It is true that the act of 1539 imparting to royal
proclamations the force of law was repealed in 1547; but proclamations
continued, especially under Elizabeth and James I., not only to be
numerous, but to be enforced relentlessly by penalties inflicted
through the Star Chamber. The most important power of Parliament in
the sixteenth century was still that of voting supplies. But in
respect to finance, as in respect to legislation, the crown possessed
effective means of evading parliamentary control. In the first place,
the sovereign possessed large revenues, arising from crown lands,
feudal rights, profits of jurisdiction, and ecclesiastical payments,
with which Parliament had nothing whatever to do. In the second place,
the great indirect taxes--customs duties and tonnage and
poundage--were, in the sixteenth century, voted at the accession of a
sovereign for the whole of the reign. It was only in respect to
extraordinary taxes--"subsidies" and "tenths and fifteenths"--that
Parliament was in a position effectually to make or mar the fiscal
fortunes of the Government; except that, of course, it was always open
to Parliament to criticise the financial expedients of the crown, such
as the sale of monopolies, the levy of "impositions," and the
collection of benevolences, and to influence, if it could, the policy
pursued in relation to these matters.
*23. The House of Lords in 1485.*--Despite the numerous strictures that
have been mentioned, Parliament in the Tudor period by no means stood
still. The enormous power and independence exhibited by the chambers,
especially the Commons, in the seventeenth century was the product of
substantial, if more or less hidden, growth during the previous one
hundred and fifty years. The composition of the two houses at the
accession of Henry VII. was not clearly defined. The House of Lords
was but a small body. It comprised simply those lords, temporal and
spiritual, who were entitled to receive from the king, when a
parliament was to be held, a special writ, i.e., an individual
summons. The number of these was indeterminate. The right of the
archbishops, the bishops, and the abbots to be summoned was immemorial
and indisputable, although the abbots in practice evaded their
obligation of attendance, save in cases in which it could be shown
that as military tenants of the crown they were obligated to perform
parliamentary duty. Among the lay nobility the selection of
individuals for summons seems originally to have been dependent upon
the royal pleasure. Eventually, however, the principle became (p. 023)
fixed that a man once summoned must be summoned whenever occasion
should arise, and that, furthermore, his eldest son after him must be
summoned in similar manner. What was at the outset an obligation
became in time a privilege and a distinction, and by the day when it
did so the rule had become legally established that the king could not
withhold a writ of summons from the heir of a person who had been once
summoned and had obeyed the summons by taking his seat. During the
fourteenth century the aggregate membership of the chamber fluctuated
in the neighborhood of 150. By reason of the withdrawal of some of the
abbots and the decline of the baronage, in the fifteenth century the
body was yet smaller. The number of temporal lords summoned to the
first parliament of Henry VII. was but 29.
*24. The House of Commons in 1485.*--The House of Commons at the
beginning of the Tudor period was a body of some 300 members. It
contained 74 knights of the shire, representing all but three of the
forty English counties, together with a fluctuating number of
representatives of cities and boroughs. In the Model Parliament of
1295 the number of urban districts represented was 166, but as time
went on the number declined, in part because of the discrimination
exercised from time to time in the selection of boroughs to be
represented, and in part by reason of the fact that in times when
representation did not appear to yield tangible results the borough
taxpayers begrudged the two shillings per day paid their
representatives, in some instances sufficiently to be induced to
abandon altogether the sending of members. By the time of Edward IV.
(1399-1413) the number of represented towns had fallen to 111. At the
beginning of the fifteenth century county members were elected by the
body of freeholders present at the county court, but by statute of
1429 the electoral privilege was restricted to freeholders resident in
the county and holding land of the yearly rental value of forty
shillings, equivalent, perhaps, to some £30 to £40 in present values.
This rule, adopted originally with the express purpose of
disfranchising "the very great and outrageous number of people either
of small substance or of no value" who had been claiming an electoral
equality with the "worthy knights and squires," continued in operation
without amendment until 1832. The electoral systems prevailing in the
boroughs exhibited at all times the widest variation, and never prior
to 1832 was there serious attempt to establish uniformity of practice.
In some places (the so-called "scot and lot" boroughs) the suffrage
was exercised by all rate-payers; in others, by the holders of particular
tenements ("burgage" franchise); in others (the "potwalloper" (p. 024)
boroughs) by all citizens who had hearths of their own; in many, by
the municipal corporation, or by the members of a guild, or even by
neighboring landholders. Borough electoral arrangements ran the full
gamut from thoroughgoing democracy to the narrowest kind of oligarchy.
*25. Development under the Tudors: Composition.*--During the Tudor
period the composition of the two chambers underwent important change.
In the Lords the principal modification was the substitution of
temporal for spiritual preponderance. This was brought about in two
ways. The first was the increase numerically of the hereditary peers
from thirty-six at the beginning of the reign of Henry VIII. to about
eighty at the accession of James I. The second was the dropping out of
twenty-eight abbots, incident to the closing of the monasteries by
Henry VIII. and only partially compensated by the creation at the time
of six new bishoprics. In 1509 the number of lords spiritual was
forty-eight; in 1603, it was but twenty-six. The House of Commons
under the Tudors was virtually doubled in size. The final
incorporation of Wales in 1535 meant the adding of twenty-five
members. In 1536 and 1543 the counties of Monmouth and Chester were
admitted to representation. There followed the enfranchisement of a
number of boroughs, and by the end of the reign of Henry VIII. the
representation of counties had been increased from 74 to 90, and that
of the boroughs had been brought up to 252, giving the House an
aggregate membership of 342. During the reign of Edward VI. twenty new
constituencies were created, and during that of Mary twenty-one. But
the most notable increase was that which took place in the reign of
Elizabeth, the net result of which was the bringing in of 62 new
borough representatives, in some cases from boroughs which now
acquired for the first time the right of representation, in others
from boroughs which once had possessed the right but through disuse
had been construed to have forfeited it. The total increase of the
Commons in numerical strength during the Tudor period was 166. There
can be little question that in a few instances parliamentary
representation was extended with the specific purpose of influencing
the political complexion of the popular chamber. But, on the whole,
the reason for the notable increase, especially of borough members, is
to be found in the growing prosperity of the country and in the
reliance which the Tudors were accustomed to place upon the commercial
and industrial classes of the population.
*26. Other Developments.*--A second point at which Parliament in the
Tudor era underwent modification was in respect to permanence and
sittings. Prior to Henry VIII. the life of a parliament was confined,
as a rule, to a single session, and sessions were brief. But (p. 025)
parliaments now ceased to be meetings to be broken up as soon as some
specific piece of business should have been completed, and many were
brought together in several succeeding sessions. Henry VIII.'s
Reformation Parliament lasted seven years. During the forty-five years
of Elizabeth there were ten parliaments and thirteen sessions. One of
these parliaments lasted eleven years, although it met but three
times. It is true that the parliaments of Elizabeth were in session,
in the aggregate, somewhat less than three years, an average for the
reign of but little more than three weeks a year. But the point is
that, slowly but effectually, Parliament as an institution was
acquiring a recognized position in the political system of the nation.
In 1589 Thomas Smith, a court secretary, published a book entitled
"The Commonwealth of England and the Manner of Government Thereof," in
which was laid down the fundamental proposition that "the most high
and absolute power of the realm of England consisteth in the
parliament"; and there is no record that the proclamation of this
doctrine, even by a court official, elicited serious protest or
difference of opinion. It was in the Tudor period, further, that both
houses instituted the keeping of journals and that the appointment of
committees and numerous other aspects of modern parliamentary
procedure had their beginnings.
Finally, the Elizabethan portion of the period was an epoch during
which there took place a very real growth in independence of sentiment
and an equally notable advance in consciousness of power on the part
of the popular chamber. Even before the death of Elizabeth there were
ill-repressed manifestations of the feeling that the Tudor monarchy
had done its work and that the time for a larger amount of
parliamentary control had arrived. Nothing was clearer in 1603 than
the fact that the sovereign who should expect to get on agreeably with
his Commons must be both liberal and tactful. That the Stuarts
possessed the first of these qualities in only a very limited measure
and the second one not at all is a fact upon which turns an entire
chapter of English constitutional history.[21]
[Footnote 21: Excellent works of a general nature
on the Tudor period are H. A. L. Fisher, History of
England from the Accession of Henry VII. to the
Death of Henry VIII. (London, 1906); A. F. Pollard,
History of England from the Accession of Edward VI.
to the Death of Elizabeth (London, 1910); and A. D.
Innis, England under the Tudors (London, 1905). For
institutional history see Taylor, English
Constitution, II., Bk. 4. More specialized
treatment will be found in Smith, History of the
English Parliament, I., Bk. 5; Dicey, The Privy
Council, 76-130; and Taswell-Langmead, English
Constitutional History, Chaps. 10, 12. An excellent
survey of English public law at the death of Henry
VII. is contained in F. W. Maitland, Constitutional
History of England (Cambridge, 1911), 165-236.
Books of large value on the period include W.
Busch, England under the Tudors, trans. by A. M.
Todd (London, 1895), the only volume of which
published covers the reign of Henry VII.; A. F.
Pollard, Henry VIII. (London, 1902 and 1905), and
England under the Protector Somerset (London,
1900); and M. Creighton, Queen Elizabeth (new ed.,
London, 1899).]
VIII. THE STUARTS: CROWN AND PARLIAMENT (p. 026)
*27. Absolutism Becomes Impracticable.*--Throughout the larger portion
of the seventeenth century the principal interest in English politics
centers in the contest which was waged between the nation represented
in Parliament and the sovereigns of the Stuart dynasty. The question,
as one writer has put it, was "at first whether government should be
by the king or by the king in parliament, afterwards whether the king
should govern or whether parliament should govern."[22] The Stuart
sovereigns brought with them to the English throne no political
principles that were new. When James I., in a speech before Parliament
March 21, 1610, declared that monarchy "is the supremest thing upon
earth," and that, "as to dispute what God may do is blasphemy, ... so
is it sedition in subjects to dispute what a King may do in the height
of his power,"[23] he was but giving expression to a conception of the
royal prerogative which had been lodged in the mind of every Tudor,
but which no Tudor had been so tactless as publicly to avow. The first
two Stuarts confidently expected to maintain the same measure of
absolutism which their Tudor predecessors had maintained--nothing
more, nothing less. There were, however, several reasons why, for
them, this was an impossibility. The first arose from their own
temperament. The bluntness, the lack of perception of the public will,
and the disposition perpetually to insist upon the minutest
definitions of prerogative, which so pre-eminently characterized the
members of the Stuart house must have operated to alienate
seventeenth-century Englishmen under even the most favorable of
circumstances. A second consideration is the fact, of which the nation
was fully cognizant, that under the changed conditions that had arisen
there was no longer the need of strong monarchy that once there had
been. Law and order had long since been secured; all danger of a
feudal reaction had been effectually removed; foreign invasion was no
more to be feared. Strong monarchy had served an invaluable purpose,
but that purpose had been fulfilled.
[Footnote 22: C. Ilbert, Parliament, its History,
Constitution, and Practice (London and New York,
1911), 28-29.]
[Footnote 23: Prothero, Statutes and Constitutional
Documents, 293-294.]
*28. The Rights of the Commons Asserted.*--Finally there was the (p. 027)
fact of the enormous growth of Parliament as an organ of the public
will. The rapidity of that development in the days of Elizabeth is,
and was at the time, much obscured by the disposition of the nation to
permit the Queen to live out her days without being seriously crossed
in her purposes. But the magnitude of it becomes apparent enough after
1603. In a remarkable document known as the Apology of the Commons,
under date of June 20, 1604, the popular chamber stated respectfully
but frankly to the new sovereign what it considered to be its rights
and, through it, the rights of the nation. "What cause we your poor
Commons have," runs the address, "to watch over our privileges, is
manifest in itself to all men. The prerogatives of princes may easily,
and do daily, grow; the privileges of the subject are for the most
part at an everlasting stand. They may be by good providence and care
preserved, but being once lost are not recovered but with much
disquiet. The rights and liberties of the Commons of England
consisteth chiefly in these three things: first, that the shires,
cities, and boroughs of England, by representation to be present, have
free choice of such persons as they shall put in trust to represent
them; secondly, that the persons chosen, during the time of the
parliament, as also of their access and recess, be free from
restraint, arrest, and imprisonment: thirdly, that in parliament they
may speak freely their consciences without check and controlment,
doing the same with due reverence to the sovereign court of
parliament, that is, to your Majesty and both the Houses, who all in
this case make but one politic body, whereof your Highness is the
head."[24] The shrewdness of the political philosophy with which this
passage opens is matched only by the terseness with which the
fundamental rights of the Commons as a body are enumerated. To the
enumeration should be added, historically, an item contained in a
petition of the Commons, May 23, 1610, which reads as follows: "We
hold it an ancient, general, and undoubted right of Parliament to
debate freely all matters which do properly concern the subject and
his right or state; which freedom of debate being once foreclosed, the
essence of the liberty of Parliament is withal dissolved."[25] The
occasion for this last-mentioned assertion of right arose from the
king's habitual assumption that there were various important matters
of state, e.g., the laying of impositions and the conduct of foreign
relations, which Parliament possessed no right so much as to discuss.
[Footnote 24: Petyt, Jus Parliamentarium (London,
1739), 227-243. Portions of this document are
printed in Prothero, Statutes and Constitutional
Documents, 286-293.]
[Footnote 25: Commons' Journals, I., 431; Prothero,
Statutes, 297.]
*29. The Parliaments of James I. and Charles I.*--The tyranny of (p. 028)
James I. and Charles I. assumed the form, principally, of the issue of
proclamations without the warrant of statute and the exaction of taxes
without the assent of Parliament. Parliament, during the period
1603-1640, was convened but seldom, and it was repeatedly prorogued or
dissolved to terminate its inquiries, thwart its protests, or subvert
its projected measures. Under the disadvantage of recurrent
interruption the Commons contrived, however, to carry on a contest
with the crown which was essentially continuous. During the reign of
James I. (1603-1625) there were four parliaments. The first, extending
from 1604 to 1611, was called in session six times. It sorely
displeased the king by remonstrating against his measures, and
especially by the persistency with which it withheld subsidies pending
a redress of grievances. The second, summoned in 1614, vainly
reiterated the complaints of its predecessor and was dissolved without
having enacted a single measure. The third, in 1621, revived the power
of impeachment (dormant since the days of Henry VII.), reasserted the
right of the chambers to debate foreign relations, and avenged by a
fresh protestation of liberties the arrest of one of its members. The
fourth, in 1624, abolished monopolies and renewed the attack upon
proclamations. The first parliament of Charles I., convoked in 1625,
criticised the policy of the new sovereign and was dissolved. The
second, in 1626, was dissolved to prevent the impeachment of the
king's favorite minister, the Duke of Buckingham. The third, in
1628-1629, drew up the memorable Petition of Right, to which the king
gave reluctant assent, and in which arbitrary imprisonment, the
billeting of soldiers, the establishment of martial law in time of
peace, and the imposition of gifts, loans, benevolences, or taxes
without the consent of Parliament were specifically prohibited.[26]
The fourth of Charles's parliaments, the so-called Short Parliament of
1640, followed a period of eleven years of personal government and
showed no disposition to surrender the rights that had been asserted.
The fifth--the Long Parliament, convoked also in 1640--imprisoned and
executed the king's principal advisers, abolished the Star Chamber and
the several other special courts and councils of Tudor origin,
pronounced illegal the levy of ship-money and of tonnage and poundage
without parliamentary assent, made provision for the assembling of a
parliament within three years of the dissolution of the present one,
and forced the king into a position where he was obliged to yield or
to resort to war.
[Footnote 26: The text of the Petition of Right is
printed in Stubbs, Select Charters, 515-517; Adams
and Stephens, Select Documents, 339-342.]
*30. The Commonwealth and the Protectorate.*--Between the (p. 029)
political theory maintained by the Stuart kings and that maintained by
the parliamentary majority it was found impossible to arrive at a
compromise. The Civil War was waged, in the last analysis, to
determine which of the two theories should prevail. It should be
emphasized that the parliamentarians entered upon the contest with no
intent to establish a government by Parliament alone, in form or in
fact. It is sufficiently clear from the Grand Remonstrance of 1641[27]
that what they contemplated was merely the imposing of constitutional
restrictions upon the crown, together with the introduction of certain
specific changes in the political and ecclesiastical order, e.g., the
abolition of episcopacy. The culmination of the struggle, however, in
the defeat and execution of the king threw open the doors for every
sort of constitutional innovation, and between 1649 and 1660 the
nation was called upon to pass through an era of political
experimentation happily unparalleled in its history. May 19, 1649,
kingship and the House of Lords having been abolished as equally
"useless and dangerous,"[28] Parliament, to complete the work of
transformation, proclaimed a commonwealth, or republic; and on the
great seal was inscribed the legend, "In the first year of freedom by
God's blessing restored." During the continuance of the Commonwealth
(1649-1654) various plans were brought forward for the creation of a
parliament elected by manhood suffrage, but with the essential
principle involved neither the Rump nor the people at large possessed
substantial sympathy. In 1654 there was put in operation a
constitution--the earliest among written constitutions in modern
Europe--known as the Instrument of Government.[29] The system therein
provided, which was intended to be extended to the three countries of
England, Scotland, and Ireland, comprised as the executive power a
life Protector, to be assisted by a council of thirteen to twenty-one
members, and as the legislative organ a unicameral parliament of 460
members elected triennially by all citizens possessing property to the
value of £300.[30] Cromwell accepted the office of Protector, and the
ensuing six years comprise the period known commonly as the (p. 030)
Protectorate.
[Footnote 27: S. R. Gardiner, Constitutional
Documents of the Puritan Revolution (Oxford, 1899),
202-232.]
[Footnote 28: Gardiner, Documents of the Puritan
Revolution, 384-388; Adams and Stephens, Select
Documents, 397-400.]
[Footnote 29: Gardiner, Documents of the Puritan
Revolution, 405-417; Adams and Stephens, Select
Documents, 407-416.]
[Footnote 30: On the history of this unicameral
parliament see J. A. R. Marriott, Second Chambers,
an Inductive Study in Political Science (Oxford,
1910), Chap. 3; A. Esmein, Les constitutions du
protectorat de Cromwell, in _Revue du Droit
Public_, Sept.-Oct. and Nov.-Dec., 1899.]
The government provided for by the Instrument was but indifferently
successful. Between Cromwell and his parliaments relations were much
of the time notoriously strained, and especially was there controversy
as to whether the powers of Parliament should be construed to extend
to the revision of the constitution. In 1657 the Protector was asked
to assume the title of king. This he refused to do, but he did accept
a new constitution, the Humble Petition and Advice, in which a step
was taken toward a return to the governmental system swept away in
1649.[31] This step comprised, principally, the re-establishment of a
parliament of two chambers--a House of Commons and, for lack of
agreement upon a better designation, "the Other House." Republicanism,
however, failed to strike root. Shrewder men, including Cromwell, had
recognized all the while that the English people were really royalist
at heart, and it is not too much to say that from the outset the
restoration of monarchy was inevitable. Even before the death of
Cromwell, in 1658, the trend was distinctly in that direction, and
after the hand of the great Protector had been removed from the helm
such a consummation was a question but of time and means. May 25,
1660, Charles II., having engaged to grant a general amnesty and to
accept such measures of settlement respecting religion as Parliament
should determine upon, landed at Dover and was received with all but
universal acclamation.[32]
[Footnote 31: Gardiner, Documents of the Puritan
Revolution, 447-459.]
[Footnote 32: The best of the general treatises
covering the period 1603-1660 are F. C. Montague,
The History of England from the Accession of James
I. to the Restoration (London, 1907), and G. M.
Trevelyan, England Under the Stuarts (London,
1904). The monumental works within the field are
those of S. R. Gardiner, i.e., History of England,
1603-1642, 10 vols. (new ed., London, 1893-1895);
History of the Great Civil War, 4 vols. (London,
1894); and History of the Commonwealth and
Protectorate, 4 vols. (London, 1894-1901). Mr.
Gardiner's work is being continued by C. H. Firth,
who has published The Last Years of the
Protectorate, 1656-1658, 2 vols. (London, 1909).
The development of institutions is described in
Taswell-Langmead, English Constitutional History,
Chaps. 13-14; Smith, History of the English
Parliament, I., Bks. 6-7; Pike, History of the
House of Lords, _passim_; J. N. Figgis, The Theory
of the Divine Right of Kings (Cambridge, 1896); and
G. P. Gooch, History of English Democratic Ideas in
the Seventeenth Century (Cambridge, 1898). An
excellent analysis of the system of government
which the Stuarts inherited from the Tudors is
contained in the introduction of Prothero, Statutes
and Constitutional Documents. Of the numerous
biographies of Cromwell the best is C. H. Firth,
Oliver Cromwell (New York, 1904). A valuable survey
of governmental affairs at the death of James I. is
Maitland, Constitutional History Of England,
237-280.]
IX. THE LATER STUARTS: THE REVOLUTION OF 1688-1689 (p. 031)
*31. Charles II. and James II.*--Throughout the period 1660-1689 there
was enacted a final grand experiment to determine whether a Stuart
could, or would, govern constitutionally. The constitution in
accordance with which Charles II. and James II. were expected to
govern was that which had been built up during preceding centuries,
amended by the important reforms effected by the Long Parliament in
1641. The settlement of 1660 was a restoration no less of Parliament
than of the monarchy, in respect both to structure and to functions.
The two chambers were re-established upon their earlier foundations,
and in them was vested the power to enact all legislation and to
sanction all taxation. The spirit, if not the letter, of the agreement
in accordance with which the Stuart house was restored forbade the
further imposition of taxes by the arbitrary decree of the crown and
all exercise of the legislative power by the crown singly, whether
positively through proclamation or negatively through dispensation. It
required that henceforth the nature and amount of public expenditures
should, upon inquiry, be made known to the two houses, and that
ministers might regularly be held to account for their acts and those
of the sovereign. The easy-going Charles II. (1660-1685) contrived
most of the time to keep fairly within the bounds that were prescribed
for him. He disliked the religious measures of his first parliament,
but he recognized that a fresh election might be expected to result in
the choice of a House of Commons still less to his taste, and,
accordingly, the Cavalier Parliament was kept in existence throughout
the entire period 1661-1679. The parliamentary history of the closing
years of the reign centered about the question of the exclusion of the
king's Catholic brother, James, from the throne, and was given special
interest by the conflict of groups foreshadowing political parties;
but Charles maintained unfailingly an attitude which, at the least,
did not endanger his own tenure of the throne.
James II. (1685-1688) was a man of essentially different temper. He
was a Stuart of the Stuarts, irrevocably attached to the doctrine of
divine right and sufficiently tactless to take no pains to disguise
the fact. He was able, industrious, and honest, but obstinate and
intolerant. He began by promising to preserve "the government as by
law established." But the ease with which the Monmouth uprising of
1685 was suppressed deluded him into thinking that through the
exemption of the Catholics from the operation of existing laws he
might in time realize his ambition to re-establish Roman Catholicism
in England. He proceeded, therefore, to issue decrees dispensing (p. 032)
with statutes which Parliament had enacted, to establish an
ecclesiastical commission in violation of parliamentary law of 1641,
and, in 1687, to promulgate a declaration of indulgence extending to
all Catholics and Non-Conformists a freedom in religious matters which
was clearly denied by the laws of the country.[33] By this arbitrary
resumption of ancient prerogative the theory underlying the
Restoration was subverted utterly.
[Footnote 33: Gee and Hardy, Documents Illustrative
of English Church History, 641-644; Adams and
Stephens, Select Documents, 451-454.]
*32. The Revolution: the Bill of Rights.*--Foreseeing no relief from
absolutist practices, and impelled especially by the birth, in 1688,
of a male heir to the king, a group of leading men representing the
various political groups extended to the stadtholder of Holland,
William, Prince of Orange, an invitation to repair to England to
uphold and protect the constitutional liberties of the realm. The
result was the bloodless revolution of 1688. November 5, William
landed at Torquay and advanced toward London. James, finding himself
without a party, offered vain concessions and afterwards fled to the
court of his ally, Louis XIV. of France. By a provisional body of
lords, former commoners, and officials William was requested to act as
temporary "governor" until the people should have chosen a national
"convention."[34] This convention assembled January 22, 1689, resolved
that James, by reason of his flight, should be construed to have
abdicated, and established on the throne as joint sovereigns William
and Mary, with the understanding that the actual government of the
realm should devolve upon the king.
[Footnote 34: Not properly a parliament, because
not summoned by a king.]
The Revolution of 1688-1689 was signalized by the putting into written
form of no inconsiderable portion of the English constitution as it
then existed. February 19, 1698, the new sovereigns formally accepted
a Declaration of Right, drawn up by the convention, and by act of
Parliament, December 16 following, this instrument, under the name of
the Bill of Rights, was made a part of the law of the land. In it were
denied specifically a long list of prerogatives to which the last
Stuart had laid claim--those, in particular, of dispensing with the
laws, establishing ecclesiastical commissions, levying imposts without
parliamentary assent, and maintaining a standing army under the
exclusive control of the crown. In it also were guaranteed certain
fundamental rights which during the controversies of the seventeenth
century had been brought repeatedly in question, including those of
petition, freedom of elections, and freedom of speech on the part (p. 033)
of members of Parliament.[35] The necessity of frequent meetings
of Parliament was affirmed, and a succession clause was inserted by
which Roman Catholics and persons who should marry Roman Catholics,
were excluded from the throne. In the Bill of Rights were thus summed
up the essential results of the Revolution, and, more remotely, of the
entire seventeenth-century parliamentary movement. With its enactment
the doctrine of divine right disappeared forever from the domain of
practical English politics. The entire circumstance of William III.'s
accession determined the royal tenure to be, as it thereafter
remained, not by inherent or vested right, but conditioned upon the
national will.[36]
[Footnote 35: In this connection should be recalled
the Habeas Corpus Act of May 26, 1679, by whose
terms the right of an individual, upon arrest, to
have his case investigated without delay was
effectually guaranteed. Stubbs, Select Charters,
517-521; Adams and Stephens, Select Documents,
440-448.]
[Footnote 36: In respect to ecclesiastical affairs
the Bill of Rights was supplemented by the
Toleration Act of May 24, 1689, in which was
provided "some ease to scrupulous consciences in
the exercise of religion," i.e., a larger measure
of liberty for Protestant non-conformists. The text
of the Bill of Rights is in Stubbs, Select
Charters, 523-528; Gee and Hardy, Documents
Illustrative of English Church History, 645-654;
and Adams and Stephens, Select Documents, 462-469;
that of the Toleration Act, in Gee and Hardy,
654-664; and, in abridged form, in Adams and
Stephens, 459-462. General accounts of the period
1660-1689 are contained in R. Lodge, History of
England from the Restoration to the Death of
William III. (London, 1910), Chaps. 1-15, and in
Trevelyan, England Under the Stuarts, Chaps. 11-13.
O. Airy. Charles II., is an excellent book. The
development of Parliament in the period is
described in Smith, History of the English
Parliament, I., Bk. 8, II., Bk. 9.]
CHAPTER II (p. 034)
THE CONSTITUTION SINCE THE SEVENTEENTH CENTURY
I. CROWN AND PARLIAMENT AFTER 1789
*33. Elements of Stability and Change.*--Structurally, the English
governmental system was by the close of the seventeenth century
substantially complete. The limited monarchy, the ministry, the two
houses of parliament, the courts of law, and the local administrative
agencies were by that time constituted very much as they are to-day.
The fundamental principles, furthermore, upon which English government
is operated were securely established. Laws could be enacted only by
"the king in parliament"; taxes could be levied only in the same
manner; the liberty of the individual was safeguarded by a score of
specific and oft-renewed guarantees. In point of fact, however, the
English constitution of 1689 was very far from being the English
constitution of 1912. The overturn by which the last Stuart was driven
from the throne not only marked the culmination of the revolution
commenced in 1640; it comprised the beginning of a more extended
revolution, peaceful but thoroughgoing, by which the governmental
system of the realm was amplified, carried in new directions, and
successively readapted to fresh and changing conditions. At no time
from William III. to George V. was there a deliberate overhauling of
the governmental system as a whole. Save in occasional parliamentary
enactments and judicial decisions, the constitutional changes which
were wrought were rarely given documentary expression. Yet it is
hardly too much to say that of the principles and practices which
to-day make up the working constitution of the United Kingdom almost
all were originated or reshaped during the eighteenth and nineteenth
centuries. In describing, in succeeding chapters, the principal
aspects of this governmental system it will be necessary frequently to
allude to these more recent constitutional developments, and it would
but involve repetition to undertake an account of them at this point.
An enumeration and a brief characterization of a few of the more
important will serve for the moment to impress the importance
constitutionally of the period under consideration.
*34. The Decreased Authority of the Crown.*--First may be (p. 035)
mentioned the gradual eclipse of the crown and the establishment of
complete and unquestioned ascendancy on the part of Parliament. In
consequence of the Revolution of 1688-1689 the sovereign was shorn
definitely of a number of important prerogatives. William III.,
however, was no figure-head, and the crown was far from having been
reduced to impotence. Understanding perfectly the conditions upon
which he had been received in England, William none the less did not
attempt to conceal his innate love of power. He claimed prerogatives
which his Whig supporters were loath to acknowledge and he exercised
habitually in person, and with telling effect, the functions of
sovereign, premier, foreign minister, and military autocrat.[37] His
successor, Anne, though apathetic, was hardly less attached to the
interests of strong monarchy. It was only with the accession of the
Hanoverian dynasty, in 1714, that the bulk of those powers of
government which hitherto the crown had retained slipped inevitably
into the grasp of the ministers and of Parliament. George I.
(1714-1727) and George II. (1727-1760) were not the nonentities they
have been painted, but, being alien alike to English speech, customs,
and political institutions, they were in a position to defend but
indifferently the prerogatives which they had inherited. Under George
III. (1760-1820) there was a distinct recrudescence of the monarchical
idea. The king, if obstinate and below the average intellectually, was
honest, courageous, and ambitious. He gloried in the name of
Englishman, and, above all, he was determined to recover for the crown
some measure of the prestige and authority which his predecessors had
lost. The increasingly oligarchical character of Parliament in the
period and the disintegration of the ruling Whig party created a
condition not unfavorable for the realization of the royal programme,
and through at least a score of years the influence which the
sovereign exerted personally upon government and politics exceeded
anything that had been known since the days of William III. In 1780
the House of Commons gave expression to its apprehension by adopting a
series of resolutions, the first of which asserted unequivocally that
"the influence of the crown has increased, is increasing, and ought to
be diminished."
[Footnote 37: On the constitution as it was at the
death of William III., see Maitland, Constitutional
History of England, 281-329.]
After the retirement of Lord North, in 1782, however, the influence of
the sovereign declined perceptibly, and during the later portion of
the reign, clouded by the king's insanity, all that had been gained
for royalty was again lost. Under the Regency (1810-1820) and during
the reign of the reactionary and scandal-smirched George IV. (p. 036)
(1820-1830) the popularity, if not the power, of the crown reached its
nadir. In the days of the genial William IV. (1830-1837) popularity
was regained, but not power. The long reign of the virtuous Victoria
(1837-1901) served completely to rehabilitate the monarchy in the
respect and affections of the British people, a consummation whose
stability more recent sovereigns have done nothing to impair. As will
be pointed out in another place, the influence which the sovereign may
wield, and during the past three-quarters of a century has wielded, in
the actual conduct of public affairs is far from inconsiderable. But,
as will also be emphasized, that influence is but the shadow of the
authority which the crown once--even as late as the opening of the
eighteenth century--possessed. It is largely personal rather than
legal; it is asserted within the domain of foreign relations rather
more than within that of domestic affairs; and as against the adverse
will of the nation expressed through Parliament it is, in effect,
powerless.[38]
[Footnote 38: On the monarchical revival under
George III., see D. A. Winstanley, Personal and
Party Government; a Chapter in the Political
History of the Early Years of the Reign of George
III., 1760-1766 (Cambridge, 1910). For an excellent
appraisal of the status of the crown throughout the
period 1760-1860 see T. E. May, The Constitutional
History of England since the Accession of George
III., edited and continued by F. Holland, 3 vols.
(London, 1912), I., Chaps. 1-2.]
*35. Ascendancy of the House of Commons.*--A second transformation
wrought in the working constitution since 1689 is the shifting of the
center of gravity in Parliament from the House of Lords to the House
of Commons, together with a notable democratizing of the
representative chamber. In the days of William and Anne the House of
Lords was distinctly more dignified and influential than the House of
Commons. During the period covered by the ministry of Walpole
(1721-1742), however, the Commons rose rapidly to the position of the
preponderating legislative branch. One contributing cause was the
Septennial Act of 1716, whereby the life of a parliament was extended
from three years to seven, thus increasing the continuity and
desirability of membership in the Commons. Another was the growing
importance of the power of the purse as wielded by the Commons. A
third was the fact that Walpole, throughout his prolonged ministry,
sat steadily as a member of the lower chamber and made it the scene of
his remarkable activities. The establishment of the supremacy of the
Commons as then constructed did not, however, mean the triumph of
popular government. It was but a step toward that end. The House of
Commons in the eighteenth century was composed of members elected (p. 037)
in the counties and boroughs upon a severely restricted franchise or
appointed outright by closed corporations or by individual magnates,
and it remained for Parliament during the nineteenth century, by a
series of memorable statutes, to extend the franchise successively to
groups of people hitherto politically powerless, to reapportion
parliamentary seats so that political influence might be distributed
with some fairness among the voters, and to regulate the conditions
under which campaigns should be carried on, elections conducted, and
other operations of popular government undertaken. Of principal
importance among the enactments by which these things were
accomplished are the Reform Act of 1832, the Representation of the
People Act of 1867, the Ballot Act of 1872, the Corrupt and Illegal
Practices Act of 1883, the Representation of the People Act of 1884,
and the Redistribution of Seats Act of 1885. The nature of these
measures will be explained subsequently.[39]
[Footnote 39: See pp. 80-86.]
II. RISE OF THE CABINET AND OF POLITICAL PARTIES
*36. Cabinet Origins.*--In the third place, the period under review is
important by reason of the development within it of the most
remarkable feature of the English constitutional system to-day,
namely, the cabinet. The creation of the cabinet was a gradual
process, and both the process and the product are utterly unknown to
the letter of English law. It is customary to regard as the immediate
antecedent of the cabinet the so-called "cabal" of Charles II., i.e.,
the irregular group of persons whom that sovereign selected from the
Privy Council and took advice from informally in lieu of the Council
itself. In point of fact, by reason principally of the growing
unwieldiness of the Privy Council, the practice of deferring for
advice to a specially constituted committee, or inner circle, of the
body far antedated Charles II. By some it has been traced to a period
as remote as the reign of Henry III., and it is known that not only
the thing itself, but also the name "cabinet council," existed under
Charles I. The essential justification of the creation of the cabinet
was stated by Charles II. in 1679 in the declaration that "the great
number of the Council has made it unfit for the secrecy and despatch
that are necessary in many great affairs." The growing authority of
the select circle of advisors was the object of repeated attacks, and
the name "cabinet" (arising from the king's habit of receiving the
members in a small private room, or cabinet, in the royal palace) was
applied at first as a term of reproach. The device met, however, a
genuine need, and by 1689 its perpetuation was assured. The larger (p. 038)
Privy Council was continued in existence, and it exists to-day; but
its powers became long ago merely nominal.[40]
[Footnote 40: H. W. V. Temperley, The Inner and
Outer Cabinet and the Privy Council, 1679-1683, in
_English Historical Review_, Oct., 1912.]
*37. Principles of Cabinet Government Established.*--Under William III.
the cabinet took on rapidly the character which it bears to-day.
Failing in the attempt to govern with a cabinet including both Whigs
and Tories, William, in 1693-1696, gathered about himself a body of
advisers composed exclusively of Whigs, and the principle speedily
became established for all time that a cabinet group must be made up
of men who in respect to all important matters of state are in
substantial agreement. Before the close of the eighteenth century
there had been fixed definitely the conception of the cabinet as a
body necessarily consisting (a) of members of Parliament (b) of the
same political views (c) chosen from the party possessing a majority
in the House of Commons (d) prosecuting a concerted policy (e) under a
common responsibility to be signified by collective resignation in the
event of parliamentary censure, and (f) acknowledging a common
subordination to one chief minister.[41] During the eighteenth-century
era of royal weakness the cabinet acquired a measure of independence
by which it was enabled to become, for all practical purposes, the
ruling authority of the realm; and, under the limitation of strict
accountability to the House of Commons, it fulfills substantially that
function to-day. Its members, as will appear, are at the same time the
heads of the principal executive departments, the leaders in the
legislative chambers, and the authors of very nearly the whole of
governmental policy and conduct.[42]
[Footnote 41: H. D. Traill, Central Government
(London, 1881), 24-25.]
[Footnote 42: On the rise of the cabinet see, in
addition to the general histories, M. T. Blauvelt,
The Development of Cabinet Government in England
(New York, 1902), Chaps. 1-8; E. Jenks,
Parliamentary England; the Evolution of the Cabinet
System (New York, 1903); and H. B. Learned,
Historical Significance of the Term "Cabinet" in
England and the United States, in _American
Political Science Review_, August, 1909.]
*38. Beginnings of Political Parties.*--A fourth phase of governmental
development within the period under survey is the rise of political
parties and the fixing of the broader aspects of the present party
system. In no nation to-day does party play a rôle of larger
importance than in Great Britain. Unknown to the written portions of
the constitution, and all but unknown to the ordinary law, party
management and party operations are, none the less, of constant and
fundamental importance in the actual conduct of government. The
origins of political parties in England fall clearly within the
seventeenth century. It was the judgment of Macaulay that the (p. 039)
earliest of groups to which the designation of political parties can
be applied were the Cavalier and Roundhead elements as aligned after
the adoption of the Grand Remonstrance by the Long Parliament in 1641.
The first groups, however, which may be thought of as essentially
analogous to the political parties of the present day, possessing
continuity, fixity of principles, and some degree of compactness of
organization, were the Whigs and Tories of the era of Charles II.
Dividing in the first instance upon the issue of the exclusion of
James, these two elements, with the passage of time, assumed
well-defined and fundamentally irreconcilable positions upon the
essential public questions of the day. Broadly, the Whigs stood for
toleration in religion and for parliamentary supremacy in government;
the Tories for Anglicanism and the prerogative. And long after the
Stuart monarchy was a thing of the past these two great parties kept
up their struggles upon these and other issues. After an unsuccessful
attempt to govern with the co-operation of both parties William III.,
as has been pointed out, fell back definitely upon the support of the
Whigs. At the accession of Queen Anne, in 1702, however, the Whigs
were turned out of office and the Tories (who already had had a taste
of power in 1698-1701) were put in control. They retained office
during the larger portion of Queen Anne's reign, but at the accession
of George I. they were compelled to give place to their rivals, and
the period 1714-1761 was one of unbroken Whig ascendancy. This was, of
course, the period of the development of the cabinet system, and
between the rise of that system and the growth of government by party
there was an intimate and inevitable connection. By the close of the
eighteenth century the rule had become inflexible that the cabinet
should be composed of men who were in sympathy with the party at the
time dominant in the House of Commons, and that the returning by the
nation to the representative chamber of a majority adverse to the
ruling ministry should be followed by the retirement of the
ministry.[43]
[Footnote 43: For references on the history of
English political parties see pp. 144, 160, 166.]
III. THE SCOTTISH AND IRISH UNIONS
*39. The Union with Scotland, 1707.*--Finally may be mentioned the
important changes in the governmental structure which arose from the
Act of Union with Scotland, in 1707, and the Act of Union with
Ireland, in 1801. Except during a brief portion of the period of the
Protectorate, the legal relation of England and Wales, on the one
side, and the kingdom of Scotland, on the other, was from 1603 to (p. 040)
1707 that simply of a personal union through the crown. Scotland had
her own parliament, her own established church, her own laws, her own
courts, her own army, and her own system of finance. By the Act of
1707 a union was established of a far more substantial sort. The two
countries were erected into a single kingdom, known henceforth as
Great Britain. The Scottish parliament was abolished and representation
was accorded the Scottish nobility and people in the British
parliament at Westminster. The quota of commoners was fixed at
forty-five (thirty to be chosen by the counties and fifteen by the
boroughs) and that of peers (to be elected by the entire body of
Scottish peers at the beginning of each parliament) at sixteen. All
laws respecting trade, excises, and customs were required to be
uniform throughout the two countries, but the local laws of Scotland
upon other subjects were continued in operation, subject to revision
by the common parliament. The Scottish judicial system remained
unchanged;[44] likewise the status of the established Presbyterian
Church.[45]
[Footnote 44: Save that appeals might be carried
from the Scottish Court of Session to the House of
Lords.]
[Footnote 45: J. Mackinnon, The Union of England
and Scotland (London, 1896). This scholarly volume
covers principally the period 1695-1745.]
*40. The Union with Ireland, 1801.*--The history of Ireland, in most of
its phases, is that of a conquered territory, and until late in the
eighteenth century the constitutional status of the country
approximated, most of the time, that of a crown colony. During the
Middle Ages the Common Law and the institutions of England were
introduced in the settled portions of the island (the Pale), and a
parliament of the English type began to be developed; but Poynings's
Law of 1494, by requiring the assent of the English king and council
for the convening of an Irish parliament, by enjoining that all bills
considered by the Irish parliament must first have been considered by
the English parliament, and by declaring all existing statutes of the
English parliament to be binding upon Ireland, effectually stifled,
until its repeal in 1782, Irish parliamentary development. From the
middle of the seventeenth century Catholics were debarred from
membership, and, from the early eighteenth, from voting at
parliamentary elections. The repeal of Poynings's Law in 1782 and the
removal of the Catholic disqualification ten years later bettered the
situation, yet at the close of the eighteenth century Irish
governmental arrangements were still very unsatisfactory. Parliament
was independent in the making of laws, but not in the control of
administration; and it was in no true sense a national and representative
body. The policy urged by Pitt, namely, the establishment of a (p. 041)
legislative union on the plan of that which already existed between
England and Scotland, gradually impressed itself upon the members of
Parliament as more feasible than any other.
An Act of Union creating the "United Kingdom of Great Britain and
Ireland" was adopted by the Irish parliament in February, 1800, and by
the British parliament five months later, and, January 1, 1801, it was
put in operation. Under the terms of this measure the Irish parliament
was abolished, and it was arranged that Ireland should be represented
in the common parliament[46] by four spiritual lords and twenty-eight
temporal peers, chosen by the Irish peerage for life, and by one
hundred members (sixty-four sitting for counties, thirty-five for
boroughs, and one for the University of Dublin) of the House of
Commons. The Anglican Church of Ireland was amalgamated with the
established Church of England, though, subsequently in 1869, it was
disestablished and disendowed. The union with Ireland was in the
nature of a contract, and while in a number of respects the conditions
which were involved in it have been altered within the past hundred
years, its fundamentals stand to-day unchanged. It is these
fundamentals, especially the assimilation of Ireland with Great
Britain for legislative purposes, which are the object of relentless
attack on the part of the Home Rule and other nationalistic and
reforming elements.[47]
[Footnote 46: Styled "the Parliament of the United
Kingdom of Great Britain and Ireland."]
[Footnote 47: An abridgment of the text of the Act
of Union with Scotland is printed in Adams and
Stephens, Select Documents, 479-483; of that of the
Act of Union with Ireland, ibid., 497-506. The full
text of the former will be found in Robertson,
Select Statutes, Cases, and Documents, 92-105; that
of the latter, ibid., 157-164. On Ireland before
the Union see May and Holland, Constitutional
History of England, II., Chap. 16.]
IV. THE NATURE AND SOURCES OF THE CONSTITUTION
*41. The Elusiveness of the Constitution.*--The description of the
British governmental system which is hereafter to be undertaken will
be clarified by a word of comment at this point upon the character
which the English constitution of to-day has assumed, upon the form in
which it exists, and upon the sources from which it has been drawn.
The term "constitution," as is familiarly understood, may be employed
to denote a written instrument of fundamental law which has been
framed by a constituent assembly, drafted by an ordinary legislative
body, or promulgated upon the sole authority of a dictator or monarch;
or, with equal propriety, it may be used to designate a body of (p. 042)
customs, laws, and precedents, but partially, or even not at all,
committed to writing, in accordance with which the machinery of a
given governmental system is operated. The constitution of the United
Kingdom of Great Britain and Ireland is of this second type. The
student who desires to bring together the principles and to tabulate
the working details of the British constitutional order will find no
single document, nor any collection of documents, in which these
things are wholly, or even largely, set down. For the accomplishment
of such a task it would be necessary to review intensively a thousand
years and more of history, to lay hold of a statute here and of a
judicial decision there, to take constant cognizance of the rise and
crystallization of political usages, and to probe to their inmost
recesses the mechanisms of administration, law-making, taxation,
elections, and judicial procedure as they have been, and as they are
actually operated before the spectator's eyes. Foremost among its
compeers in antiquity, in comprehensiveness, and in originality, the
British constitution is at once the least tangible and the most widely
influential among European bodies of fundamental law.
*42. Constituent Elements: the Law.*--The elements of which this
constitution is to-day composed have been classified in various ways.
For present purposes they may be gathered in five principal
categories. In the first place, there are treaties and other
international agreements, which in Great Britain as in the United
States are invested with the character of supreme law of the land. In
the second place, there is a group of solemn engagements which have
been entered into at times of national crisis between parties
representing opposed, or contracting, political forces. Of such
character are the Great Charter, the Petition of Right, and the Bill
of Rights. A third and larger category comprises parliamentary
statutes which add to or modify governmental powers or procedure.
Statutes of this type include clearly the Habeas Corpus Act of 1679,
the Act of Settlement of 1701, the Septennial Act of 1716, Fox's Libel
Act of 1792, the Reform Acts of 1832, 1867, and 1884, the Municipal
Corporations Act of 1835, the Parliamentary and Municipal Elections
Act of 1872, the Local Government Acts of 1888 and 1894, and the
Parliament Act of 1911. In the fourth place there is the Common Law, a
vast body of legal precept and usage which through the centuries has
acquired fundamental and immutable character. The first three elements
mentioned, i.e., treaties, solemn political engagements, and
statutes, exist solely, or almost so, in written form. The rules of
the Common Law, however, have not been reduced to writing, save in so
far as they are contained in reports, legal opinions, and, more
particularly, authoritative decisions of the courts, such as those (p. 043)
on the rights of jurymen, on the prerogative of the crown, on the
privileges of the houses of Parliament and of their members, and on
the rights and duties of the police.
*43. Constituent Elements: the Conventions.*--Finally, there are those
portions of the constitution which have been denominated with aptness
by Mr. Dicey "the conventions."[48] The "law" of the constitution,
comprising the four categories of elements which have been enumerated,
is at all points, whether written or unwritten, enforceable by the
courts; the conventions, although they may and not seldom do relate to
matters of vital importance, are not so enforceable. The conventions
consist of understandings, practices, and habits by which are
regulated a large proportion of the actual operations of the
governmental authorities. They may have acquired expression in written
form, but they do not appear in the statute-books or in any instrument
which can be made the basis of action in a court of law. For example,
it is a convention of the constitution which forbids the king to veto
a measure passed by the houses of Parliament. If the sovereign were in
these days actually to veto a bill, the political consequences might
be serious, but there could be no question of the sheer legality of
the deed. It is by virtue of a convention, not a law, of the
constitution, that ministers resign office when they have ceased to
command the confidence of the House of Commons; that a bill must be
read three times before being finally voted upon in the House of
Commons; that Parliament is convened annually and that it consists of
two houses. The cabinet, and all that the cabinet, as such, stands
for, rests entirely upon convention. To these things, and many others,
the student who is concerned exclusively with the constitutional law
of the British nation may give little or no attention. But by one who
is seeking to understand the constitutional system as it is and as it
operates attention must be fixed upon the conventions quite as
steadily as upon the positive rules of law. If the conventions are not
to be regarded as technically parts of the constitution, they are at
least not infrequently as binding in practice as are these rules; and
they may be even more determinative of the operations of the public
powers.[49] The English constitution is indeed, as Mr. Bryce has
described it, "a mass of precedents carried in men's minds or recorded
in writing, dicta of lawyers or statesmen, customs, usages, (p. 044)
understandings and beliefs, a number of statutes mixed up with customs
and all covered over with a parasitic growth of legal decisions and
political habits."[50] At no time has an attempt been made to collect
and to reduce to writing this stupendous mass of scattered material,
and no such attempt is likely ever to be made. "The English," as
remarks the French critic Boutmy, "have left the different parts of
their constitution where the waves of history have deposited them;
they have not attempted to bring them together, to classify or
complete them, or to make of it a consistent or coherent whole."[51]
[Footnote 48: Introduction to the Study of the Law
of the Constitution (7th ed., London, 1908),
22-29.]
[Footnote 49: Convention occupies a large place in
most political systems, even in countries which are
governed under elaborate written constitutions.
Their importance in the government of the United
States is familiar (see Bryce, American
Commonwealth, 3d ed., I., Chaps. 34-35). On the
influence of conventions in France see H. Chardon,
L'Administration de la France; les fonctionnaires
(Paris, 1908), 79-105.]
[Footnote 50: J. Bryce, Flexible and Rigid
Constitutions, in Studies in History and
Jurisprudence (London and New York, 1901), No. 3.]
[Footnote 51: E. Boutmy, Studies in Constitutional
Law: France--England--United States, trans. by E.
M. Dicey (London, 1891), 6.]
V. THE FLEXIBILITY OF THE CONSTITUTION
*44. Aspects of Continuity and of Change.*--In pursuance of what has
been said two observations, representing opposite aspects of the same
truth, are pertinent. The first is that in respect to the principles
and many of the practices of the English constitution it is
pre-eminently true that, to employ a familiar phrase of Bishop Stubbs,
the roots of the present lie deep in the past.[52] The second is that
the English constitution is a living organism, so constantly
undergoing modification that any description of it which may be
attempted is likely to be subject to correction almost before it can
be completed. At no time, as Mr. Freeman wrote, "has the tie between
the present and the past been rent asunder; at no moment have
Englishmen sat down to put together a wholly new constitution in
obedience to some dazzling theory."[53] On the contrary, each step in
the growth of the constitutional system has been the natural
consequence of some earlier step. Great changes, it is true, have been
wrought. To mention but the most obvious illustration, autocratic
kingship has been replaced by a parliamentary government based upon a
thoroughgoing political democracy. None the less, transitions have
been regularly so gradual, deference to tradition so habitual, and the
disposition to cling to ancient names and forms, even when the spirit
had changed, so deep-seated, that the constitutional history of
England presents elements of continuity which cannot be paralleled in
any other country of Europe.
[Footnote 52: Constitutional History of England,
I., prefatory note.]
[Footnote 53: Growth of the English Constitution,
19.]
The letter of a written constitution may survive through many decades
unchanged, as has that of the Italian _Statuto_ of 1848, and as did
that of the American constitution between 1804 and 1865. No (p. 045)
constitutional system, however, long stands still, and least of all
one of the English variety, in which there exists but little of even
the formal rigidity arising from written texts. Having no fixed and
orderly shape assigned it originally by some supreme authority, the
constitution of the United Kingdom has retained throughout its history
a notably large measure of flexibility. It is by no means to-day what
it was fifty years ago; fifty years hence it will be by no means what
it is to-day. In times past changes have been accompanied by violence,
or, at least, by extraordinary manifestations of the national will.
Nowadays they are introduced through the ordinary and peaceful
processes of legislation, of judicial interpretation, and of
administrative practice. Sometimes, as in the instance of the recent
overhauling of the status of the House of Lords, they are accompanied
by heated controversy and widespread public agitation. Not
infrequently, however, they represent inevitable and unopposed
amplifications of existing law or practice and are taken note of
scarcely at all by the nation at large.