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AN OUTLINE SKETCH OF ENGLISH
CONSTITUTIONAL HISTORY
AN OUTLINE SKETCH OF
ENGLISH CONSTITUTIONAL
HISTORY
GEORGE BURTON ADAMS, Lrrr.D.
NEW HAVEN
YALE UNIVERSITY PRESS
LONDON: HUMPHREY MILFORD
OXFORD UNIVERSITY PRESS
MDCCCCXVIII
COPYRIGHT, 1918
BY YALE UNIVERSITY PRESS
First published, February. 1918
'
PREFACE
It is very likely that the task which I have undertaken
in this little book is an impossible one. Even to sketch
so long a history in so few words seems hopeless, and I
am sure that I have left out many things which other
students of the English constitution will think should
be found here. I have tried to keep in mind in writing
chiefly the desire to show how modern liberty came to
be what it is and what foundations our institutions have
in the past history of the race.
I am indebted to the Editors for permission to use
portions of an article which appeared in the American
Historical Review for July, 1915.
G. B. A.
New Haven,
January 22, 1918.
CONTENTS
CHAPTER PAGE
Introduction ..... 1
I. To the Great Charter .... 12
II. From Magna Carta to Parliament . 42
III. The Beginning and Growth in Power of
Parliament ..... 57
IV. Constitutional Government and Royal
Reaction ..... 80
V. The Tudor Strong Monarchy . . 96
VI. Parliament versus the King . . . 108
VII. The Victory of Parliament ... 126
VIII. The Victory Confirmed ... 141
IX. The Making of the Cabinet . . . 152
X. The Rise of Democracy ... 168
XI. The Progress of Reform ... 189
Where freedom slowly broadens down
From precedent to precedent.
Tennyson
INTRODUCTION
In the course of history there have been two peoples
whose public law and institutions have formed the basis
of many constitutions besides their own and who have
exerted a wide influence upon government almost
throughout the world. In ancient times the Romans
built up by force a great empire which included the
whole civilized world, as they knew it from actual con-
tact, and large regions which they considered barbarian.
Even before their empire was completed the Romans
began to look upon it as divinely founded, preordained
to be the one rule under which all mankind were to be
permanently united. Later Christian teachers adopted
the same philosophy of history, and the idea of the
Roman Empire, eternal and holy, became for centuries
a strong bond of union in Christendom at a time when
most other tendencies were towards disruption. Partly
from this influence and partly from their own intrinsic
worth, Roman law and institutions came to prevail in
almost all Christian nations and in extensive regions
which were never Christian, and even today they in-
fluence more or less strongly the government and law
of nearly half the human race.
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It was in modern times, long after the fall of any real
Roman Empire, that the British Empire began. In the
course of three centuries, partly by conquest and partly
by expansion it occupied the whole of two continents,
North America and Australia, and considerable portions
of two others, Africa and Asia. Into these regions in
natural course English public law and institutions were
carried. One portion of the original empire, the United
States, set up for itself as an independent state at a
time when the constitution had not reached its present
stage. It was an inevitable result that it began a
development of its own, distinct from that of the mother
country, a development of the constitution as it existed
at the point of separation. In consequence the United
States does not possess some of the features of later
growth which we now consider to be most striking in
the British system of government. This fact cannot
obscure, however, the origin of our constitution in the
past history of England, and to the student the depend-
ence historically of our public law upon that of England
is as close as that of our private law.
A fact even more remarkable than the practical uni-
formity of institutions throughout an empire so widely
scattered is the spread of the constitution outside the
boundaries of the empire. In this case by intrinsic
merit and not by physical conquest, almost the whole
world has been brought into the sphere of influence of
CONSTITUTIONAL HISTORY 3
the British constitution. Curiously enough it is the
republics of the world which owe the least in form to
this constitutional model, but even among them the
indebtedness is not slight. Among monarchies the way
of borrowing has been made easy by the treatment of
the sovereign in the British constitution, as will be later
more fully explained, and there is scarcely one to be
found which has not drawn upon it for more or less
essential details.
This borrowing is true even of those monarchies
which approach most nearly the absolutist type and
assert most loudly their independence. In the consti-
tution of the German Empire, for example, while the
essential features of the English constitution are not
expressly affirmed in the written document, they are
nevertheless tacitly implied and in practical operation
even more directly allowed though without true minis-
terial responsibility. The entire English constitution
with all its details of public law and practice could be
carried into effect under the present German constitution
with only one amendment of importance, the constitu-
tion of the upper house and its relation to the lower, and
a really democratic government could be secured by a
new regulation of the right of suffrage. A progress
somewhat similar in the interpretation of the constitu-
tion in practice actually has taken place in the case of
Japan, whose constitution was based originally on that
4 OUTLINE SKETCH OF ENGLISH
of Germany, but which in practical operation has be-
come during the past generation more and more of the
English type. The change has gone so far that an
American scholar who has closely observed Japanese
politics for more than twenty years can say that Japan
now has a fully responsible ministry.
It hardly remains to point out the interest which the
history of such a constitution, the mother of such a
progeny, has for every student, or the special appeal
which it makes to the American. The history of the
formation of the British constitution is a part of our
own history. If it be asked where the history of our
institutions is to be found previous to the middle of the
seventeenth century, there is only one answer to the
question which the historian can give. It is to be found
in England. The history of the long struggle by which
the way was prepared for the clear formulation in the
seventeenth century of those ideas which lie at the
foundation of all the later development is as much our
history as it is of any Englishman. There is to be found
historically the origin of many of those ideas, institutions
and practices which we regard as primarily our own
because they were first worked out into practical form
among us. And it is as justifiable to claim for our
present constitution an origin in the English constitution
of 1399 as it is to claim it for the British constitution
as it now exists. The creation and establishment of our
CONSTITUTIONAL HISTORY 5
judicial institutions and common law, of the supremacy "
of law over the government, of our representative
system, of the popular control of taxation, of the respon-
sibility of ministers of government to the legislature,
and finally of the principle, fundamental to all else, of
the sovereignty of the people, were the work of our
English ancestors.
It may be that we shall not remain an Anglo-Saxon
nation in blood, though the fact should not be over-
looked that down to a generation ago the various race
elements which were mingling here were the same as
those of which the Anglo-Saxon race was originally
composed: Celtic Irish, Gaelic, and French; and
Teutonic German, Scandinavian, and Dutch. In re-
cent years many have come to us from nations far
removed in relationship from either of these groups and
they may contribute largely to the making of the future
American. But it must not be forgotten that, in the
active carrying on of history, race does not mean un-
mixed blood; nor identity of race, identity of blood.
The great history-making races have been of mixed
blood, and if we would find the pure races, if indeed
there are any, we must seek them on the outskirts of
civilization whither they have been pushed by the
stronger races of mixed descent. The tests which
determine race in history are the characteristics of a
civilization : common ideas and institutions, law and
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literature and language, religion and art, a common past
of some significance and common aspirations for the
future. In all these things we are still Anglo-Saxon and
are likely to remain so, the absorptive force is now so
great among us. The constituent elements of our blood
-.may change, but race will not. Our descendants cen-
turies hence are as likely to find their earliest history
in England as we are.
In this sense and upon the constitutional side our
history on English soil begins in the Norman Conquest
of England by William the Conqueror in 1066. He set
up a monarchy the most absolute in Western Europe
at that time and introduced, as the ruling class under
himself, a feudal baronage bound by contract to assist
in the government. His immediate successors in their
effort to carry farther the centralization of the state
in their hands, and to give it constitutional form,
developed institutions and practices, which had existed
for a long time in more primitive form, into our judicial
organization, with its characteristic peculiarities of cir-
cuit courts and jury trials, in which began to form at
once our common law and our equity system. The
success of this royal centralization was so great that it
invited tyranny and under John, near the beginning of
the thirteenth century, a successful baronial insurrection
compelled the king to make concessions. Acting upon
the fundamental idea that the feudal contract limited
CONSTITUTIONAL HISTORY 7
the rights of the king, the barons insisted that he should
promise in a series of particulars, embodied in the Great
Charter, that he would keep the law and that, if he did
not, he should recognize their right to force him to do
so in arms. Within a generation or two, while the special
provisions of the Charter lost their importance, the fun- -v
damental principle that the king must keep the law and A
may be rightfully compelled to do so became the ruling
principle of constitutional development.
In the meantime from another source, more purely
institutional, the representative system in germ had
been introduced. It began at once a rapid growth,
largely because of its practical usefulness in govern-
ment, into the English Parliament. At the end of the
thirteenth century Parliament established its exclusive
right to grant taxes though the right was not maintained
in the future without struggle. In the fourteenth
century from this beginning, Parliament grew in power
by leaps and bounds. It perfected its control of taxa-
tion, secured its right to a voice in all making of laws,
and began its supervision of government policy by
enforcing the responsibility of ministers of the crown
to itself. A brief reaction at the close of the century
towards irresponsible monarchy was checked by revo-
lution, and there followed a period of more than fifty
yeajs of constitutional government almost of the modern
type.
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The sixteenth century was the scene of another
reaction towards despotism, in spirit but not in form,
for the sovereigns found it easier to accomplish their
will through the constitution than against it. And one
great constitutional advance was made in bringing the
church under Parliamentary control. "With the acces-
sion of James I, in 1603, two ideals of government, each
of which had dominated some portion of the past, were
brought into conflict with one another for final pos-
session of the future, the ideals of the supremacy of the
king and of the supremacy of law. This conflict soon
led to the formulation of the doctrine of the sovereignty
of the people, first as the necessary foundation of right
on which to rest the supremacy of law which should bind
the king, and soon after to its practical recognition as
the basis of the constitution.
At this point the constitutional histories of our two
states separate. In England the experiments in the way
of republican institutions which the revolution at the
middle of the century had imposed upon the nation,
outgrowths of past English history developed by Puritan
religious ideas, were abandoned when the historical
monarchy was reestablished. In the simpler conditions
of the small American colonies, democratic institutions
were easier to operate and republican government be-
came the universal rule. In these republics the consti-
tutional experiments of the Puritans, which England
CONSTITUTIONAL HISTORY 9
had abandoned, were continued and developed under
the same influences but with the added influence of new
experiences. By these influences, old and new, our
national government was formed a century later, reveal-
ing on every side its English origin, but at the same
time making important contributions of its own to the
final government of the world, as for one example in
the formation of a nation by the federal union of
separate states.
The English government after 1660 necessarily shows
at any point of time important differences to that which
was developing in America, for England dropped the
Puritan experiments out of its constitutional history.
Its progress after 1660 linked itself on rather with the
constitution as it existed in 1603, plus however the secure
establishment of the sovereignty of the people and the
supremacy of law. The great problem of the future,
as England then faced it, was to work out practical
institutions for carrying on a government in which real
sovereignty should be vested in the representatives of
the nation while in form, for form was unchanged, it
should be vested in the king. This problem America
did not have to face in its little republics, and its solution
in England in the British cabinet system has given us
one of the most striking differences between the two
states. America has the older English cabinet not under
direct legislative control, removable by the legislature
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only through the medieval process of impeachment,
while England solved her problem by dropping impeach-
ment and devising the responsible ministry the cabinet
virtually appointed by the legislature and removable by
it, though in legal formalities all is done by the will and
act of the king.
England is really a democratic republic. If the theory
upon which its cabinet system is based, that changes in
the House of Commons are going to reflect immediately
changes of national opinion in the country, operates in
actual practice, its government is even more directly
under popular control than ours. There would be no
gain for political democracy in a change from a mon-
archy in form of the British type to a republic in form.
On the other hand, the retention of the monarchy in
England as in theory still supreme, as, so far as actually
formulated law is concerned, almost absolute, has been
of the greatest value in the spread of democratic insti-
tutions throughout the world. It has made it easy for
many states to establish true republics without the
necessity of extreme revolution. The sovereign has
found it easier to yield because in form he retains so
much. In the march of the world towards democracy,
the responsible ministry and the resulting position of
the sovereign is probably a contribution of greater
practical value than all else England has done, save
perhaps the idea of the limited monarchy itself and the
CONSTITUTIONAL HISTORY 11
impressive lessons and examples that are so numerous
throughout her history.
These paragraphs sketch in the barest outline the
history which we are to follow in more detail. It is
impossible in any outline sketch to present all of even
the important details of the history of English consti-
tutional growth. I can hope in this essay, however, to
give some definite idea of its beginning and of the great
epochs which shaped its growth and to indicate in the
most essential particulars how it came to be what it is,
and to suggest incidentally the bearing of the different
stages of its development upon modern constitutions.
CHAPTER I
TO THE GREAT CHARTER
The word "constitution" when applied to a state has
in ordinary usage two distinct meanings. In one we
include in our idea all the institutions of the state
general and local, all the organs of government. The
constitution of a state in this sense is the entire bodily
organization through which it performs its functions
as a state. In the other meaning we refer to the central,
or national government only, and in actual usage, for
about a hundred years, we have meant by the term a
national government of a liberal, usually of an English
type. It is in this sense that we may say of a people
that they demanded a constitution, or that a constitution
was granted them or adopted by them, or that they have
or do not have constitutional government. It is in this
sense that I shall use the word in this book, in the sense
of the central or national government only.
If we use the term in its broader sense, including
every phase of public or community action, then the
English constitution like the English nation and the
English language is a composite product. The two chief
CONSTITUTIONAL HISTORY 13
elements which united to form the language are also the
two chief elements which united to form the constitution,
Saxon and Norman French. The invading tribes of
Saxons and Angles who crossed over from the coasts of
Northern Germany in the fifth century to occupy the
abandoned province of Britain found there a population,
mostly Celtic in blood, which had been to a considerable
extent Romanized during three centuries of Roman
occupation. Opinion inclines rather strongly at present
to the belief that a large amount of Celtic blood was
absorbed into the future race, even in those parts of
England which remained in appearance the most Teu-
tonic. However this may be, no amalgamation took
place either in language or in political institutions. In
the end the language became half Latin and borrowed
many Celtic roots, and strong Roman influences modified
and enlarged law and institutions in ways that are still
apparent, but in neither case did this take place during
the age of German conquest and settlement.
We have in this book to do with the character and
constitution of government, and with regard to it the
body of original material, law codes, formal legal docu-
ments, and chronicle writings, from which opinion must
be formed, is happily so large that the facts in regard to
non-Teutonic influence are not open to question. In
some minor matters the influence of the church brought
over from Roman usage things which the Saxons lacked,
14 OUTLINE SKETCH OF ENGLISH
the charter as judicial record or land conveyance and
wills, but these did not affect methods of government
nor the content of the law. The written will was bor-
rowed from the Romans, but not the law of inheritance.
The law which grew up and the constitutions which were
formed during the more than five centuries of the Saxon
period were purely Teutonic, modified only by natural
development during so long a time.
The German conquerors of Britain were not at the
time of their invasion in an advanced stage of political
development. At home they were divided into little
"county" states, without common organization, having
no kings and no national or tribal government. The
shock of the conquest, the necessity of constant defence
and even of constant conquest from the Celts or from
their German neighbors, if they were to survive, forced
upon the colonies established in Britain the creation of
the office of king and the formation of more compact
governments. From this beginning a period of slow but
steady growth and of improvement in the institutions
both of general and local government extends to the
Norman Conquest in 1066, characterized by an increase
of royal power and to some extent of centralization. The
development of the general constitution of the Saxon
state, however, had not kept pace with the similar change
which had taken place in the contemporary Frankish
state upon the continent. It is this comparative back-
CONSTITUTIONAL HISTORY 15
wardness of the Saxon constitution which accounts for
the natural and unnoticed substitution of the Frankish
for it when the Norman Conquest occurred. That the
substitution was unnoticed implies that the lines of
development in the two states had been closely parallel,
and that the Saxon was only a somewhat earlier phase
of the Frankish.
The fragmentary character of the evidence from which
we must learn the constitutional history of the Saxon
state makes it impossible with any certainty to date the
beginning or describe the early forms and early changes
of even the most important institutions. For the pur-
poses of an outline sketch, it is not desirable to express
opinions upon questions in regard to which the most
authoritative scholars are in doubt, and the field of
permanent Saxon influence, local law and local insti-
tutions, lying outside our survey, falls almost necessarily
out of sight.
If then we leave the local government out of our
account and restrict the word constitution to the nar-
rower meaning of the national government, then we
must say that, so far as the elements are concerned
which grew to form any part of the final structure, the
origin is Norman and not Saxon. But this must be
understood to mean the very remote beginning merely.
The essential and distinctive features of the English
constitution, those which have given it its place in the
16 OUTLINE SKETCH OF ENGLISH
world of today and which constitute its great contri-
bution to civil liberty, do not appear in its beginning
but were all the products of later English history, of
the development which took place on English soil.
They are due not to Saxon nor to Norman, but to
English endeavor only.
In historical fact, the beginning was of quite a differ-
ent type from the later constitution, for the government
which was set up in England by the Norman duke,
William the Conqueror, as a result of his conquest of
the country in 1066, was for that day a highly cen-
tralized absolute government. The king was all power-
ful even as compared with the powerful Norman
baronage which settled in England with him. The king
and these barons together constituted all government
above the merely local, and we must not imagine the
existence in the eleventh century of anything that we
should now understand by the term "the people," nor
indeed of the existence of a nation in our sense of the
word. As factors in the public life of the state, people
and nation were still in the distant future. The com-
munity was one of classes, though not of strict caste,
and only the upper classes, barons and clergy who them-
selves were virtually barons, had any influence upon the
general government.
These two features of the public life of England after
the Conquest constitute from our present point of view
CONSTITUTIONAL HISTORY 17
the chief changes which resulted from that event, the
introduction of absolute monarchy and of the feudal
baronage. The Saxon state which was overthrown by
the Normans had been making for some centuries slow
progress towards both these results. The king had been
growing stronger, the country more united, and the
machinery for the government of all parts of it from
the center had been steadily improving. Kings like
Cnut and, potentially at least, Edward the Confessor
were powerful rulers. But with all the progress it had
made the Saxon was still some generations behind the
stage which had been reached by the Norman develop-
ment. It was the necessary result of this comparative
backwardness that in the change which took place the
monarchy which the Norman dukes had established at
home, not a monarchy in name but in all except name,
was transferred to England bodily and put in place of
the Saxon monarchy which disappeared. It might be
perhaps more accurate to say that there was put in
place of the Saxon monarchy another of the same type
but in a more advanced stage of development. But in
either case we are compelled to say that it was the
Norman conception of the office and practical operation
of the kingship, not the Saxon, which became funda-
mental in the English constitution.
So also in case of the feudal baronage. During the
Saxon centuries great progress had been made towards
18 OUTLINE SKETCH OF ENGLISH
those elements of the later feudal system which were
economic in character. The economic conditions which
had favored and even induced the growth of these
institutions through a great part of the Roman Empire
existed in England also and had there produced similar
results. Protection of weaker men and of smaller land-
holdings by the more powerful landlords, some features
of dependent tenure and of private jurisdiction, even
the passage of local public courts into private possession,
were to be seen before the Norman Conquest. But those
- political elements of the feudal system which had
resulted from the transformation of the duties which
the subject owed the state, military service, judicial
obligation, allegiance even, into private duties to an
overlord, those elements which constitute the essential
character of the feudal baronage in the great political
role which it played in the medieval history of Western
Europe, had no existence in England before 1066. Nor
did that which resulted from the growth of political
feudalism, the feudal organization of all public life, the
feudal air and atmosphere which embraced everything,
the feudalization of the state machinery and the position
of the baron, because he was a baron, as the operative
unit in that machinery.
This kind of feudalism was introduced into England
by the Normans, and the government which they set up
was marked by these two somewhat opposed character-
CONSTITUTIONAL HISTORY 19
istics, an absolute and centralized general government
on one side and on the other a powerful baronage.
These two elements of the feudal state were closely
bound together as well as opposed, for it was the
baronage through whom the general government must
be administered, out of whom even the organs of cen-
tralization had to be formed; but also the barons' per-
sonal interests were all bound up with the local instead
of the general, and he might at any moment yield to the
constant temptation of feudalism to emphasize and
enlarge his local independence at the expense of the
state. For two centuries after the Conquest there was
a constantly recurring rivalry and conflict between
these opposing tendencies, the centralizing tendency of
the monarchy and the dividing and limiting tendency
of the baronage.
As yet the powerful Norman monarchy was practical
rather than constitutional. It was not absolute because
law and institutions made it so, for they did not, but
because in military and financial resources it was
stronger than the baronage and because tradition and
prestige and a kind of general support sustained its
power. The problem of immediate constitutional growth
in the following age was the question whether this
practical absolutism could be transformed into the con-
stitution of the state and securely embodied in law and
institutions or whether the limiting and, one must say
20 OUTLINE SKETCH OF ENGLISH
from the point of view of government in the twelfth
century, the crippling tendency of feudalism should be
the one to obtain permanent expression in the English
constitution.
As yet neither king nor baronage had any wide out-
look on the future nor any clear conception of constitu-
tional progress or specific rights. The king had more
regard for the present exercise of power than, for laying
the foundations of its future permanence. The indi-
vidual baron was not prone to regard his share in
public affairs as privilege or opportunity for the exercise
of influence on the conduct of government, but rather
as a burden. He had entered into certain obligations
of public service, in the army, in the central council
which was at the same time legislature and court, and
of money payments on certain infrequent occasions, all
in return for the land which had been granted to him.
These obligations seemed to be personal between himself
and the king. He received his lands from the king.
He promised the king to render these services in return
when he should be called upon to do so. If he was not
called upon in any particular case, he might congratulate
himself on escaping a part of his burden. The relation-
ship between king and man was merely a contract which,
though not often stated in definite legal terms, was
nevertheless definitely understood and regulated by
custom. Under such a contract, a business quite as
CONSTITUTIONAL HISTORY 21
much as a political arrangement, being really a process
of getting government carried on by renting land, these
services of the barons taken together furnished the state
with its military, legislative and judicial machinery, and
with a small part of its revenue. The working classes,
agricultural and commercial, might be occasionally
called upon to pay, but there was no place for them as
classes in the national government.
In such a community ideals of public service were not
high, and the individual would naturally escape gladly
with as little share in public affairs as possible. Nearly
everything was left to the determination of the king.
The state machinery, the state itself, was his private
property. If order and security were maintained
throughout the land, the government was good, the king
was a good king. No one demanded anything more and
the king, fulfilling this duty, might look upon the
kingdom as his own, as the baron did upon his manor.
Such was the exceedingly simple constitution of the
feudal .state. For carrying on the ordinary operations
of government, for conducting the public business of the
country and looking after all the relations between the
individual and the state, there were in reality but two
regular and permanent institutions. One of these
emphasized decidedly the local side of things and was
the organ through which the central government exer-
cised its functions and secured its rights in the terri-
22 OUTLINE SKETCH OF ENGLISH
tonal subdivisions of the state, the. sh.griff. The other
was especially concerned with the central government,
indeed we may almost say that it was in itself alone the
central government, for it was through this institution
that chiefly, though not in absolutely every case, the
king's prerogatives were exercised. This was the central
or national assembly, occasionally meeting and called
often the great Council, together with its smaller and
more permanent form called simply Council. To either
form the name curia, or curia regis, was occasionally
applied.
We do not know just how, nor at what point in Anglo-
Saxon history, the office of sheriff originated. It may
very possibly have begun as an economic office only, a
kind of stewardship of the royal domains in the local
divisions of the state, as the name "shire-reeve," steward
of the shire, implies. Afterwards by degrees, with the
increasing power of the king, it may have been made to
represent him for local purposes in more and more of
the functions of government. That is what tha sheriff
was at any rate at the date of the Norman Conquest:
the representative of the king in executive and adminis-
trative, judicial and military matters, and in all his
financial interests, in the shires into which the state was
divided. Such an office hardly seems to us to constitute
a sufficent bond of centralization, but it was effective in
the state of those days, and the Normans had nothing
CONSTITUTIONAL HISTORY 23
better of their own to put in its place. They had an
office of their own in fact almost identical in character
which had been developed in the Frankish kingdom and
which they called "vice-comes," vice count or viscount,
because the chief executive which this office represented
locally in their country was the count. The duke of
Normandy, as he came to be called in the next genera-
tion, was count under the king of the Franks, the count
of Normandy, an office in the Frankish kingdom not
very unlike that of sheriff, and the viscount was his
deputy in the local subdivisions of Normandy. It was
therefore easy for the Normans to continue the English
sheriff in his office and functions as they found him at
the Conquest. In fact the stronger kingship which they
established increased the importance and power of the
sheriff, and the century which followed 1066 was the
great age in the history of that office, which began to
decline when more effective means of centralization were
brought into use. In language the Saxon term "sheriff"
survived in popular use, while the Norman word
"county" took its place beside the Saxon "shire."
The Anglo-Norman central Council was an institution
of quite a different type, and yet it shows even more
clearly perhaps the undifferentiated character of the
government. In form and appearance, and in the main
in the functions it performed, it seemed, as clearly as
in the case of the sheriff, identical with the Saxon
24 OUTLINE SKETCH OF ENGLISH
national assembly which had preceded it. It was like that
an assembly of the great men of church and state, of the
household officers of the king, and in exceptional cases
of any whom he might wish to summon. But in reality
the Norman Conquest had introduced into the assembly
a new controlling principle of composition which makes
a decided institutional change and compels us to find its
true ancestor in the Frankish, not in the Saxon state.
That new principle of composition was feudal. The great
Council was feudalized, not in function but in structure.
The great men of church and state in attending it per-
formed a duty which they owed no longer to the state,
nor to the king as sovereign, but to the king personally
as the lord of vassals, just as their own vassals attended
their exactly similar councils. The rare exceptions
which we find in individual cases to this feudal principle
in the membership of a given assembly were survivals
not of an earlier characteristic of the assembly but of
an earlier function of the king and a sign of his preroga-
tive power in the government of the state. The same
institution in both the essential and the exceptional
characteristics, with of course occasional local peculiari-
ties, is to be found in all the contemporary feudal states
which formed within the Frankish empire, and to deny
the feudal character of the Anglo-Norman great Council
because of its similarity in superficial appearance and
function to the Saxon assembly would be to deny the
CONSTITUTIONAL HISTORY 25
feudal character of every institution of the kind in
Europe and the Latin Orient.
Before trying to get an idea of the part which this
institution played in government, it is necessary to
understand as clearly as possible the difficult fact that,
to the men who were acting in it, its two forms, the great
and the small Councils, were identical in everything
except size. The small Council was the active body in
the intervals between the meetings of the great Council,
but it was not a committee which the larger body had
clothed with certain of its functions to be performed
under responsibility to itself. It is very natural for us
to think of it as a committee, but no one at the time had
such an idea of it. It was the larger body shrunk to the
smaller dimensions determined by those who were imme-
diately connected with the government or attendant,
perhaps accidentally even, on the king. But size had
nothing to do with function, and in the business of the
state the small Council could do all that the great
Council could do. In fact the steady and permanent
institution by which day by day the business of the
Anglo-Norman state was operated and supervised was
the small Council. The unity of this institution in its
two forms is somewhat difficult for our more analytical
minds to grasp clearly, and yet the fact is exceptionally
important because this undifferentiated institution, in
which most functions of that primitive government were
26 OUTLINE SKETCH OF ENGLISH
centered, became in time through each of its forms the
mother of a numerous progeny of institutions existing
in the modern state. The fact that all functions and
\ powers of the central body belonged alike to each of the
I forms in which it acted reveals itself also in the later
' history in a tangle of crisscross institutions and opera-
i tions which is most puzzling and misleading unless the
original identity is clearly held in mind.
As the chief machinery of actual government and a
part of the constitution, the essential fact regarding the
Council is that it exercised or supervised the exercise of
all the functions of the state without making any
institutional distinction between them. It was the
supreme legislature on those infrequent occasions when
the slight business of the community demanded new
legislation or the modification of existing law. It was
the highest court of law in which the most important
cases, or the cases of the most important persons, were
tried and decided, it might be in the same session and
by the same assembly which perhaps immediately before
had changed the law of the land. It was in supreme
control of the executive and administrative activities of
the state. To it all executive and administrative officers,
high or low, were responsible and, when we attempt to
collect instances of the legislative action of the Council
in this early period, we find that a large proportion of
CONSTITUTIONAL HISTORY 27
them were in reality in the form of administrative order's
or changes made in administrative practices.
It was upon this side of the Council's activity that
the first step was taken towards differentiation in this
early period or, as we may say, the first step towards fo-y
the machinery of the modern constitution. The financial 107 &*
i *+*
business of the state began, at some unknown time, to
be set apart from the other business of the Council and
to be carried on in sessions specially devoted to the
purpose. It was the business of the Council, since it
was the central organ of the government, not merely to
get in the revenue of the state in cash and to open con-
tinuing accounts by which to check the financial activi-
ties of the sheriffs in their respective counties, but also
to supervise indirectly all the activities of the sheriff
in administrative and executive work. Undoubtedly
where the particular matter was one affecting the whole
country, like a general feudal levy or like the complaints
against the sheriff coming up from all England about
1170, the great Council instead of the small would act
in the case, but always so far as we know and probably
from the beginning, it was the small Council which
supervised the collection of the revenue.
This financial business being quite specific in character
could easily and first of all lines of business be set off by
itself and considered in sessions specially devoted to the
purpose. The Council meeting in such sessions was known
28 OUTLINE SKETCH OF ENGLISH
as the Exchequer and, in what was probably a second
stage of its history, it came to be considered that a special
responsibility for attendance and action rested upon the
official members of the Council whose offices had to do
with finances. This stage was reached at least as early
as the reign of Henry I, soon after the beginning of the
twelfth century. By slow degrees the Exchequer came
to be more and more highly specialized and limited to
its one field of work, but traces long remain visible to
us of the fact that it had once been the small Council
and capable of acting in an Exchequer session upon any
of the business which the small Council had to do.
The development of the Exchequer was the most
important purely institutional change in the first cen-
tury after the Conquest, but in the meantime two
changes had been taking place so gradually as not to
have been clearly perceived at the time, but leading to
constitutional results which were permanent. One was
the increase in the practical power of the king, the other
was the growth of the church in practical independence
within the state. In both the cases I use the word
' ' practical ' ' to mean that these changes were not yet, or
only in small part, embodied in law and constitutional
form.
Monarchy and baronage stood over against one an-
other after the Conquest as the two most powerful
forces of the time, and the king was the stronger of the
CONSTITUTIONAL HISTORY 29
two. It was not, as has been said, the constitution which
made him strong. He was the strongest power in the
state because he possessed more of the practical elements
of strength, the greatest military power, the largest
financial resources, and the highest prestige, and because
the law and custom of the time allowed him certain
decided advantages over anyone else. And yet there
was something more that went to make his position than
these things. Even on the continent where feudal dis-
integration had reached its extreme limit, that age had
kept a conception of the office of king which we can
hardly call a theory or ideal of kingship, it was held with
so little general consciousness, but which was so far as
it went definite enough. The king was among men a
representative of the divine government. The supreme
objects of his rule should be those which the divine
government seeks. His great duty was to make peace V'
and justice prevail, to secure for his subjects the un- I
disturbed enjoyment of their rights. The idea was i
derived largely from the Old Testament, with some \
traditions of the Roman monarchy through Charlemagne,
and some little speculative influence from the scanty
literature inherited from the ancient world. It was no
full-blown theory of government and probably it was
little in the minds of baron or burgher except on special
occasions. Men did in those days very little abstract
thinking about their government and made no effort to
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shape it according to any definite plan. But the idea
of the king's duties in the state was accepted generally
enough to make the king in practice something more
than a mere lord of vassals, and to give him strong
foundations on which to build a centralized and anti-
feudal power. That there was any building with plan
and intention towards such an end during the first
century after the Conquest, we cannot confidently say,
but there was some growth in that practical power which
has been described above.
William the Conqueror's son, William Rufus, the
second king of the Norman family, exercised his power
with such harshness, or took such extreme advantage of
his opportunities to increase it, as to excite the hostility,
at least of those who wrote the books, and twice there
were baronial rebellions against him without success.
He was too strong to be opposed. His reign lasted but
little more than ten years, but in that time, just how
we do not know, he was believed by his own generation
to have pushed the feudal rights of the king to illegal
extreme at the expense of his vassals. His sudden death
gave the barons an opportunity of which they took
instant advantage. His brother Henry needed their
support to secure the throne and as their price they
demanded formal promises of him that in the legal
relations between king and baronage there should be a
return to the days of William I. In making this demand
CONSTITUTIONAL HISTORY 31
and putting the king's answer into written form in
Henry's so-called coronation charter, the barons fell
back in principle upon the fundamental fact of feudal-
ism already mentioned, the contract which created the
relation between lord and vassal. The charter, which
consisted of definite promises on the part of the king
as to the character of his government, implied an
equally definite engagement on the part of the barons
to support him as king, and was a specific contract
within the more general and unexpressed contract which
created the feudal relationship.
In the feudal system both as a practical way of getting %
certain things done and as a body of law, the controlling
idea was that of contract. It was by a contract that the |
relationship between lord and vassal was created, and
it was within the limits of that contract and as deter-
mined by it that the feudal system, as a system of
government, was operated. The sovereign of the feudal
state in getting his army, or legislature, or court, or in
collecting such money payments as the feudal relation
provided for, had no legal right to exact more service or I
larger sums than the contract between him and his /
vassals allowed as fixed and interpreted by custom. On
the other side also the king assumed in this contract
certain obligations towards his vassal, in some directions
definitely understood, with reference, for example, to
the right of the vassal to be tried by his peers, and in
32 OUTLINE SKETCH OF ENGLISH
other directions more or less vague, but comprised in
the ideas of justice towards the vassal and protection
of him in his rights. It was upon this conception of the
obligations by which the king was bound that the barons
acted in securing the charter from Henry as a cheek on
the increasing royal power.
Here again it is not likely that lord or vassal had this
idea of a ruling contract constantly in mind, but it was
held clearly enough to act as a decided check on the
development of an absolute monarchy, when the appre-
hension of the powerful Anglo-Norman baronage was
excited, and to become ultimately the first stepping stone
towards the constitutional or limited monarchy. In the
coronation charter of Henry I there is no explicit refer-
ence to contract, as there is none in the ordinary codes
of feudal law, or in the more extended and specific
charter of King John which we call Magn& Carta. But
the coronation charter sets forth in its first clause as the
reason of its existence the oppression of the kingdom by
unjust exactions and unjust customs exactions and
customs, that is, which had no right to be. Clearly it
was possible to distinguish between the things to which
the king had a right and those to which he had no right,
and the king as clearly admitted that unjust exactions
and customs ought to be abandoned.
But the coronation charter of Henry I was only a
momentary check in the growth of a stronger royal
CONSTITUTIONAL HISTORY 33
power. In the end it did no more than make a record \
for future use of the fact that in the method of the
charter and in the principle of contract on which it
rested there was a way provided to curb the king and
set limitations to his absolutism. Henry I proved to be
an even stronger king than his brother William had
been and before long he reverted to the practices which
in the charter he had promised to abandon. Those
particular exactions to which, we judge from the charter,
the barons objected most bitterly, like the extreme
exercise of the rights of wardship and marriage, became
permanent rights of the crown, and in the days of his
grandson were a recognized part of English feudal law.
In the days of that grandson, King Henry II, the
absolute monarchy which was forming made an advance
more rapid and more decisive than any before that time,
because it took a long step towards embodying the royal
absolutism in fixed constitutional form. The problem
before King Henry when he came to the throne in 1154
was the perpetual problem of the middle ages, of main-
taining order and security everywhere throughout the
country and of making the king's justice, his power to
enforce right law, feared in every local subdivision of
the state. It was the problem not merely of holding the
people of the country to the law, but even the local
officers of the government whom the opportunities of
distance and difficult intercommunication were con-
84 OUTLINE SKETCH OF ENGLISH
stantly tempting to use their offices for their personal
advantage, or even to turn them into personal posses-
sions annexed to their local territorial lordships. The
king could not be everywhere at once, and yet some form
of direct contact between the central and the local, some
immediate fear of the king's hand everywhere, was a
vital necessity.
This problem was solved by making regular and per-
manent a practice which had been occasionally used
since the Conquest and which had been inherited by the
Normans from the Frankish monarchy. From the
central Council, the small Council, which was, as we
have seen, the institution supervising the executive and
administrative work of the government and at the same
time a court of law trying cases, a commission of its
members was sent to groups of counties throughout the
kingdom to hold in each county of the circuit before the
local county court a session, not of the county court, but
of the central curia regis. William the Conqueror had
made use of this practice to collect in each county the
material for his great record of the taxing possibilities
of England, the Domesday book, and even in his reign
it was frequently used for the local trial of law suits by
the curia regis. Now Henry II determined that the
central supervising body of the kingdom should be
carried by this expedient into every county, with all its
powers and prerogatives, to hold a session by the help
CONSTITUTIONAL HISTORY 35
of the local machinery on the spot where local evidence
was more easily got and protection more effectively
offered against the local fear of the powerful offender.
It was a most efficacious plan for that day of undiffer-
entiated institutions.
At the same time great improvements were made in the
procedure to be operated by these new courts both in
criminal and civil cases, improvements which begin an
age of rapid growth in the history of our judicial insti-
tutions. It was indeed upon these institutions, upon
the organization of our courts, upon the development
of the jury and of our judicial processes, and upon the
formation of the common law and the system of equity,
that this innovation was to have its most permanent
effect. But to men in that age another effect was more
noticeable and this is in the constitutional history of
the country more noteworthy. This new institution
added to the constitution of the Anglo-Norman state, to
the practical machinery of government, a new engine
of centralization, far more immediate and effective than
any which existed before. The controlling central power
was brought by it into direct contact with every free-
holder in the land through its use of the county court,
and thus bound together all parts of the country distant
and near under a common supervision. The king's hand
was laid upon every man. It was the first step and a
86 OUTLINE SKETCH OF ENGLISH
long step towards embodying the practical Norman
absolutism in constitutional forms.
From such a beginning it would not be difficult to go
on to add to a royal control of administration vested in
fixed forms, an equally fixed royal legislative right and
an unchecked control over the new processes of taxation
which were soon to be put into use. It was a first step
towards a rounded constitution embodying in fully
developed machinery a royal control of all the functions
of the state. This is what actually occurred in France.
The singular contrast which the institutional history of
these two countries presents was long ago pointed out.
In details of constitutional life, France and England of
these early centuries were practically identical. France
was also a feudal state. The means of carrying on the
government, the machinery of the state, were furnished
by the feudal services of the baron ; the operative agent
of the government was the baron. Feudal law was the
same, the feudal practice and spirit controlled life
equally in the two states. In both states the same vague
ideas as to the royal duty of justice prevailed, derived
from the same past and expressed in a coronation oath
practically identical. And yet out of an institutional
situation hardly to be distinguished, France emerged at
the close of the middle ages an absolute and England a
limited monarchy. A hundred and fifty years ago one
of the first foreign writers who undertook to describe
CONSTITUTIONAL HISTORY 37
the English constitution for the benefit of other peoples
declared that the explanation of this peculiar fact is
to be found in that other fact that England began its
history with an absolute and France with an almost
powerless monarchy. This declaration of the clever
French philosopher is much more than a striking para-
dox. It may have been in his case a brilliant intuition,
but it might have been a sober generalization. As in the
course of English history other elements in the state
arose to power beside the king and slowly won their way
to influence upon the government, what they gained was
taken from the king and his uncontrolled action by
degrees hemmed in and limited. In France step by
step the barons, who had been the strongest element in
the feudal state, were subjected to control and what
they lost was added to the king, by whom from the
beginning it had been in theory possessed.
If this explanation of the constitutional history of
these two states may perhaps be thought too simple for
the tangled maze of facts which they present, there still
does remain this constitutional situation clearly con-
trasted in one direction at the beginning and in the
opposite direction at the end of their medieval history.
For the Anglo-Norman kingship, if not an ideal, cer- j
tainly was a practical absolutism. The king was not
merely the strongest element in the state but the
constitution furnished no means by which a will in
88 OUTLINE SKETCH OF ENGLISH
opposition to him could express itself except by dis-
obedience and rebellion, the feudal last resort. But
even with this recognized possibility nothing but a
combination of barons against the king could hope to be
successful, and no combination even was successful for
a century and a half. In the days when feudalism was
at its height the right of the baronage to resist the wrong-
doing of the king was apt to be looked upon as an indi-
vidual right, the right of an individual only, and some
beginning of corporate consciousness, some recognition
of the fact that the rights of the class together were
threatened by royal innovations, was necessary before
combined action of constitutional significance was pos-
sible. But that came slowly everywhere, and nowhere
in the Europe of that date outside England is there
to be found so strong and so centralized a state in the
first years of the thirteenth century.
But it was apparently not from the centralizing
aspect of Henry's changes that the impulse came which
put a check upon this development. It came from the
conduct of a king who ruled, or who was believed by his
time to rule, as William Rufus had done ; it was because
he stretched or seemed to stretch the royal rights to
illegal limits in his demands of money and of services.
These at least are the reasons which Magna Carta seems
to give us why the barons objected to the changes
of Henry II, and not so much the increased centrali-
CONSTITUTIONAL HISTORY 39
zation resulting. The interference of his judicial pro-
cesses with the jurisdiction of their baronial courts
especially excited their opposition and seemed to them
an illegal usurpation, rather it would seem because it
deprived them of one of their important property rights
than because it made the king more powerful.
But before taking up the Great Charter, which re-
sulted from the barons' opposition to the king, it is
necessary to notice the other practical development
referred to above which was destined in the end to have
important constitutional consequences. When Henry II
began his reform, he found that the most serious imme-
diate obstacle in his way was the fact that his clerical
subjects, persons in holy orders, were not within the
jurisdiction of his courts. This had not always been the
ease. In Saxon days cleric and layman had been judged
in the same tribunals. But the growing ecclesiastical
monarchy of Christendom, a real state with all the
organization and machinery of a state, could not be
satisfied with that arrangement, and William I, who
sympathized with the purposes of the great reformation
which placed Gregory VII on the papal throne, gave to
the church of England after the Conquest its independ-
ent courts. No serious consequences from this step were
felt at once. It is perhaps true at a time when both law
and judicial organization were somewhat crude and
undeveloped that the separation of the two kinds of
40 OUTLINE SKETCH OF ENGLISH
courts was an improvement. At any rate it would seem
to the men of that time that in the change made by
William I the state surrendered nothing of its own
normal jurisdiction. It turned over to the church courts
jurisdiction over ecclesiastical questions and cases only.
The church, however, which confronted Henry II was
relatively much stronger than it had been under William
as a result of two changes which had taken place in the
intervening century. In the first place the conflict over
investitures, over lay appointments to ecclesiastical
office, though settled by a compromise under William's
son, Henry I, had brought about a great increase of the
practical power of the church as compared with the
state, not in England merely but throughout Europe.
The church did secure more control over the filling of
its offices which gave it a more complete and more stable
organization. In the second place the church in Eng-
land had taken advantage of the doubtful title and weak
control of Stephen, Henry I 's successor, to draw into its
courts all cases affecting clerics, even those naturally
belonging to the state courts like criminal cases and
questions concerning the ownership of land. It had gone
far beyond the position in independent jurisdiction
allowed it by William I.
As a result of this stronger position of the church and
of the vigorous leadership and then the unfortunate
murder of Thomas Becket, the archbishop of Canterbury,
CONSTITUTIONAL HISTORY 41
Henry II was not able to accomplish his entire pro-
gramme of reform but was obliged to surrender to the
church courts a part of the criminal jurisdiction which
it had usurped though naturally belonging to the state.
The church did not succeed in retaining all that it had
attempted under Stephen, but it gained much in prestige
and in power, and it passed into the thirteenth century
as an independent government, almost or quite as strong
as the state, with the support behind it of a great inter-
national monarchy whose authority extended over the
whole of Europe.
CHAPTER II
FROM MAGNA CARTA TO PARLIAMENT
The Anglo-Norman absolute government of the state
reached its climax in the reign of King John, youngest
son of Henry II and brother of Richard the Lion Heart,
which covers the first sixteen years of the thirteenth
century. In English literature and history John has
lived to the present day as the wickedest of tyrants, with
scarcely one redeeming trait of character. It is probable
that the traditional picture is a bit too dark. Something
may be said for John, at least in the way of intellectual
ability and statesmanship, and much for the strength of
his position. He defied the thunders of the imperial
church under the most powerful of medieval popes,
Innocent III, and maintained his defiance unshaken for
years, and it was further years before circumstances
made it possible for the barons to curb his power. But
the indictment of character and the accusation of tyr-
anny are too well supported by contemporary evidence
to be waived aside. His disregard of all rights that stood
in his way, the cruelty of his punishments, and his acts
of personal oppression led, when an opportunity offered
CONSTITUTIONAL HISTORY 43
towards the close of his reign, to a combination of the
barons against him which was too strong to be resisted.
These were unquestionably the immediately effective
causes which led to the successful insurrection. It is
very likely that without them the opposition to the
institutional changes which had been made by John's
father could not have produced united action, though
certainly John by his own arbitrary conduct had added
acts of doubtful legality, not known to his father's reign
nor to his brother Richard's, but involved surely enough
in any logical development of the innovations of Henry
II. But by this time the baronage as a .whole had been
taught to recognize the legal foundation of their cause
as against the king which existed in the law. They saw
also how difficult it was to bind a king of John's char-
acter by any ordinary promises. Consequently the con-
cessions which they demanded of the king they threw
into the written form of a legally binding grant the
Great Charter, and they seem to have been careful,
except in a few cases, to demand nothing which they
could not justify in the law as it existed. By this
demand and by the documentary form which they gave
to it, specific and permanent in character, this baronial
opposition to the highest expression yet given to the
Anglo-Norman absolute monarchy took the first step
towards the limited monarchy.
The barons themselves had no such idea. They did
44 OUTLINE SKETCH OF ENGLISH
not intend, or even suspect what they really did. They
had and could have no such idea as that conveyed to us
by the words constitutional, or limited monarchy, a
conception still in the distant future and quite beyond
the horizon of the thirteenth century. They based their
action on the fundamental principle of feudalism which
has already been stated. The king had broken the feudal
contract. He had no right to do many of the things
which he had done. In their distrust of any mere
promises which he might make, they determined to bind
him for the future in the strongest way possible to them,
and they had before them, recalled to their minds by
the archbishop Stephen Langton, the precedent of
Henry I's coronation charter, which that king had been
obliged to grant to meet a similar demand, and the text
of that legal document. They accordingly drew up a
deed of gift, based on the form for the most unreserved
conveyance of land then in use, in which the king bound
himself and his heirs to respect for the future for them
and their heirs their legal rights and to grant them in
perpetuity the liberties which they insisted belonged to
them. In it he also agreed, as another derivation already
spoken of from the same feudal right that, in case he
should violate their rights in spite even of his promises
made in this form, they might make war upon him and
force him to regard the law.
This deed of gift was Magna Carta, the Great Charter
CONSTITUTIONAL HISTORY 45
of English liberties, whose seventh centennial we have
only recently passed. If we regard it as belonging to
the year 1215 and disregard what it has come to mean
to later times, Magna Carta was in substance a feudal
document. It states but little more than feudal law,
and it pledges the king to recognize the rights of the
barons merely and their vassals. Modern scholars have
failed to find in it any of the great principles or insti-
tutions of English liberty on which we especially pride
ourselves: Parliament, consent to taxation, the jury
trial, Habeas Corpus; and they have therefore said that
the influence of Magna Carta in the growth of the Eng-
lish constitution and of English liberty has been greatly
overstated. The conclusion does not follow from the
premises. None of the principles named is in the '
</ rt.
charter, and yet it was by a very true instinct that the
English nation recognized for centuries that the Great
Charter was the palladium of their liberties, and in a
very right sense it was actually the beginning of the
English constitution considered as limited monarchy.
Q
For what the Great Charter did was to lay down two
fundamental principles which lie at the present day, as
clearly as in 1215, at the foundation of the English
constitution and of all constitutions derived from it.
First that there exist in the state certain laws so
necessarily at the basis of the political organization of
the time that the king, or as we should say today the
46 OUTLINE SKETCH OF ENGLISH
government, must obey them; and second that, if the
government refuses to obey these laws, the nation has
the right to force it to do so, even to the point of over-
throwing the government and putting another in its
place. That this second principle has never been dis-
tinctly affirmed in legal form since the thirteenth cen-
tury is not evidence against its continued existence.
Even the thirteenth century expressed it only as a right
of insurrection to force conformity to the law, not of
the deposition of the king, but in the great crises of the
past when the constitution was seriously endangered, the
nation never hesitated to act upon the extreme right
logically involved in the supremacy of the law. We
have only to remember the Declaration of Independence
with its reiterated statements, that what the king of
England had been doing was an infringement of the
legal rights of the colonists as Englishmen, until the
point had been reached when he was "no longer fitted
to be the ruler of a free people." The principle upon
which the Declaration of Independence rests is exactly
the same as that upon which Magna Carta rests, stated
in modern terms by colonists, i.e., by a portion of the
nation which could not undertake to revolutionize the
whole. In every age of English history in which the
question has risen, in every crisis in the development of
English liberty, this double principle is that upon which
our ancestors stood and upon which, as a foundation,
CONSTITUTIONAL HISTORY 47
they built up little by little the fabric of free govern-
ment under which we live. The specific and individual
legal provisions which Magna Carta stated may soon
have disappeared in the changing social conditions of
the following generations, but the sound judgment of
I nL
the nation insisted that successive kings, one after the
other, should pledge themselves to be faithful to the
Charter, some of the kings many times over, and should
confirm to them the liberties which it granted. In these
demands they did not intend to pledge their king to
laws which had become obsolete, but to that fundamental
conception which underlay all special provisions, a con-
ception of the relation of the government to the governed
which has become almost proverbial in the Anglo-Saxon
world a conception not expressed in the definite terms
of today, which would have been impossible to the thir-
teenth century, but clearly enough implied. These
renewed pledges and confirmations continued almost to
the end of the middle ages, until the supremacy of Par-
liament had come to be rather clearly recognized and the
chief lines of the modern constitution quite distinctly
laid down. Then in the fifteenth century, when we may
say the idea of a constitutional monarchy had become
for the time at least a habit of the English mind, they
ceased.
If then we consider 1215 as the date when constitu-
tional monarchy began and Magna Carta as the first step
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towards it, in the next succeeding centuries two other
steps were taken. First, the organization of a con-
tinuous and consistent opposition, to use the term which
has become technical in modern constitutional history,
whose practical purpose was, however unconsciously
entertained or even misunderstood, to protect the funda-
mental principles of the Charter from the encroachments
of the king; and second, the carrying on of a series of
experiments in order to devise some form of institutions
in which this fundamental principle of the national
control of the king's government might be permanently
expressed or, to state the object in more modern terms,
in which a limited monarchy might be constitutionally
embodied. For an idea, or an ideal, has little influence
upon the actual everyday life of the world until it has
been expressed in workable institutional form, and in
truth the work of the great institution making races of
history has been less to cherish or to promote ideals
than to invent and improve workable forms.
In the history as it actually occurred, this attempt
which I have put second, to find constitutional forms
for a limited monarchy, in reality began first, for the
first experiment made in that direction was in the Great
Charter itself. In the famous sixty-first clause of that
document, a standing committee or board of twenty-five
barons was constituted whose business was to be to bring
to the attention of the king any violation of the Charter
CONSTITUTIONAL HISTORY 49
and to try to induce him to remedy the matter. If he
would not, it was then their right to make war upon
him with the support of all the nation until he should
be brought to consent. Then he was to be obeyed as
king as before. In other words the committee of barons
was first to decide that the Great Charter had been
violated, plainly a judicial act, and then as a last resort
they were virtually to suspend the king from office, for
in making war upon him in the name of the Charter
they assumed that they were acting for the community
more truly than he.
This was a crude and clumsy expedient, but it is to
be remembered that it was the first attempt ever made
in history to put into constitutional form the principle
that the government must obey the fundamental laws of
the state. There was no earlier experiment from which
the men of 1215 could learn. There was no theoretical
discussion of the institutional forms of a limited mon-
archy in the literature open to them. Nor should its
clumsiness conceal from us the fact that in this first
attempt is clearly struck the keynote of English con-
stitutional history and foreshadowed, faintly perhaps
but truly, what is its final triumph and greatest glory,
for this was in truth an attempt to find a way of enforc-
ing the fundamental law upon the king without the
necessity of civil war and revolution, with civil war and
revolution as the last resort only. That is in very briefest
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form of statement what the Anglo-Saxon constitution
is; it is a perfected method of holding the government
responsible to the will of the nation without the constant
danger of civil war.
Magna Carta considered in itself accomplished noth-
ing. Apart from a few clauses, mostly of temporary and
special interest, it stated only principles of feudal law,
and the feudal system was at the moment upon the edge
of its rapid decline. What Magna Carta was to be in
the future of English history would depend upon the
interpretation given to it in the next age and especially
upon the impression, permanent or otherwise, made by
its fundamental principle that the king may be legally
held to obey the law.
In the fifty years which followed the Great Charter,
there was begun that perennial struggle which char-
acterizes English history for four hundred years between
the endeavor of the king to free himself of all restric-
tions, and the endeavor of the nation to protect and
secure its own interests. In the thirteenth century this
struggle resulted in the second attempt to put the
responsibility of the king into constitutional form, by
removing temporarily in 1258 from all power a king,
Henry III, who could not be trusted and vesting the
government in officers and commissions appointed by
and responsible directly to the Great Council or, to use
the name by which it was then beginning to be called,
CONSTITUTIONAL HISTORY 51
to Parliament. The Provisions of Oxford, as this con-
stitution was called, marked a great advance in half a
century from the crude beginning of clause sixty-one
of Magna Carta, but it was still far below the standard
of the modern constitution, and it was a short-lived
experiment only. It did, however, establish a precedent
for future experimenting in the same direction, and it
has a special interest for us in the fact that it reveals
a blind reaching forward towards what was to be one
of the highest achievements of the modern constitution
ministerial responsibility to Parliament. The modern
principle, however, growing out of wholly different
conditions and making its way slowly and "without
observation," has no historical connection with the
Provisions of Oxford nor with any other medieval
experiment.
The Provisions of Oxford were short lived and their
permanent value was merely as a precedent of institu-
tion making and a renewed assertion of the fundamental
principles of Magna Carta. But the same reign, that
of Henry III, son and successor of John, saw the
beginning of two new historical factors which were to be
of permanent and powerful influence in the making of
the English constitution. As one of these, we may date
from this reign the entry of the nation into public
affairs as a determining force, the consciousness of a
corporate and organic whole, the community. For the
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second, we may date from this reign also the beginning
of Parliament.
In trying to make clear just what happened in the
rise of a national consciousness, it is easy to over-
emphasize and overstate what occurred. The modern
democratic nation, with city and country on an even
plane, and all classes with equal political rights and
theoretically with power to determine everything, could
have no existence in the middle ages. The medieval
national community was still too much a matter of
separate classes. Each group had still its own special
interests which hardly allowed a really organic unity
to form, or every man to be interested in at least some
phase of common public affairs and to take part to that
extent, if not further, in determining their trend as in
the modern state. All that we can discover in the reign
of Henry III is the beginning, still very faint, of that
ultimate result. And yet what does take place means
then no small change. It means the rise even at the
moment of a new political influence and a new conception
of the state.
The feudal system, as a form of organization given
to the state, was in every feature of its political opera-
tion falling to pieces in the thirteenth century. Its
great service in holding the state together in an age of
political disintegration was no longer needed. Its
legislative, judicial, military, and financial services to
.
CONSTITUTIONAL HISTORY 58
the state were finished and better methods of getting all
these services performed were coming in. Along with
these things there disappeared also, in the change which
marked the rise of a national consciousness, the general
conception of the state which feudalism had formed.
The king ceased to be looked upon as primarily the lord
of vassals ; the kingdom was no longer to be his barony,
his lordship, which he might exploit as he pleased. The
idea was growing up instead that his was an office ; that
his chief function was to seek and serve the interests
of the community even if, as it now begins to be seen
may be possible, these interests are in conflict with
personal interests of his own. The community, as con-
temporaries said, and we hardly dare yet to say the
nation, beginning slowly to be looked upon as a kind of
personal whole, a corporate unity, might have its own
important interest which might be injured or sacrificed
by the things the king would like to do. In that case his
interests must yield and the community might insist by
force that its views should prevail. The narrower con-
ception of Magna Carta, that the barons had the right
to protect from infringement by the king those rights
of theirs which were the natural outgrowth of the
fundamental principles by which the feudal organization
of the state was constituted, was broadening out into the
more modern conception of the national state and of
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the relation of the government to the community of the
ruled.
But in trying to explain the ultimate meaning of what
was taking place, the impression must not be given that
this was a theoretical or speculative change, or one
brought about by reasoning about an ideal situation.
It was intensely practical. It grew directly out of
specific abuses and expressed itself in specific complaints.
The English barons bitterly complained that the gifts
which the king heaped upon his foreign favorites should
of right belong to them. The eagerness with which the
king pursued abroad his own interests, in which the
community was not concerned, but for which it had to
pay heavily, forced upon Englishmen, the king 's natural
subjects as they said, the consciousness of their corporate
unity and corporate interests as against the foreigner.
The many who were concerned were made to draw a
sharp line between Englishmen and non-Englishmen
and between their interests and the separate interests
of the king. This new conception of the relation of
the king to the community of the governed grew more
clear and controlling as the reign went on, but then as
always the practical sense of the race led it to express
in legal form the ruling interests of the particular
moment, rather than to make a theoretically complete
statement. To bind the king to regard the interests of
CONSTITUTIONAL HISTORY 55
the community, they made a new application of the
principle of Magna Carta.
In 1258 as in 1215, the king refused to accept the
barons' interpretation of his duty until he was com-
pelled to do so. In 1258 in framing securities for future
good government, the barons found themselves obliged
to go farther than the barons of 1215 had done in clause
sixty-one of the Great Charter, but in the same direction.
To protect the concessions made in the Charter, the
barons had demanded the exercise of one royal pre-
rogative, the judicial. The Provisions of Oxford of
1258 virtually suspended the king from all power and
vested the whole government for the time being in
commissions responsible to the great Council. In form
this was going a good deal farther than clause sixty-one,
but logically it was only a more complete expression of
the same principle, that a king who would not rule
according to law, or as we may now begin to say, as
the nation wished him to, might be removed from the
government.
Constitutionally the Provisions of Oxford were an
attempt to put the limitation of the king into institu-
tions which would work practically. As such the
Provisions had a profound influence on the future.
The idea of the responsibility of the king's ministers
to the great Council, which they vaguely expressed in
their commissions, gets its most perfect medieval
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expression in the process of impeachment something
more than a hundred years later, and becomes the
formative plan of all attempts to put the limited
monarchy into institutional form down to the seven-
teenth century. In fundamental meaning the Provisions
of Oxford are even more important for they were a
long step towards government for the people and by
the people. Said the poet of the barons' cause who
wrote in 1264: "Since the government of the realm is
the safety or ruin of all, it matters much in whom is its
guardianship It is the glory of a king to save
many, by his own pains to relieve many. Let him not
urge therefore his own interests, but regard his subjects
who trust in him; if he has saved the kingdom, he has
done the duty of a king." But this conception of
government, clearly held, was still far off in the future.
It is only the faint beginning of a drift in the current
of history that we can detect here, but it was a drift
that never ceased. However vaguely seen or felt, this
conception underlies the whole constitutional progress
of the future and is in reality the solid foundation of
every new advance. The seventeenth century when it
formulated clearly the doctrine of the sovereignty of
the people only completed what the thirteenth century
began.
CHAPTER III
THE BEGINNING AND GROWTH IN POWER
OF PARLIAMENT
Before the close of the reign of Henry III another
beginning was made of great constitutional importance
for the future, the beginning of Parliament. Though
in origin and history for more than a hundred years
outside the line of growth by which the limited monarchy
was being formed, Parliament was destined before very
long to take the chief part in that development, and to
become the vehicle for the continuous and consistent
opposition to the crown to which the guardianship of
the constitution was committed.
The germ from which Parliament grew was the
existing national assembly of the state, the great Council.
This was a feudal assembly. It was composed of the
king's vassals, and the idea of the service which they
were rendering in making up the assembly was a feudal
idea. The service was a part of that which they had
engaged to render the king for the fiefs they held.
Notwithstanding the fact that occasionally some person
was called to the assembly by the king who had no
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connection with him by a feudal tie, it would have
seemed impossible to the twelfth century, at least in so
highly feudal a country as England, that men should
be admitted in numbers to the assembly as delegates of
a great class in the community which stood in no vassal
relationship to the king. It is no slight sign of the
decline of feudal ideas in their hold upon the community
that it did seem possible in the last half of the thirteenth
century. In these sentences has really been described
in simplest terms the origin of Parliament. It was the
introduction into the feudal great Council of the repre-
sentatives of classes in the community which in feudal
days had had no standing there, the representatives
of the commercial classes and of the small landowners.
But the extent of the change should not be exaggerated.
j It should be remembered that there is no evidence to
[ show that these new elements in Parliament were
allowed during that century any share in its determining
\ and deciding functions over any class or interests except
their own.
Into the feudal great Council then were brought new
elements, not on a feudal basis and representing classes
in the community which were essentially not feudal.
The result was a structural change, very similar in
character to that by which the earlier Teutonic national
assembly was made over into the feudal great Council.
It was like that the introduction of a new principle of
CONSTITUTIONAL HISTORY 59
composition, the principle of representation. Scholars
have not yet come to an agreement among themselves
as to the source from which the idea or the practice of
representation was derived, nor can we say that they
were looked upon at the close of the thirteenth century
with anything like our modern clearness of under-
standing. They were understood, however, clearly
enough to be consciously applied in the step that was
taken, and from that beginning they have grown
through uninterrupted experience into our present-day
conception of representative government. And also we
must not overlook the fact that the new principle was
less completely applied to the old institution, than in the \
earlier change to a feudalized assembly. The old great
Council remained unchanged. For a long time it still
acted now and then alone as Parliament, and for a /
longer time yet traces of its independent powers and
functions survived. The new elements were grouped
around it, not organically absorbed into it changing its
nature. It still exists in fact, almost unchanged, in the
present House of Lords.
Before very long these new elements drew off by
themselves into a separate "House," the House of
Commons, leaving the old great Council by itself as
the other house of the new Parliament. The surviving
great Council, however, changed in one respect. It was
no longer in the strict sense a feudal body. Its members
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were descendants of the feudal barons; the hereditary-
feature remained ; their service was based in form upon
the old service, but no one any longer thought of it as
a return for land and all ideas about it that were really
feudal died out, were dying out in England in general
at that time, except in deductions that were merely legal
or ceremonial.
The new elements were first introduced into the old
Council not in conformity to any theory that was then
held, nor with any intention of permanent policy. The
step was first taken to serve an immediate practical end
and implied no pledge nor even desire on anyone's part
that the experiment should be repeated. Deputies from
the English counties were summoned to a meeting of
the Council, in this case the small Council, in 1254, to
report the feeling of the counties about a tax which
the government desired to lay. In the process by which
this introduction was made, a precedent was exactly
followed which had long been in use when the Council
acting as a court desired a report from a county court
upon their action in some case which had been before
them. Deputies from the boroughs and cities were first
introduced into the Council by the revolutionary leader,
Simon de Montfort, in 1265, apparently from a desire
to strengthen his party, which had for some time been
declining. Of the action of this Parliament, the first
containing all the elements of the future Parliament, we
CONSTITUTIONAL HISTORY 61
know little, but it seems highly improbable that the new
elements exercised any other function than that of
giving information and advice, the conciliar function
proper.
For fifty years and more after these dates, form and
function of the new institution were not fixed by any
certain rules. In membership, in manner of internal
organization, and in method of operation, what seems
to us like aimless experimenting was going on in the
interval. In 1295 what is known as the Model Parlia-
ment was called together by Edward I. It was a model
Parliament in the sense that it contained all the elements
that go to form later Parliaments, but it contained also
one element, the representatives of the lower clergy,
which soon dropped out of Parliamentary history.
Nor was this Parliament in organization any more
nearly an exact model than in composition, for the
representatives of the counties, the knights of the shires,
met with the greater barons, and burgesses and clergy
each met by themselves. It was a Parliament of three
houses, like later French Estates General, the first estate
the clergy, the second the nobles, and the third the
burgesses, a form of organization corresponding more
closely to the organization of feudal society than that
into which the English Parliament finally settled.
Parliament passed into the fourteenth century with
composition and organization still unsettled.
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If Parliament, as an institution for practical use, was
vague and formless in the thirteenth century, it was
equally true that it was for purely practical reasons
that the change which created Parliament was made,
not as carrying out any theory of government. Appar-
ently what was chiefly desired in drawing the new
elements into the great Council was information, in a
way authorized, of the local feeling about pending
questions from delegates whose report was the only
" share they took in the final decision, unless the question
seemed to concern exclusively their own class. If the
printing press and the telegraph had existed in the last
half of the thirteenth century to render possible the
Jl easy collection of information from all parts of the
country, we may question whether representative insti-
tutions would ever have been invented, for their purpose
could have been more easily served in another way.
For a long time Parliament, bringing its members
together in a single assembly from all parts of the
country, was the only means by which the public
opinion of the nation could be ascertained and brought
to bear upon the government. Political organization,
party campaigns, public discussion, and newspapers
were still a long way in the future.
If Parliament entered the fourteenth century with
composition, organization and methods of working still
undetermined, all these questions were rapidly settled.
CONSTITUTIONAL HISTORY 63
The two new elements, representatives of the counties
and representatives of the towns, became permanent
features of the new institution. The ecclesiastical
element, the representatives of the general clergy, with-
drew to perform their parliamentary duties in assem-
blies of their own, called Convocation. Parliament \
settled into an organization of two houses, not upon '
any definite theory that two were better than one or
three, nor with any clear plan or purpose, but largely
by accident, because the church which should, according
to continental analogy, have formed a third house,
chose to remain outside. But it was by no accident,
though no doubt a thing not planned, that the repre-
sentatives of the counties, who were drawn from an
aristocratic landowning class, a minor aristocracy,
joined in the house of "Commons" with the represent-
atives of the towns who came from the commercial,
burgher class. This union occurred in no other country
of Europe, and it points to peculiar social conditions
in England.
To describe what lay behind these conditions in the
way of cause would carry us too far afield in this out-
line sketch, but the result may be briefly stated. The
merchant burgher, the political equal of the minor
baron in the county court, was in fourteenth-century
England regarded as his social equal also, married his
sons and daughters into knightly families without
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exciting opposition, and found no obstacle to the pur-
chase of land or even, if he wished, to the foundation
of a knightly family of his own. While barriers of
custom and interest were being raised between the great
and minor barons, they were being broken down between
the latter and the burghers. On the continent the minor
barons formed a part of the barons' house as they had
in England in some parts of the thirteenth century, but
in the fourteenth century the English knights finally
found themselves more at home with the burgesses, and
the House of Commons was formed by the combination
of these two classes. This is probably all that we need
to say by way of explanation, the knights found them-
selves more at home with the burgesses.
This unintended event probably determined the rapid
advance of Parliament in power during the fourteenth
century, for that advance in reality was not that of both
houses of Parliament equally but of the House of
Commons. The House of Lords considered by itself was
relatively of less importance at the close than at the
beginning of the century. The House of Commons
evidently had in that age admirable leadership, a high
degree of self-confidence, and a feeling of equality with
lords and royal ministers which were not generally
characteristics of the third estate in the Europe of that
day nor for long afterwards.
In entering upon the fourteenth century with its
CONSTITUTIONAL HISTORY 65
function in the state only vaguely defined and its power
as a factor in the government not even foreseen, Parlia-
ment had before it a great task, if the foundations of its
dominance in the modern constitution were then to be
laid. Towards this result three things, by no means
small things, were accomplished, or at least begun, in
that century: the establishment of the control of Par-
liament over all forms of public revenue; the establish-
ment of the right of the House of Commons to a voice
in every act of legislation ; and the establishment of the
right of Parliament to supervise and direct the general
policy of the government. The way, however, for the
taking of these three steps in advance had been prepared
by certain events of the thirteenth and early fourteenth
centuries which lie outside the history of the new
Parliament.
In 1215 in two famous clauses of Magna Carta, the
principle was asserted that no feudal aids except those
provided for by the feudal contract, nor the feudal
payment called "scutage," should be called for by the
king unless with the consent of the great Council. If
we leave unsettled the question of the arbitrary action
of King John and a certain difficulty of statement
regarding scutage, this principle corresponds to the
practice of the past, so far as we know it, and is well
founded in feudal law, but it was omitted from all the
reissues of the Charter by the next king, Henry III.
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Why it was omitted is something of a puzzle, unless it
was from the difficulty of exact statement referred to
in regard to scutage, because the practice of the reign
and of the following reign of Edward I, until near the
close of the century, conformed to the original Charter.
Edward I, however, found himself in serious financial
difficulties when he became involved in war with France
and Scotland at once. Even the new Parliament, acting
for all classes of the nation together, did not provide
him with all the money that he thought necessary. The
church was beginning to object to the increasing taxa-
tion of the clergy by the state and even to try to forbid
it entirely.
In these circumstances Edward believed that the
necessities of the state were so great that he was justified
in collecting money from the community without pre-
vious consent. At the moment, however, a majority of
the great barons, representing the traditions of baronial
opposition to his father, Henry III, which had culmi-
nated in the Provisions of Oxford, were from a variety
of reasons, some of them merely personal, ready to take
advantage of any mistake which the king might make.
They seized this opportunity. They may not have been
particularly interested in establishing consent to taxa-
tion as a fundamental principle of the constitution, nor
indeed have had any constitutional ideas at all, but
the demand was clearly in line with the baronial
CONSTITUTIONAL HISTORY 67
opposition of the thirteenth century which they repre-
sented and the practice of the century gave them a
decided advantage.
The king found himself obliged .to yield the point and
the principle was formulated in the so-called Confirma-
tion of the Charters in 1297. The statement of the
principle then made was no doubt intended by those
who drew it up to cover all forms of revenue except
those allowed by the feudal law and to cut off all
possibility of arbitrary taxation. "Moreover we have
granted for us and our heirs," the king was made to
say, ". . . . to all the commonalty of the land that for
no business from henceforth will we take such manner
of aids, tasks, nor prises, but by the common consent of
the realm and for the common profit thereof saving the
ancient aids and prises due and accustomed."
So stated and accepted by the king, the Confirmation
of the Charters may be said to have restored to the
tradition of Magna Carta the principle of consent to
taxation, not limited now as in the original clauses to
feudal revenues but broadened out, as taxation itself
had broadened during the century, to cover all new
forms of revenue. From this date on this principle,
as the fundamental rule of action, was never called in
question by any English king. Successive kings might
try to avoid its effect by inventing new forms of revenue
to which they could say it did not apply or by unwar-
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ranted extensions of old revenues, but from this date
it was definitely established as a fundamental law of
the constitution that the king was dependent for his
revenue upon a previgus grant.
Hardly had this principle been established when the
next step forward was taken. The guardianship of the
constitution which was beginning to form was still in
the hands of the baronial opposition rather than of
Parliament, but the new step was the first move in the
slow crossing over of constitutional development from
the line of baronial to that of Parliamentary supervision
and protection. Edward II was successful before he
had been many months in possession of the throne in
exciting against himself a vigorous and determined
opposition. In the Parliament of 1309, a Parliament of
the new type not a mere great Council, a grant of taxes
was made to the king "upon this condition" that he
give attention to a certain list of grievances attached
to the grant, of which the Commons complained, and find
a remedy for them. The list in itself is not important
and marks no constitutional advance. It was also a
generation or more before the attaching of conditions to
grants of money became a recognized feature of Parlia-
mentary procedure and we are hardly justified in
beginning with 1309, or with any of the less complete
instances which preceded it, the continuous history of
Parliament's use of the financial necessities of reluctant
CONSTITUTIONAL HISTORY 69
kings to force them to grant reforms. It is interesting,
however, to notice how quickly after it became possible,
the new Parliament began to make experiment with this
weapon.
We are accustomed to think of the English constitu-
tion as one in which Parliament, or more specifically the
House of Commons as representing the nation, is in
supreme control of all of the functions and operations
of government. But at the beginning of the fourteenth
century we stand at the beginning of Parliament as the
organ of representative government not merely in
England but in all history. What it was to be, the share
which it was to take in actual government, was still to
be determined. As yet nothing was fixed; the rights
and functions of the new institution were vague and
undefined; nothing was known even of its possibilities.
As the successor of the feudal great Council and heir
of the principles into which feudal consent to taxation
had been transformed during the thirteenth century,
that each class in the community should give consent to
its own taxation, Parliament had a starting point of the
greatest strategic value from which to begin its advance
to power. How conscious Parliament was of the
meaning of this advantage we hardly dare to say and
at most it was a starting point only. The struggle to
win full control of national revenue and expenditure
was to be long and severe. In legislation hardly even
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a starting point for the new institution had yet been
found, and in the determination of the general policy
of the government, Parliament foresaw its own future
so little that it sometimes vigorously repudiated such
an ambition and laid the foundations of its later power
in entire unconsciousness of what it was doing.
Yet to secure these three things was necessary before
modern Parliamentary government could come into
existence : complete control by Parliament of all national
revenue and expenditure; the exclusive exercise of the
legislative right by Parliament, including the House of
Commons as an equal partner in every act; and the
power to determine the general policy which at any
moment of time should give character and purpose to the
government. At the end of the fourteenth century no
one of these had been so far secured as to be beyond
future danger, but great progress had been made towards
them all and in regard to the first at least but little
comparatively speaking yet remained to be done.
It was in the control of taxation that the greatest
progress was made in this age, and from the starting
point which Parliament thus secured in its sole power to
provide revenue, it even reached forward to begin the
practice of examining and criticizing the way in which
the revenue was used. The men of 1297 when they
pledged the king in the Confirmation of the Charters to
take no taxes without previous consent may have thought
CONSTITUTIONAL HISTORY 71
that they had cut off all important sources of revenue,
but within a few years they discovered their mistake.
The largest and most lucrative product for export of the
England of the fourteenth century was wool, and Eng-
lish wool was the chief supply of the rich manufacturing
cities which had grown up in the Low Countries across
the Channel. The foreign merchants who traveled
through England to buy up the wool from the monas-
teries and manorial lords were not interested in the
English constitution nor in the problem of controlling
the king through taxation. On the other hand, they
were greatly interested in the protection and privileges
which the king could give them in the port towns, in
the markets, and on the highways of the country, and
they stood ready to pay him for what he had to give.
It was a simple matter to arrange between the mer-
chants and the king an export duty on the sack of wool
which was easy to collect and richly productive not
merely from the size of the crop but also from the high
money value of the pound of wool. This was a difficult
matter for Parliament to deal with because Edward III
argued with much plausibility that the foreigners paid
the tax and, though Parliament detected the fallacy and
insisted that the tax was deducted from the purchase
price, it was only towards the end of the reign that the
king was finally brought to renounce the practice for
good and all.
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The long war with France which filled so much of
the reign of Edward III was favorable to Parliament.
The king was in constant need of money and it would
very naturally seem to him more than once that what
he expected to gain in France was more important than
the concession which Parliament was at the moment
demanding. No earlier English king had been obliged
to ask for such frequent grants of money as Edward III.
To Parliament, not familiar with the heavy expenses of
the war, it seemed not unnaturally that the money must
somehow be wasted. They were disposed to demand an
explanation and to say to the king : What have you done
with the money which we gave you last year for this
same purpose? The king knew very well, however, the
weight of expense which the war entailed, and it may
quite likely have seemed to him that an easy way of
proving his good faith was to allow Parliament to elect
the treasurers who should collect and spend the money
granted, and to allow the treasurers to exhibit their
accounts in Parliament, or to let them be audited by a
Parliamentary committee.
Edward knew the honesty of his own intentions and
what interested him most was that by such a simple
expedient Parliament could clearly be convinced that
the king had spent the money as he had engaged to spend
it. Neither the king nor Parliament understood what
was involved in this innocent-seeming beginning. It
CONSTITUTIONAL HISTORY 73
was in truth the starting point of Parliamentary appro-
priations, of appropriating the national revenue to
government expenses in detail, which modern Anglo-
Saxon Parliaments practically regard more highly than
the more fundamental right of granting the revenue,
because it secures in a high degree though indirectly a
control of government policy. If Parliament refuses an
appropriation for a specific purpose, government must
abandon that purpose. No one in the fourteenth cen-
tury, however, saw this possibility and, though the
practice of setting aside certain revenues to particular
objects was carried sbmewhat farther in the next fifty
years, modern appropriations to minute details of
government expenditure had to await the full estab-
lishment of Parliamentary powers at the end of the
seventeenth century.
The establishment of the modern methods of legis-
lation was not, as in the case of taxation, the expansion
of an old process to meet new conditions. It was rather
the establishment of a new method at the expense of the
old which was finally driven out of the field. The feudal
method of legislation had been by the king and the
Council, either the great or the small Council, since, it
will be remembered, there was no difference in function
between these two bodies. In this function so exercised,
the new elements brought into the great Council to form
the modern Parliament had had no previously regular
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and recognized share, as they had had in taxation,
neither through their representatives nor as the classes
which were represented. The only process open to them,
if they wished to initiate legislation, was to petition the
king that such and such a law be made. Apparently
even the Council, which had from the beginning a
recognized share by advice and consent in acts of legis-
lation, if it wished to initiate legislation of its own, in
place of acting on matters laid before it by the king,
took the first step in the process by a petition to the
king. In fact in making use of this procedure by
petition as the beginning of modern legislation, the new
Parliamentary elements were employing a practice which
was then exceedingly common. The right of petitioning
the king for some exercise of his royal prerogative was
during these generations not merely originating modern
legislation but was also rapidly developing that great
division of our jurisprudence which is known as equity.
The chief practical difficulty to be overcome, however,
in establishing modern legislative methods was not to
get the right of the House of Commons to initiate
legislation by petitions recognized. That was an easy
matter. The difficulty was to establish an exclusive
right for the new legislation, to drive the older method
of Council legislation completely out of the field and
limit all law making to Parliamentary petitions. This
was the purpose which the House of Commons set before
CONSTITUTIONAL HISTORY 75
itself in the fourteenth century, perhaps unconsciously,
and so great was the task to prove that it was not
completely accomplished until many generations later.
The right of the Commons to have a voice in the making
of every statute law was indeed conceded, but this
concession did not entirely solve the problem. King
after king, who desired a little more freedom in the
making of laws than Parliamentary restrictions allowed,
found a suggestion in the tradition of the powers which
king and Council had once possessed, and tried to
galvanize something of life into the survivals of Council
legislation in ordinances and proclamations, as he tried
to escape complete financial dependence by inventing
new forms of revenue. Even today the "order in
Council," though now made under strict Parliamentary
supervision, has a wide range of possibility. We easily
remember the part which such orders have played in
affecting relations between England and the United
States, and a modern English scholar has said of his
country: "the extent to which we are governed at
present by orders which hardly come within the direct
cognizance of the legislature is much wider than most
people are aware of."
In the third particular, in securing control of the
policy which should be followed by the government,
Parliament made even less progress during the four-
teenth century than it did in the other two lines of
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advance. We have already noticed briefly how by taking
advantage of the king's financial dependence the
foundation was laid of the modern practice of appro-
priations, and by a development of the practice such a
control might have been reached, but no more than a
beginning was made in this way. Not long after the
middle of the century, however, another process was
devised, better suited to medieval conditions and, when
put into use, very effective in checking the carrying out
of an anti-Parliamentary policy. It may indeed be
looked at as wider in its range than the mere control of a
particular governmental policy and be regarded as the
best of the medieval attempts to find institutional ex-
pression for the limited monarchy, of the attempts to
devise institutional forms through which the king could
be controlled without the danger of revolution and civil
war. Considered in this way, it was the highest and
most successful institutional expression of the limited
monarchy until the most recent times, so successful
indeed that in theory it still forms a part of the Anglo-
Saxon constitution the process of impeachment.
As a process it is not necessary to describe impeach-
ment since such a description forms a familiar part
of the constitution of the United States into which
impeachment passed from the English constitution. In
principle the process rests on the doctrine of ministerial
responsibility as the middle ages understood it, a doc-
CONSTITUTIONAL HISTORY 77
trine which came to be expressed in the maxim "the
king can do no wrong." This political maxim is not,
as it seems to be at first sight, the corner-stone of an
absolute monarchy. It is rather one of the foundation
stones on which the limited monarchy was built. For
it does not assert that no wrong will be done by the
government, nor that anything that may be done by
the government is right. What it says is that when
wrong is done by the government, it was not the king
who did it but his minister. As was said by Sir Dudley
Digges in opening for the House of Commons the im-
peachment of the duke of Buckingham in 1626, one of
the first steps of Parliament against the royal ideas
of Charles I : " The laws of England have taught us
that kings cannot command ill or unlawful things. And
whatsoever ill events succeed, the executioners of such
things must answer for them."
In this interpretation of the impeachment process may
be seen both the part which it played in the develop-
ment of the constitution and the way in which it fell
into line with earlier attempts to give constitutional
expression to the limited monarchy. If the king were
personally held to a direct responsibility for his acts,
there would always be great danger of civil war. For
it is not often in history that a king is found so thor-
oughly bad that no party is left that will rally to his
defence. But a minister can be held to a strict respon-
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sibility with far less danger. And yet when the minis-
ters of the king have been taught that, if they insist upon
carrying out his policy in opposition to the will of
Parliament, they will be held to a strict accountability
for their acts, a very serious obstacle has been placed
in the way of an irresponsible and arbitrary monarch.
The practice of impeachment rested clearly upon the
doctrine of ministerial responsibility, as does modern
cabinet government, but the medieval doctrine was so
different from the modern in idea and in method of
enforcement that the two must be recognized as distinct
in character and in origin, as will be shown in more
detail later. The modern minister is not responsible to
Parliament in form at all, but to the king. The respon-
sibility which he is actually under is indirect and dis-
guised. The medieval minister was responsible directly
and immediately to Parliament. The impeachment
process was a criminal trial. The lower house of
Parliament, the House of Commons, acting as an accus-
ing body, drew up charges against the minister and
brought him to trial upon them before the upper house,
the House of Lords, acting as a court of law in con-
tinuation of the judicial function of the old great
Council. The trial might end in acquitting the minister
or the House of Lords might find him guilty and inflict
upon him heavy penalties or even a sentence of death.
It was a responsibility terribly direct and immediate,
CONSTITUTIONAL HISTORY 79
as if Parliament had appointed the ministers itself, as
medieval Parliaments did in some cases. Its purpose
and effect are, however, equally clear. It was the final
and best result of the medieval experimenting to devise
i
some constitutional form which, like the board of twenty-
five barons in Magna Carta or the commissions created
by the Provisions of Oxford, should be able to hold the
king to a real responsibility while avoiding as far as
possible the danger of civil war and revolution. It was
because the result reached by the middle ages in this
direction was so good, that it passed into the modern
constitution, where it is really an obsolete survival.
CHAPTER IV
CONSTITUTIONAL GOVERNMENT AND ROYAL
REACTION
Impeachment is the sign and striking evidence of
the growth of Parliament in power during the four-
teenth century, but it is a sign of far more than appears
on the surface when it is regarded as an institution
merely. It should in addition be considered as result,
and as result it not merely brings into a single expres-
sion the advance made during the century, but it also
indicates how all the lines of progress of the century,
brought to a focus, became the vital impulse of a new
progress in the future.
In establishing its power in various particulars the
financial dependence of the king, the legislative depend-
ence of the king, the dependence of the king at least
partially in matters of government policy, Parliament
had really been doing one greater thing. It had been
enlarging the body of law which the king was bound to
observe as that had been stated in Magna Carta. It
may be said rather that it had been transforming it.
Political feudalism no longer existed. The services to
CONSTITUTIONAL HISTORY 81
the state, for whose performance it had once been neces-
sary, were now better got in other ways. Many of the
rights on which the barons had once insisted in Magna
Carta were obsolete and forgotten. The baron himself
was disappearing. He was becoming the modern noble
to whom a title and a good income and a place at the
king's court were more important than his older feudal
independence. But the fundamental principle of Magna
Carta was neither obsolete nor forgotten. At no
moment in all the progress and transformations of the
past had it been lost to sight. The king was bound to
keep the laws which seemed to the nation at any stage
of its advance necessary to its interest and fundamental
statements of its rights.
In more specific statement, in making a place for itself
in the state during the fourteenth century and laying the
foundations of its future power, Parliament had bound
the king almost completely in taxation, a little less
firmly in legislation, and slightly in the control of
government policy. These were the new fundamental
laws of the state which took the place of, were trans-
formation of, the principles of feudalism which Magna
Carta had formulated. They were the new foundations
of the constitution by which the king was limited, in
addition to some surviving principles of the Great
Charter which occupied, however, a less conspicuous
place in public law. Inevitably it followed that Parlia-
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ment by establishing these limitations became the
guardian of the constitution which rested upon them,
in place of the baronial opposition which through the
whole thirteenth and early part of the fourteenth cen-
turies had performed that function. This change was
of immense importance in the formation of the limited
monarchy. In place of the unorganized, short-sighted
and self-centered opposition of the barons, so often
personal in character and to which a continuity of
purpose was scarcely possible, nor even the intelligent
accumulation of precedent, the directing of the advance
passed over to an institution whose activity was never
suspended, which allowed nothing that had been gained
to be forgotten and which was capable of continuous
growth and adaptation. The process of impeachment
as resting upon the principle that the agents of the
king's policy were responsible directly to Parliament,
and that therefore the king was under Parliamentary
control, is the institutional expression of the fact that
the guardianship of the constitution was in the hands
of Parliament. From this time on the formation of the
limited monarchy went on, not without reaction, but
consistently and without permanent loss.
In describing this change, I have not intended to
imply that Parliament was conscious that it had taken
this place or that it understood the larger significance
of its own position. The events of the next generation,
CONSTITUTIONAL HISTORY 83
however, were of a sort almost to give us the right to
say that the king for his part was conscious of the situa-
tion, what it implied for the future of the royal power,
and the results of what he attempted to do in consequence
certainly advanced Parliamentary understanding. The
reign of Richard II began with a minority during
which the practical supremacy of Parliament was
evident and the precedents of Edward Ill's reign were
confirmed. Even the Council, the special organ of the
king's activity, was almost a creature of the Parliament.
A king who knew anything at all of the meaning of
monarchy could hardly fail to appreciate the position
in which Richard found himself placed when he reached
his majority. In another direction certain facts of
these and the following years showed clearly enough
what dangers to the government might lie in factious
combinations of nobles supported by princes of the
royal blood. It is impossible for us to say from any
direct evidence which we have that Richard learned the
lesson which this twofold situation might teach a king,
and that he determined to reestablish the personal and
unlimited government of the crown which his ancestors
had possessed. This much, however, we have a right
to say, that what he did in the last years of his reign is
what he would have done if he had understood this
position and with great skill formed such a plan. His
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acts seem consciously and definitely shaped to carry out
such a purpose.
Possibly there still lingers in our general knowledge
some remembrance of the tragedy which closed the reign
of Richard, because it is the theme of the first of the
series of plays in which Shakespeare wrote his con-
tinuous history of England from the fall of Richard II
to the death of Richard III. But to Shakespeare the
tragedy at the end was naturally everything. He
shows neither interest nor knowledge concerning the
issues earlier drawn between king and Parliament which
brought the tragedy about. The historian must note
that Richard attacked at the same time Parliament and
the powers of Parliament. It is significant of his per-
ception of the supremacy of Parliament that he felt
compelled to use it to accomplish at least the first items
of his programme. To make sure of the action he
desired, he seated in the House of Commons men he
could rely upon, using the help of the sheriffs who were
the returning officers, and in addition he overawed
Parliament by troops of Welsh archers in his pay.
From such a Parliament he secured the grant of a
revenue for life and a limited right of legislation : only
a beginning but one that could have been developed
with time into complete legislative independence. He
established also the principle that members of Parlia-
ment could be held to a direct responsibility to himself
CONSTITUTIONAL HISTORY 85
for their words and acts in Parliament and severely
punished under an accusation of treason. He went even
farther than this and assumed the right to nullify actual
acts of Parliament by falsifying the records or by the
suspension of a statute by prerogative action.
If these different successes of the king be considered
together, it is hard to avoid the conclusion that he was
acting upon a definite plan and it is easy to see how
little of the constitution would be left, if they were
made permanent. They would constitute the founda-
tion stones of an absolutism as complete as that which
Richelieu afterwards perfected upon the same founda-
tions, just then beginning to be laid by Charles the Wise
on the other side of the channel. The last three years
of Richard's reign form the first dangerous crisis
through which the English constitution passed because
of the skilful and systematic attempt of the sovereign
to turn back the tide of advance. Happily his attack
on the fundamental laws of the state was accompanied
with acts of personal tyranny which furnished the
opposition with a leader. Under Henry of Bolingbroke
the nation rose against the king and it was speedily
discovered that Richard's conduct had left him for the
moment almost without supporters. The revolution of
1399 was practically bloodless.
It was also complete. The house of Lancaster came
to the throne dependent upon the support of the nation
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for the possession of a crown won by revolution, logi-
cally pledged to recognize the rights which Parliament
had secured during the fourteenth century and to allow
the full exercise of the powers which Richard had
attacked. They were pledged also to the same policy
by the force of circumstances, for Henry IV, the
product of the revolution, himself in constant danger
of counter revolutions, was too dependent upon such
support as he could win to adopt a policy of aggression
in any direction, or to antagonize so strong an insti-
tution as Parliament had become. His reign seems a
very mediocre one, despite Henry's undoubted abilities,
because he found himself obliged in everything to take
a moderate and middle course. His son and successor,
Henry V, the Prince Hal of Shakespeare, felt himself
strong enough to renew the war with France and made
himself a great name by the victories he won, but his
long campaigns kept him away from England and left
the government there necessarily in other hands. His
premature death brought his son, Henry VI, to the
throne while a babe in arms and a long minority and,
after he came of age, the king's mental and physical
weakness, tended still to maintain Parliament's general
control.
For this long period of sixty years Parliament's
authority was unquestioned, nor did the Lancastrian
kings show at any time a disposition to question it.
CONSTITUTIONAL HISTORY 87
Their natural inclination seemed to be, so far as we can
judge it, to rule in harmony with Parliament. It was
a period of unbroken constitutional government. Start-
lingly and prematurely modern, I have called it in
another place, and though the machinery of constitu-
tional government had as yet been worked out in few
details, it was in spirit modern. Parliament seemed
aware of the security of its position and busied itself
on one hand with perfecting details and on the other
with strengthening its control. It used the king's
Council as its own instrument, and, most remarkable of
all, we seem to be able to detect the faint beginnings,
amid somewhat similar conditions, of that change in
the relations between Council and Parliament out of
which, in more modern times, the English cabinet system
grew. But even Parliamentary control of the Council,
through which the daily government of the country
was carried on, could not prevent the rise of those
factious rivalries among the great men of the day which
led in another generation directly into the civil Wars
of the Roses.
It was indeed a period prematurely modern. It was
constitutional not because the constitution was solidly
founded and firmly fixed and fortified in possession of
the government, not because the constitutional way
seemed the only natural and normal way of doing things,
but rather because of circumstances somewhat temporary
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in character; the insecurity of the king, his absence, his
infancy, or his personal weakness, left Parliament really
alone the strongest factor in the government. It was
the best result of such a period that constitutional
government grew to seem more normal. The habits of
thought and action then formed were more important
than the precedents established, and one great reason
why the constitution survived the next age was that in
this one it had become more firmly a part of the national
life.
What conclusion the best thought of the time had
reached about the place of the king in the government
may be indicated in the words of a contemporary student
of the English constitution, which are "so explicit and
weighty that no writer on the English constitution can
be excused from inserting" them, as Hallam says, in
the third part of his chapter on the English constitution
in his Europe during the Middle Ages. Sir John
Fortescue, who had been chief justice of England,
had had his training and almost all his active life
in the Lancastrian age. In his book In Praise of the
Laws of England, written early in the reign of Edward
IV, he said of the king: "He can neither make any
alteration or change in the laws of the realm without
the consent of his subjects, nor burden them against
their wills with strange impositions." And again:
"As the head of the body natural cannot change its
CONSTITUTIONAL HISTORY 89
nerves and sinews, cannot deny to the several parts their
proper energy, their due proportion and aliment of
blood, neither can a king who is the head of the body
politic, change the laws thereof, nor take away from the
people what is theirs by right, against their consent.
Thus you have the formal institution of every political
kingdom, from whence you may guess at the power
which a king may exercise with respect to the laws and
the subject. For he is appointed to protect his subjects
in their lives, properties and laws ; for this very end and
purpose he has the delegation of power from the people
and he has no just claim to any other power but this."
These may be the words of a philosophical student of
government, but there can be no doubt that in essence
Fortescue was right. At that date the principle had
been in reality established that the royal power was a
delegation from the people, although it was to be two
hundred years longer before that principle could be
carried out in the practical government of the country.
One new Parliamentary right which the revolution
of 1399 went a long way towards establishing should
not be passed over the right of determining the suc-
cession to the crown. By this is not meant the larger
and more important right of deposing a king who could
not otherwise be controlled. The right of deposition
had been made in a sense constitutional by Magna
Carta, as the foundation upon which rested the smaller
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and included right of temporary suspension asserted
in clause sixty-one. That right of temporary suspension
for bad conduct had been exercised by the great
Council in 1258 and again in 1310, and the more com-
plete right of deposition had been exercised against
Edward II in 1328. But more than this was done in
1399. Parliament assumed the right to pass over the
line marked out for succession by the principle of
primogeniture, lately established in English law, the
principle of strict hereditary succession by blood, and
to place upon the throne the younger line, the house of
Lancaster. Logically this right was involved in the
older right of deposition, but its exercise in this form
was destined in the immediately following centuries to
attract to itself more general interest and to be more
useful to Parliament than the greater right from which
it was derived. Indeed as early as 1460 it led to a most
significant declaration of the power of Parliament.
When the duke of York after a decisive victory over
the Lancastrians in the field unexpectedly called upon
a Yorkish Parliament to recognize his better right to
the crown, as standing for the elder line, the House
of Lords gave as one of its reasons for refusing his
demand the fact that the entailing of the crown upon
the house of Lancaster by act of Parliament created a
better title to the throne than any other could be.
The fifteenth century stands in sharp contrast to the
CONSTITUTIONAL HISTORY 91
fourteenth, not in the exercise of Parliamentary power
but in its increase. The great creative advances
possible to the political foresight of the middle ages
had been made. There was no experience of constitu-
tional government in the past to which the leaders of
the fifteenth century could turn for guidance. They
could have no ideal of a perfected limited monarchy,
institutionally complete in all its parts, which they
could strive to reach as a final result, nor any clear
conception of the future dangers to their work from
which they ought to guard it. In all the stages of this
historically new work of creating government by the
people, it was the practical need of the moment which
determined what was done, not any theoretical concep-
tion of the end to be reached. The fifteenth century
was satisfied with the results which had been gained,
and felt no immediate need of further advance. Since
this work was new to all experience, it was fortunate
also that there came after the rapid progress of the
fourteenth century a period of three generations, as
medieval generations must be reckoned, of comparative
quiet, comparatively stationary. The operation of con-
stitutional government, the supremacy of Parliament,
the doing of all sorts of things by Parliamentary action,
became to a degree in so long a period things of habit,
and this habit of Parliamentary authority, as has been
said, formed a solid substratum of constitutional right
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underlying all the superficial reaction of the next
century.
And so Parliament from 1399 to 1460, carrying on
the government as a matter of course, concerned itself
in strengthening its position not in large things but in
small ones. It was busy about the establishment of the
so-called privileges of Parliament : freedom of debate,
which perhaps can hardly be called a small thing; the
freedom of members from arrest ; the right of the House
of Commons as distinguished from the upper house to
originate taxation, to determine the qualifications of
members, and to discipline and punish members and
disrespectful outsiders; the regulation of the right of
suffrage in the counties; the extension of the practice
of appropriations; and the improvement of the process
of legislation. Comparatively these were small things,
but in that stage of progress important. As with the
greater advances of the fourteenth century, not all of
these privileges were completely established at once.
Some of them, like freedom of debate, were called in
question for a long time. But a substantial beginning
was made in them all during the Lancastrian period.
In comparison with these, the special facts in which the
Parliamentary control of the Council expressed itself,
which seem on the surface the most striking facts of
the period, are of minor interest because they did not
become precedents of constitutional importance. The
CONSTITUTIONAL HISTORY 93
responsibility of the Council, that is of the executive
and administrative departments, to the legislature, had
to be reestablished at a later time, after the results of
the Tudor reaction had been overcome, and it was then
done from a different beginning and in a different way.
The reaction against the Lancastrian constitutional
monarchy began before the end of the fifteenth century.
The Wars of the Roses, which were at first only a
factious rivalry for influence in the government under
a helpless king but which passed soon into a dynastic
civil war, were a predisposing influence. The political
skill and determined character of Edward IV and
Richard III were matched by no leadership in oppo-
sition which had any understanding of constitutional
principles or any interest in maintaining a limited
monarchy. On the other hand the kings themselves
seem to have had no such foresight of the dangerous
situation into which arbitrary kingship had been drift-
ing as we may possibly attribute to Richard II. They
were determined to be the most powerful force in the
state because of the dangers which threatened them from
insurrections rather than because of those which threat-
ened from constitutional progress. They began some
of the methods of a practical absolutism which were
afterwards carried farther by the Tudors, but with no
conscious intention of founding absolute monarchy.
They packed the House of Commons with their adher-
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ents; they kept Parliament from meeting during long
intervals of time in sharp contrast with the fourteenth
century; and they provided themselves with an inde-
pendent revenue at least partially sufficient for their
needs by means of forced loans and forced gifts,
"benevolences" they called them. But perhaps it was
the mere accession of the house of York to the throne,
emphasizing the right of strict hereditary succession in
the teeth of a statute, which was the most severe blow
to Parliamentary supremacy struck at the time.
As part of a resume of results already attained,
Hallam calls attention near the beginning of his Con-
stitutional History of England to certain principles of
civil liberty which at the end of the fifteenth century
protected the individual from the arbitrary action of
the government. They had been established in England
in the common law, that is, in private rather than in
public law, but in America we have made them parts
of the constitution. He says: "No man could be
committed to prison but by a legal warrant specifying
his offence; and by a usage nearly tantamount to con-
stitutional right, he must be speedily brought to trial
by means of regular sessions of gaol-delivery. The fact
of guilt or innocence on a criminal charge was deter-
mined in a public court, and in the county where the
offence was alleged to have occurred, by a jury of twelve
men, from whose unanimous verdict no appeal could
CONSTITUTIONAL HISTORY 95
be made. Civil rights, so far as they depended on
questions of fact, were subject to the same decision.
The officers and servants of the crown, violating the
personal liberty or other right of the subject, might be
sued in an action for damages to be assessed by a jury,
or, in some cases, were liable to criminal process; nor
could they plead any warrant or command in their
justification, not even the direct order of the king."
CHAPTER V
THE TUDOR STRONG MONARCHY
The revolution by which Richard III, the last of the
Yorkist kings, was overthrown and the house of Tudor
established on the throne in the person of Henry VII
excited little interest in the nation at large. It was not
a constitutional revolution as that of 1399 had been.
At the moment no one could tell that it was not another
of the many ups and downs of the Wars of the Roses,
in which also as a whole the nation had not been greatly
concerned. The only constitutional principle which it
could be cited in the future to support was the right
of Parliament to determine the succession in the return
to the younger line, which it then decreed at the expense
of the elder. But this principle was by no means so
clearly asserted as in 1399 and was not strengthened by
the later marriage of Henry VII with the heiress of the
Yorkist Edward IV. The Tudors came to the throne
as the result of no national movement in defence of the
constitution and under no implied pledge to respect the
powers of Parliament.
Nor was the general situation an aid to constitutional
CONSTITUTIONAL HISTORY 97
government. It was a new and stormy age on which
Europe as a whole was then entering, the transition in
political history from medieval to modern times. The
modern nations had assumed something like their final
form. France had acquired, not quite its final eastern
boundary, but its general geographical outlines; the
great feudal baronies, earlier independent, had been
overcome or absorbed; the government of the state had
been centralized in the sovereign, not with the perfection
of detail to be obtained in the seventeenth century, but
to the exclusion of any rival powers. In the Spanish
peninsula the chief kingdoms which had been so long
pushing back the Moors were now brought under one
rule by the marriage of Ferdinand and Isabella, and by
a sharper and quicker process than in France, largely
of force, an absolutism practically as effective as the
French had been established. The house of Austria,
which had added to its southeastern dominions the most
of the great Rhenish combination, the patchwork which
had been formed by the ambitions of the dukes of
Burgundy, was just entering upon the great period of
its history.
New ambitions were rising before these new states
soon to be the first "great powers" of modern diplo-
macy, which was then itself also new. Medieval condi-
tions had passed away. In the immediately preceding
centuries the pressing problem before every government
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was national or internal consolidation and centralization.
If a ruler of the later middle ages sought to build up
an interstate alliance, in the great majority of cases his
purpose was not dominion outside the boundaries he
was striving to establish, but he hoped by foreign help
more easily to overcome some difficulty within those
boundaries. Those difficulties were now so far overcome
in these great states that the ruler could give his chief
interest to other things. Then opened out a new vision
of empire, not now of a Holy Roman Empire co-
extensive with Christendom and founded in the divine
plan for human history. This conception was not a
part of fifteenth-century plans, and the word empire
took on then a new meaning. It began to mean the
dominion and power of a state outside its national
boundary lines; in a few cases perhaps, it included the
annexation of other states or parts of states, but more
truly it meant the conception and inauguration of the
struggle for the domination of Europe by a single state.
This has been the conception, broadened later into an
idea of world domination, which has brought on all the
great wars of European history since that date, and we
can only hope that in the great world war of 1914 we
are seeing its last stage.
In this first phase of modern international rivalry,
the great contestants were France and Spain. Between
them England was a little state hardly sufficient to
CONSTITUTIONAL HISTORY 99
furnish a balance of power; but she had well in hand
resources somewhat out of proportion to her size, and
her geographical position then as always gave her a
peculiar security. But it was a dangerous age for a
small state. The great powers of the continent were
eager to use her for their own ends, and it was only by
the most skilful management that she could avoid
entangling her fortunes and fate in one alliance or
another. The danger became far more acute when the
religious revolution of the sixteenth century complicated
the situation, pushed international rivalries to extremes
and introduced new elements of fanaticism and hatred.
The danger then came to be for England not merely
one of foreign entanglements but one of domestic civil
war and revolution as well.
It is no wonder that in such an age with the tacit
consent of the nation the constitution, the limited mon-
archy, was practically suspended. The wonder is that
it escaped destruction. The English nation had just
passed out of an age in which the horrors of civil war
had been made very real and a strong monarchy had
been found something of a relief. It had passed into
an age in which the general atmosphere of Europe was
absolutist, and in which foreign and domestic problems
seemed to demand concentration of national will and
a single control of national policy and resources. Clear-
sighted statesmanship might easily justify a return to
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practical absolutism with the general support of the
nation.
We should have, however, a wrong impression of the
sixteenth century if we regarded it merely as an age
in which the growth of the constitution was suspended
and an absolutist reaction had full sway. It was in
two particulars at least something quite different from
that. In the first place in important respects the con-
stitution continued in operation. The Tudor sovereign
found it easier to get what he wanted done with the help
of Parliament and by the forms of the constitution than
to do away with Parliament and build up instead an
institutional absolutism. During some part of the time
it was really true that what the king wanted the nation
also wanted; sometimes Parliament was controlled and
induced to do what perhaps the majority of the nation
did not sanction; at other times, especially towards the
beginning of the period, Parliament was thrown some-
what into the background and long intervals were
allowed to pass between its sessions, long at least as
compared with the greater part of the period since the
accession of Edward III; and in the opposite direction
occasionally Parliament asserted a will of its own and
refused to be led by the king, though not usually in
large matters. But under all these varying conditions
Parliament was used. It was the legislating, author-
izing, creative instrument. The use which was made
CONSTITUTIONAL HISTORY 101
of the constitution was no doubt the use of forms from
which the spirit had departed. The forms were used
to carry out the sovereign's will, not to limit it or to
carry out a will in opposition to his. But, it must be
emphasized, the forms were used. The constitution in
the matter of Parliamentary powers and functions
at least was kept in operation. Nothing was lost or
forgotten which had been gained. Everything was
ready to be filled again with the spirit of a truly con-
stitutional monarchy when conditions should so change
that the struggle with the king, which would be neces-
sary, could be entered upon without national danger.
The second particular in which the Tudor age may
be seen to be not one of mere reaction was given its
peculiar character, and indeed was rendered possible,
by this use of constitutional forms to carry out the
king's will. Briefly and in general form the fact may
be so stated: It was the positive work of the sixteenth
century to bring the national church under the same
degree of Parliamentary control which had been at that
date established over the monarchy. The medieval
church withdrew from the government of the state and
kept within its own sphere a larger share of the public
life of the community than we should think likely from
the position of any modern church. Large fields of
law, wills and inheritance, marriage and divorce, were
its exclusive province. Some administrative functions
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of the modern state, like the care of the poor, were in
its hands. The Papacy was a great international state
with all the organization and machinery of a political
government. To its capital went up from all the
countries of Europe a constant stream of reports,
appeals, and taxes, and an equal stream came down of
orders, commissions, and judicial decisions. In some
respects the Papacy was more than an international
state for it assumed to represent the divine government
more directly and to speak with a higher authority than
any merely political state. England was in a few
matters in a somewhat more independent position than
most states of the time, but still in a large part of its
public life it was dependent not upon its own govern-
ment but upon a foreign government.
This dependence upon a foreign government it was,
which was the first thing to be broken in the sixteenth
century. With the religious past of the church no break
was then intended, but the government of the state
assumed full control of all public interests that had
formerly fallen to the charge of the Papacy and with
them it assumed governmental control of the church
itself. This was in itself a revolution, and it drew
logically and inevitably a larger revolution in its train,
but the larger revolution, the religious revolution, it
does not belong to us to consider. Nor is it important
for us to know how far personal desires of King
CONSTITUTIONAL HISTORY 103
Henry VIII in seeking a divorce from Catherine of
Aragon, or wise statesmanship in fear of a doubtful
succession, brought the result about. What is important
for our subject is the fact that this great political
change, this revolution, was accomplished by act of
Parliament. By a series of great statutes adopted in
successive sessions of the Parliament of 1529, which
remained in existence for seven years, one bond after
another which bound England to the government of the
pope was broken and the king put in his place as
governor of the church. Even considered no further
than this, these acts were an extraordinary exercise of
Parliamentary power, but they go much farther. In
them was laid the foundation of future Parliamentary
control of ecclesiastical matters which has been exercised
in the last hundred years in ways that would have
seemed drastic in the extreme even to the revolutionists
of the sixteenth century. And more than this even:
that the king should have asked the sanction and secured
the authority of Parliament for changes on which his
heart was so deeply set was not merely a striking recog-
nition of the position of Parliament, but a precedent
of creative value for the future.
This ecclesiastical revolution was a great forward
move in bringing the entire round of public affairs
under national control, and when we take it into account,
it is no longer possible to say that the sixteenth century
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was an age when the growth of the constitution was
suspended. In comparison with this advance, some
improvement in executive and administrative machinery,
some increase in the activity of the Council, not now
under Parliamentary control but directly representing
the sovereign, are of minor importance. The great
thing is that the powers which Parliament had gathered
into its hands in nearly two centuries of earlier growth
had not been dropped, but had rather been confirmed
and enlarged in its possession, as marking out its definite
and secure function in the state. It was to Parliament
that the king turned as if to the source of final authority
and sanction in his revolutionary reorganization of the
state. New precedents of far-reaching importance had
been established and all was ready, when conditions
should become more favorable, for the reconstruction of
a constitutional limited monarchy upon a broader and
more solid foundation than ever.
Nor is what has been so far said a complete statement
of the constitutional meaning of the sixteenth century
in English history. The economic and social historian
points out also a condition of things which the historian
of constitutional development is bound to regard. The
constitutional monarchy of the fifteenth century was
premature in one way because as yet there was no nation
in the modern sense prepared by political discipline and
social advancement to work in its own interests the
CONSTITUTIONAL HISTORY 105
constitutional machinery which had been so rapidly
built up since the meeting of the Parliament of 1295.
The baronage was the controlling power in English
political life during the long reign of Henry VI, and
the baronage of the fifteenth century was far more
interested in its own factious ambitions than in Parlia-
ment or nation. From 1455 to 1485 the great fact in
English history seems on the surface to be the Wars
of the Roses; but that was a war of the baronage, not
of the people, and in spite of continuous civil war the
economic and social development of the country at large
was going rapidly forward. It needed the strong
absolutism of the Tudors to bring the nobles and their
private armies into subjection to the law and reestablish
an orderly public life.
The relentless vigor with which Henry VII accom-
plished this work established his throne, and for a
hundred years after Bosworth Field the nation was so
wrapt up in the economic revolution, the commercial
progress, and the consequent social changes that were
going on, that it stood ready to pay any price which
their sovereigns demanded for the peace they main-
tained. As a result before the end of Elizabeth's reign
a community life had come into being which had no
existence in 1450. The nation, conscious of its organic
life and power, able to say ''the people" in something
like the modern sense, was ready not merely to work
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in its own interests the constitutional machinery of the
fifteenth century but to demand in addition all which
was logically implied in it but never before understood.
In the Tudor age also the constant employment of Par-
liament by the policy of the crown in legislation on
matters of grave importance gave it an acquired knowl-
edge of practical government greater than it had ever
before possessed. The nation also had been politically
disciplined and developed especially by the keenness of
its interest in religious questions and trained to con-
sider with care the rights and duties of government.
The sixteenth .century was an age of apprenticeship in
the use of the constitution and in the practical operation
of government, which shows its result clearly in the
acquired knowledge and skill of the seventeenth.
The conditions which had given character to the Tudor
age began to change before the death of Elizabeth.
The execution of Mary Stuart and the successful
defence against the threats of Spain gave something of
security against both domestic and foreign danger,
though the nation was not fully conscious of how great
a change in these respects had really taken place. But
Parliament began towards the end of the century to
be somewhat restless; to show an inclination to greater
independence, and a disposition to be more critical of
royal methods. There was, however, no real inter-
ference with Elizabeth's action which can be said to
CONSTITUTIONAL HISTORY 107
have amounted to a matter of principle. It was only
that all things were ready for a new age and, if Elizabeth
herself with all her political skill could have continued
to reign for another twenty years, it is not likely that
she could have repressed the opposition that was form-
ing. As the history actually went, it was reserved for
a new dynasty to raise for the first time in English
history a square issue between two types of monarchy
and two types of constitution.
CHAPTER VI
PARLIAMENT VERSUS THE KING
James VI of Scotland began to reign when a babe in
arms and could never remember a time when he had not
been a king. He was something of a student and he
read, not without a natural inclination to believe,
current philosophical arguments in favor of the divine
right of kings, and even restated them in a book of his
own writing. He was the king of a poor country, but
he knew himself heir to the English crown and could
look forward with pleasant anticipation to its wealthier
resources and to the headship of a liberal and aristo-
cratic church in place of the hard and narrow republi-
canism of the Scotch Presbyterians. He knew the
history of the Tudor monarchy and Elizabeth's methods
of rule and her overbearing ways of dealing with indi-
vidual opposition. He knew also that his right to the
throne was shadowed by the provision for the succession
which Henry VIII had made under the authority of
Parliament, by which his own elder line had been post-
poned in the inheritance to the younger line of the
descendants of Henry VII. But he knew too, when he
CONSTITUTIONAL HISTORY 109
came to the throne with the sanction of the nation in
the teeth of this arrangement, that the principle of
succession by direct descent, the principle of divine
right, had made no small gain over the principle of
Parliamentary authority. It is not at all strange that
James became king of England with the determination
to go on with the practical absolutism which the Tudors
had exercised and indeed with clearer theoretical ideas
than they had had of monarchy as the natural govern-
ment intended for mankind and of his own right as the
particular monarch divinely selected.
Over against the determination of the king was the
determination which had been slowly growing in Parlia-
ment for some years. It would probably be going too
far to say that this was a conscious determination that
the absolutism of the Tudors should come to an end.
It was rather a determination that the king should be
held to the law where law existed. The particular events
in which this determination of Parliament expressed
itself were so entirely shaped by the action of the king,
Parliament came so slowly, as the years of the seven-
teenth century went on, to an understanding of what
its opposition meant as an interpretation of the consti-
tution and an assertion of the position of Parliament
in the state, that it is hardly possible to say that it began
the conflict with the crown with any definite plan, or
any foresight of the result for which it ought to strive.
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The practical situation created was, however, the same
as if it had been designed. A square issue was joined
between a king determined to go on with a virtual
absolutism and a Parliament determined that the king
should be limited by the law.
This issue had never before been joined in English
history. Since the working out of the limited monarchy
and the establishment of its principles in 1399, these
two interpretations of the constitution had never entered
the field together. Each in turn had had possession for a
long period, and government had been carried on accord-
ing to it with no serious interruption from the other.
The Lancastrian period was in fundamental principles,
though these had not been worked out in all details, an
age of constitutional monarchy. The Yorkist and Tudor
periods formed an age of practical absolutism, though
an absolutism which for its own convenience made use
of some of the machinery of a constitutional monarchy
and in so doing strengthened and confirmed it. In this
most important respect, the joining of issues between
a traditionally strong royal power and a Parliament
strong in accumulated rights and privileges, the acces-
sion of James I opened a new epoch in the history of
England.
The great practical question to be solved was : Would
it be possible to make these two conceptions of govern-
ment work peaceably together? "Would it be possible
CONSTITUTIONAL HISTORY 111
in practice to mark off a boundary line between the
M
king's prerogative action and those things in which he
must allow Parliament to be supreme? Was any com-
promise between these two" powers in the state possible?
Was not the real question which was involved in the
rivalry between them the question of the ultimate
political authority in the state of which there could be
in the nature of the case but one? Somewhere in every*"
state there must reside a power of making decisions
from which there can be no appeal ; a final authority to
which in the last stage of discussion every great question
must be referred and whose answer will at once be seen
to end all controversy. This ultimate authority in any
state is the sovereign authority whether it be a sovereign
monarch or a sovereign people, and the question where
does sovereignty reside in any given state is the question
where is to be found the power of, making decisions
which we know no other power can call in question.
In the conflict between the king and Parliament in the
seventeenth century in England this was the question
really at issue and really decided. Slowly growing
more and more clear through the cloud of special issues,
forced by progressive dispute and argument more and
more definitely into the foreground, the great question,
where does political sovereignty reside in the English
state, what is the ultimate source of all authority,
though it was never distinctly formulated nor answered
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in specific words, was in the end really answered by the
facts, by the actual situation left as the result of the
struggle.
The joining and the settlement of this issue make
the seventeenth century like the fourteenth century a
great creative age in English constitutional history,
creative not of institutions nor of constitutional pro-
cedure, but of meaning and interpretation fixed beyond
future question. If we say that by 1399 the English
constitution had been brought into existence so far as
its fundamental principles are concerned, we have by
no means said that the work of making the constitution
was completed. There was much of a creative sort still
to be done. Most important work still remained in
seeing that these principles were consistently carried
out in all the details of government. The importance
of this work may be seen in saying that it was especially
to be done in the control of national finance, in making
the judiciary independent of executive interference, and
in the directing of foreign policy this last an item in
which the work is perhaps not yet complete. Much had
still to be done in devising machinery for the operation
of practical government according to these principles,
and this in its chief instance has given us the English
system of government by a cabinet of responsible min-
isters. And perhaps most broadly fundamental of all,
much had still to be done in ascertaining what these
CONSTITUTIONAL HISTORY 113
principles logically implied as to the nature of govern-
ment, the source of its powers, and the seat of sover-
eignty in the state. This last was the work of the
seventeenth century and it was truly creative although
a work of interpretation.
The work of the seventeenth century was creative
also not merely in the general result to which it was to
lead but also in many details by the way. Seventeenth-
century England was deeply interested in its past
history, and the leaders on both sides of the conflict
made an appeal to precedent hardly equaled in any
other age. But it must be admitted that precedents in
favor of the claims of Parliament were many times
interpreted and urged in the light of what they logically
implied rather than of what they originally meant.
The king also more than once asserted that he possessed
a general right of action on the basis of precedents
which related only to a much more limited range of
cases, as in the instance of the so-called impositions, a
supertax added by proclamation to the customs duties
fixed by law. Impositions indeed had been added in
this way to the legal duties by earlier kings but always
for special administrative purposes, not for raising
revenue, and in justifying his use of the right by the
earlier precedents the king was certainly carrying them
beyond their legitimate application. The case is typical
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of the kind of legal justification asserted for many other
things done by the Stuarts during the century.
On the whole, however, it must be said that history-
was with the king. The stretching of precedent at that
time which history finds the most unwarranted into
something which it did not originally mean, though
perhaps logically implied, was on the side of Parliament.
The seventeenth century is for instance the great age of
the perfection of the writ of Habeas Corpus as the
means of securing the citizen against arbitrary executive
action. But Parliament began the struggle to obtain
this result, in the dispute which led to the Petition of
Right of 1628, with the assertion that the most of what
it was to gain in the end was already historically its
rightful possession. But however clearly history must
condemn the literal form such claims assumed, the fact,
which was in truth the essential fact, should not be
overlooked, that the extended meaning which Parliament
gave to precedents was really logically involved in them.
Habeas Corpus as it existed before 1628 did logically
imply what Parliament asserted it had meant, as a means
of defending the individual against the arbitrary action
of the executive, though it may never have been actually
so used.
What Parliament was really doing through all the
faulty history it employed, was to apply logically in
new ways, to new details, in further extensions, the
CONSTITUTIONAL HISTORY 115
fundamental principles which the past had established.
The struggle between Parliament and the Stuart kings
was the process through which the nation was learning
to understand what these principles really implied for
the whole constitution of the state. Indeed the keenness
with which the opposition of the seventeenth century
pressed to their logical limit past precedents against the
king, often to a meaning which the makers of the prece-
dent would not have recognized as their own, leads us
to suspect that during the long interval of the absolutist
reaction, there had already formed, unconsciously and
beneath the surface no doubt, a clearer conception than
ever before of what the constitution was and what it
might logically involve; that the sixteenth century had
in this way really laid down a solid foundation for later
advance on which the seventeenth century was building.
Against extensions of this sort, if they be really
logical, history can urge no objection. The historical
argument is never of any validity against the results
to which the living process of a nation's growth has
brought it. However far they may go beyond the begin-
nings the past has made, if they are the genuine results
of national life, they have a rightfulness of their own
which history cannot question. This is what we must
say of the main things which Parliament was striving
to obtain in the seventeenth century. They were new
claims in form, but they were logical applications of
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established principles, and the time had now come when
it was necessary that they should be made if the English
constitution was not to cease to grow.
Almost immediately after his accession James I found
himself face to face with law by which he was bound,
with rights and privileges of a political sort which he
could not change. In summoning his first Parliament
he undertook to rule that certain classes of persons of
doubtful character should not be elected to the House
of Commons and to assign to Chancery the function of
deciding whether his prescription had been complied
with in individual cases or not. This would be to de-
prive the House of Commons of the right to decide upon
the qualifications of its own members and upon disputed
election cases. A conflict immediately arose between
the House and the king over the matter, in the course
of which the king asserted that the House "derived all
matters of privilege from him and by his grant," and
the House in a formal defence of its position declared
that "our privileges and liberties are our right and due
inheritance, no less than our very lands and goods."
This was a square issue squarely drawn but it was not
at this time further developed. In the end the king
had to abandon the attempt which he had made, though
the lesson that a body of law existed in the state superior
to his will was very imperfectly learned.
This was the opening battle of a long struggle and
CONSTITUTIONAL HISTORY 117
typical of it all. The position of the king was that
rights and liberties which limited his own action were
grants from the crown and might therefore legitimately
be revoked. On the contrary Parliament asserted, as
it put it later in the reign, that they were "the ancient
and undoubted birthright and inheritance of the subjects
of England," that is, possessed by the same title as
private property and as little subject to withdrawal by
the king. In other words this was saying that they
were rights and privileges by which the king himself
was bound and limited in his action. This was one form
of the fundamental issue, and it was to find a working
compromise between the two assertions that it must be
pressed to a settlement.
Beyond this point the conflict hardly developed in
the reign of James I. The actual issues between king
and Parliament were largely of finances, in which the
king believed himself driven to raise money without
Parliamentary grant and finally to free himself from
Parliamentary opposition by refusing to call Parliament
together during periods of unusual length. Three times
during the reign the royal theory of a monarchy free
from restrictions was stated with great clearness. This
was done first by the barons of the Exchequer in their
decision that the "impositions" were legal; and again
by an Oxford scholar, Cowell by name, in his law dic-
tionary called "The Interpreter," in which he went so
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far that the first edition was suppressed because of the
criticism aroused in Parliament; and third by the king
himself in a rebuke administered by him in person to
the judges of the Exchequer Chamber in 1616. In this
last case the king declared that his prerogative was
twofold, one ''ordinary" which might be subject to
law and the other relating to his supreme power and
sovereignty, by which he meant his superiority to the
law. This declaration was meant to be the royal inter-
pretation of the fact that the king is at once under the
law and above the law. On its side, Parliament made
two formal statements of what it claimed, one in the
Apology of 1604 and the other in the Protestation of
1621, both of which have been quoted above, but Parlia-
ment stated its position as a matter of fact. It made
no attempt to go back of what the law was and find a
theoretical or scientific foundation upon which to rest
its justification. All that had yet to be worked out by
future experience.
In such assertions as these the king almost necessarily
had a certain considerable advantage. In the past it
had been natural for thinkers to say that sovereignty
resided in a person. Historically there had been little
experience in practice of a sovereign people, or of a
sovereign legislature, and the sovereignty of the people
had not yet been worked out in any theory capable of
practical application. It had been sometimes stated in
CONSTITUTIONAL HISTORY 119
philosophical speculation, but not with any reference
to working forms. It had been sometimes stated in
legal treatises but only in the most abstract way as a
principle on which might be based a very different actual
form of government from any democracy, the imperial
government of Rome for instance. The Roman law
declared that the emperor possessed the supreme law-
making power because the people had vested their
authority in him cum populus ei et in eum omne
imperium suum et potestatem concedit. But it was not
a sovereign people of that kind towards which the
seventeenth century was working.
As a practical matter also is to be reckoned the
revival of impeachment by Parliament during the last
years of James's reign. During the long period of the
strong monarchy, since 1450 in fact, this weapon against
the king had not been used. While Parliament was
under royal control, either because it was too weak to
resist, or because it really wished to support the king's
policy, there had been no occasion for its use. But now
conflict had begun again, and the study of history on
the Parliamentary side speedily restored this weapon
to its hand. In a series of cases towards the end of the
reign of James, some of them experimental, uncertain
as to details of method, one of them at least, the im-
peachment of the Lord Chancellor Francis Bacon,
probably not aimed directly at the king, Parliament
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recovered a knowledge of how to use this method of
attack. Early in the reign of Charles I it put it into
full operation in the impeachment of his chief minister,
the duke of Buckingham. In this case, as has already
been stated, the speakers for the House of Commons
came very near to stating as clearly as it could be done
today, the doctrine that the king can do no wrong, that
the minister is responsible for the acts of the govern-
ment and cannot shelter himself behind the king's
orders ; and the king, insisting on his own responsibility,
found no method of escape except to end the impeach-
ment by a dissolution of Parliament.
The reign of Charles I, at least to 1640, is a natural
continuation of his father 's. Charles was more obstinate
and more short sighted than James, and Parliament had
now a clearer understanding of what was at stake. For
these reasons things drifted more rapidly to extremes
than in the earlier period. By 1628 issues had been
so sharply drawn upon a number of questions of detail
that Parliament was ready to put into formal shape its
position regarding them and to demand that the king
accept the resulting statement of their views as law
binding upon himself.
The formal document in which this statement was
made, which the king did finally agree to, is the Petition
of Right, one of the series of great documents of our
constitutional history which begins with Magna Carta.
CONSTITUTIONAL HISTORY 121
The Petition of Right in spirit, purpose, and method
is exactly in line with the Great Charter. It asserts that
the things to which it demands the king's agreement
were already the law of the land, and it is based upon
the supposition that the king has shown himself so
unwilling to regard these principles that it must obtain
his formal pledge, binding upon his successors as in
1215, to respect them in the future. As a matter of
fact, what the document really does, as was done in a
few at least of the clauses of Magna Carta, is to demand
that Parliament's view of what was lawful should be
accepted by the king instead of any view that may have
been acted upon by earlier kings. The assertion as to
Habeas Corpus may be taken as a typical instance.
Habeas Corpus was a writ designed to prevent the
arrest and holding in prison of a man without just
cause. The writ brought the officer holding the prisoner
before a court of law, most often before the court of
King's Bench, and required him to show upon what
charges he was held. If these were insufficient or
illegal, the court discharged the prisoner. Now Par-
liament asserted that specific reasons must be given in
every case, that the answer that the prisoner was held
by the order of the king or the Council was not satis-
factory. Undoubtedly such a view of the real meaning
of the writ was logical enough, but there is also no
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doubt but that orders of king or Council had been in
the past regarded as a satisfactory answer to the writ.
Under the imperative necessity of obtaining a grant
of money from Parliament because of his unfortunate
war with France, the king was obliged to yield and to
enact the Parliamentary interpretation into law. It
cannot be affirmed that the Petition of Right is of equal
importance in English constitutional history with either
Magna Carta or the later Bill of Rights. It deals with
only four points and the two most important of these,
taxation and Habeas Corpus, needed further and supple-
mentary legislation later in the century. It uses many
words after a fashion of the time and is the least concise
and clean-cut of all our constitutional documents. Its
historical value is to be found less in the enactment of
constitutional principles than in the precedent which
it established in the struggle of that century of the
Parliamentary coercion of the king in constitutional
interpretation, and in the assertion which it made in a
most striking manner of the supremacy of the law.
Not long after agreeing to the Petition of Right,
Charles's patience with Parliament became exhausted,
and there followed the longest period of government
without calling a Parliament together since the House
of Commons began to be. The king's decision to rule
alone was of as vital significance in the history of New
England as of Old. The Puritan party, which had
CONSTITUTIONAL HISTORY 123
arisen in the later years of Elizabeth 's reign, the radical
party in questions of religious reformation and of
opposition to the king, was grown now to be numerous
in England, and seeing his success, began to despair of
the future at home. No more in the church than in the
state did there seem any hope. Laud, in full sympathy
with the king and appointed by him archbishop of
Canterbury, seemed in this interval of arbitrary govern-
ment as certain to carry out his plan as the king. The
age of "comprehension," of liberal blindness to lax
observance of established forms in public worship, was
at an end, and the Puritan who would not make use of
the legal ritual was being driven out of the national
church. Religious liberty and political liberty, as they
were understood by the Puritans, seemed perishing
together in England. In this despair thousands of
Puritan families determined to begin another England
in America and in so doing they rescued the northern
colonies from the gradual encroachments of Dutch and
French.
But more important than the geographical expansion
which the Puritans secured were the constitutional ideas
which they brought to America. There was indeed to
be for these ideas an immediate future in England which
the Puritan emigrants did not foresee, a future in which
they were to be forced to a premature development in
the hothouse process of revolution. But it was to be
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a development short lived and without permanent
influence in the mother country. It was in that other
England which they helped to found across the sea that
the peculiar constitutional ideas of the Puritans in a
slower and more normal development were to bear fruit
for all the world. Nor must the fact be overlooked that
it was not in New England alone that Puritan colonists
settled, nor through New England influence alone that
Puritan ideas affected the future in America.
At home, between 1630 and 1640, everything seemed
to be going as the king and Laud desired. The modern
newspaper was not yet in existence. None of the
machinery of democratic expression, public meetings,
political speaking, party organization, had yet been
devised. Parliament still remained the only organ in
the state by which the general opinion of the nation
could be made conscious of itself, could be created,
gathered, and expressed. By the policy of the king
the opposition was for a period of eleven years deprived
of the opportunity of Parliamentary expression, and it
was in consequence helpless and dumb. The financial
dependence of the king on Parliament, which was at
that date the only thing making a meeting of Parliament
necessary, seemed for the moment at least to be success-
fully overcome. The search for precedents out of the
past came here strongly to the assistance of arbitrary
government, and various expedients for raising money
CONSTITUTIONAL HISTORY 125
were discovered, long disused but not forbidden by law,
like ship-money and distraint of knighthood; or in-
genuity invented means of avoiding the strict letter of
statutes as in the revival of monopolies. By means like
these, and a liberal allowance of debts, the government
managed to meet its current needs during years of no
special financial strain.
CHAPTER VII
THE VICTORY OF PARLIAMENT
Charles I succeeded, as has been said, by his arbitrary
measures in establishing a temporary independence of
Parliament. Governments can hardly hope, however,
to go on for many years without special financial strain,
and the end came for the government of Charles through
yielding to a very natural temptation. So great appar-
ent success had crowned the efforts of Laud to recon-
struct the English church according to the aristocratic
ideas of the high church party, that the conclusion
seemed obvious that with the continued backing of the
king the same thing might be done in Scotland. The
king's ideal of monarchical power would promise to be
solidly established in facts, if Presbyterianism in Scot-
land could be curbed and a subservient church put in its
place. The Scots proved to be, however, too thoroughly
devoted to their national worship. They resisted in
arms, and Charles was compelled to raise and main-
tain an army. That was too great a strain for his
makeshift finances. It became necessary to call a
Parliament.
CONSTITUTIONAL HISTORY 127
In April, 1640, the so-called Short Parliament came
together. It speedily disappointed the hopes of the
king and his advisers. The ablest of the king's sup-
porters, probably the ablest man of the time, was the
earl of Strafford, who as Sir Thomas Wentworth had
been in the early part of the reign a leader of the oppo-
sition but had not been able to follow that party into
its extreme position and had gone over to the king. He
with others urged the calling together of Parliament.
It was hoped that the national antipathy to the Scots
would induce the House of Commons to vote the king
at once such money as he needed to carry on the war,
and then the complaints of the opposition could be dealt
with from a position of advantage. But the leaders of
Parliament were as alive to this possibility as the
advisers of the king, and they insisted on examining and
criticizing the policy which had been followed since the
last Parliament before making a grant of money. When
the king became convinced that Parliament was deter-
mined to keep to this plan, he dissolved it in anger after
a session of three weeks in which nothing had been
accomplished.
But something had been gained. The nation had been
made aware of its own opinion and of the strength
which it possessed as against the king. The members
of the dismissed Parliament returned to their homes
with new courage and new determination, and their
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spirit was reflected in the elections which were held later
in the summer. The king tried the expedient of calling
a meeting of the old great Council, but obtained from
it no permanent relief. It was not long indeed until he
was convinced that he could not go on without Parlia-
ment, whatever Parliament might do, and a new one
was summoned to meet at the beginning of November
of the same year. This is the famous Long Parliament,
which by one stretch of ingenuity or another is reckoned
to have continued in existence for twenty years.
The Long Parliament met in a most determined
spirit. The House of Commons was almost unanimousr
The number of members who were ready to defend the
acts of the king against the attacks of the majority
was very small. The majority on its side was conscious
of the character of the crisis in which they were called
to act, of the issue between monarchy and Parliamentary
government, as no similar body of men had ever been
before in any crisis of English history. In their think-
ing also, in the argumentative defence of their position,
if they had not yet reached any ultimate principles
which they could state, they were at least on the eve
of great advance in that direction. In this advance
of theirs the student of constitutional history, and
especially the student of the antecedents of American
constitutional ideas, is particularly interested. They
could hope also to proceed to extremes against the king
CONSTITUTIONAL HISTORY 129
without interruption, for the Scottish army, known to
be in sympathy with them, had taken its station in the
north of England ready to march on London at a
moment's notice.
The first step of the House of Commons was the
impeachment of Strafford. There was no doubt some
personal bitterness against a man who seemed to the
opponents of the king to be an apostate from their
cause; they were also no doubt afraid of his abilities;
but it is equally true that in him they intended and
conducted an attack upon the king which did much to
bring the fundamental contradiction of the two positions
into light. The accusation was treason. But as yet in
English history there had been no definition of treason
except as an offence against the king. If sovereignty in
reality resided in the king, treason took necessarily the
form of an offence against him. Here was a logical
difficulty insuperable to ordinary and traditional ways
of thinking. Strafford, as the most devoted supporter
of the king in his conflict with Parliament, could not
have committed treason in any historical meaning of
the term. Yet some way must be found of convincing
the House of Lords, on which rested the responsibility
of judging a man upon a capital charge, that they might
righteously find guilty of treason and condemn to death
one who had most faithfully served the king as the king
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himself believed. If this could not be done, the hope
of a successful impeachment must be abandoned.
Forced forward by this dilemma, the leaders of the
House of Commons advanced in the formulation of their
case to a statement which they might logically have
rested on Magna Carta had they known as much of the
true historical influence of that document during the
formative centuries of the past as they believed them-
selves to know of its special clauses. As a matter of
fact, though there had been much thinking on the
Parliamentary side since the king's father began to put
the issue as he understood it into words, they were not
entirely conscious of what they were doing. It is
probable that they were thinking only of the specific
case and its difficulty, though reasoning concerning the
foundations of government had already begun and was
soon to go very far in the democratic wing of the party.
In reality what they did in constructing and endeavor-
ing to prove their accusation of treason was to combine
together the fundamental principle on which Magna
Carta rested with that on which impeachment rested.
If there existed a body of law which the king was bound
to keep, and if the king who refused obedience could
be driven from the throne, made non-existent in the
state, then surely the lesser man, the minister who aided
and abetted the king in his refusal, might justly be
made to suffer the penalties of treason. But they did
CONSTITUTIONAL HISTORY 131
not quite see that this was what they were doing. The
argument in this form was still beyond them. They
still interpreted the past history of the constitution too
narrowly, however rapidly they were advancing in the
understanding of its meaning.
What Pym said in opening the case of the Commons
before the Lords was that Strafford had committed
treason in attacking and endeavoring to subvert the
fundamental laws of the country and the liberties of
the subject; or as it was phrased in the bill of attainder,
where the formal accusation was no longer treason
against the king, but "high treason," against whom or
what not specified, "for endeavoring to subvert the
ancient and fundamental laws and government of His
Majesty's realms of England and Ireland and to intro-
duce an arbitrary and tyrannical government against
law in the said kingdom." The case for impeachment
was not clear enough to convince the Lords, and a bill
of attainder had to be substituted for it. The Lords were
little better satisfied with this form, and it could be
carried only in a very small house by the mob pressure
of Puritan London, and by the same means the king was
made to sign the bill.
There followed several months of active legislation,
mostly destructive in character, in which the king was
deprived of the institutions of arbitrary government,
like the Star Chamber Court, and of the sources of
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illegitimate revenue which had been found for him.
As the end of the first session drew near, it became
evident that the House of Commons was no longer a
unit. The number of those who thought that enough
had been demanded of the king was increasing, and
when the second session opened in October, 1641, the
division of parties was nearly even. The Grand Remon-
strance, the appeal to the nation of the party resolved
to go on with the radical programme, was carried by a
majority of eleven only in a vote of more than three
hundred. Here was the material of conflict unless a
compromise could be found and the Puritan party was
not one of compromise.
Actual civil war began over the question of the control
of the militia, the only organized military force in
England, and the action of the House of Commons in
the matter marks another step forward towards the
doctrine of the sovereignty of the people. When the
king resolutely refused to accept the bill transferring
the appointment and responsibility of militia officers
from himself to Parliament, the House of Commons
resolved to carry out its will by what it pleased to call
an "ordinance," remembering perhaps that there had
been in early times law-making by non-Parliamentary
legislation called by that name, but forgetting that an
ordinance in the fourteenth century was not an act of
CONSTITUTIONAL HISTORY 133
Parliament without the king but an act of king and
Lords without the Commons.
In defence of their action, of their right to make law
without the king's formal consent, the House of
Commons declared: "What they do herein hath the
stamp of the royal authority, although His Majesty,
seduced by evil counsel, do in his own person oppose or
interrupt the same; for the King's supreme and royal
pleasure is exercised and declared in this High Court
of law and council, after a more eminent and obligatory
manner than it can be by personal act or resolution of
his own."
These words do not contain an explicit declaration
of the sovereignty of the people or of Parliament but, if
they are to be scientifically defended, it can be done only
on the ground of the sovereignty of the people expressed
through Parliament. What these words really say is
that sovereignty is exercised by Parliament, not by the
man who holds the name and title of sovereign. It may
be added that they are so entirely assumed to be true
in the present English government that the king is not
supposed to have any will, or opinion even, on any
political question, except that of his ministers.
The war went against the king. In a little more than
two years he was obliged to surrender himself to Parlia-
ment. In a second stage of the war, which followed,
those of the Presbyterian Puritans and their Scottish
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supporters who were ready to make some agreement with
the king in the hope of saving a national church organi-
zation, were defeated, and the democratic wing of the
Puritan party, the Independents or Congregationalists as
they were called from their ecclesiastical teaching, was at
the end of 1648 in sole possession of power. They re-
turned from the field very angry with the king and with
the Presbyterian Puritans for what they believed to be
the unnecessary sacrifices of the second war, and they
immediately proceeded against both. First the Presby-
terians were all expelled from Parliament, leaving of
the Long Parliament the Independents only, a Parlia-
ment which came to be known as the Rump. Then in
a second step they constituted a court to try the king for
treason treason in the sense of Strafford's treason,
against the nation and the fundamental laws, not
against the sovereign person. In the formal charge
before the court they said: "That the said Charles
Stuart, being admitted King of England, and therein
trusted with a limited power to govern by, and accord-
ing to the laws of the land, and not otherwise; ....
yet, nevertheless, out of a wicked design to erect and
uphold in himself an unlimited and tyrannical power
to rule according to his will, and to overthrow the rights
and liberties of the people, .... which by the funda-
mental constitutions of this kingdom were reserved on
the peoples' behalf in the right and power of frequent
CONSTITUTIONAL HISTORY 135
and successive Parliaments; .... he, the said Charles
Stuart, for the accomplishment of such his designs ....
hath traitorously and maliciously levied war against the
present Parliament, and the people therein represented."
In trying the king upon a charge of this kind, the
Independents necessarily broke with the history of the
past, with established form and precedent, even more
completely than they had done before. The House of
Lords, even the little fraction left in that House, would
not go so far. All government was reduced to one House
and its appointees, and again a declaration was adopted
in defence of this position, having especially in mind the
trial of the king. The House of Commons resolved
"that the people are, under God, the original of all
just power; that the Commons of England, in Parlia-
ment assembled, being chosen by and representing the
people, have the supreme power in this nation; that
whatsoever is enacted or declared for law by the
Commons in Parliament assembled, hath the force of
law, and all the people of this nation are concluded
thereby, although the consent of the King or House of
Peers be not had thereunto." But already by this time
the sovereignty of the people and the delegated char-
acter of government had been expressed clearly and
fully by so many mouths and pens that there can be no
doubt it had become one of the ruling ideas of the party.
It had been stated ten years before by Thomas Hooker
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in a sermon which he preached not long after his arrival
in Connecticut in this way : ' ' They who have the power
to appoint officers and magistrates, it is in their power
also to set the bounds and limitations of the power and
place unto which they call them. And this, in the first
place, because the principle of authority resides in the
free consent of the people." Hardly a more striking
example can be had of the transfer of Puritan ideas of
government to new influence and power in America.
It is hardly possible today to do better than these
statements in formulation of the principle of the sover-
eignty of the people and of the representative character
and derived powers of the legislature. We must
remember, however, that in England such ideas were
revolutionary. The new constitution which was fore-
shadowed by them was a break with past history and,
however logically involved in that past, as an experiment
in actual government it had not been prepared for in
experience or in institutions by an adequate political
development. In the details of this advance the Inde-
pendents were influenced by their religious, as well as
by their political training. After a long, slow process
of growth towards democracy, which was not to be begun
for more than a hundred years, England was to come
in reality to these principles, though not in avowed law
and not along a road which led through this age of
revolution. It was American, not English, constitu-
CONSTITUTIONAL HISTORY 187
tional law which was here making its first beginning, its
first essays in imperfect and half conscious formulation,
and it was in America that these principles were
developed in unbroken growth into the government of
a great people.
The execution of the king and the disappearance of
the House of Lords, left the House of Commons the sole
survivor of the national authorities of the old constitu-
tion. But the House of Commons was the Rump merely,
the Independent members, and the real power in the
state was undoubtedly the army and its leading officers.
But the chief influences in army circles had been for a
long time democratic, and years before it succeeded to
power individuals and councils had been busy consider-
ing the foundations of government and the forms it
should assume. A flood of proposals, theories, and
arguments appeared in those years, as characteristic in
tone and substance of an age of religious, as of political
revolution. For the Puritan, especially for the Inde-
pendent, this age was both, and the results he attempted
to accomplish in constitution making are a compound
of the conclusions to which the tendencies of English
history would naturally lead, prematurely conceived,
and the ideas which he drew from the Bible and applied
in the organization of his churches.
Of these suggestions, the most formal and developed
as a proposal to be carried out in government, was that
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which was presented to the House of Commons in
January, 1649, under the title, "The Agreement of the
People." This title conveys to us less clearly than it
did to contemporaries what the document was intended
to accomplish ; but it implies and was intended to imply
what the preamble of the American Constitution asserts :
"We the people of the United States do ordain and
establish this Constitution." It implied that the people
of England by an agreement formally entered into were
to make a written constitution in order to establish a
government and define its powers. As a proposal for
actual government, we need not consider the Agreement
of the People, for it was never put into operation, but
as a landmark in the history of American constitutional
law it is of great importance. The foundation upon
which it rested, the agreement of the people, is the same
as that upon which our constitutions rest, and it was
here proposed for the first time in history as the founda-
tion of a national government. The similar compacts
which had preceded it in America, though they came
from the same ultimate sources and were truly intended
to establish "a Civil Body Politick," served for little
communities of people in which an actual democracy
was entirely feasible, and representative institutions, as
an expedient for working a democracy on a great scale,
need scarcely be considered for a long time. The Agree-
CONSTITUTIONAL HISTORY 139
ment of the People was seriously intended as the consti-
tution of a great nation.
The Agreement of the People was never put into
operation. It was the programme, not of the majority
of the Independent party, but of the more radical
extremists. It has an importance in history, however,
beyond the fact that it was the first written constitution
proposed for a great state. In 1653 the leaders of the
army with the approval of Cromwell drew up another
written constitution, called the Instrument of Govern-
ment, much more concise, specific and practicable than
the Agreement but following its suggestions in many
particulars. This constitution was actually put into
operation and formed, nominally at least, the basis of
the government of England for something more than
three years, the first written constitution in history
which actually created a government of delegated
powers, defined and limited, for a nation. Its history
does not here concern us, nor the astonishing number
of details in which it anticipated later American practice,
for it had no influence on the constitutional history of
England.
The Puritan revolution of these twenty years from
1640 to 1660 marks the division of the stream of English
constitutional development into two branches. For
England it was an attempt to arrive at the logical con-
clusions of that development prematurely, by violence
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and revolution, under the stimulus of religious as well
as political excitement, before an adequate preparation
in ideas and institutions had made the ground ready.
In the reaction which naturally followed, the work of
the revolution was undone. Constitutional development
linked itself back to the results of its more natural
processes in the stage which it had reached at the end
of the first session of the Long Parliament in 1641.
Nearly everything for which the revolution strove is now
I a part of the English constitution, but not as a result
i of its endeavor. Rather as a result of the slower and
Tnore normal process of growth, out of which in a sense
the revolution indeed came but which it for a moment
interrupted. In the Puritan and Quaker colonies of
America the ideas of this revolution created the natural
political atmosphere. There they were not revolutionary,
but became the material from which the normal consti-
tutional life of these little states drew its strength.
Their natural political development began with these
ideas and led, as their population and needs increased,
to more and more extensive realization of them in
practice, until at the last they had large share, with
other influences, in shaping the institutions of the second
great Anglo-Saxon nation.
CHAPTER VIII
THE VICTORY CONFIRMED
The extent of the reaction against the radical party
was shown by the character of the restoration of Charles
II in 1660. The king was restored to the throne with
no constitutional guarantees whatever. Nothing was
said of the sins of his father, nor of the principles which
the great majority of the House of Commons were
determined to defend in 1640. The legislation of the
first session of that Parliament remained on the statute
books, and arbitrary government was to that extent
deprived of the means of operation. But the supremacy
of Parliament was not declared in any formal statement,
nor was the king required to acknowledge that his
powers were limited or derived from the people. So
far as formal pledges are concerned, or formal state-
ments even, with which the new government began,
there was nothing to indicate that anything of a consti-
tutional character had happened since the first of
November, 1641.
Much had happened, however, which affected the
minds of men and which could not be forgotten.
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Charles's statement that he had no wish to go on his
travels again is not of chief interest as the sign of a
cynical character. It was his expression of a profound
political observation which judged correctly the actual
state of things. Charles knew that a great constitutional
change had taken place, though perhaps he could not
have called it that nor defined very clearly its nature.
What he did know very assuredly was that he could not
resist the will of Parliament beyond a certain point, and
by that knowledge he shaped his conduct. It was not
that he was any more willing than his father to submit
to the authority of Parliament or any the less determined
to reestablish an irresponsible royal power. He had a
keener political insight and recognized more quickly the
limits of the possible and understood the consequences
of overstepping them. And so when a Parliament,
which was usually ready to do what he wished, objected
strenuously when he undertook to relieve the non-
conformists of their legal disabilities by proclamation,
he yielded and withdrew from his attempts.
Such an act on the part of the king was highly typical
of the actual situation as it had been left by the Restora-
tion, not in law or formal statement, but in the facts
themselves. In form and law the king was supreme
and sovereign. In fact Parliament was supreme. The
sovereignty in the state, the power of final decision on
every political question, if an issue arose upon it, had
CONSTITUTIONAL HISTORY 143
been transferred to it. Never since that date has it
been possible for the king, so long as the king remained
the real executive, nor for the ministry after the cabinet
had absorbed the executive authority, to withstand the
convinced will of Parliament. No period of later history,
not even the most modern, reveals this result more
clearly than that which followed first, in which the
attempt of Charles I's sons to reestablish the old royal
power met with disastrous failure.
The result in 1660 just described was a compromise;
not less truly a compromise because it was expressed in
facts rather than in words. The question which had
arisen at the beginning of the reign of James I, whether
it would be possible to make the strong monarchy of the
sixteenth century and the strong Parliamentary control
of the fifteenth work together in practice; what
boundary line could be found between king and consti-
tution, had been answered by the discovery of a com-
promise. But it was a compromise of a peculiar type.
As developed in the next hundred and fifty years, it
meant that form and appearance remained with the king,
the reality with Parliament. The words in which the
modern constitutional lawyer states the result are as
accurate as can be found: "Sovereignty resides in the
king in his Parliament." The king is in theory sover-
eign, but his sovereignty can be declared and exercised
only in Parliament. The king gave up the power to
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determine by his individual will the policy of the state,
but the surrender was disguised by an appearance of
power and for a long time by the exercise of very sub-
stantial powers and the permanent possession of im-
portant rights and influence. It was more than a
hundred years before all that the compromise implied
was clearly recognized and the balance established at
its present level. But it was really made in 1660.
In the history of government in the world no event
has ever happened of greater significance or of wider
influence than the making of this compromise. Upon
it depended the spread of the English constitution
throughout the civilized world which is one of the chief
characteristics of the nineteenth century, even if it
should in the end prove that constitutional monarchy
is only a halfway house on the road to ultimate democ-
racy. In this respect it is difficult to overstate the
influence of this compromise. Had the course of English
history led to a constitution in which in form and law
the ministry was directly responsible to Parliament
instead of to the king, not merely would it have been
immensely more difficult to reconcile the sovereign to
a loss of the substance of power, but the adoption of the
constitution by other and unwilling monarchies would
have been made a practical impossibility. The com-
promise feature of the present constitution by which in
theory and in form the ministry, though supreme, seems
CONSTITUTIONAL HISTORY 145
to be the creature of the king and responsible to him,
would have had no existence. The choice which in that
case a successful revolution might offer to a sovereign
between a formal direct responsibility of all the organs
of actual government to the legislative assembly on one
side, and an out-and-out republic on the other, would
have had no particular attractiveness or significance.
The world influence of the English constitution depended
for its existence upon the fact that Parliament came to
control the actual government in fact rather than in
form, indirectly, not directly; that an actual republic
was concealed under all the ceremonial and theoretical
forms of a continued monarchy.
If Charles II knew that Parliament was in reality
supreme, he had no intention of allowing that result to
develop undisputed into the permanent constitution
of the state. With more than average political skill and
aided by the course of events, by the plans of Louis XIV
on the continent, and by the disorganization of the
opposition at home, he was able in the twenty-five years
of his reign to accomplish much. But to rule as freely
as he wished, he found it necessary at last to rule with-
out a Parliament, and during the last five years of his
reign the houses were not called together. The practical
power which in these ways he gathered into his hands,
evading the check of Parliament upon him, and some-
times evading the knowledge even of his own ministers,
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has been said by a student of those times to have been
greater than that exercised at any time by the Tudor
sovereigns. But it was still a practical power, not a
constitutional. The problem before Charles and his
brother, who succeeded him, was the same as before the
Angevin sovereigns of the twelfth and thirteenth
centuries: whether it would be possible to vest in insti-
tutions an existing practical absolutism and make it
constitutional. Charles's premature death gave him no
opportunity to make the trial.
James II began with everything in his favor: the
practical power handed on to him by his brother; the
sympathy and favorable disposition of the nation; a
disorganized and discouraged opposition; a Parliament
ready to do anything in reason which he wished, and
yet he proceeded so hastily and with so little judgment
towards his ultimate goal, which could be reached only
by slow and cautious approach, that within three years
he had destroyed all his advantages and turned the
whole nation against him. It was no doubt a religious
motive, the desire to give Catholicism a better position
in England, that urged James on, but the means which
he employed and the results which unintentionally he
accomplished were constitutional. The suspension or
virtual annulment of the law, so that Catholics might
be appointed to office in the state, in the army, and even
in the church, and all their disabilities be removed; the
CONSTITUTIONAL HISTORY 147
reestablishment of the arbitrary ecclesiastical Court of
High Commission; the violent attack on established
rights seen in the case of the university of Oxford; the
attempt to use the courts as the instruments of his will ;
and the collection of a large army in the neighborhood
of London with which opposition might be overawed,
so clearly revealed the designs of James that all parties
united in an invitation in the summer of 1688 to William,
Prince of Orange, the husband of James's daughter, to
come to their relief. Even the party which believed
in the divine right of kings and which had been urging
that all resistance to the constituted sovereign authority
was sinful, joined the others in this invitation.
The revolution which followed, long known as "the
Glorious Revolution," was sudden, bloodless and com-
plete. James 's power, which had seemed great, suddenly
crumbled to nothing. Scarcely one was found who
dared or wished to maintain his cause. The ground was
swept clean for the Convention Parliament, and it was
free to frame into specific provisions of the law the
principles upon which the Revolution had acted, for
neither William nor his wife could lay any claim to the
throne by divine right or by any right except the will
of the nation. The nation's right through its chosen
representatives to depose the sovereign who would not
keep the law and to determine among all the possible
heirs of the crown who should reign in his place, came
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here, so many centuries after the principle on which it
rested was first laid down, to its most complete expres-
sion. Not that it was here, any more than in Magna
Carta, expressed in formal law. No government is
likely to provide in constitutional enactment for its own
overthrow. But it was expressed in facts and is the
principle of right on which the Revolution rested and
its justification.
With careful observance of every form that could be
observed, with just as little extra-legal or revolutionary
action as was possible, going even to the extent of main-
taining that James had abdicated the throne, the Con-
vention Parliament laid down the terms on which
monarchy would be reestablished in the person of
James's son-in-law and eldest daughter, William and
Mary, and required their consent to them. In that sense
the Bill of Rights, in which these terms were finally
enacted, becomes more nearly a constituent constitu-
tional document than any other in English history.
It is not however a constitution in the American sense,
nor in the sense of the Independents of 1653. It does
not affirm the sovereignty of the people or of Parlia-
ment. It says nothing of the fundamental rights by
virtue of which conditions may be made with the king
before he is allowed to reign, or limitations placed upon
his exercise of power. It does not describe nor define the
organs of government nor lay them out in a detailed
CONSTITUTIONAL HISTORY 149
plan. It concerns itself only with the immediate
practical purpose and deals only with those dangers
against which the experience of the past thirty years
had shown it was necessary to guard. And yet in the
historical explanation which accounts for its existence,
in its logical meaning and necessary implications, and
in the fundamental principles by which alone it can be
justified, it includes all that it omits.
It should be remembered also that the Bill of Rights,
considered as a constitutional enactment, affirmed in
more specific language than any earlier document the
underlying fact of English constitutional development,
that the king has no right to violate the fundamental
laws of the kingdom. To be sure the Bill does not say
this in set terms, but by unavoidable inference. In the
preamble, after enumerating the arbitrary acts of James,
it continues : ' ' All which are utterly and directly con-
trary to the knowne lawes and statutes, and the free-
dome of this realme. " And in the body of the Bill the
same acts are declared to be illegal. The Bill is also as
clearly a contract between the king and the nation as
the charters of Henry I and John were between the king
and the barons, though there was in the seventeenth
century no reminiscence of a feudal contract. It is
made evident in the Bill, though again not expressly
affirmed, that it is in consequence of their recognition
of the illegality of James's acts that William and Mary
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are accepted as reigning sovereigns. In these respects
the Revolution of 1688 and the Bill of Rights mark the
culmination of English constitutional development.
The foundations upon which the constitution rests, the
supremacy of the law, the sovereignty of the nation, are
never again called in question. All the later progress
consists in more and more complete application of these
principles in actual government, the more complete
carrying of them out in practice.
The Revolution of 1688 and the Bill of Rights re-
stored the monarchy with constitutional guarantees.
The arbitrary measures which the Stuarts had employed
were enumerated in specific form, declared to be illegal,
and the recognition of their illegality by the king made
the condition of the possession of the throne. The views
of the constitution with which James I had begun the
century were therefore repudiated and made henceforth
impossible. But the democratic extremes of the Puritans
were equally refused, and the sanction of the law and
of practical success was given to the interpretation of
the constitution towards which Parliament was gradually
working from 1603 to 1642. The Bill of Rights logically
marks the end of this great age of constitutional ad-
vance, for that is what it should rightly be called. It
was not an age of advance in institutions, though a
considerable enlargement of the body of law which the
king must obey in the Bill of Rights and the independ-
CONSTITUTIONAL HISTORY 151
ence of the judiciary, omitted probably by oversight
and enacted a few years later, are institutional in
character. But the great development in the under-
standing and application of the constitution as it existed
in 1603, or we may say as it existed in all its larger lines
in 1399, makes the seventeenth century a great age of
constitutional advance.
CHAPTER IX
THE MAKING OF THE CABINET
The reign of William and Mary opens a new and a
different epoch in the constitutional history of England.
The Stuart interpretation of the constitution was never
again insisted upon by any English king. It is indeed
a little more than two hundred years before any question
of the fundamental meaning of the constitution becomes
a leading one for the nation to decide. It is doubtful
if even that question the real position of the House of
Lords should be considered to concern the fundamental
meaning of the constitution, for it also was virtually
decided in 1688. The characteristic of the new age was
institution making, and the chief institution made is
beyond all question one of the most important of
history, we may perhaps in the end be justified in saying
the most important, for its history is not yet finished.
The new institution was the English cabinet, meaning
by that not the cabinet as a mere institution, but the
cabinet system of government : the cabinet as controlled
by the doctrine and practice of ministerial responsibility.
To understand the beginning of the cabinet system
CONSTITUTIONAL HISTORY 153
we must go back to the Restoration of 1660. The
Restoration was, as we have seen, a compromise by
which the form of sovereignty remained with the king
while the reality was transferred to Parliament. If
fully carried out in practice, this compromise would
mean the direct supervision and control of all lines of
government policy and executive action by the legisla-
tive assembly. Such an arrangement was new to all
human experience and naturally there existed no ma-
chinery by which it could be carried out in practice,
no institutional forms through which a legislature could
exercise an executive authority which in theory it did
not have. Constitutional machinery for the practical
operation of the compromise must be devised, and the
origin and growth of this machinery is the origin and
growth of the cabinet with the principle of ministerial
responsibility to Parliament. Or we may state the fact
in another way: the English system of vesting the
executive authority in a cabinet virtually chosen by the
legislature and held under a close control by it, was the
method finally devised to carry out in the practical
operation of the government of the country the sover-
eignty of Parliament which had resulted from the con-
stitutional advance of the seventeenth century.
It would be absurd to suppose that the men of
Charles II's reign, or any later reign, were conscious
that here was a practical problem for them to solve.
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What they were conscious of at first was some little
difficulty in harmonizing the king's policy and Parlia-
ment's policy upon a common line of action, and such
conscious efforts as were made, as in Sir William
Temple 's plan for a reorganization of the Privy Council,
were directed to creating a mediating, harmonizing body
between these two great powers. These conscious efforts
led to no result. So far as any progress was made under
Charles II, it resulted from the efforts of a small body
of ministers who were in the confidence of the king and
at the same time able to influence the action of Parlia-
ment. The earl of Clarendon, who was for a time one
of these ministers, has described their methods in words
which are especially interesting to us because they
might be used almost without change to describe
methods employed in Washington during the past thirty
years in efforts to bring the influence of the President
to bear on legislation. He says: "These ministers
[Clarendon and Southampton] had every day confer-
ence with some select persons of the house of commons,
who had always served the king, and upon that account
had great interest in that assembly, and in regard of
the experience they had and their good parts were
hearkened to with reverence. And with those they con-
sulted in what method to proceed in disposing the house,
sometimes to propose, sometimes to consent to what
should be most necessary to the public ; and by them to
CONSTITUTIONAL HISTORY 155
assign parts to other men, whom they found disposed
and willing to concur in what was to be desired : and all
this without any noise, or bringing many together to
design, which ever was and ever will be ingrateful to
parliaments, and, however it may succeed for a little
time, will in the end be attended with prejudice. ' '
As a matter of fact, the king was still, and for a long
time after, the real executive. He chose his own minis-
ters and controlled their policy and did not concern
himself with Parliament's approval of them nor con-
sistently with Parliament's approval of his policy. On
its side Parliament naturally regarded the new methods
with some suspicion, as evidence of intrigue in the
king's interest, but it knew no way of exercising its
power of final decision except by making a square issue
with the king, nor of holding the king's servant respon-
sible except by asserting a direct responsibility enforced
by the old practice of impeachment.
The situation in this respect was not changed by the
Revolution of 1688. That Revolution was not a decision
as to particular forms or machinery. What was at stake
once more were the principles which underlay all forms,
and the whole nation showed that it was determined
to maintain the settlement of 1660 so far as that was
a settlement of the fundamental question of the su-
premacy of Parliament. But we may be sure that if
satisfactory constitutional machinery had been devised
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during the reign of Charles II for exercising that
supremacy in practice, it would have been included in
the settlement of 1689. But it had not been, and indeed
in 1689 it was only the fundamental principle of Parlia-
mentary supremacy that was in any sense apprehended.
Neither the range of its application to the operation of
actual government, nor the method of its application,
was yet understood, nor was the latter, which is the
principle of ministerial responsibility applied to the
cabinet, clearly understood for another century.
With the accession of William III this fundamental
question at issue between king and Parliament was
settled, as has been said, never to be raised again. The
characteristic feature of the new age was not a question
of that kind, nor of the interpretation of the constitu-
tion, but it was progress upon the new task of devising
machinery for carrying out in actual government the
compromise settlement already reached. In workable
machinery for this purpose, the age of William III made
no great advance over that of Charles II. The mediating
body still consisted of a small and informal group of
ministers who enjoyed the confidence of the king and
who were influential in Parliament. The king still
retained a very decided control over the conduct of
government, especially in foreign affairs, and he never
dreamed of allowing Parliament any voice, direct or
indirect, in the choice of his ministers.
CONSTITUTIONAL HISTORY 157
William III made, however, in the course of his reign
one very important discovery which was never after-
wards forgotten. He began to reign with a desire to be
king, not of a faction, but of all England, and as what
he thought would be a harmonizing measure, he chose
to have a coalition ministry made up from both political
parties at once. But he soon found out that the easiest
way to accomplish the objects he desired, the line of
least resistance in carrying out his policy, was to choose
his chief ministers from those political leaders who were
best able to secure the support of Parliament, or in
other words from that party which had a majority in
the House of Commons.
This was a great step forward, but it was not yet a
matter of principle. No one supposed it to be more than
a mere matter of convenience, and a long time passed
before its real meaning began to be understood. It was
in truth the beginning of the principle of ministerial
responsibility with all its applications in the present
constitution. It was from this origin that modern
ministerial responsibility arose, gradually and unper-
ceived, and not from the medieval idea or practice. The
medieval was for some time supposed to continue along-
side the new growth, unconnected with it, rather as
opposed to it, for the older method of impeachment was
still thought to be the only means which Parliament had
of controlling the king's ministers.
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Parliament indeed under William was again greatly
troubled by the signs of this new development which it
could see was going on but could not understand. The
government 's policy seemed to be determined by a secret
clique of ministers upon whom it was difficult to fix
responsibility. Not long after the accession of William
and Mary, the House of Commons began to debate
methods of holding the government responsible and
found no satisfactory means. Impeachment seemed to
be slipping out of its hands and nothing taking the place.
Parliament really was losing impeachment because it
was no longer needed or in place. The future struggles
of English history were not to be between king and
Parliament over the establishment of the constitution,
or over its meaning, but they were to be over purpose
and policy in the daily operation of the government
between the leaders of groups of opinion in the nation
whose equal loyalty to the constitution was uncon-
sciously accepted early in this period. In such a situa-
tion it was instinctively felt that it was an unworthy
use of a party advantage to subject the leaders of the
opposition side to a criminal prosecution and, though it
was not yet seen what could be used in its place . to
enforce responsibility, impeachment was tacitly dropped.
How wholly unconscious was the real development
which was going on at that time is strikingly recorded
in the Act of Settlement of the last year of William's
CONSTITUTIONAL HISTORY 159
reign. In clauses four and six of that document Parlia-
ment attempted to destroy the beginnings of the cabinet
system in order to protect what it believed to be its means
of enforcing responsibility and, if those clauses had been
put into force, would have succeeded. Clause four
required that all conciliar business should be transacted
in the Privy Council and not elsewhere, that is, not by
the suspected clique alone, and that the members of the
Council should furnish the evidence of their responsi-
bility by attaching their signatures to the resolutions
to which they consented; and clause six forbad the
election to the House of Commons of any officers of the
crown, including of course the ministers. That is to say,
Parliament had so little conception of how best to realize
its own supremacy that it deliberately tried, in the
interest of an obsolete method, to end the line of progress
which was bringing in the most effective means ever
devised, or apparently devisable, for operating a republic
under the forms of a monarchy.
It was in this stage of the development of cabinet
government that the house of Hanover came to the
throne. George I never ceased in any respect to be a
German and he cared little about the character of Eng-
lish government and understood the constitution and
constitutional tendencies even less. George II had a
greater interest in his British kingdom and a clearer
idea of what was going on in government, but he did not
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know how to interfere with the natural growth of ten-
dencies which were in full course when he came to the
throne. As a result the forty-five years of these two
reigns is a long period of unbroken development in the
history of cabinet government. Nearly half the time is
covered by the ministry of Sir Robert Walpole, a time
of peace and of unnoticed growth. Walpole was not
merely the first prime minister but the first minister
who had something like a clear, though no doubt largely
unconscious, idea of the character of the machinery for
government which was forming and of the principles
according to which it should be consistently operated.
The fact that George I did not understand English shut
him out of the consultations of the cabinet, and George
II did not seriously attempt to restore the king's right
to attend. Decision of government policy in the absence
of the king and without his knowledge made abundantly
clear the sole responsibility of the cabinet for the con-
duct of public affairs, and Walpole saw that this state
of things should require the cabinet to be a unit in policy
and collectively responsible. He had some difficulty in
applying this principle strictly, and other prime minis-
ters after him, and it was not until the beginning of
the nineteenth century that it came to be rigorously ob-
served and a commonplace of thinking about government.
Walpole was also the first minister who consciously
perceived the relation which should subsist between the
CONSTITUTIONAL HISTORY 161
cabinet and the majority in the House of Commons.
He was the first to organize that majority in something
like an official way and to act upon the logical conclusion
that when he lost the majority he must resign. The
progress was rapid under Walpole and it continued after
his fall. Its character is further indicated by the fact
that in 1746 Lord Granville failed in the attempt to
form a cabinet because he could not bring together a
body of men to act with him who would command the
support of Parliament, and also by the fact that in the
same year the king was forced under pressure and
against his will to admit William Pitt to the ministry.
These are full-grown characteristics of the modern
cabinet, but cabinet government was not yet complete
nor perfectly understood by anyone at the middle of
the eighteenth century. The first thirty years of George
Ill's reign revealed how much was still to do.
George III came to the throne in 1760 as a young man
of most decided convictions and intentions. He had
been trained by his mother to be a king in the highest
Tory sense, and he possessed by nature a degree of
obstinate short-sightedness sufficient to prove his Stuart
descent. It was, however, not the policy of the elder
Stuarts which George attempted to carry out. It was
the cabinet system of government which he attacked and
it was that which he failed to overthrow. If neither he
nor his contemporaries understood that system as com-
J
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pletely as we do, he understood at least what its growth
had cost the crown, and this is what he set about to
recover. What might have been the ultimate result
of his attempt if it had been successful, it does not
belong to the historian to say, though it is difficult to
see how constitutional liberty could have survived if
he had been completely successful. But his immediate
plans as he developed them went no farther than to
reestablish the degree of control over the policy of the
government which William III had possessed.
He was at first successful. By forcing devoted adher-
ents of his own into the cabinet which he had inherited
from his grandfather, the cabinet of the great war
minister William Pitt; by creating a strong influence
of "king's friends" in the House of Commons, inde-
pendent of the cabinet; and finally by finding a prime
minister in the person of Lord North whose private
conviction regarding the relation of minister and crown
agreed with his own, he did succeed in recovering for
a time a decided royal influence over the policy of the
government. The highest point of this success was the
ministry of Lord North from 1770 to 1782. The price
which was paid for it was the loss of the American
colonies.
Had cabinet government been understood at that time
as it was a century later, had ministerial responsibility
of the modern type existed then, it is hardly an exaggera-
CONSTITUTIONAL HISTORY 163
tion to say that the American Revolution would not
have occurred. It is at any rate open to belief that if
ministerial and Parliamentary opinion had been free
to form in view of the facts alone, some workable
compromise could have been found between opposing
interests, neither of which desired at first extreme
measures.
The failure of the king's policy to compel the return
of the colonies to their allegiance was also the failure of
his policy to control the cabinet, not at once nor while
he lived with absolute completeness, but so completely
that after the fall of Lord North there was no longer
any possibility of accomplishing the plan with which he
had set out. This fact it is which has led Englishmen
to say that Washington ' ' by his military conduct of the
War of the American Revolution saved English consti-
tutional liberty, as well as won American independence. ' '
The final subjection of the executive to the legislature
in all respects, never again to be seriously resisted, may
be dated from the end of Lord North's ministry in 1782.
The few individual exceptions which occurred after that
date are cases in which the cabinet and the legislature
yielded to the nominal executive, not on principle, but
because it did not seem advisable or worth while to make
an issue on the particular point.
One incident, coming only a few weeks after the
signature of the peace with the United States, might be
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cited as evidence of the continued power of the king,
but it is really more significant of other things. In
December, 1783, George III suddenly dismissed the
coalition ministry, to which he had been obliged to
submit against his will, on their being defeated in the
House of Lords, although they still had a good majority
in the House of Commons. The younger William Pitt,
then twenty-five years of age and just entering upon his
great career, consented to form a ministry in support
of the king. With an overwhelming majority against
him, the new prime minister began a severe and dramatic
struggle with the House of Commons which lasted for
more than three months. He stood almost alone. He
was the only member of the cabinet in the House of
Commons. All the leaders of debate and brilliant
orators of the House, in that most brilliant period of
House of Commons oratory, were against him. The
business of Parliament was at a standstill. The passing
of the appropriations and of the annual mutiny bill
was postponed, and from that date it has been under-
stood that the Parliamentary weapon compelling the
appointment of a minister of its choice is the refusal to
do business with any other.
But Pitt maintained his position boldly with the king 's
support. Twelve successive votes were passed against
him by the Commons, any one of which would now be
thought sufficient to compel the resignation of the
CONSTITUTIONAL HISTORY 165
cabinet. The insistent demand that he should resign
and the anger occasioned by his refusal to do so, fixed
firmly in the public consciousness the duty of a ministry
to give up office on an adverse vote in the House of
Commons. Since the time of Pitt no minister has been
able to maintain himself in a like situation, and it is
hardly probable that Pitt could even then have done so,
if public opinion outside Parliament had not been turn-
ing in his favor. The change of feeling was steadily
reflected in a dwindling majority in the House, and
finally on a defeat by a majority of one only, he dis-
solved Parliament and appealed to the country in a
general election. The country returned him a great
majority and his ministry of nearly twenty years was
securely begun.
Pitt's struggle to maintain himself against a hostile
House of Commons had great influence in bringing
about an understanding of cabinet government and the
principle of ministerial responsibility, but that under-
standing was still far from complete and was only slowly
perfected through another twenty-five years. Two inci-
dents between 1784 and the close of the century show
how incomplete the understanding still was. Three
years after Pitt's triumph the Constitution of the
United States was framed by an assembly of the most
experienced public men and students of politics in
America, who considered with care the question of
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setting up a government to operate in the best way.
One great problem before them, set by the situation of
the time, was to secure a really effective executive while
leaving ultimate authority in the legislature as repre-
senting the people, exactly the problem which ministerial
responsibility solves. In their constitution, however,
not merely did they entirely separate the executive and
legislative departments, then becoming closely united in
England, but they gave little attention to the cabinet,
and they seem to have had no idea whatever of minis-
terial responsibility.
If we may judge by the powers conferred upon the
president in the Constitution and the fact that the
cabinet is not mentioned, merely referred to in passing
in the phrase ' ' the principal officer in each of the execu-
tive departments, ' ' their idea of the head of the state and
his relation to his cabinet seems to have been that which
George III had made familiar to them during the min-
istry of Lord North ; I do not mean that they consciously
thought about it, but that this is the idea which they
would instinctively have. It is altogether probable that
they thought that in this respect they were following the
English model, as beyond question they did when they
adopted impeachment, and certainly, had there existed
in England any such definite idea of ministerial respon-
sibility as fifty years later, there would have been some
discussion of it in the Convention.
CONSTITUTIONAL HISTORY 167
The other incident is even more indicative of English
understanding. In 1791 Parliament under the leader-
ship of Pitt's ministry framed a new government for
Canada. The debate on the bill shows conclusively that
the desire was to give to Canada the same kind of
government which England had, and there can be no
question but that this was honestly intended. And yet
no responsible ministry was granted, nor even proposed,
and the foundation was laid for the later Canadian
rebellion which opened a new era in British colonial
government.
It is from the opening years of the nineteenth century
that we must date a full understanding of the cabinet
system and of the way in which ministerial responsibility
is enforced through it, though even then the under-
standing was rather that of practical action than of
theoretical description. It was not until about the
middle of the century that descriptions of the system
were written that seem satisfactory to us, and well past
the middle before any treatise was published upon the
new constitution as a whole.
CHAPTER X
THE RISE OF DEMOCRACY
While cabinet government was developing during the
long reign of George III, from 1760 to 1820, change of
another sort was taking place in England which had
most important constitutional consequences and may in
the end affect the nature of cabinet government itself.
If so, the future historian will undoubtedly describe this
change as opening a new epoch in England's constitu-
tional history as truly as did the accession of the house
of Lancaster or the house of Stuart. The change which
took place was the economic revolution which began
about the middle of the eighteenth century and its
effects upon population and opinion. Within a few
years of one another a series of discoveries, inventions,
and favoring events combined together to create a new
industrial age. The application of steam to machinery;
the invention of new machinery to which steam could
be applied, especially in the manufacture of cloth ; the
opening up of great stores of coal to make easy the pro-
duction of steam and iron; improved methods of smelt-
ing iron ore to meet the demand made by the increased
CONSTITUTIONAL HISTORY 169
use of machinery ; better means of transportation for raw
material and manufactured goods; and the expanding
markets which followed the peace with France in 1763,
all worked together to one end, an unparalleled indus-
trial development.
But the industrial change brought with it changes in
population and in attitude towards political questions.
Cottage and village industries disappeared. Great
factories grew up and concentrated population. New
large towns were formed and old ones grew larger.
Wealth endowed a new class which arose from among
the manufacturers or from families not prominent
before to take their place in popular influence beside
the old aristocracy. A new political atmosphere began
to form in large portions of the country. The new forces
which were beginning to make themselves felt were less
bound by old ideas, more ready to change, inclined even
to be radical, and deeply interested in certain reform
demands which affected their position in the state or
their local conditions. The political change which re-
sulted from and attended the economic revolution some-
what slowly developed into a great movement towards
a democratic control of government and of all public
interests which has gone on constantly widening and
deepening from that day to this and constantly
achieving more and more of its aims in the management
of national and local affairs.
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Historically we must trace the transformation of Eng-
land into a democracy back to its beginning in the rise
of new centers of population with new and pressing
problems to be solved and to the rise of new classes
demanding political opportunity for themselves. But
it must not be supposed that the changes which this
movement has brought about one after another have
been revolutionary in character. They are the logical
outgrowth, the consummation in practical government,
of that slow drift towards the sovereignty of the people
which began long centuries ago in English history. The
Puritan attempt, in a revolutionary atmosphere and
under the stimulus of radical religious thought, to
accomplish these ends prematurely led to failure in
England, but in America to an earlier and more com-
plete fulfillment of the natural tendencies of the past.
Now early in the nineteenth century, England began an
approach to these same democratic results, slower than
would have satisfied the Independents, but rapid as
compared with the intervening generations.
As soon as the close of the struggle with Napoleon's
attempt at world empire removed a natural but un-
English repression, and the English people had time to
fall securely back into the normal current of their life,
the advance began. About 1828 there opened a great
epoch of reform changes which has continued, with
intervals of lessened activity, to the present day, an
CONSTITUTIONAL HISTORY 171
epoch not merely of destructive but in the highest sense
of constructive legislation. The first steps taken in this
process were towards securing religious liberty by law.
In 1828 the most serious disabilities of Nonconformists,
which had in reality long been obsolete, were removed.
In the next year Catholics were given throughout Great
Britain practical political equality with Protestants,
but it was some years still before Jews were admitted
to Parliament or Nonconformists on equal terms to the
universities. These acts were speedily followed by the
extinction of Negro slavery in the colonies, by the
adoption of free trade, and by the beginning of the slow
process of reform in the criminal law, in the organization
and procedure of the courts of civil law, and in local
government. But in a sense these acts of legislation,
though results of the growing influence of the mass of
the people upon government, are not strictly constitu-
tional measures. The first great step in constitutional
reform, to be followed in time by the most far-reaching
consequences, was the passage of the first Reform Bill
in 1832. The history of this bill and of the steps by
which it made its way through Parliament illustrates
in so many ways the operation of the English cabinet
and Parliamentary system in the nineteenth century
that it should be told in some detail.
The demand for reform in the election of members
of the House of Commons had really been felt before
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the long war with France which began in 1793. No
change had been made in the election laws since the
fifteenth century, and members were still elected from
the counties by the votes of the holders of freehold land
of the annual value of forty shillings, and from an
arbitrary list of boroughs, long regarded as fixed, in
which the right of suffrage was defined in widely
varying ways as each borough had originally determined
for itself. Glaring inequalities had always existed in
the relation of representation to population, to, some
extent in the counties and to a great extent in the
boroughs. The Puritan reformers had dealt with this
matter in the modern sense, but their measures were not
continued, and the inequalities, especially in the case
of the boroughs, were greatly increased by the changes
in population which followed the industrial revolution.
Large new towns arose which had no representation.
Old boroughs lost population heavily. Worse even than
this, the decline of population, combined with limited
rights of suffrage, had put many boroughs sending
members to the House of Commons completely into the
hands of neighboring great landowners who either con-
trolled the election through their ownership, the so-
called pocket boroughs, or found it easy to buy the
required number of voters, the rotten boroughs. The
duke of Norfolk nominated eleven members of the House
of Commons, Lord Lonsdale nine, Lord Fitzwilliam
CONSTITUTIONAL HISTORY 173
eight, and so on. Nearly half the membership of the
house represented in this way private interests rather
than a public constituency.
Near the end of the eighteenth century, about the time
the war with France began, the question of this evil had
been raised in Parliament, and hopeful measures for
reform were under way. The extremes of the Revolution
led to a reaction which continued for some years after
the close of the war, but with the beginning of reforms
in other directions this too was taken up. Early in
November, 1830, Earl Grey, who had been a leader in
the eighteenth-century attempt, expressed in debate in
the House of Lords the hope that this reform might not
be long delayed. The prime minister, the duke of
Wellington, answered in absurdly extravagant praise of
conditions as they were, saying among other things that
if he had been called upon to form legislative institu-
tions for any country he could not hope to do as well,
"for the nature of man was incapable of reaching such
excellence at once." These words proved the spark
which fired the train and revealed how broadly prepara-
tion had been made in the public mind for a decided
change. On the fifteenth of November Wellington's
ministry was defeated in the House of Commons and
resigned. The king sent for Earl Grey who formed a
Whig ministry and went on without asking for a new
election. The House of Commons had nominally a Tory
174 OUTLINE SKETCH OF ENGLISH
majority, but public opinion had declared itself so
clearly for reform that there seemed a chance of securing
a majority for it without an appeal to the country.
The bill was introduced on the first of March by Lord
John Russell, who for twenty years had advocated a
measure of the kind in speeches and motions in the
House of Commons. It passed its first and second read-
ings, but on the second reading the majority in its favor
was only one in a vote of over six hundred. In Parlia-
mentary practice a small majority on the second reading
is considered a defeat. The passing of the second
reading means that the House adopts the principle of
the bill, but the details have still to be settled in com-
mittee of the whole, and experience shows that more
members are ready to accept the general principle of
any measure than will agree together on all the details.
This proved to be the case at this time, and on the nine-
teenth of April the cabinet was defeated by a majority
of eight. Then the ministry appealed to the country.
Parliament was dissolved and a new election ordered,
which was held with electoral reform as the chief issue
of the campaign. The election was one of unusual
excitement and of clear determination on the part of
the reformers. Some pocket boroughs even were carried
against their owners, and a great majority for those days
was secured for the government. So quickly was all
this done that on June 24 Lord John Russell introduced
CONSTITUTIONAL HISTORY 175
practically the same bill again, and its second reading
was carried on July 8 by a majority of one hundred and
thirty-six, and on September 21 it was finally passed by
a majority of one hundred and nine. The House of
Lords was naturally opposed to a measure which seemed
about to destroy the political influence of the aristoc-
racy, but the reformers made a brilliant defence, and
it was only after one of the ablest debates in the history
of the House that the bill was rejected by forty-one
majority in a vote of three hundred and fifty-seven.
The defeat of a government measure in the House of
Lords does not call for the resignation of the ministry
and, sustained by a vote of confidence immediately
passed in the House of Commons, the cabinet decided
to prorogue Parliament in order that a new session
might allow the reintroduction of the bill.
In the interval between the two sessions the public
excitement reached the highest point that had ever
attended any question before Parliament or perhaps
that has ever been known since that time. All measures
familiar to English and American politics to impress
public opinion upon the legislature were employed,
monster meetings, impassioned speeches, processions and
petitions, newspaper articles and pamphlets; in places
there was even rioting by the more radical supporters
of the bill who expected larger results from it than it
really produced. The House of Lords met in the new
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session under no misunderstanding as to the temper of
the majority of the nation.
On December 12 a new bill was introduced consider-
ably improved by the experience of previous debates, and
after another thorough discussion was passed by the
Commons on March 23 and sent to the House of Lords.
Everybody knew that now the real battle was to come,
and the pressure on the Lords was tremendous. It was
generally understood that King William IV had agreed,
though with reluctance, to create a number of Whig
peers large enough to carry the bill through the House,
if this should prove to be the only way in which it could
be saved. On the other hand, it must not be forgotten
that the country had hardly yet recovered a reform
disposition from the reaction which the extravagant
policies of the French revolutionists had caused, that
their excesses were still fresh in mind, that only two
years before there had been another outbreak of revo-
lutions on the continent, and that this measure seemed
to strike at the very foundations of government as they
had existed for centuries, a belief which the radical
supporters of the Reform Bill did nothing to remove.
The mind of a conservative aristocracy, naturally timid
of experimenting with the unknown, had some defence
for itself on this occasion.
Public pressure and the known plans of the govern-
ment were, however, too strong for many minds in the
CONSTITUTIONAL HISTORY 177
House, which were wavering either in opinion or as to
the best policy for the Lords to follow. When the vote
on the second reading was taken, it proved that seven-
teen peers had changed to the affirmative, that some,
including Wellington, had stayed away, and that a net
gain had been made from among the absentees of 1831.
The second reading was passed by a majority of nine.
The fate of the measure was, however, undecided
because it had yet to undergo the dangers of amend-
ment and of adverse votes in committee of the whole,
and in reality such a vote was carried against the
ministry on May 7.
It was now evident that the number of Whigs in the
House of Lords must be increased to a working majority
or the bill be abandoned, and the cabinet asked of the
king the fulfillment of his promise to create peers,
offering him the alternative of their resignation. It
seems clear now that the king had never agreed to
increase the membership of the House of Lords by so
large a number as the ministers thought necessary. He
was himself conservatively minded and somewhat afraid
of the reform, though on the whole loyal to the ministry,
as his constitutional position demanded. When brought
face to face with the necessity of swamping the majority
in the House of Lords in order to carry the bill> he
could not bring himself to act and instead accepted the
resignation of the cabinet.
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It then became the practical question whether the
Tory party in support of the action of the king could
form a cabinet which would be able to carry on the
business of the country, including some measure of
electoral reform which it was now clear to everybody
must be adopted. The duke of Wellington made the
attempt to construct the ministry, but Sir Robert Peel,
who was indispensable, and others refused to serve; the
House of Commons passed a vote of confidence in Lord
Grey's cabinet by a large majority; and renewed public
excitement gave warning of trouble. After a few days
of hard effort, Wellington was obliged to inform the
king that he could do nothing and advised him to recall
Earl Grey. William was forced to yield, though yield-
ing meant agreeing to the cabinet's demands. He
attempted in vain to persuade them to consent to im-
portant modifications of the bill, but he gave them his
promise in writing to create as many peers as might be
necessary. Then of his own motion he took a further
step of more doubtful propriety constitutionally which,
though not objected to at that time, certainly would be
today, by directing his private secretary to suggest to
Wellington and certain others that all difficulties would
be removed by their absenting themselves from the
House when the vote took place. This course had been
already resolved upon by many and the bill was finally
allowed to pass by a large majority.
CONSTITUTIONAL HISTORY 179
It has seemed worth while to relate the history of this
episode in such fulness because there is no case in which
are illustrated in so many points of detail the practical
workings of the cabinet system of government by a
responsible ministry, which is the especially charac-
teristic result in the constitution whose historical devel-
opment we have been following. From 1832 to the
present time the operation of this system has remained
the same with only slight modifications, which will be
noticed later. The relation to one another of three of
the great factors in the government is clearly brought
out in the history of the passage of the Reform Bill and
that of the fourth is implied. The king, the lords, and
the cabinet are shown as they operate together, not of
course in the business details of administration, but in
the higher determination of government policy and the
foundation of all in the House of Commons is indicated.
The king has ceremonial and social functions to
perform which are of great importance in an old society
which, however democratic politically, is still aristo-
cratic in social spirit, but in the determination of
government policy upon any measure his position is
fairly shown in the relation of William IV to the pas-
sage of the Reform Bill. He cannot insist that the
ministry change the details of a measure to make it
accord more nearly with his own views. He may
present his views to the cabinet, either orally through
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some member or in writing, and urge their acceptance,
and they will always be considered respectfully and
fully. In matters of form, as in the famous case of the
note of Lord Palmerston's government to Washington
on the Trent affair in our Civil War, which was modified
at the suggestion of Queen Victoria, or in unessential
details, the advice of the sovereign may often be ac-
cepted, but if the cabinet decides against his views he
must yield.
In William IV 's time when the ministry asked of the
king an act to which he was strongly opposed, it was
thought his right to accept their resignations and to try
the experiment of forming a government which would
not require such an act of him. But when the leaders
of the king's way of thinking, from whom the new
cabinet must be made, came to the conclusion that no
government could be formed which could carry on the
business of the country, then the king must abandon the
attempt. It is hardly likely that any student of the
British constitution would deny the king the same right
at the present day, but the elimination of the king from
the practical government of the country in thought and
habit has gone so far since 1832, that it is exceedingly
doubtful if any sovereign will ever try the experiment
again. The attempt would be from the start so hopeless
and public excitement so great, for it would only be
made on a question of great importance, that the king
CONSTITUTIONAL HISTORY 181
would probably always yield rather than take an appeal
against the cabinet.
It may be said without qualification that William's
conduct in allowing his views about the Reform Bill to
become known would be thought improper in a sovereign
of today. Theoretically the king is supposed to have no
political opinion but that of his ministers, and it would
be a serious breach of etiquette for an English political
speaker to quote the king in support of his argument.
This principle is very correctly stated in a letter of
Edward VII 's which has been published. When he was
asked in writing as to the truth of a rumor that he
was opposed to any change in the policy of free trade,
he replied: "The king never expresses any opinion
on political matters except on the advice of his respon-
sible ministers, and therefore the statement must be
inaccurate. ' '
The only political function which the king can per-
form is to support his cabinet loyally and completely
in such ways as are possible to him, which are not many.
Much was said during the reign of Edward VII of the
activity of the king in the field of foreign relations, and
it is quite possible that he may often serve as a particu-
larly useful ambassador because of the peculiar access
he may have to the inner circles of government. As Mr.
Gladstone has said: "personal and domestic relations
with the ruling families abroad give openings, in
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delicate cases, for saying more, and saying it at once
more gently and more efficaciously than could be ven-
tured in the more formal correspondence and ruder
contacts of governments." It is certain however that
in such a mission the king could take no position which
had not been previously agreed upon or which was not
in harmony with the policy of his government.
The last work which was necessary in bringing the
nominal sovereign into so complete harmony with the
real sovereign in the practical carrying on of govern-
ment was done by Queen Victoria in the course of her
long reign. Her letters, which have been published,
reveal in how many ways and with what sympathetic
understanding this work was carried on, and Queen
Victoria's personal place in the future history of Eng-
land may very likely be determined more by her assist-
ance in this development than by anything else she did.
So entirely is the British sovereign at present in harmony
with the constitution that it is very possible that the
question of the government's remaining in name a
monarchy or being changed in form into a republic will
be determined by other than political considerations.
More decided and dramatic changes have taken place
in the relation of the House of Lords to the other factors
in government than in the case of the kingship, and yet
all the changes which have occurred were virtually
involved in the position of the House as it was revealed
CONSTITUTIONAL HISTORY 188
in the struggle over the Reform Bill. That struggle
clearly showed that the Lords might safely oppose the
popular will, as expressed by the House of Commons,
to a certain point but not beyond it. Their first rejec-
tion of the Bill was clearly their constitutional right,
an appeal to the people with the question : Is this your
deliberate and mature desire? Their second rejection,
after a general election upon the specific question had
declared the popular will unmistakably, was of more
doubtful propriety; and the third rejection after con-
tinued evidence of a national determination certainly
endangered their historical position. What followed,
the determination to coerce the House by the creation
of peers, the failure of the king's attempt to avoid the
necessity, and the final acceptance of the bill as the only
way of escape, revealed for the first time the fact that
the .long progress towards the realization of the sover-
eignty of the people in government had overcome the
aristocracy as well as the king.
A general understanding of this fact was however
only slowly reached. A few years later, on the repeal
of the corn laws, the protectionist legislation in the
interest of the landlord class, the House of Lords was
strongly tempted to resist the reform. Only the great
influence of the duke of Wellington, who explained to
the House clearly and for the first time the powerlessness
to which it had been reduced in the consitution, pre-
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vented a repetition of the experiences of the Reform
Bill. From that time on to near the end of the century,
it was the custom to say that the House of Lords served
the purpose of a brake on the wheel of too rapid ad-
vance, served to make sure that a reform was really
demanded by the mature judgment of the country.
Before the close of Victoria's reign, however, the com-
plaint became very frequent that the brake was applied
only to the measures of a Liberal ministry, never to those
sent up by a Conservative cabinet. Although the
Liberals during these years had raised more men to the
peerage than the Conservatives had done, it had yet
been found exceedingly difficult to keep a family liberal
in the atmosphere of the Lords. The Earl of Rosebery
a few years ago declared in a speech that in his expe-
rience as Liberal leader of the House he had never been
able to count with certain confidence on more than thirty
votes in a membership of over six hundred.
It was a growing sense of the unfairness of this
situation and of the danger of a permanent rejection
of some important measure with its probable effects in
public excitement, enforced and deepened by recent
experiences in the adoption of tax reform measures, that
led to the passage of the Parliament Bill of 1911. If
we regard the English constitution with special refer-
ence to the character of its long historical development,
there is nothing revolutionary about this measure. It
CONSTITUTIONAL HISTORY 185
takes away the power of the House of Lords to post-
pone for more than two years the enactment of a bill
passed by the House of Commons which it has been
made clearly manifest during that time that the public
opinion of the nation demands. This is doing no more
than to describe in statute form, with the time of delay
definitely measured out, the position which the passage
of the Reform Bill of 1832 had shown was really that
of the Lords in the constitution, and this position was
clearly the logical result of the previous development.
The power of the Lords was as much involved in the
seventeenth-century struggle with Charles I and James
II as was that of the king. The final triumph of the
sovereignty of the people demanded as complete and
cordial a recognition of the results from the House of
Lords as from the crown.
The position of the cabinet both in ordinary action
and in times of crisis is illustrated with equal fulness
in the passage of the Reform Bill. This date, 1832, is
the earliest to which we can assign with certainty the
completion of the cabinet system in all its working
details, though it is very likely true that a somewhat
earlier test, had it been applied, would have found its
practical operation as fully understood. The Reform
Bill was a government measure. That is, it was framed
by the ministry, introduced by one of its members, and
remained in his charge during its passage. If it should
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be defeated, or if an amendment upon a vital point
should be carried against the ministry, then the cabinet
must either resign or appeal to the country for its sup-
port upon the issue by dissolving Parliament and
bringing on a general election. A new election can be
the cabinet's choice only under a heavy responsibility.
An appeal to the country upon insufficient grounds,
without some evidence of general support, or merely to
save the ministry time, would be sure to be followed in
the election by severe condemnation, but in this case the
government had every reason to believe that the country
was behind it, and the event proved the opinion correct.
A greatly increased majority for the cabinet was re-
turned by the electors, and the vote was considered a
mandate from the country to go on with the measure.
On the defeat of the second bill in the House of Lords,
the case was different. An election had lately been held
and the government had still a large majority in the
Commons. An appeal to the country was unnecessary
and would have been improper. Instead the cabinet
prorogued Parliament to permit a reintroduction of the
bill in a new session. When the government was again
defeated on an amendment in the Lords, matters came
to a crisis which illustrates the action of the cabinet
at such a time. In asking the king to take a step, the
creation of peers, which it was known that he was very
reluctant to take, the prime minister offered him at the
CONSTITUTIONAL HISTORY 187
same time the alternative of the cabinet's resignation.
At that time, whatever might be done today, the king
chose that alternative, but while the attempt to form
a cabinet of the opposite party was made, the old cabinet
remained in office and carried on the routine business
of the government. When the king was obliged to
admit that his attempt had failed, it resumed its position
as cabinet with reference to Parliament, but now with
the certainty that its advice would be accepted by the
king. The crisis reveals also what it is in the British
system which keeps a cabinet in power or turns it out
of office. It is its ability or inability at any given time
to determine and direct the policy of the government.
If the House of Commons will do business with the
cabinet, then it goes on; if the House of Commons will
not do business with it, no other power can maintain it
in office. If a ministry should attempt to retain power
in the teeth of a hostile House of Commons, the business
of government would shortly fall into chaos and the
attempt would mean revolution. But with the House of
Commons and the opinion of the nation against it, no
ministry would ever make the experiment. This is the
whole theory of government by a responsible ministry.
The House of Commons reflects the opinion of the people
in regard to the policy proposed by the government and
its judgment, which is the judgment of the nation, is
final in the question before it.
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The position of the House of Commons has been
already clearly indicated. It supports the ministry so
long as the policy of the ministry has the support of
public opinion. In times of crisis it may hold up the
hands of the cabinet by a direct vote of confidence,
which is equivalent to a formal declaration to all oppo-
nents that the country is behind the government 's policy.
If public opinion turns against that policy, correspond-
ing changes will take place in the House of Commons
and then in a crisis conceivably the House may adopt a
vote of want of confidence which is a formal declaration
to the cabinet that it has lost the support of the nation
and should resign. If the ministry should prove un-
willing to resign, or an attempt be made to bring into
office a ministry which does not have the sanction of the
people, the House of Commons would refuse to allow
any items of its policy to be enacted into law, and it
would be unable to go on. It is also of course the busi-
ness of the House of Commons to discuss the measures
proposed by the government and to amend and improve
them, but this is a duty which it still shares with the
House of Lords.
CHAPTER XI
The results of the Reform Bill of 1832 disappointed
both its friends and its opponents. It was not followed
by the consequences which had been hoped or feared.
Most pocket and rotten boroughs had been disenfran-
chised and seats had been given new centers of popu-
lation, and these were changes which had been desired.
But though the number of voters had been largely
increased, no important change was manifest in the
character of the membership of the House of Commons,
and no evident progress had been made towards democ-
racy. Corrupt voting was not entirely extinguished,
difficult formalities in the process of registration kept
down the number of voters, and the natural local in-
fluence of family and property combined with all the
rest to reduce the significance of the reform. The
radical supporters of the Bill had never been satisfied
with the concessions which that measure secured and
it was not long before agitation began for supplementary
reforms. The agitators had much material to build with
in the rather general discontent of the working class,
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discontent which was quite as much due to economic
as to political conditions.
The agitation, which reached its height in 1839, is
known in history as the Chartist movement from the
so-called People's Charter in which the radical demands
were stated. These were six in number : universal man-
hood suffrage; vote by ballot, to prevent intimidation;
annually elected Parliaments, to maintain the respon-
sibility of members; payment of members of the House
of Commons, to make possible the election of poor men ;
the abolition of the property qualification for member-
ship in the House, for the same reason; and the
formation of electoral districts of equal population.
The movement was a failure. None of the demands
set forth in the charter was granted by Parliament, but
the agitation did not cease in other ways. The demo-
cratic cause won gradually more and more support
among the classes which controlled Parliament, and the
programme of the People's Charter may be taken as an
epitome of the progress since that day. Three of the
demands, the second, fourth and fifth as given above,
have been fully secured; the first also, with very slight
exceptions which are now about to be swept away and
the limitation implied in the word manhood dropped
as well. The sixth has been fully obtained in principle
and in practice as nearly as some peculiar difficulties of
the situation allow. The second has not been secured
CONSTITUTIONAL HISTORY 191
in form, but the possible life of a Parliament has been
reduced to five years, and the responsibility of members
to their constituents more indirectly but sufficiently
secured. The leaders of the movement of 1839 would
be astonished at the England of today, if they could
return to it, and would be obliged to say that, according
to the standards which they proclaimed, it is a democ-
racy, and that in some things which they had at heart,
the legal protection of the workingman for instance,
progress has gone far beyond their wildest dreams.
For many years after the passage of the Reform Bill
of 1832, there was no serious movement towards a
further lowering of the qualifications for suffrage. It
was not until the time of Lord Palmerston's ministry
during our Civil War that it became clear that further
reforms must be made. The Liberal party of that day
was so divided within its own ranks that it was not able
to perfect and carry a measure on the subject, and the
second reform bill was enacted in 1867 by the Con-
servative ministry of Lord Derby under the leadership
of Mr. Disraeli. It was a further advance along the line
which had been opened up in 1832 but it was plainly
a temporary measure only. It struck out no new
principle and it stopped halfway along the road. In
the boroughs, however, the suffrage was made almost
democratic. It was made possible at least for anyone
who would take the required trouble, except a very few,
192 OUTLINE SKETCH OF ENGLISH
to obtain the right to vote. The number of voters was
increased, but the same sort of tests, virtually property
qualifications, were to be used as in 1832; and more
boroughs were deprived of representation and new and
increased representation given to others and to the
counties.
The interval between the second and third reform bills
was shorter. Reform had lost its terrors during half a
century in which no national calamities had followed
from it. Society had not been disrupted; property had
not been made insecure; and the radical party had not
obtained permanent possession of the government. Not
merely in the intellectual convictions of men, but in
habits of thought and action, democracy had made great
progress, and in 1884 England was ready for a step
which was nearly final. By the act of that year the
franchises which had been given the boroughs in 1867
were extended to the counties and the qualifications for
the suffrage in these two kinds of electoral districts were
made, with some slight exceptions, uniform for the first
time in Parliamentary history. The change did not
quite introduce universal suffrage. It gave the right to
vote to any man occupying a separate dwelling house,
or a part of a house used as a separate dwelling, without
regard to its value, and to those occupying lodgings of
the value unfurnished of ten pounds per year. A young
man living in his father's family, a servant living in his
CONSTITUTIONAL HISTORY 193
master's house, could not vote, but anyone earning day
wages or having an equivalent income who was willing
to meet the conditions was really enabled to do so.
Under this act practically as many votes in proportion to
the population have been cast in a Parliamentary as in
an American congressional election.
At the same time an act redistributing seats and
rearranging electoral districts was passed, making far
more radical changes than ever before. The principle
of the representation of equal units of population is not
quite so exactly realized in England as in the United
States, but there are inequalities with us, and perfect
exactness of measure is not possible anywhere. In the
meantime other acts, perhaps less strictly constitutional
in character, had made the way of democracy easier.
The Australian secret ballot had been adopted ; registra-
tion had been simplified in the interests of the elector;
and a Corrupt Practices Act had greatly reduced the
opportunity to influence elections improperly.
Since 1885 in everything except a few points, less
important practically than theoretically, England has
been a democracy. It is indeed fair to say that, so far
as the immediate influence of public opinion upon
government policy is concerned, England has been for
a generation more democratic than the United States.
The cabinet system of government, the ministry respon-
sible to the House of Commons, losing office when it
194 OUTLINE SKETCH OF ENGLISH
loses its majority, provides a way by which almost
automatically, without waiting for a future election day,
a change of national judgment is carried out in a change
of government policy, provided always that opinion
changes in the House of Commons with the change of
opinion outside. It has done so certainly in the past and
may be expected to do so in the future.
As a further step in the line of development which
we are now following, the progress of the constitution
towards democracy, the enactment of the Parliament
Bill of 1911 should not be overlooked. It has been
described already sufficiently for our purpose, but it
should be remembered in its chronological place that
it did away in law with the power formerly possessed by
the House of Lords of absolute veto of popular measures
which they had already lost in theory. There was no
doubt natural reluctance to have the powerlessness of
the peers so bluntly stated in statute terms, but the law
really did no more than to remove all possibility of a
serious collision between the two houses which came so
near to occurring more than once in the nineteenth
century.
In one particular the Parliament Bill is a distinct
departure from the ordinary English practice. It is the
embodiment of a constitutional principle in a statute;
that is, the principle is legalized in definite words which
state exactly what shall and what shall not be, an
CONSTITUTIONAL HISTORY 195
approach on a single point towards a written constitu-
tion. In this respect it is in line with the Bill of Rights
of 1689 and with some provisions of the Act of Settle-
ment in 1701, rather than with the general trend of
English history, which has left the constitution to be
expressed in unwritten custom and convention.
But a written constitution is not out of harmony with
English history, as is shown by the acts mentioned and
by other legislation in earlier history which has become
obsolete. The reason why the English constitution is
unwritten is not because there is any especial political
virtue about that form of constitution which was fore-
seen and chosen. The unwritten constitution was as
little intended as a Parliament of two houses. It was
an accident of the situation and was due to the fact
that the work which England was doing in constitution
making was new to human experience. The constitu-
tional future could not be foreseen nor planned in detail,
nor the needs of government provided for in advance,
because this road had never been traveled before. The
constitution was slowly made, not according to any
theoretical ideal, but by finding a practical solution for
every problem as it arose. The result in each case was
rather a way of doing things than a formal provision,
though it might be and often was afterwards put into
statute form as a single detail.
It would be absurd to argue from England's un-
196 OUTLINE SKETCH OF ENGLISH
written constitution that the results of her experience
should not now be expressed in a written constitution;
that would be to r elevate an accidental attendant of past
growth into a law of the future. Nor does such a
formulation in writing of the British constitution, as
has been made in whole or in part by so many states,
prevent among them its steady enlargement or modifica-
tion by the continued new creation of custom and
convention. The relation of the president to legislation
in our government is quite different now from that
intended by the constitution, as is that of the Senate to
foreign affairs and to the government in general. Other
instances of enlargement or amendment without formal
enactment could easily be cited. The embodiment of
a principle in statute form never prevents its modifica-
tion by the development of custom and precedent so
long as a nation remains politically and institutionally
alive. A written constitution is as truly in harmony
with English history and its methods of advance as an
unwritten one.
In America in conversation and in discussion in print,
the question is often raised whether England will not
before long become a republic in form, or why she does
not do so. It has been reported that long ago, while he
was still Prince of Wales, Edward VII predicted that
he would be the last king of England. If he ever did
make such a prediction, there has been since his acces-
CONSTITUTIONAL HISTORY 197
sion no progress that can be detected towards its ful-
fillment. There is no body of opinion in England in
favor of such a change, and it is difficult to point out
any political advantage that would be gained by it.
The peculiar and characteristic features of the English"" 1
constitution are certainly as easily adaptable to a
republic as to a monarchy, but such a change of external
form would not make the actual government more
popular or more democratic. On the other hand, as has
been already said, there has been a great advantage, in
the influence of the British constitution on the world
derived from the retention of the monarchy, and it is
not yet clear that this advantage may wisely be given up.
This may be added that the house of Windsor since its
accession has acknowledged so formally and so unre-
servedly that it has no title to the throne except the will
of the nation that it will never be likely to offer any
objection to the change to a republic, if it should be
seriously proposed.
Perhaps the history, considered as constitutional
history in the strict sense, should close with the Parlia-
ment Act of 1911, but a series of important reforms,
parallel in time with the later steps towards democracy,
has materially changed the conditions of private life and
business in England, and they are important factors in
the great change which has taken place in the atmos-
phere, spirit and significance of public life. England
198 OUTLINE SKETCH OF ENGLISH
has been transformed in a hundred years in every
direction, and these reforms to be briefly named are at
once signs of the changes taking place and essential
portions of them. The simplification of judicial pro-
cedure and of the organization of the courts might
properly perhaps be called constitutional. Out of the
uninstructed and undirected development of the middle
ages the system of criminal and civil justice descended
to the nineteenth century full of anomalies and crudi-
ties, with an intricate complex of courts of overlapping
jurisdiction and a cumbrous and dilatory procedure
which favored numerous abuses and made litigation
expensive and tedious. The practical results are familiar
to us today through the novels of Charles Dickens. By
a series of acts beginning in the first reform period of
the century, the system has been greatly simplified and
expense and delay greatly reduced. There are many
differences which strike one between the organization
and administration of justice in England and in the
United States, but the points of similarity are equally
striking in courts and procedure and in the fundamental
law administered.
The progress of democracy in general government was
accompanied step by step with the same progress in
local government. The first reform act on this subject
was passed within two years of the first Reform Bill,
and since that date local and municipal government has
CONSTITUTIONAL HISTORY 199
been made over in the interests of economy, efficiency,
and popular control. About the same time reforms in
the administration of poor relief began, and a little later
in the care of public health, and later still an almost
revolutionary system of public schools and popular
education was organized. Along with these, other laws
were passed regulating work in factories, improving
other working conditions, and protecting the interest of
labor in many ways, while by a series of acts the Irish
church was disestablished and land and other abuses,
of which the Irish had long justly complained, done
away with. It would be absurd to maintain that no
abuses of any kind or in any direction remain to be
destroyed, or that the work of the reform age is finished.
But if a condensed statement of the progress of the
nineteenth century in these ways seems like an exag-
geration, the impression would be incorrect. The
advance has been beyond question rapid and significant,
and the England of today is a different country from
the England which emerged from the war with Napoleon
a hundred years ago.
As this writing comes to an end in the midst of the
great world war, all minds are occupied as much or more
with the future as with the past. Of the great changes
which seem foreshadowed by recent events, one directly
concerns our subject the federation of the British
Empire. The British colonial empire was slowly formed,
200 OUTLINE SKETCH OF ENGLISH
mainly in the eighteenth and nineteenth centuries, and
like the British constitution with no foreseen purpose
and no definite adaptation of means to end. The
process was for a long time drift and accident, and only
by slow degrees and by hard experience did England
learn how to govern her colonies. The lesson was not
really learned until after the Canadian Rebellion of
1837, but it was in the end thoroughly learned.
From the middle of the last century an even more
profound change has been taking place, a change in the
meaning of empire from the idea of dominion and power
and exploitation to the idea of national expansion, a
change which may be characterized in a word by saying
that the term "British empire" is dropping out of
political discussion and the term "British Common-
wealth of Nations" is taking its place. The great
British colonies have become self-governing republics,
democratic in character, and practically independent in
everything that concerns their government and law. At
least it is clearly recognized that there is nothing in
which the power of coercion remains to the home
government. In the meantime other bonds than legal
ones have grown stronger and these have been tested
and further strengthened by the war.
Soon after the middle of the nineteenth century these
new ideas of empire and union began to find expression
in the discussion of imperial federation, of plans for
CONSTITUTIONAL HISTORY 201
a united government of the British commonwealth of
nations. As yet these plans have led to no practical
result but they have grown steadily in definiteness of
purpose and detail, and the Boer War and the present
war have given them great forward impulse. The
proposal of a common constitution for so large a portion
of the earth's surface makes a powerful appeal to the
imagination. Possibilities to be attained and problems
to be solved in constitution making for the British world
seem vaster than ever dreamed of heretofore. When
the obvious difficulties, however, of bringing together
in one government dwellers in five continents are con-
fronted with the tremendous progress in the annihilation
of space and time since 1787, they do not seem relatively
greater than those attacked and overcome in the forma-
tion of the American constitution. No actual consti-
tution has yet been proposed in any official way nor any
official suggestion made looking towards the making of
one, but a history of the English constitution may well
close with the anticipation of this still greater result
to come in the not distant future for it is a normal
outgrowth of the past and the next forward step
naturally to be expected in the long development which
has been sketched.
INDEX
"Agreement of the People,"
the, 138 f.
American race, Anglo-Saxon,
5 f . ; constitutional growth
separates from English, 9,
139 f . ; constitutional law, be-
ginning of, 136 f., 138; con-
stitution framed, 165 f.
Anglo-Saxon, a composite race,
5.
Appropriations of revenue, Par-
liamentary, beginning of,
72 f . ; extension of, 92.
Bacon, Francis, impeachment of,
119.
Balance of power, 99.
Ballot, Australian, adopted, 193.
Baron, the. place in Norman
government, 19 ff. ; attitude
towards reforms of Henry IT,
38 f . ; insurrection against
King John, 43 f . ; disappear-
ance of, 81.
Bill of Rights, the, 122, 148 ff.,
195.
British Empire, spread of, 2 ;
federation of, 199ff.
Buckingham, duke of, impeach-
ment of, 77, 120.
Cabinet system, the English,
origin and growth, 152 ff .,
156; practical operation of,
179 ff., 185 ff.
Canada, government framed for
in 1791, 167.
Catholics, plans of James II for,
146; disabilities removed, 171.
Celtic racial element in Anglo-
Saxon, 5, 13 ; no influence on
constitution, 13.
Charles I, reign of, 120 ff.;
civil war under, 132; trial of,
134 f.
Charles II, reign of, 141 ff.,
153 f.
Charter, the Great, 7, 32, 43 ff.,
55, 80 f., 89 f., 120 ff., 130,
148, 149; provisions and prin-
ciples of, 45 ff . ; the begin-
ning of the limited monarchy,
45; confirmations of, 47.
Charters, the Confirmation of
the, 67 f .
Chartist movement, 190.
Church, the English, growth in
power after the Conquest,
39 ff . ; conflict with Henry II,
40 f . ; place in medieval gov-
ernment, 101 f. ; brought un-
204
INDEX
der Parliamentary control,
101 ff.
Civil rights of the individual at
end of fifteenth century, 94 f.
Coercion of government, the
right of, 46 f., 49, 55, 122,
130.
Commons, House of, origin of,
59 ff., 63 f . ; increase of power
in fourteenth century, 64 ff . ;
in impeachment trials, 78 ; use
made of by Bichard II, 84;
privileges of, 92, 116f. ; atti-
tude in "Long" Parliament,
128 ff.; sole authority after
execution of Charles I, 137;
reform of representation in,
172 ff., 193; how it controls
the cabinet, 187 f.
Constitution, sense in which the
word is used, 12, 15; English,
elements united in, 12 f. ;
Norman origin of, 15; the
feudal, 21 f.; constitutional
government becomes habitual,
88, 91; suspension under Tu-
dors, 99 ff. ; progress of in
seventeenth century, 112f.,
140, 151, 153; a written,
138 f., 148, 1951; spread
throughout the world, 144.
Contract, idea of, in feudal law,
31 f. ; use of to check the
king 's power, 32 f ., 44 ; in
Bill of Rights, 149 f.
Council, the, 22, 23 ff., 34, 83,
90, 128; the germ of Par-
liament, 57; not changed by
growth of Parliament, 59;
legislation by, 73 f . ; orders
in, 75; controlled by Parlia-
ment, 87, 92.
Curia regis, 22, 34.
Debate, freedom of, 84 f ., 92.
Democratic movement in seven-
teenth century, 134 ff., 150,
170; in the nineteenth, 168 ff.,
1901, 1931
Deposition of the king, right of,
89 1, 147 1
Divine right of kings, 108, 109,
147.
Economic revolution of eight-
eenth and nineteenth centu-
ries, 168 ff.
Edward I, and taxation, 66 f .
Edward II, growth of Parlia-
ment under, 68 ; deposition of,
90.
Edward III, Parliamentary tax-
ation under, 71 ff.
Elizabeth, character of age of,
106 1, 108.
Empire, meaning of, 98, 200 1
England, a democratic republic,
10; likeness and contrast to
France in constitutional his-
tory, 36 f . ; international po-
sition in sixteenth century,
981
England, New, effect of Charles
I's policy upon, 122 ff.
INDEX
205
Equity system, beginning of, 35,
74.
Europe, domination of, 98.
Exchequer, origin and business
of, 27 f .
Feudalism, introduced by Nor-
man Conquest, 17 ff. ; charac-
ter of Anglo-Saxon, 18; rela-
tion to beginning of limited
monarchy, 44; its conception
of the state, 52 f . ; decline of,
52, 58, 60.
Foreign policy, democratic con-
trol of, 112; the king in rela-
tion to at present, 181 f.
Fortescue, Sir John, on the
king's place in government,
88 f.
France, likeness and contrast to
England in constitutional his-
tory, 36 f.
George I, and the constitution,
159, 160.
George II, unable to check cab-
inet development, 159 f.
George III, reign and policy,
161 ff. ; and the American
colonies, 162; failure of his
policy, 163.
German Empire, relation of con-
stitution to English, 3.
German source of English insti-
tutions, 13 ff . ; institutions at
time of settlement, 14.
Habeas Corpus, not in Magna
Carta, 45 ; perfected in seven-
teenth century, 114, 121 .
Henry I, growth of royal power
under, 30 f ., 33 ; coronation
charter of, 311, 44, 149;
growth of power of church
under, 40.
Henry II, growth of royal
power under, 33 ff . ; his insti-
tutional reforms, 34 ff .
Henry IV, 85 f .
Henry V, 86.
Henry VI, 86, 105.
Henry VII, 96, 105.
Henry VIII, 103, 108.
Historical argument, the, va-
lidity of, 115.
Impeachment, 10, 56, 82 ; begin-
ning of the process of, 76 ff . ;
as sign of progress, 80; re-
vival under James I, 119f. ;
after the Restoration, 155,
157 f.
Impositions, the, 113, 117.
Independents, the, democratic
wing of Puritan party,
134 ff., 137, 170; break with
the past, 135, 136.
"Instrument of Government,"
the, 139.
"Interpreter," Cowell's, 117.
James I, character and policy
cf, 108 ff., 150.
James II, character and reign,
146 ff.
206
INDEX
Japan, relation of constitution
to English, 3.
Jews, disabilities removed, 171.
John, character and history,
42 ff.
Judicial organization, begin-
ning of modern, 34 f .
Judicial reform in nineteenth
century, 198.
Judiciary, the, independence of,
112, 150 f .
Jury trial, introduction of,
34 f . ; not in Magna Carta,
45; as protection of individ-
ual, 94 f .
Justices, itinerant, established
by Henry II, 34 f .
King, the, place in Norman gov-
ernment, 21 ; .power limited
by the barons, 31 ff. ; bound
to keep the laws, 45 f., 80 f.,
149; new conception of his
duty, 53; can do no wrong,
77; perceives result of con-
stitutional growth, 83 ; place
in government in fifteenth
century, 88 f . ; left in form
supreme at Eestoration, 142 f .,
155; position in present gov-
ernment, 179 ff. See Mon-
archy.
Lancastrian period, constitu-
tional character of, 85 ff .,
90 ff., 93, 110.
Laud, Archbishop, 123, 124, 126.
Law, supremacy of, 5, 122, 130;
beginning of, 45 f ., 49 ; as
against the Stuarts, 109 ff. ;
James I and, 116 ff.; affirmed
by the Bill of Rights, 149 f.
Legislation, modern methods of,
beginning, 73 ff., 92.
Lords, House of, origin of, 59;
in impeachment trial, 78; at-
titude in impeachment of
Strafford, 129 f . ; in the trial
of Charles I, 135; position of
in the constitution, 152,
182 ff.; attitude on first Re-
form Bill, 175 ff.
Magna Carta, see Charter, the
Great.
Monarchy, English, influence on
the world, 10; origin and
character of Saxon, 14; Nor-
man, introduced by the Con-
quest, 17; growth in power
after the Conquest, 28 ff.,
37 f . ; beginning of the lim-
ited, 43, 45, 57, 82; impeach-
ment as expression of the lim-
ited, 77 f . ; growth of the lim-
ited, 91 f.; in the sixteenth
century, 99 ff., 142 ff. ; see
King.
Montfort, Simon de, 60.
Nation, the, non-existent in
eleventh century, 16; begin-
ning as political force, 51 ff. ;
attitude towards Tudors,
100 f . ; growth of in fifteenth
century, 105 f .
INDEX
207
Nobility, rise of modern, 81 ;
factional attitude of, 83, 87,
93, 105.
Nonconformists, disabilities re-
moved, 171.
Norman Conquest, beginning
of our constitutional history,
6 ; changes made by, 16 ff., 24.
North, Lord, as minister of
George III, 162.
Orders in Council, 75.
Oxford, the Provisions of, 51,
55 f ., 79.
Parliament, 7; not in Magna
Carta, 45; beginning and
growth, 57 ff. ; the model, 61 ;
why of two houses, 63; en-
largement of fundamental
law by, 80 ff. ; becomes guard-
ian of the constitution, 82 ;
attacked by Richard II, 84 f . ;
growth of power in fifteenth
century, 91 ff. ; under the Tu-
dors, 100 f., 103 ff.; as op-
posed to the Stuarts, 109 ff. ;
supremacy of after 1660,
141 ff.
Parliament, the "Short," 127;
the "Long," 128 ff., 140;
legislation of, 131 f. ; Presby-
terians expelled from, 134;
the "Bump," 134, 137.
Parliament Bill, of 1911, 184 f.,
1941
People, the, non-existent in
eleventh century, 16; devel-
opment of in fifteenth cen-
tury, 105 f .
Petition of Eight, the, 114,
120 ff.
Pitt, William, earl of Chatham,
in the ministry against the
king's will, 161; George III
and, 162.
Pitt, William, the Younger,
struggle of with the House of
Commons, 164 f.
Precedents, historical, use of in
seventeenth century, 113 ff.
Presbyterian party, political at-
titude of, Scotch, 108, 126,
133 f.; expelled from
"Long" Parliament, 134.
Primogeniture, law of, 90.
Puritan party, effect of Charles
I 's policy upon, 122 ff . ; con-
stitutional ideas of, 123 f.,
132, 137; in America, 124,
136, 140; reform of Parlia-
mentary representation, 172.
Race, meaning of in history, 5 f .
Reform Bill, of 1832, 171 ff.,
185, 189; of 1867, 191 f.; of
1884, 192 f .
Reformation, the, international
effect of, 99; the English,
102 f.
Representative system, origin of,
59, 62.
Responsible ministry, the, 10, 51,
55 f., 112, 144 f., 153, 156;
impeachment and, 77 f . ; ori-
gin of the modern, 157; de-
208
INDEX
velopment of, 157 ff., 165;
why not in American consti-
tution, 165 f . ; not understood
at end of eighteenth century,
165 ff. ; practical operation of,
179 ff., 187.
Bestoration, the, 141 f . ; com-
promise made at, 142 ff., 153.
Revolution, American, 163.
Eevolution of 1688, 147, 157.
Richard II, his attempt against
the constitution, 83 ff ., 93 ;
revolution against, 85.
Richard III, 84, 93, 96.
Roman Empire, influence of, 1 ;
conception of, 98; sovereignty
in, 119; Roman influence on
English constitution, 13 f .
Roses, Wars of the, 87, 93, 96,
105.
Settlement, act of, 158 f., 195.
Sheriff, the, 22 f., 27. -
Slavery, negro, in British colo-
nies, abolished, 171.
Sovereignty of the people, 8, 56,
89, 118, 133, 135 f., 148, 150,
170, 183, 185; declared by
Thomas Hooker in Connecti-
cut, 135 f.
Sovereignty in the state, 111 f.,
113, 1181, 129, 143, 153; in
Parliament after 1660, 142 f.
Strafford, the earl of, 127; his
impeachment, 1 29 f .
Stuart period, 108 ff.
Succession to crown, right of
Parliament over, 89 f ., 94, 96,
109, 147.
Suffrage, Parliamentary, 92,
172 ff., 189, 191 ff.
Taxation, consent to, not in
Magna Carta, 45; brought
into, 67; growth of Parlia-
ment 's power over, 65 ff . ;
right of House of Commons
in, 92; non-Parliamentary by
Charles I, 124 f.
Treason, against king or nation?
129 f., 134 f.
Tudors, the, age of, 96 ff., 110.
United States, the, independ-
ent, 2; share in English his-
tory, 4; Anglo-Saxon in race,
5 f . ; impeachment in, 76 ;
constitution of, *138.
Victoria, Queen, her relation to
government, 180, 182.
Walpole, Sir Robert, develop-
ment of cabinet under, 160 f.
William I, the Conqueror, 16,
34, 39.
William II, Rufus, increases the
royal power, 30.
William III, 147, 152 ff., 162.
World domination, 98.
York, House of, title to crown,
90, 94 ; the constitution under,
93 f., 110.
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