UNIVERSITY OF CALIFORNIA AT LOS ANGELES fr^ -rbttit* GENERAL EDITOR CHARLES H. HASKINS Professor of History in Harvard University 66 CONSTITUTIONAL HISTORY OF ENGLAND BY GEORGE BURTON ADAMS, Ph.D., Litt. D. PROFESSOR OF HISTORY, EMERITUS, IN YALE COLLEGE NEW YORK HENRY HOLT AND COMPANY 3^2,81 COPTBIOHT, 1921 BY HENRY HOLT AND COMPANY ? i 1 4 A .1 *>\ PREFACE I have endeavored in writing this book to keep constantly in view the needs of the general reader and of the college student. I have to join in the recurring lament of those who attempt to write a small book on a large subject that they are obliged to omit so many details and that the task of selection is so difficult. In this book I have especially regretted the fact when I have thought it necessary to omit details which one teacher of English history or another has urged me to include. It seemed to me certain, however, that the chief thing to keep always in mind was to make the con- tinuous growth of the constitution from generation to gene- ration as clear as possible. Details in this line, or which help to make it clear, must be included. Details which are not in the direct line may be omitted, if space demands, and must be if their inclusion would tend to confuse the larger view. I am sure that some teachers will not agree with my selection, but they will not find it a disadvantage that con- siderable opportunity is given for the expansion of the nar- rative by the teacher. I believe the book will be found to include those matters which all teachers agree are essential. It will be especially useful, I think, to expand the Intro- duction into a more full description of the present English government, in order that the student may know from the beginning " how the play is going to end," and what the important differences are between the American and English constitutions. It is desirable also tflbt the student should be well grounded in English political history, which is here taken for granted, or that he should follow the account closely in some manual of the political history. I wish to acknowledge my especial indebtedness to the PREFACE kindness of the Yale University Press, the publishers of my Outline Sketch of English Constitutional History, for per- mission to use parts of that book in the present one. The important steps in the development and the results are indi- cated there, and that book will be found valuable for review and for a summary statement. I am also greatly indebted to many scholars who have made me valuable suggestions and especially to Professors A. L. Cross of Michigan, Wallace Notestein of Cornell, and R. L. Schuyler of Colum- bia Universities, as well as to Professor C. H. Haskins of Harvard University, the general editor of the American His- torical Series. I am sorry that I have not had the advan- tage of Professor A. F. Pollard's Evolution of Parliament, which is not yet available here. G. B. A. New Haven, October 16, 1920. CONTENTS CHAPTER VAOZ General Bibliography ........ ix Introduction i I The Anglo-Saxon Age 5 II The Norman Conquest 5Q III The Norman Period 77 IV Centralization and Law 98 — V — The Grea-t-Ghartjer . — r — t"*~~. \ '. '. 7~~TTr VI^ Tjrowth ol 11111 Constitution an b -uf the Common Law 144 VII The Origin of Parliament 169 VIII The Growth of Parliament 192 IX Premature Constitutional Government . .216 X The Tudor Strong Monarchy 240 XI Parliament Versus the King 265 XII King without Parliament 287 XIII The Victory of Parliament 309 XIV The Victory Confirmed 334 XV The Making of the Cabinet 362 XVI The Growth of the Cabinet 383 XVII The Rise of Democracy 410 XVIII The Age of Reform ,_ , . - . . 434 XIX Democratic England 463 XX The Recent Years 486 Index 505 GENERAL BIBLIOGRAPHY Of the compendious general histories of the English con- stitution, T. P. Taswell-Langmead's is the most satisfactory on the whole for American use, but numerous revisions have affected practically only the most recent periods, and much of the narrative depends too exclusively on the statutes. Its great advantage is that it presents a continuous chronol- ogical account and that the detail is full. D. J. Medley's is more accurate in the earlier portions and has been kept abreast of recent legislation, but it treats the subject top- ically rather than in its chronological development. F. W. Maitland's is based on the lectures given by Professor Mait- land at Cambridge in 1887 and 1888, and is full of sugges- tion for the teacher. It presents the subject in cross sec- tions at five important epochs. J. Hatschek's Englische Verfassungsgeschichte is valuable as giving the views of a foreign scholar and treats of many topics not usually cov- ered elsewhere. It has full bibliographies. R. Gneist's History of the English Constitution, translated by P. A. Ashworth, is still useful, especially for facts not commonly given. J. A. R. Marriott's English Political Institutions, though concerned chiefly with present institutions, is helpful in tracing their historical antecedents. More detailed on the general subject, or on special features of it, are William 'Stubbs Constitutional History of England, in 3 volumes to 1485, which should be used with the two supplements by Petit-Dutaillis published in translation by the Manchester University Press. Henry Hallam, from 1485 to 1760, is still helpful in many details and has been con- tinued by T. E. May to 1860, and May in a third volume by F. Holland to 1911. F. W. Maitland's Collected Papers should be used on a number of topics. The special histories of law, Pollock and Maitland, 2 volumes, to the beginning x GENERAL BIBLIOGRAPHY of the fourteenth century, and W. S. Holdsworth, 3 volumes, for the whole history, c*md the Select Essays in Anglo-Amer- ican Legal History, 3 volumes, are of constant help, as are also F. Makower's Constitutional History of the Church of England, W. Cunningham's Growth of English Industry and Commerce, and E. Lipson's Economic History of England. The general political histories, that edited by W. Hunt and R. L. Poole, in 12 volumes, that by Charles Oman in 7 vol- umes, and the Cambridge Modern History in 13, give much constitutional information and contain valuable bibliogra- phies. C. Gross's Sources and Literature of English His- tory to 1485 should be constantly consulted for bibliograph- ical assistance. The chapter bibliographies that follow are not intended to be complete but are in general limited to the most recent books and articles and to those having a special relation to the subjects of the chapter. For the medieval period they should be supplemented by Gross and for the modern by the bibliographies in the general histories named. ABBREVIATIONS A. and S. Adams and Stephens, Select Documents of Eng- lish Constitutional History. 1901. A. H. R. American Historical Review. Cheyney, Readings. E. P. Cheyney, Readings in English History from the Original Sources, n. d. E. H. R. English Historical Review. Gardiner, Documents. S. R. Gardiner, Constitutional Documents of the Puritan Revolution. 1906. G. and H. Documents Illustrative of English Church His- tory. 1896. Penn. Translations and Reprints, University of Penn- sylvania. Prothero, Documents. G. W. Prothero, Select Statutes and Constitu- tional Documents. 1558-1625. 1913. Rohertson, Statutes. C. G. Robertson, Select Statutes. Cases and Documents. 1919. Stubbs, S. C. W. Stubbs, Select Charters. Ed. H. W. C. Davis. 1913. INTRODUCTION When William, duke of the Normans, set up his tent on the battlefield of Hastings from Avhich the Saxons had been driven beyond power to rally, one of the great transforma- tions of history had begun. For what was decided in that one day's fight was not so much who should be king of that little island realm, then scarcely larger than the state of New York and much below the world's standard of advance- ment. Nor was the chief question at stake whether England should remain cut off from the ancient sources of civilization, and live out her history touching and touched by the larger currents of world affairs as little as her close relatives the Scandinavian states. The really great decision of that day was that a union should take place between two peoples that should awaken a new constitutional life of which neither alone seemed capable. Within a generation, quite as early as we can detect signs of the uniting of the two peoples, we find the beginnings of that new growth under a government which was an almost ideally complete absolutism, and from that day to this without a break that growth has gone on to ever larger results and to ever broadening influence upon the world. In the seventeenth century the line of progress divided into two branches, each developing a distinct type of government, but each drawing its special characteristics and all its life and power of growth from the main trunk. One retained the office of king: the other in the simpler conditions of colonial life established republican government, and thus was created the most striking difference between 2 INTRODUCTION them. But if we compare their constitutions in detail, we find other marked differences in the working out of what are now in both branches democratic governments. To state in brief the side with which we are less familiar: In England the executive is not elected by the people but is in form appointed by the king: in reality he is selected from the leaders of the party which has the majority in the lower house of the national legislature. He is not chosen for a definite term but retains office so long as he can retain his majority in the house. The result is a very close union between the executive and legislative departments of gov- ernment, so that the prime minister and his cabinet are really, as they have been called, a third house of the legisla- ture. In England the people exercise their power in government through their elected representatives in the legislature to a greater extent than in the United States, and the representa- tives assembled in the house of commons are the supreme authority in the state. The upper house, the house of lords, has a very limited power and must give way in the end on any measure which the house of commons is determined to carry. The same thing is even more completely true of the king, who is supposed even to have no opinion on any political question except that of the cabinet in office, and who never expresses an opinion except through his ministers. The house of com- mons also, as the supreme authority in the state, is the con- stitution making body, and every other authority is bound by an act of parliament, even though it changes fundamentally the powers or functions of any part of the state machinery. There is no written constitution, adopted by direct act of the people, and no document of any kind which lays out the different departments of government and defines their functions, powers, and limitations. The constitution is an unwritten body of custom and precedent, the result of un- premeditated growth ; but certain statutes, constitutional in character, do exist which for the most part give sanction to INTRODUCTION 3 limitations which experience at some time proved it necessary to place upon the exercise of one power or another. Though the house of commons appears from these facts to possess a power in the government of England far greater than is lodged in any one part of the American government^ it is in practice more directly and immediately under popular control than any American legislature. The dependence of the cabinet on a majority in the house of commons makes the issue in an election general policy or specific measures rather than men and gives to it the character of a referendum. The fact also that the new parliament goes into session at once after an election makes the popular decision immediately effective. The progress of democracy during the last fifty years has also evolved very efficient methods of bringing public opinion to bear directly upon the members of the house, so efficient indeed that one may begin to question if the representative character of the member is not in danger of disappearing in the character of a mere delegate. We may have before us then in very simple terms the problem of English constitutional history. It is to show how the absolute government of the eleventh century, which centred all power in the king and provided no way in which any will but his could be expressed, was gradually trans- formed into the democracy of today, in which the king has no will and the expressed opinion of the people controls all. It has to show also how more than two hundred years ago the way had been prepared for republican government of the people and by the people, and how the line of growth was then divided into two branches each leading to a result fundamentally similar to the other but differing from it in many superficial aspects. It is the story of a movement slowly beginning, slowly gathering momentum, until at last it becomes irresistible. It involves also an account of the institutions in which, in successive stages of the progress, the government of the state was embodied. CHAPTER I THE ANGLO-SAXON AGE The English constitution like the English nation and the English language was derived from a variety of sources. The territory which came in time to form the kingdom of England was occupied during the first thousand years of its known history by a succession of peoples who ruled it, or large portions of it, in turn and who might each be expected to leave behind a permanent legacy of law and institutions to later times. As a matter of fact they did not all do so. The first ruling race, the Celtic, made probably a large contribution to the blood of the future English nation, but to political and legal institutions practically nothing. The same thing is true of the Romans, so far as their occupation of the province of Britain is concerned. Eng- lish constitutional history has been at one time or another strongly affected by Roman influences, but these influences were not felt at any one moment nor from a single source, and none of them began to act until centuries after the Roman occupation had ceased. From that occupation it- self no influence is traceable upon institutions that are primarily political or legal. The highest authority upon the history of early English law has said: "The written dooms of our kings have been searched over and over again by men skilled in detecting the least shred of Roman law under the most barbaric disguise, and they have found noth- ing worthy of mention. That these dooms are the purest specimens of pure Germanic law has been the verdict of one scholar after another." From the Romans their Teutonic successors in England did learn, either as a result of the occupation or from the 5 6 THE ANGLO-SAXON AGE church, the use of the formal written document, the charter, whether intended to record a judicial decision or a convey- ance, and the will, but they learned no substantive law with the document. They adopted the written will but they did not know the Roman law of wills. In later ages much more was learned and our present indebtedness to Roman law is great. At the Norman Conquest a Roman institutional influ- ence was introduced and some unrecognized influence of law at least. Later still, when the scientific study of law began in the twelfth century, a much stronger influence made it- self felt. Writers of text books and judges on the bench, trained by the new study in more scientific conceptions, were influenced, often perhaps unconsciously, in their formulation and systematizing of native law by the training they had received, but direct borrowing also began more extensively than before until large fields of our law were deeply affected by Roman ideas : the law of marriage and inheritance, equity law, and admiralty and international law for example. These Roman elements in our present law, however, like the Latin elements in our language, were not derived from the Roman conquest and occupation of Britain but from some later influence. It was from the third race of conquerors and colonizers of England that later law and institutions took their rise. But in this case also it was not at any one time that the foun- dation was completed. Three successive waves of Teutonic conquerors made contributions to the common result. The Angle and Saxon conquest, we may count together as the first. The second was the Scandinavian or Danish occupa- tion of the north-east, of something more than half the coun- try. Their contribution was so nearly like the first that, though we may still trace its effects in language, it may be neglected in a general history of institutions. The Norman conquest in the eleventh century was the third, and it brought in a new and vigorous Teutonic influence but from a source widely separate from the others, from the Franks who had CHANCES BEFORE THE CONQUEST 7 conquered Gaul and established a Frankish Roman Empire. In consequence this new source, though it was primarily Teutonic, was Teutonic strongly modified and developed by contact with Roman political civilization through five cen- turies of union in the Frankish kingdom. The modification of the original Teutonic was so great by the date of the Norman Conquest that the differences strike us as more significant that the resemblances, except in a few particulars, and the processes of union between Saxon and Norman into an indistinguishable whole takes nearly, a hundred years really to begin and another hundred really to complete itself. So striking do the differences seem to us that universally we regard the Norman Conquest of 1066 as closing one great epoch in English history and beginning another, though stu- dents of the history do not agree in their interpretation of it and emphasize one feature or another of the change accord- ing to the point of view from which they regard it. In con- stitutional history, in the history of the general government of the state as distinguished from the local, the change was decisive. It was so sweeping that it is no exaggeration to say that the origin of some important features of the con- stitution of the state must be sought in Frankish, not in Saxon institutions. In the field of local government the change was not so great and in some particulars scarcely noticeable. While king and barons constituted the national government in a new way and a new national law governed important relations, the territorial divisions and sub-divi- sions of the state and the law administered in the local courts continued for a long time without apparent change. Much study has been given by scholars to early Saxon institutions and to the history of their development during the period of Saxon rule in England, but the material from which we must obtain our knowledge is so scanty and so difficult to interpret with certainty that about many essential matters we have to confess our ignorance. A scholar reaches a conclusion which seems sound to himself, but the amount 8 THE ANGLO-SAXON AGE of evidence which he can bring to its support, or the method which he has followed, are not convincing to others. One kind of material, codes of law, we have in unusual abun- dance, but the object of the makers of the codes does not seem to have been so much to write down the whole body of the law as to - make a record of changes and memoranda of points that might easily be forgotten. 1 We are conse- quently in the study, of this material also largely shut up to conjecture. Like all primitive people, the Saxon paid no attention to the needs of the future student and recorded, either in documents or in books, only what he had some need of himself or some special interest in. As we draw nearer to the time of the Norman Conquest, the amount and fulness of the material increases, and of the institutions of the Anglo-Saxon kingdom on the eve of the Conquest we have a much more trustworthy knowledge. For the purposes of this stu;dy, it seems likely to be more satisfactory >if we attempt a description of the constitution as it then existed, adding so far as possible some account of how its various features came to be what they were, than to attempt any detailed picture of a development in which so much must be uncertain. In entering upon a study of Anglo-Saxon institutions, the warning which is given to every beginning student of early civilization must be repeated: not to attribute to the minds of that time ideas which are the results of historical growth and experience since their day. The temptation is almost irresistible to assume that they understood by certain terms the same things that we do, and to apply the technical terms by which we characterize practices and customs to similar practices and customs 'among them. In the study of the early history of our own government, the constantly besetting temptation is the word " constitutional." If we could use it only in what is its primary meaning, the way of doing things, and in no other, we should be perfectly justified i Extracts, Stubbs, S. C, 6fi-88. DEFINITION OF TERMS 9 in using it, for there were certainly recognized ways of doing things in government, though perhaps less stereotyped than ours. But it is almost impossible for us to use the word in that sense alone. It means to us a consciously recog- nized fixed procedure, which is known to all men, departure from which is either by law or by convention made impossible, instantly detected and denounced by watchful guardians of the constitution. In the Anglo-Saxon state we find such fixity of forms, such conscious exercise of rights and enforce- ment of obligations, in a field where we are not tempted to use the word constitutional, in judicial procedure, but not in the field of government. In reference to government the word must be used, and interpreted when used, with the greatest caution, or we shall suppose a degree of regularity about government and political procedure, and of conscious think- ing about them, which did not exist. Men did things but they did not reason about their doing, nor did the boundary lines between one function of government and another, nor the distinction between one way of doing a thing and an- other, seem to them important, and we shall be deceiving ourselves if we fall into the way of thinking otherwise. On the eve of the Conquest England was a single king- dom. Its union had been brought about, however, by a long and slow process in which various independent colonies and kingdoms had been amalgamated into one, and this process had left visible traces not merely in the geography of the state but also in its government. The shires into which the kingdom was divided represented in many cases earlier colo- nies or tribal kingdoms, as in the case of Surrey, Sussex, Essex, Kent, Norfolk and Suffolk for example. Details of local law differed quite distinctly in different parts of the kingdom. West and North still retained something of their ancient independence which had to be recognized in the ar- rangements made for the local representation of the central government. The Teutonic tribes which began to take possession of 10 THE ANGLO-SAXON AGE Britain soon after the withdrawal of the Roman troops in the fifth century were from the lowland districts of northern Germany and the Danish peninsula along the shores of the North Sea. In their original homes they seem to have been in their political development among the more backward of the German tribes. They had no tribal unity, no kings or common government, but appear to have been divided into small related groups more or less closely allied with one another. Indeed when they were forced to submit to Charle- magne at the beginning of the ninth century, they were still in this political condition and had not yet developed a king nor any settled government of the tribe as a whole. In one respect this political condition was reflected in the organized settlements established in Britain, whatever may have been the way in which the Saxons conducted their con- quest. No common government was created. Apparently each war band, or perhaps each of the older tribal groups, set up an independent colony of its own, and no effort was made to unite them into one state, nor does any idea seem to have been entertained that such a result would be de- sirable. Almost from the start, however, the process of union must actually have begun, really a process of con- quest among themselves, the swallowing up of the original settlements one by another, which went on for many genera- tions, until first each of the seven historic kingdoms, known as the Heptarchy, was formed and finally the kingdom of England itself under the West Saxon Kings. One result of the conquest we «m-ay imagine was immediate. The war chief, who may have been 'originally chosen, as Tacitus intimates was the case, for his nobility of birth or for his proved abilities, became a king. In the conditions of the settlement upon conquered territory, bordering upon hostile tribes, in almost constant war, this office must have become permanent. At first in all probability it was little if anything more than a permanent war leadership. By de- grees it would assume the character and functions of the DEVELOPMENT OF OFFICE OF KING 11 kingship, of the supervision of the tribe in its more general concerns, in a more orderly and settled state. Whether this was truly the origin of definite government and constitu- tional development in these Saxon colonies or not, at any rate soon after the beginning of the conquest real political organization is to be found in the emerging states, and the institutional details, of which we begin to get traces, link themselves naturally with those described by Tacitus as pos- sessed by the Germans with whom Rome had come in contact in his time. While the origin of the Saxon kingship sketched in the last paragraph is conjectural, there is no doubt but that the continued warfare which existed through almost the whole of Anglo-Saxon history, in the slow process of con- quest which formed a single kingdom and in the long and fierce struggle with the new Teutonic colonization of the Danes, led to a steady development in the office of king after it had once come into existence. The state also grew more definite as it increased in size, its problems multiplied, its machinery was improved and more carefully operated, and the body of law became larger and more complex. The kingship, which seems to have been the most natural form of earTy political organization in times of recordeH history, considerecTas the center of the machinery of government and as the directing head responsible for the going on of all proc- esses, inevitably grew in power as the state grew in definite- ness. It was the kingship which became strong. Whether any given king was powerful or not depended upon himself, upon his abilities and strength of will. In the last century before the conquest, there is an alternation of weak and strong kings with no change in the possibilities of power but only in the character of the king. But the Anglo-Saxon king- ship never became absolute. It never .obtained the degree of power of the Carolingian Frankish monarchy nor ruled over so centralized a state as that in its best days. It never 12 THE ANGLO-SAXON AGE felt, or felt only slightly, the influence of Rome as a model, nor the temptation of the Roman idea of Empire, nor the necessity of borrowing governmental machinery to solve the problems of a small state suddenly become a great one. In consequence the Saxon monarchy developed in power more slowly than the Frankish. It followed very much the same road. It is possible to point out many details in which their history seems alike. But when the end of the Saxon monarchy came in the eleventh century, it was still some generations of development behind the point which had been reached by the Frankish in the ninth. Some of the ways in which the king was limited will be pointed out later, but here it may be said in general that he was limited by custom. As has been said : " His power was subordinate to the cus- toms of his people; he could touch no freeman's heritage or life without a process at law, which gave the freeman the right of defending his cause before his fellow-freemen ; he could make no law without his people's deliberate consent ; he habitually acted by the advice of his counsellors and wise- men, who formed his privy council as it were." This is limitation by an interpretation of his relation to the other elements of the community which had grown customary, by habit and common understanding, not by law. A strong king might push perilously near to an overriding of such limitations, a weak king might have scarcely any initiative at all. In a sense the monarchy was elective, but not in quite the sense which the phrase " an elective monarchy " has for modern ears. Many of the Teutonic tribes that formed states after the fall of the Western Roman Empire give evi- dence in their later practices that the primitive German king had been elected. Traces of the fact lingered as long in the French state as in the English, and are more decided still in the kingdom of Germany. But in no one of these states did there exist what the modern constitutional lawyer "AN ELECTIVE MONARCHY" 13 would term an elective monarchy, as he would use the term of the eighteenth century kingdom of Poland. In the Saxon kingdom of England the crown was hereditary in a particular family, and only in the most extreme case was there any departure from this line, once as the result of conquest jyjd once in the face of a threatened conquest. Some choice was not infrequently exercised within the limits of this family in departure from the line of strict succession. Apparently when it occurred, it was not the deliberate exercise of a recognized right always consciously felt to exist, but the determination of a more or less vague body of leading men, whose decision could not be resisted, or who had influence enough to control the community, to acknowledge one mem- ber of the family as king rather than another, not always on grounds of fitness. What seems most nearly like de- liberative action occurred when a wide departure had to be made from the strict line of succession, or when a new dynasty had to be chosen. But these are contingencies which may arise in the history of any state under any form of constitution. What is significant in such cases is not the act of choice, but the ground of right upon which the actors in the given case suppose themselves to be acting. The same qualifications apply to the cases of deposition of the king which occasionally occur in Anglo-Saxon history, with the proviso that deposition is a more extreme act and there- fore likely to be more deliberate. The Anglo-Saxon church early showed an interest in the monarchy and, in so far as it could be, it was an ally in its advancement. Roman Christianity was introduced among the Teutonic conquerors but little more than a century after their real settlement began. Its beginning and spread in England owed much to the patronage of the kings, and on its side the church, as in other of the forming states of Europe, favored to the extent of its ability union and a strong central government. In its own organization it tended to 14 THE ANGLO-SAXON AGE regard all the Anglo-Saxon settlements as a single people, whatever political separation might exist. 2 The head of the church took the leading part in the coronation of the king, anointing him with holy oil after the manner of the Old Testa- ment and receiving from him his coronation oath. At the end of the tenth century this oath is recorded as follows : In the name of the Holy Trinity, three things do I promise to this Christian people my subjects: first, that God's Church and all the Christian people of my realm hold true peace ; secondly, that I forbid all rapine and injustice to men of all conditions; thirdly, that I promise and enjoin justice and mercy in all judgments, that the just and merciful God of his everlasting mercy may forgive us all. The corona- tion oath sworn by the English kings continued this form almost unchanged for two hundred years after the Conquest. 3 Associated with the king in the general government was an assembly of the chief men of the state, lay and clerical. The Anglo-Saxons called this assembly Witenagemot, the court of the wise men, and the name undoubtedly indicates the principle "'of its 'composition. Its membership was not ^official nordesignated in any way that we should call con- stitutional in the~~moHern sense. No officer nor individual possessed a right to attend. It was not a representative assembly, nor were its members elected. As nearly as we can tell the king determined what persons should attend any given meeting, but it seems probable that his choice was not always free. That is, there would always be holders of certain high offices, archbishops and earls, who could not well be omitted, and certain other persons, so intimately associated with the government of the moment, officers of the king's household and others, that they must be present. Besides these there would always be, it is likely, others, both lay and clerical, so prominent in the-country that they could not be passed over, whose aid was needed or displeasure feared. Apart from 2 Gregory I's letter on English dioceses, a. n. 601, G. and H., 9. aStubbs, S. C, 69, 94; Cheyney, Readings, 105. THE WITENAGEMOT 15 these the king's choice seems to have determined who should come, guided perhaps by the business to be done or the con- venience of the place of meeting. That the witenagemot con- sciously represented the nation in any action which it took is highly improbable. It spoke for itself, for the class which its members constituted, and there was no one else in the nation whose opinion was of any consequence. In this sense its voice was the voice of the nation. In capacity and function the witenagemot was like many primitive institutions undifferentiated, that is, it was accus- tomed to perform, without making an apparent distinction between them in its action, a variety of functions, which we believe should be separated and assigned to different insti- tutions. It was at once the highest legislative and the high- est judicial bod} r in the kingdom, but in saying this we must be careful not to suppose that the Anglo-Saxons attached such definite ideas to these terms as we do. The same body could be at once legislature and court because the ideas ex- pressed by these words were somewhat indefinite. The idea of judicial action was more clearly defined than of legislative. Pr actically all la w was custom^ Legislation consisted less in making law that was entirely new, though no doubt that was sometimes done, than in modifying or interpreting exist- ing law. If this was legislation, it was quite natural that the highest court in the land should be also the national legislature, for a judicial decision was the interpretation and application of the same customary law. The witenage- mot was also the king's council and gave him advice on ques- tions of policy and of action in particular cases, like a mod- ern cabinet council, though without independent power of decision unless there was no king or a powerless king. But the approval and consent of the witenagemot, as that of the ruling class in the state, gave sanction to any act of the king's whether it was the proclamation of a new code of laws, the making of a treaty with another king, or a royal grant of lands. Ecclesiastical matters were as much subject to 16 THE ANGLO-SAXON AGE its approval as those concerning the state, and the church did not possess in the fullest sense an independent right of legislation, or of judicial action, in Saxon times. In his account of the tribal assembly of the primitive Germans, Tacitus speaks of the meeting of two bodies, 4 one a smaller council of chiefs which decided by itself matters of minor importance and prepared for submission to the larger assembly of all the freemen those of greater impor- tance. Apparently the chiefs presented these matters to the full assembly and explained the policy which they thought ought to be followed. The account looks as if they pre- sented -a decision they had themselves already reached, and as if the larger assembly had only a voice to accept or reject. At any rate in the later Teutonic states this, or even less than this, was the only function remaining to such traces of a national assembly as survived in them. The assembly applauded the decision of the council of magnates, never rejected it. Faint traces of this assembly remain in the Saxon, as in the Frankish, state, when something called masses of the people together at a muster of the army or at a coronation, but there is no evidence that it possessed in either state any real influence on legislation, or any in- dependent power of decision. In relation to the ordinary business of the central govern- ment, there developed in the Frankish state a small council- court, alongside the greater assembly of all the magnates or, more accurately, one performing the functions of the larger body during the intervals between its infrequent sessions. It was composed primarily of the officers of the king's house- hold with the count of the palace at their head and of such magnates as happened to be with the king or as had occasion to attend. In Carolingian times a very large share of the judicial business which fell to the central king's court was done by this body. Of the existence of such an institution in England before the Norman Conquest, we get only faint * Tacitus, Oermania, c. 11; Stubbs, S. C, 61. THE SHERIFF 17 traces, not distinct enough to warrant description. Special local king's courts formed on the basis of the ordinary local courts, and created and commissioned by royal writs, seem also to have been wanting, though there is evidence to show that there was no clear boundary of jurisdiction between the witenagemot and the shire court, that in some instances at least cases were tried before shire courts which do not seem distinguishable in character from those tried at an- other time before the witenagemot. 5 On the eve of the Conquest, there existed in the office of sheriff a bond of connection between the central and the local governments which was destined later to be of the great- est importance. In exactly what way the office of sheriff originated, it is now impossible to say with certainty. It seems most probable that its earliest form was a stewardship of the king's financial interests, the care of his domain lands a nd his local revenues, in the territorial divisions, or per- haps only in the subdivisions of the state. When we come to know more of it in the last century of Saxon history, it is an office which had plainly developed out of something filling a less important place in the government, and it was as plainly still increasing in importance. A part of the in- crease in power of the sheriff seems to have been due to the growth in power of the king and in the definiteness of gov- ernment under him, and a part to changes in the functions of another Anglo-Saxon officer, the alderman, whose history we shall consider later and whose earlier functions in part fall to the sheriff. As_the state grew in size, population and business, the interests which the king had to look after in- creased in number and complexity. The representative_of the king's interests in the smaller state naturally developed his duties into the guardianship of similar things in the larger state. It is probably in connection with the expan- sion of the state's territory if it had not been true earlier sH. Adams, Essays in Anglo-Saxon Law, 309-383, gives, with transla- tion, cases before both courts. 18 THE ANGLO-SAXON AGE that the sheriff became the king's reeve in the shire, shire- reeve, that is in the largest division of the state. If this history of the sheriff's office is correct, it indicates the character of his duties on the eve of the Norman Con- quest. His care of the king's revenue in his district was undoubtedly, as it remained for some time afterwards, his most important responsibility. To see that the king's lands were well let and properly stocked and cultivated, and that their returns came in at the proper times, was probably the largest part of his- duty. But he had also to collect and pay over certain judicial fines and fees which belonged to the king from the local administration of justice. These two sources made up, sometime after the Conquest, the larger portion of the county ferm or annual rent which the sheriff paid for his county. There is some evidence to indicate that in Saxon times a beginning had been made towards fixing a lump sum which the sheriff should pay, as a kind of speculation, for these two sources of revenue, but we are not able to say that the process had gone very far. It is a question whether in the most important of his other duties the sheriff did not represent the alderman rather than the king, but even if so the fact remains that the change means the slipping of local responsibilities and powers into the hands of an officer more under royal control than the alderman had been. In this way most likely the sheriff came to be the presiding officer with the bishop in the shire court, not as judge but as chair- man or moderator, to have some responsibility even in the lower courts for the arrest of criminals and the punishment of crime, and to proclaim and enforce laws and royal com- mands throughout his district. In this way also he assumed some of the military duties of the alderman in calling out and commanding the local levies. Although the office of sheriff was still undeveloped and in process of making, the position which it occupied in the state was plainly to be seen before the Norman monarchy took hold of it. A royal officer, appointed by the king and SHERIFF AND KING 19 under his control, not yet seriously affected by the universal medieval temptation to turn a local office into a local prin- cipality, and generic in character, concerned at once with financial, administrative, judicial and military functions, the sheriff's office furnished in days of simple and undifferentiated government a most effective means of centralization. He was a leading man of the locality, thoroughly familiar with local persons and affairs, concerned officially with all the chief activities of the day and entrusted with the care of all the interests of the central government from which he took his orders. He was a close connecting link binding the king with every locality in the kingdom. In this respect the office of sheriff was the most important contribution made by the Saxon state to the later Norman central govern- ment. Not much more than these things can be said of the Saxon central government. There was no national taxation in the modern sense. Early in the eleventh century a gen- eral levy of money had been made to buy off the Danes, and this had been collected at later intervals and called the Danegeld. If it presented the possibility of developing into a modern national tax, no appreciable progress had been made in that direction by 1066, and the state was supported, as the local magnate supported his household, by the proceeds of domain lands and of judicial rights. There was no system of national courts, rising in graded ranks to a supreme court having the right of correcting the errors of lower courts. w The national court, the witejuagemot, might see to it that a man's case should get a trial, if the local courts refused to hear him, but there was no appeal from one court to another in our sense of the word, and no way of reopening a case once decided. Courts of a regularly graded series were not characteristic of the Saxon system of things, but courts of concurrent and overlapping jurisdictions which are puzzling to us. Nearly the same peculiarity characterized the body of the law itself. There was as yet no really na- 20 THE ANGLO-SAXON AGE tional law, though we can see it beginning to form. Rather the tribal law of the three great Teutonic peoples which had made the settlement of England still divided the country between them, as they had once divided the political power: the Saxon in the south, the Mercian in the central west, and the Danish in the northeast. Over, these- local .customs the legislation of the kings made slow progress towards a national law. ~~ It is in the field of local government that the most ex- tensive and by far the most lasting contribution was made by the Anglo-Saxons to the future constitution of their race. All Anglo-Saxon local government was based on a territorial division and sub-division of the kingdom which is particular!}' interesting to us because it has continued with only slight modification in England to the present time and has been reproduced with even more exactness in some of the American states. In a word and taking no account of minor excep- tions, the division was this: the kingdom was divided into shires, also called after the Norman Conquest counties ; the shires were divided into hundreds, a name manifestly derived from some early numerical use and replaced in some parts of the country by other names, like the Danish name wapen- take in the northeast and north; and the hundreds were divided into towns. The early history of all these "territorial divisions is~obscure and need not be here considered. Their character and their place in government at the middle of the eleventh century is the essential matter. At that date all England which was subject to the king was divided into shires, but the shires of the different parts of the kingdom look to us as if they had no common history behind them. Those of the north are larger and seem less settled in character as if they had been more recently formed, indeed they were not all given their present form until after 1066. Those of Wessex seem the most normal and settled as divisions of the state and may represent the tribal settle- ments of which the original kingdom was formed. Those FUNCTION OF THE SHIRE 21 of the southeast, Kent, Sussex, Essex and others seem plainly to stand for earlier kingdoms or independent colonies. These local distinctions, however, were rapidly disappearing in the last century of Saxon history and none of them survived in a way to affect the unity of the Norman kingdom. The chief function of the shire in local government, if we limit ourselves to the Saxon evidence which we have and remember what has been said above of the relation of the legislative and judicial, was judicial. It was the district of the most important court below the witenagemot, the shire court, the court for the most important cases arising locally. 6 As such the^^shire^court was an assembly court, using the term not with reference to the way in wMl'tr'the court was formed but to the way in which it operated. We have no evidence from Saxon times to tell us how the assembly which formed the court was brought together. We can only guess that the method was the same, or was at least tending to be the same, as in Norman times, and it is then that an account of it will be most in place for then this court begins to be of greater significance in history. We know, however, that the court was made up of a considerable assembly which may have descended in some cases from an earlier folkmote. Pres- ent in it as its most conspicuous members were the bishop of the diocese, the alderman or earl, and the sheriff. As there were no independent church courts in the Saxon kingdom, it was the duty of the local courts to interpret and enforce ecclesiastical law as well as secular, and this fact explains the presence in the shire court of the bishop who very prob- ably assumed a leading place, perhaps as presiding officer, when such cases were tried. The regular president of the court was the alderman, if he was present, if not his place was taken by the sheriff, who was inheriting in the last Saxon age many of the alderman's peculiar functions. It is not likely that there would be in any session a three headed, or a double headed presidency, as some text-books seem to imply. •Cheyney, Readings, 77; Penn., I. 2. 21. 22 THE ANGLO-SAXON AGE In the case of the alderman, we have again an office whose early history is obscure but wTiich as an office did not survive the Conquest. It is certain that between the eighth and the eleventh centuries this institution underwent great trans- formation. As nearly as we can make out, it represents in early times the headship of a local unit which stands over against the central government, in contrast with, but per- haps not in opposition to it. Certainly if it was ever in opposition, that feature died out of its history as time went on, and the increasing power of the king drew the office more and more under his control. In historical times the king appointed the alderman, though in practice he often recog- nized hereditary claims and had only a limited power of re- moval. That the king was less bound in either of these ways in the case of the sheriff, indicates a different origin and history for that office. The alderman was the natural head for the shire community, the natural president of its as- sembly, the natural commander of its military levy. Nor- mally he seems to have looked after all those interests of the locality which were not directly associated with the govern- ment of the king. These latter interests were the sheriff's normal field. As official head of the local judicial system, the alderman received in some parts of the country one third of the proceeds of court fines and fees, called the third penny of the county, and tins payment, together with an association of the title with some particular county, con- tinued for generations after the Conquest to show that " earl " had once been the name of an officer. In the last Saxon century,, however, a great change was taking place. The alderman was ceasing to be what he had once been and coming to be something new. The change in character was accompanied with a change of name: the alderman comes to be called the earl, and the change seems in some way to be associated with the occupation of England by the Danes, from whom the new name comes. The earl of Edward the Confessor's reign was less the representative of a local com- THE SHIRE COURT 23 munity than the ruler, governor or viceroy, of a shire, or two shires, or even a larger group of shires. His functions were vague ; his power from his position was large. The change looks like the beginning of the shift from the Saxon alder- man to the Norman earl with its power derived not from office but from rank, dignity and wealth. As this change went on, older functions of the alderman fell to the sheriff, and we find the latter not merely commanding the local levies but somewhat more regularly presiding in the shire court. The president of the shire court was not a judge. He was a chairman or moderator only. The judgment was always made by the assembly itself, or by a group of its members which we should call a committee, to whom it as- signed the duty, and because it reached its conclusions in this way I have called it an assembly court. The judgment of the assembly alone was not, however, final. In all the early Teutonic courts, and in the courts derived directly from them, the president had the power of absolute veto on all its acts, and the decision of a suit at law was not legally valid until accepted and pronounced by him to be the judg- ment of the court. Sometimes the pronunciation of such a judgment is given us in the records and chronicle accounts as if it were the independent judgment of the president of the court, declaring his own opinion rather than that of the court, and we cannot be absolutely sure that this was not sometimes the case, but such detailed accounts and descrip- tions of judicial action as we have render it highly improb- able. How the assembly reached its decision we do not know. In some way it got at the majority opinion, and such glimpses as we get later of the action of similar courts imply some free discussion and an opportunity at least for a good deal of influence of the president on the decision before it was made, and undoubtedly the leading members also exercised a decisive influence. Judgment by something like a com- mittee seems to have been very common, but never became official. From the judgment once made no appeal was pos- 24 THE ANGLO-SAXON AGE sible, though those who had made it might be sued for dam- ages, or if they had taken an oath in the process, the}' might be put on trial for perjury. The hundred court was almost exactly like the shire court, except that it was the court of a subdivision of the shire. 7 It was formed apparently by the same method, whatever that was, may also have represented an earlier folkmote, was pre- sided over by a hundred man or hundred alderman, and in some of its functions by the sheriff, and it was an assembly court operated in the same way. Still more important is it to note that, so far as its judicial action is concerned, it was of concurrent jurisdiction with the shire court, and it enforced and interpreted the same body of law. Apparently any case which was brought in one of these courts might be brought in the other. What determined the court into which a particular case should go was the wish of the parties, especially of the plaintiff, and the importance of the case. An insignificant action, or one concerning people of low rank, would not ordinarily be brought in the shire court. As between the two courts, the hundred court was in much more frequent use in litigation, and was the normal and habitual court for all ordinary commercial and police busi- ness. The shire court was occasionally used by the central gov- ernment for administrative purposes. We have a few letters addressed by the king to its officers and apparently through them to it. If the Saxon kingdom had gone on, it would very probably have developed in time larger use of the shire assembly in this kind of business. But for maintain- ing local order, and punishing crime, and exercising control over individuals, it was the hundred court that was most frequently used. This was preeminently the police court of England, in so far as police matters were the care of the general government. About the middle of the tenth century » Stubbs, 8. C, 80-S4. THE KING'S PEACE 25 under King Edgar a famous law was made for the pursuit and arrest of thieves, using the hundred as a unit and similar in character to a Frankish arrangement for the same purpose of much earlier date. Edgar's legislation also required that every man should have a borh, or some one of standing in the community who should produce him for justice, if he should do wrong, or be responsible for his punishment, bear- ing it himself if the accused escaped. 8 About the same time also we get evidence of the existence of the tithing , an insti- tution connected originally, it is probable, rather with the town than with the hundred, in which a small number of men, usually ten or twelve, were grouped under a tithing man and held to collective responsibility for the capture of criminals. These two institutions form the basis of the frankpledge sys- tem of Norman times. One institution common to the early German states of whose constitutional history we have some knowledge should not be overlooked in any account of Anglo-Saxon criminal law, especially because of its importance in the develop- ment of the later law — the king's peace. An offence or misdemeanor was a breach of the peace, an ordinary offence a breach of the nation's peace, or the peace of the shire, or of the sheriff, but offences committed against the king, or on his property, or in his immediate vicinity, as being a breach of his peace, were punished with heavily increased penalties. An extension of this special, protective king's peace might be granted to a locality to be proclaimed through the hundred or county by the sheriff, serving as an addition to the general peace of the nation and carrying these increased penalties. Special protection of the sort might also be extended by the king by formal oral or written act to individuals, or places like highways, or to special occa- sions like feast days. Punishment of a breach of the king's peace was specially reserved to the king hiinself, that is it did ~"s Stubbs, fif. C, 83-85. 26 THE ANGLO-SAXON AGE not belong among the pleas falling to the sheriff as adminis- trator of the county, and was subject to special penalties which went to the king. The town as a territorial subdivision shows signs of being a more primitive and earlier institution than the hundred or the shire. While it is normally a division of the hundred, this is not true without exception, for there were towns which formed parts of more than one hundred, and other towns which were parts of no hundred. But in the hierarch- ical gradation of local government and justice, the state- ment is accurate enough. The township community was smaller than the hundred and of a subordinate place, and its police responsibility was less extensive. In the great ma- jority of cases the town was actually as well as normally a constituent part of the hundred and seems in Norman and probably in Saxon times to have been the unit of the hundred organization. If the free village community existed among the early Saxon settlers, as it probably did, the town of later times is its descendant and represents in England the village or dorf of which we get occasional glimpses on the continent, even in the same relation to the hundred. Scholars have not agreed upon the existence of a town court as a minor com- munity court, but the evidence inclines strongly in its favor, both a priori from the necessity of a mutual regulation of community affairs and positively from the character of the business done by the later domanial court of the manor. It is into the manor of post-Conquest days that the town dis- appears, and it is the domanial manor court that continues the functions of the town court. These concerned affairs of very minor if any importance to the state as a whole : the regulation of cultivation and the care of stock, disputes as to the boundaries of tenements wholly within the town and title to them, and minor misdemeanors and police offences. Any case of importance would go directly into the hundred, not into the town court. The regular subdivision of the state as a matter of police TOWN AND LORD'S COURT UNITED 27 jurisdiction and supervision by public authorities had been to a considerable extent broken into by the time of the Con- quest by the growth of private institutions. The rise of private lordships, the extensive practice of commendation, by which poorer men placed themselves in a relation of per- sonal dependence upon the more powerful in return for pro- tection, and the growth of forms of dependent land-holding which remain rather obscure to us, were evidently common features of middle and later Saxon times. 9 With these lord- ships, which seem in many cases to have corresponded in area with a town or perhaps with two or more towns or even with a hundred, local rights of jurisdiction and re- sponsibility for local police became united. The process of such union was simple and easy, for the lord of many serfs would have naturally, without attention to the matter by the state, the duty of seeing that their disputes with one another about their rights were settled, and that their of- fences against one another and against good order were pun- ished. When the lordship came to agree in territory with the town, it was almost inevitable that the original town court should be absorbed into the lord's court and the two become one. It would instinctively be felt to be absurd to hold two courts doing the same kind of business for the same community of people. Perhaps the process of unsanctioned absorption occurred in the same way when the lordship ex- tended over a hundred, but the interest of the state was not so easily overlooked in this case and the agency of the king is often manifest. He conveyed into private hands in a number of instances by formal act the jurisdiction of a hundred, or of a fraction of a hundred, and so gave a legal recognition to a result which had taken place outside the law. 10 In consequence numerous private lordships and pri- vate jurisdictions cut into the normal organization of local government and formed a substantial foundation for a 9 Perm., IV., 1, 3, 5. w Penn., IV., 3, 13. Cf. Stubbs, S. C, 122. 28 THE ANGLO-SAXON AGE manorial system and for the royal grants of " liberties " so extensively developed after the Conquest. In all these courts, public or private, the forms of proce- dure by which a case was tried were alike. They seem to us primitive and crude but, as applied by the common judgment of the community, they probably secured a rough justice, at least they continued in use in these local courts for two hun- dred years after the Conquest and remained possible of use for centuries longer. The Anglo-Saxon courts stood in a middle position between the early days of private vengeance, when the individual secured justice for himself with the aid of his kinsfolk, and modern times when the state takes charge of the whole process to the exclusion of private action. The individual still did many things which today he would not be permitted to do : he summoned his opponent into court, appointed the day of trial, and in some cases he executed for himself the judgment of the court. But the state had taken possession of the major portion of the process, and it stood behind the individual in his portion, regulating and enforcing what he was still permitted to do. The oath played a great part in all these early trials, and in passing judgment on it as a means of securing jus- tice, we must remember two things. 11 First, that these were the courts of small communities. The men who formed the courts were neighbors of one another ; every man's char- acter was well known ; their business concerns were simple also and well known to each other. Second, there was a genuine belief in the constant occurrence of miracles. An oath was an appeal to heaven and such an appeal, if false, was likely to be terribly punished on the spot or later. Sto- ries of the tragic vengeance of heaven upon such sinners were in common circulation and commonly believed. It was a very hardened reprobate who could take an oath he knew to be false in the presence of people who knew him well, with- out betraying by some nervousness, hesitation or change of 11 Penn., IV., 4, 3-18. EARLY COURT PROCEDURE 29 color, his sense of the awful risk he was consciously taking. If he showed any of these symptoms, or mispronounced the formula of the oath", he lost his case. The parties being before the court, tne first step was a foreoath by the plaintiff in which he stated his case, some- times with others to support him, called his suit or secta, and then an oath in rebuttal by the defendant, if he could take it, in which he denied the plaintiff's facts. Then fol- lowed a judgment of the court declaring which of the two parties should make proof. This judgment indicated, as a preliminary judgment, the opinion of the court as to where justice lay. between the two. Almost always, if the defend- ant had successfully taken the oath in rebuttal, the proof was awarded to him, because there was a kind of natural presumption in his favor. But in special cases, which do not seem to have been of common occurrence, the court might judge otherwise and award the proof to the plaintiff. Proof was made in the following session of the court. Some- times proof consisted in the production of witnesses who could swear to their principal's statement of the case as of something which they had themselves seen and heard. Usu- ally it consisted in another oath of the one who had been awarded the oath, but now with oath-helpers or compurga- tors, who swore not to the justice of their principal's case but that they believed his oath. Generally the number of oath-helpers whom- a man must find was fixed by custom and varied according to the rank of the parties, but the court might fix the number for the particular case or decide that they must be found, not from the community at large, but from a limited list of names which it drew up. If the number required was found, the case was won. It is not difficult to see the reasons which underlay, the apparent formalism of this procedure. The judgment of the court awarding proof indicates the opinion of the community about the case, but the process of finding the oath-helpers tests that judgment still further and in a more specific way. Theoretically at 30 THE ANGLO-SAXON AGE least a heavy responsibility for his opinion on the case lay upon the oath-helper. A man might easily be willing to agree to a general judgment in the defendant's favor and yet not be willing to take the more specific oath as oath- helper. Almost always, however, the party to whom the oath was awarded found the required number of helpers. With the increase of population and the growing complexity of business, the knowledge of the communal assembly be- came less and less able to furnish any real check on false swearing, and in the last stages of its use this system of proof was subject to many abuses. A criminal trial was the same in form as a civil trial, a suit between the injured party, or his kindred, and the ac- cused and the procedure was the same, but in a criminal case resort was more often had to another form of proof, which might also be used in a civil case, the ordeal. The ordeal was in theory a formal and solemn appeal to the judgment of heaven in cases where the court was too much in doubt to make a decision, or where a doubt might still linger in a case that was otherwise sure to go against the accused. Ordinarily in both these groups of cases, the party went directly to the ordeal without first going through the com- purgation process, probably because that process was seen to be practically certain to fail, but among the Franks cer- tainly, and it is highly probable that among the Saxons also, if we may trust later evidence, a person who had failed to find the required number of oath-helpers might some- times be allowed a further chance to prove his case by the ordeal. In a considerable list of crimes, the accused was by law deprived of the compurgation procedure and or- dered directly to the ordeal. This was no doubt upon the somewhat common popular judgment, which expresses itself for instance in " lynch law," that a man accused of a heinous crime is probably guilty, so that an appeal to the com- purgation procedure would be useless. The Saxons used in their common practice two ordeals, both accompanied with TRIAL BY ORDEAL 31 solemn religious services, the ordeal of water in which the person was bound hand and foot and thrown into a pool, and his innocence established if he sank out of sight, and the ordeal of hot iron, in which the person carried a hot iron of prescribed weight a measured distance, and his guilt or innocence was determined by the character of the wound after a certain number of days. 12 The ordeal passed out of use early in the thirteenth century, but other of the old forms of procedure continued in use for a longer time in criminal trials than in civil and only slowly gave way to newer forms. The death penalty was inflicted only occasionally and in later Anglo-Saxon times, and imprisonment was still more rarely used as a punishment, but in' general all crimes could be" atoned for by a money payment made to the family of the injured person, the bot, accompanied with a fine to the state for breach of the peace, the write. Every freeman had a wergeld, or valuation in terms of money, fixed by law according to his rank in the country, which was paid by the guilty party if he was killed and also sometimes used to measure a fine for his own offences, that is, he was called on to redeem his life. Amounts to be paid were fixed also for other offences and varied according to the character of the offence and according to the rank of the injured or offending party, and differed in different parts of the coun- try. 13 In some cases a criminal who refused to answer to the charge against him was declared an outlaw, which ren- dered him liable to be killed at sight or left him exposed to the old system of blood revenge. These criminal punish- ments, as was the case with compurgation, became unsuit- able as the kingdom ceased to be a group of primitive com- munities, and they disappeared soon after the Norman Con- quest. In addition to the lordships with their private jurisdic- 12 Cheyney, Readings, 79. isstubbs, 8. C, 70-72; Cheyney, Readings, 81-82. 32 THE ANGLO-SAXON AGE tions, another local variation broke into the regularity of the Saxon territorial organization — the borough, or town in the commercial sense. The origin of the English borough, both as a separate organization and as a center of popula- tion, has long been a subject of debate and is not likely ever to be conclusively determined. It seems most probable that as a center of population the borough had more than one kind of origin and that, whatever attracted people to settle at a given spot, whether a fortified post that offered pro- tection, or the meeting point of commercial highways, or the need of providing supplies for the pilgrims to a popular shrine, the final result in the character of the community and its constitution would be the same. More important historically than the question of origin is the fact that the forms of Saxon local organization gave the borough an opportunity to become a self-governing unit very easily and without setting it apart from the general scheme of local government. Before the Norman Conquest this fact had determined the direction in which the English borough was to develop in relation to the state. Probably in the ma- jority of cases it was in origin a town in the territorial sense, or a part of a town, and it was as a town that normally the borough appears to have been organized and to have ob- tained its local self-government. In some cases from size and importance, or from historical relation to the surround- ing territory, perhaps from both in the case of London, the borough organization was that of a hundred instead of that of a town. The practical result was the same in both cases, entire local self-government, but self-government of such a kind that it lent itself to incorporation with other similar units in the larger government of hundred or shire instead stead of to isolation or separation. Within the larger towns, the wards had some degree of local self-government and stood to the borough as a whole in a relation not unlike that of the town to the hundred, while the private jurisdiction ap- pears in the borough also in the " sokens " of neighboring FOUR CLASSES OF SOCIETY 33 lords, portions of the borough territory belonging to them and occupied by their dependents, .over which 1;hey exercised the same rights of jurisdiction (sake and soke) as in their lordships. Though there seems to have been in the last period of Saxon history a considerable development of urban interests, the borough never attained the relative impor- tance in the national life that it acquired in the first Anglo- Norman age, an importance which shows itself in the nu- merous town charters, especially those of the reigns of Rich- ard and John. The population of England was as sharply divided into graded ranks as was the territory which it occupied. 14 We are confronted here, however, with the difficulty that there seems to have been in this case even less regularity between different parts of the kingdom than in the territorial di- visions. Having regard to general characteristics, without reference to minor differences of condition or of technical terms, there were four well-marked classes of men in the Saxon state, nobles, common freemen, partially, free men, and slaves. It> must be noticed, however, that while sharply distinguished from one another as generic classes, these four ranks, if we regard individual men, were bound together by many intermediate grades of right and privilege and position, which indicate clearly that the society of the Saxon age was in a state of flux, that social classes were not fixed b'y any rules of caste, and that movement of individual families up and down the scale was easy and of frequent occurrence. The fluid condition of fa/mily position was re- flected in many cases in the numerous gradations of service in the tenures by which lands were held within a given manor. All the Anglo-Saxon states possessed a distinctly marked nobility, deriving its rank, if we regard the whole period of Saxon history, clearly from two sources : birth and service of the king. While the evidence for Kent is more convincing than for the other states, it is highly probable that all the i* Stubbs, S. C, 88-89. 34 THE ANGLO-SAXON AGE Teutonic colonies brought with them into England a nobility of birth which goes back for its origin into the earlier history of the tribe. As the new conditions established the monarchy where none had existed before, and strengthened its hold upon the state and upon all public life, so personal connec- tion with the king and position in his service gave distinc- tion to a man and rank which was reflected in the law codes by a higher wergeld than for the common freeman. Doubt- less those personally connected with the king would include from the beginning, besides new men, many who belonged to the old nobility and the two, old and new, would easily melt into one class in origin indistinguishable, save in the case of those families which had risen within a generation or two. It is a nobility of this sort which we find on the eve of the Norman Conquest. The Anglo-Saxons used two terms to designate the no- bility of service, gesith and thegn. Gesith is the earlier term and seems to denote a class distinctly military in char- acter and connected with the king by the personal tie of the comitatus which Tacitus describes in the thirteenth and fourteenth chapters of his Gennania. 1 * Soon after the settlement these men appear to have been endowed by the king with considerable gifts of land and to have become a territorial nobility, but still under a special obligation of military service. Their place in the personal service of the king, both as members of the comitatus and in other duties at the court, to some of which perhaps the gesith had not been held, was taken by the thegn, who passes through in the course of time somewhat the same transformations, though rather more slowly and in a later stage of the his- tory, so that the use of the word survived the Conquest. It is used, however, in a considerable variety of senses in different parts of the country. The Anglo-Saxon noble had some, but not many, legal privileges which distinguished him from the common free- " Stubbs, S. C, 62, 63. THE FREE MAN 35 man. His wergeld was six times as much, his oath in a court of justice carried six times the weight; he was exempt from enrollment in a tithing and he might personally be- come pledge for the good behavior and for the appearance in court of his dependent. Private jurisdiction even over some freemen went almost necessarily with the lands which formed his lordship. Though there was no legal require- ment to that effect, the higher offices in church and state were apt to be filled from this class, and noble birth com- manded in office as elsewhere additional respect. No right to membership in the witenagemot went with nobility, but it was from the nobles that the king summoned those who attended any meeting in addition to the official class. In general while the nobility formed a well defined social class, they occupied no independent place in the Saxon state at the expense of the government and never became a caste closed against families rising from below. If we may trust the impression which the sources of our knowledge of early Anglo-Saxon society make upon us, the normal member of the community was the free man. We call him often the common freeman to distinguish him from the noble who came to be considered, especially in feudal days, the preeminently free man, the liber homo. The class was one intermediate between the noble above and the wholly or partially unfree below. It was known like the noble class by a variety of names — ceorl, soheman, villanus — which in different parts of the country and at different dates had varying shades of meaning. In the earlier periods of the history this class seems to have been the most numerous in the state and its main dependence and to have been con- sidered the typical class from which the position and legal value — wergeld, oath, etc. — of the other classes were reck- oned. The members of the class are represented to us as living in villages from which they went out to work their holdings scattered in the neighboring fields. Some of these villages were still free villages in 1066, managing their own 36 THE ANGLO-SAXON AGE affairs in their tun motes, but the majority appear to have passed under the control of some lord and become dependent upon him. Normally the holding of the fully free man, who was not regarded as a noble, seems to have been one hide, that is on the average 120 acres, with the live stock and tools naturally going with so much land. But the size of the holdings of the freemen varied greatly, and it was recognized that the common freeman might rise into the class of nobles by the possession of five hides. Legally the freemen were enrolled in the tithing groups, and they were the chief de- pendence for carrying on regularly the local government in shire and hundred courts and for the army of the state. Though drawn in large numbers into the organization of agriculture which was steadily forming in Saxon times, the manorial system, the new relation into which they were brought was economic in character and did not, certainly in most cases, affect their legal status. There is no doubt, however, but that, if the whole Saxon age is taken together, the class as a whole was losing significance and sinking slowly, economically, socially , and politically. It seems clearly of much less importance relatively in the state at the time of the Norman Conquest than it is pictured to have been in the early laws. It was, however, by no means extinct as a class and plainly survived even as late as Domesday Book, in some if not in large numbers, in the possession of land not dependent upon any higher lord. When we turn to those who were not fully free men, the case is still more difficult and the number of gradations of right and position more numerous. 16 If we begin at the bottom and define the slave as one who has no rights at all, as we must technically, as one who is a chattel, a thing, who may be sold by his master in the market as a piece of live stock, there is evidence for the existence of such a class among the Saxons, and the slave trade and the exportation of slaves were not brought to an end until some time after the Con- i«Cheyney, Readings, C9-73; Stubbs, S. C, 89-90. SLAVE AND SERF 37 quest. The domestic supply of slaves did not cease during the period. Capture in war, even of one Saxon tribe against, another, and economic misfortune more or less constantly reinforced the class. On the other hand it is clear that the general tendency of things worked here, somewhat more slowly than on the continent apparently, against the contin- uance of slavery. The church taught that the emancipation of slaves was an act of virtue and urged that the right of the slave to property of his own earning and to a legal family should be recognized. Bat in England as elsewhere it was probably economic causes that worked most strongly against slavery. The master found that the most profitable use to which he could put the slave was to give him a cottage and a small piece of land to cultivate for himself in any time that might be left after the master's demand for labor had been met. In fact at first, and in theory till the end of the Middle Ages, the house and land and all the chattels he might collect, were the master's property, not his; but in reality the first step had been taken in the extinction of slavery, that is, in the transformation of the slave into the serf, when he was allowed to occupy permanently a house and a bit of land. He and others came to look upon them as de facto his own. They passed on to his son, and soon the manorial custom began to recognize that they could not be taken away so long as the services to the lord were regu- larly rendered, the services, the custom began to say, by which the land was held. Before very long the manorial court began to concern itself with the disputes among heirs over the inheritance of these servile holdings, as the hundred and county courts did with the disputes of heirs to free hold- ings, and to recognize a right of transfer and sale to be proved by the entries on its own records. The custom was law within its own sphere, customary law, manorial law, and under it in process of time the slave acquired rights which he could protect, that is, the slave had become a serf. The serf differs technically from the slave in that he has 38 THE ANGLO-SAXON AGE some but not all the rights of a fully free man. Medieval serfdom is the intermediate stage through which the slave labor of the ancient world passed into modern free labor. It is in other words a transitional stage and, viewed as a whole, its most characteristic feature is that at different times and in different places almost every conceivable intermediate condition between the slave and the fully free man was repre- sented ; as a matter of fact many stages of right and of economic advantage often existed together at the same time and in the same manor. Hardly more than this need be, or indeed can be, said of the partially but not wholly free class in England until we come to the more full evidence of Norman times. To some extent the public law took ac- count of the serf's existence as a man. He had a small wergeld, the physical violence or mistreatment of the master was restrained, the right of marriage recognized, and his responsibility to the criminal law maintained either directly or through his master. It should be remembered also that this class was being added to constantly throughout Saxon history by the sinking into more and more complete economic dependence of those who had been originally fully free, and these men not merely brought with them some rights which they still retained, but their decline tended to bridge the gulf between those who had risen from below and those who remained free. Forms of land holding among the Saxons show perhaps less variety than the classification of persons, but they cor- respond roughly to the gradations of personal rank. There were two great classes of land tenure, free and servile, but they as well as the kinds of personal status underwent changes in the course of the period. There are indications in the economic and legal institutions of more than one German tribe, Frank as well as Saxon, that at the time of their settlement in the Roman provinces they had not been many generations in the settled agricultural stage of development. The free village community with communal ownership and FORMS OF LAND HOLDING 39 cooperative cultivation existed side by side with villages which were in the domain of some lord and dependent on him and, in England at least, some of these communal villages survived the date of the Norman Conquest. The organiza- tion of agriculture in them formed a natural foundation on which the later manorial organization could easily be built. The cultivated land of the village was divided into two or three great fields, each field being cultivated in the same way each year. These fields were divided into strips for in- dividual cultivation, and a certain number of these strips were held by each family of the village. The holding of the family would thus be scattered about the fields in compara- tively small strips, and the use made of them would be regu- lated by the common plan for the great fields in which they lay, and their inheritance and transfer would be controlled by the custom of the village. Besides the cultivated land the village possessed also extensive common pasture lands, of great importance to the community in those times, and common woodland, the right of each inhabitant in these being determined by the size of his cultivated holding. One can imagine how easily in turbulent times such a community might be led to put itself under the protection of some powerful lord, and how easily also in course of time the sums or services paid for such protection might begin to be regarded as resting upon the land and elements of the tenure by which it was held, so that land originally free became by degrees dependent or servile. It seems also cer- tain that in some parts of England, in the west for instance, and possibly everywhere communities were formed depend- ent from the beginning on a lord and composed mainly of unfree tenants. The tendency towards this form of com- munity seems to have been very steady, checked only in the north and northeast by the new Teutonic settlement of the Danes, a temporary reversion to more primitive conditions. As a result at the time the Normans became the ruling race, the lordship was the rule everywhere and the free village 40 THE ANGLO-SAXON AGE the uncommon exception. The manor, however, whether re- garded as a lordship, as a legal community, or as an agri- cultural organization, does not seem itself to have been so perfectly developed or in such complete possession of the country as it came to be after the Conquest. Looked at from above, as the state might look at it, if the state could in those times regard the subject as a matter of general law, all the land of England was held by one or the other of two titles. It was either folkland or book- land. Folkland was land not held by any written title or formal evidence but by the customary law of the community, by folklaw or folkright. The evidence of its possession was the knowledge or memory of the community, and disputes as to title were settled in the local community courts of shire or hundred. Even when regarded as the settled prop- erty of a householder, folkland still retained traces of some- thing like original community ownership. It could not be bequeathed by will, its inheritance was determined by the custom, and it could not be alienated without the consent of the folk directly interested, unless it were land which the individual had acquired during his own lifetime and not a part of that which he had inherited. This increment he could dispose of as he pleased. In contrast bookland was land held by a written title, a landbook or charter, and it could be alienated as the holder pleased, or left to his heirs by will. It was created by a grant of the king's, a grant which was recorded in the charter and made with the consent of the witenagemot, whose consent perhaps corresponds to that of the local com- munity to the alienation of folkland. These grants con- veyed large estates of land, generally to churches or monas- teries but sometimes to nobles ; they often granted with the land freedom from public burdens, except the trinoda necessitas, and also rights of local lordship and jurisdiction; and there is evidence that they sometimes granted to the holder land which was already his own as folkland in order PERIOD OF HOLDING 41 that he might be free to alienate it or bequeath it. On the extinction of the holder's line, land held in this way escheated to the king. Bookland was manifestly a later form of land title than folkland — something learned by the (Saxons after their original settlement, as they learned the use of the charter to constitute a written record. Land of either of these two kinds could be conveyed by the holder to another person for a limited term by a written document which specified the conditions on which it was to be held and the time at which it should revert to the donor. 17 The period of holding was often three lives, that is, three successive holders. Such land was called laen land or loan land. As concerns the state or the folk such a loan of land made no change in the ownership, the grantor was still the owner. As a consequence of this fact, the new holder became responsible for such duties as rested in the Anglo-Saxon system on the land to the grantor and not to the state, because the state still regarded the grantor as the responsible owner. As one of these duties was military service, the new arrangement created a relationship in sur- face appearance not unlike that of feudal tenure by mili- tary service, and it has sometimes been considered feudal. The identification is due, however, to pressing an analogy too far, for the Saxon tenant did not hold by the service, but merely asumed an obligation already resting upon the land, and the new relationship created no difference between this land and any land in the kingdom, whether folkland or bookland. The case is exactly equivalent to the fee-farm holding in feudal days when the tenant assumed the forinsec services resting upon the land, i. e., the services due to the king over and above those due to the immediate lord, but did not thereby become a feudal tenant. In considering the question of the existence of the feudal system in England before the Norman Conquest, it is first necessary to determine the sense in which the word feudal "Penn, IV. 3, 8. 42 THE ANGLO-SAXON AGE is used. In ordinary practice the term is most commonly used somewhat loosely and vaguely to include all kinds of dependent relationships, economic or political, without refer- ence to their institutional character. If we use the word in this sense, there is no doubt but that some of the practices which have been described above may be called feudal. But the student of institutions cannot be contented with the vague and general. He must make distinctions and deter- mine the exact character of institutions or his knowledge will be of little value, and many things will be misunderstood. And first of all in regard to the use of the word system. If the word carries with it the meaning systematic, it is a wrong word to use, for there was always much of variety in the details of feudalism as seen in different countries, or even in different parts of the same country. But feudalism did bring together the relationships which belonged to it, from top to bottom, into something like an organized whole which may be called in that sense a system. But little study of the feudalism of Western Europe in the eleventh and twelfth centuries is necessary in order to see that it united in itself two quite different sets of rela- tions and interests. On one side we have the feudalism of lords and ladies, of knights and vassals, of courts and castles and tournaments. But the main business in the world of this sort of feudalism was not chivalry which reached its highest development when this sort of feudalism had almost disappeared. Its real business was to furnish some degree of political organization to society at a time when the lack of common ideas and the break-down of the means of inter- communication made a centralized government in a large state an impossibility. This side of feudalism was essen- tially political. The services which the vassal paid to his lord for the fief which he had received from him were po^ litical. By putting these services together the army was formed, and the law court, council and legislature consti- tuted. As defence was the one great need of the time, the POLITICAL FEUDALISM 43 aspect of this side of feudalism was strikingly military, but providing for defence was by no means its only function. The baron was also the active agent by whom all the opera- tions of government were carried on. From his class the ad- ministrative officers were drawn, and the justices, and the great officers of the crown, when a real central government began to be reconstituted. It was during the time when a central government could exist in scarcely anything more than name that the great service of feudalism was per- formed and then, if order was maintained and law enforced, it was due to the local baron whose allegiance to those above him in rising tiers of mesne lords to the king kept alive the idea and formal existence of the state for better times. This sort of feudalism grew out of Roman institutional practices at the time when the Empire was falling to pieces. They developed by very slow degrees, and it is only towards the end of the ninth century that we can say that feudalism as a political system had really been formed. It was finally perfected in the tenth century, and the great feudal age of Western Europe was the eleventh and twelfth centuries. It declined rapidly in the thirteenth and disappeared in the fourteenth century, leaving as its social legacy to the future the modern systems of nobility. On the other hand, this political organization, when it began to take possession of society, found already existing an organization of agriculture which had been formed dur- ing the same period as itself and under the influence of the same general causes but out of original elements and institu- tions quite unlike its own, and upon this agricultural organi- zation it based itself. This was the manorial organization which has been referred to above as one which could easily be founded upon the village community and its lands, and which will be described later more in detail. Many features of this organization seem superficially parallel to features of political feudalism. It made much of dependent land tenures and of persons in dependent relations to a lord; and it en- 44 THE ANGLO-SAXON AGE forced the private jurisdiction of the lord over his unfrec tenants and occasionally over some freemen. But the es- sential institutional characteristics and the purposes sought were wholly different. Agriculture was the chief invest- ment of capital possible to the time; it was almost the only form of industry that had survived; and it was the agricul- turist who kept society alive during the feudal age. The baron who paid the rent for his fief in political services to the state obtained the income which enabled him to per- form them and to maintain his rank from the economic re- turns of his domain manors, and the king at the head of the state obtained his chief income in the same way from his domain manors. These two sides of feudalism had not merely a different origin in institutions of the later Empire which were distinct from one another, but they remained distinct in institu- tions and law so long as they existed side by side. The feudal age never confused them. It always maintained sharply the difference between military tenure and economic tenure, between noble tenure and the servile holding. A given piece of land was as a rule held at the same moment under both kinds of tenure by two different men. The baron held the manor from the king as a knight's fee by the service, let us say, of one knight at his own expense. The greater part of the same manor was held at the same time by servile and free tenants whose economic tenures furnished the labor by which the manor was cultivated and its income obtained. But each tenure was easily distin- guished from the other, and each was regulated by its own rules of law, enforced in its own distinct courts. As these two sides of feudalism were distinct in origin and remained distinct during the great period of their history, so their ultimate fate was different. Political feudalism had begun! to disappear by the middle of the thirteenth century be- cause the state was discovering better methods of getting its business done, and it did not survive the fourteenth cen- MANORIAL SYSTEM 45 tury. Better methods of agricultural organization were discovered more slowly, and the manorial system remained in existence with its law and its courts for two hundred years longer. It was even brought over into some of the American colonies in the seventeenth century, and we now have the printed records of colonial manor courts. In Anglo-Saxon England the arrangements for cultivat- ing the land and for servile land-holding which have been described above were so closely parallel to those of economic feudalism that we may say that this side of the feudal system had been established in England before the Norman Conquest. The conditions which had favored its growth throughout the Roman Empire had existed also in Britain and, it is likely, also the institutions from which it was derived. It may perhaps be true that the manor in its complete constitution was not generally in existence, the name certainly was not, but what did exist is to be distinguished from it only with difficulty, and but little was needed to complete the manorial organization of the country, certainly no important institu- tional change. Manorial private jurisdiction was fully de- veloped and the jurisdiction of local public courts so ex- tensively absorbed into it, or attached to it, that the Nor- mans found nothing to do as affecting these courts, unless it was to check their growth. On the other hand political feudalism, the transforma- tion of the public duties of the citizen, military service, service in the court and legislature, into private obligations which he owes to another man as a kind of rent he pays for the land he has received from him and because of his per- sonal relation to him, is not to be found. We do find, how- ever, primitive and uncombined elements out of which it might have grown in time. The personal relationship of the royal comitatus referred to above seems to have con- tinued until rather late in the Saxon state and the members of it as a rule to have been settled on the land under some- thing of a special obligation of personal loyalty and service 46 THE ANGLO-SAXON AGE to the king. Personal commendation and the commenda- tion of land were considerably developed and created many dependent relationships of free men and of free land. In some cases the man took an oath of fealty to his lord which comes near ta the vassal's oath. This relationship has been sometimes called vassalage, and the term cannot be objected to because it was actually in use in the contemporary Frank- ish kingdom for closely similar relationships which were equally undeveloped. But the term should not be under- stood to mean the existence of the later institution. Po- litical feudalism was created only by the union of personal vassalage with the holding of land upon condition of public service. When the fief was given to the vassal because he was a vassal, and when he was held to his military and other services because he had been given a fief, then the feudal system of Western Europe was in existence. However far one may think that one side or other of this composite result was developed in Saxon England, there is no evidence of a union between them in that age. The fief as the vassal's normal reward with its conditions of special loyalty, and service as the tenure by which it was held, were introduced into England by the Norman Conquest. In the means and processes of getting the public business of the state performed, the Saxon government was but little developed beyond the tribal state first organized in Eng- land after the original settlement. In theory military serv- ice at his own expense was still due from every free member of the community, enforced by the heavy fine called fyrdwite. In practice the settlement of the freemen on the land and the enlargement of the state in size had brought on in some degree the problems which had proved so serious to the Car- olingian rulers of the larger Frankish kingdom, and the attempt had been made to solve them in much the same way. The dependent relations into which many freemen en- tered with the growth of territorial lordships, and the se- rious cost of a summer campaign to a people which had PUBLIC REVENUE 47 now become agricultural, made a general levy of freemen a less secure dependence and more difficult to enforce. The tendency was strong in later Saxon times to rest all obli- gation of service upon the land and to make the owner re- sponsible for an amount of service corresponding to the size of his holding, or to allow communities to become responsible for a fixed amount, all the members of the community shar- ing in common the expense of their soldiers. But these expedients were not carried so far as in the pre-feudal Frankish state, and the problem of securing an adequate military service was still unsolved when the Conquest oc- curred. In the matter of public revenue, the machinery of the state was even more undeveloped. There was no regular taxation in the modern sense. The " Danegeld," which comes the nearest to taxation in form, was begun at the end of the tenth century, as has been said, to raise money to buy off the Danish invaders. It was continued at frequent intervals in the eleventh century, except during the reign of Edward the Confessor, at the rate of two shillings on the hide of land, but it did not become a regularly recurring annual tax until after the Conquest. The larger part of the income of the crown, which was not yet distinguished from the income of the state, was made up from two sources: the revenues from the royal domain lands and the sums derived from the king's share in fines and forfeitures in the local courts of shire, hundred and borough. If we cannot prove that these two sources of revenue had been combined to form a regular sheriff's ferm before 1066, some progress at least towards such a system of collection had been made. The combination seems to have been made in local districts and occasionally it is probable in counties and the collection farmed out to local administrators, perhaps to sheriffs. Be- sides the fines for offences which formed a part of the later sheriff's ferm, there were some criminal offences specially reserved to the king, known later as pleas of the crown and 48 THE ANGLO-SAXON AGE separately accounted for by the sheriff. Of these at least three go back into Saxon times: breach of the king's peace, breaking into a house, and interference with justice, like the protection of an outlaw, and very possibly other offences should be added to the list, at least for parts of the king- dom. The fines for these crimes went entirely to the king, and they entailed very heavy fines or complete forfeiture. There were not many other sources of income which we can say with certainty were possessed by the Anglo-Saxon kings, and such as existed were not infrequently granted away to churches and favored individuals : tolls of various kinds in boroughs and markets and at seaports ; the profits of coinage, then comparatively little developed; the medieval right of shipwreck; and fees for the grant of special royal protection and for various rights and privileges. The state was relieved of some expenses by payments and services in kind, of which the best known is the trinoda necessitas, a duty resting upon the land of keeping bridges in repair, maintaining and defending fortresses, and serving in war. The exchequer system of receiving the sheriff's payments and checking his accounts does not seem to have been yet in use, but there was a formal treasury accounting which was probably the basis of the later practice, and some exchequer methods were employed like the determining of the bullion value of the coins paid in, called " blanching." At the moment when the Saxon kingdom was overthrown, the outlook for the future development of national govern- ment was not promising. The power of the earl as a local viceroy had been increasing rapidly for a generation at the expense of the royal power ; a large part of the earldoms had been gathered into the possession of the rival houses of Godwine and Leofric; and in the twenty-five years' reign of Edward the Confessor the nation had been taught to regard the king as weak. Local as well as family rivalries were making themselves felt, and the establishment of a A WEAKENING KINGSHIP 49 strong government by William the Conqueror undoubtedly made for a more rapid and secure constitutional development. Bibliographical Note. — H. M. Chadwick, Anglo-Saxon In- stitutions, 1905. L. M. Larson, The King's Household before the Norman Conquest, 1904. F. Liebermann, Die Gesetze der Angelsachsen, 3 Bde., 1898-1916; The National Assembly in the Anglo-Saxon Period, 1913. F. W. Maitland, Domesday Book and Beyond, 1897; Township and Borough, 1898. W. A. Morris, The Office of Sheriff in the Anglo-Saxon Period, E. H. R., xxxi, 20, 1916. F. Seebohm, The Village Community, 1890. Sir P. Vinogradoff, Villainage in England, 1892; The Growth of the Manor, 1911. CHAPTER II THE NORMAN CONQUEST The military success of William I in 1066, which we call the Norman Conquest, was so great that the country lay entirely at his disposal. No extensive colonization was ne- cessary in order to hold it under control, and none took place, though there was first and last a considerable introduction of French speaking settlers. Accepted as king by London and the leading men of the nation within a few weeks of the battle of Hastings, and opposed later only by scattered and local, never by organized or general resistance, William apparently could have done what he pleased in changing the government of the country. As a mat ter of fact he seems to have had no in tention of making_changes. Perhaps even he consciously wished to make none at all, or at least the fewest possible. Indeed it seems accurate to say that the most extensive changes which he brought about were not made by deliberate purpose but because he could not help himself. That is, they were incidental to the only methods of carrying on government which he knew anything about. It is probably also true that they seem much more violent and far-reaching to us than they did to him or to an}'one else at the time. Many of the details of institutional prac- tice were alike in England and Normandy so that no change was required. In a few more important cases changes were necessary which we can see were far-reaching in their effects. In all these latter cases, however, tendencies which had been going on for a long time had been bringing the Saxon state more and more nearly to institutional results similar to those which had earlier been reached in Normandy. The Norman Conquest merely carried the development suddenly forward 50 CHANGES IN CENTRAL GOVERNMENT 51 to a result practically the same as that which would have been naturally reached in time. The actual dislocation, ex- cept in the ownership of land, was so slight that it is not strange that contemporaries did not notice it sufficiently to make it a matter of record. The constitutional history of the reign of William I falls thus naturally into two divisions : the changes which the Con- quest brought about, and the institutions which remained practically unchanged. A general characterization of the two divisions is possible, if it is not pushed too far. It was the general or central government which was changed ; local institutions were only slightly affected. It is impossi- ble, however, in the treatment of the subject to draw a hard and fast line between these two divisions. In the central government much remained unchanged ; in the field of local government important changes were introduced which are best considered under that subject. As a general charac- terization the division holds true and is of value in the or- ganization of our material. The central, or national gov- ernment became Norman ; the local remained for a long time Saxon. In the field of the general government of the state, two changes outweigh all others in importance : the substitution of a stronger royal power for the Saxon, and the introduc- tion of political feu dalism . Neither of these changes was simple in~charactcr, that is, they were not confined to what would be implied by a strict interpretation of the terms, but they were generic, that is they carried with themselves a number of subordinate or closely related changes. It is also true that these two sets of changes cannot be wholly dissociated from each other but are more or less inj;ej-Locked with one another in the actual situation. It is as a matter oT~ convenience that we consider them separately. As we take up for examination, here and later, institu- tions which are generic in character we must be on our guard against one misconception. It is sometimes difficult to ex- 52 THE NORMAN CONQUEST plain in language just what an institution or an institu- tional change really was in principle and effects without using terms which seem to imply that we are stating the ideas which its own contemporaries had about it. Such an impression would often be an error. From what we know of the whole history of the Norman monarchy, for instance, we can form a conception of what it was in theory and in practice quite impossible to those who lived under it. The theoretical statement is ours, not theirs. Men who were carrying on practical affairs in England did not theorize to any extent about the character of their government be- fore the middle of the thirteenth century. But the account which we can now give of an institution or a historical trans- formation, in language which makes its character clear to us, may be quite accurate as an historical characterization, though it might not have been possible, or even intelligible, to the actors who were making the history of the time. Potentially the Anglo-Saxon kingship was powerful, and it had been so actually, as operated by Canute, but prac- tically for a long generation before the Conquest it had been in weak hands and had been overshadowed by the great earl- doms of the later Saxon period. Still more important both practically and institutionally were the facts that there was in England no tradition of well established and long con- tinued strong central government such as attached to the rule of the Norman dukes, and that there was no definite institutional organization through which a strong govern- ment could be carried out. In both these respects the Nor- man government of 1060 was no doubt inferior to that of John in 1210, but it was nevertheless a great advance upon that of Edward the Confessor at the former date. With time and with kings of foresight and skill, a powerful mon- archy could no doubt have been built on the Saxon founda- tion. What actually happened was that the Norman mon- archy with its traditions and its practices was substituted bodily and at a stroke for the Saxon. The Saxon disap- ROYAL ABSOLUTISM 53 peared completely ; the Norman took its place, in posses- sion of the field as exclusively in England as in Normandy. The Norman monarchy did not owe its power nor the place which it occupied in government, to any ideal which the men of that time cherished of what the kingship ought to be, nor to any theoretical conception of the state and its constitution. In another century ideals of what the king- ship ought to be do play a part in English institutional history, but we cannot detect their influence in the change in the character of the central government wrought by the Conquest. The duke of Normandy simply transferred his government to England with such of its practices and insti- tutions as he thought necessary. He became all powerful jn England because he had been and was all powerful in Normandy. As a matter of fact neither he nor any one else thought anything about it. It was the only natural thing to do, and a change was made without remark or con- sciousness which was really revolutionary in its consequences. On what material and constitutional advantages the royal absolutism was based will be pointed out hereafter, but it must be emphasised at once that it was an absolutism. In the construction and machinery of the Norman state no normal and constitutional way was provided by which a will opposed to the king's could act or even express itself. Feudal law did provide a way which will be considered later, but hardly one which we should call constitutional. It im- plied rebellion and civil war as its means of operation and the first step towards modern constitutional government in Magna Carta a hundred and fifty years after the Conquest was to invent a method of giving effect to a will opposed to the king's without civil war. Meantime the state was the king quite as truly as in the France of Louis XIV. The offi- cers of the state, justiciar, and treasurer, and sheriff, were his personal servants. The machinery of the state, above the merely local, was his machinery. The force which operated it was his will. If the king was strong and ruled firmly, 54 THE NORMAN CONQUEST the state was in good order. If he was weak and vacillat- ing, it fell to pieces. More specifically the area of the state was his lordship and domain, like the manor of a baron ; its revenues were his private income. Justice was his and he assumed for himself the right to enforce it upon all; an offence against the law was an offence against him per- sonally; justices and courts were his instruments. Even the great council, the national assembly, existed to do his busi- ness7 "~not~~the nations ; U had no right of initiative except by petition ; its decisions were his decisions, and invalid if he did not make them his, a fact which becomes the sover- eign's absolute veto in the modern state. In a word the king assumed that the state and all its belongings and all its actions were his, and this was really true in England as hardly anywhere else in the history of western Europe. It was the fact of course that the king did not maintain himself in this position of supreme power by assertion merely. There were certain solid advantages which he enjoyed which were the material basis of his strength. In the first place, -and most important, the king had a decided military su- periority over any combination likely to be formed against him. This superiority rested upon two things — first, the king's greater feudal resources, and second, the general levy or iyrd. The king's feudal resources were of two kinds. In the first place he retained in his own hands as domain lands about twice as many manors as he gave to any single baron and, if his two half-brothers be excepted, he retained a much larger proportion of the resources of the whole king- dom. These were, however, domain manors and contributed only indirectly to military strength. They formed an economic domain only, not a political royal domain, which had no need to exist in England because the king possessed his whole kingdom as the French king possessed the royal domain only. These manors were the source of the king's wealth which was much greater than that of any baron, but they were at the same time the main source of what we should CHIEF BASES OF ROYAL POWER 55 call the revenue of the state. The king's private wealth had to bear the chief burden of carrying on the government, but to some extent it did contribute to his military strength for the practice of retaining knights at pay for their mili- tary service was in use, and by barons as well as by the king. More important probably, was the second of the king's feudal resources, the knights fees held directly of the crown, i.e., m capite, upon condition of military service. Many of these were quite small holdings, one knight's fee or less, at least in days not long after William I, but held, by a military not an economic tenure. Then there were the holders of from one to five fees, still reckoned usually as minor barons, and these it would be exceedingly difficult to bring together into a combination against the king. Above these were the holdings of the major barons up to the 796 manors of William's brother Robert of Mortain or the 439 of his other brother Odo bishop of Bayeux. These barons also it would be difficult to combine together in any one movement against the king, and it never was done even in the great rebellion of 1173. It was easy for the king to unite his military strength ; it was far less easy for the barons to bring theirs together. The fyrd, as the Saxons called the general levy of the common freemen, still remained an added resource of the king's, and practically more effective at this date than the general levy in the other feudal states of Europe. In the rather serious baronial insurrections at the beginning of the reign of Henry I and in 1173, it ren- dered important service to the king. The king's greater wealth and greater military strength were undoubtedly the chief material bases of his power, but other things contributed to it. Especially important was the fact that feudalism as it had been interpreted in Normandy, and as it was transfer red to England, made it difficult for the baron, whatever the size of his barony, to make it into anything like an independent state. Where such a baronial state arose on the continent, circumstances 56 THE NORMAN CONQUEST made it easy for the baron to assume and keep in his hands the administrative functions of the government through- out a district and to break off all judicial dependence of the local courts upon the national. To be independent of the king administratively and judicially was to be really independent, whatever theoretical dependence there might be. No such independence was possible in England. The king always kept a firm hand on the local administrative officer, the sheriff, and though extensive grants were made of rights of jurisdiction to monasteries and private lords, even including the execution of criminals in certain cases, these " liberties " were practically an interference with local rather than with national justice — they were indeed hardly felt during the Norman period to be an interference with justice at all. The royal supervision, as exercised by the curia regis, over the local administration of justice was more close and effective than ever before, and at this time the chief advantage to the lord from possessing a " liberty," and the chief loss to the state in granting it, was financial — the transfer to a private individual of the profits from the courts. No baron however powerful, was released from his own responsibility to the justice of the king, and his tenant always had an appeal from the worst abuses even of the baronial court proper to the royal protection. The English baron also never had a right to maintain his castle against the king. The castle was the king's, the baron was its governor for the king. In rebellion, but in rebellion only, the baron defended his castle against the sovereign. There were also certain moral advantages, less material but no less real, which the king possessed. The anointing in the ceremony of coronation made him a consecrated king. In the feeling of the time it gave him a special divine right and made rebellion seem to have to some extent at least the character of sacrilege. Again it was the Norman prac- tice, coming down from the earlier Frankish state, that each rear vassal in swearing allegiance to his lord reserved his THE NORMAN EARL 57 allegiance to the king, and the king occasionally took from all holders of land a direct oath of fidelity to himself. 1 In times of actual rebellion this oath did not hold rear vassals as a class to their allegiance to the king, but it must have made organized insurrection a little more difficult and have acted as a deterrent in individual cases. Altogether the Norman king of England was the most powerful element in the state, and the most powerful sovereign in the Europe of that day. His preponderance of power was so great that even the palatine earldoms, where the king's writs did not run, which had an administrative and judicial in- dependence, and which were large and fairly compact prin- cipalities, never asserted a political independence for them- selves. In Saxon times, as we have seen, two officers represented the central administrative and governmental system in the shires and connected the national and the local governments, the ealdorman . or earl and the sheriff . In their govern- ment at home the Normans had been prepared to understand and go on with both these offices. The vassal counts of the Norman duke differed very decidedly from the original Saxon ealdorman. They were more feudal, less official. As the result of changes which followed the Danish conquest, the later Saxon earl approached the Norman type more nearly but still was not the same. The Norman Conquest made still more extensive changes. The Saxon name" earl " survive d but practi cally nothing else of the~ older inst|j ju£io_n. The earl after 1066 was not i n any sense an offic er. He still took his title from a shire, which began now to be called a county, and he still received at least in some cases the " third penny " of its judicial revenues but, except in the case of the palatine earldoms, he had nothing to do with its government. The name is a title merely, indicating rank in the baronage and, if it carried anything else with it in a particular case, that had to be indicated by a special grant. iStubbs, 8. C, 96. 58 THE NORMAN CONQUEST By such grants extensive royal rights of jurisdiction and administration were conveyed to the palatine earldoms, espe- cially of Chester on the Welsh border, and of Durham, held by the bishop, on the Scottish. These departures from the ordinary practice in England were apparently fully justi- fied for military reasons by the constantly disturbed con- dition of the borders. In general, however, the earldom as an official institution disappeared with the Conquest. The Normans were also prepared to understand the office of the Saxon sheriff, even more clearly than the position of the earl. They had inherited from the West Frankish empire the office of viceco-mes, or rejpj^sentative of the count, the count's deputy either in the whole or in a local division of his territory. The territory of the count of Normandy was so large that he naturally employed a number of vicecomites in different districts in which they looked after his interests and performed financial duties very much like those of the Saxon sheriff. The English office was probably better worked out and more definite in character than the Norman at the time of the Conquest and apparently it be- came the leader in the development which followed in both states, a development which was a logical continuation of the Saxon history of the office. The sheriff shared as a matter of course in the increased power of the king beeause he was the king's representative in the shire, enforcing his rights and protecting his inter- ests. On the other hand the local power of the sheriff sus- tained and rendered effective the central government, for he was in Norman as in Saxon times the chief instrument of centralization. A great baron of the shire was usually ap- pointed its sheriff, sometimes of several nearby shires also, more rarely with some hereditary right to the office, but the danger which had been so serious from the counts in the later Carolingian state, that the office would be turned into a family possession and made the center of an independent principality, was avoided in England. The Norman mon- THE NORMAN SHERIFF 59 archy was too strong. It was able to keepjjie sheriff in the position of an officer of the government and hold him to a strict accountability, and even to prevent in the main the financial oppression of the smaller people of the county which the sheriff's opportunities made a constant tempta- tion. Not very long at any rate after the reign of William I, if not in his time, the sheriff paid into the king's treasury a definite sum for the county, which had been fixed upon as representing fairly the annual return to the government. This sum, called the sheriff's ferm or farm, the rent which he paid, was made up from two sources, the income from the king's domain manors in the county, and the proceeds of justice in the local courts. After paying his ferm what- ever surplus remained was the sheriff's own, his compensa- tion, but the counties -were never put up to the highest bidder. Besides his relation to the local justice of shire and hun- dred, which continued the same as in Saxon times, the sheriff was intimately ^onclFfned wTEH T;he new royal local justice which was introduced by the Normans. In the locaTk ing's court, which begins to be somewhat frequently employed by William I to carry the curia regis into the counties, and which was held by authority of a royal writ naming justices to preside, 2 the sheriff was often commis- sioned as the justice or one of them. The fines imposed in these courts, he collected as something additional to his ferm, and his office shared the increased importance of the king's peace and of the pleas of the crown, which will be later considered. In the end this new system of royal jus- tice was to be one of the chief causes in undermining the sheriff's power, but at first it added to it. The great age of the sheriff, as the indispensable agent of the central gov- ernment was from the Conquest to past the beginning of the thirteenth century. During most of this period he was the chief instrument through which the government acted "TnTfihe local units of the kingdom and secured the necessary 2 A. and S., 2. 60 THE NORMAN CONQUEST centralization. He was at once responsible to the national government for its interests in local financial matters, in maintaining order, in the administration of justice, and in getting out the military service due the state. It was when the state in the thirteenth century began to get better ways of looking after these interests that the power and impor- tance of the sheriff rapidly declined, and he became finally but little more than the executive officer of the courts. In no department of the public life of England did the coming in of a stronger monarchy lead to more immediate change than in the church, and in two contrary directions. The church became at once less indep enden t and morejjj=- dependent. Before the Conquest William had held the Nor- man church under a far stronger control than the central government had been able to exercise at any time in Saxon history. This power he transferred in full to England and began a supremacy of the state which, though later weak- ened and at times greatly weakened, was never entirely lost. The historian Eadmer, writing about twenty years after the death of William, said that it was the king's purpose to exercise the same rights over the church in England which he and his fathers had possessed in Normandy, and he states three rules governing the relation between church and state under William which were certainly long observed and funda- mental in this field of public law. 3 They were that no pope should be recognized in England without the king's consent, nor papal letters received which had not first been shown to him; that no enactments of English councils should_ be valid without his approval ; and that barons and officials of the king should not be put on trial in the church courts, nor excommunicated, nor constrained by severe ecclesiastical penalties without his consent. The church was brought un- der a stricter control by the general government than it had been before subject to, but at the same time its national organization was improved, the standard of clerical morals aStubbs, 8. C, 96; Cheyney,' Readings, 110, THE CHURCH 61 and learning was advanced, and the way was opened for the influence of the Cluniac reformation which till then had been little felt. The English church was also brought into clojscr relation with the monarchical papacy which was just then becoming more highly centralized and more imperial. Later these changes were to lead to severe conflicts between church and state in England, but at first their influence was wholly good. Another measure of institutional importance gave greater independence to the church. By a notification sent out probably early in his reign, William made known an act of a legislative character by king and great council declar- ing the separation of ecclesiastical and secular courts. 4 For"" the future no bishop was to hold ecclesiastical pleas in the hundred court but only at such places as he should appoint and solely according to canon law. Secular persons were no longer to have a share in the making of spiritual judg- ments, though the officers of the state were to assist in en- forcing them if necessary. By this measure not merely was an independent jurisdiction given to the English church courts but the country was opened to the full influence of the canon law, just then forming into a great and scientific body of law. At the same time greater freedom from secular interference was given to the national church council, se- curing it more independence in legislation though it was still subject to the royal veto. The change in the general aspect and interpretation of the constitution which was made by the introduction of feud- alism has been b riefly indi cated in the first chapter. It is so difficult, however, for the modern mind to understand feudalism and its operation, and the effect of its introduction was so great, that some repetition is desirable. A clear per- • ception of the distinction between political and economic feudalism, for instance, is essential to any understanding of the system in operation, but it is not easy to gain. It *Stubbs, S. C., 99; A and S., 1. 62 THE NORMAN CONQUEST was political feudalism which was new to England, and in constitutional history Norman feudalism must be conceived of not chiefly as a social organization, nor as a method of giving endowment and rank to a national nobility, but as a means of carrying on government. Economic feudalism al- ready existed in England considerably developed, but as a result of the Conquest it was probably extended geograph- ically throughout the kingdom and it was perfected and made more definite. Let us begin with this proposition : During the feudal age two different men held the same piece of land, by two different kinds of tenure, under two different systems of law. On each of these two sides of feudalism the unit is the same piece of land. On the economic side it is known as the manor, on- the political as the knight's fee. As a manor it is a unit in the agricultural organization of the kingdom, and its purpose is economic, that is, it is regarded as a source of income. Its cultivated area is divided into two portions, the lord's domain and the " tenures," or hold- ings of the free and servile dwellers in the manor. The tenants in the manor hold their lands of the lord by a variety of services and payments in kind to which they are held. 5 In the eleventh century actual money payments were rela- tively unimportant. Pa} r ments in kind were of real value to the lord, and the labor services which were due him were used to cultivate his own domain lands, from which his chief income was derived. The services of the free tenants differed at this time from those of the servile tenants chiefly in the fact that they were fixed in amount and could not be varied at the will of the lord. Free and servile alike must attend and consti- tute the court of the manor, or domanial court, from which the lord obtained considerable income. This court, how- ever, had no governmental function, except the simplest police justice, corresponding to that of the township only, BCheyney, Readings, 212-217; Penn., Ill, 5, 3-32. ECONOMIC AND POLITICAL SYSTEMS 63 and in all the organization of the manor, and all the services rendered to the lord, the purpose was plainly economic. It was to furnish the lord with the income which enabled him to perform the feudal obligations which he had assumed to- wards his lord and to maintain his place in the society of his time. A manor so held " in hand " by the lord, and used for income, was called a " domain manor," the word " domain " being used in a slightly different sense from its use with reference to the domain land within the manor; but its use was economic, contrasting the manors used for income with those which the lords granted to their vassals on a tenure of feudal services. All ranks in the feudal hierarchy must have their domain manors from the simple knight whose only manor must be held in domain, through the various grades of barons who must keep " in hand " manors enough to maintain their rank, to the king at the top whose domain manors greatly exceeded in number those of the richest baron, partly because he must meet some of the expenses of the state from their income. This body of domain manors, with the economic services by which the lands were held within the manors, and the cus- tomary law by which the holdings were regulated in the domanial courts, is the economic feudal system. The po- litical feudal system was a coordinate, coincident scheme, in which the same manors were held, but by a quite different set of services, regulated by their own law. The king was at the head of this hierarchy also. As such he was the owner of all the land of the kingdom, or sometimes to be entirely logical the feudal lawyers said that he held the kingdom of God. All other holders of land at any rate were tenants, tenants in chief of the king or of some mesne lord who stood between them and the king. Of the land of the kingdom, which came by degrees all of it to be considered as contained in manors, the king retained " in hand " a certain number of manors _as domain manors. The others he di- vided out among his tenants in chief according to their rank, 64 THE NORMAN CONQUEST great barons and minor barons. The services, which he ob- tained in return from these tenants were political in char- acter and by them the state got the larger part of its busi- ness done. 6 The most common service was military, and the feudal system was the chief dependence of the state for its army. 7 In the same way, as the payment of another feudal service, it got its central great council or curia regis which was at once national council, legislature and highest court. Even when the central court began to cast off by differentiation judicial institutions which were of a more fixed character, practically permanent and becoming professional, the idea still lingered that the justices were barons and the peers of all other barons. Even the central administrative machinery was manned and operated chiefly by vassals of the king who were paid not salaries but manors to be held by these services. The practice of the time distinguished be- tween manors held by services of this kind and those held by military services. The former were called serjeanties, grand serjeanties if the services were clearly honorable in character, petty serjeanties if the services were insignificant or more nearly of a menial nature, but serjeanties were feudal, though not military, tenures. They endowed the civil service of the feudal age. The tenant in chief on receiving his fief did the same thing with it that the king had done. Let us say for ex- ample's sake that the king grants to the earl of Surrey 80 manors for the service of 40 knights. The earl retains 30 manors as his domain manors and enfeoffs vassals in the re- maining fifty for the service of 45 knights, for it was the general rule that the great baron enfeoffed more knights than his service to the king called for, so as to increase his own social and political consideration. This process of enfeoffing rear-vassals was called sub-infeudation. 8 The «Cheyney, Readings, 131-136; Perm., IV., 3, 15-32. 7Stubbs, 8. C, 96-97; Penn. IV. 3, 28-32. 8 Penn., IV. 3, 21-23, 29. FEUDAL SERVICES 65 earl's vassals did the same with their fiefs and so on down to the unit, which we have assumed at the bottom, the simple knight holding a single manor. Each of these vassals from top to bottom assumed not merely the obligation of military service but also of all the customary feudal services, 9 includ- ing that of court service, and each lord maintained his own baronial court, if he had feudal tenants enough to justify it, in which the cases of his vassals concerning their hold- ings and their relations to one another and to himself were judged according to the feudal law. The customary feudal services due from the vassal to his lord included certain payments of money which must be care- fully distinguished from payments of an economic charac- ter. 10 When the vassal as heir succeeded to the fief he paid a " relief," a relevium, a taking up again of the fief, which meant that in theory the ownership of the lord entered between the occupation of his vassal and that of the heir. In practice in the case of tenants in chief the ownership of the king did enter and actual possession, called " primer seisin," or first possession, was taken of the fief by the officers of the king. It was only on payment of the relief that the heir obtained recognition and the right to perform homage, swear fealty, and receive the formal investiture which gave him legal possession of his fief. That is, the relief was a payment intended to keep alive in every genera- tion the fact that the holder of the land was a t enant merely Besides the relief, payments which were called " aids," auccilia, were recognized feudal obligations. These were pay- ments by which the vassal came to the aid of his lord on certain fixed occasions when he had to meet extraordinary expenses. In England these were when his eldest son was made a knight, when one daughter, usually the eldest, was married the first time, and when he had to ransom himself »Penn., IV., 3, 32-34. "Stubbs, S. C, 193-194. 66 THE NORMAN CONQUEST as a prisoner of war. Sometimes also on other special occa- sions, as when the lord had to redeem his lands from heavy mortgages held by Jews, an extra aid might be asked for, to which it was expected that the vassal would consent, but these special aids were always voluntary, gratis they were called. They could not be collected without the previous consent of those who had to pay them. These payments are all to be interpreted according to the feudal understanding of the relation between lord and vassal. They cannot be regarded as either economic returns, or as taxation. On similar principles rested other rights of the lord which were even more valuable financially when they accrued. The right of wardship gave him possession of the fief, so long as the heir was a minor, on the theory that a minor heir could not perform the services due. The law required him to support in their proper station and educate his vassal's children, and his rights did not interfere with the dower rights of the widow, but apart from these obligations the income of the fief was his without accountability so long as the minority lasted. If the fief fell to an heiress the feudal law gave the lord the right of marriage, that is the right to select her husband on the theory that the lord must be sure that he would be able and willing to perform the services due. The right was in reality a financial one, the selection being sold to an interested bidder or to the heiress herself or her family. If the vassal's line became extinct, the fief reverted to the ownership of the lord by " escheat," and also if he forfeited his holdings by felony, the king also having in this case prior right to possession for a year and a day, if the felon was a rear vassal. The change produced by the introduction of these political tenures was probably the most immediately extensive and the one most felt by the people of England of any of those which followed the Conquest, because it was connected with the transfer of lands from Saxons to Normans. The change was not made by legislation nor announced in any public LAND TENURE 67 proclamation, nor was it suddenly made. It was made step by step as William bestowed the confiscated estates on his followers or, as was done in some few cases, returned them to their owners. 11 Probably also it was not a change made deliberately or of conscious purpose. The tenure by which lands were held of the king was made feudal and the basis of the political organization because that was the only natu- ral thing to do ; it was the only arrangement which the Nor- mans understood. For this reason also it was made practically universal. It was applied to the lands of the church, for instance: the churches and monasteries very generally retained the lands which had been given them in Saxon times, but now they were feudalized. Bishops and abbots became vassals of the king and definite portions of their endowment lands were formed into " baronies " which they held by the same kind of serv- ices as were due from lay barons. In no case, however, did the barony include all the lands of the church. A portion was set aside to support the church and the monks. These latter lands were usually held by a tenure called frank almoign, or f ree a lms, that is, without service returns or by religious services only, such as prayers for the soul of the donor. Every church held also what were called " lay fees," that is land held of some donor by the ordinary serv- ices as a layman would hold them. It has been often said that William in introducing the feudal system into Engand made important modifications in its character to secure the power of the crown. But proof of such an intention is lacking and a conscious intention of the kind is hardly reasonable to expect. The holdings of most of the great barons were scattered through several or many counties but that was a natural result of the gradual occupation of the kingdom, and of the fact that the estates of their Saxon predecessors, which were often given as a whole to some Norman, were also scattered in the same way. 11 Cheyney, Readings, 103-104. 68 THE NORMAN CONQUEST The same thing was true of feudal holdings on the Continent except where the great baron represented the successor of a Frankish count or duke who had been governor of a dis- trict. In certain cases, Cheshire, Cornwall, Shropshire, and Kent at least, William showed that he was not afraid of the accumulation of something very near a local principality in the hands of one man. William did require an oath of fealty of all land holders whether they were his immediate tenants or not, but this custom was no innovation in Norman feudalism and had been inherited from the Frankish mon- archy, nor was it in practice of value to the king. It will readily be seen that feudalism as a system of political organization for the state involved three principles which were of great influence upon the constitutional devel- opment of the future. The first of these is that the obli- gations of public service which the citizen ordinarily owes to the state ceased to be due to the state as such and were considered private obligations which one man owed to another as a return for land which he held of him. The simplest illustration of this is the feudal military service, but we are soon to notice its application to the na- tional assembly. The second principle follows from this. It is that the relations between the king and his subjects, in many exceedingly important features of government, were regulated by a definite contract which neither party could vary without the consent of the other. The definite under- standing which the feudal custom had about the services on both sides, of the king to the baron and of the baron to the king, could not be changed at will. These two prin- ciples were of decisive influence on the development of the constitution. The third is that the actual occupier of the land was tenant merely and not owner. This principle had an equally decisive influence on the development of our land and property law whose effects remain to the present day as will be indicated later. The Anglo-Norman central council or curia regis was an THE CENTRAL COUNCIL 69 institution of quite a different type from the sheriffdom, 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 national assembly which had preceded it. It was like that an assembly of the great men of church and state, of the house- hold 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 Frank- ish, not in the Saxon state. That new principle of composi- tion was feudal. The great council was feudalized, not in function but in structure. The great men of church and state in attending it performed a duty which they owed no longer to the state, nor to the king as sovereign, but to the king personally a s the lord of vassals, just as their own vas- sals attended their exactly similar councils. The rare excep- tions 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 prerogative power in the government of the state. The same institution in both the essential and the exceptional characteristics, with of course occasional local peculiarities, is to be found in all the contemporary feudal states which formed within the Prankish 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 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 in- stitution played in government, it is necessary to under- stand as clearly as possible the difficult fact that, to the men who were acting in it, its two forms, the great and the 70 THE NORMAN CONQUEST 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 func- tions 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 immediately connected with the government or attend- ant, 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 jDermanent 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 govern- ment were 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 forms in which it acted reveals itself also in the later history in a tangle of crisscross institutions and operations 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 func- tions of the state without making any institutional distinc- tion between them. It was the supreme legislature on those infrequent occasions when the slight business of the com- munity demanded new legislation or the modification of ex- isting law. It was the highest court of law in which the most important cases, or the cases of the most important FEW CHANGES IN LOCAL LAW 71 persons, were tried and decided, it might be in the same ses- sion 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 them were in reality in the form of administrative orders or changes made in administrative practices. In local institutions and local law the changes which were made by the Conquest were comparatively slight. Shire and hundred remained territorially what they had been. In func- tion, competence, and procedure, shire court and hundred court seem not to have been affected by any change, except such change in competence as may have been involved in the withdrawal of ecclesiastical cases. 12 Procedure in the local courts of Normandy, in such details as we know, was almost exactly identical with that of Saxon England and the Nor- mans felt no need of change. They had in use, however, particularly in cases affecting land or in accusations of felony, a method of proof not used by the Saxons, proof by battle or the judicial duel. This they retained, but Eng- lishmen were not obliged to use it among themselves nor in all cases with Normans. 13 In the trial of a case the duel was treated like an ordeal but it was not technically an ordeal. An important practical innovation, the use of the county court to hold a local session of the curia regis, will be discussed in the next chapter. Early in the Norman period, probably in the reign of William I, the Anglo-Saxon tithing, influenced apparently by the system of personal sureties, was developed into the frankpledge system, which held a great place in English local government for more than three hundred years. Over nearly 12 Stubbs, S. C, 122. isCheyney, Readings, 105. 72 THE NORMAN CONQUEST the whole, but not quite all, of England, all men, unless they had property of their own, especially land, which would serve as security for them, or were vouched for by some re- sponsible individual with whom they were specially connected, as in his household for instance, must be in a frankpledge and a tithing, ten or twelve persons formally grouped to- gether under a tithing man. It was the duty of the town- ship to see that all its male inhabitants above the age of twelve were in a tithing. If the accused before the court was found not to be in a tithing, the township was amerced. If he was in a tithing but not arrested and produced by the tithing, the latter was amerced. That is the system was one of collective responsibility for the arrest of persons sus- pected of crime, arrest being a very difficult thing to secure in those times. The earliest court rolls show the constant fining of tithing and township for failure in these respects, in all probability from sheer inability. The tithing system firmly enforced was probably as good a method of meeting the difficulty as could be then devised. At some uncertain date the responsibility was placed upon the sheriff of seeing that the men in the county were properly enrolled and the tithings in working order. This he did in the practice called the sheriff's turn by going in circuit to each hundred and holding a " view of the frankpledge " in an especially full meeting of the hundred court twice each year. In the transfer of so much that concerned govern- ment into private possession which characterized the feudal age, even this function, so essential for the maintenance of local police and good order, was given over in a great num- ber of cases to the lord who had possession of the hundred court from which the sheriff was in many cases shut out. That system of private jurisdiction, partly economic, partly local police, which had developed somewhat generally before the Conquest, received no check from the Normans, except as the governmental supervision of local police be- came rather more strict through the growth of the frank- PRIVATE COURTS 73 pledge system and more slowly of a new criminal justice. The Normans were familiar at home with private courts of a similar character and would see no reason to interfere with them in England. Indeed the kings confirmed liberally the Saxon grants of hundred courts to private lords, and made new ones of their own, and it was not long before they in- cluded freely, among the rights granted, the view of the frankpledge itself. It should be noticed, however, that the centralization of the Norman state was so great that the chief significance of these grants, both to grantors and grantees, was not political independence but financial income from fees and fines. No appreciable political independence went with them, and it is more than two hundred years after the landing of the Normans before the central government took seriously in hand the recovery of the local courts. With the introduction of political feudalism, the Normans also introduced a new kind of private court, the feudal court proper, 14 or the baronial court as it is better called for dis- tinction's sake: the court of the lord for his vassals and freehold tenants, with jurisdiction over their holdings, and their relations to one another, and over questions arising from the service due their lord. In organization and pro- cedure it was like the other courts of the time, an assembly court using the same methods of trial and proof as the hun- dred court, and presided over by the lord or his represen- tative not as judge but as moderator. The law which it en- forced, however, was not the law of the hundred as in the franchisal court of the " liberty," nor the customary law of the domanial court, but the feudal law proper, regulating the relations of lords and vassals with one another. There were thus in Norman England three kinds of private courts which we may in theory distinguish sharply from one another as we know that they did in practice: The baronial, whose field was the relations of lords and their free tenants in political feudalism; the hundred court in private hands, "Penn., IV. 3, 32-34, Nos. 1 and 4. 74 THE NORMAN CONQUEST which we may best call a franchisal court, because it was established by the grant of a " franchise " or freedom from the local organization and its officers, also called commonly in England a " liberty " ; and the domanial, or manor court proper, whose field was the manor and its tenants and their relations with one another and their lord in the sphere of economic feudalism. In practice for convenience and econ- omy these courts, especially the two last, were often used to do the business one of another, but not in such a way as to confuse their jurisdiction proper or to destroy the dis- tinction between them or between the kinds of law which they interpreted. The baronial court, sometimes called an " honor " court, as the barony was sometimes called an " honor," was very rarely used for any business not its own, though it seems to have been occasionally used as a court of appeals for questions from the domanial courts of the same lord. The population of England remained divided into the same classes and ranks as in Saxon England. The new no- bility was more powerful, more sharply defined, and to enter into it was apparently more difficult for men of non-noble origin. The feudal tenure proper, political feudal, was al- ways considered a noble tenure, and with the single excep- tion of the earl, there were no technical distinctions of rank among the feudal tenants. As in Saxon times the common freeman holding his land by a non-feudal, oftentimes also by a non-labor, tenure, called commonly " socage " tenure, stood between the noble and the serf, and the unfree in va- rious grades constituted the lowest stratum. It was im- possible of course that the community should go through such a revolution as the Norman Conquest without great depression of individuals, and it is probable that the loss to Saxons generally was greater than the evidence reveals to us. Few Saxon nobles passed into the Norman nobility; the common freeman lost distinctly in relative influence and weight in local and public affairs and it was long before he MONARCH AND BARON 75 recovered his former place, and many individuals of the class undoubtedly were depressed into the class below them. If the serf lost relatively less than the other Saxon classes, he gained nothing from the change, unless possibly those of the very lowest class. The improvement of his position awaited general economic improvement, and the common freeman be- gan to recover his place earlier, with the development of judicial reforms in the twelfth century. Monarchy and baronage stood over against one another after the Conquest as the two most powerful forces of the time, as indeed the only forces as yet affecting public life and government, if we include the clergy in the baronage as we must from the point of view of the government. The middle and lower classes had not yet acquired a standing in the community which gave them an influence on public affairs nor was there any institutional machinery through which they could make themselves heard. The king was the more powerful of the two great forces, but the baronage pos- sessed the principle, in the feudal contract and the resulting limitation of the king's rights, which was destined to be the foundation of the limited monarchy. It was indeed the great preponderance of the royal power which led to its own de- struction. As yet neither king nor baronage had any wide outlook on the future nor any clear conception of constitutional 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 individual haron 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. 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 deter- mination of the king, though with no conscious intention and no institutional* result. 76 THE NORMAN CONQUEST Bibliographical Note. — G. B. Adams, Local King's Courts in the Reign of William I, Yale Law Journal, xxiii, 90, 1914; Private Jurisdiction in England, A. H. R., xxiii, 596, 1918. C. M. Andrews, The Old English Manor, 1892. H. Boehmer, Kirche und Staat in England und in der Normandie im XI und XII Jahrhundert, 1899. C. H. Haskins, Norman Institutions, 1918. F. W. Maitland. Domesday Book and Beyond, 1897. W. A. Morris, The Frankpledge System, 1910. J. H. Round, Feudal England, 1895. F. M. Stenton, William the Conqueror, 1908. Sir P. Vinogradoff, Villainage in England, 1892; English Society in the Eleventh Century, 1908; The Growth of the Manor, 1911. CHAPTER III THE NORMAN PERIOD The changes introduced by the Norman Conquest are really less important when looked at from the side of insti- tutions strictly speaking than when considered as changes in emphasis and interpretation. As to institutions the only great change was what necessarily followed the introduction of feudalism, the change in the structure of the great coun- cil and the prevalence of a new land law, the law of feudal tenures proper. But changes in emphasis and interpreta- tion were far reaching and in one matter at least, in their influence on the position of the king in the constitution, of immense significance. Until we reach the rise of Parliament in the middle of the thirteenth century, the one great topic of constitutional interest is the power of the king and its probable future. The judicial reforms of the last half of the twelfth century were of great and lasting importance, but their final importance was to be institutional, that is con- cerned with the details of governmental operation, rather than constitutional, that is affecting the character of the whole governmental system. At first, however, their effect was quite as much constitutional as institutional, and this significance they obtained through their direct bearing on the royal power. This is the one fact, the royal power and its future, which is fundamental in the history of the first two hundred years after the Conquest. The problem of the time was, if we may phrase it as a problem : will the king be able to translate his power, which as yet is practical rather than institutional, a power derived from emphasis and interpretation rather than from law, into a constitu- tional power, founded strongly in law and institutions ; or l 77 .78 THE NORMAN PERIOD will it be found possible to make the immature and rudimen- tary checks upon arbitrary power which exist in feudal law the ruling principles of the constitution. One element of the royal power, the royal prerogative, which has been of great importance in all constitutional his- tory down to the present time, was already semi-institutional in character at least, that is, it was recognized by the courts as clothing the king with extraordinary power, even in some cases against themselves. The king's prerogative right was so much discussed when men began to theorize about their government, and emphasis upon various phases of detail was so greatly varied from time to time, that the task of de- ciding what it was in the medieval period is not an easy one; and it is perhaps an impossible one, for the idea developed greatly in the course of time. It is, however, exceedingly important that, if possible, an understanding of its funda- mental character should be gained at the beginning of a study of constitutional history; but we must be reminded again that, in using phrases which make the past fact clear to us, we are not asserting that the men of the time could have used the same phrases, or have explained the fact in the same way. We may say that prerogative was the power of the king to do things which no one else could do, and his power to do them in a way in which no one else could do them. He could direct a jury of neighbors to determine a fact, but no one else could do this. The jury was preroga- tive procedure and it was the king's own. Roughly pre- rogative was his power to do all things which were not ex- pressly forbidden him by the law, or by custom equivalent to law, or by agreements which he had himself made. Prac- tically it was not always easy to hold the king to his own agreements, or to make him conform in every case to the law. Indeed in many respects he was distinctly recognized as being above the law. He could not be sued. He could protect rights of others which the common law would not protect, and in doing this he gave rise to the whole system CONFLICT OF LAW AND PREROGATIVE 79 of equity law and courts. No valid law could be made if he did not consent to it. He could set aside a judicial sen- tence by granting a pardon. In times somewhat later he could set aside a statute, or a part of a statute, or a special application of a statute, to which he had consented. He was responsible for his acts to God alone. He was the repre- sentative of God in the government of the world and as such clothed with extraordinary powers, as well as held to the duty of securing right and justice. On the other hand there was some law, especially public law and express engage- ments of his own, which he was not above, and the conflict and reconciliation of these two contradictory ideas, the king is above the law, the law is above the king, the conflict of law and prerogative, constitutes a large part of English constitutional history. There can be no question about the first tendencies of con- stitutional growth. William I had ruled with moderation and had never shown a disposition to take advantage of his position to push his right to extremes. The evidence is not so clear as we could wish but it is sufficient to warrant us in saying that his son William II did do so. The few specific instances that we have, and the abuses which are indicated by the promises of his brother Henry's coronation charter, while implying that his acts were illegal, show somewhat more clearly that he had pushed the rights logically involved in the position of the feudal suzerain to unusual extremes and in some cases had made them justify demands that were new. Both ecclesiastical and lay barons suffered, but the exactions from the church fiefs were especially regarded as new. 1 Apparently William I, while acting upon his right to control a fief during a vacancy, had gone no farther than to take the lands in hand, to make an inventory of the goods and to see that they were not wasted, leaving the income to the church. His son, however, exercised his right with strict logic, and retained the income to his own use as he would in iStubbs, S. C, 109; A. and S., 3. 80 THE NORMAN PERIOD case of a lay wardship, or even considered the fief escheated and granted out its lands without reference to the interests of the church. In the case of lay barons he was not satis- fied with a moderate relief, but he was accused at least of demanding something near the capital value of the fief. The right of marriage also he used in the same way to justify unusual exactions and applied it to the widow as well as to the heiress of a deceased baron. However slight the evidence may be as to specific acts, there can be no doubt but that in general, William II, ex- „ ercised a power in England which was so arbitrary and un- limited as to te near at any rate to tyranny. Twice during his reign the barons tried the feudal remedy of rebellion, in the first instance with force enough to make the attempt for a time dangerous to the king, but without success. William was too strong. It is interesting that danger brought the king to some repentance. He appealed to the English peo- ple and made written promises of better government, which would give us valuable information, if we had them, but when the danger was past he returned to his earlier methods of rule. In Ranulf Flambard, whom he raised from obscurity to the bishopric of Durham, the richest and most powerful in the kingdom, he had an able and vigorous minister who, we are led to suppose, was not merely ready and able to do the king's will, but also to show him new steps to take in the same direction. So far as we are able to judge, the demands of William were all logically involved in the acknowl- edged rights of the suzerain and, except perhaps for the size of the sums exacted, his innovations became recognized rights of the king of England for a century and a half at least, and were even carried farther in the same direction. The sudden death of William II, together with the absence of his elder brother, Robert, gave the barons their oppor- tunity. The younger brother, Henry , persuaded the barons to support him as king, but in order to do so lie was obliged to promise that he would abandon the arbitrary acts of his jj CORONATION CHARTER OF HENRY I 81 brother and return to the practices of their father. These promises were formulated in specific form in a charter, or what would be for a private man a legally binding deed or grant, which we call the coronation charter of Henry I. 2 The provisions of this charter were based clearly on the prin- ciple that the things which William II had been doing he had no right to do and that therefore they were unjust and illegal. In the first paragraph Henry gives as the reason for his promises that " the kingdom had been oppressed by unjust exactions " and he promises that he will remove " all evil customs by which the kingdom of England was unjustly oppressed." That is the king definitely acknowledges that there are certain things, some of which he goes on to name, which the king cannot legally do. Nearly all the specific points mentioned in the charter concern the feudal relation between the king and his barons. T he ch a rter i sr in th e poin_ts_w hjrh ih tnkos np, _gjT_pyf mplifirat.inn of the fun da- mentaj_j:o ntract r ela tinnship nf feudali s m, that_ is_-£ejrvices definitely _defined by fnstnm u x-cgLfcuj m for a, definite piece of land receive^, and it is a. sppn'al con tract — t h e barons , en- ga^e_^o_support_lheJdn g if he will make these promi ses — withi n the field of the mure genpral feudal contract. It is in this sense that it has its significance in constitu- tional history. The specific promises of the charter Henry himself did not keep, nor did later kings, but the idea upon which the charter rested was never lost sight of. We may state this idea, though the barons of 1100 could not have done so, as this : that there are certain things which the king cannot legally do, certain limitations on his power which he is bound to observe and, if he will not, the barons may rightfully insist that he shall. Through most of the period of the strong Norman and Angevin monarchy this principle lay dormant, but. when the time came that another tyran- nical king, acting illegally, was also at a disadvantage, the barons turned to it again, now even more clearly held, and 2Stubbs, S. C., 117-119; A. and S., 4-6. V 82 THE NORMAN PERIOD it was upon the model of the coronation charter of Henry I, that Magna Carta was drawn up, and through it this principle became the corner stone of the limited monarchy. Not long after the date of the charter, Henry had to defend his throne against a most dangerous combination of English and Norman barons, who feared that his power would become too great, and it was not until after several years that the struggle was finally settled in Normandy in favor of the king. Henry reigned for nearly thirty years after his victory and during the whole of that long period his authority in England was unquestioned. It was a period indeed of steady and sound growth of the royal power, not so much upon the practical side, where it had little need to grow, as in law and institutions. Our evidence of the changes made in the reign of Henry is only scanty and frag- mentary, but it is enough to convince us that the foundations were then laid for those advances in the reign of his grand- son, Henry II, which went so far towards establishing the English royal absolutism solidly in the constitution. The special characteristic of this constitutional develop- ment of royal power in both these periods of its growth is that it was a development of law and of judicial institutions. Indeed it is true that some of our institutions which we especially associate with the protection of liberty against the executive power, like the jury, were in their origin parts of machinery for the more intense centralization of government in the hands of the king. Of what was actually done in the reign of Henry I, we have only incomplete information, but the slight glimpses that we get are very significant, and the evidence of peculiar interest in law is clear. In fact there is hardly to be found in the whole of legal history a period of equal length which has left us as convincing evi- dence of legal interest and study as the last twenty-five years of this reign. There remain to us from that time seven, perhaps we ought to say eight, compilations more or less complete of English law then current, or at least of what LEGES HENRICI 83 the writers wished to have pass as not obsolete. Possibly an impulse was given to the writing of these books by the promise in the coronation charter of the king that he would restore the laga Edwardi regis with such changes as had been made in his father's time. Probably the demand was not so much for the laws of Edward or for any particular set of laws as for the Anglo-Saxon system in general, now far enough in the past to be idealized, and the promise was probably less impulse to a beginning of interest than itself evidence that the interest had already begun. At any rate it is clear that the writers were trying among themselves to do one or more of three things, to show what the Anglo- Saxon laws were, to give the results of the legislation of William I, or to depict the mixture of Saxon and Norman law which was actually in use in the contemporary courts. The most interesting and valuable of these books is one which bears the title Leges Henrici, which purports to give the law which the courts of the time applied, and apparently it does do so. It was written in 1116 or soon after, as a private, not an official work, though its author was prob- ably one of the royal justices. 3 Accepting the accuracy of its picture of contemporary usage, the specially significant fact is that it shows two distinct systems of law, the Saxon and the Norman feudal, operating side by side in the courts with no sign as yet of any melting of the two together into one organic whole. T hat nninn was to take place shortly and to give rise to our common law as that is depicted towards the end ot the century in Glanvill, the first great text book of the common law, but as yet the two systems of law stand side by side as independent, though both enforced in the same courts, as they could easily be. We cannot be sure that some of the Saxon law written in the Leges was not already obsolete but much of it we know was not, and it is certain that the reference to the Laga Edwardi in the charter of Henry I, though it may then have had no very »Stubbs, 8. C, 122-126. 84 THE NORMAN PERIOD solid foundation in actual law, served to keep alive an ideal of government according to law which was at a later time to reinforce the more positive forces which led to the beginning of the limited monarchy. In one large field of law, criminal law, we can see a little more clearly that the old Saxon was already beginning to fall into the background and disappear before the Norman and the change seems to have been closely connected with that increase of the king's power which resulted from the Con- quest. In the Leges Henrici the old Saxon system of bots and wites still appears in full force. It probably was in force as of old in the local courts, for the Normans at home had practically the same system and there would be no rea- son for a change. The new system grows up beside the old and in the course of the century crowds__it. out. The first stage in the new growth seems to have been the development, or simply the extension of two older ideas, the idea of the king's pleas, o r cases reserved es pecially to ihe-king— and his courts and not included in the sheriff's normal jurisdiction, and the idea of the king's peace as described in Chapter I. In the Leges Henrici, it is the first of these ideas which shows especial extension. The short Saxon list of pleas re- served to the king, given above, had now become a much longer and more miscellaneous list, showing the growth of the idea that a crime committed is an offence against the king. 4 Dislo3'alty, murder, robbery, arson, contempt of royal writs, false coining, and crimes of violence are named. Breach of the king's peace stands in tins list as one of these offences and the early development of this idea does not show itself so much in the specification of the crime which is made in the accusation as it does in the character of the punishment. That is, it is somewhat later in the century apparently that the practice becomes common of transforming any crime into a plea of the crown by alleg- ing that it was a breach of the king's peace. But under * Stubbs, S. C. t 125. GROWTH IN NORMAN INSTITUTIONS 85 Henry I, the idea is clearly held that the offender who is guilty of a grave crime is at the king's mercy, in misericordia regis, that is life and property are forfeit; the king may take more or less as he sees fit : life or a limb, all the prop- erty or a heavy fine. In the Leges Henrici the list of pleas which put a man at the king's mercy is practically the same as the list of pleas of the crown. The change is an extension of the idea of royal, or national, justice at the expense of locals both of the local courts and of their system of bots and zcites. In another feature of the criminal law of the time the same effect is shown, the increased strength of the Norman central government as compared with the local. It illus- trates also the difficulty of arresting criminals in those times and the plan of collective responsibility. If a man was found killed, the hundred in which he was found was held either to produce the slayer or to prove by a not easy process called " presentment of Englishry " that the slain man was an Eng- lishman. If it could not do one of these two things, it must pay a heavy fine, called murdrum. The royal power was in the end, however, to find far less extension and support in the development of criminal than of civil justice. Of such a development in the reign of Henry I we get only slight glimpses. They are enough to enable us to say that all the great advances in the principles, in- stitutions and organization of civil justice, which charac- terize the reign of Henry II, had their beginning in the time of his grandfather. We must reserve, however, the treat- ment of the full reforms for the later period, and limit our- selves here, as our lack of knowledge limits us, to the first indications of growth in the institutions that were brought into England by the Normans. Three institutions constitute the beginning points of this development which were either new to England, or existed iii such rudimentary form that it is clearly the Norman and not the Saxon from which the growth begins. They are the 86 THE NORMAN PERIOD writ, the jury, and the royal itinerant or circuit justice. The writ was used by the Saxons and its later use has been regarded by some as a Saxon survival, but the writs which play the chief part in the judicial development are surpris- ingly like certain Frankish writs and have no Saxon proto- types. It probably is to be said that we have in the writ another case where Saxon and Norman easily ran together into one, but that the impulse to growth was Norman. The writ primarily was a mandate of the king's directed to the sheriff or to some other officer of the government, or to a private individual, directing that some specified act be per- formed. 5 As such it was the authorizing and moving force which the royal government employed to initiate and carry through the judicial changes of the age. In the process its own development consisted in fitting the form of the writ more and more exactly to the action it was to initiate and therefore in the multiplication and classification of -forms of writs. - The jury may be called the pivotal, or perhaps the causal, institution in the process of growth, for it was in a very large proportion of the cases the desire to use the jury which led to the extension of the writ and to the employment of the itinerant justice. The jury was not Saxon. The Normans had inherited it from the Frankish Empire in which it goes back into very early, perhaps even into Roman times. Dur- ing all the Frankish and Norman use of it, however, it had shown no tendency to grow. Its development into its mod- ern applications is after the Conquest. As brought into England in 1066, the jury may be most simply described as machinery for ascertaining a disputed or desired fact by the testimony of those most likely to know about it. Selected persons were summoned before an officer commissioned for the occasion, put on oath (jure), the specific question was put before them, and they were required to say whether the oStubbs, S. C., 97; A. and S., 7. THE JURY A ROYAL INSTITUTION 87 fact was this or that. 6 If they did not know, they might say so, but the}' were selected because it was supposed that they would know. Twelve as the number of the jurors, the requirement of unanimity, the submission of evidence to the jury, and the excusing of a juryman because he had formed an opinion about the fact in question, are all later modi- fications of the original institution. At the beginning the jury was a royal institution only, a prerogative institution. It could be used only by the king and only in a king's court before a royal justice. The great advantage which it of- fered was that a fact in dispute, or a fact which it was de- sired to ascertain, could be established by the sworn testi- mony of those most likely to know, and in the neighborhood where the evidence was most likely to be found. The desire to use the jury was the chief reason which led to the more common employment of royal justices and to the final organization of a permanent and regular system of circuit justices and courts. This desire was not merely felt by individuals who wished to get a better method of proving facts in their suits at law than by the older, less satisfactory procedure, but also by the king who made great administrative use of the jury in holding local officers to proper conduct, in taxation, and indeed in any question of interest to the government. From the beginning by special permission in each case, which of course had to be paid for, the king allowed his jury to be used by private persons in the trial of their causes in his local courts before his jus- tices. In such cases and in all cases the writ was the jus- tices' commission to act for the king and at the same time it was permission, or a mandate, for a jury for the spcci'i : purpose described, though the description in early cases i i sometimes vague. The justice commissioned was very often the sheriff of the county in which the case arose ; sometimes others were e A. and S., 2; Penn. I. fi. 22. 88 THE NORMAN PERIOD named to act with him; sometimes a justice, or justices, were named without the sheriff. Usually, if not always, the justices were to go into the locality where the parties resided and try the case where the evidence could easily be obtained, that is, they were the king's missi. 7 The court which was summoned to meet them and to try the case, was a local court, a hundred or a county court, or a court of combined hun- dreds or counties. The result was that the king's missi held a king's court, a curia regis, using the machinery of the old local court. In this court no change was made at first in the old procedure except in the use of a jury for the estab- lishment of disputed fact. The first great advance in the growth of this new system of justice consisted in grouping the counties together into circuits to each of which a body of justices was commissioned to go for the trial of cases that might have obtained the necessary permission, that is, a step towards making the system regular and permanent. Of this advance, as a part of the judicial system, there is no sign in the reign of William I, only slight indications in that of William II, while the signs that such a regular plan was in use in the time of Henry I are much more numerous but not detailed enough to enable us to localize the system definitely. For one purpose William I made use of this machinery in a form almost as fully developed as it was when constantly employed by his great grandson, Henry II. It was used to gather the facts from which was made that unique record which was called before very long, as we still call it, Domes- day Book, the record from which no appeal could be taken. 8 The Domesday survey, or inquest, was an inquiry made throughout the kingdom in 1086 to ascertain the ownership of each estate of land and its value for taxation, for the Danegeld. To get the facts royal commissioners, called barons, justices, or legati, that is missi, were sent to each 7 A. and S., 4. sStubbs, 8. C, lOOff; A. and S., 2-3; Cheyney, Readings, 111-115. THE DOMESDAY BOOK 89 county, probably to a number of counties grouped in a cir- cuit. The county court was summoned to meet them just as it was summoned later to meet the justice on his circuit. The whole " county " sometimes decided questions of special importance, but the business of the survey was done as a rule by the sworn jury of each hundred which was present as in the later justice courts, and in the same way also the questions to be answered were submitted to these hundred juries. They were required to tell the name of each manor and the name of its holder at the time of King Edward and at the time of the inquiry ; the number of hides it contained ; the number of ploughs employed on the lord's domain lands, and the number on the lands of the tenants — a rough way of determining the amount of land in cultivation. Then they gave the population of the manor in classes: freemen, villeins, cotters and serfs ; the amount of forest and meadow ; the number of pastures, mills and fishponds ; and what the value of the manor was in the time of King Edward, when granted by King William, and at the date of the inquest. The facts thus gathered were put into permanent form in the Domesday Book, a storehouse of information on the economic condition of England at the end of the eleventh century, but from our point of view remarkable for the com- pleteness with which it foreshadows the new judicial system established a century later. The beginning of king's local courts, presided over by king's missi, using the old county courts, and foreshadowing a regularized system of royal circuit courts, in which jury and writs were developed as parts of a new procedure and a common law was carried to all parts of the kingdom, opened the first stage in the unifying of the kingdom institutionally, in the uniting of Saxon and Norman institutions into a single whole. That in this final common whole more of the Saxon seems to have disappeared from view than of the Norman does not prove that Saxon institutions made no contribution to the result. They furnished almost everywhere a solid 90 THE NORMAN PERIOD foundation on which the new construction rested, as in the case of the surviving county and hundred courts already referred to. This process of unification went on in two stages. One is that just mentioned, which we shall shortly consider more fully. It is really a process of carrying cer- tain Norman institutions belonging to the central govern- ment down into the counties and uniting them there with old Saxon local institutions to produce new results. For these results really were new — new uses of writs, justices and juries. This stage of the process gave rise to the modern Anglo-Saxon judicial system. The second stage begins later, in the middle of the thirteenth century, and is a reverse process. Certain results which characterize local govern- ment and procedure as a consequence of the first process, were brought up from the counties and united with institu- tions of the central government to produce further new re- sults. This second stage gave rise to the Anglo-Saxon forms of representative government, and to parliament. It was not merely the judicial organization of the coun- try which was rapidly improving during the period covered by this chapter, but also the administrative system, or to state more specifically the chief interest with which admin- istration was at that time concerned — the financial. The Anglo-Norman state made no great improvement on the Saxon in the matter «of public revenue ; the regular sources of income remained the same, made somewhat more produc- tive but not increased materially in number. The irregular feudal revenue, though occasionally large in amount, had not yet been developed, as it finally was to be, into a more con- stant and dependable income. The strength of the govern- ment, in which the sheriff shared, not merely improved the col- lection of the revenue but, through the greater security which it gave to business and property, increased the amount to be collected. The sheriff was still the officer who was respon- sible for the financial interests of the state in his county, and most of the new payments which the Normans intro- ORIGIN OF THE EXCHEQUER 91 duced, like the relief, it fell to him to collect. Before the end of the reign of Henry I, the accounting of the sheriff at the treasury was put into the improved and rather elabo- rate form which it retained for many generations — the ac- counting at the exchequer. Just when the peculiar system of accounting which is asso- ciated with the exchequer began, and when the special ses- sion of the small council, set apart for the purpose, began to be called technically the exchequer, as if it might be something different from ordinary sessions, cannot be said with certainty. We can say that the more the subject is investigated the more an early origin seems likely and that at present the earliest evidence of use is English rather than Norman. The system of accounting gave rise to the name exchequer. The official members of the small council, with one or two others, and their clerks to keep the records, sat about a table with a chequered cloth, or cloth divided into columns of squares for pence, shillings, pounds and multiples of pounds. On these squares counters were placed and moved about as the accounting went on — an adaptation of the abacus method of reckoning. Before this tribunal each sheriff appeared twice a year, at Easter to make a prelimin- ary, and at Michaelmas a final accounting. The scrutiny was minute and as it went on nearly every item was checked by written records. The sheriff was allowed credit for ex- penses which he had incurred by written order and for the income of those royal manors once making part of his ferm which the king had given away. He was charged with the amount of this ferm, with the amercements in king's pleas which were not included in his ferm but noted in the records of the justices, with the income of escheats and of lands falling to the king not included in the ferm, and with debts which he had been directed to collect, including sums paid to the king by individuals for favors or exemptions. He also accounted for reliefs which had fallen due within the year, and for lands in wardship. From the accounts thus 92 THE NORMAN PERIOD rendered the general record for the year was put into per- manent form, making the series which we call the Pipe Rolls. The earliest of these which has come down to us is for the year 1130, but the system had been in operation for some years at that date. We have no Pipe Rolls for Stephen's reign and the continuous series begins with the second year of King Henry II. The development of distinct institutions of government out of the simple and generic constitution of the feudal state was to be very largely a process of differentiation, by which the primitive institutions of the eleventh century were to be split up into new ones along the lines of the various functions they originally performed. This process of differentiation affected especially the small council because it was the per- manent supervising organ of the central government having control of almost all the business of the state. We shall have to note this specialization of function and consequent differentiation at several points in the history. Here we have to note the first in the series, as we know it, and one that is typical of many others. The first step was taken when the financial supervision of the council was set off to be carried on in a special session for which the official mem- bers of the council seem to have had a peculiar responsibility. At first it was merely a session of the council having special reference to its financial duties, but capable of performing any other function of the council in the same session. This capacity remained to the exchequer for a hundred years or more, to result finally in a differentiation within itself, forming the financial exchequer and the exchequer of pleas, or the exchequer as one of the common law courts. — During the period of almost fifty years from the death of William I, to that of his son Henry I, the royal power was steadily advanced by the vigor of the kings, by the fail- ure of baronial insurrections, by the establishment of cus- toms at first hardly legal but soon accepted, and by the improvement of governmental machinery, judicial and ad- STATE CONTROL OF CHURCH 93 ministrativc. But at the end of that period the constitu- tional absolutism which was forming was brought to a test which it survived with difficulty. Henry I, was succeeded by his nephew Stephen whose position was weak because his right to the throne was disputed by Henry's daughter, Matilda, wife of the count of Anjou, and because he was himself irresolute and unable to compel men to obey him. The result was, where so much still depended on the per- sonality of the king, where the constitution was not yet so firmly fixed as to be habitual, that the state fell into dis- order. The new financial and judicial machinery became a good deal disorganized, and England had a little taste of what feudal society might be when the bonds of central con- trol were loosened. Nothing was permanently lost, how- ever. Some progress in the direction of law was actually made and even more in Normandy, and when Matilda's son, Henry II, succeeded Stephen in 1154, he re-established, in a couple of years and with a little difficulty, the financial and judicial machinery and the strong monarchy of his grand- father, Henry I. In one direction Stephen's weakness had constitutional results far more permanent than any change upon the merely political side. Over one important element of state and con- stitution the monarchy never recovered the power which Henry I had received from his brother, power over the church. At the moment when William I made his conquest of England and brought the Saxon church under a more strict state control than ever before, a great reformation in the Latin church of the west was just reaching its cul- mination. The reform movement which had started in the monastery of Cluny in the tenth century, had for its ultimate object a constitutional advance by which the government of the Roman church should be made an absolute and highly centralized monarchy under the pope. The success of the movement was complete. At the end of the eleventh century a powerful imperial government, with all the machinery of 94. THE NORMAN PERIOD a state, based upon the union of all state churches and sub- jecting them all to itself, took its place beside the state gasL- ernments of Europe. Conflict was in the nature of the situa- tion inevitable. The church organization of England was in important ways a part of the state government. Extensive fields of law, marriage, divorce, inheritance, belonged wholly to its courts. Service from its fiefs was essential to army, legislature, and courts. The bishop as a baron, better edu- cated and of broader outlook than the lay baron, was indis- pensable to the efficient working of feudal government. On the other hand, if there was to be a universal monarchical church, the case for it was just as clear. The church of every state was an essential portion of such a monarchy, without which it could not be, and must be obedient to it and serve it primarily. Conflict was inevitable and, where there was so much of justice in both claims, compromise was the only way of reconciliation. The double position of the bishop, as an essential work- ing officer of feudal government, as an essential working offi- cer of the ecclesiastical monarchy, brought on the first and most severe phase of the conflict. This question, which should appoint the bishop, church or state, from which should be derived his authority and to which should he be primarily responsible, was fought out in the early years of Henry I, between the king and Anselm, 9 the archbishop of Canterbury, and the compromise by which it was terminated was the same as that made later between the emperor and the pope. The ^church should select the bishop. The king should then re- ceive his fealty and confer upon him the fiefs belonging to his see, and then he should be consecrated bishop. The king thus obtained virtually a veto for, if he withheld the fiefs, the endowment lands of the bishopric, the church would hardly insist upon consecrating the particular man. The compromise was as fair a one as could be made, but the church really gained and the king lost. If all the results of the »Cheyney, Readings, 125-127; G. and H., 63. JURISDICTION OF CHURCH COURTS 95 change appeared only gradually, they were all involved in the settlement. The church was no longer, as it had been traditionally, the obedient servant of the state. It had come up~^Tolig~stde"~the"government of the king as an independent and rival power. It received its law and its judicial decisions from arPoutside sovereign, and it garrisoned the land with the devoted bands of the new religious orders. The full consequences of this change, Henry I never ex- perienced. His rule was so strong that the concessions he had made had little practical effect. But Stephen was in a different position. At the beginning he had been obliged to secure the support of various interests by liberal prom- ises, which were clearly of the nature of bargains, and emphasized though in slightly different way the contract relation between king and baronage as did the charter of Henry I. Stephen's first charter is general in its terms and amounts to no more than a confirmation of Henry's, but his second is more specific and is really a charter to the church. 10 What it granted that was new, or could be made something new, was jurisdiction to the church courts over ecclesiastical persons and their effects. The terms of the charter might be interpreted in more than one way but there is no doubt but that what it was made then to mean, was that all cases, civil and criminal, in which ecclestiastics were involved were removed from the state courts into church courts — an advance of its practical government within the "state which the church had long striven for but scarcely anywhere obtained. This was the situation which Henry II found when he came to the throne. In his first work of restoring the judicial system as the means of re-establishing order and security he came at once face to face with the fact that a large and important part of the people were beyond the control of the state courts. The cleric in orders who committed a crime could be tried in the church courts only, whose pun- "Stubbs, S. C, 142-144; A. and S., 7-9. 96 THE NORMAN PERIOD ishments seemed wholly inadequate. Henry's instant deter- mination to bring this condition to an end brought on the famous conflict with Thomas Becket, the Archbishop of Canterbury of his own "appointment. 11 It is the constitu- tional aspect of this conflict only with which w r e are con- cerned. Henry succeeded in getting from the archbishop a promise to observe the ancient customs of the realm, and this would have settled the matter in the king's favor if it had been faithfully observed by Thomas, for there is no doubt but that the king's position with reference to the jurisdiction of the state courts was historically correct. But Henry did not stop with this concession, and the arch- bishop had some justification in refusing to be bound as the matter was finally put. In order to make a permanent record of the relation between the two sorts of courts, the king demanded of the great council a recognition of the ancient customs of the kingdom. A " recognition " was the formal answer of the jury appointed to make an inquiry, or " inquest," and the document which we have, the Consti- tutions of Clarendon, of 1164, the first of the great con- stitutional documents of Henry's reign, may well have been drawn up by a jury, but we do not know how the jury was made up and the document itself had more nearly the form of an act of the great council. 12 The Constitutions did not demand that the state court should try the question of the guilt of the accused man, if in orders, but that he should be arrested by the state of- ficer, to be brought before a state court for accusation, then turned over to a church tribunal for trial and, if found guilty, for degradation from his orders. Then he was to be returned to the state for sentence and punishment. But the Constitutions went beyond this particular question. They reasserted practically the three rules of William I, though the pope was not specially referred to ; they pro- 11 Cheyney, Readings, 143-160. "Stubbs, 8. C, 161-167; A. and S., 11-14. CONSTITUTIONS OF CLARENDON 97 vided that suits as to the right of presentation to churches should be tried in secular courts, and also suits as to the ownership of land, unless it could be proved that the church held by the f rank -aim oicfn tenure; and they defined clearly and emphatically the feudal position of the bishop as a vassal of the king's. Becket refused to be bound by the Constitutions though the other bishops submitted, and the struggle between archbishop and king ran rapidly to ex- tremes, and finally to the murder of Thomas. The reaction which followed against the king was natural, and he was obliged to abandon in form his most extreme claims in order to obtain reconciliation with the church. In practice, however, he did not keep his promises any more faithfully than his grandfather had done. In the end the state secured all that the Constitutions asserted with the one exception of the punishment of clerics accused of felonies less than treason. The punishment of treason and of mis- demeanors remained to the state. The exception in the case of felonies is what was long known in English law as " bene- fit of clergy " — one accused of a felony " pled his clergy " — pled that he was in orders and so could not be tried or punished by the state. If the fact was proved according to the established rules, he was turned over to the ecclesias- tical court and so escaped the punishment inflicted by the state. Bibliographical Note. — C. H. Haskins, Norman Institu- tions, 1918; The Abacus and the King's Curia, E. H. R., xxvii, 101. 1912. W. A. Morris, The Office of Sheriff in the Early Norman Period, E. H. R., xxxiii, 145, 1918. R. L. Poole, The Exchequer in the Twelfth Century, 1912. J. H. Round, Geoffrey de Mandeville, 1892; Feudal England, 1895; The Commune of London, 1899; The King's Serjeants and Officers of State, 1911. T. F. Tout, The Administrative History of Mediaeval England, 2 Vols., 1920. CHAPTER IV CENTRALIZATION AND LAW Henry II, could not have foreseen the ultimate results of the reforms introduced in his reign, though they were to be of such enormous consequence in the legal and constitu- tional history of the future. No man of his time could have foreseen all, and Henry was not distinguished by any special foresight even in the simpler political problems that confronted him. It was indeed probably as a political prob- lem that the king looked at the question of reform. The central government had been weakened; its strength must be restored. There had been much crime and disorder in the country ; it must be repressed. Life must be made secure. Property must be protected. The contemporary conception of the first duty of a king, which Henry no doubt shared, was that he should make justice prevail. The good king was a " lion of justice," as men called his grandfather, and Henry avowed that his ambition was to follow in his grandfather's steps. There was, however, a little more direct advantage for the king's government in the policy which he followed than the satisfaction of duty performed, and this further advantage was undoubtedly a motive of action. The machinery of administration and of justice was identical in that day. To improve the machinery of justice was to improve the collection of the revenues and increase the royal income. To improve the courts in itself was to increase the revenue because it increased the number of fees and amercements falling to the crown, by no means a small source of income. Some one who was influential in carrying through those changes, either the king or some of 98 JUDICIAL ORGANIZATION 99 his ministers, had other motives also in what was done. The age is one in which the processes of justice, the organi- zation of the courts and the procedure necessary to secure justice in them, was greatly improved. There is no reason why we should not suppose that these improvements were foreseen and desired, and that the government believed it worth doing to make justice easier to secure and the ways of getting it simpler and more certain. It was a time of great lawyers and administrators who had a large share in actual government. It was upon this side, judicial organization, law and pro- cedure, that the institutional results of this age were to have the longest life in a form but little changed from that then given them. The constitutional results of the period have been equally permanent, and of even more vital impor- tance in the history of the race, but they show themselves today in forms that never would be recognized by the min- isters of Henry II, though Richard de Luci and Ranulf Glanvill, Henry's great judges, would quickly feel them- selves at home in a court of law in any part of the Anglo- Saxon world. There would be much that would seem strange to them, and much that they would not understand at first, especially in substantive law, but in machinery and proced- ure they wo.uld recognize at a glance their own work and quickly they would see how all had come out of the begin- ning they made, for the common law and equity of all Anglo-Saxon states, as well as their judicial organization, was founded by them. This side of our institutional life, as the immediate result of the time, must occupy us chiefly in this chapter, but we must also keep the constitutional result constantly in mind. The constitutional result in a single word was central-- ization. The new organization given to the judicial system and the new processes of securing justice were an organiza- tion of centralization. Through these new methods the Norman central government reached down into every locality 100 CENTRALIZATION AND LAW and put its hand on every man. The Norman central gov- ernment had always been an absolutism, but it had been a practical absolutism, not one vested in constitutional forms. - What was happening now was that this Norman absolutism was making itself constitutional, was finding its expres- sion in law and institutions. If it should succeed, if it could transform itself from a thing of habit merely, into the spirit and necessary interpretation of all the organiza- tion and machinery by which the state did its business, it would obtain a security and permanence of threatening im- port for the future. So far as the result of his own reign is concerned, Henry II did all in this direction that could be done, more indeed than might have been expected. The machinery which was devised created a surprisingly efficient centralization for the twelfth century. It was left to the future to determine its permanence. The first great age of change in the constitutional his- tory of England, after the Norman Conquest, shares one of its prominent characteristics with all ages of similar change in history. It is less marked by the invention of new insti- tutions than by the enlarged use of old ones or their use in new applications. The effective instruments of the changes made are the institutions which the Normans brought with them into England, king's justices, circuit courts, writs and juries. We can find traces of most of these specific changes in earlier times, either in those of Henry's father in Normandy or of his grandfather in Eng- land. But their combination into a coordinate, organic system, their permanent incorporation into the habitual machinery of the central government, and the opening, un- der fixed regulations, of this royal machinery to the use of any one who wished to use it, were the work of Henry II. It is only in a few cases that we can tell exactly what inno- vations were made, or the order in which the steps were taken, or their date. The best that we can do is to treat the subject logically, beginning with the things that are THE KING'S LOCAL COURT 101 fundamental and seeing how others are involved in them, noticing however where we can any modifications that need to be made because of specific facts which we know. In the whole series of reforms, the thing which was fun- damental both logically and practically was the king's local court. The great motive on the king's part, underlying all the changes and bringing them all together into a sys- tematic whole, was to get a session of the curia regis in the locality in which had originated the cases to be con- sidered, and the king's court furnishes the conditions which govern all the rest. There is no evidence to show that any of the other instruments used, justices, writs or juries, were ever employed, for the use of the king or the central government or by royal permission, in anything except a curia regis. If the writ directed that»a local trial be held, it was always before king's justices and in a king's court. If a private person got permission to use a jury, it was always before king's justices and in a king's court. There was no weakening in this period of the idea that all this machinery was the king's personal machinery to be used by other persons only by purchase and - permission. It must not be understood that the king's local courts imply any interference with the older systems of local courts, county and hundred. By the end of another century the new courts were to supplant the old county courts for all except very small cases, but at first, though creating to some extent a competing jurisdiction, they interfered little with the popular courts. These were still going on in the sec- ond half of the twelfth century as they had in the eleventh, with the same composition, procedure and functions, and, in the case of the hundred court, further absorption of public courts into the possession of private lords was also going on. One of the reforms of Henry I of which we have doc- umentary evidence concerned the local courts. He restored the older rules as to their times and places of meeting, pro- tected them against irregular use by local officers for their 102 CENTRALIZATION AND LAW personal advantage, and laid down some rules for their pro- cedure when used for his own purposes. 1 It seems likely that the use made of them by the king gave them at first a new lease of life rather than otherwise. The justices on going to the circuits to which they were assigned, were preceded by a writ sent to the sheriff of each county of the circuit directing him to summon a meeting of the justices. 2 This meeting was not an ordinary assembly of the county court such as the sheriff called together at inter- vals to do the usual county business. It was a special meet- ing called for the special purpose of furnishing the necessary local machinery for holding a session of the curia regis in the county. As such we may imagine that it restored the county court to its ideal composition before exemptions and fran- chises granted by the king to favored individuals and corpor- ations, like monasteries and boroughs, had relieved, we may almost say, whole classes from attendance. All immunities and privileges were suspended. The magnates, lay and clerical, and all freeholders were summoned to attend in per- son, and from each vill the reeve and four legal men, and from each borough twelve legal burgesses. The great men acquired at once the right to be represented by attorney, but some one was there to answer for them, and the whole county was present to do business presented to them by the justices. Proceedings in the court were opened by reading the king's writ which not merely directed the holding of the court but gave the justices their authority to act and to make use of the machinery belonging to the king. Appar- ently some one of the justices then addressed the assembly explaining the purposes of the " iter " and pointing out the advantages of the system. The juries were then formed. First four knights were chosen for the whole county and put on oath. They then chose two knights from each iStubbs, S. C, 122. 2 Writ of 1231, Stubbs, S. C, 354-355; A. and S., 54. THE LIST OF INQUIRIES, 1194 103 hundred who were also sworn, and these two selected ten others, or if there were not so many knights, then free and legal men, who with themselves made up the jury from the hundred. To these juries were submitted the list of in- quiries upon which the justices had been instructed in their commission to take sworn local testimony. We have the list submitted to the juries in the iter of 1194, and it is undoubtedly typical of the business attended to by the justices. 3 First the juries are to report all pleas of the crown which should be tried, whether new or old, that is, left unfinished by earlier courts. Then they are to report all private pleas for which permission to use the court has been obtained by writ or which had been sent down to be tried in the county by the central court, the later nisi prills cases, that is, cases transferred from the com- mon- law courts at Westminster to the assize circuit courts. Then follows a long list of administrative business in which the king had a direct interest but which fell ordinarily under the sheriff's care, showing clearly how the itinerant justices exercised a strict control over the sheriff's conduct, and how the count served as an effective instrument of administration and centralization. Escheats we4; Prothero, Documents, 114-150. 262 THE TUDOR STRONG MONARCHY had an active existence, and which often corresponded with the township in area, the parish, stepped into its place and inherited its functions in local government. The priest, as the local leader and guide, who would naturally be looked to to assist in the difficulties of a transitional time, had very likely a good deal to do with securing this succession. At an}* rate the parish meeting, the -assembly of the parishioners, became the local governing body, and one very much like the old township assembly, looking after both the ecclesiastical and the secular interests of the community. When towards the end of Elizabeth's reign the state awoke to the duties towards the poor which had fallen to it from the medieval church, it made the parish the unit in the administration of the poor laws which were passed, and -thus gave it legal recognition and a permanent position in the state. From that time to the present, the parish with the parish meeting, or vestry, has had as large a part in the conduct of local government as the American town meeting, though under a supervision in some particulars by the justice of the peace which has nothing corresponding to it in America. 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. We seem to ourselves to detect the be- ginning once more of something like an organized opposition and a group of men acting together, almost like a modern party, ready with a legislative programme not foreordained by the council. There was, however, no real interference with Elizabeth's action which can be said to have amounted to a matter of principle. It was only that all things were THE PLACE OF PARLIAMENT 263 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 forming. 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. To the final settlement of the problems of that new age the great contribution of the sixteenth century, based upon the earlier history, was the parliament and its position in the state. As a contemporary estimate of the place of parlia- ment, a passage from Sir Thomas Smith's Commonwealth of England, published in 1589, to which special attention has been called by Professor Maitland, may be quoted: "The most high and absolute power of the realm of England con- sisteth in the parliament. . . . That which is done by this consent is called firm, stable and sanctum, and is taken for law. The parliament abrogateth old laws, maketh new, giveth order for things past and for things hereafter to be followed, changeth rights and possessions of private men, legitimateth bastards, establisheth forms of religion, altereth weights and measures, giveth forms of succession to the crown, defineth of doubtful rights, whereof is no law already made, appointeth subsidies, tailes, taxes, and impositions, giveth most free pardons and absolutions, restoreth in blood and name as the highest court, condemneth or absolveth them whom the prince will put to that trial. And to be short, all that ever the people of Rome might do either in ccnturiatis comitiis or tributis, the same may be done by the parliament of England which representeth and hath the power of the whole realm, both the head and body. For every English- man is intended to be there present, either in person or by procuration and attorneys, of what preeminence, state, dig- nity or quality soever he be, from the prince, be he king or queen, to the lowest person of England. And the consent of the parliament is taken to be every man's consent." 264. THE TUDOR STRONG MONARCHY Bibliographical Note. — J. F. Baldwin, The King's Council, 1913. C. A. Beard, The Justice of the Peace in England, 1904. W. Busch, England under the Tudors, Vol. 1, King Henry VII, 1895. E. P. Cheyney, England from the Armada to the Death of Elizabeth, Vol. 1, 1914. J. N. Figgis. The Theory of the Di- vine Right of Kings, 1914. R. B. Merriman. The Life and Let- ters of Thomas Cromwell, 1902. Lord Eustace Percy, The Privy Council under the Tudors, 1907. A. F. Pollard, The Reign of Henry VII from Contemporary Sources, Vol. II.. 1914. Sir Thomas Smith, De Republica Anglorum, Ed. L. Alston, 1906. R. G. Usher, Rise and Fall of the High Commission, 1913. CHAPTER XI 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 antici- pation to its wealthier resources and to the headship of a liberal and aristocratic church in place of the hard and narrow republicanism of the Scotch presbvterians. He knew the history of the Tudor monarchy and Elizabeth's methods of rule and her overbearing ways of dealing with individual 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 parlia- ment, by which his own elder line had been postponed in the inheritance to the younger line of the descendants of Henry VII. But he knew too, when he came to the throne with the sanction of the nation in the teeth of this arrange- ment, 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 deter- mination 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 deter- 265 266 PARLIAMENT VERSUS THE KING mination which had been slowly growing in parliament 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 deter- mination 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 seventeenth century went on, to an understanding of what its opposition meant as an interpretation of the con- stitution 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. 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 estab- lishment 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 gov- ernment had been carried on according 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 ab- solutism, though an absolutism winch for its own convenience made use of some of the machinery of a constitutional mon- archy 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 accession of James I opened a new epoch in the history of England. THE QUESTION OF FINAL AUTHORITY 267 The great practical question to be solved was : Would it be possible to make these two conceptions of government work peaceably together? Would it be possible in practice to mark off a boundary line between the king's prerogative action and those things in which he must allow parliament to be supreme? Was any compromise 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? Some- where in every state there must reside a power of making decisions from which there can be no appeal ; a final author- ity 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 Eng- land this was the question really at issue and really decided. Growing slowly 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 ques- tion, 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 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 procedure, but of mean- ing and interpretation fixed beyond future question. If we say that by 1399 the English constitution had been 268 PARLIAMENT VERSUS THE KING 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 impor- tance 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 ministers. And perhaps most broadly fundamental of all, much had still to be done in ascertaining what these principles logically implied as to the nature of government, the source of its powers, and the seat of sovereignty 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 pre- cedent hardly equalled in any other age. But it must be admitted that precedents in favor of the claims of parlia- ment were many times interpreted and urged in the light of what they logically implied rather than of what they origin- ally 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. Imposi- tions indeed had been added in this way to the legal duties STRETCHING OF PRECEDENT 269 by earlier kings but always for special administrative pur- poses, 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 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 during that time, in a way 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 seven- teenth 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 his- torically its rightful possession. But however clearly his- tory 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 in 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 fundamental principles which the past had established, and this was truly creative work. The struggle between parliament and the Stuart kings was the process through which the nation was learn- ing 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 270 PARLIAMENT VERSUS THE KING to a meaning which the makers of the precedent would not have recognized as their own, leads us to suspect that dur- ing 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 beginning the past has made, if they are the genuine results of national life, genuine outgrowths of the past, they have a rightfulness of their own which his- tory cannot question. This is what we must say of the main things which parliament was striving to obtain in the seven- teenth century. They were new claims in form, but they were logical applications of 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. To the immediate development of the conflict between king and parliament, two features of the situation at the accession of James decisively contributed. One was the strength and spirit of the puritan party, and the other was the condition of national finances. The puritan party had arisen in the reign of Elizabeth. It embodied the demand for a thorough- going reformation of the national church in the direction of protestantism, and especially of Calvinism, whose doctrines, including their logical inclination towards republicanism, it had adopted. 1 It had not } r et begun to prove itself a great political power in the nation, but it had strongly reinforced and even led the growing opposition to the queen's arbitrary government in her last }^ears. Already the separation into i Prothero, Documents, 196-226. RELIGIOUS AND FINANCIAL PROBLEMS 271 two wings had begun which is so important in the seventeenth century: the presbyterian, believing in a national church with a representative and republican government, and insisting on a strict conformity to its theological standards ; and a left wing, in theology more tolerant and liberal, but in govern- ment more extreme in the application of their principles both to ecclesiastical and political organization, going to the ex- tent of an actual democracy. This wing was known at first as the Brownists or separatists, later as independents, and in modern ecclesiastical history as congregationalists. In the reign of James the presbyterian wing was in control of the party, both in numbers and leadership, and the separa- tists chiefly distinguished themselves by the beginning of the New England colonies in 162-0. In the reign of James also the prcsbyterians had not come out of the national church. They were " comprehended," or most of them were, within it, and it was through the puritan spirit and ideals within the church, rather than by open rebellion against it, that their influence was exerted. The chief thing to notice at the beginning is that it was a fighting faith. It held that it was the duty of man not merely to believe the truth but to defend it and make it prevail. The preparation for conflict was fur- ther completed by the rise of a high church party in the national church, at the opposite wing from the puritans, and by the dislike of presbyterianism which James had conceived during his youth in Scotland. So closely intertwined are ecclesiastical and political opposition, ecclesiastical and political principles during the seventeenth century, that it is often impossible to separate them. The financial problem which confronted the government at the beginning of James's reign would have been a serious one under any circumstances ; it was made doubly so by the extravagance of the king and his ignorance of the value of money. A price revolution, due to the decline in the value of the precious metals, had been going on in the sixteenth century which made it impossible to do the business of the 272 PARLIAMENT VERSUS THE KING .state with the old revenues. The star chamber dinners, which cost the treasury £2 in 1500, cost £20 or more in 1600, partly owing perhaps to an increase of luxury, but mainly to the increase of prices. Elizabeth's court had been on the whole economically conducted, and the plunderings of Spain had furnished some income, so that in her reign taxation had not been increased in anything like the necessary proportion to meet the increased costs of government. The nation had not been trained to understand the situation, and now, with an extravagant king who thought his new resources practically unlimited, the burden fell suddenly upon them. As almost alwa}-s in such cases, neither government nor people understood the real causes of their difficulties, and until nearly the middle of the century the necessary demands of the government and the natural reluctance of an unin- formed parliament were frequent occasions of conflict. James had received the " millenary petition " 2 of the puritan ministers in the national church for further changes, and in the Hampton Court conference strongh* expressed his condemnation of their tendencies, before he met his first parliament in March, 1604. It was in this parliament that the fundamental issue was first drawn, and the fundamental principles first expressed, though still undeveloped, which were to characterize the conflict through almost the entire century. In summoning this parliament the king 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 deprive 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 be- tween 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 ? Prothrro. Documents, 413-417. DUTY PLACED BY KING 273 formal document called " a Form of Apology " in defence of its position, probably not presented to the king, declared that " our privileges and liberties are our right and due inheritance, no less than our very lands and goods," that is, possessed by the same title as private property and as little subject to withdrawal by the king. 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. 3 Two years later financial difficulties first led to action typical of what was to follow. Undoubtedly the king was in real need of money for the necessary expenses of the state but, instead of applying to parliament, he placed, by an act of prerogative, an extra duty of five shillings per hundred weight on imported currants. This is the case of " imposi- tions " already referred to. A merchant, John Bate, or Bates, by refusing to pay the extra duty, brought the ques- tion before the court of exchequer, and the judges gave a unanimous decision in favor of the king's right to do as he had done. 4 Undoubtedly the right of earlier sovereigns had been recognized to raise and lower tariff duties by proclama- tion. But the right had been used to regulate trade, to secure protection or retaliation and fair trade. In using it not for such purposes but to raise revenue, James was assuming an important constitutional power which the pre- cedents did not warrant. It was perhaps natural, however, that a court of law, bound normally by the letter of prece- dents rather than by the remote consequences which might be involved, should decide as it did. The judges, however, went beyond what was required of them by the case before them, and laid down certain genera] principles with regard to the prerogative which illustrate the fact that the theoretical basis of absolute government was 3 Prothero, Documents, 280-281, 286-293. *Prothcro, Documents, 340-355; A. and S., 329-331. 274 PARLIAMENT VERSUS THE KING more clearly developed at the time than of constitutional. The chief baron said : " The king's power is double, ordinary and absolute, and they have several [i.e., different] laws and ends. The absolute power of the king is not that which is converted or executed to private use, to the benefit of any particular person, but is only that which is applied to the general benefit of the people, ... as the people is the body and the king the head . . . and as the constitution of this body varieth with the time, so varieth this absolute law ac- cording to the wisdom of the king for the common good. . . . And whereas it is said, that if the king may impose, he may impose any quantity that he pleases, true it is that this is to be referred to the wisdom of the king, who guideth all under God by his wisdom, and this is not to be disputed by a sub- ject." The case, though only involving a small matter and merely making a beginning, is thoroughly characteristic of the con- flicts of the century. The king stretches a precedent, which according to the letter covers his action, to make it cover a substantial increase of royal power, and the courts hold that the precedent justifies the new application. On the basis of the judicial decision in his favor, James shortly afterwards is- sued a new " book of -rates," in which heavy additional duties, impositions, were placed on a great number of imported articles to be permanently collected, and parliament acquiesced, though not without discussion and remonstrance in which there was some advance in the understanding of the principles involved. Parliament in this session, the fourth of James's first parliament, also complained of abuses in the operation of the court of high commission and of the misuse of proclamations. The question of the king's power in the matter of proclamation being referred by the council to four judges, including the two chief justices, they gave it as their opinion that the king could not by proclamation create any new offence nor make an offence punishable by the court of MEANS OF RAISING REVENUE 275 star chamber if it was not so by law. 5 This expressed opinion acted as something of a check on the tendency to extend the royal power by this means, but did not end it. James dissolved his first parliament in February, 1611, and did not call his second until April, 1614. He was re- luctant to meet parliament again, but some of his friends had urged him strongly to do so because of his financial difficulties, and had assured him that ways could be found to manage the house of commons in the king's interest. The attempt to do so, however, had a contrary effect, and the spirit of the house was declared in a vote against impositions, that the king had no right to impose taxes without parlia- ment's consent. So angry was the king at the refusal of parliament to make him a grant before discussing grievances, that he dissolved it early in June before it had voted a tax or passed an act, and, following the example of Elizabeth, sent four members of the house of commons to the Tower in punishment of their conduct. The third parliament did not meet until January, 1621, and during this period of ten years, from 1611 to 1621, with no parliament except that of 1614 which did nothing, the king thought himself justified in resorting to extra-legal means of raising revenue. Privy seals, that is, forced loans, were again made use of, old debts and fines rigorously col- lected, titles sold and a new title, that of baronet, created to sell ; and after the failure of the parliament of 1614, a general benevolence was imposed, which met, however, with great opposition. Oliver St. John was heavily fined and impris- oned for written criticism of the measure. In 1615 an important constitutional question was first brought into prominence by the action of the king, whose later settlement forms one of the positive advances of the century — the question of the independence of the judiciary. The case was that of Peacham, a puritan minister accused s A. and S., 334-337. 276 PARLIAMENT VERSUS THE KING of treason on doubtful evidence because of language against the king in a sermon that he had not preached nor published. The king directed that the judges of the king's bench should be separately consulted, undoubtedly in the hope of influ- encing them to take his view of the evidence. This the other judges did, but Chief Justice Coke at first objected against consultation of the judges separately, and later gave a writ- ten opinion that the evidence was .insufficient. At this time Coke did not object to the consultation on constitutional grounds, but he did so later, and the case at least served to call attention to the abuses possible in the practice. In the next year these were strikingly illustrated in another case, known as that of " commendams." The king attempted to interrupt the trial of the case which was going on before all the judges of the common law courts in the exchequer chamber, in order to hold a consultation with the judges about it. On their unanimously refusing to delay as con- trary to the law, they were summoned before the king and the council and severely rebuked by James in person. All humbly submitted except Coke, who still declared the delay contrary to law. They were then required to say whether they would not delay a case before them to consult with the king if he judged his interests directly involved in it. All agreed except Coke, who would say only that he would do what was proper for a judge to do. He was shortly after dismissed from his office of chief justice. In this case, as in the case of impositions, the historical precedents were with the king. Many kings had consulted the judges. The house of lords had done so many times, and the law officers, Coke himself, as representing the crown. The practice continued after the century in infrequent in- stances into modern times, and the constitutions of a number of American states authorize such consultation. But certain distinctions are important, and especially so in the history of the seventeenth century, in which the question frequently arose. In the first place, as underlying all phases of the CONSULTING THE JUDGES 277 question, it must be borne in mind that the judges can never be ordinary law advisers. They are advisers who make the law ; that is, they not merely say what the law means, but they say what it means with the power to make their inter- pretation the actually controlling law. This should make clear the nature of the Stuart abuse, for there is a vast differ- ence under such conditions between consultation of the judges to settle a real doubt, or honestly to find out what are the legal limitations of official action in order to be guided by their advice, and consultation in order to impose the opinion of the executive upon the judges in a future case which must come before them for decision. If, when he does so, the executive has the power to punish the independent judge by dismissing him from office, we have the whole extent of the danger. When at the close of this period the judges were made irremovable except for cause the danger was ended, and it perhaps does not exist in a state where all officers, including the judges, are elected for fixed terms. It must not be forgotten, however, that a democracy may sometimes be tempted to impose its opinion upon the judges. It should not be overlooked, that the devotion of the com- mon law courts and of the lawyers practising in them to fixed forms and to the binding force of the precedent comes here, and later in the conflict, to the assistance of constitutional liberty. The rule of fixed forms had begun, as we have seen, in the thirteenth century. It had not always operated in the interests of justice, and the system of equity jurisprudence had arisen to correct the defects it occasioned. But the rule of the precedent trained the common lawyers to distinguish sharply between the legal and the illegal and to believe that the illegal should not be allowed, a belief easily transferred to the field of constitutional law. The struggle of the first two Stuarts with the opposition was indeed a struggle of precedents, which were freely quoted on both sides, but the characteristic difference running through both argumenta- tive discussions and judicial opinion was that, upon the 278 PARLIAMENT VERSUS THE KING king's side, the precedents were cited in the most narrow and literal sense to justify an application of powers not origin- ally contemplated, while on the side of the opposition far less emphasis was placed upon the literal sense of the prece- dents than upon the principles to which a logical extension of them would lead. Both sides made something new out of the precedents, but while there can be no doubt but that the king's use more nearly corresponded to the formal mean- ing of the original, the use by the opposition stated more accurately the true logical application. Of course there was in past English history a considerable body of prece- dents wholly on the king's side, and a smaller body wholly on the side of the opposition, and to these this paragraph does not apply. It has reference to precedents bearing on specific applications of royal power, as in impositions or the treatment of the judges. The refusal of the judges in the case of commcndams led the king to declare, in the rebuke which he administered to the judges, that his prerogative was twofold, one " ordi- nary," which might be and was made the subject of frequent dispute in the law courts, the other higher, his supreme power and sovereignty, which could not be so disputed or discussed. By this declaration the king intended to make known the royal interpretation of the fact that the king was at once under the law and above the law. Already several times the king's understanding of his prerogative and its relation to the law had been clearly announced by himself or his sup- porters: in his own True Law of Free Monarchies, 1603; in the judicial opinion already cited in Bate's cast-, 1606; in Cowell's Interpreter, 1607, a law dictionary in which the absolutist doctrine was stated with such extreme plainness that the king himself was not able to support the book against parliamentary objection and the book .was withdrawn for modification ; and finally in a speech of the king's to parliament, 1610.° o Protliero, Documents, 293-295. EFFECT OF OUTBREAK OF WAR 279 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 philosophical speculation, but not with any reference to working forms. It had been sometimes stated in legal treatises but only in the most abstract wa}' as a principle on which might be based a very different actual form of government from any democracy, the imperial gov- ernment 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 potest at em con- cedit. But it was not a sovereign people of that kind to- wards which the seventeenth century was working. Parlia- ment could only work by degrees, through gradual experience, towards equal clearness in the understanding and statement of the doctrines on which its position rested. In the last 3 r ears of James I an open conflict between king and parliament was rapidly drawing nearer, and the opposi- tion showed that it was beginning to perceive more clearly the fundamental principles involved. The outbreak of the Thirty Years' war between the catholic and protestant states of Germany, and especially the misfortunes of the protestant leader, Frederick, Elector of the Palatinate, the son-in-law of James, had made the nation anxious to go to the aid of their co-religionists and bitterly opposed to the king's policy of securing the peace of Europe through an alliance with Spain. The invasion of the Palatinate by Spanish troops in the summer of 1620, while he was still negotiating, awak- ened James's anger, and he summoned a parliament to meet at the end of January to provide for a war if it should prove necessary. When parliament met, the king pressed for 280 PARLIAMENT VERSUS THE KING money for an army and asked for £500,000. Parliament departed from its usual practice of granting money only towards the end of a session by voting at once two subsidies, or about £160,000, and then turned to take up certain abuses of which there was increasing complaint. This it did at first with no sense of opposition to the king and not directing its action against him. They supposed rather that they had the approval of the king. The abuse of monopolies, which had been attacked even in Elizabeth's time, was first taken up. 7 The monopoly of those days was a grant by royal patent of the exclusive right to deal in some commodity, often one of general use, the holder of the grant making his profit by an increase of the price to the consumer and paving a proportion of his gains into the royal treasury. James had increased the use of monopolies to some extent in his attempts to raise money without parliamentary grant. By this time so undeniable were the abuses complained of that the king made no attempt to prevent parliament from dealing with them. No statute was passed against monopolies by the parliament of 1621, but the investigation of them led to a much more important constitutional result, the revival of impeachments, and their revival in such a way, so clearly for the punishment of acknowledged corruption, that the king, even if he had wished to do so, could find no ground on which to object. Thus, without appearing openly to attack the king, the most effec- tive weapon which the middle ages had invented for combat- ting an arbitrary government was restored to the hands of parliament. Impeachments had not been in use since the middle of the fifteenth century because for one reason or another, during the whole of nearly two centuries, parliament had not at- tempted seriously to oppose the sovereign. In such condi- tions, whenever the punishment of an official had been desired, a bill of attainder was a shorter and more convenient method, TProthero, Documents, 111-117, 275-277; A. and S., 325-326, 337-339. REVIVAL OF IMPEACHMENT 281 and impeachment had fallen into abeyance. By the consti- tution of the United States attainder is forbidden, and impeachment by direct inference is confined to office holders and expressly made a political trial with punishments limited to political penalties. None of these things, however, wad true of the original impeachment. The original of the house of lords, the old great council, could try any person for any offence, if the king thought fit to bring the case there for trial. The house of lords of 1621 had for all ordinary matters forgotten its connection with the old great council, and the relation of its powers with those of the earlier assem- bly from which they were derived. Many things in the seven- teenth century, however, which have disappeared today, illus- trate that connection. The house of lords was still a crim- inal court, not merely for its own members but for any one, if the case was brought to them. The fact is important in connection with the revival of impeachments. The first of the new impeachments was not in regular form. The conduct of Mompesson, the holder of a monopoly, was investigated by the commons and the evidence of his abuses was laid before the lords, but there was no formal prosecution by the lower house. The lords examined the evidence, found Mompesson guilty, and sentenced him to heavy punishment. His colleague, Michell, was dealt with in the same way, as were also Sir John Bennet, a judge, and Dr. Field, a bishop, both for corruption. In the impeachment of Francis Bacon, the lord chancellor, in the same session, a great forward step was taken, not in the revival of forms, but in the punish- ment of a high officer of the court who had been a faithful instrument of the king's. Yet in this case also there was no direct attack upon the king, and the king had no defensible grounds from which he could move to the protection of Bacon. The charge against him was the acceptance of bribes in cases before his court, and the evidence was so indisputable that he could only plead guilty. 8 Whether the case was a polit- s Prothero, Documents, 334-336. 282 PARLIAMENT VERSUS THE KING ical impeachment or not, and clearly there was in it no asser- tion that the minister was responsible for the acts of the king, it had fulh 7 established the right of parliament to bring charges of misconduct against a minister of the crown and to punish him severely. This right was confirmed in 162-i by the impeachment of the earl of Middlesex, the lord treas- urer, on similar charges. In the same session another important constitutional point was settled, at least negatively and quite in accord with the principles involved in the historical origin of parliament, which would give the house of commons no share in the judgment-making power of the house of lords derived from the old great council. In finding guilty and sentencing to punishment one Floyd, a Roman catholic lawyer, not for an offence against itself but for disrespectful words spoken against the Elector Palatine, the house of commons went beyond its rights, and could not furnish precedents in sup- port of its action when requested to do so by the king, nor justify itself when the lords explained that their privileges were being infringed. 9 Without a formal confession of guilt it surrendered the case to the lords, before whom it was prosecuted by the attorney general. Earlier also its com- mittee in its revival of impeachments had reported that the case must go to the lords for trial and judgment. These conclusions, undoubtedly historically correct, are important at the date when they were made, because later in the century great emphasis was to be placed upon the assertion that par- liament, the high court of parliament, was the highest court of the land, an assertion made often in language easily mis- understood. It must be held in mind that the house of com- mons never undertook to defend a claim to a share in the highest function of a court of law, the making of the final judgment which concludes a case, nor formed in practice any other part of an actual court than that occupied by the practising attorney. When brought squarely to face the » Prothero, Documents, 337-339. PETITION BY THE COMMONS 283 question, it recognized the fact that its power of judgment and punishment extended only to cases affecting its own rights and privileges. As parliament paid no attention to James's requests for more money, but insisted upon busying itself with the in- vestigation of abuses, the king adjourned it in May to meet again in November. In the interval, James's plans for ob- taining peace in Europe and protecting the Palatinate through an alliance with Spain made no progress, and he met parliament with a request for £900,000 for the English army, which was serving in Germany though in form war did not exist. With considerable show of reluctance the house of commons voted one subsidy, less than £80,000. The king certainly had some ground of complaint, but parliament was not disposed to deprive itself of its most certain means of forcing the redress of grievances. Matters were brought to a direct issue by a petition drawn up by the house of commons, calling attention to the alarming spread of popery and ex- pressing the hope of a protestant marriage for the prince of Wales instead of a marriage with a Spanish princess which the king hoped to make in order to cement the alliance he desired. It must be said that in this petition the house of commons was going a little beyond what had so far been recognized as its sphere of action. Indeed, down almost to the present time, the field of foreign affairs has been considered to be- long exclusively to the executive. James came instantly to the defence of his prerogative. Without waiting for the petition to be presented, he sent a letter to the speaker com- manding him to make known to the house " that none therein shall presume henceforth to meddle with anything concerning our government or deep matters of state," including the Spanish marriage, and declaring his right and determination to punish misdemeanors and insolent behavior in parliament. The house of commons replied by a second petition, in which they prayed the king to recognize " the ancient liberty of 284 PARLIAMENT VERSUS THE KING parliament for freedom of speech, jurisdiction and just cen- sure," which they asserted was their " ancient and undoubted right and an inheritance received from our ancestors.'* This the king refused, and on his side said that their " privi- leges were derived from the grace and permission of our an- cestors and us, for most of them grow from precedents, which show rather a toleration than inheritance." Historically the king was right in regard to " most of them," but the commons had now come to understand too clearly what was involved in this issue to allow the king's claim to pass unchallenged. They answered in the " Pro- testation," adopted December 18, 1621. 10 This was no petition, but an unqualified declaration : " That the liber- ties, franchises, privileges and jurisdictions of parliament are the ancient and undoubted birthright and inheritance of the subjects of England," that affairs concerning king, state and church are proper subjects for their discussion and that in their discussions they have entire liberty of speech. The next da}' parliament was prorogued by the king, and a few days after he sent for the journal of the house of commons and in the presence of the council tore out the leaf upon which the protestation had been entered. Three members of the house were sent to the Tower, and John Pym was or- dered to confine himself to his house, and on January 6 par- liament was dissolved. The protestation is worthy of special notice not so much for its language, for that is not greatly in advance of that in the " form of apology " of 1604, but because it takes issue sharply with the king without disguise or pretence of form, and because it shows a somewhat clearer perception than had been before indicated of what their disputes with the king might involve. It may be taken thus to mark the end of the first stage in the conflict of the century between the king and parliament, the introductory stage, covering the reign io Prothero, Documents, 313-314. JAMES'S LAST PARLIAMENT 285 of James, though nothing happens to mark the opening of a new stage till a little time after the accession of Charles I. James's fourth and last parliament met in February, 1624. King and parliament were not in complete accord during its one short session, but they were more nearly so than had been usually the case. James's plan for the Spanish mar- riage had failed, and he was more in the mood for war, or for an earnest threat of war than he had been before. He asked for six subsidies and twelve fifteenths, and parliament voted three subsidies and three fifteenths. The subsidy was a di- rect land and property tax put into the fixed form of four shillings upon the pound for lands and two shillings and eight pence on the pound for goods, reckoned upon an as- sessment also fixed which had been made in the reign of Mary. A single subsidy brought in something more than £70,000. Five subsidies voted at once would be in form confiscation of the whole assessed value of land, but it made in reality not a heavy tax, the assessment being extremely low and the payment distributed over more than a single year. The fifteenth was an income tax — a tenth in the royal do- mains, which included most of the towns — but the sum to be paid by each local unit had been fixed before the middle of the fourteenth century and not since increased. A single fifteenth amounted to about £30,000. This parliament also impeached the earl of Middlesex, and passed a statute de- claring monopolies, except patents for new inventions, to be " altogether contrary to the laws of this realm," " to the ancient and fundamental laws " of the realm the preamble says, and therefore void. James dissolved this parliament at the end of May, and died on the 27th of the next March. Bibliographical Note. — J. N. Figgis, The Divine Right of Kings, 1914. S. R. Gardiner, The History of England, 1608- 16^0, 10 vols., 1883-4. C. H. Mcllwain, The Political Writings of James I, 1918. L. O. Pike, The Constitutional History 286 PARLIAMENT VERSUS THE KING of the House of Lords, 1894. W. H. Price, English Patents of Monopoly, 1906. G. W. Prothero, Introduction to Select Statutes and Constitutional Documents, 1913. R. G. Usher, The Rise and Fall of the High Commission, 1913. CHAPTER XII KING WITHOUT PARLIAMENT The reign of Charles I, at least to 1640, is a natural con- tinuation of his father's. But Charles was more obstinate and more" shortsighted than James, and parliament had now a clearer idea of what was at stake. For these reasons dif- ferences between them drifted -more rapidly to extremes than in the earlier period. Charles had been brought up to be- lieve implicitly the doctrine of the king's absolute power by divine right and, as this doctrine was strongly held in the church and at the court and had the sanction of judicial decisions, he was likely to be convinced of its errors only by the logic of events. The personality of Charles was an even more decided influence in shaping the history of his reign than his father's had been ; it came again, as in the time of Henry III, greatly to the advantage of constitutional growth that a king not intellectually strong had an exalted idea of his position. While Charles was obstinate, he was also va- cillating. He could not be convinced by argument, but his conduct could be influenced by currents of feeling to which he was exposed, and changed by the force of circumstances to contradict his professions. He wholly lacked the quali- ties so preeminent in the Tudors, tact and a keen instinct for the drift of public feeling. At his accession Charles was eager for a war with Spain. In less than three months he called his first parliament in hope of a large grant of money for the purpose, but the house of commons would grant only two subsidies. The house was less interested in the king's plans than in two other matters : to protect protestantism against what it believed to be new catholic dangers, and the determination which it 287 288 KING WITHOUT PARLIAMENT expressed in a formal resolution " to discover and reform the abuses and grievances of the realm and State." Impa- tiently Charles dissolved the parliament on August 12, noth- ing further having been done; no grant had been made even of tunnage and poundage. But the king could not get on without parliament, and his second met on February 6 next. It at once assumed an even higher tone than the first, and proceeded to prepare an impeachment of the Duke of Buck- ingham, the king's favorite minister, whom it believed re- sponsible for the worst abuses. But this Charles would not permit. He summoned the commons to his presence and informed them that their first business was the granting of supplies, and that he would not permit his servants in high place near himself to be called in question for they had done nothing except at his command. The house was unmoved. It made no change in its plans but asserted vigorously its right to take action against anyone guilty of abuses in a position of trust. It promised the king a liberal supply but resolved to postpone making the grant actual until grievances were redressed. On May 8 the impeachment of Buckingham was brought up to the house of lords by the managers for the commons. Two of them, Sir John Eliot and Sir Dudley Digges, were immediately thrown into the Tower for things said in their speeches, and the commons at once resolved that they would do no further business until the release of their members. 1 The king yielded with re- luctance, but when the commons resolved that tunnage and poundage could not legally be collected unless granted and that no supply would be voted until Buckingham was re- moved, he dissolved his second parliament on June 15. It is impossible not to see in the story of these fifteen months since Charles began to reign that parliament had moved boldly on to a higher plane. It had taken in full self-consciousness a new position of power in the state — a position which had long been preparing but which had not i Gardiner, Documents, 3-44. Cheyncy, Readings, 456-457. NEW CONSCIOUSNESS SHOWN 289 before been occupied. Not even the relatively powerful parliaments of the Lancastrian time, certainly no Tudor parliament, nor quite even any one of James's, showed the same spirit. These parliaments of Charles's feel themselves on a par with the king. They believe themselves able to stand over against him as an equal in determining the future. They are fully prepared to enter into conflict with him on even terms, and they know that they have formidable weapons, the privileges of parliament, impeachment, and the king's financial necessities, which they are prepared to use to the extreme in offence as well as defence. Here, as elsewhere in the century, the change is less in institutions than in a new consciousness of what they mean and how they can be used. This new consciousness of the meaning of old institutions is strikingly to be seen in the speeches before the house of lords of the managers of the impeachment of Buckingham for the house of commons. Sir Dudley Digges used the words already quoted : " The laws of England have taught us that kings cannot command ill or unlawful things. And whatsoever ill events succeed, the executioners of such de- signs must answer for them." That is, the king can do no wrong in the constitutional . sense of that phrase. In the closing speecli for the prosecution, Sir John Eliot was still more definite. " My Lords," he said, " I will say that if his Majesty himself were pleased to have consented, or to have commanded, which I cannot believe, yet this could no way satisfy for the Duke, or make any extenuation of the charge, for it was the duty of his place to have opposed it by his prayers, and to have interceded with his Majesty to make known the dangers, the ill consequences that might follow." The modern doctrine of ministerial responsibility can hardly be more fully stated in the same number of words, though of course all that was implied in it was not yet seen. Here is, however, the principle that it was the minister's duty to re- sist the orders of the king if he knew that they were wrong, and to protest against the attempt of the king to carry out 290 KING WITHOUT PARLIAMENT his will contrary to the law ; and because he did not do that the minister is responsible and must be held accountable. On the king's side there was also a formulation of the op- posing doctrine which was as new in its explicit form, though it was logically involved in the king's theory of his own place in the state: his definite assumption of responsibilit}' for the acts of his ministers. In a message to the house of com- mons in regard to Buckingham, he said : " And for some particulars wherewith he hath been pressed, however he hath made his answer, certain it is that I did command him to do what he hath done therein. I would not have the House to question my servants, much less one that is so near me." The issue thus drawn between the king and parliament was one way of stating, though that was not yet understood, the fundamental constitutional issue which the seventeenth cen- tury was to settle. It involved also, at the beginning of Charles's reign, the tragedy of its close, for his insistence upon his own responsibility made compromise impossible. It was easy for the king to send parliament home because it displeased him, but it was not so easy with no authorized taxation to meet the necessary expenses of the government. It would have been difficult even in time of peace, and in ad- dition to his war with Spain Charles was rapidly drifting into a war with France, which broke out in the next year, 1627. He was forced to adopt the expedients of his father, and new ones also. Tunnage and poundage were continued with- out a grant ; benevolences and forced loans were demanded and privy seals were issued; heavy debts were contracted; exemptions were sold ; the maritime counties were ordered to furnish ships for the fleet, a medieval method of forming and equipping a navy which was not yet out of use, and the attempt was made to extend the obligation even to the inland counties. Altogether these expedients raised insufficient sums, and they excited bitter opposition. The forced loan was planned to be a regular tax, based on the assessment for the last subsidy and intended to be equal to five subsidies, but THE FIVE KNIGHTS 291 little was collected. 2 The judges of the king's bench, called upon to sign a statement that the loan was legal, refused to do so, and, though the chief justice was dismissed, the other judges continued their refusal. Payment could not be en- forced. Gentlemen who refused were thrown into prison, and common men were pressed into the army forming for the continent. Martial law had to be invoked with some severity to control the ill-trained levies, and, to make up for the lack of money, the troops had to be quartered upon the local com- munities. It is very likely true that these measures were not adopted to punish the people for their unwillingness to pay the king's taxes, but they showed clearly what an arbitrary government might be led to do and they excited great alarm. A further constitutional question was raised in the five knights' case, or Darnel's case, growing out of the imprison- ment of gentlemen for refusing to pay their assessments to- wards the forced loan. Five of the knights arrested, of whom Darnel was one, sued out writs of habeas corpus in the court of king's bench. 3 Their jailer made return to the writ that they were held by the special command of the king. The prisoners' counsel refused to accept this return as sufficient but, while admitting the right of the king and the council to make arrests, declared that the return to the writ must spe- cify the exact reason for the arrest. They cited in their support Magna Carta and other statutes. The counsel for the crown argued that reasons of state often made it very inexpedient to state exact reasons, and they cited on their side precedents and judicial rulings. The chief justice rendered the decision of the bench, which was generally un- derstood to refuse to admit the prisoners to bail and to sus- tain the action of the crown. There can be no doubt but that historically the decision of the judges was correct. Prerogative arrest and imprison- ment without stating the specific reasons had always been 2 Gardiner, Documents, 51-57. 3 Gardiner, Documents, 57-64. 292 KING WITHOUT PARLIAMENT recognized as among the rights of the king. Magna Carta had made no change in the practice, and the right never had been before this date seriously called in question, though precedents may be cited on the other side, and there seems to have been at the time some confusion between preroga- tive right and common law. Here was, in the eyes of the historian, a new constitutional claim, an attempt to limit the royal prerogative in a new particular ; but it was a claim entirely in harmony with past progress and logically in- volved in it. The letter of the precedents sustained the king's position, but their spirit did not. It was now no necessity of state from which he was acting, but the necessity of maintaining his illegal and unconstitutional action. If the nation had been right in cutting off one after another the king's extra-legal means of raising revenue, so they were right in taking away an effective weapon for defeating their will in this particular. The history of the king's opponents may have been wrong, but their logic was right. Charles found that with all his expedients he could not sustain the burden of a foreign war, and he was obliged to try the experiment of another parliament, which was sum- moned to meet in March, 1628. In the temper of the nation the elections were not likely to return a house of commons favorable to Charles's wishes, and when it met it determined at once to demand, as it had before, the reform of abuses before granting a tax, in spite of the threatening language of the king. It is a sign of considerable advance, however, that it proceeded now, not against the ministers of the king, but directly against the king's interpretation of the consti- tution which threatened the establishment of absolute gov- ernment. Differences between the crown and the people had now shaped themselves into very specific form. In four definite particulars the fear of the nation had been greatly excited, and with these four the commons were determined to deal specifically — illegal taxation, arbitrary imprison- THE PARLIAMENT OF 1628 293 ment, billeting of soldiers on individuals, and punishment by martial law. Just how they were to be dealt with in such a way as to accomplish the desired end was a matter of some doubt and the subject of long debate. A simple confirmation of the existing law, to which the king was quite willing to agree but which would leave him still free to interpret the law accord- ing to his own ideas, was not satisfactory to the commons. They desired a statement which should make their interpre- tation of the law binding upon the courts. At first they de- termined to proceed by bill which, when accepted by the king, would make their view a statute on a par with all other statutes and necessarily binding. But the king gave it to be clearly understood that he would never consent to such a bill. After further debate it was decided to present to the king, from both houses, a " petition of right." Since the thirteenth century the petition had been a con- stant feature of the country's judicial system. A petition might be addressed by any person or body of persons, gen- erally to the king himself, or to the king and his council. It was the recognized method of initiating proceedings in chancery, and might be used for other purposes. As the writ of right assumed the justice of the plaintiff's claim, the petition of right assumed the justice of the petitioner's case and went on the supposition that all that was necessary was to bring it to the king's attention and justice would at once be done. The answer to such a petition from a private per- son generally was: fiat justitia, or soit droit fait a la partie. The advantage to parliament in this method of procedure was that the petition and the action taken upon it would be a matter of judicial record, like a decided case in any of the courts, and would have the same binding effect upon other courts in the future. In drawing up the petition the commons softened some- what the language they had at first proposed to use, but they 294 KING WITHOUT PARLIAMENT did "humbly pray your most excellent Majesty that no man hereafter be compelled to make or yield an}' gift, loan, benevolence, tax, or such like charge without common con- sent by act of parliament " ; that no one be molested " for refusal thereof " ; that no freeman be imprisoned without due process of law, nor detained by the king's command " with- out being charged with anything to which they might make answer according to law," implying, though not definitely asserting, that this last was secured by existing law ; and that billeting of soldiers and punishment by martial law might cease. 4 To this petition the king answered on June 2, 1628: " the king willeth that right be done according to the laws and customs of the realm ; that the statutes be put in due execution, that his subjects may have no cause to complain of any wrong or oppressions, contrary to their just rights and liberties, to the preservation whereof he holds himself as well obliged as of his prerogative." To the commons this answer seemed ambiguous, as an attempt to permit the king to substitute his own interpretation of the law for theirs, as no doubt it was. With the lords, they applied for a different answer, and finally the king gave as- sent in the words : " Soit droit fait come est desiri" words suggested by parliament and at that time commonly used in assenting to a private bill. The Petition of Right was therefore not a statute, though it was a matter of record. It was rather, if its historical antecedents be regarded and some irregularities of form be disregarded, to be classed technically and in binding force with judicial decisions. As a matter of fact, in time to come it was not regarded with any exactness as making law. Its important provisions had to be reenacted before the close of the century. It is as a constitutional document that its sig- nificance is greatest, and in this respect it is a sign of what was taking place rather than the record of a definite ad- vance. Undoubtedly, however, it belongs in the series of * A. and S., 339-34-2; Gardiner, Documents, 6G-70. THE PETITION OF RIGHT 295 great documents of our constitutional history which begins with Magna Carta. The Petition of Right in spirit, pur- pose, 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. But it cannot be affirmed that the Petition of Right is of equal importance in English con- stitutional history with either Magna Carta or the later Bill of Rights. It uses many words after a fashion of the time and is the least concise and clean-cut of all our constitu- tional documents. Its historical value is to be found chiefly in the precedent which it established in the struggle of that century of the parliamentary coercion of the king in con- stitutional interpretation, and in the assertion which it made in a most striking manner of the supremacy of the law. In one respect the Petition of Right is a sign that an ad- vance had taken place. It is the first attempt made since the beginning of the struggle between king and parliament to draw a definite line between prerogative and law, to fix with some exactness the point where the power which is above the law shall end and where the reign of law shall begin. This it attempts to do, not as a general matter but in specific particulars. That in doing this it reduces the king's pre- rogative powers and sets new limitations to them is quite in harmony with the spirit of past constitutional growth. An incident in the adoption of the petition probably as- sisted still further to clarify ideas upon what was funda- mentally at issue in the conflict. The lords wished to say in an amendment which they proposed, that they presented the petition to the king " with due regard to leave entire that sovereign power wherewith your Majesty is trusted with the protection, safety and happiness of your people." The in- troduction of the idea of sovereign power, of sovereignty, 296 KING WITHOUT PARLIAMENT in this way was something new in the discussion. Probably parliament understood only vaguely that these words would be an acknowledgment that sovereignty resided in the king, or what would be implied in such an admission, but the ap- prehension of the house of commons was at once excited. With many expressions of wonder and doubt about " sov- erign power " the house rejected the amendment, and the lords yielded. In this discussion, however, they were skat- ing near to the edge of the most serious issue between king and parliament. The petition was in truth the first step in the transfer of sovereignty from king to parliament. The acts of which it complained were all prerogative acts, acts above the law, acts of sovereignty. These prerogatives had been exercised by the king down to this time with no serious opposition. What parliament insists upon is that now these acts must be transferred out of the sphere of prerogative into the sphere of law, out of the sphere of that law which the king is above into the sphere of that law which is above the king. One further characteristic of the Petition of Right should not be overlooked, — its entirely practical character. It confines itself strictly to the business in hand. It does not attempt any theoretical justification; it la3 r s down no funda- mental principles and borrows nothing from speculative philosophy. It settles specific questions in a specific way. Its narrow range of application, only to the four practical points which had risen in the experience of the time, makes it perhaps the most typical in this respect in the whole series of Anglo-Saxon constitutional documents, of all of which with hardly an exception this practical, unspeculative na- ture is characteristic. The only significant exception is the preamble of the Declaration of Independence. That gives expression to the political philosophy made popular near the close of the seventeenth century by John Locke, and de- rived through medieval from classical thought. It is, of course, no expression of the real ideas which carried the FIRST STEP TOWARDS REVOLUTION 297 American Revolution through. These are expressed in the body of the Declaration, and that is a perfectly straight- forward, clear-cut, terse, and businesslike document. It takes its proper place in the series which opened with Magna Carta, with nothing to apologize for from the practical point of view. The Petition of Right, while less sharply formu- lated, is as eminently practical. If the third parliament of Charles saw the first step to- wards the transfer of sovereignty from king to parliament, it saw also the first step towards revolution. In gratitude for the acceptance of the petition, the house of commons voted to grant the king five subsidies, but prepared to remonstrate against the illegal collection of tunnage and poundage. 5 To prevent this Charles brought the session to an end. When the new session opened six months later, the same question arose and the king attempted to prevent action by brief adjournments of the house. On the second occasion of the king's interference, the commons refused to adjourn, and when the speaker declared that he had the king's orders to leave the chair, he was forcibly held down by two members, while the door was locked to prevent mem- bers who wished to go out from leaving, and three resolutions prepared by Sir John Eliot were put to vote by a private member, in spite of the speaker, and declared adopted. Here were acts not warranted by law or practice, and done in the excitement of passion. 6 The resolutions were in themselves legitimate. One declared against changes in re- ligion in the interests of popery or Arminianism, the doc- trine of the high church part}*; one declared against the col- lection of tunnage and poundage without a grant; and the third denounced anyone who should pay these illegal duties as an enemy of the kingdom. But revolution is an appeal to violence to do what cannot be easily or quickly done by legal methods. That the thing is desirable to do, or that the s A. and S., 343-346; Gardiner, Documents, 70-74. eCheyney, Readings, 460-463; A. and S., 346-347. 298 KING WITHOUT PARLIAMENT majority wish it done, does not make it any the less revolu- tion. This was the first step in the road of revolution, but it was long before another was taken, for Charles had had enough of parliaments and resolved to call no more. This resolution was formally announced by proclamation a few days after the dissolution. Charles did not wait even for the dissolution to punish the leaders of the opposition. Nine members of the house of commons were arrested and imprisoned. The formal accu- sation against them before the court was carefully drawn to avoid the question of parliamentary privilege, but three of them, Eliot, Strode, and Valentine, refused to answer on the ground of violation of privilege. They were heavily fined and kept in prison, Strode and Valentine until just before the short parliament of 1640, but Sir John Eliot died in the Tower in 1632. No adequate grant of taxes had been made the king by any of his three parliaments, and the question whether he could dispense with future parliaments was really the ques- tion whether a sufficient extra-parlimentary revenue could be provided to meet the pressing expenses of the state. Con- siderable experience in finding such revenue had now been accumulated since the accession of James I, but the Petition of Right explicitly forbade the most fruitful sources, forced loans and benevolences. Charles and his advisers had no intention of observing faithfully the spirit of the petition, but they did strive with some ingenuity to avoid a violation of its strict letter in their search for methods of virtual taxa- tion. The result of their schemes for revenue, looked at as a whole, may be described as an antiquarian revival of forms of income, which, though virtually obsolete, had not passed absolutely out of use and had not been forbidden by statute, or if forbidden like monopolies could be revived in a form not touched by the strict letter of the statute. In the reign of Henry III, when the feudal army was be- ginning to fail the state, compulsory knighthood had been OLD FORMS OF INCOME REVIVED 299 invented to compel men of the requisite income, £20 per an- num from land, to become responsible for having the arms and equipment of the knight required by the assize of arms and so to be ready to defend the country. With the further decline of feudalism, and especially with the change made by the introduction of gunpowder, the measure lost its mili- tary value, but it was readily converted into a source of revenue by enforcing the requirement and taking fines for exemption, and it had been so used in the past. The sum brought in was not sufficient of itself, but quite worth while in a time when it was hard to find an} r revenue. The re- quired income was now fixed at £40 but, because of the great decline in the value of money which had taken place, this was a considerably smaller income than the £20 of the thir- teenth century. The royal forests had been in medieval times very carefully guarded, and infringements upon their territory by settlers or neighboring proprietors had been severely punished. In later times their borders had been a good deal contracted, and portions of them had been granted away or occupation tacitly allowed. It was true, however, that legal evidence of ownership was easily lost, especially in times of civil war, and that no length of possession need be accepted as valid proof against a claim of the king's. Now the old boundaries of the forests were reestablished and all holders within them were required to prove their title to possession under penalty of very heavy fines, which were in the end, however, largely scaled down. Charles was not the first king who had used this expedient for raising money, but it was now so clearly an act of tyrannical injustice and so plainly used to escape the legal limitations of the constitution that the exaspera- tion excited was greatly out of proportion to the money ob- tained. Monopolies had been forbidden by the statute of 1624, but that act had expressly excepted " any corpora- tions, companies or fellowships of any art, trade, occupa- tion or mystery." The reference was of course to the well 300 KING WITHOUT PARLIAMENT known trade companies, but the language allowed the re- vival of monopolies to corporations devoted to a trade with all their opportunities for injustice and corruption. After the adoption of the Petition of Right there had been a brief resistance by the London merchants to the collection of tunnage and poundage, but it had soon ceased and these customs duties, with further impositions fixed by a new book of rates in 1635, and increasing with the increase of com- merce, furnished about half the revenue of the state. The most important discovery of new revenue was in the revival and extension of ship money. In medieval times it had been very easy to turn a commercial vessel into a ship of war, and the government had relieved itself of the necessity of maintaining a large permanent fleet by calling upon the port towns in time of war to furnish a certain number of ships. There had been in those days no objection, legal or constitutional, to this practice as calling for the service of the towns in defence of the country. The use of gun- powder, however, had made no more serious change in mili- tar} T than in naval methods, and it was now a much more difficult matter to transform a mercantile into naval ves- sel. The practice had not passed out of occasional use; Charles had made use of it in 1626 in the war with Spain; but it had ceased to be a main dependence of the state. It was now proposed to make it such again. That there was real need for a stronger fleet than the king could maintain from his precarious revenues is certain. The foreign rela- tions of England were threatening in more than one direc- tion, and especially had the very rapid growth of Dutch commerce and the strength and policy of the Dutch fleet awakened much anxiety among English merchants. It was not a time of war, but it was not difficult to advance a plausi- ble excuse of necessity. The first writ for ship money, is- sued in October, 1634, was near enough to the traditional practice not to lead to serious opposition. 7 It called upon 7 A. and S., 347-349; Gardiner, Documents, 105-108. WRITS FOR SHIP MONEY 301 the port towns to furnish ships of war, but of a size not to be found except in London, or in lieu of these to levy a sum of money sufficient to cover the cost. The demand was a transition from the ancient precedent to a practically un- disguised tax. London objected on the ground of special exemptions without success, and otherwise the demand was acceded to with little remonstrance. The second writ, of August, 1635, completed the trans- formation. The tax was extended to all the kingdom on the ground that as the support of the navy concerned the safety and defence of all so all should contribute to that end. The writs were sent to the sheriff of every county, di- recting him to provide a ship of war or to levy and pay in a sum of money in place of it. To this writ so extended there was considerable more resistance than to the first but none that required extreme action by the government. Taken into the court of king's bench in one case, it led to a judicial decision that " many things which might not be done by the rule of law might be done by the rule of government " ; that is, that this was a legitimate exercise of the sovereign power, which hy inference it was the king's right to exercise. The third writ, issued in October, 1638, and like the sec- ond extending the levy to the whole kingdom, made it plain to every one that the king had discovered a method of an- nual taxation which could be made sufficient to supply his needs provided the tax was paid. The levy brought in something over £200,000 and was about equivalent to three subsidies. It was becoming clear also that the principle ■was capable of still wider application. If the king could la}' a tax like this upon alleged grounds of national necessity determined by himself alone, what limit was there to an ex- treme right of arbitrary taxation? More and more clearly the question was emerging into light : where does the right of final decision lie, with the king or with parliament, with the nominal sovereign or with the people speaking through their representatives? It was to the clarifying of this ques- 302 KING WITHOUT PARLIAMENT tion that the great service of John Hampden was rendered, in refusing to pay the levy of 20 shillings which had been made on him. For the judges who pronounced for the king in his case found it impossible to maintain the right to lay the tax on any grounds except those of prerogative. The case was tried before the court of exchequer chamber, that is, by a united bench of all the common law judges, who de- cided seven to five for the king. 8 Said one opinion : " The king pro bono publico may charge his subjects, for the safety and defence of the kingdom, notwithstanding any act of parliament, and a statute derogatory from the preroga- tive doth not bind the king ; and the king may dispense with any law in cases of necessity." Said the chief justice of the common pleas : " No act of parliament can bar a king of his regality . . . therefore acts of parliament to take away his royal power in the defence of his kingdom are void." Such doctrines as these from such a source, with the practical consequences plainly evident, forced thinking men to con- sider carefully the fundamental principles involved. For the present nothing could be done. A new levy of the same kind was collected in each of the three following years. Charles was succeeding in his plan of getting on without parliament. Putting together his various means of raising revenue, he was getting enough nearly to cover the ordinary expenses of the state in time of peace. If he could avoid the necessity of paying for an army in addition to a navy, it looked as if he might be ultimately successful in throwing off all constitutional restraints. We have therefore to con- sider now how he found himself forced to raise an army. In doing this wc are obliged to consider also how the religious questions of the day entered into the constitutional struggle. The king had found two men who were of great assistance in carrying out his purpose of personal government. Sir Thomas Wentworth had been one of the leaders of the op- position in the first parliaments of the reign, but as time s Gardiner, Documents, 109-124. WENTWORTH AND LAUD 303 went on it was found that his idea of legal right as between king and parliament did not agree with that of the other op- position leaders. He believed that in strict law the king had a larger body of right than they were willing to allow, and in particular, though he accepted the Petition of Right in principle, he did not believe in the right of parliament to supreme authority. Gradually he passed over to the king's side, no doubt from honest conviction, though he was bit- terly hated as a renegade. He was finally to be made earl of Strafford, but in 1632 he was appointed lord deputy of Ireland. Here he had free hand to develop his own ideas of what the royal government should be, which was, in his own words, " thorough," or " founded on a complete disregard of private interests with a view to the establishment, for the good of the whole community, of the royal power as the em- bodiment of the state." H,e also firmly believed that, if this ideal was to be realized, it must be supported by a strong military force, and this he made it his business to prepare in Ireland. His great abilities, much above those of most men of his time, as well as the opportunities offered in his govern- ment, made him more feared than any other of the king's supporters. William Laud, whom Charles had made archbishop of Canterbury, was largely responsible for the religious op- position which was excited. He was by natural disposition a leader of the high church party and an opponent of Cal- vinism, and his duty to religion and his duty to the king coincided in his mind in his effort to bring " comprehension " to an end and to drive the puritans out of the national church. He had the full sympathy and support of the king in this effort, and for years it seemed entirely successful. On their side the puritans were alarmed, not merely by the danger to their own form of protestantism, but they thought they saw in the plans of the high church party preparations for the restoration of Catholicism. When they took into account also the military successes of the catholic powers on the con- 304. KING WITHOUT PARLIAMENT tincnt and the influence of the catholic queen, Henrietta Maria, they were ready to despair of the future. Religious and political liberty seemed perishing together. The first result of their despair, the hopeless outlook as it seemed to them in both church and state, "was the migration of thou- sands of families to New England, by which 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 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 over- looked that it was not in New England alone that puritan colonists settled, nor through New England influence alone that puritan ideas affected the future of 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 ex- pression, public meetings, political speaking, party organiza- tion, 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 op- position 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 THE SCOTTISH COVENANT 305 thing making a meeting of parliament necessary, seemed for the moment at least to be successfully overcome. Charles I succeeded, as has been said, by his arbitrary measures in establishing a temporary independence of par- liament. 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 apparent success had crowned the efforts of Laud to reconstruct the English church according to the aristocratic ideas of the high church party, that the conclusion seemed obvious that with the con- tinued 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 Scotland 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 formed the famous Scottish Covenant and resisted in arms, and Charles was com- pelled to raise and maintain an army. That was too great a strain for his makeshift finances. Various expedients were resorted to ; a contribution was asked for from London and then from the whole country, and loans were requested, hardly escaping violations of the Petition of Right. Another obsolete levy upon the counties for the support of a military force, " coat and conduct money," was revived. Every expedient was resisted and failed. A parliament became inevitable, if the Scots were not to be left to triumph. Wentworth, who had returned from Ireland and was soon to be made carl of Strafford, urged the calling of a parliament believing that, whether it granted supplies or refused them in time of war, and thus jus- tified independent action by the government, the king's posi- tion would be strengthened. The parliament was called to meet on April 13, 1640. The elections took place in the midst of rumors as to the king's intentions in dealing with 306 KING WITHOUT PARLIAMENT parliament, but with no certain knowledge of his plans and no knowledge of the strength and general prevalence of op- position views. No method had yet been found of ascertain- ing public opinion in advance of a meeting of parliament. When the house of commons met, it was found that not merely was there a large opposition majoritj', but that in spite of all the changes of eleven years its leadership was as able, experienced, and observant as before. Pym and Hamp- den came at once to the front and others were hardly sec- ond to them. Pressure was brought to bear at once by the king and his supporters for an immediate grant of money. The lords voted that supply should come before grievances, which the commons resented as an infringement of their privileges in regard to money bills. The king offered to give up ship money in return for a grant of twelve subsidies. The house was not to be moved, however. They saw clearly the disadvantage at which they would be placed if they gave the king an adequate supply before they had brought his illegal methods to an end. When Charles was convinced that they could not be moved from this course he dissolved the parlia- ment, after a session of only three weeks in which nothing had been done. But the opposition to the king's government had made great gains. It had learned how strong it was against the king; it had learned the powerful support which it had in the general feeling of the country ; and it had revealed to the Scots that it was not a united nation which was making war upon them. The members of the house of commons returned to their homes with a new determination to resist arbitrary government, and with new courage and confidence in their ability to defend their rights. The so-called " short parlia- ment " did none of the work of a parliament, but it destroyed all chance of the king's success and rendered the triumph of the constitution certain. After the dissolution of the parliament the king and Straf- ford made the utmost effort to overcome both the financial PETITION OF TWELVE PEERS 307 and military difficulties of their situation. Some members of the commons were imprisoned on pretexts avoiding the privileges of the house. The sheriffs were urgently pressed to collect the ship money and coat and conduct levies, the lord mayor and aldermen of London to make a loan ; con- vocation, which sympathized with the king's Scottish policy, tried to support a general benevolence ; twice an attempt was made to get a loan from Spain in return for help against the Dutch ; it was proposed to debase the coinage ; it was planned to seize Spanish bullion deposited in the tower for coinage ; all to no purpose. From all sources only small sums dribbled into the treasury, while expenses were con- stantly mounting. Meantime the army which had been raised was a serious problem. It was undisciplined, badly supplied, and scarcely paid at all. To maintain it in the semblance of an army it had to be quartered on the country, and martial law had to be rigorously enforced, both in real violation of the Petition of Right. In August the Scottish army crossed the border with practically no resistance, and occupied the counties of Northumberland and Durham. They announced that they intended no attack on the Eng- lish nation, which they believed to be in sympathy with their cause, and that they would pay for all supplies taken and refrain from violence. These promises they kept. At the end of August, twelve peers united in a petition to the king, reciting " the great distempers and dangers now threatening the Church and State and your Royal person," and asking "your most Excellent Majesty that you would be pleased to summon a Parliament within some short and convenient time." To avoid this if possible, or at least to gain time, Charles fell back again upon an old precedent. It was not yet forgotten that the great council had once performed some of the functions of parliament, nor that meetings of it had still been held long after parliament had come into existence. Accordingly writs were issued follow- ing the old form, for a meeting of the peers at York on the 308 KING WITHOUT PARLIAMENT 24th of September. 9 The great council made a treaty with the Scots, by which they were to hold the two northern coun- ties until a definite peace was made and to receive £25,000 per month for their expenses. Otherwise it could do nothing but pledge the security of the peers to a loan for the king's pressing necessities. Already matters had been growing worse so rapidly that a parliament could no longer be avoided, and it had been called to meet on November 3. Bibliographical Note. — A. V. Dicey, The Law of the Con- stitution, 1915. S. R. Gardiner, The History of England, 1603-16^0, 10 vols., 1883-4. E. Jenks, The Story of the Habeas Corpus, Law Quart. Rev., xviii 64, 1902. C. H. Mcllwain. The High Court of Parliament, 1910. W. Notestein, The Stuart Period, Repts. Am. Hist. Association, 1916, I. 391. F. H. Relf, The Petition of Right, 1917- » Gardiner, Documents, 64-66. CHAPTER XIII THE VICTORY OF PARLIAMENT After an election which exhibits in the efforts made by the opponents of the king more of the characteristics of a mod- ern election than any held before it, the " long parliament " met in a most determined spirit. The house of commons was almost unanimous. The number of members who were ready to defend the acts of the king against the attacks of the ma- jority was at first very small. The majority on its side was conscious of the character of the crisis in which they were called to act, of what was really at issue between monarchy and parliamentary government, as no similar body of men had ever been before in any crisis of English history. This was the net result of Charles's reign to this date. In their thinking 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 ad- vance in that direction. It was an advance new to history if we consider it as involving not merely a theoretical state- ment of the sovereignty of the people but, as it did before the close of the century, the practical operation of that prin- ciple through representatives responsible to the people. In this sense, while the results were to be borrowed by all men, the advance is particularly interesting to the student of the origin of American constitutional ideas, for this is the be- ginning from which they grew in continuous life on American soil. The commons could hope also to proceed to extremes against the king without interruption, for the Scottish army, known to be in sympathy with them, was retaining its station in the north of England ready to march on London at a mo- ment's notice. 309 310 THE VICTORY OF PARLIAMENT The first step of the house of commons was the impeach- ment of Strafford. He had reluctantly come to London from the north at the urgent request of the king, who had promised him that he " should not suffer in his person, honor or fortune." Parliament opened on the 3d of November; Strafford was arrested and placed in custody on the 11th, and the king made no attempt to prevent the impeachment. 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 his- torical meaning of the term. Yet some way must be found of convincing the house of lords, on which rested the re- sponsibility of judging a man upon a capital charge, and which hesitated at such straining of the law, that they might righteously find guilty of treason and condemn to death one who had most faithfully served the king as the king 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 influ- ence of that document during the formative centuries of the past as they believed themselves to know of its special clauses. As a matter of fact, though there had been much thinking IMPEACHMENT OF STRAFFORD 311 on the parliamentary side since the king's father began to put the issue as he understood it into words, they were not en- tirely conscious of what they were doing. It is probable that they were thinking only of the specific case and its dif- ficulty, though reasoning concerning the foundations of gov- ernment 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 endeavoring to prove their accusation of treason was to combine together the fundamental principle on which Magna Carta rested with that on which impeach- ment 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 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 be- fore 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 subjects; 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 sub- vert 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. 1 The lords were but little better satis- fied with this form, and it could be carried only in a very small house under the influence of rumored plots and vio- iA. and S., 3G1-362; Gardiner, Documents, 136-158. .312 THE VICTORY OF PARLIAMENT lence and by the mob pressure of puritan London, and by the same means the king was made to sign the bill. Before this result was reached, Archbishop Laud had been im- peached, and Lord Keeper Finch and the six other judges who had decided against Hampden in the ship money case. In the meantime there had begun a period of legislative activit}' which, if the importance of the acts passed be con- sidered and the short time occupied in their passing, has hardly been equaled in parliamentary history. It was in- deed mostly legislation of a destructive character in which the king was deprived of the institutions of arbitrary govern- ment and of the sources of illegitimate revenue which had been found for him, but, as making for the security of the constitution and determining the character of the future, even the destructive legislation was constructive in a high degree. Parliament opened on November 3, 1640, and both houses adjourned early in September 1641, after a session of ten months. The first act passed was to secure the regular meeting of parliaments. It provided for a meeting at least once in three years. If in the third year parliament had not been summoned before the third day of September, provision was made that writs should be issued or an election held with- out the act of the king, and that parliament should meet on the second Monday of November. 2 It was also provided that no parliament should be dissolved or prorogued within 50 days of its meeting without its own consent, but the life of a parliament was limited to three years. This was an act changing the constitution as it had come down from the past, and it was in principle permanent though not in the form enacted. A little later parliament went a step farther in the same direction by a still more revolutionary enact- ment that the existing parliament should not be dissolved or prorogued without its own consent. 3 This was asking 2 A. and S., 350-359; Gardiner, Documents, 144-155. s A. and S., 362-363; Gardiner, 158-159. RADICAL AMENDMENTS 313 the king to surrender more than the previous bill required, and deprived him of all his usual weapons against parlia- ment, but it came to him in the excitement about Strafford's execution, and he seems to have signed it without much con- sideration. It may have been revolutionary as taking away the King's constitutional powers, but it became statute law upon his signing it. The collection of tunnage and pound- age without authority of parliament was made illegal ; ship money was abolished ; compulsory knighthood and the abuse of the forests were done away with and the royal right of purveyance limited ; impressment for the army by preroga- tive was ended ; and by a resolution of the two houses, not a statute, it was declared that the judges ought to hold office for life or good behavior, a reform which did not go into permanent effect. These were important changes seriously limiting the pos- sibility of arbitrary government, as that had been exercised by the Stuarts, but the action of parliament with reference to the prerogative jurisdiction of the council, and of the special courts which had grown out of it, was the most radical constitutional amendment effected in this session and, in the form in which it was enacted, the most permanent. That extraordinary jurisdiction of the king in his council, above the ordinary and common law because the expression of the prerogative, which had existed since the establishment of the Norman monarchy, and in which had originated in the twelfth century the whole modern common law and equity jurisprudence of England, was brought to an end. 4 It was enacted that " neither his Majesty nor his Privy Council have or ought to have any jurisdiction, power or authority, by English bill, petition, articles, libel, or any other arbi- trary way whatsover, to examine or draw into question, de- termine or dispose of the lands, tenements, hereditaments, goods or chattels of any of the subjects of this kingdom; but that the same ought to be tried and determined in the < Gardiner, Documents, 179-186; A. and S., 363-366. 314 THE VICTORY OF PARLIAMENT ordinary courts of justice, and by the ordinary course of law." The councils of the north and of Wales were abolished and the ordinary jurisdiction of the privy council. The council could still arrest and commit for trial, but the trial must be in the ordinary courts; and the appellate jurisdiction of the council which had grown up for places outside England, like the Channel Islands, was not taken away. The ec- clesiastical court of high commission, which had been ex- tensively used by Laud in his persecution of the puritans, was abolished by a separate statute. 5 This legislation was continued in force at the Restoration of 1660 and the sur- viving appellate jurisdiction of the council, all that was left of its ancient powers as a court, formed the basis of its modern judicial function. Looked at constitutionally these acts against the prerogative courts did more than any other of the period of the Great Rebellion to secure permanently for Englishmen what is called in modern times the rule of law, the supremacy of law over the king, and so to render an ab- solute monarchy impossible. Indeed they almost brought prerogative itself to an end as that had been understood in the middle ages, and they illustrate the fact that the destruc- tive legislation of the time was also in a high degree con- structive. These measures were all adopted by substantial majorities, but the session was not yet half over when the differences began to appear which were to divide the house of commons and finally the kingdom into two almost equal parties. On December 11 a strong petition was presented from London asking for the abolition of bishops 6 and a few weeks later one signed by a thousand ministers asking that the govern- ment of the church by bishops be reformed. These petitions had strong support in the house in the debates which fol- lowed, but decided differences of opinion and feeling on PA. and S., 366-369; Gardiner, Documents, 186-189. e Gardiner, Documents, 137-144. THE GRAND REMONSTRANCE 315 ecclesiastical questions were revealed which tended to divide the members sharply into two opposing sides. On one side was the puritan, as yet in leading the business of parliament practically prcsbyterian only, who wished to do away al- together with the episcopal constitution of the church ; and on the other was the church party which wished to maintain the church in most matters as it existed, but was not entirely united within itself on how far the reform of acknowledged abuses should go. On the position of the bishops as perma- nent legislators in parliament there was less difference of opinion, and the commons passed a bill for their exclusion with no great opposition, but it was rejected by the lords. A more extreme measure, called the root and branch bill, which would do away with the episcopal constitution of the church entirely did not pass the commons. While it is true that the beginning of a division into parties was due to dif- ferences in regard to church government and worship, and while that party which later supported the king began to form more from loyalty to the church than from loyalty to him, it was evident as the session drew to its close that the number of those who thought that enough had been de- manded of the king was increasing. When parliament re- assembled on October 20, 1641, those who were ready to oppose any further extreme measures were almost half the house. A trial of strength came soon after parliament opened. Shortly before the adjournment in September, Charles had gone to Scotland in the hope that he might so arrange mat- ters there that he could gain help against his opponents in England. In this he failed, but the attempt excited renewed fear of what he might be able to do and led the leaders of the opposition to draw up a document known as the Grand Re- monstrance, which is at once a defence and a programme. 7 It has been called an appeal to the nation by the party re- solved to go on with radical changes both in state and church. 7 A. and S., 376-380; Gardiner, Documents, 20&-232, 316 THE VICTORY OF PARLIAMENT It is a long document and after the fashion of the time not concise. It recounts the wrongdoings of Charles, states what had been accomplished in reform, and outlines what still remained to do. Its most interesting proposal from the point of view of the present constitution is that the king's ministers should be " such as Parliament may have cause to confide in." It was carried by a majority of 11 only in a vote of more than 300. Charles arrived in London from Scotland about the same time and not long after returned answer declaring that he could not surrender the undoubted right of the Crown to appoint ministers and, saying that he knew of no wicked party in the council, to which the Remonstrance had at- tributed the conduct complained of, virtually assumed re- sponsibility himself for all that had been done. A few days later he made a serious mistake of tactics. He directed the attorney general to lay articles of impeachment of treason before the lords against five members of the commons. 8 When the lords did not act at once, he went in person to the commons' chamber to arrest the men. They had escaped, the speaker refused to answer the king, and he was obliged to retire in failure. If Charles had warrant in law for any of the steps of this action, it was law so ancient as to be long obsolete, and loud outcry was raised at the illegality and violation of privilege. The only effect was to inflame pas- sion and hasten the drift to civil war which now became rapid. The king left London and both sides began to prepare for the inevitable, the king's party constantly growing in strength from those who were by natural disposition loyal to the Crown and still more from those who were opposed to a puritan control of the church. Actual fighting in the 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 mat- ter marks another step forward towards the doctrine of the 8 Gardiner, Documents, 236-237, THE MILITIA ORDINANCE 317 sovereignty of the people. When the king resolutely re- fused 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," 9 remembering that there had been in early times law-making by non-parliamentary legislation called by that name, but forgetting that an or- dinance in the fourteenth century was not an act of parlia- ment without the king but an act of king and council, or lords, without the commons, but the misuse of the term is rather t} r pical of the antiquarian arguments which were used for justification at the time. 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 in- terrupt 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 obligator}' 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 parlia- ment. What these words really say is that sovereignty, the right of supreme and final decision, is exercised by par- liament, not by the man who holds the name and title of sovereign. It may be added that they are so entirely as- sumed to be true in the present English government that the king is not supposed to have. any will, or opinion even, on a political question, except that of his ministers. Before war actually began, parliament presented to the king their final demands for the reconstruction of govern- ment in the so-called Nineteen Propositions. 10 This is a • Gardiner, Documents, 245-247. 10 Gardiner, Documents, 249-254. 318 THE VICTORY OF PARLIAMENT most interesting document as showing in definite and formal statement, no doubt carefully drawn up, to what ideas the conflict with the king had led regarding the kind of constitu- tion which ought to be given the state. It is not a complete constitution but it is clearly the foundation on which one could easily have been built. Its determining principle is an unreserved transfer to parliament, not merely of sovereignty, but of the control of all practical details in daily govern- ment, for, where such a transfer is not expressly provided for in the document, it would very quickly have resulted. In a short time the directly acting force in government would have been parliament not the king. So far forth, in practical effect, the result would not have been different from that of the present English constitution, but the method would have been wholly different. Everything was to be done by direct action of parliament and under direct responsibility to it. The Nineteen Propositions have been called a new edition of the Provisions of Oxford, and it is with the medieval attempts to limit the king institutionally that they belong. All privy councillors, great officers and chief judges were to be ap- proved by parliament. No new peer was to sit and vote without parliamentary consent. The fortresses and militia were to be under parliamentary control, and the church was to be reformed by parliamentary advice. It is not likely that the leaders in parliament expected the king to accede to their proposals. The war went against the king. In a little more than two years he was obliged to surrender himself to his op- ponents. In a second stage of the war, which followed, those of the presbvterian puritans and their Scottish supporters who were ready to make some agreement with the king in the hope of saving a national church organization, were de- feated, and the democratic wing of the puritan party, the independents or congregation alists as they were called from their ecclesiastical teaching, was at the end of 1648 in sole possession of power. THE INDEPENDENTS 319 They were in theory democratic both in their ecclesiastical and their political ideas. In the government of their churches they were able to carry these ideas into practice to such an extent as not merely to vest the control of each local church in its own members, but to make the individual church organization as a unit independent of any outside authority. As the logical result of such a practical realiza- tion of their ideas, they were split into numerous sects upon various points of difference which appear less important today than in the seventeenth century. This was a carry- ing of the fundamental protestant denial of the right of authority in matters of belief to its logical extreme. In this regard they represent the extreme protestant wing of their time. But in another respect, because they carried on here also the protestant position to a logical conclusion, they are less typical of seventeenth century protestantism. They believed in religious as fully as in political liberty. They did not believe in a national church for themselves, but they did not object to sucli an organization, provided all churches could be left free to organize as they thought best. But. in the practical carrying out of religious liberty, they could not be, or were not, as logical as in ecclesiastical gov- ernment. They looked upon episcopacy with suspicion as tending to monarchy or to Roman Catholicism, and in most cases they did not extend their toleration beyond protestant- ism. It is in their political theories, however, as developed in numerous discussions in voluntary councils in the army and in publications of all sorts, that the ideas which had been gradually evolved since the accession of James I were carried most nearly to their logical conclusions and most nearly to the results first permanently reached in America. At the beginning of the second civil war the independents had control of the army under Cromwell and the presby- terians of the parliament. The victorious army returned from the field very angry with the king and with the presbyterian puritans, whom 320 THE VICTORY OF PARLIAMENT together they held responsible for what they believed to be the unnecessary sacrifices of the second war, and they imme- diately proceeded against both. First the presbyterians were all expelled from parliament. Col. Pride with a com- pany of troops at the door of the house, arrested some and turned back others, on December 6, 1648, leaving of the Long Parliament the independents only, about one-eighth the original number. This really powerless remnant came to be known as the Rump. Then in a second step they consti- tuted a court to try the king for treason 1X — a court in its fundamental character not unlike the star chamber which they had assisted to abolish. The accusation was 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 according 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 accord- ing to his will, and to overthrow the rights and liberties of the people, . . . which by the fundamental constitutions of this kingdom were reserved on the people's behalf in the right and power of frequent 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 rep- resented." 12 The king, who resolutely refused to recognize the court, was sentenced on January 27 and executed on the 30th, 1649. In trying the king upon a charge of this kind, the inde- pendents 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 ii A. and S., 389-390; Gardiner, Documents, 357-358., \z Gardiner, Documents, 371-374.. SOVEREIGNTY OF THE PEOPLE 321 little fraction left in that house, would not go so far. All government, even before the trial of the king, 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 on January 4 " that the people are, under God, the original of all just power; that the commons of England, in parliament 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 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 state- ments in formulation of the principle of the sovereignty 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 consti- tution which was foreshadowed 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 pre- pared for as yet in national experience or in institutions by an adequate political development. In the details of this 322 THE VICTORY OF PARLIAMENT advance the independents 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 the nineteenth century 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, con- stitutional 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 from this beginning in unbroken growth into the government of a great people. No one is called upon to defend or even to discuss the execution of the king. Such justification as it has is to be drawn from the fact of revolution, of which it was an extreme, perhaps an unnecessary act. But the revolution itself was necessary. The issue had been so sharply drawn, the king was so deeply pledged to his view of the monarchy, and his character was so untrustworthy and within a narrow range so obstinate, that the only chance, not merely for the suc- cess of the puritan idea of what the character of the govern- ment should be, but for the successful realization in constitu- tional practice of those checks upon absolute power which the progress of the past had made ready, lay in pushing the struggle to an extreme which, to the men then in power, involved the death of the king. Even upon the scaffold Charles insisted upon his interpretation of the constitution and stated it with admirable clearness. " For the people," he said, " truly I desire their liberty and freedom as much as anybody whatsoever, but I must tell you their liberty and freedom consists in having government, those laws by which their lives and their goods may be most their own. It is not their having a share in the government, that is nothfng appertaining to them. A subject and a sovereign are clear different things." The execution of the king and the disappearance of the THE WRITTEN CONSTITUTION 323 house of lords, left the house of commons the sole survivor of the national authorities of the old constitution. 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 considering the foundations of government and the forms it should assume. A flood of proposals, theories, and arguments appeared in those years, as charac- teristic 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. Already before this date, even before the beginning of the war, members of the party had begun to return from the American colonics bringing with them, not so much new ideas and principles for these they had carried from Old to New England, as reports of the logical carrying out of their principles in actual governments and encouragement that they had and would work in practice. Of these suggestions, the most formal and developed as a proposal to be carried out in government, was that which was presented to the house of commons in January, 1649, under the title, " The Agreement of the People." 13 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 Ameri- can constitution asserts: "We the people of the United States do ordain and establish this Constitution." It im- plied that the people of England by an agreement formally entered into were to make a written constitution in order is Gardiner, Documents, 359-371. 324 THE VICTORY OF PARLIAMENT to establish a government and define its powers. As a pro- posal for actual government, we need not consider the Agree- ment 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 foundation 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 institu- tions, as an expedient for working a democracy on a great scale, had no need to be considered for a long time. The Agreement of the People was seriously intended as the con- stitution of a great nation. It must be regarded, however, as more than merely the first written constitution proposed for a great state. It was a constitution distinctly of the American type. It proceeds throughout explicitly on the principle that the source of all government is the people; that the people by their agreement together create the government ; and that they have the right not merely to clothe the government with powers but also to fix limitations upon its action which it must not exceed. It explicitly declares that certain numbered particulars " are, and shall be, understood to be excepted and reserved from our Representatives." It also expressly states that certain portions of the document, considered " fundamental to our common right, liberty, and safety," are beyond the power of their representatives to alter. In this respect, like the United States, the framers carried the principle of the sov- ereignty of the people a stage farther than England has yet gone, making the formation and reconstruction of the constitution an act which must come in special and separate form directly from the people. If the government conceived THE COMMONWEALTH 325 of in the Agreement of the People could have been put into operation with sufficient national force to support it, and developed as it naturally would have been by experience, it would have made real in the seventeenth century a govern- ment of the people, by the people, and for the people. It was in its nature and in its freedom from certain limitations more likely to attain this end than the Instrument of Govern- ment afterwards founded upon it. The Agreement of the People was never put into opera- tion. It was the programme, not of the majority of the independent party, but of the more radical extremists, and the time, still full of dangers for a revolutionary govern- ment which represented only a minority of the nation, was unpropitious for new political experiments. The great prac- tical problem of the day was to make sure, if possible, that the fragments of the constituted authorities which remained in power should maintain themselves and enforce peace and order throughout the country. This was the task of the army, and the government which followed under the Com- monwealth and the Protectorate was really the government of the army. On February 13 the Rump appointed a council of state to govern the country ; on March 17 it abolished the office of king; on March 19 it abolished the house of lords; and on May 19 it declared that " the people of England and of all the dominions and territories thereunto belonging, are and shall be, and are hereby constituted ... to be a Com- monwealth and Free State, and shall from henceforth be governed as a Commonwealth and Free State by the supreme authority of this nation, the representatives of the people in Parliament, and by such as they shall appoint and constitute as officers and ministers under them for the good of the peo- ple." These changes were really made necessary by the situation. There could no longer be any pretence of gov- ernment by a king. But if the government was to be in theory a government of and by the people, it was in reality a military autocracy, 326 THE VICTORY OF PARLIAMENT and it is doubtless true that that was the only revolutionary government which could have kept itself in power. Crom- well regarded himself by virtue of his commission from the old undivided parliament as more truly the one regularly constituted authority than the fragment of the parliament. On April 20, 1653, he expelled by military force the Rump, which had lingered to that date though with little power. On July 5 a new parliament met, known as the " Little " or Barebone's parliament, and composed of persons appointed to membership from lists drawn up by the independent churches. It did, however, little except to debate a series of reforms most of them far in advance of the times and was dissolved by its own act on December 12. Almost immedi- ately thereafter a new written constitution which had been prepared by the leaders of the army was brought forward and accepted by Cromwell. This was the Instrument of Government which was put into force by Cromwell and his council without being referred for sanction either to a par- liament or to the people. 14 All discussion of the Instrument of Government must be prefaced by the statement that it had no influence on the constitutional history of England. The experiments in gov- ernment which followed the outbreak of the civil war are an offshoot from the main line of English history and they lead nowhere in that country. They are, however, an off- shoot which grows as naturally and normally from the main trunk as docs the continuation of that itself. They are of especial value as showing, in the middle of the seventeenth century, what was even then, and has been since more abun- dantly, made evident in the colonies. They show what sort of a government the historical constitution of England, even as it then existed, logically would lead to, when it cut itself off from the monarchy and its theories of sovereignt}\ For the American student the Instrument of Government has a peculiar interest for several reasons. It is the first written " A. and S., 407-416; Gardiner, Documents, 405-417. THE INSTRUMENT OF GOVERNMENT 327 constitution, creating a government in theory of delegated powers defined and limited, put into actual operation for a great nation. It formed nominally at least the basis of the government of England for something more than three years. Of it it may be said as truly as it has been said of the con- stitution of the United States: "Thus these men at Phila- delphia were in theory completing the historical process that had been working out in English history since the meeting of the barons with John Lackland at Runnymede. The long effort to establish a government of law and not of men was reaching its logical conclusion in an effort to make the government itself dependent on fundamental law." Of equal interest and significance are the anticipations of what we sometimes consider American innovations and discoveries in the practical workings of government, showing almost more clearly than matters more vital from what stock we have grown. The important points of the Instrument may be briefly stated. Article I provides that the supreme legislative authority of the Commonwealth of England, Scotland and Ireland and the dominions thereto belonging shall be and reside in one person, the lord protector, and " the people assembled in parliament." The source of authority both for the constitution and for parliament is thus stated to be the people, and the united government of England, Scotland and Ireland, which had been already brought about in fact, is recognized in law. The functions and powers of the pro- tector and his council in the executive government are then stated with their limitations. Often he is required to act with the advice or consent of parliament. The modern legis- lature cannot be dissolved without its own consent ; the pro- tector could not dissolve his until after a sitting of five months. The distribution of representation was decidedly changed and roughly fixed according to the distribution of population. Many small boroughs were disfranchised, new growing towns like Leeds and Manchester received represent- 328 THE VICTORY OF PARLIAMENT ation, and the county representation was enlarged. The old parliament contained 413 borough members and 9& county, the new 135 borough and 238 county members. The franchise was considerably restricted. A property qualifi- cation of £200 was required of all electors. All who had taken part in the war against parliament were disfranchised for four parliamentary elections, and all who had aided the rebellion in Ireland and all Roman Catholics permanently. All bills passed by parliament were to be sent to the pro- tector for his consent. If he did not give his consent within twenty days, or " give satisfaction to the parliament within the time limited," they should become laws without his con- sent, " provided such Bills contain nothing in them contrary to the matters contained in these presents." Two clauses in this Article require especial notice. One provides for a limited veto. " Give satisfaction to the parliament " implies the right of the protector to persuade the parliament, as in the veto message of American practice, to abandon the measure, but an ordinary majority merely would override his veto. The other provides that unconstitutional bills shall not become law. As in the American constitution, no pro- vision is made for any authority to decide what bills are unconstitutional, but in time undoubtedly the courts would have assumed the duty. The Instrument provides no way in which it can be amended, and some have taken this clause to forbid all amendment. It is highly probable, however, that courts of law, called upon to interpret it, would have said that it prevents the passage of an unconstitutional act over the protector's veto, and that by inference the Instrument could be amended by parliament with the protector's consent. Parliament shared directly in the appointment of the mem- bers of the council and must approve the appointments to the chief offices of state. Religious liberty was granted to all " such as profess faith in God by Jesus Christ," with a pro- viso that " this liberty be not extended to Popery or Prelacy." The logical effect of such a constitution, as it would THE SEAT OF SOVEREIGNTY 329 naturall}' develop, would be to transfer the sovereignty not merely in fact but in form from parliament to the people. Parliament, as subject to the fundamental law established by the people, could not occupy the place of ultimate su- preme authority, could not be the last resort in the decision of doubtful questions or policies. In truth this was the effect of the puritan revolution, though the written consti- tution disappeared, and though the fact was not and never has been expressed in form nor acknowledged in theory in England. As Professor Dicey has said in his Law of the Constitution: " in a legal point of view parliament is neither the agent of the electors nor in any sense a trustee for its constituents. It is legally the sovereign power of the state." Mr. Dicey did, however, consent to a distinction between legal and practical sovereignty, the practical sovereignty residing in the electors. The true test of course is to dis- cover in a final conflict of authority which of the two must yield to the other. Of that there can be no doubt. Outside the written constitution, in acts passed by one or another parliament, or in measures proposed but not adopted, there were other anticipations of changes which have been in recent times carried through : Free public schools ; a public post office ; public work for the employment of the poor ; female suffrage ; voting by ballot ; the establish- ment of a national bank ; freedom of the press ; freedom of trade, but with the reenactment of the navigation laws; the removal of religious disabilities in principle but incomplete in practice ; the improvement of local government ; a system of recording land transfers ; a simplification of marriage laws ; and the local registry of vital statistics. In the sphere of government and law there were equally modern measures or proposals ; a great extension of the use of com- mittees in parliamentary business; the enactment of an excise tax, a drastic reform of procedure in the courts to remove causes of delay and cost, and all to be in English ; a simplifi- cation of appeals ; steps towards the union of equity and 330 THE VICTORY OF PARLIAMENT common law ; a new secular court of probate; the payment of judges by fixed salaries, no longer by fees, and tenure during good behavior ; more liberal means of defence to persons ac- cused of crime ; better facilities for the collection of debts ; and prison reform and the relief of prisoners for debt. In- teresting anticipations of ideas sometimes thought to be peculiarly American are the declaration in a parliamentary debate in 1647 that " a man is not bound to a government that he has not had a voice to put himself under," and the lines in Edmund Waller's Panegyric on Cromwell, which anticipate also American language: Whether this portion of the world were rent By the rude Ocean from the continent; Or thus created, it was sure designed To be the sacred refuge of mankind. Hither the oppressed shall henceforth resort Justice to crave, and succour at your court. The list is not complete, and comparatively few of these proposals passed into actual statute law, but it is sufficient to show both the activity of mind upon governmental prob- lems in this revolutionary age, and how thoroughly the think- ing of the time was in line with the constitutional and legal progress which was to follow, more naturally and normally, in less revolutionary ways, in the coming centuries. It may be said indeed that the greatest obstacle in the way of carry- ing out the puritan plans of reform was the puritan activity of mind. Their parliamentary assemblies are all charac- terized by endless debate which led to no practical con- clusion. The first parliament under the Instrument of Gov- ernment insisted so obstinately on debating the constitutional law of that document and its possible amendment, against the expressed desire of the protector, that it was finally sent home with nothing done. The second parliament, in which a house of lords was reestablished, was not much better. While the executive during the Commonwealth and Protec- TERMANENT RESULTS 331 toratc accomplished good things in practical government and in foreign affairs, the nation was tired out with the useless wrangles among the sects and parties, and, as no successor to Cromwell rose to continue his vigorous executive policy, the monarchy was easily restored. There will be occasion in what follows to discuss some details in which there may be seen permanent results which are to be traced to the period between 1640 and 1660. Mr. Taswell-Langmead in his Constitutional History states four further general results which he believes to have been per- manent. 1. " Although the cause of monarchy was gained, that of absolute monarchy was lost forever." This is quite true, but its truth was not so apparent at the time as it is to us. The struggle with absolute monarchy was by no means over and though the struggle was really without hope of success for the king some of its most desperate phases, as they would seem to contemporaries, were immediately before the nation. 2. " The predominant influence of the house of commons in the government of the nation was per- manently established." This also is a fact perceived only bv the historian as he looks back from the vantage ground reached by a later progress.- It was not understood at the time nor fully, with reference to practical government, for more than a century. These two are the most far-reaching and fundamental results of the conflict between parliament and king in the seventeenth century, and they settled per- manently the character of the English constitution. 3. " The complete and definite rejection of Romanism in Eng- land was assured; but the position of the National Church after the Restoration was no longer precisely the same as before the Rebellion." The fear of the political designs of Romanism was, however, not yet over, and the national judgment that it is a danger in the state was to be further strengthened in the following period. The last clause will be discussed later. 4. " The development of an intense national antipathy to a standing army and of widespread 332 THE VICTORY OF PARLIAMENT distrust of men of extreme views." The antipathy to a standing army and opposition to it were to be greatly in- creased in the following generation, with seriously incon- venient results both in England and America. To this statement of permanent results there may be added others: 1. All financial independence of the king was at an end. The struggle over this matter which had lasted from the reign of Edward I was at last over. No later English king, if we make an insignificant exception for James II, has attempted to raise a revenue, independent of parliamentary action. 2. The prerogative courts, and with them all danger from the prerogative, were permanently done away with. A slight exception for the next generation must also be made here, but the effort of the sovereign to make use of the prerogative was without avail. Such possibilities of pre- rogative action as remained have been, since 1688 at least, under parliamentary control. 3. It was definitely settled that England was not to be a republic. In one sense the logical drift of English constitutional development was to- wards a republic, but the institutional changes which fol- lowed the Restoration and which gave expression in govern- mental machinery to the Restoration settlement made such a result for long impossible and, even after two more centuries and a half, highly improbable. How this came about is the theme in large part of the history which follows. The puritan revolution of these twenty years marks the division of the stream of English constitutional development into two branches. For England it was an attempt to arrive at the logical conclusions of that development prematurely, by violence 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 • RESULTS IN AMERICA 333 Parliament in 164-1. Nearly everything for which the revolution strove is now a part of the English constitution, but not as a result of its endeavor. Rather as a result of the slower and more normal process of growth, out of which in a sense the revolution indeed came but which it for a mo- ment 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 constitutional 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. Bibliographical Note. — C. Borgeaud, The Rise of Modern Democracy in Old and Neiv England, 1894. L. F. Brown, Baptists and Fifth Monarchy Men, 1912. C H. Firth, Oliver Cromwell, 1905; The Last Years of the Protectorate, 1909; The House of Lords during the Civil War, 1910. S. R. Gardi- ner, The Great Civil War, 4 vols., 1886; The Commonwealth and Protectorate, 3 vols., 1894-1903. G. P. Gooch, English Demo- cratic Ideas in the Seventeenth Century, 1898. E. Jenks, Con- stitutional Experiments of the Commonwealth, 1890. C. H. Mcllwain, The High Court of Parliament, 1910. T. C. Pease, The Leveller Movement, 1916. CHAPTER XIV 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 con- stitutional guarantees whatever. Nothing was said of the sins of his father, nor of the principles which the great ma- jority of the house of commons were determined to defend in 1640. The legislation of the first session of that parlia- ment remained on the statute books, and arbitrary govern- ment 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 statements even, with which the new government began, there was noth- ing to indicate that anything of a constitutional 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. Charles's state- ment 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 per- haps 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 334 A COMPROMISE IN FORM 335 the authority of parliament or any the less determined to re- establish 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 under- took to relieve the nonconformists 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 Restoration, 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 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 with- stand 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 pos- sible 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 constitution — had been answered by the discovery of a compromise. 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 336 THE VICTORY CONFIRMED as can be found : " Sovereignty resides in the king in his parliament." The king is in theory sovereign, but his sover- eignty can be declared and exercised only in parliament. The king gave up the power to 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 exer- cise of very substantial powers and by the permanent pos- session of important 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 nine- teenth century, even if it should in the end prove that consti- tutional monarchy is only a halfway house on the road to ultimate democracy. In this respect it is difficult to over- state 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 im- mensely more difficult to reconcile the sovereign to a loss of the substance of power, but the adoption of the constitu- tion by other and unwilling monarchies would have been made a practical impossibility. The compromise feature of the present constitution by which in theory and in form the ministry, though supreme, seems to be the creature of the king and responsible to him, would have had no existence. The choice which, without this compromise, 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 been an even choice with no par- ticular attractiveness or significance in one side above the THE RESTORATION 337 other. The world influence of the English constitution de- pended 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. The Restoration was the work of a combination of cava- liers and presbyterians, somewhat like that which had failed after the first civil war. It now succeeded because the radical party, always in a minority, had lost popular favor and was without leadership. Actively it was the work of the army under General Monk and of what we in America should call a convention but which is called in England a convention parliament, because formed like a parliament. For the upper house it was composed of such lords as could be assembled, and for the commons it was based on the same distribution of seats as the old parliament. Legally it was not a parliament, because the elections had been held without the authority of writs issued by the king. After the return of Charles II an act was passed declaring it to be a parlia- ment, and Charles's second parliament, regularly summoned, passed an act confirming the acts of the convention parlia- ment. Everything possible was done to make the process of restoration conform to constitutional practice. Accord- ing to the interpretation of the constitution which was now made to prevail, Charles II had become king immediately on his father's execution, and therefore all acts of Common- wealth and Protectorate parliaments, not having received the royal assent, must necessarily be void. This was true also of the acts of the long parliament passed after the outbreak of the civil war, but the Restoration parliaments did not propose to restore the older possibilities of autocratic gov- ernment, and the earlier acts of the long parliament remained in force with a few exceptions and some modifications. It has been said that the Restoration was twofold, first of the king and the old constitution, and second of the church, 338 THE VICTORY CONFIRMED and the description is convenient. In the convention parlia- ment the presbyterians were too strong to allow active meas- ures to be taken against the non-conformists. It restored the king; it gave to parliament its old organziation and its place in the state with all the new power which it had gained; it reestablished the gentry in local government and in local influence, and checked the more radical puritan tendency towards democracy ; it abolished the old feudal tenures of land, and for the income which the crown had derived from the feudal dues it substituted an excise tax ; it reenacted the navigation laws ; it voted tunnage and poundage to the king for life, but began the policy followed throughout the reign, whether intentionally or not, of never furnishing the king with revenues sufficient to meet the expenses of government ; it allowed the execution of a few of the judges who had con- demned Charles I to death and still fewer of their extreme supporters, but passed an act of indemnity for the others. This parliament was dissolved on December 9.9. Writs were soon issued for a new parliament, which met on May 8, 1661. General enthusiasm for the monarchy and for the Anglican church had been steadily rising since the return of the king, and the elections reflected this feeling. The presbyterian element which had been so important in the convention parliament almost disappeared, and the house of commons was overwhelmingly cavalier. The parliament is known in history as the " cavalier parliament," and it has been called more royalist than the king and more Angli- can than the bishops. Although it developed towards the end of its life a more definite opposition to the king's policy than at first, it was so satisfactory on the whole that it was kept in existence by Charles for eighteen years, which could be legally done after it had itself, in 1664, repealed the triennial act of 1641. The work of the cavalier parliament may be conveniently considered under two topics, its ecclesiastical and its political activity. The question of the national religion, or at least THE CLARENDON CODE 339 of the organization of the national church, was still a living one, not yet finally decided. If the claims of the independent were not likely to be very fully or favorably considered, the presbyterian had good grounds for believing that some form of " comprehension " would be devised by which he and his ministers might remain in the national church without con- forming to all the requirements, like ritual and vestments, to which he objected. Of this mistake he was speedily dis- abused. The Anglican majority in parliament and its lead- ers intended as thoroughgoing a policy of exclusion, of en- forced conformity, as Laud had in mind. This intention was embodied in a series of four statutes, known commonly as the Clarendon code from Lord Chancellor Clarendon, the chief minister of the time. 1 The first of these was the corporation act of 1661, by which all holders of offices in corporate towns were required to renounce the solemn league and covenant, to declare on oath that resistance to the king was unlawful in any circum- stances, to take the oaths of allegiance and supremacy, and in future to receive the sacrament according to Anglican rites within a year after election. The act of uniformity of 1662 required all clergymen to obtain episcopal ordination and to use the prayer book in their services, and all teachers to de- clare their acceptance of the liturgy and of the principle of non-resistance. The conventicle act of 1664 forbade, under severe penalties, attendance at any worship not of Anglican forms if more than four persons were present, unless they were of the same family. The five-mile act of 1665 demanded that ministers who had refused to comply with the act of uniformity should declare on oath that they regarded resist- ance as unlawful and pledge themselves not to attempt any changes in church or state. If they would not do this, they were forbidden by threat of heavy punishment to come within five miles of any corporate town or borough or of any parish in which they had previously preached. i A. and S., 425-434. 340 THE VICTORY CONFIRMED The effects of this legislation were wide-reaching and long- continued. One immediate result was that the church of England ceased to be a national church in the older sense and became an established church. " Comprehension " was at an end. The non-conformist disappeared. He became a dissenter, and the term non-conformist as used in more modern times ceased to mean, as it had earlier in the century, the member of the national church who did not conform to its ritual, and came to mean the outsider who had a different church relationship, the dissenter. The blow thus struck was more fatal to the presbyterian than to the independent. It was indeed to some extent aimed at him because of his political importance. To the presbyterian a national church organization was a part of his essential creed, and such an organization for him either within or without the Anglican church was now impossible. All chance of a recovery of political power was also destroyed, for the seat of presby- terian political strength had been in the towns, and especially in the corporations which elected borough members of parlia- ment. By degrees the presbyterian families passed over into the church of England and gave to the future whig party much of its strength, while prcsbyterianism as a non-con- formist organization became weak in England. The inde- pendent churches, which had never believed in a national organization, suffered less severely and survived in larger numbers to the time of toleration. If the brief interval of limited toleration in the protectorate period interrupted in any sense the complete parliamentary control of the religious and ecclesiastical interests of the nation, the legislation of the restoration period fully restored it. The influence of re- ligious questions upon the constitutional legislation of the period was not, however, exhausted by the enactment of the Clarendon code, as will be seen later. In interpreting politically the reign of Charles II, the question of the king's intentions is one of considerable im- portance and one on which scholars are not entirely agreed. THE KING'S PURPOSE 341 It is certain that in traits of character and personality he was not a typical Stuart. He resembled in these respects more closely his maternal grandfather Henry IV of France. With more than average political ability, and with a degree of insight into the conditions with which he had to deal lack- ing in his father and brother, he was in some respects the Stuart king most dangerous to the constitution. For the simplest explanation of his policy, the one which creates the fewest difficulties, is to suppose that he set before himself two chief objects to be attained: first, to restore as com- pletely as possible the personal control of the king over the government, to be free of parliamentary restraints ; and second, to obtain for Catholicism, if not the position of the state church once more, at least a position of equality as a recognized legal religion for all who wished to adopt it. These two objects he pursued with much skill and discern- ment, under a mask of devotion to pleasure, so long as they did not demand of him too severe an effort or entail the danger of another revolution. It must not be understood that pleasure was entirely a mask with Charles. He un- doubtedly pursued it for its own sake and, as he grew older, its hold upon him as a real business in life grew stronger. It is difficult, however, to explain some things in his reign unless we suppose that he consciously made use of his per- sonal inclination to pleasure and the loose moral standards of the time to conceal from his ministers a deliberate inten- tion to return to the constitutional interpretation and position of his father and grandfather, or of the Tudors. Charles made his first attempt to change existing condi- tions in favor of the dissenters, including catholics, and inci- dentally of the royal prerogative as well, in December, 1662. He issued a " declaration," called often his first " declara- tion of indulgence," in which he announced his intention of persuading parliament in its next session to " enable us to exercise with a more universal satisfaction that power of dispensing which we conceive to be inherent in us." That is, 342 THE VICTORY CONFIRMED he declared his belief that the prerogative of dispensing from obedience to existing statutes belonged to him as king, and that he hoped to exercise it to relieve dissenters with the expressed acquiescence of parliament. Parliament, how- ever, refused to acquiesce, and Charles was obliged to drop the plan. Ten years later he did not ask the cooperation of parliament but, relying on the prerogative alone, he issued a new declaration in which he said : 2 " We do declare our will and pleasure to be that the execution of all and all manner of penal laws in matters ecclesiastical, against what- soever sort of non-conformists or recusants, be immediately suspended, and they are hereby suspended." It has been said that forty acts of parliament were broken through by this declaration, which was of exactly the same nature as Richard IPs attack on the authority of parliament. Any hope which the king may have cherished of gaining a national support for his policy by a union of protestant and catholic dissenters was disappointed by the unwillingness of the pro- testants to accept toleration on these terms, and parliament expressed itself clearly and pointedly at its next session. The house of commons resolved that " penal statutes in mat- ters ecclesiastical cannot be suspended but by act of parlia- ment," and embodied the resolution in an address to the king. After some hesitation he yielded. Charles appears to have been convinced by these experi- ments that success was not to be obtained 03' direct preroga- tive action, and that, if he was to secure equality of privilege for catholics, it must be through political success in estab- lishing his supremacy in the state. At any rate, from this time on he dropped all open attempts to bring about a religious change. Religion did not disappear, however, as a factor in the constitutional situation. The sharp fear of the danger to liberty from a catholic triumph, which had been so decided all influence in the political history of Eliza- beth's time, returned in a new form ; not now the fear that the 2 A. and S., 434-43G; Robertson, Statutes, 45-45. THE TEST ACT 343 catholic portion, perhaps in the earlier time a majority, of the nation might restore the rule of the pope, but that the same dreaded result might be reached by a catholic king or a catholic dynasty. Charles's protestantism was suspected. His brother James, the next in succession to the throne, was more than suspected ; he was confidently believed to be a catholic. The national fear of what might possibly result led to the passage of an act of long-continued influence in English history, and to the attempt, almost successful, to pass another of even greater constitutional significance. The first was the " test act," introduced almost immedi- ately after the withdrawal of the declaration of indulgence, and intended to exclude all catholics from office by a test which could not be evaded, and which would consequently compel all office-holders who were catholics in secret to de- clare themselves. 3 All civil and military officers were re- quired to take anew the oaths of allegiance and supremacy, including in the oaths a declaration of disbelief in any tran- substantiation in the sacrament of the Lord's supper, and to receive the sacrament by the rites of the English church. This was followed in 1678 by the parliamentary test act im- posing the same declaration upon the members of both houses. These conditions no catholic could meet, and James was obliged virtually to confess his membership in the Roman church, and catholic peers were obliged to give up their seats in the house of lords, which they had until then re- tained. The pretended disclosure by Titus Oates of a great popish plot to overthrow the government in the interest of Catholi- cism, popularly supposed to be favored by James, Duke of York, created such intense excitement for a time that the party of opposition in the cavalier parliament was greatly strengthened. When Charles prorogued and then dissolved this parliament to save his minister, Danby, from impeach- ment, the new house of commons, elected in the spring of » A. and S., 436-439; Robertson, Statutes, 39-42. 344 THE VICTORY CONFIRMED 1679, had an even larger majority of the opposition party, soon to be called the whigs. The party determined to save the English church from the danger of a catholic sovereign by an exercise of extreme parliamentary power. 4 In three successive parliaments a bill was introduced to exclude the duke of York from succession to the throne. Once the bill was rejected by the house of lords, and twice the king pre- vented its passage through the house of commons by proroga- tion or dissolution. He did not, however, formally dispute the constitutional right of parliament to change the order of succession. The religious question led to no further results in the reign of Charles, but in the actual revolution which closed the reign of James the religious influence was as active as the political. It is from the religious troubles of the reign that the two great political parties of English history date their continu- ous existence. If the first principle of division between them seems to be support of or opposition to the court, and so their history may seem to go back to the division which formed in the house of commons in 1641, it must be remem- bered that that earlier division was formed also on religious rather than political grounds, and that as a beginning it must be treated as premature, broken off by a long interval with- out appearance of parties. It must be admitted also that a strong argument can be made to show that what really deter- mined a man's relation to support of the court, or opposi- tion to it, was his attitude, even in this early time, towards the really fundamental issue which has always separated English parties, the question of conservatism or liberal prog- ress. Through all the changes of modern times, in spite of all the special issues that arise from time to time, this seems to be the final deciding test of party position. This it is in English history which determines that, except in times of political disintegration, or when new issues are not yet clearly defined or have not yet made themselves chief issues, there * A. and S., 439-440. THE KING'S SUCCESS 345 shall be but two parties. However this may be, the political parties of modern English history emerge from the reign of Charles II full-grown, standing upon the fundamental principles which have ever since determined their attitude towards special questions as they arise, and familiar with the practices which they have employed in their own internal management and in their campaigns against their opponents. Two things enabled Charles to treat his last parliament, in 1681, with great contempt, dissolving it after a session of a week only, when it showed its determination to go on with the exclusion bill. One was that he had agreed with Louis XIV to withdraw English opposition to French plans on the continent, in return for a pension which would render him independent of further parliamentary grants. The other was the general reaction which had taken place in England against the excesses of the popish plot and the extreme policy of the whigs in the exclusion bill. The opposition party was broken up and driven out of all influence, and was not able to recover itself until some time after the opening of the next reign. The last four years of Charles's life form a period of as absolute government as that of the Tudors, but it was an imperfect and incomplete absolutism. It was conditioned, in the first place, upon the postponement of the king's inten- tions in regard to catholic dissenters. He had learned that these could not be safely allowed to appear, at least not until his political power was secure. In the second place, it was an absolutism without institutional means of expression, em- bodied in no forms, and wholly unrecognized. It existed as yet because of the absence of resistance and of all opposing leadership, and because of the spirit put into forms which could be as easily interpreted in the opposite direction, that is, because of the racial habit of allowing laws to be inter- preted by conventional practice and conventional practice to pass into law. Charles and his brother would have had a task of enormous difficulty in transforming this nascent ab- solutism into one as well based in law and constitution as 346 THE VICTORY CONFIRMED Louis XIV's, but it would be rash to say that from the beginning Charles had made they could not have done it, if they had been willing to let religion alone and had been able to act with sufficient reserve. It would be wrong to say that they were entirely without the advantage of a constitutional beginning. One important element of Anglo-Saxon liberty had not been yet secured — the independence of the judiciary. The puritans in their legislation had given to the judges a tenure during good behavior, quamdiu se bene gesserint, but the legislation had fallen to the ground, and Charles had gone back to the older practice of appointments during pleasure, durante bene placito. He dismissed for political reasons two lord chan- cellors and a lord keeper, three chief justices and six judges, and James II went even farther. Some preparation was also made against the inevitable time when there must be another parliament. The towns were the strongholds of the opposi- tion party and against them the blow was struck. Quo •warranto proceedings were brought against them in the courts, alleging acts beyond their legal powers, and their charters in large numbers were declared forfeited. 5 New charters were granted to them, but with the right of election and municipal government confined to a few persons so that a controlling influence of the crown would be easy. Besides this the art of parliamentary corruption had been in- vented and put into operation somewhat extensively during the reign ; precedent had been created for interfering with the right of petition; and the doctrine of non-resistance had been exalted into almost a necessary article of belief. Suc- cess was probably hopeless at so late a date as the end of the seventeenth centur}', but the sudden death of Charles at an age when many years of vigorous life might still be ex- pected in normal cases was a disaster to the cause of ab- solutism, not uncommon in the history of monarchical suc- cessions, for, in place of the political insight and willingness 5 A. and S., 448-450; Robertson, Statutes, 382-384. THE HABEAS CORPUS ACT 347 to bide his time of Charles, it put the tactless impatience of his brother James. One further statute of the reign of Charles I is of special constitutional importance, the habeas corpus act of 1679.° The middle ages had known a number of writs which had for their object to protect the liberty of the subject against arbitrary arrest and imprisonment. At first, in the thir- teenth century, the writ of habeas corpus could hardly be called one of these, but it was used to bring a person into court for several different purposes — to give evidence, for instance. It is only in the fifteenth century that it begins to be used by the common law courts to protect persons from the growing prerogative jurisdiction of the equity courts, and in the sixteenth that it becomes important as a protection against the increasing powers of the council. The full possibilities of the writ in the way of protection were indeed not realized until after the beginning of the seventeenth century, and we have already seen the first steps taken to develop it in the early part of the reign of Charles I. When the original jurisdiction of the council was ended in 1641, the need of protection was not ended also, for it still retained the power of arrest and imprisonment though not of trial. Experience had shown also that several details in the procedure needed clearer definition. The act of 1679 must not be thought of as having for its object to establish the principle, but, like the legislation on taxation after 1295, to cut off various means of avoiding the principle which had been found dangerous. Not merely were officers holding per- sons in custody required under heavy penalties to make proper and speedy return, but also judges to whom applica- tion for the writ was made were required under still heavier penalties to issue it. The number of courts which could issue the writ was increased, and it was provided that pris- oners not bailable should be brought to a speedy trial. The danger of a demand of excessive bail was not thought of and 6 A. and S., 440-448. 348 THE VICTORY CONFIRMED remained to be guarded against in the Bill of Rights ten years later. It should not be overlooked that the process of impeach- ment, the medieval method of holding the individual minister directly responsible to parliament, was given its perfected and final form in this reign. It would perhaps be better to say that it was perfected just at the time when it was about to be made obsolete by the modern method of enforcing re- sponsibility — the cabinet system. In the impeachment of the earl of Danby, begun in 1679 but never completed, vari- ous points, partly old and partly new, were decided : 7 that the minister could be put on trial on charges known to be unfounded against him but well founded against the king; that the king's written order could not be plead in defence ; that a pardon from the king could not avail to stop the trial — embodied in law in the act of settlement of 1701 ; and that prorogation or even a dissolution of parliament was not to interrupt the proceedings and require them to be begun anew. This last was an application of the principle already adopted in the ordinary judicial business of the house of lords. Though the growth of the cabinet system made im- peachment obsolete as a political expedient, it is still usable as a criminal trial in England and may be so used in the United States though with penalties only of a political kind. A far more effective means of maintaining a parliamentary control over the executive, at least under modern conditions, was developed and improved in the reign of Charles — im- proved to such an extent as almost to constitute its begin- ning — the practice of appropriations. We have seen the beginning of the practice in the fifteenth century, but the beginning remained a beginning of possibility only. It was followed by no substantial growth. Instances had occurred earlier in the seventeenth century of assigning supplies when voted to particular objects of expenditure without creating a continuous practice. Now in 1665 a grant was voted to be ^ Robertson, Statutes, 566-569; A. and S., 439. APPROPRIATIONS 349 used for the war with the Dutch, and this was followed up in 1667 by the appointment of a parliamentary committee to audit the accounts of the treasury, and by the expulsion from the house of the treasurer of the navy, because he had paid out money without a warrant. It was the strict audit- ing of the accounts and insisting that a legal warrant only could authorize the payment of money that constituted the advance of the time, and though there was some interruption of the practice under James, there was no real break. The foundation was securely laid for the changes that followed after his expulsion. Modern Anglo-Saxon legislatures have considered the practice of appropriation, now extended to even minute items of expense, to be one of the most essential sources of their power and have guarded it with the utmost care. It is a check upon government policy, not by calling a minister to account for what he has done, but by rendering action which is not approved of impossible in advance. The full establishment of the right of appropriation should prob- ably be regarded as the last step in the creation of so great a power in parliament over the executive that resistance was hardly possible, and that the cabinet method of responsi- bility, expressed in no law, existing in unrecognized custom only, could come into existence. If the increase in the power of the house of commons through its control of government expenditure was a prep- aration for the setting up of cabinet responsibility, and if in the formation of parties preparation was made for the motive force to operate it, equal preparation was also made in this period of the external or institutional body with which it was to be clothed. The starting-point of this side of cabinet formation was found in the old privy council, and the immediate line of connection with parliament was found in the fact that members of the council had always been members of one house or the other. The council since the close of the middle ages had shown a decided tendency to increase in numbers and at least the beginning of a tend- 350 THE VICTORY CONFIRMED cncy to differentiate within itself distinct ministries, that is, individual members or small committees, in special charge of particular governmental or administrative interests. Committees of this kind go back into the middle ages, and in Tudor times there were at least six of them. With the increasing membership of the council it became more difficult to do business effectirely in a meeting of the whole, and the use of committees continued throughout the seventeenth cen- tury. In addition, it should be noticed that the king was not bound to consult the council, nor any particular mem- bers of it, on any question of policy, and it was also regarded as proper for him to consult, and he often did, members not forming a recognized committee or persons not belonging to the council at all. At the accession of Charles II the size of the council was further increased. The surviving members of his father's council were restored to their places with other royalists, and the number of these was balanced by appointments from the opposing party. At times under Charles the council contained as many as fifty men. But there was no attempt to make the council as a whole a real advisory organ, and the small committee for foreign affairs performed that func- tion more nearly than anything else. Still Charles con- sulted, and increasingly as time went on, with informal or secret advisers, though there was an increasing feeling that there should be a recognized council standing between king and parliament, mediating between the two, and having an influence sufficient to secure that the policy actually followed should have the support of both. This was the idea at the bottom of the plan attributed to Sir William Temple, which was tried after the fall of Clarendon. Mediation was to be obtained by including all parties. The council was to con- tain friends and opponents of the king and neutrals, mem- bers of the old council and parliamentary leaders. The plan could hardly have been successful, even if the king had given it sincere support. NOTABLE CHANGES 351 The modern cabinet was not to originate in a coalition measure. But the attempt shows that the problem which the cabinet was to solve, the necessity of making sure that execu- tive and legislature should follow a common policy, was be- ginning to be understood, and that the privy council was felt to be the institution in which the machinery of recon- ciliation should be found. To this we shall return in more detail in the next chapter. Some things worthy of note begin and some end in this reign. Convocation ceases to tax itself and the right is sur- rendered to parliament. The house of lords as a court of law abandons its original jurisdiction and establishes its right to hear appeals from the chancery courts. Members of juries cease -to be personally liable for the verdicts they render if not satisfactory to the presiding judge. The house of commons establishes its exclusive right to determine taxation free from amendments by the lords. The medieval tenths and fifteenths disappear from taxation. The organ- ization of the war office under a secretary at war begins, and an improved council for foreign plantations for colonial con- cerns. James II could hardly have begun his reign under more favorable conditions than actually existed. The practical power handed on to him by his brother was very great ; it has even been said to have been greater than that possessed by the Tudors. The sympathy and prevailing disposition of the nation was all in his favor, for the reaction against the attempt to exclude him from the throne had been general and deep. The doctrines of divine right and non-resistance seemed almost universally accepted. The opposition was thoroughly disorganized and discouraged and not in a posi- tion to exert any effective strength. James's first acts and words and his apparent restraint made a good impression upon all. The parliament elected under these influences in the spring after his accession, and with the advantage given to the crown by the manipulation of the borough charters, 352 THE VICTORY CONFIRMED was overwhelmingly royalist. He was granted a large reve- nue for life, and parliament seemed ready to do anything in reason which he wished. From such a beginning it was no slight political achievement to have destroyed all his advan- tages in a trifle over three years and have brought himself to the point where he must abandon his throne as a fugitive with scarcely a supporter left. And it was a significant element in this achievement that he had in so short a time transformed most members of the party which from honest conviction had held to the doctrine of non-resistance into advocates of resistance and revolution. It was as true of James as it was of the nation that the leading interests and motives in the crisis were religious. He wished to give Catholicism a better position in England ; it was undoubtedly his hope to make it a legal worship. But the means which he employed and the results, probably secondary to his main purpose, which he accomplished were constitutional. The ease with which the insurrections of Argyle and Monmouth were put down soon after he began to reign, and the possession of a fine army which he did not disband when the insurrections had been suppressed, probably tempted him to go faster and farther than he at first intended. He determined not merely to retain the army, in spite of the national prejudice against a standing army, but also to keep in their offices the catholics who had been commissioned during the insurrection contrary to the test act, an even more serious offence. Before these questions were brought to the attention of parliament in November, 1685, sympathy and alarm had been excited in the country by the persecution of protestants in France by Louis XIV, and especially by the revocation of the edict of Nantes in October, as it was supposed under special Jesuit influence. As there was known to be strong Jesuit influence also at the court of James, naturally suspicion was aroused and faith in any representations or promises of the king's weakened. THE DISPENSING POWER 353 When parliament declined to provide for the army or to relieve the officers from the test act, but adopted an address to the king of the opposite significance, it was prorogued and after a long interval was dissolved. James was not to be turned from his course by the opposi- tion of parliament. The next spring, after providing a packed bench of judges, he secured a judgment in a collusive suit affirming that he had the power to grant dispensations from the statute to any of his subjects. 8 With this author- ization he went on to appoint catholics to office, not merely in the army but to civil office, to the privy council, in the university of Oxford, and even in the English church itself. At about the same time, because he had found himself unable to punish a clergyman who had preached an anti-catholic sermon, he created what was in reality a revived ecclesiastical court of high commission, though taking some pains to avoid the letter of the statute abolishing the former court of that name. Catholics were encouraged to celebrate their worship more and more openly, and when the London mob forcibly objected James brought up his army and settled 16,000 men in a camp near the city. There was evidence enough of the temper of the nation regarding these innovations, but the king did not see and did not understand. By the end of 1686 James had gone far, but his work still lacked a solid foundation. It rested merely on action of the royal prerogative of more than doubtful validity, at least if the nation should ever again be in a position to ex- press and give effect to its own determination. The next move was an attempt to gain popular support. Charles had found that he could not gain the help of the protestant dissenters by relieving them of their religious disabilities by declarations of indulgence. James thought he could. In April, 1687, he issued his own first declaration of indulgence, which granted freedom of worship to all dissenters, prot- » Robertson, Statutes, 384r-388. 354 THE VICTORY CONFIRMED estant or catholic, and did away with all religious tests ior office. 9 For a moment it seemed as if the protestant dis- senters would respond. It was even hoped that a parliament might be elected which would repeal the test act, and manipu- lation of the constituencies was extended from the boroughs to the counties, but the attempt did not succeed. The coun- ties could not be controlled and the devotion of the king to Catholicism became too suspicious for the support of inde- pendents and quakers. At the same time with the declaration of indulgence came the attempt of the king to impose a catholic president upon Magdalen College, Oxford, against the election of the fellows, and his installation by force, which increased greatly the pub- lic excitement and fear. James remained, however, blind to all signs and events moved rapidly to their natural con- clusion. In April, 1688, the second declaration of indul- gence was issued, followed immediately by an order that it should be read in all the national churches. 10 This seemed to the clergy not merely an illegal act of the king's but to require of them also illegal action. The archbishop of Can- terbury and six bishops sent a petition to the king request- ing that the clergy should not be forced to act against the law. The implication that his action was illegal aroused -the intense anger of James, and the bishops were arrested on a charge of criminal libel and lodged in the Tower. Their trial was a travesty of justice, but their acquittal by the jury was not merely received with enthusiastic rejoicing, even in the army, but marks a stage in the development of the right of the jury to render a verdict on the general merits of the case whatever may be the evidence submitted to them. Before the trial took place the birth of a son to James changed the whole situation at a stroke. Until this event it had been possible for the nation to look forward to a not distant time when James's daughter Mary, married to the » A. and S., 451-454. io Robertson, Statutes, 388-391. THE REVOLUTION OF 1688 355 Prince of Orange, both strong protestants, should come to the throne. It was possible to wait patiently in the hope that matters could not be carried too far before conditions would change. Now the possibility was opened of an in- definite line of catholic sovereigns, and it became obvious to all that the nation must aid itself. Immediately after the acquittal of the bishops a written invitation was sent to William of Orange to come to England to take the lead against the king, signed by seven prominent whigs and tories. Even after William landed it might have been possible to avert revolution and the loss of the throne, if James had had a clearer insight into the actual situation and been less ob- stinate in holding to his own course. As it was, he was abandoned by practically everybody and himself abandoned his own cause by his flight to France. James did his best to make the organization of a new gov- ernment impossible by burning the writs which he had pre- pared to issue for another parliament and by carrying off the great seal. But there was no serious embarrassment. An advisor}^ " assembly " was called composed of the lords and of all who had been members of the house of commons during the reign of Charles II, with representatives of the government of London. The assembly advised the calling of a convention parliament, and letters were issued for the ordinary parliamentary elections, though the letters could not be in the usual form of parliamentary writs. 11 The con- vention parliament met January 22, 1689, and remained in active work until August 20, and later continued its work in a second session. Immediately after the acceptance of the crown by William and Mary, it declared itself to be a parlia- ment and its acts valid law, and this was reaffirmed by the second parliament of the reign. It must be remembered that the process of revolution had been made to seem to this gen- eration less startling and violent, and more nearly a per- missible process in extreme need, than would normally be the ii Robertson, Statutes, 105-108; A. and S., 454-456. 356 THE VICTORY CONFIRMED case, partly by the experiences of the century, for many men then living could remember an earlier successful convention parliament, and partly by the extensive study of past pre- cedents which had become habitual. Reference was made in relation to James to the deposition of both Edward II and Richard II. There were grave differences of opinion as to what should be done with the throne at the opening of the convention par- liament. Some wished to restore James with secure condi- tions ; some wished a regent with James as titular king ; others held that James had abdicated by his flight but that the crown at once fell to Mary, with no vacancy ; and others still, that James had abdicated but that the throne was va- cant and the nation had the right to fill it, fixing such con- ditions as would secure good government. It was this last view which finally prevailed, partly because of the refusal of William to accept any other. James was not formally de- posed, but it was resolved " that King James II, hav- ing endeavoured to subvert the Constitution of the Kingdom by breaking the original contract between king and people, having, by the advice of Jesuits and other wicked persons, violated the fundamental laws, and withdrawn himself out of the Kingdom, has ab- dicated the government, and that the throne is thereby va- cant," and second, " that it hath been found by experience inconsistent with the safety and welfare of this Protestant Kingdom to be governed by a Popish prince." The crown was offered to William and Mary conjointly, with succession after the descendants of Mary to the princess Anne and her descendants, and in the third place to descendants of Wil- liam by any other marriage, and was accepted by them. Conditions of succession were, however, not the only con- ditions which the new sovereigns were required to accept. There was added by parliament and accepted by them a " declaration of right," enumerating the arbitrary acts of James and declaring each of them specifically to be illegal. THE BILL> OF RIGHTS 357 In the second session of the convention parliament this declaration, with some additions, was embodied in a statute and adopted as law, and in this form it is known in history as the Bill of Rights. The Bill of Rights, whether regarded historically as the end of a constitutional epoch, or for what it is in itself merely, is the most interesting document of English history next to the Great Charter. 12 It marlcs the end and sums up the re- sults of a struggle which had filled almost a hundred years, in which the very nature of government, the sources of its authority, and the method and channel of its expression, were at stake. These questions as involving the fundamental character of the government were now settled never to be raised again in English history. Yet of all of these questions as fundamental issues the Bill of Rights says nothing. There is in it no statement of what the issues had been, much less any attempt at theoretical justification, or political phil- osophy or generalization. This omission was not because there was no current political philosophy in defence of the revolution. There was a great deal of it in print, and John Locke's Tw.o Treatises of Government, which was published a few months after the Bill of Rights was adopted, was in man- uscript and had been for nearly twenty years. Other coun- tries outside of England which have adopted similar docu- ments have not followed this example strictly. The numer- ous " Declarations of the Rights of Man " adopted on the continent in the revolutionary period a century later are full of speculative philosophy about natural and inalienable rights which was derived directly from the ideas of Locke. In the documents of our own national and state history we have stood between the two, but nearer rather to the English than to the French position. We have put forth many state- ments of natural rights, like that in the preamble to the Dec- laration of Independence, which was derived directly from Locke and not from France. We have called these generally 12 A. and S., 462-469; Robertson, Statutes, 129-137. 358 THE VICTORY CONFIRMED bills of rights, but wo have combined them with sharply prac- tical statements of specific rights and remedies of the English type, like the body of the Declaration of Independence and the first amendments to the Constitution, some of which use the language of the Bill of Rights. Upon these latter we have really depended to secure liberty, and not upon declara- tions of natural right. It is not too much to say that Anglo- Saxon liberty has been created and made secure because the Anglo-Saxon mind has instinctively felt that the affirmation of abstract rights, however emphatic and solemn, protects nothing, but that the end was to be reached as a practical reality by " providing remedies for the enforcement of par- ticular rights or for averting definite wrongs." This is what the Bill of Rights does. It does not state the fundamental issues of the seventeenth century, but, by enum- erating and declaring illegal the specific acts by which James has tried to set up an autocratic royal power, it condemned and made impossible for the future everything that any one of the Stuarts had attempted. In doing so it did what had been omitted in 1660; it gathered the results of the revolu- tion into constitutional form, embodied in a formal document, and made them binding upon future kings. Considering that most of the law stated in Magna Carta has become obsolete, not applicable to modern conditions, while the provisions of the Bill of Rights would be of instant application to an attempt of the executive to recover power, the Bill of Rights is most nearly of the nature of a written constitution of any- thing in E-nglish history. It is not a written constitution. It does not constitute a government and define its powers. It could be" repealed or abrogated by an ordinary act of par- liament. And yet it does put into written form a series of constitutional laws which are fundamental to the Anglo- Saxon system of government. They are probably regarded in the popular mind as so fundamental that, if parliament should ever be tempted to exercise its power to repeal them, THE SUPREMACY OF LAW 359 there would be many who would be inclined to say that it had no Tight to do so. It should be remembered also that the Bill of Rights, con- sidered 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 un- avoidable inference. In the preamble, after enumerating the arbitrary acts of James, it continues : " All which are utterly and directly contrary to the knowne lawes and statutes, and the freedome 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 na- tion 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 recogntion of the illegality of James's acts that William and Mary 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. If the Bill of Rights was severely practical, so was the revolution of which it was the result. It was emphatically a revolution by public opinion, without bloodshed, even with- out conflict or public convulsion. Not merely was it car- ried through quietly, but great pains were taken that every step in it should be legal, or as nearly so as possible. And yet it was a revolution. It was not, and it could not be 360 THE VICTORY CONFIRMED made, legal to declare that a king had abdicated who had not done so and who vigorously maintained that he had not. That was deposition, in reality, if not in form, and the con- stitutional law of a monarchy could hardly provide for the deposition of the sovereign. Other things had to be done which were not legal. According to precedent the conven- tion parliament was not legally a parliament, and it could not make itself so by its own act, nor indeed could the next parliament do so, itself called by a revolutionary king. But it was a revolution fully justified, as a revolution must be if at all, by the higher right of the common decision of the nation which spoke through it. Also in no other revolution is another characteristic common to Anglo-Saxon revolu- tions seen so clearly as in this. Its object was not to throw the nation out of the road which it had been following in the past and set it over into a new track. Its purpose was only to remove obstacles from the way, that the political progress of the people might go on naturally in the same path which for centuries it had been following. And this was what it did effect. It must be added that the effect of this revolution was as great in America as in England. It came as a strong rein- forcement through new channels to the ideas of government which the puritan settlers of the middle of the century had brought with them. The colonists had suffered as much in their charters and in their free governments from the plans of Charles and James as the English at home. Through all the northern colonies they had sympathized deeply with the opposition, and they rejoiced in the success of the revolution. It was, however, through the writings of Locke that the new influence was most directly exerted and longest felt. American political thinking of the eighteenth century was as profoundly and directly affected by Locke as was French, and the thought of these two countries runs so closely parallel, not because they borrowed from each other, but because both learned from the same teacher. LOCKE'S IDEAS IN AMERICA 361 But the fundamental ideas of Locke — the sovereignty of the people, government resting on the consent of the governed, the legislature the supreme power but its power delegated by the people who may withdraw it, the executive not the director but the agent of the legislative — were those ex- pressed and acted upon by the puritans between 1642 and 1660 and built into the foundations of the American colonies. The course of events in James's reign has been followed in rather full detail because it makes clearer than mere descrip- tion in words can do the character of the crisis and what was at stake in it, the stage in which the constitution stood at the time, the serious danger to which it was exposed, and the necessity and character of the revolution which resulted. Bibliographical Note. — W. C. Abbott, The Origin of Eng- lish Political Parties, A. H. R. xxiv, 578, 1919. O. Airy, Charles II, 1904. F. Bate, The Declaration of Indulgence, 1672, 1908. A. V. Dicey, The Law of the Constitution, 1915. G. P. Gooch, English Democratic Ideas in the Seventeenth Cen- tury, 1898. J. Pollock, The Popish Plot, 1903. W. A. Shaw, The Beginnings of the National Debt, Owens Coll. Hist. Essays, 1907. CHAPTER XV THE MAKING OF THE CABINET The reign of William and Mary opened a new epoch in English constitutional history and one quite different from any in the past. The old struggle in the old form was ended. The old issue between the limited and the absolute monarchy, which had dominated more or less openly every epoch of Eng- lish history since the beginning of the thirteenth century, was finally settled. The old absolutist theory, the Stuart interpretation of the constitution, was never again insisted upon by any English king. We shall come later to a time when a vigorous and for some years a successful effort was made by a king, George III, to recover power, but it will not be difficult to see that what he was trying to regain was not what was lost in the seventeenth century, but what was lost after 1688. It can even be said still further that questions involving the fundamental meaning of the constitution hardly arise again. It is two hundred years before a question of the kind that can with any semblance of truth be called fundamental becomes a leading one for the nation to decide. It is doubtful if even that question, the real position of the house of lords in the state, should be considered a case in point, for all that is fundamental in that question was vir- tually decided in 1688. The new epoch starts with the old issue settled, and its chief endeavor constitutionally is to learn how to apply that settlement more and more completely to all the details of government operation, and to devise ef- fective machinery for carrying it out in practice. Its most striking characteristic is institution-making, and the chief institution made is beyond all question one of the most im- 3G2 WHY NECESSARY 363 portant of history, we may perhaps in the end be justified in saying the most important, for its history is not yet fin- ished. The new institution was the English cabinet, not meaning by that the cabinet as a mere institution, but the cabinet system of government: the cabinet as controlled by the modern doctrine and practice of ministerial responsibil- ity. To understand the beginning of the cabinet S3^stem 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 con- trol of all lines of government policy and executive action by the legislative 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 insti- tutional forms through which a legislature could exercise an executive authority which in theory it did not have. Con- stitutional machinery for the practical operation of the com- promise 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 sovereignty of parliament which had resulted from the constitutional advance of the seventeenth century. It would be absurd to suppose that the men of Charles IPs reign, or any later reign, were conscious that here was a practical problem for them to solve. What they were con- scious of at first was some little difficulty in harmonizing the king's policy and parliament's policy upon a common line of action, and such conscious efforts as were made, as in Sir 364 THE MAKING OF THE CABINET 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 ef- forts 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 parliament. The earl of Clarendon, who was for a time one of these min- isters, has described their methods in words which are espe- cially 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 con- ference 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 experi- ence they had and their good parts were hearkened to with reverence. And with those they consulted 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 assign parts to other men, whom they •found disposed and willing to concur in what was to be de- sired: and all this without any noise, or bringing many to- gether 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 ministers and controlled their policy and did not concern himself with parliament's approval of them nor consistently with parlia- ment's approval of his policy. On its side parliament natur- ally regarded the new methods with some suspicion, as evi- dence 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 SLOW PROGRESS 365 responsible except by asserting a direct responsibility en- forced by the old practice of impeachment. The situation in this respect was not changed by the revo- lution 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 supremacy of parliament. But we may be sure that if satisfactory constitutional machinery had been devised 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 un- derstood for another century. With the accession of William III this fundamental ques- tion 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 constitution, 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, espe- cially in foreign affairs, and he never dreamed of allowing parliament any voice, direct or indirect, in the choice of his ministers. 366 THE MAKING OF THE CABINET This change may be described in other terms. In the reign of Charles II impeachment, representing the old form of ministerial responsibility, was a survival, in the scientific sense of the word, destined speedily to disappear, and the new and modern form was foreshadowed on its institutional side in the experiments to find a mediating, harmonizing body between king and parliament. Of these Sir William Temple's proposed reorganization of the privy council is the most famous, but it is not the one from which the modern form developed. That came more directly from the dis- liked and suspected ministerial clique which the king himself formed, though rather from that as it was reestablished under William III than from Charles IPs. The birth of the idea of ministerial responsibility on the other hand can hardly be traced back so far and is to be found coming into existence very slowly after the beginning of the eighteenth century, though the idea was in a sense involved in such an experiment as Sir William Temple's. William III began his reign with a clear recognition on his part that the royal office had been shorn of extensive powers. As it has been expressed by a distinguished historian of the constitution : " The king was to be distinctly below statute ; he was to have no power to suspend statutes or to dispense with statutes ; he could not by his proclamations create any new offence ; he could not keep a standing army in the realm in time of peace without the consent of parliament ; parlia- ment had begun to appropriate supplies ; the military tenures were gone ; he had no powers of purveyance and preemption ; he could not try men by martial law; the judges were no longer to hold office during his good pleasure ; the courts of politicians whereby the Tudors and two first Stuarts had enforced their will were gone, there was no Star Chamber, no High Commission." We may add: he could make no laws without the consent of the nation's representatives; he could lay no taxes ; he could claim no kingship by divine right, for the divine line had been set aside by act of parliament, n THE KING'S REMAINING POWERS 367 and upon that act alone his title rested ; he could hold no man in confinement without a speedy trial ; his ministers and officers were personally liable in damages to any individual if they exceeded their powers, and it was clearly recognized that they were responsible with their lives to parliament for the policy which they carried out, even if it was known to be the king's and not theirs. All these limitations William III knew and accepted. Still the king was by no means a figurehead, and his prac- tical powers were much greater than those of the king today. The whole realm of government policy, the determination of the conduct of the government, of what it should strive for and how it should do it, was in his hands alone. The prog- ress of the constitution had deprived the king of a number of specific ways by which his policy might be carried out or enforced ; in extreme cases of opposition his advisers might be held responsible for that policy ; in appropriations and in the auditing of accounts a far more effective method of con- trolling policy was beginning; if new law were necessary, as would almost certainly be the case if he adopted a new financial policy, recourse must be had to parliament ; but as yet the heart of the matter had not been reached. It was still the executive and not parliament which determined the direction of government policy, and the executive was not yet under immediate parliamentary control. He was not obliged to consult parliament in any way, directly or indi- rectly, in advance of a decision. This was even more true in foreign affairs than in domestic, as it is today for that matter, and in the time of William III foreign policy de- termined domestic more completely than has been commonly the case in later periods of history. Parliament was in the end to secure a direct control of government policy by obtaining an indirect control over the appointment and dismissal of ministers. As yet not even a beginning had been made in this direction. The mod- ern kind of control did not grow out of impeachment. It 368 THE MAKING OF THE CABINET arose from a discovery in the practical operation of gov- ernment, in attempting, as has been said, to bring together in a common policy the king and the majority in the house of commons. William III made the first approaches to the discovery, though it is highly improbable that he had any conception of its meaning, nor did he ever recognize any com- pulsion, not even the compulsion of the existing situation, in his selection of ministers. To the end of his reign he was entirely free in his choice of the members of his privy council. In selecting also those members of it who were to hold the offices of state and so to form the ministry, that is the cab- inet not so much in the later English as in the American sense, his special advisers, he felt no binding obligation to con- sider their relation to the distribution of party strength in parliament. When he did consider it, it was a matter of convenience not of obligation. In other ways too his free- dom in this matter was greater than that of a present-day king. He was not limited to the advice of his ministry. He might and did ask, and be influenced by, the advice of men who held no official relation to the government. He might and did disregard the advice of his ministers. He might and did act in exceedingly important matters, binding the future action of the nation, without seeking their advice at all. The final decision of all questions of policy was his. William III was a limited monarch. He was not, and could not possibly be, an absolute king of the type of his perennial opponent, Louis XIV, but the English constitution had much growth to make before it should reach the kingship of the twentieth century. At the accession of William and Mary the two political parties, whig and tory, had as definite existence and were as clearly distinguished from one another as at any later time, and party spirit was as bitter. William's first parliament, the convention parliament, was strongly whig, but he believed not merely that he could form a successful government by uniting both parties in the ministry, but that he ought to NO OFFICIAL CABINET 369 do so, that his government would then be stronger and that he would be free from any danger of being the king of a party or a faction. If the idea which was half consciously held in Charles IPs time, that the ministry should be a mediating body between a powerful king and a powerful parliament was to prevail, it was very likely a necessity of human nature to move towards its realization first of all by working out the experiment of a coalition ministry. At any rate it would seem, in the absence of much experience, a reasonable method of getting a mediating body. We must remember also that there was at the beginning no such definite combination of officers into a distinct group as we have in the cabinet. There was a privy council which was a definite body. There were various recognized committees of the privy council, and had been for many generations, which had charge of distinct government interests, but the incipient cabinet was some- thing different from these, something less formal and au- thorized. There was a group of executive and administra- tive offices of more or less high rank and power whose holders belonged to the privy council, and who sometimes had co- hesion enough to stand together against opposition attacks in parliament. But there was no definite notion as yet that these officers formed an organized body within, but distinct from, the council, having as a group a special, or even a semi-official, relation to the formation and direction of policy. A given man was put into office because he was an influential leader in parliament and the nation, and the king asked his advice for the same reason, but he grouped together as he pleased those men whom he wished to consult in a body, leav- ing out some the great office-holders and including on occa- sion some who were not among them. The whole conception was still rather individual than corporate. When men did get any glimpse of a definite body seeming to stand apart from the council and together enjoying influence upon gov- ernment, it was to condemn it as improper and dangerous. As a matter of historical fact the change in both these par- 370 THE MAKING OF THE CABINET ticulars, the recognition of a corporate cabinet and of its usefulness instead of danger to the constitution, was wrought out by experience with coalition ministries. William's experimenting began with his first ministry. The convention parliament was strongly whig, but the offices were filled with tory as well as whig leaders. If the belief was that the coalition would tend to harmonize the two parties the result must have been a disappointment, for factional quarrels were common both in the ministry and in parliament. The first election of the reign, in 1690, gave the tories a majority, and ministerial changes followed by which the number of whig officers was reduced and of tory in- creased ; but if the result was " greater harmony between the parliament and the court," the effect was not striking enough either to teach the lesson to be learned or to change the prac- tice of coalition ministries. On leaving England for Ire- land in the same year, William appointed, to assist the queen during his absence, a special council of nine, made up almost equally from the two parties. Some modifications of the ministry in 1692 are not of par- ticular importance, but with 1693 began a series of changes the significance of which has sometimes been exaggerated. The earl of Sunderland, who seems to have been for some time a believer in that policy, is said to have urged upon the king the wisdom of making up his ministry entirely from one party, in this case from the whigs. By degrees that was done, and by 1696 the cabinet was formed which was known as the " junto," a name which implied not merely that the combination was noticed but that it was not approved. The election of 1695 returned a whig house of commons, but the junto cannot be regarded as opening the continuous history of the modern cabinet, for when the election of 1698 went the other way the ministry felt no obligation to resign, and the necessary connection between cabinet and parliamentary majority was not recognized for many years. The election of 1698, however, demonstrated the suprcm- PROBLEM OF RESPONSIBILITY 371 acy of parliament over king, when it thought the matter important, for the policy of retrenchment and reduction of the army which it adopted, with unhappy results, was op- posed to the strong desires of William, though he felt obliged to yield. In the remaining changes of William's reign no new principle or practice was introduced. The ministry be- came more tory, but the insolent acts of Louis XIV united the nation, including the tory party, in support of William's foreign policy, which led to the war which he did not himself live to conduct. The total result of William's reign, which he passed on to his successor, Queen Anne, can hardly be described as more than tendency, but in one respect it was a tendency which had long prevailed and could no longer be successfully opposed. This feature of the result was the tendency to commit the control of national affairs to a small group within the council composed of the holders of the great offices, a group distinct enough to be often recognized and given a name, but not authorized nor even permitted by any law. The great step remaining to be taken after this, in the formation of the cabinet system of government, was to discover and to carry into effect in practice the relation between the directing group of ministers and the parliamen- tary majority. Naturally, as they were as yet unconscious of the relation- ship, this was not the difficulty which troubled contempor- aries. What seemed to them the great danger, in the change which they were vaguely conscious of, was the secrecy of the cabinet action and the difficulty of holding the members responsible for their advice to the king. Impeachment, which was the medieval method of holding ministers to a di- rect responsibility to parliament, had only just been put into its perfected form. But since the supremacy of parlia- ment, which had been established in 1660 and confirmed in 1 688, was not direct but indirect, and was not legally recog- nized, impeachment was a less suitable method of control than it had been. What was needed to make the new posi- 372 THE MAKING OF THE CABINET tion of parliament effective was not a means of punishing ministers for what they had done, but a means of making the authority of parliament effective throughout the process of deciding what to do. Only in such a way could there be exercised a real supremacy which was nevertheless indirect. Naturally also the men of the time did not realize this need. The whole process of this most important constitutional change was unconscious, and this fact must never be over- looked. What contemporaries did think they perceived was that they were losing the means of holding ministers responsible. Impeachment seemed to be slipping out of their hands and nothing taking its place. Early in the reign, in rather stormy debates on the mismanagement of the war by the gov- ernment, in the autumn of 1692, members of parliament bitterly attacked the cabinet as not belonging among Eng- lish institutions : " not to be found in our Law-books," said one member; "that has not been the method of England," said another ; and as avoiding responsibility by the secrecy of their advice ; " you cannot punish them because you have no light on their actions." That ministers should be re- quired to sign the advice they gave was urged by several members. In the next year's session, when the commons were made angry by William's veto of the bill excluding office-holders from the house, it was suggested that the king himself could be coerced by refusing to grant money. Im- peachments were several times threatened, but none attempted until near the end of the reign in 1701. Impeachment had been devised in the struggle between king and parliament over the old issue, the seat of sovereignty in the state. Its purpose was, exactly like that of chapter 61 of Magna Carta and every other expedient of the old type, to hold the king to a real responsibility without the danger of civil war and revolution which would result in those centuries, and perhaps at any time, from holding him to a formal responsibility. For this purpose it was the most IMPEACHMENT OBSOLETE 373 effective of all the older expedients, though all of them were in a way successful, when the king did not obstinately in- sist upon his own responsibility. But that issue was now settled. It never reappeared after the revolution of 1688. The real issues were no longer those of a fundamental in- terpretation of the constitution between king and parliament, but those of purpose and policy in the daily operation of government between the leaders of groups of opinion in the nation whose equal loyalty to the constitution was uncon- sciously accepted early in the period. In such a situation it was instinctively felt that it was an unworthy use of a party advantage to subject the leaders of the opposite side to a criminal prosecution and, though it was not yet seen what could be used in its place to enforce responsibility, im- peachment was tacitly dropped. The same fate overtakes the royal right of absolute veto during the period of this chapter and for the same reason. William III made use of this right four times, always ex- citing thereby some indignation on the part of parliament; and Queen Anne used it once. But it was as out of harmony with the new phase of constitutional growth upon which England had entered as impeachment. The one was a weapon of parliament against the king, and the other of king against parliament in a conflict of the old sort between executive and legislature. But conflicts of the old sort were no longer possible. Conflicts of the new age were not to be between legislature and executive for supremacy in the state, but between different groupings of public opinion represented by parties in the legislature ; and both the nominal executive, the king, and the real executive, the cabinet, were to be wholly dependent on the legislative result. The veto has never been used since Queen Anne's time, but there was much discussion a few years since of the king's right to use it in order to com- pel the submission of questions of special importance to a popular vote or referendum. In the last year of William's reign a constitutional act of 374. THE MAKING OF THE CABINET almost equal significance to the Bill of Rights was adopted by parliament — the Act of Settlement. 1 It had become necessary to resettle the succession to the crown because of the successive deaths of Queen Mary and the duke of Glou- cester, Anne's last surviving child. In this necessity parlia- ment passed over all the intervening heirs to the throne, upon the principle of strict hereditary succession, who were catholics, and declared the next heir to Anne to be the elect- ress Sophia of Hanover, a granddaughter of James I and the nearest protestant among the descendants of the ancient kings. In principle this was an assertion of the right of parliament to determine who should be king no more extreme than that made in the Bill of Rights, but it was more striking because the number of possible heirs passed over was greater, and the heir selected was in a more remote degree related to the reigning sovereign. Greater violence seemed to be done to the right of the direct line. It was an emphatic repetition of the principle that the throne of England was not held by divine right. The princes of the house of Hanover, who came to the crown by virtue of this act, have several times publicly recognized these facts and have declared that their only title to reign is the consent of the nation. Advantage was taken of the fact that the succession must be settled to include in the act some constitutional enact- ments of the nature of those in the Bill of Rights. The ten- ure of judges was at last made by law to be during good be- havior, and further they were to be removable only on an address from both houses of parliament. It was also made law that a pardon could not be plead to bar an impeachment. Two other provisions were of more doubtful wisdom. In them parliament 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 these provisions had been put into force, would have succeeded in doing so. One of them required that all business of the council should iA. and S., 475-479; Robertson, Statutes, 151-156. HOSTILE LEGISLATION 375 be transacted in the privy council and not elsewhere, that is, not by the suspected junto or cabal alone, and that the members of the council should furnish the evidence of their responsibility by attaching their signatures to the resolu- tions to which they consented, and the other forbad the elec- tion to the house of commons of any officers or pensioners 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 ap- parently devisable, for operating a republic under the forms of a monarchy. Neither of these provisions went into force. It was felt that the first unduly restricted the independence of ministers in giving advice to the king, and it was repealed soon after the accession of Anne. 2 The purpose directly intended by the second was not merely to protect the house of commons from the influence of the king's ministers, but to cut off one of the most effective means by which the king had sought to control the action of the house, through office-holders and the use of offices and pensions as bribes. William III himself had made free use of this means. It was soon felt, however, that the act had gone too far in excluding the members of the ministry from parliament ; that the practical inconven- iences would more than outweigh the gains. The provision was repealed at the same time as the first, but two years later a new act on the subject was passed which with some modi- fications is still in force. It provided that no person holding any office created after October 25, 1705, or certain other offices named, could sit in the house of commons, and that any member accepting any other office than these should vacate his seat, but might be reelected. Since that date new minis- terial offices have been placed in the second class by the statute creating them. Had the two requirements of the 2 A. and S., 483-485; Robertson, Statutes, 185-186. 376 THE MAKING OF THE CABINET Act of Settlement remained in force, the future development of the cabinet, under the most favorable conditions remain- ing, if it had continued to develop at all, could have led only to such a result as was later arrived at in the American cabinet, an administrative and advisory cabinet merely. It could not have arrived at cabinet government and ministerial responsibility of the modern kind. As we shall see, the king was not by this act entirely deprived of the means of influ- encing the house of commons illegitimately, but the prin- ciple was established and good progress made in applying it. While the chief constitutional significance of William's reign is to be found in the progress made towards cabinet government, there are other steps of advance which should not be overlooked. Religious toleration was brought a little nearer. Efforts made before 1688 to relieve protestant dis- senters from some of their worst disabilities all failed, but in the first session of the convention parliament a toleration act was passed. 3 The Clarendon code was not repealed, but protestants, except unitarians, who would take the oaths of allegiance and supremacy and make the declaration against transsubstantiation were relieved from the penalties against conventicles and absence from church. On the same con- ditions and after signing the thirty-nine articles, except three and part of another, dissenting ministers might preach and administer the sacraments, and their meeting-houses were protected if registered. There was a relapse towards in- tolerance under Anne, in the act forbidding the " occasional conformity " of dissenting office-holders and the schism act against dissenting schools, but these were both repealed in 1718, and soon dissenters were in practice allowed to hold office, annual indemnity acts being passed to relieve them of penalties. The toleration act was not extended to Ireland, and the result was the great Scotch-Irish immigration into the American colonies in the thirty years following the revo- lution of 1688. s A. and S., 459-462; Robertson, Statutes, 123-128. CONSTITUTIONAL LEGISLATION 377 The annual meeting of parliament was secured after the revolution, by limiting the force of the mutiny act for the organization and discipline of the army to one year only, and by a similar limitation of the validity of appropriations. 4 In 1694 a triennial act was passed, after being once vetoed by the king, requiring a parliament to be held at least once in three years, and also limiting the life of any parliament to three years. 5 In 1695 the house of commons refused to re- new the licensing act, which had created a censorship of the press and which had recently expired. Since that date the press in England has been in law and form free, and has actually been without censorship, but a stamp act was passed under Anne which bore heavily on weaker publications and acted as a restraint on new ones. The development of the newspaper press after the revolution was, however, rapid, and its use for political propaganda and to give voice to po- litical opinion after the modern manner was greatly in- creased. Harley, in the reign of Anne, is said to have been the first minister to use the press for political purposes. An important act was passed in 1696 regulating trials for treason, giving to the accused greater securities, and clearly requiring two witnesses, not necessarily to the same overt act, as the American constitutional provision requires, but, it might be, to two acts of the same treason. 6 The financial legislation of the reign, fixing the " civil list " 7 and more especially organizing a permanent national debt and estab- lishing the Bank of England, while not strictly constitu- tional in character, had important constitutional conse- quences in rendering the results of the revolution secure and strengthening the hands of its supporters. The reign of Anne constitutionally is a natural continua- tion of William's along the same lines and with the same 4 A. and S., 457-459; Robertson, Statutes, 108-115. s A. and S., 471; Robertson, Statutes, 138-139. e A. and S., 472-4-75; Robertson, Statutes, 140-144. 7 A. and S., 456. 378 THE MAKING OF THE CABINET characteristics. Rather more than in William's reign the growth of cabinet government is the chief interest, but it is a growth not marked by any sudden or decisive advance but by slowly increasing understanding of how cabinet govern- ment is to be worked and what it implies. At the accession of Anne the whigs had a majority in parliament and the cabinet was one of William's type, made up from both parties. Anne herself was in inclination rather strongly tory, and so were her especial friends, Marlborough and his wife. Un- der this influence of personal preference the queen began al- most immediately to make the ministry over, until it became with slight exception wholly tory. The first election re- turned a strong tory majority, but the election followed the cabinet change, which was made with an existing whig ma- jority, and could have no influence upon it. The cabinet thus formed remained nominally in power until the great change in 1710; that is, it remained under the control of the two men who were most influential in its formation, Godolphin and Marlborough ; but it underwent many internal changes which in their general character are important. First the more extreme tories were removed and more moderate ones put in their places. Then Marl- borough found the whigs more inclined to support the war, and tories were removed and the ministry became more whig. Finally, in 1708, an intrigue of Harley's a leader of the moderate tories, to make himself more powerful, failed and resulted in the removal of the moderate tories, and the ministry became entirely whig and remained so until its fall in 1710. The sudden and complete fall of the ministry in 1710 is one of the most dramatic events in early party history. It was brought about, the opportunity was given to the queen to dismiss it, by the impeachment of Dr. Sacheverell, 8 a tory preacher, who on Guy Fawkes's day in 1709 glorified, in a sermon in St. Paul's, the old extreme tory doctrines of non- 8 Robertson, Statutes, 421-437. DEFENCE OF THE REVOLUTION 379 resistance and passive obedience, and violently attacked the principles on which the revolution of 1688 had been carried through. The ministry did not anticipate the violent re- action of public sentiment which they were about to produce, and they determined to impeach him as a vindication of the whig principles of the revolution. Burke believed the cabinet justified in what it did. The impeachment of Dr. Sach- everell, he said, " was carried on for the express purpose of stating the true grounds and principles of the Revolution." Most students of the period have agreed with Burke. The ministry could not neglect its own defence against so deadly an attack. The trial was pressed upon the fundamental issue, the right of the nation and of parliament to resist the king as a principle and as acted upon throughout English history, and the tory answer in defence was obliged virtually to admit the main point and to avoid the conclusion by as- serting that the supreme power which must not be resisted was the legislature, not the executive. The ministry suc- ceeded in its chief purpose, but its success was fatal to itself. The feeling in the country in general was so violent against the cabinet that the queen was encouraged to turn out j the whigs, whom she disliked, and bring in a strong tory ministry. " A change so complete and a ministry politically so homogeneous had not been constituted since the revolu- tion." This cabinet, with minor changes, remained in office to the end of the reign. In each of the three chief cabinet changes of Anne's time the general election which soon followed returned a strong majority for the new ministry, but the change was made with the existing majority against it, by a direct exercise of the prerogative of appointment and dismissal, sometimes as an expression of the queen's own personal like and dislikes, and intrigues of the queen's bed-chamber still had influence on the making and unmaking of ministries. More frequently and in a more marked degree than William III had done, Anne accepted ministers and ministries that she did not per- 380 THE MAKING OF THE CABINET sonally like or even to which she was strongly opposed. She did it, however, not because a parliamentary majority would have insisted upon the change as a condition of doing busi- ness with the ministry, but because she and her ministers found it easier in this way to secure the support they de- sired for the war. It may be said that this is practically the same thing, but we can say so because the later history has taught us the identification. The people of Queen "Anne's time did not yet see the connection beween the three elements of the problem, the parliamentary majority, the cabinet, and the successful carrying out of government policy. The events of her reign and the experience gained, however, were rapidly making clear both the dependence of cabinet and policy upon parliament and the greater strength and stability of a party ministry over a coalition. It must be added that Anne's lack of interest in political affairs and lack of knowltdge of international questions left business of great importance to be settled by the cabinet, as had not before been the case, certainly not under William. The act of union with Scotland 9 adopted early in 1707, may be considered an extreme instance of the exercise of con- stitutional powers by parliament since it brought the legis- lative independence of Scotland to an end without direct authorization by the people or expressed acceptance of the measure. The British theory of the sovereignty of parlia- ment, however, makes the act entirely within its competence, I and there was no doubt but that the people of both nations were in favor of the step. It served as a precedent for no extension of the powers of parliament. Scotland received representation in both houses of what thus became the British parliament, and retained complete control of ecclesiastical matters and of the judicial administration of the law in the courts. The queen made an unusual but still unquestionable use of her prerogative in the creation of twelve peers at once, in 1711, in order to secure a tory majority in the house of o A. and S., 479^«3: Robertson, Statutes, 162-179. SUMMARY OF PROGRESS 381 lords, and she exercised her veto power once, the last time in history that it was used. In the case of Ashby vs. White and of the Aylesbury men against the returning officers for rejecting their votes, the house of commons failed in what was really an attempt to fix the qualifications for suffrage in parliamentary elections by their action alone rather than by statute. 10 In 1711 an act was passed requiring a prop-' erty qualification of members of the house of commons, £600 per year derived from land for county representatives, and £300 also from land for borough members. This act re-) mained in force for more than a century. Great progress has been made in these two reigns in the" transition to cabinet government, but greater still remained to be made. At the death of Anne the cabinet, as a definite body of office holders acting together and influencing on one side the policy of the government and on the other the action of parliament, had in practice taken the place of the privy i; council as the organ of advice and of the direction of policy in all the ordinary and almost all the extraordinary business of the state. It was no longer generally looked upon as an illicit, secret cabal or junto, dangerous to the power of par- liament and to be kept under and if possible legislated out of existence. It was not yet seen how responsibility could be enforced upon its members except by impeachment, nor was the idea or consciousness of party government any more developed than that of ministerial responsibil- ity, but it may be said that the existence of the cabinet as a recognized piece of government machinery had now been at least tacitly accepted. The sovereign was stilF regularly present at the deliberative meetings of the cabi- net, and his will must have been on many occasions a com- >'... polling influence in the decision reached. On the other side, in the relation of cabinet to parliament, there was much still to be learned. There was as yet no prime min- ister of the modern sort, as recognized head of the cabinet io Robertson, Statute^ 408-42&.. ,/■ 382 THE MAKING OF THE CABINET to whom the other members must be subordinate, and who especially stood for the whole before parliament and the nation; it was not yet understood that the members of the cabinet must be a unit on questions of policy ; the coalition cabinet was as normal as any other and in practice more frequent, and even when the members were all from the same party it was not considered necessary that they should all stand together ; a measure introduced by a member of the cabinet, and having the support of the ministry, was not yet a government measure involving the fate of the cabinet by its success or failure. As a consequence, the corporate re- sponsibility of the cabinet to parliament was not yet under- stood, that when defeated in the house of commons the ministry as a whole and the party should lose its control of government, and a new ministry and a new party come into power. The country had to work through to this prin- ciple by the further experience of a whole generation, and this experience and not the earlier is really that by which the way to an understanding of cabinet government and ministerial responsibility was opened, though it was another generation still, and more, before the advantages of the new method of government were fully appreciated. Bibliographical Note. — G. B. Adams, The Origin of the English Const Hut ion, 1020. Sir W. R. Anson, The Law and Custom of the Constitution, 1907-9; The Cabinet in the Seven- teenth and Eighteenth Centuries, E. II . It. xxix, 56, 325, 1914. M. T. Blauvelt, The Development of Cabinet Government, 1002. E. I. Carlyle, Clarendon and the Privy Council, E. II. R. xxvii, 251. E. Jenks, Parliamentary E.ngland, 1903. H. B. Learned, The President's Cabinet, 1912. W. A. Shaw, The Beginnings of the National Debt, Owens Coll. Hist. Essays, 1907. H. W. V. Tcmperley, Diner and Outer Cabinet and Privy Council, E. II. R. xxvii, 682; Poioers of the Privy Council in the Seventeenth Cen- tury, E II. R. xxviii, 127. E. R. Turner. The Development of the Cabinet, A. II. R. xviii, 751, xix, 27; Committees of Council and the Cabinet, A. II. R. xix, 772. CHAPTER XVI THE GROWTH OF THE CABINET The accession of George I marks the beginning of an epoch as formative in the development of cabinet government as the epoch which begins with the accession of James I in the history of the general constitution. The cabinet in form and method of operation was ready for a great advance. The necessary conditions had been thoroughly prepared. The mechanical form was virtually fixed. Experience enough had been gained to serve as a guide and to insure that few opportunities offered in the new circumstances of the time would be missed. But it is exceedingly important to keep in mind the fact that still, and for a long time to come, the progress made had to be progress with no definite aim, with no conception, even by the most far-sighted states- men who were leading the advance, of the result towards which they were reaching. This period of creative progress with no perception of the end may be said to close with the dismissal by George III, in 1783, of the ministry of Fox and North, and the appointment of the younger William Pitt as prime minister, in the teeth of a hostile majority in the house of commons. This date is too early, as we shall see, for a full understanding of the cabinet system, but it marks well enough the time at which the creative process is at an end. The result then reached only needs to be understood in all its bearings for the completion of the system. The circumstance which introduced an epoch of peculiar progress, and made certain that it would go on uninter- ruptedly for fifty years, was the coming to the English throne of a foreign dynasty, the house of Hanover. George I was 383 384 THE GROWTH OF THE CABINET not merely a German. He was well past fifty years of age when he became king of England. His habits and interests, his likes and dislikes, were firmly fixed. He would have found it very difficult to adapt himself to the strange con- ditions of his new kingdom even if he had earnestly tried to do so, and he had no wish to try. The great things in life to him, apart from certain personal pleasures, were the ha'penny intrigues among the petty states into which Ger- many was then divided. He desired the crown of England for the increased prestige, military strength, and money which it might bring him, but he really cared more to gain a little territory for his electorate, or a better military position in north Germany, than to defend the king's pre- rogative in England or to check a constitutional development which was destroying the royal initiative. There is another matter which seems an insignificant accident but which was really a prime factor in the result. The king knew no Eng- lish. Scarcely one of the great ministers with whom he must do business during his reign knew German. Conversa- tion even with Walpole had to be carried on in a Latin which was not very fluent on cither side. Difficulties which George had in understanding English ways and methods, his lack of interest in learning the ins and outs of the constitution, needed only the added difficulty of talking things over freely with his ministers to make him quite willing to turn over to them the ordinary running of government without inter- ference, and even the determination of policy in man}' cases where German politics were not directly concerned. It was the usual opportunity offered by a faineant king, who in this case was a faineant king less by nature than by circum- stances. George II, who came to the throne in 1727, had more interest in England and a better knowledge of English affairs than his father, though still strongly attached to Hanover, but he was a man of very moderate abilities. The process of transferring the whole control of government policy to THE FIRST TRIME MINISTER 385 the cabinet had gone on very rapidly in his father's time, and had been carried far. It would have required a decided effort to turn the current back, and George did not see how to do it. Sir Robert Walpole was firmly fixed in power, and continued so for a dozen years after he came to the throne. Besides this, George II was rather easily managed by his queen, though he did not suspect the fact. She was a de- voted friend of Walpole's, and she also saw clearly that through his control of the house of commons the easiest way was opened of getting things done — the root really from which the cabinet system grew. It must be added also that George II showed a rather surprising sense of obligation to respect the constitution, when he was convinced that a constitutional principle was invoked. Altogether, then, his long reign of thirty-three years was a period indistinguish- able from his father's, of hardly less rapid and of as unin- terrupted growth of cabinet government both in methods of operation and in the understanding of the system. But if the period was very favorable to the creation of cabinet government from the character of the kings who reigned, they did no more than furnish opportunity. Im- pulse and direction came from the great minister of the age, Sir Robert Walpole. The first in a long series of great English ministers who have found their field of action in the performance of a double function, the leadership or management of the house of commons and the exercise or direction of the national executive, Walpole was typical of his successors in the position which he created. He cannot be called a brilliant man as his rivals Bolingbroke and Car- teret can be. Few of his successors have been brilliant men. His qualities were rather solid ; his thinking was clear and thorough ; his speeches won votes less by their eloquence than by their lucid and convincing argument. He was re- markable, at a time when political science and political economy had hardly begun to be and when careful observa- tion of past experience was not common, for the. number 386 THE GROWTH OF THE CABINET of different problems confronting the practical statesman of which he saw the essential solution as later times have seen it. But he had no guiding theory of government. Ap- parently he did not see the particular problem to be solved as one of a series constituting a scientific whole, but merely as an immediate difficulty to be overcome ; he did not attack his problems as a philosopher but as a practical worker ; but his solutions fit into the scientific whole. Wal- pole was ambitious of power, but not for personal gain so much as for the opportunity to perform the service which he believed he could best perform. His determination to maintain himself in power, and his clear perception of the time when his power was at an end, both had decided influ- ence in cabinet development. Walpole has been called, and he was, the first prime min- ister. His establishment of this position was one of his chief contributions to the progress then going on, but we must remember again the unconscious character of the progress, and also that for nearly two hundred years there was no such office formally recognized. Contemporaries did per- ceive that something of the kind was taking place, without the ability to reason very much about it, and it was regarded with dislike and suspicion as the early stages of the cabinet had been. The term of prime or premier minister carried something of the same condemnation as junto or cabal. Walpole himself vigorously denied that the term could be applied to him or that he occupied such a position. The important thing is that the stage of growth in which the cabinet stood at the time demanded a prime minister to control its policy, to insure unity of action, and to enforce a common responsibility, and that the dominating person- ality of Walpole could hardly help furnishing the leadership which was necessary. No office of prime minister was cre- ated ; it was some time before it was understood that some one member of the cabinet determined who the other mem- bers should be and what offices should be regarded as belong- GROWTH OF POWER OF COMMONS 387 ing to it, and was entitled to the obedience of his colleagues or to their resignations. It was not much more than a headship from force of circumstances that Walpole estab- lished, but it was a headship so clearly implied in the logic of the situation that once brought into existence it was seen to be necessary, and it became a permanent feature of the cabinet. It is naturally the progress in the evolution of the cabinet during the first half of the eighteenth century that we are inclined to emphasize, but there was necessarily involved with this another change which should not be overlooked. The process of advance, at least from 1715 on, was a double process. It comprised not merely the transfer of the su- preme authority in the immediate formation and execution of policy to the cabinet, but also the transfer of the final determinative authority in the state to the house of com- mons. As soon as the cabinet found itself able to fix the policy of the government independently of the king, it found that its policy must have the approval of the house of com- mons or it could not carry it out. In other words, the cabinet wins its position in the modern constitution, not as an independent institution, but as the instrument of par- liamentary supremacy. These two changes were clearly in- tertwined in process and result. Each was dependent on the other. Neither could go beyond a certain point unless the other advanced with equal step. What happened when this double result was fully reached was that the compromise of 1660 was now embodied in the working-constitution of the state. The sovereignty of parliament had found the institutional means through which it could make itself actually effective in the government of the state, and as a consequence, because in truth the sovereignty of parliament rested upon the ulti- mate sovereignty of the people, there was a decline in the practical power of the house of lords as well as of the royal prerogative. King and lords in form lost nothing; it was of the nature of the compromise that they should not ; but 388 THE GROWTH OF THE CABINET the real power of decision in every important matter had passed to the house of commons. The fact showed itself during the period in more ways than one, but it is interesting that Walpole was instinctively aware of it and, the first English minister of high rank to do so, steadily refused promotion to the upper house until after his fall from power. With the settling of the executive power in the cabinet and of the sovereign authority in the house of commons, another feature of modern democracies also became a more definitely effective and controlling force in public affairs, what we call party government ; that is, the vital connection between organized political party and the new executive and the new sovereign power. The determination of the policy which the nation should follow by a group of the chief political leaders of the time, who would act together as a unit, implied of necessity two things. For one thing it implied that they all of them held to certain tommon fundamental principles of government which made it easy for them to unite upon" a special line of policy ; and second it implied that a majority of the house of commons, and perhaps of the nation, could -be for the same reason easily inclined in the same direction. Often, of course, in history the direction of impulse has been the reverse, and the de- clared opinion of the nation, or of the majority of the house of commons, has imposed itself upon the cabinet, but the principle is the same. Leaders of the chosen way of thinking are always found who are able to form a cabinet and carry the policy into execution. The party holding to other principles and advocating another policy must wait until it can obtain a majority before it can take its turn as executive. This is party government, at least as we have known it in the past, and this is the period of our history when it begins its continuous operation, as forming the effective government. If the three elements of this situation, the cabinet as the executive, the house of commons as the ultimate sovereign, WHIG SUPREMACY 389 and party control, have been taken up in this order, the fact must not imply that it is the order of time. No one is first in time; no one is last. The three come in together and grow together, as the necessarily correlative elements of a single situation. Also it must be understood that, as will be explained later, this was not the age of the creation of democracy. It was, however, the age in which the machinery, which so far in its history democracy has used, was brought into existence as we still have it. At the moment when Queen Anne died, the tory party was in possession of the government, but the suddenness of the queen's death and the energetic action of certain of the whig leaders prevented any attempt to restore the Stuart family. The known inclination of the party, however, to such a step made it impossible for the new king to trust them with the conduct of affairs. The whigs came into power and con- tinued to hold the reins of government for fifty years. But the tories were not ousted from power alone; they were ousted from public estimation as well. Some of their ablest leaders fled the country for fear of punishment, and for many years the party hardly had an existence as an organ- ized party. It was also some years before a strong opposi- tion to the whig cabinet could be formed in the house of commons, and when formed it was made up and led in large part by malcontent whigs. When the party recovered itself as a definite tory party, it was found to have advanced mate- rially beyond the standpoint of 1714. It no longer ques- tioned the results of 1688, or attempted to undo them, but it regarded itself in the eighteenth century as the peculiar supporter of the king and what remained of his power, from which it passed easily into its nineteenth century attitude as a brake upon too rapid advance. In the whig governments of this long period there were many changes of ministers, but only a few of them are of interest for our purpose. In George I's first cabinet, the leading minister was Lord Townshend, and Walpole held 390 THE GROWTH OF THE CABINET at first only a minor office. He speedily, however, revealed his qualities and in hardly more than a year came to be re- garded as the strongest member of the cabinet and was made chancellor of the exchequer. In 1717 a split in the party occurred, and Townshend and Walpole retired from the cabinet. Walpole returned to office in 17£0, but it was only in 1721 that his great ministry began, which continued for twenty-one years and formed the period of the especially rapid development of the cabinet system. Not long after the accession of George I a change took place in the method of doing cabinet business, which in this stage of its growth gave it a decided impetus. Heretofore the king had always attended the meetings of the cabinet as a permanent member, taking part in its discussions and hav- ing a voice in its decisions. So long as this continued to be the case the transfer of the complete responsibility for gov- ernment policy to the cabinet could not be made, because the king's opinion must always be, or be felt to be, of pre- vailing weight. The practice ceased soon after George I came to the throne, not from any theory nor because it was felt to be desirable, but merely because the king was un- interested and bored by discussions which he could not under- stand from his lack of English. By what seems a mere acci- dent a change was brought about, essential to the independ- ence of the cabinet and to its full control of government, but one which it would have been exceedingly difficult to carry through if it had been deliberately attempted with the con- scious knowledge of the sovereign. Of course this is saying no more than is true of almost every step of cabinet history. Scarcely anything was in- tended in advance or deliberately attempted. It is true of Walpole's first contribution to the building up of the cabinet system, the creation of the position of prime min- ister. What he did in this direction began even before the be- ginning of his long ministry, before he became prime minister, not by his own choice nor by the choice of his colleagues, MINISTERIAL UNITY 391 but by the force of his personality, which made him naturally the leader. That is all that the premiership was in the first stages of itr history, though its history developed rather rapidly. It was nothing more than the position naturally created in such circumstances by superior qualities of leader- ship, in the cabinet deliberations on one side and in the management of the house of commons on the other. It had no connection in its early stages with any particular office. When the position was once created, however, it was in- stinctively felt to be necessary, and it was in consequence easily kept in existence by men in whom these qualities were less conspicuous, or who possessed them only in part, though its necessity was not formally accepted for a long time. The next step to be noticed was more deliberately taken, but it is one that could not be seen to be needed until the cabinet had secured control of government policy and the premiership was well in existence. Only then could it be felt that the ministry as a unit must support the policy deter- mined upon, and that in consequence it owed a corporate responsibility to its head. Walpole's most famous measure, the one which shows us most clearly the capacity which he had beyond other men of his time of thinking through a tangled problem, was his excise bill, a proposal for tax re- form made in 1733. The merits of the plan do not concern us, but the fact that an intense public opposition was excited against it which was actively supported by members of the ministry and important office-holders in the upper house. To this Walpole would not submit, and he immediately re- moved from office several who, he believed, should have sup- ported him ; and the same thing was done again a little later in the year, on the defeat of the government in the house of lords. But Walpole felt no obligation to resign on that defeat. He did make it clear that the ministry should act together, and that if any member of it could not support the majority decision he should resign. Walpole has been accused of vindictiveness in his action, and one may 392 THE GROWTH OF THE CABINET hesitate to free him entirely of the charge, but the principle on which he acted was correct, and it became a rule of cabinet business, though not immediately. Walpole dropped his excise bill and did not attempt to force it through parliament although he had a majority in the house of commons. The incident is the first one since the beginning of party government in which a parliamentary majority abandoned a measure under pressure of public opposition outside parliament. Outside opinion had not acquired as yet regular means of expressing itself, and its methods in this case were rough and noisy but effective. It can hardly be said that either principle or method was then established of the control of parliament by public opinion expressed otherwise than through a general election, but the incident is to be reckoned with others of the kind, not infrequent from this date on, and with other cases in which action, that would not otherwise have been taken, was forced upon king, or parliament, or cabinet, by public pressure. Pitt's great ministry during the Seven Years' war was the creation not of king nor of parliament but of public opinion, and there certainly was some justification for George IPs reply to Pitt concerning the execution of Admiral Byng: " You have taught me to look elsewhere than to the commons for the sense of my subjects," as well as for Dr. Johnson's judgment that Walpole was a minister whom the king gave to the people, while Pitt was a minister whom the people gave to the king. These incidents at the beginning of popular control may be more significant as signs of what the future has yet in store than as facts of the eighteenth century. Walpole's fall from power in 1742 helped to establish a principle of cabinet government of greater influence in the past at least than the facts of popular control. In 1739 when a violent and increasing opposition in parliament, sup- ported by a general demand outside was striving to bring on a war with Spain, Walpole yielded to the king's unwilling- THE FALL OF WALPOLE 393 ncss to accept his twice tendered resignation and entered upon the war against his better judgment. He still had a majority in the house of commons and he still had the support of the king, but he had been obliged to adopt a policy of which he did not approve, and a modern prime minister would have insisted upon retiring. He remained in office three years longer; he still had a small though insecure majority after the election of 1741, but he was defeated on January 28, 1742, by a majority of one, and on February 2 by a majority of sixteen. He then resigned and as earl of Orford retired to the upper house, whose comparative insignificance he recognized. If any minister could in that period have carried on the business of government without the house of commons, Walpole could have done it. But he had demonstrated by his successes as well as by his failure that it was impossible. The house of commons learned as well that it had in its hands absolute power of control over ain T ministry by the simple method of allowing no business to be done until an obnoxious minister retired, a wholly in- direct method of control which the middle ages had never imagined and which was not possible until the real control of national business was in the hands of the house. It was not yet, however, entirely conscious that this was the best way of enforcing ministerial responsibility, for it strove to impeach Walpole after his defeat. These are the most striking incidents in Walpole's career b} r which the cabinet system of government was advanced, but they do not measure all the progress made or prepared for immediate accomplishment during his time. For one thing the power of appointing and of maintaining ministers in place was slipping out of the king's hands. He could not keep Walpole permanently in office though he would have been glad to do so. He could not determine the membership of the new -cabinet as he would have liked. In 1744 he was obliged to allow Carteret to be dismissed against his will. 394 THE GROWTH OF THE CABINET He did by his bitter personal dislike keep William Pitt out of office for some time, but he was forced to accept him in 174-6, though in a subordinate place. The case of 1746 is an interesting one because it is evidence not merely of the real powerlessness of the king but also of the complete dependence of the cabinet on the support of the house of commons. George greatly disliked the existing ministry, and when a proposal was submitted to him to re- model it, involving the appointment of Pitt, he refused. Thereupon the ministry generally resigned, and the king asked Lords Bath and Granville (Carteret) to form a new one. They made a serious attempt to do so, but speedily found that those who could command a following in the house of commons would not take office under them, and that those who would accept office would not be accepted by the com- mons. They were obliged to give up the attempt, and the king was obliged to take back the old ministry, though he succeeded in keeping Pitt out of the cabinet. This is the first failure to form a cabinet because parliamentary support could not be gained for it. In 1757 George II made another attempt of the same kind against Pitt's ministry. He could and did dismiss Pitt from office, but he could get no one -to take his place, and the experiment resulted only in a combination between Pitt and the duke of Newcastle, who commanded great strength in the house of commons. No one -would have said at that time that the king had lost his power of appointment and dismissal. Nominally it was all still in his hands, and prac- tically he still retained great power which could be exercised upon favorable occasions, and continued to be exercised for a long time to come. Earl Granville could still say honestly in a cabinet debate in 1761, as reported to us, in opposition to Pitt : " He forgets that at this board he is only responsi- ble to the king." A modern minister, however, might say the same thing truthfully, referring to the form rather than to the reality of responsibility, but he would be felt to have THE KING'S LOSS OF POWER 395 departed more widely from the actual facts than did Earl Granville. At the same time the practice was being fixed, though more by unnoticed precedents than by conspicuous cases, that the king must not act without advice from responsible ministers, and that he must take his policy from the cabinet ; that is, that he was bound to follow the advice given him. This was an almost inevitable result from ministerial re- sponsibility to parliament. Ministers would necessarily hesitate to be held responsible for policy which was not their own, and, if the king succeeded in forcing his policy upon the cabinet, some minister or the whole of them must become responsible for it. At the same time the policy of the cabinet, which had the support of parliament and therefore, theoretically at least, was the policy of the nation, must be carried out. Two other matters belonging to the general movement must be noticed. One is the formation of a recognized and regular parliamentary " opposition." By this is not meant an organized faction opposing the ministry in power. A parliamentary opposition is as permanent a feature of party government as the organization which is in responsible power. It is the party out of office, with as definite a programme of national policy as that of the party in, a programme which it is trying to persuade the public to adopt, and which, if it succeeds, it must assume the responsibility of carrying out. Its function as opposition is as definite. Its business is to see that the party in power takes no step which has not been thoroughly criticised, to see «that it has been com- pelled to defend its policy from every side, and to prove its advisability under penalty of loss of power. In other words, its function is to prevent the cabinet from becoming too much at ease and careless, and to keep it awake to the dan- ger of any move which has not been well considered. The other point to be noticed is the similarity between the history of the cabinet and that of the privy council. The 396 THE GROWTH OF THE CABINET privy council had now ceased to be the advisory organ of the state. That function had been entirely taken over by the cabinet, but like the privy council after the close of the middle ages the cabinet had tended to increase rapidly in numbers. By tradition certain great offices must belong to it ; by the increase of business and of the importance of various departments others had a valid claim to be admitted. The natural result happened, as it had happened in the older institution, the whole body was too large for real dis- cussion, and the determination of policy settled in a small group of especially able men or indispensable officers, whose decisions were accepted by the larger body. The fact was noticed and commented on in the eighteenth century of the existence of an " outer " cabinet and of an " inner " or " conciliabidum." The inner in the end becomes the real cabinet, only to undergo again in the nineteenth century more slowly the same process of enlargement, and under stress of the great war the same formation of an inner cabinet which becomes the real determining body. The house of commons became during the first two Hano- verian reigns the power having ultimate decision in English affairs, but the house of commons was not at any time during •the eighteenth century representative of the English nation, as we now understand the term representative. The whig party, which was supreme from -the death of Anne -until after the accession of George III in 176*0, was the ancestor of the liberal party of Gladstone and Lloyd George and -was the liberal party of the earlier time, but it was distinctly an aristocratic party. The leaders were all from great families, or they made their families great. It was something of a handicap to William Pitt at the beginning of his career, as it was later to Sir Robert Peel in the tory party, that he w.is not born into a great territorial family. But such lead- ership did no more than to determine atmosphere. It was possible then, as always in English history, for unusual abili- PARLIAMENTARY CORRUPTION 397 ties to make their way to the highest ranks. A much more important fact was the aristocratic control of the house of commons. No changes had been made in the electoral laws since before the middle of the fifteenth century and, even by the time of Walpole's administration, the shifting of population had created many anomalies. The pocket borough, where the few remaining electors were controlled by some territorial magnate, and the rotten borough, where the electors were so few and so corrupt that money openly decided the result, were determining factors of parliamentary history in the eighteenth century. Besides this, there were numerous office- holders and crown pensioners still in the house of commons — in 1742 there were said to be 200 placemen in the house, and usually at the service of the government. In 1780 it was estimated that a majority of the house was elected by only 6,000 voters, and that 487 out of 658 members were virtually nominated. These facts made the eighteenth century the great age of parliamentary corruption. They also were an aid to the establishment of cabinet government, for they made it an easy and simple matter for members of the house to shift .their allegiance from one ministry to another. The English cabinet system rests on the fact that the members who have at one time supported the ministry can and will at another time turn against it. Since early in the nineteenth century it has been considered that the change takes place because some ministerial policy fails to win support, or because there has been a change in public opinion outside parliament. In the eighteenth century the reasons for a change were not always supposed to be so honorable. Walpole has been accused, it would seem on insufficient grounds, of being the first minister to employ systematic corruption. The duke of Newcastle certainly was deeply interested in the manipu- lation of votes in the house and reduced it to an art, and the experience gained in the first half of the century in the 398 THE GROWTH OF THE CABINET control both of elections and of votes in the house came to the advantage of George III in his efforts to restore the royal authority. In this age, apart from the development of the cabinet system, there is little of importance to record. In 1716 the triennial act of 1694? was repealed, from fear of what might result from a tory or Jacobite victory in a general election, and the life of a parliament was fixed at seven years. The septennial act continued in force until the passage of the parliament act of 1911. * An attempt of a somewhat similar kind in 1719, to close the house of lords and per- petuate the whig majority in it by limiting the king's power to create new peers, did not succeed. 2 This is the age of the rise of the chancellor of the exchequer as the chief financial minister of the state. The office of lord high treasurer was not filled after the death of Anne. The treasury was put into commission with the first lord of the treasury at the head. By degrees, however, this office came to be considered to be' the one naturally held by the prime minister and its duties to be political rather than administrative, that is, its treasury duties became nominal. By the same degrees the chancellor of the exchequer, in the middle ages a subordinate officer, came to be considered the working officer of the treasury, to whom it fell to defend the ministry's financial policy and so to have a peculiar responsibility for its forma- tion and carrying out. For this reason it naturally came to be felt that he must always be a member of the house of commons, though no legal rule was made to that effect. The progress which had been made during the first two Hanoverian reigns, in establishing the cabinet s}'stem of gov- ernment in place of the king's initiative, and in beginning to recognize in experience the incidental results of the system, like the premiership and cabinet solidarity, was very rapid, if we consider the stage of development in which the institution i A. and S., 487-488; Robertson, Statutes, 117-119. 2 A. and S., 488-489; Robertson, Statutes, 208-209. REACTION 399 then stood. Forgetting for the moment that neither the institution as a whole, nor the bearing upon it of its incidental features, was then understood, one is tempted to anticipate the complete appearance of the modern system in the next decade. As a matter of fact the progress had been too rapid. It was not merely not understood ; it had not made itself habitual ; it had not become expected, or conventional, or in anyone's thought a part of the constitution. Boling- broke saw clearly enough the ultimate foundation in the will of the" people upon which any government must rest after the revolution of 1688. Burke was startled by George Ill's success into a course of reasoning, about what government should be', which comprehended more of the fundamental principles of the new system, but no one saw them clearly as yet, as having their necessary result in the various feat- ures we here noted of the new institution which was forming. It was the fact also that the new system had never been sub- jected to the test of the determined and intelligent opposition of the royal power. It had found its opportunity to grow so rapidly in the practical abeyance of the monarchy. A reaction was not unnatural under all the conditions, and a reaction is what characterizes the next twenty-five years. George III, who came to the throne in 1760, had none of the talents of the statesman ; in fact his abilities were mediocre, and he had been gifted to the full with the allowance of obstinacy which usually goes with a narrow intellect. But he had been carefully educated for one thing: to " be a king," as his mother expressed it, to recover the royal power. He *was industrious and painstaking, sincerely desirous of advancing the interests and power of his country, and very much in earnest to perform well the business of a king as he understood it. His text books in political science had been Bolingbroke's high tory argument, The Idea of a Patriot King, and Blackstone's account, in his Commentaries on the Laws of England, then still in 'manuscript, of the place of the king in the constitution. His was the account of a 400 THE GROWTH OF THE CABINET lawyer who naturally stated the law as it stood and disre- garded the interpretation now conventional. However ill- fitted George's mind may have been to guide the policy of a great state in perilous times, he saw clearly enough what the function of the king was in the government which he was to strive to recover, and in the practical situation which faced him he was able to take the steps upon which first successes depended. It is necessary at the beginning to make clear just how far the plans of the king went, as we know them historically, and what they did not include. He never attacked the sover- eignty and supremacy of parliament. That is, his plans, so far at least as he had time to develop them, never contem- plated the sort of royal power which was aimed at by Charles I and James II, an absolute and arbitrary royal power, lim- ited only by the responsibility of the king to God. The pri- mary results of the revolution of 1688, he did not attempt to change. Rather what he strove to reestablish was the royal control of government policy which William III had enjoyed. The usurpation, as he could not fail to regard it, of initiative and direction in deciding what the state should do, the trans- fer of the responsibility of the officers of government from the sovereign to the prime minister, together with the man- agement of the house of commons, these secondary results of the revolution he was resolved to undo. What might have been the ultimate outcome of his attempt, if it had been suc- cessful, it does not belong to the historian to say. It is not easy, however, to see just how constitutional liberty could have survived, for apparently the immediate result would have been to do away with ministerial responsibility and to make the king responsible, or at best to set up once more the clumsy medieval system of direct responsibility through im- peachment. We must remember also in forming our judgment upon George Ill's plan, that no one at that time could think of it as an unconstitutional attempt. It would be unconstitu- PLAN OF GEORGE III 401 tional in a king of today. It has been called unconstitu- tional in George by a modern scholar, but that is carrying a judgment from present day conditions back into a time when the}' did not exist. No one of that day could deny that the king had a perfectly legal and constitutional right to do all that he did in regard to his ministers between 1760 and 1782. We can see clearly that the attack which he made upon the cabinet system of government was deadly, and that it would have destro3 r ed it, if it had succeeded. But the cabinet system was certainly not legally recognized at that time, nor was it so firmly established, so habitual in practice, or so understood in common thought, as to be fixed in the conventional constitution. George III was un- doubtedly struggling against the whole current of English history, which had steadily led on to ministerial responsi- bility of the modern form ; his final success would have meant long delay in arriving at the best machinery of national self-government ; but he cannot be accused of violating the constitution as it then existed. The situation at the moment of his accession was not favorable to the king's plan. England was in the midst of the great Seven Years' war, the most desperate phase down to that time of its conflict with France, the war which estab- lished the British empire and British supremacy on the sea. The tide was flowing strongly in England's favor, but not yet so decisively that the natural gains from her victories could be securely gathered. The great war minister, William Pitt, whose genius and inspiration had turned defeat into victory, was in control of England's military and foreign policy, and so great was his popularity among the people that it would not have been easy to recover control from him. This the king did not attempt to do, and he does not seem to have had any wish to get rid of Pitt until peace should have been made. There were two things, however, which he could and did set about immediately. One was to take into his own hand the determination of who should be 402 THE GROWTH OF THE CABINET his ministers, with no recognition of the prime minister's right, and the other was to recover the distribution of gov- ernment patronage and rewards from ministerial control. On the day on which George II died, his successor offered to make his favorite attendant, the carl of Bute a secretary of state in the cabinet. Bute possessed no higher political abilities than the king, but he sympathized with his master's designs and that quality was of more value just then than genius. Bute declined to take high office so suddenly, but he was immediately sworn a member of the privy council and given a seat in the cabinet, without considering either Pitt or Newcastle, who was the nominal head of the ministry. George also composed without advice his first address to the council, and Pitt had some difficulty in getting changed cer- tain words which the king had used describing the war as " bloody and expensive." These facts were an unmistakable declaration of policy. They could mean only that hence- forth the king proposed to say himself who should be his ministerial advisers, and that he intended to take an active part in the determination of policy. In both these matters he was within his legal rights, and in both he was successful, for twenty years limited only by adventitious circumstances not by law or convention, and for the remainder of his reign to a greater extent than any other sovereign from the ac- cession of his great-grandfather to the present day. In the second of the matters mentioned, the determination of policy, George did not insist upon attending cabinet meetings. He made known his opinions through special friends who in a way represented him in the cabinet, or through others upon whom he impressed his views, and some- times by abrupt and even discourteous statements directly to those cabinet leaders who were not favorable to his wishes. He never was at a loss to make his desires known. In the matter of choosing his own ministers he had greater diffi- culties, but not because the house of commons insisted upon the ministers of its choice and refused to do business with TORY RECOVERY 403 any other. Till the end of the first period he had no trouble of that kind. His difficulties were all due to the refusal of the men selected to accept office, and these refusals were not due, in the great majority of cases, to constitutional reasons but to personal likes and dislikes, or sometimes to the demands of factional politics. Four times he failed to induce Pitt to take office between his resignation in 1761 and Pitt's consent at last to for-m a ministry in 1766, and several times he found himself compelled to retain ministers in power, and even cabinets, when he would have been glad to dismiss them, because others would not serve. The first -ten years of the reign saw a rather rapid suc- cession of cabinets, unstable and disunited, largely because of royal interference ; cabinet solidarity was at an end. There are reckoned seven ministries in this time, including Newcastle's in power at the accession and Lord North's formed in January, 1770. As one move in his attempt to recover power, George was determined to break up the long whig domination, which had lasted since the death of Anne. The move was made easy partly because the whig party, as usually happens in such cases, had split into factions which could with little trouble be played one against the other, and partly because the loyalty and patriotism of the tory party, after so long a time and so many changes, was no longer popularly suspected. Tories began to appear in numbers at the court and to be put by the king into office. In the existing cabinet Pitt and Newcastle were not in close accord, and, though it seems certain that the king had no intention to force Pitt out till after peace had been made, he did desire a speedy peace and a different cabinet. At the end of five months Bute was a secretary of state; in seven more Pitt resigned because the cabinet refused to adopt his policy of war with Spain; and a year and a half after the accession Bute was prime minister. The ministries which followed at short intervals to the appointment of Lord North present no points of interest which it is important for us to notice. 404 THE GROWTH OF THE CABINET They are remembered in general history chiefly for their share in bringing on the American revolution. If George III could succeed without constitutional diffi- culties in obtaining ministers who would be subservient to his policy or whom he could circumvent, he could not get rid of the supremacy of parliament. Yet if the king was to decide the policy of the state, parliament must take its policy from the king and not from the nation. The king must be sure that parliament would support the view upon which he had fixed. The method of securing the necessary control of parliament was ready at hand when George came to the throne, organized in systematic form largely by Newcastle in the last reign, and the king began immediately to put it into operation at the expense of the minister. It consisted in the distribution of the royal patronage, offices, employ- ments, and contracts, of various rewards, titles, and pensions which the king had to bestow, sometimes perhaps in the direct use of secret service money, all to influence elections or more directly to influence members of parliament them- selves. Not infrequently punishments were used as well as rewards and men dismissed from office, in some instances even obscure and old men who had nothing to do with opposition but were dependents or appointees of those who had. New- castle, who had charge of these matters in the cabinet, which was in office at the death of George II, and who delighted in the business though himself honest, was astonished at the suddenness with which the new king resumed this function, but he had no ground on which to object. The king was again clearly within his rights. The period which followed, the first twenty years of the reign, is the climax of parlia- mentary and official corruption in English history. The system, as a system, falls with the failure of the king's general attempt. Corruption in parliamentary elections, engineered by private persons in their own interest, continued for a long time, but there was no further attempt to secure PERIOD OF THE KING'S RULE 405 parliamentary majorities by the systematic use of official corruption on a large scale. George Ill's system of government reached its highest success and brought on its own failure in the ministry of twelve years of Lord North, which began in January, 1770. 3 Lord North was but little if any superior in political abilities to the king or to Bute, but the royal regime was one in which men of first ability could find little opportunity and in which ability was not demanded. The king was now in- disputably his own prime minister, and what he desired was a " chief responsible agent of ' the king's business ' in parlia- ment." That North was willing to be, not from ambition to hold office but from honest conviction that this was the king's constitutional right. He was a good debater and leader of the house of commons, but George's hold upon a majority was so secure that it could not easily be challenged. There were 192 members holding office under the govern- ment. Besides this during more than half the period the opposition was so divided and out of hand that it was not formidable. The important matter is that during this period George obtained what he had striven for. Cabinet, parliament, and government policy were under his control. Lord North recognized the fact fully and acted upon it loyally. Fairly early he became convinced that the policy followed in America was likely to fail, and he repeatedly urged his resignation upon the king, but yielded always to the king's will. He wrote to George in 1779 that he " held in his heart and had held for three years past " the con- viction that to carry on the war in America " must end in ruin to his Majesty and the country." Yet he remained in office until 1782. It does not belong to us to follow the events of the Ameri- can war. It is to be noticed rather that what was at stake in it for England, beyond colonies and empire, was the con- a Cheyney, Readings, 633-637. 406 THE GROWTH OF THE CABINET tinuance of this personal royal dictation, under the forms of the constitution established in 1688, or a return to the sys- tem of cabinet government taking its direction from the house of commons and responsible to it and to public opinion — the system which had developed so steadily during the first half of the century. It was no doubt the perception by the king that this question was involved that made him so reluctant to bring the war to an end. The fact was recognized clearly enough at the time by the opposition party, and is the explanation of their vigorous support of the American cause. The colonies were fighting the battle of Englishmen at home. The fact has also been abundantly recognized in later times, and there can be no doubt but that this interpretation was correct. As disasters fell upon the British cause, and as all her old colonial rivals, France, Spain, and Holland, appeared in the field against her, the opposition gathered strength, be- came more frank in pushing the constitutional point, and began to be supported by increasing public opinion. In 1780 John Dunning obtained a majority in the house of commons for a resolution affirming " that the influence of the crown has increased, is increasing, and ought to be diminished." 1 4 It required, however, two years more of struggle, with many motions equivalent to a vote of want of confidence carried against the ministry, before the king would yield, and at the moment only because Lord North peremptorily resigned on March 20, 1782. George was obliged to accept, under the whig Marquis of Rockingham, a ministry which he detested, as well as the cabinet of Shelburne later in the year, and the coalition ministry of Fox and North in 1783; and he was obliged to accept them now not because, as in the early part of his reign, personal and factional conditions rendered any other course impossible, but because public opinion and the house of commons was in control. A long step had been « A. and S., 494. RISE OF THE YOUNGER PITT 407 taken back towards cabinet government. The king, however, had no intention of abandoning his ideals without a further struggle, and it was really due to the tact and political skill of the younger William Pitt that ministerial responsibility was reestablished. Pitt early began to display the unusual gifts which won him his place in English history and was carefully trained by his father for public life. From the moment of his entry into the house of commons, then barely twenty-one years of age, he attracted attention to himself as likely to be equal to the highest demands. The king himself soon concluded that he was the man who could rescue him from his embarrassments. In the cabinet of Shelburne he was given the difficult and responsible place of chancellor of the exchequer,. but he would not enter the coalition ministry of Fox and North. Before long the king in his anxiety to be rid of this ministry began to urge him to form a cabinet of his own, but Pitt, with that rare instinct for public opinion which distinguished him, refused to accept until the time had come, as he believed, when he could win the support of a secure majority. He had no mind to become another Lord North, sustained by the king whatever might be the feeling of the nation. He judged the moment favorable in December, 1783. Fox's bill for the regulation of the East India Company had been carried by a large majority in the commons, in spite of the known dislike of the king for the measure. To defeat it in the lords George took an extraordinary step, uncon- stitutional even at that time. He gave to Earl Temple a card on which he had written these words: "His Majesty allows Earl Temple to say that whoever voted for the India Bill was not only not his friend, but would be considered by him as an enemy; and if these words were not strong enough, Earl Temple might use whatever words he might deem stronger and more to the purpose." Earlier kings had cer- tainly done as much, even William III, though in a less formal way, but the house of commons immediately resolved, by a 408 THE GROWTH OF THE CABINET vote of almost two to one, " that it is now necessary to de- clare, that to report any opinion, or pretended opinion, of his Majesty, upon any bill, or other proceeding, depending in either House of Parliament, with a view to influence the votes of the members, is a high crime and misdemeanor, derogatory to the honor of the crown, a breach of the funda- mental privileges of parliament, and subversive of the con- stitution." A day or two later it was resolved, in view of the necessity of reforms in the East Indies, " that this House will consider as an enemy to his country, any person who shall presume to advise his Majesty to prevent, or in any manner interrupt, the discharge of this important duty." In spite of the attitude of the house of commons, the king succeeded. The lords rejected the bill, and the next day he dismissed the ministry of Fox and North. Pitt now accepted the duty of forming a cabinet. By doing so he made himself responsible, according to modern ideas, for all the king had done, but it must be remembered that the clarity of our ideas about cabinet government is due in considerable part to the events of this crisis. Pitt won his victory, but he made another like it impossible, for the dramatic struggle fixed firmly in public consciousness the due relation of prime ministers to king and commons. Pitt was then some months short of his twenty-fifth birthday, and his effort to form a cabinet was at first greeted with ridicule. It was " a kingdom trusted to a school-boy's care " ; it was " a boyish prank " ; the cabinet was " a set of children playing at ministers and must be sent back to school " ; it was " a mince pie administration " over with Christmas. But it lasted seventeen years. Pitt had judged the situation correctly. He was the only cabinet minister in the commons. He had the support of only one good de- bater. Majorities against him were large and constant. But the house of commons did not fairly represent outside opinion even at the start. Pitt, knowing in which direction the drift was setting, steadily held his ground and let the PITT'S MINISTRY 409 adverse votes dwindle, until on March 8 the majority against him was only one. Then he dissolved parliament, and in the general election following obtained a strong majority. Even under the unreformed parliamentary system of pocket and rotten boroughs, of corrupt elections and unrepresenta- tive distribution of seats, the nation had declared its will with overwhelming force in favor of the new ministry. Bibliographical Note. — N. A. Brisco, The Economic Policy of Robert Walpole, 1907. J. Morley, Walpole, 1889. E. Por- ritt, The Unreformed House of Commons, 2 vols., 1903. T. W. Riker, Henry Fox First Lord Holland, 1911. Sir G. O. Treve- lyan, The Early History of Charles James Fox, 1880. E. R. Turner, The Cabinet in the Eighteenth Century, E. H. R. xxxii, 192, 1917. D. A. Winstanley, Personal and Party Government, 1910; Lord Chatham and the Whig Opposition, 1912. CHAPTER XVII THE RISE OF DEMOCRACY Pitt took office as a tory, but he was not a tory of the type of Bolingbroke or even of the tories of 1760. That party now entered upon a long period of opportunity to guide the state, almost as long as that enjoyed by the whig party in the eighteenth century, but its record of achieve- ment, apart from carrying the country successfully through the great struggle with Napoleon, is hardly equal to its rival's in the earlier period. The generation following 1783 was not favorable to constitutional growth. For a third of a century there is no sustained forward movement to be studied, like the formation of the cabinet system, but only unconnected improvements and the preparation for some- thing better. Pitt was a tory, but he was a tory of the future rather than of the past. As the tories of 1760 had without quali- fication accepted the results of the revolution of 1688, so now Pitt, and the party which he may be said to have recreated, accepted as final the whig work of cabinet making and the position into which it had brought the king. We shall see in several important occurrences that George III never recog- nized the fact that he had been reduced to a merely nominal power in the government, and that he could occasionally still make his power something more than nominal, but these are all isolated cases in which peculiar circumstances aroused the intense prejudices of the king, and the minister preferred not to insist. In the steady every-day working of the govern- ment from now on, the prime minister and his cabinet were the real executive. They had succeeded fully to the posi- 410 THE CABINET NOT UNDERSTOOD 411 tion which the medieval king had held in shaping and carry- ing out the policy of the state, only they did everything un- der their responsibility to parliament. In other words, we may date from the formation of Pitt's ministry, at the end of 1783, the full establishment of the compromise of 1660: a king in the nominal possession of almost all power, a cab- inet in the real exercise of the king's powers, and a parliament with the power of final decision in every question, because it was the voice of the people in whom the ultimate sovereignty resided. The cabinet as the instrument by means of which parliament was to make real in practical government the sovereignty of the people was at last in existence. But it must not be supposed that there was as yet any general understanding of cabinet government including the principle of ministerial responsibility. Pitt's struggle to maintain himself against a hostile House of Commons had great influence in bringing about such an understanding, but it was still far from complete and was only slowly per- fected through another twenty-five years. Two incidents between 1784 and the close of the century show how incom- plete 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 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 efficient executive while leaving ulti- mate authority in the legislature as representing 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 be- coming closely united in England, but they gave little atten- tion to the cabinet, and they seem to have had no idea what- ever of ministerial responsibility. If we may judge by the powers conferred upon the presi- dent in the Constitution and the fact that the cabinet is not 412 THE RISE OF DEMOCRACY mentioned, merely referred to in passing in the phrase " the principal officer in each of the executive 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 ministry of Lord North ; I do not mean that they consciously thought about it in that way, 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 the}' adopted impeachment, and certainly, had there existed in England any such definite idea of min- isterial responsibility as fifty years later, there would have been some discussion of it in the convention. The other incident is even more indicative of English understanding. In 1791 parliament under the leadership of Pitt's minis- try 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 3'et 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. Neither Blackstone in his Commentaries nor De Lolme in his account of the English government for French readers, both writing after the middle of the century, takes any notice of the cabinet sj'stcm. It is from the opening years of the nineteenth century only that we can date a full understanding of the cabinet and of the way in which ministerial responsibility is enforced through it, though even then the understanding was rather that of practical action than of theoretical description. It was not until about the middle of the century that descrip- tions 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. We must continue also to notice that parliament was not, PARLIAMENT NOT REPRESENTATIVE 413 in our sense of the term, fully a representative assembly of the people. The perfection of the cabinet system did not change this fact. So long as aristocratic influence could control so large a proportion of the membership of the house of commons through the pocket and rotten boroughs, and so long as so many government appointees had seats in the house and kindred abuses existed, a really representative as- sembly was not possible. It is significant that the period from which we may date the full formation of the cabinet system saw also both these problems taken up in earnest. Pitt's success in bringing the king's personal government to an end was in part due to the results, even the limited results, obtained. In 1782 the horde of revenue officers which formed one-eighth or more of all voters, and who could easily be voted as government desired, were deprived of the parlia- mentary franchise 1 ; a considerable number of offices usually filled by members of parliament were abolished; contractors were forbidden to sit in parliament, and secret pensions brought to an end. Much in this direction remained to be done ; the work was not finished until the next century, but a real gain had been made. Still more important per- haps in its general effect in bringing about a thorough change is the fact that there began to come in, from a little time before Pitt became prime minister, a decidedly higher tone in public life, due doubtless to the improved standard of conduct in private life which characterizes the time. This gradual reformation more than laws and prohibitions made the eighteenth century methods of corruption no longer pos- sible. Disguised bribery and secret influence die very slowly, but since 1782 there never has been a return to the methods of Newcastle and George III. The reform of parliamentary representation, a more equit- able distribution of seats and a reduction in the number of nomination members, was agitated at the same time. The elder Pitt first urged the necessity, and made it the subject i Robertson, Statutes, 247-249. 414 THE RISE OF DEMOCRACY of parliamentary debate in 1770. In 1776 a bill to make rather extensive changes was introduced, but it was thrown out without a division. In 1780 the duke of Richmond intro- duced another reform bill, which met the same fate. At the ver}' beginning of his parliamentary history, the 3 f ounger Pitt seemed inclined to make the subject his own. Hu brought it forward in 1782 in a very effective speech, moving for a committee of inquiry, and was beaten by only twenty votes. The next year, still as a member of the opposition, he proposed resolutions embodying the chief points, without effect. Meantime numerous petitions had begun to come in from the country supporting reform, and when he, Pitt, be- came premier, with a majority behind him, he returned to his plan in 1785 with a proposal of rather extensive changes, but was beaten by a majority of seventy-four. The house of commons had yet no mind to reform itself. Before the subject could be taken up again in earnest, the French revolu- tion came on and speedily set up among the ruling classes in England a not unnatural reaction against changes. The plan still retained much popular support, and was brought forward unsuccessfully in parliament in 1790, and again with somewhat better backing by Mr. Grey, afterwards Earl Grey, in 1792, 1793, and 1797. On the first of these occa- sions Mr. Pitt declared that his opinions on the subject had not changed, but he thought the time unfavorable : " This is not a time to make hazardous experiments." It must be entered upon the debit side of the French revolution account that it postponed the cause of parliamentary reform in England for a generation. But the denial of parliamentary reform was not the worst reaction in England for which the French revolution was responsible. When it began, it was rather generally greeted as a hopeful movement towards liberty and better govern- ment, but, when its destructive tendencies, or what seemed to be destructive tendencies, became more evident, strong opposition developed and was powerfully aided by the almost REPRESSION OF OPINION 415 unparalleled popular effect of Burke's Reflections on the French Revolution, which appeared in 1790 and went through thirty editions almost at once. All the conservatively in- clined and all who thought they had anything to lose by change took alarm, and the only organs through which a national will could be expressed in action were then in their hands. As the successful revolution began to show itself disposed to carry its doctrines into other countries by force, and especially when France declared war on England at the beginning of 1793, the alarm greatly increased. It must be confessed that it had some ground for existence in the not very wise efforts at propaganda and public agitation by the supporters of more liberal ideas, and at that time at least in the popularity of Thomas Paine's Rights of Man, almost equalling that of Burke's Reflections. There followed the result which must still be called natural and with which later times have not been unfamiliar, severe repression by law and even worse by public hysteria. An alien act placed restrictions on foreigners ; the habeas corpus was suspended 2 ; a new treasons act was passed, making it easier to secure convictions ; laws were made against seditious meetings, with authority to the local magistrate to deter- mine the question whether there was sedition, and against societies and associations, and some of these were suppressed by force ; various restrictions were placed upon the press, and writers and publishers severely punished ; royal procla- mations were issued against seditious writings and calling out the militia to repress threatened disorders, and warnings to parliament of impending revolution. Worse than these abuses, which were still under the forms of law, were the numerous cases in which the courts, yielding to the public panic, in the trial of accused persons disregarded the safe- guards which the law had provided for persons wrongfully accused, allowed convictions on the flimsiest evidence, and inflicted sentences out of all proportion to the offence. Fox 2 A. and S., 496-497. 416 THE RISE OF DEMOCRACY was fully justified in exclaiming, on hearing of certain cases in Scotland: " God help the people who have such judges." We find it difficult, however, to learn the lesson of history which was long ago formulated in the words : the best defence against revolution is not repression but reform. The general and severe condemnation by all parties of these un- reasoning lapses into fear, which followed after peace had come, does not prevent the same public hysteria in a new time of war, and the same forgctfulness of the real safe- guards of liberty. That the demand to which the official guardians of the law give way is practically universal at the time only makes the matter worse, for as everyone admits, the only ultimate safety of democracy is in the willingness of the people to be faithful in all honesty to the restraints which they have placed upon themselves. In one other particular that age of warfare exhibits a result of which there have been later examples in the Anglo- Saxon world — the practical suspension of parties, the cen- tralization of government, and the willingness to allow almost dictatorial powers to the executive. From the date of his first dissolution of parliament, Pitt had had a secure working majority on almost every question he brought forward, but the effect of the war was to disable and divide the opposition. From the beginning of 1793 the more conservative of the whigs supported the government against the more radical of their own party, and in the next year their leaders were taken into the ministry. The remaining opposition was naturally led to a more careful, if somewhat more extreme, defence of their own position and, if Pitt may be said to have given shape to a new tory party, Fox also had his share in forming a new whig party, leading on to the liberal- ism of the next century. The immediate result was an over- whelming majority for the cabinet during the remainder of Pitt's ministry. Fox could muster barely fifty votes in the commons, and the check on government of a strong opposi- tion ready to take its place was removed. These facts SUSPENSION OF PARTIES 417 explain to a great extent the steady support which the king gave to Pitt for so long. He was not exactly a minister after the king's heart, but there was no opportunity to turn him out of office. Besides George very well knew that the only alternative was Fox, whom he detested more heartily. Outside parliament the same thing was true. All sorts and shades of opinion, except the liberal, all classes and pro- fessions, joined in support of the government, whatever their previous party connections had been, and the supporters of the opposition had to put up even with social ostracism. The sympathy of later writers has been very generally with Fox and his small band of supporters, and it is certainly true that the long dominance of the tory party during the war meant an equally long cessation of the political progress which had been going on since the revolution of 1688. It must not be overlooked, however, that such a universal rallying to the support of government during a dangerous struggle, and a ready acquiescence in a practical dictatorship, is to be expected and hoped for. It has its roots in patriotism and is a source of national safety. All that is to be striven against is the tendency of centralization to support the ex- cesses of emotion and the violations of personal liberty natu- ral under excitement. Pitt's government did not use its absolute power to endanger public liberty, and the constitu- tion emerged from the time of trial uninjured. It must be noticed also that during the time Pitt was in power public opinion outside parliament acquired better means of bringing itself to bear upon actual government and made more frequent use of them, although there was no improvement in parliamentary representation. The opinions of masses of the nation, of large bodies who think and act in one way, came to be a more active influence than before in shaping the national policy. A striking illustra- tion of this fact is to be seen before the beginning of the war. In April, 1791, Pitt suddenly dropped his Russian policy, after he had dispatched an ultimatum to that govern- 418 THE RISE OF DEMOCRACY ment and while lie had a parliamentary majority for the plan, because of national opposition. More important is it to notice the constant efforts which were made during the war to express public feeling on both sides of many ques- tions, and the variety of ways in which the attempt was made: public meetings, processions, deputations, petitions, addresses to the crown, one may almost include riots in the list under the conditions of the eighteenth century, certainly the organization of societies, associations, and clubs with names proclaiming their doctrines and with propaganda in tracts, handbills, and broadsides. The pamphlet was rela- tively less frequently employed as a means of influencing opinion than a century earlier, though it has never disap- peared to this day. The newspaper press had so greatly improved in three generations that it was now universally recognized as one of the chief means both of forming and expressing public opinion. Men were beginning also vaguely to feel that organization, — that the banding together of men of common opinion, intensified their influence. All this has a modern appearance when we consider the practices which are so common at the present day ; and modern is what it was. More correctly, it was the fore- shadowing of a change which would require a century for its completion. All unconsciously the medieval way of looking at parliament, indeed the medieval function itself of parlia- ment, was beginning to be modified. A gathering of wise men from all parts of the country in order to find out what the nation thinks was becoming no longer necessary. There were other ways of finding out; at least the nation was learning other methods of expressing its common opinion, or the opinion of large fractions of the nation. It was beginning slowly to perceive that the chief function of parlia- ment is to put into legal form, into form to govern executive officers and courts of justice, the decisions which it has itself reached elsewhere. It had not yet come to look upon an PUBLIC OPINION A NEW FACTOR 419 election as giving a mandate to parliament ; but it was beginning half consciously to see that it must take pains to convince parliament that there was a genuine public demand for this or that action or decision. The age of the war with France is the first great age in the general use of these methods, but it is not the age of their invention. From early in the reign of George III they had been increasingly employed with effect. In the case of Wilkes, a newspaper publisher and member of parliament, arrested in 1763 for an attack upon the king's speech de- clared to be libellous, public opinion, expressed in these ways, assisted greatly in establishing the illegality of general war- rants, — that is, warrants not specifically describing the place to be searched or the persons or things to be seized. 3 The case also involved the right, finally maintained, of juries to decide on the libellous character of a publication on general grounds. The increasing eagerness of the public to know what was said in parliamentary debates is another sign of the same tendency. Parliament had always debated with closed doors. In the early days of its history it had been a measure of self-defence, as almost the only way of pro- tecting itself against the interference of the king with the freedom of debate. Now the seat of final authority and the feeling of responsibility to it were beginning to change. The public began to be interested in the debates in parliament, not merely as discussions of national questions, but as ex- pressions more or less faithful of its own opinions. Un- authorized and largely imaginative reporting of debates from memory or hearsay had begun before the middle of the cen- tury. During the time when the troubles with the American colonies were beginning, reporting improved in accuracy and the attention of the house of commons was attracted. The attempt to enforce the rules of the house against publication broke down before the determined opposition of the city of 3 Robertson, Statutes, 440-455; A. and S., 492-493. 420 THE RISE OF DEMOCRACY London. Parliament would not modify its rules until many years later, but from 1771 on tacitly allowed them to be violated with impunity. All these signs of the increasing interest of the public in national questions, of increasing desire to have a voice in their decision, are unmistakable evidences of a tendency to- wards democracy. But in a far different way, in a field so remote from public affairs as never to be suspected, the powerful forces were being prepared which in another age were to transform England into a real democracy. This preparation of democracy is what must be considered the one great forward movement in constitutional growth of the whole period from the accession of Pitt to power to the fall of Napoleon in 1815. If in its origin this movement seems to carry us out of the sphere of constitutional history, it does so only to emphasize the law of history that all lines of progress are dependent one upon another. It is into the field of economic advance that we are carried. The economic changes which began about the middle of the eighteenth century brought about a complete revolution in industry and commerce. 4 Their results were of enormous value in enabling England to sustain the crushing burden of the twenty years' struggle against the plans of French con- quest. But vast as were these consequences, their permanent effect upon the history of the world was not greater than another which followed from the same changes and whose influence is still unexhausted, the rise of democracy. They opened through this result a new epoch in England's consti- tutional history wider in import than did the accession of the house of Lancaster or of the house of Stuart. Fundamental to all else, though not first in time, was the application of steam to machinery, because it removed all limits to expansion. Before it was perfected startling inven- tions of new machinery had been made to which steam could be applied, especially in the manufacture of cloth. But ♦ Cheyney, Readings, 610-615. THE ECONOMIC REVOLUTION 421 steam and new machinery created an insistent demand for fuel and iron. It was at the same time supplied by the open- ing up of vast quantities of coal and ore near at hand, and by improved methods of smelting iron and making steel. No less insistent was the rapidly increasing production for better means of transportation and wider markets. Both demands were instantly met. A network of canals connected the new manufacturing cities with one another and with the sea, while the results of the victories over France, secured in the peace of 1763, opened rapidly expanding -markets and sources of raw materials. Commerce grew as rapidly as industry, and improvements in agriculture during the same years at least helped to meet by home produce the demands for food of the population concentrated in the. centers of industry. The concentration of population -was the line of transition to the political result. Machinery operated by steam meant factories, and factories meant concentrated population. Cottage and village industries by degrees disappeared. Large towns were formed where none had been before, and old ones grew larger. Two results followed. The old classes were in a single generation heavily reinforced from below. The profits of industry endowed a new wealthy class which arose from among the manufacturers, or from families not prominent before, to take a place in popular influence beside the old aristocracy. At the same time the middle class re- ceived a large accession of numbers, and we may almost say that a wholly new laboring class was created, so greatly did it differ from the more stolid, slow, and unreasoning laborers of a mainly rural England. With these changes in the con- tent of classes went a change of atmosphere, especially of political atmosphere, in large portions of the country. The new elements which began to make themselves felt in public life were not inclined to conservatism. They were restless under many of the conditions in which they found themselves ; they were little bound by old ideas, were ready to change, inclined even to be radical and deeply interested in certain 422 THE RISE OF DEMOCRACY reform demands which affected their position in the state or their local situation. The impression must not be given that a violent revolution in public life was wrought all at once. The first effect was tendency rather than actual achievement. But a beginning was made at once from which there was no going back. The changes which resulted from and attended the economic revolution somewhat slowly developed into a great movement towards a democratic control of government and of all pub- lic interests. This movement has gone on constantly widen- ing and deepening from that day to this and constantly ac- complishing more and more of its aims in the management of national and local affairs. In one very true sense the changes brought about were not revolutionary. They were no break with England's past, but the logical outgrowth, the consummation in practical government, of that slow drift towards the sovereignty of the people which began long cen- turies 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 complete 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. We are apt to think of the change as revolutionary, partly because of the striking character of the changes made, and partly because there now enter plainly into the political arena forces which had been heretofore more disguised in their action, economic forces, and new classes. Apart from the war with France and the management of national finances, the great measure of Pitt's administration which may be called one of constructive statesmanship was the union with Ireland. The union with Scotland in 1707 was a union made between independent nations by equal nego- UNION WITH IRELAND 423 tiation and with mutual concessions. Ireland, however, was a subject nation, and a subject nation with peculiar dis- abilties. Concessions had been made to Irish independence since the accession of the king — Poyning's acts had been repealed and the act of George I which gave the English par- liament the right to make laws for Ireland 5 — but the situa- tion had not been materially affected in matters that were concerned in the making of the union. Negotiations had to be carried on not with Ireland but with the owners of pocket boroughs, and the concessions had to be made to indi- viduals who commanded political influence. Out of 118 boroughs sending members to the Irish house of commons 110 were privately owned. Ireland was in a position which might be one of consider- able danger to Great Britain. Full legislative independence had been granted to the Irish parliament by the repeal of the acts named above in 1782, 6 but the Irish parliament had no real check upon the executive, which was appointed by and responsible to the English ministry of the day, and which, through the corrupt system of representation pre- vailing, could control the legislature. In 1793 the parlia- mentary franchise was granted to catholics, but they were still disqualified from being themselves elected, though they obtained freedom of worship, of education and land-holding, and of appointment to commissions in the army and navy. The English church was the established church of the island, and all nonconformists, protestant as well as catholic, had to pay tithes for its support. In 1798 discontent led to rebellion. The plan to combine protestant and catholic dis- senters in the effort had failed and the attempt was made by the catholics. It was foredoomed to failure unless strong French forces could be landed, and the several expeditions sent from France were all failures. The insurrection accom- plished nothing except to add new memories of excesses of s Robertson, Statutes, 204-205. e Robertson, Statutes, 258-260. 424. THE RISE OF DEMOCRACY violence and atrocity on both sides to make the future still more difficult. Ireland remained, however, a threat of danger which should if possible be removed. After the rebellion had been put down, Pitt resolved to bring Irish legislative independ- ence to an end, and he believed that it was necessary at the same time to end the protestant supremacy. If Pitt's whole plan could have been adopted, the future of Anglo-Irish relations might have been different. He carried the political part of his proposal and failed with the ecclesiastical. 7 The Irish parliament was brought to an end. The private owners of boroughs were compensated at heavy expense. A hun- dred Irish members were added to the British house of com- mons, and twenty-eight Irish lay peers, elected for life, with four ecclesiastical peers, were added to the house of lords. An Irish peer, not serving in the British house of lords, might be elected to the house of commons by an English but not by an Irish constituency — an arrangement afterwards taken advantage of by Lords Castlereagh and Palmerston. Pitt, however, had no idea that an absorption of Ireland into a United Kingdom alone would solve the difficulties in that country. The political union was only the first step in a series of reforms which he hoped to carry, and a prelim- inary step only. Those that were to follow were expected to bring in the really constructive results, and of these catholic emancipation, the establishment of complete polit- ical equality for catholics, was the essential introductory measure. It was with this understanding that the union had been adopted in Ireland. Pitt made no definite pledge, but the cabinet did allow it to be understood that catholic relief was to follow. In this matter, however, the policy of the ministry came into collision with the obstinacy of the king. George III was violently opposed on religious grounds. He believed also that, as he had sworn in his coronation oath " to maintain to the bishops and clergy of I » A. and S., 497-506; Robertson, Statutes, 283-292. GEORGE III AND IRELAND 425 the realm and the churches committed to their charge all such rights and privileges as by law do and shall appertain to them or any of them," he should be guilty of perjury if he yielded. Pitt did not handle the crisis with his earlier skill, and found himself obliged to resign. The stand of George III on this question is the last serious case which has occurred of the interference of the royal prerogative with a policy deliberately formed by the responsible ministry of the crown. Other instances of interference are to be noted but they are of minor importance. By this interfer- ence much needed catholic emancipation was postponed for nearly thirty years. The ministries which follow one another at comparatively short intervals until 1812 present in their policies no points of especial constitutional interest. When Pitt became prime minister again in 1804, he was anxious to include Fox in his cabinet, but the king positively refused, and the ministry was formed without him. On the death of Pitt, however, in 1806, his ministry crumbled to pieces and the king found no alternative possible but to accept the ministry of " all the talents " with Fox as foreign secretary. When Pitt resigned in 1801, he had promised out of sympathy for the king, who had been threatened with serious illness by his anxiety over the catholic question, that he would never bring forward the measure again so long as George should live. In 1807 the king required a similar pledge of Lord Grenville's ministry, in view of a measure they proposed. They refused to give the pledge and resigned. For a short time in this interval of shifting ministries the whigs were in office, but in 1812 Lord Liverpool's tory administration of fifteen years began. Before this date, however, the reign of George III had really closed. He had been subject to occasional attacks of mental disease, during which he was incapacitated for any share in public business. From the earlier ones he had shortly recovered, but the attack of 1810 was permanent, 426 THE RISE OF DEMOCRACY and the regency to 1820 is one of the longest in English history. At the time of the king's illness in 1788 a debate of considerable constitutional interest concerning regencies had taken place. In earlier times the great council had had some share,- though not definitely defined, in the appointment and regulation of regencies. Its successor, the parliament, particularly during the age of special parliamentary activ- ity, the fifteenth century, had assumed a wider function. From the precedents of that time it might be fairly argued that the sole power to appoint the regent, as well as to define the limitations under which he should exercise the royal prerogatives, resided in parliament, and that no person, not even the direct heir to the crown, could claim the place of right. By statute in the reign of Henr}' VIII the king was given the power, as if he did not otherwise possess it, to appoint a council of regency for his successor, if one should be needed, and he did appoint such a council for his son Edward VI, but the arrangement which he made was some- what changed after Henry's death. This was the question at issue in 1788. It had been the Hanoverian fashion for the prince of Wales to be opposed, sometimes bitterly opposed, to his father, and to head the parliamentary opposition to the cabinet in office. In 1788, the future George IV was in close alliance with the whig part}' leaders, who were out of office and eager to take the place of Pitt's ministry yet only five years old. It was commonly believed that if the prince of Wales became regent the whigs would come in by as sudden an act of prerogative as that by which Pitt had been appointed by the king. They there- fore argued that the place of regent was his of right and with the full powers of the king, and that parliament's function was limited to deciding when the regency should begin. This claim, though strongly argued, received little support from history or in the public opinion of the time. Pitt, who evidently believed that still, as in his own case, a political party with the support of the king could retain THE REGENCY 427 power against the will of parliament, argued with general agreement that the right of parliament was complete to do whatever it should think best in the case. Even the prince of Wales was moved by the weight of opposition to declare through his brother, the duke of York, in a formal statement in the house of lords, that " he understood too well the sacred principles which seated the House of Brunswick on the throne, ever to assume or exercise any power, be his claim what it might, not derived from the will of the people, ex- pressed by their representatives and their lordships in parlia- ment assembled." The principles for which Pitt had argued were applied in the regency bill which was passed in February, 1811, in spite of considerable opposition and the formal protest of the sons of George III. 8 The prince of Wales was made regent, but under some limitation upon his exercise of royal prerogatives. It was expected again that the tories would be at once turned out of office and a whig ministry formed. Such an arbitrary exercise of the king's power would have been acquiesced in without serious opposition, even at that date, notwithstand- ing the great progress which had been made since 1788 in the understanding of cabinet government. The prince at once, however, began to look at things from the standpoint of the king, instead of the heir, and no change of ministry was made. During the rest of his life he proved himself as thoroughgoing a tory as his father had been. One change in the arrangements made for regencies should be noticed. In early times it had been customary to appoint distinct councils of regency with a special responsibility to parlia- ment. When the responsible relation of the cabinet to the government of the country began to be perceived, it was seen that this special council was no longer necessary and it ceased to be a feature of the later regency acts. Not merely was the function of the cabinet by this date better understood, but the necessity, against which almost s Robertson, Statutes, 171-182. 428 THE RISE OF DEMOCRACY the whole eighteenth century had protested, of the office of prime minister as well. This understanding is well stated in a letter of Lord Melville's in 1803, explaining Pitt's views about entering the Addington cabinet. Lord Melville said that Pitt had " stated not less pointedly and decidedly his sentiments with regard to the absolute necessity there is in the conduct of the affairs of this country, that there should be an avowed and real minister, possessing the chief weight in the council, and the principal place in the confidence of the king. In that respect there can be no rivalry or division of power. That power must rest in the person generally called the First Minister, and .that minister ought, he thinks, to be the person at the head of the finances. He knows, to his own comfortable experience, that notwithstanding the abstract truth of that general proposition, it is noways in- compatible with the most cordial concert and mutual ex- change of advice and intercourse amongst the different branches of executive departments ; but still, if it should come unfortunately to such a radical difference of opinion that no spirit of conciliation or concession can reconcile, the sentiments of the minister must be allowed and understood to prevail, leaving the other members of administration to act as they may conceive themselves conscientiously called upon to act under the circumstances." Pitt's experience very likely led him to an earlier percep- tion of the true place of the prime minister than was general, but in the first decade of the nineteenth century we may consider the cabinet system in full operation, though it is some time later still before any intelligent account of it as a whole was put into print. It was Pitt's long ministry, the clearness with which he recognized his position, the absence from his cabinet of any rival in intellectual ability, the tact with which he determined relations with the king, and, it must be added, the national centralization which came with a time of war, all these together which brought the modern office of prime minister finally into existence. With it came A NEW AGE 429 also more clearly than before cabinet solidarity and the ex- clusion of the king from practical government. When the cabinet must follow the prime minister as a unit, and when the king can no longer interfere with the policy of the prime minister through members of his cabinet who hold a position independent of him, the modern system is in operation. The close of the struggle with Napoleon in 1815 marks the beginning of a new age in English history. As we study the details of that transition, it seems to us almost as if we passed at a single step from conditions as strange to us as the eighteenth century is into conditions and atmosphere much more familiar and modern. Partly this feeling is due to the appearance in public life of a group of young men whose activities and those of their slightly younger contem- poraries form a part of the familiar tradition and even the personal knowledge of men still in middle life. It is also due in part to the fact that the results of the economic revolution now begin to make themselves distinctly visible in the political sphere, and these are results which have gone on with increasing influence until they really dominate public life at the present day. It is certainly in some of its deter- mining qualities more truly a contemporary than a Georgian atmosphere into which we pass in 1815. Especially interesting is the group of new men who had then just taken their places upon the political stage or were soon to do so. Brougham, Palmerston, Sir Robert Peel, and Lord John Russell were already in parliament, and Palmers- ton and Peel had begun their official careers ; the former was thirty-one and the latter twenty-seven. William Cobbett, like Robert Owen, was considerably older, but his career of reform without reserve, in which he particularly represents certain of the results of the economic revolution, does not begin until 1816. Younger, all born after the opening of the nineteenth century, but shaped by the new influences and soon to begin their great careers, were Richard Cobden, John Bright, Gladstone, and Disraeli. Upon most of these, upon 430 THE RISE OF DEMOCRACY Peel, Cobden, Bright, and Gladstone at least, the forces cre- ated by the new social and political movement had as pro- found effect in some ways as upon Cobbett and Owen. It is through their work indeed that these forces first come to political expression. It is interesting to note that in the history of the United States the age is in the same respects a new one, and characterized also by the appearance in public life of the group of new men who dominate the middle generation of the century, Calhoun, Webster, Clay, John Quincy Adams, and Andrew Jackson, whose career and place in public life is not unlike the duke of Wellington's in England. Far greater, however, was the effect of the economic changes in the general life of the time than any which shows itself in the activities even of the leaders of political affairs in the new period. The war had been a time of apparent prosperity. Rapid sales with high prices had prevailed ; commerce and manufactures had expanded and wealth had been rapidly accumulated. But the prosperity had been somewhat artificial and, with the removal of the peculiar conditions created by the war, it declined, and economic dis- tress became general among the less well-to-do classes. The years which immediately followed the close of the war were filled with unrest and agitation, partly economic owing to real destitution among the working classes, and partly due to a desire for parliamentar}' reform or more revolutionary changes in the direction of socialism. Parliament was still in the hands of the aristocratic portion of the nation, chiefly the land-owning class, and the policy which was adopted towards agitation was one of harsh repression. There was some extravagance of word and action on the part of the radical elements, and these were held to justify the use even of force, amounting in one case to what became known as the Peterloo massacre. New acts were passed against sedition, limiting the right of public meeting and of the using of arms, and increasing the severity of existing laws, and the writ of THE BEGINNING OF REFORM 431 habeas corpus was suspended. 9 But it soon became evident that the social changes of the last decades had created a new type of workingman not so easily held down. The agitation continued notwithstanding all efforts at repression, and soon began to find spokesmen in the house of commons. It has been said that the first great radical victory won in parlia- ment was the repeal in 1824- of the combination laws, the laws under which combinations of workingmen to better their condition were held illegal. But b} 7 1824< the indications were already clear that the first great reform age of the nineteenth century was opening. The ministry of Lord Liverpool as reconstructed in 1822—23, though tory, was a reform ministry, if reforms did not cut too deeply into the constitution. Changes in the criminal law had long been urged. About two hundred capital crimes were contained in the criminal code of the early nineteenth century, most of them inherited from the middle ages. Thirty-five kinds of forgery were punishable with death, as well as many slight offences like petty larceny. While in actual practice so severe penalties were not exacted, the whole code needed reconstruction. This was given it be- tween 1822 and 1830, and the death penalty left on the statute books only for serious crime. The procedure of criminal trials was at the same time simplified. Financial reforms important in themselves, and even more important as opening a long series of similar reforms, were adopted. The navigation laws, many centuries old, might be abandoned under reciprocity treaties with any nation which would grant a like concession — the practical end of the system. The corn laws, also of long standing and strengthened at the end of the war as a protection to national agriculture, which did at that time need assistance, were modified and their wisdom sharply challenged. More im- portant still, the general protective system was attacked. No attempt was made to bring in free trade, but progress 9 Cheyney, Readings, 663-669; Robertson, Statutes, 512-517. 432 THE RISE OF DEMOCRACY was made towards that result. Tariff duties were lowered, in some cases very decidedly lowered, on a long list of articles, and absolute prohibitions removed, of manufactured goods and especially of raw materials. Bounties on exports and prohibitions on the emigration of workmen were abolished. A large beginning was made but the way was still long to free trade, and yet enough had been done to allow the evi- dence of facts and experience to accumulate. More striking in the popular judgment and equally essen- tial to future progress were the steps taken towards religious toleration. During the reign of George III, from 1760 to 1820, both protestant and catholic dissenters had been re- lieved of many disabilities. These had concerned, however, matters of religious belief and practice rather than political status. The test and corporation acts of the seventeenth century still remained enforceable in law, though they were in practice generally disregarded and annual acts of in- demnity passed to relieve from penalties those who had vio- lated them. They were at last repealed in 1828. In the next year the even more important " catholic emancipation act " was passed. 10 The union with Ireland had increased greatly the proportion of catholics in the population for which it was the duty of parliament to legislate, and forced into attention the injustice of the existing laws. The in- creasing agitation in Ireland, led by Daniel O'Connell, brought the country to the verge of civil war. The change was carried by the tory ministry of the duke of Wellington in 1829. At first George IV declared as violently as his father had done that he would not consent, but he was com- pelled by the force of circumstances to yield — the last occa- sion on which a British king threatened to thwart a measure to which the cabinet had agreed. The act of emancipation admitted catholics to both houses of parliament and to all public offices, local and national, except a very few. Com- paratively little yet remained to be done in this direction, io Robertson, Statutes, 312-3-27; A. and S., 508-513. CATHOLIC EMANCIPATION 433 but Jews were not admitted to parliament until 1858, nor nonconformists on equal terms to the universities until 1871. Meantime a general popular demand had sprung up for a reform, more important from a strictly constitutional point of view and more difficult to carry, the reform of parlia- mentary representation. Generally recognized as necessary for two generations, and many times brought forward in parliament by one advocate or another, it now became an object of increasing agitation among the people, but its serious consideration by the parliament which had granted catholic relief was prevented by the necessity of a general election on the death of the king. George III had died in 1820, though his reign had really ceased in 1810 upon his permanent disability. In the severe struggles through which the nation had been called to pass after 1790, the king had shown himself so thoroughly at one with his people in senti- ment and purpose and so devoted to the national cause that he had won a degree of affectionate regard hardly before ob- tained by any English king. His son, George IV, inherited none of this regard, either personal or political, but on the contrary his moral character and his ignorance and lack of interest in matters of government made him the least re- spected of kings. He was succeeded by his brother, William IV, who was equally ignorant of public affairs but who re- tained his whig principles, and was more conscientious about the duties which should fall to a king and more scrupulous to regard the limitations of his constitutional position. Bibliographical Note. — P. A. Brown, The French Revolu- tion in English History, 1918. P. Mantoux, La Revolution In- dustrielle au XVIII* Siccle, 1905. E. Porritt, The Unreformed House of Commons, 2 vols., 1903. Lord Rosebery, Pitt, 1891. A. Toynbee, Lectures on the Industrial Revolution, 1913. G. M. Trevelyan, Lord Grey of the Reform Bill, 1920. Sir G. O. Trevelyan, George III and Charles Fox, 1914. G. S. Veitch, The Genesis of Parliamentary Reform, 1913. G. Wallas, Life of Francis Place, 1898. CHAPTER XVIII THE AGE OF REFORM The necessity of the reform of parliamentary representa- tion had been almost forced upon the attention of thinking men by the corrupt practices of the eighteenth century. Lord Chatham denounced the existing system severely in 1766, and again in 1770. In 1776 Wilkes introduced a bill making extensive changes, but he could not get a division upon it. In 1780 the duke of Richmond fared no better with a bill which went farther in the way of change than parlia- ment could be persuaded to go for more than a century following. The younger Pitt made motions in the house looking to reform in 1782 and 1783 without success and, as prime minister, in 1785 failed to obtain leave to introduce a bill making very considerable reforms. He proposed to purchase at the expense of the state, as it was then thought justice demanded, the rights of private owners and borough corporations in nearly fifty boroughs and to transfer their representation to London and the counties. This was Pitt's last attempt, but others took up the rather hopeless effort : Flood in 1790, and in 179& Grey, afterwards earl Grey, so long identified with the reform, and again in 1793 and 1797. It was nothing more than natural that the French revolution, with what seemed to many the excesses necessarily brought on by its democratic tendency, should lead to a reaction against any plan which appeared to have similar tendencies, and it required many years to remove the fear of the results of reform from the minds of statesmen who had had their training in the period of struggle. The subject was brought forward in vain in 1809, in 1810, in 1818, and in 1819. Lord John Russell, who had so much to do with the passage 434 UNEQUAL REPRESENTATION 435 of the reform bill of 1832, made his first motion for the pur- pose in 1820 and repeated it in 1822, 1823, 1826, 1828 and 1830. Meantime attempts had been made by others, and it was clear that a great weight of public opinion was col- lecting behind the effort. The result of the industrial revolution in creating a more democratic spirit had greatly increased the public support which could be relied on for a measure of reform, but the argument against the old system had long been complete. 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 popu- lation, 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 con- tinued, and the inequalities, especially in the case of the boroughs, were greatly increased by the changes in popula- tion which followed the industrial revolution. Large new towns arose which had no representation. Old boroughs lost population heavily. Old Sarum with no electors, Gal ton with seven, and Tavistock with ten, returned each two mem- bers, while Manchester and Birmingham had none. Ninety members were sent by forty-six places with less than fifty electors each. Worse even than this, the decline in popula- tion, combined with limited rights of suffrage, had put many boroughs sending members to the house of commons com- pletely into the hands of neighboring great landowners who either controlled the election through their ownership, the so- called pocket boroughs, or found it easy to buy the required number of voters, the rotten boroughs. 1 The duke of New- i Cheyney, Readings, 64S-646. 436 THE AGE OF REFORM castle nominated eleven members of the house of commons, Lord Lonsdale nine, Lord Fitzwilliam eight. Six peers to- gether sent forty-five members. Nearly half the membership of the house represented in this way private interests rather than a public constituency. Early in November, 1830, after the parliamentary election of that year, the same Earl Grey, who had been a leader in the eighteenth-century attempts, 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, an- swered in absurdly extravagant praise of conditions as they were, saying among other things that if he had been called upon to form legislative institutions for any country he could not hope to do as well as the existing institutions of England, " 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 preparation 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 on a question of finance and re- signed. The king sent for Earl Grey who formed a whig ministry and went on with the session without asking for a new election. The house of commons had nominally a tory 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 readings, but on the second reading the majority in its favor was only one in a vote of over six hundred. In parliamentary practice a small ma- jority 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 committee of the whole, and experience shows that more ELECTION OF 1831 437 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 nineteenth of April the cabinet was defeated by a majority of eight on an amendment to the bill. 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 se- cured for the government. So quickly was all this done that on June 24 Lord John Russell introduced 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 op- posed to a measure which seemed about to destroy the political influence of the aristocracy, 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 parlia- ment in order that a new session might allow the reintroduc- tion of the bill. In the interval between the two sessions the public excite- ment 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 in 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 438 THE AGE OF REFORM radical supporters of the bill who expected larger results from it than it really produced. The house of lords met in the new session under no misunderstanding as to the temper of the majority of the nation. On December 12 a new bill was introduced considerably 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 re- form 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 revolutions on the con- tinent, 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 government were, however, too strong for many minds in the 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 seventeen 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 amendment and of adverse votes in committee of the whole, COERCING THE LORDS 439 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 fulfill- ment of his promise to create peers, offering him the alterna- tive 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 neces- sary. He was himself conservatively minded and somewhat afraid of the reform, though on the whole loyal to the min- istry, 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 resig- nation of the cabinet. 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 re- fused to serve ; the house of commons passed a vote of con- fidence 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 yielding meant agreeing to the cabinet's demands. He attempted in vain to persuade them to consent to important 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 440 THE AGE OF REFORM to suggest to Wellington and certain others that all difficul- ties 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 al- lowed to pass by a large majority. 2 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 respons- ible ministry, which is the especially characteristic result in the constitution whose historical development we have been following. From 1832 to the period of stress occasioned by the world war, the operation of this system 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 his- tory 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 ordinary business details of administration, but in the higher deter- mination 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, how- ever democratic politically, is still aristocratic 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 passage of the reform bill. He strongly disliked some details of the measure and repeatedly tried to persuade the cabinet to change them without success. The king can- not 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 some member or in writing, and urge their acceptance, and they will always be considered respectfully and fully. In matters 2 A. and S., 514-5^6; Robertson, Statutes, 327-346. THE KING'S ACTION 441 of form, which may indirectly involve matters of substance, as in the famous case of the note of Lord Palmerston's gov- ernment 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 accepted, 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, in order to change the majority in the house of lords, 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 con- clusion that no government could be formed which could carry on the business of the country, then the king had to 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, in which the nation would be intensely interested, that the king 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 view about the reform bill to become known would be thought improper in a sovereign of today. It must be noticed, however, that his act in sending a letter to opposi- tion members of the house of lords differed very decidedly from the similar act of George III against Fox's India bill in 1783, in that it was in support of the policy of his govern- ment while George's was an attempt to defeat the cabinet. Theoretically the king is supposed to have no political 442 THE AGE OF REFORM 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 responsible ministers, and therefore the statement must be inaccurate." The only political function which the king can perform is to support his cabinet loyally and completely in such ways as are possible to him, which are not many. The three rights which, fifty years ago, Bagehot attributed to the crown, " the right to be consulted, the right to encourage, the right to warn," amount to no more than this, though they seem to allow some room to influence actual government. 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 pos- sible that he may often serve as a particularly useful ambas- sador because of the peculiar access he may have to the inner circles of a foreign government. As Mr. Gladstone has said: " personal and domestic relations with the ruling families abroad give openings, in delicate cases, for saying more, and saying it at once more gently and more efficaciously than could be ventured 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 har- mony 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 government 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, THE FUNCTION OF THE LORDS 443 and Queen Victoria's personal place in the future history of England 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 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. A first rejection of any bill was clearly their constitutional right, an appeal to the people with the question : Is this your deliberate and mature desire? A second rejection, after a general election upon the specific question had declared the popular will unmistakably, or after it had been clearly declared in any way, would be of more doubtful propriety ; and a third rejection after continued evidence of a national determination would certainly have endangered their his- torical 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 sovereignty 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 strong^ tempted to resist the reform. Only the great influence of the duke of 444 THE AGE OF REFORM Wellington, who explained to the house clearly and for the first time the powerlessness to which it had been reduced in the constitution, prevented a repetition of the experiences of the reform bill. From that time on to near the end of the centurj', it was the custom to say that the house of lords served the purpose of a brake on the wheel of too rapid advance, served to make sure that a reform was really de- manded by the mature judgment of the country. Before the close of Victoria's reign, however, the complaint became very frequent that the brake was applied onh T 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 Rose- bery a few years ago declared in a speech that in his expe- rience a"s liberal leader of the house, since the disruption of the party caused by the home rule bill, he had never been able to count w T ith 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 impor- tant 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 parlia- ment bill of 1911. If we regard the English constitution with special reference to the character of its long historical development, there is nothing revolutionary about this meas- ure. It 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, THE CABINET IN OPERATION 445 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 sover- eignty 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 during the nineteenth century 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 cer- tainty 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 gov- ernment 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 be defeated in the house of commons, 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 support 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 returned by the electors, and the vote was considered a man- date 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 largo majority in the com- mons. An appeal to the country was unnecessary and would 446 THE AGE OF REFORM have been improper. Instead the cabinet prorogued parlia- ment 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 same time the alternative of the cabinet's resigna- tion. 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 re- mained 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 govern- ment 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. The constitutional 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 HOUSE OF COMMONS 447 the cabinet by a direct vote of confidence, which is equivalent to a formal declaration to all opponents that the country is behind the government's policy. If public opinion turns against that policy, corresponding 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 unwilling 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 business 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. 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 disfranchised and seats had been given new centers of population, and these were changes which had been desired. Fifty-six boroughs were dis- franchised and thirty lost a member each. Twenty-two large towns, including some London districts, were given two members each and twenty others one. Sixty-five seats were added to the county representation. As to the right of voting, a common borough franchise was created for all occu- piers of premises of the annual value of ten pounds, and in the counties the old forty shilling freeholders were reinforced by the addition of copyholders and leaseholders and of ten- ants at will paying fifty pounds rent per annum. But though the number of voters had been increased by about fifty per cent, no important change was manifest in the char- acter of the membership of the house of commons, and no evident progress had been made towards democracy. Cor- rupt voting was not entirely extinguished, difficult formalities 448 THE AGE OF REFORM in the process of registration kept down the number of voters, and the natural local influence of family and property com- bined with all the rest to reduce the significance of the reform. Its permanent importance proved in the end to be less in the immediate change it made than in introducing the possi- bility of change. It was the first giving way of the old aristocratic system in any material matter and it opened the door to all that followed. The radical supporters of the bill were not satisfied with the concessions which that measure secured and it was not long before agitation began for sup- plementary reforms. The agitators had much material to build with in the rather general discontent of the working class, 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 Peo- ple's Charter in which the radical demands were stated. 3 These were six in number : universal manhood suffrage ; vote by ballot, to prevent intimidation ; annually elected parlia- ments, to maintain the responsibility of members ; payment of members of the house of commons, to make possible the election of poor men ; the abolition of the property qualifica- tion for membership 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 democratic 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 prog- ress since that day. Three of the demands, the second, fourth and fifth as given above, have been fully secured; and before the close of the century, the first also, with very slight exceptions which have now been swept away and the limitation implied in the word manhood dropped as well. *Cheyney, Readings, 701-712. MANY CHANGES 449 The sixth has been fully obtained in principle and in practice- as nearly as some peculiar difficulties of the situation allow. The third has not been secured in form, but the possible life of a parliament has been reduced to five years, and the re- sponsibility 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, accord- to the standards which they proclaimed, it is a democracy, 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. The interval of thirty-five years between the first and sec- ond reform bills was a period of many changes. A good proportion of these were economic or social in character and not strictly constitutional, but the more important may be named as indicating the general spirit of the epoch. Colonial slavery was abolished, with compensation to owners, in 1833. In the same year a beginning was made in legislation in favor of national education. The beginning was difficult and small, because education w T as in the hands of the various religious bodies and jealously guarded. It consisted merely in a grant of £20,000 to aid school building, but from this beginning was framed before the end of the century a system of national schools and popular education revolutionary in comparison with anything that went before it. Factory legislation, regulating hours and conditions of labor, had already begun and was now extended, leading on by degrees to the present extensive system of regulation and protection. A new poor law was adopted in 1834. The navigation laws were repealed in 1849, and the corn laws and protective tariffs before 1850. Penny postage and the postage stamp were introduced in 1839, and the postal savings bank in 1861. Much of parliament's time was occupied by Irish troubles and Irish agitation, without significant result. Of changes between 1832 and 1910 that are to be consid- 450 THE AGE OF REFORM ered constitutional, the most extensive and far-reaching after parliamentary reform arc those affecting local government, urban and rural. 4 Local government as it had passed into modern times from the Tudor ages was in theory and form self-government. It was in fact local self-government if by that term is meant government free from the interference of the central power. If, however, the term is taken to imply the existence of a democratic community government, then it can be applied to the actual situation only in theory, not in fact. The accumulation of many powers in the hands of the justices of the peace, appointive from the local gentry, the requirement by law of a property qualification for all the important officers who controlled the counties and super- vised the parishes, and the outcome of seventeenth century history which restored the squirearchy to as great a practical power in local affairs as the medieval lords of manors had possessed, all combined to make the local government of the eighteenth century and down to 1888 thoroughly aristo- cratic. The government of the boroughs, which were out- side the counties, shows similar tendencies. The only in- terruption in borough history after the middle ages came from the Quo warranto proceedings of the last two Stuart kings, and the only final effect of this interruption was to hasten the process naturally going on which was putting the control of their government more and more into the hands of a close corporation. In both counties and boroughs local government as inherited by the nineteenth century was dis- tinctly undemocratic. The change was initiated by the success of parliamentary reform, and first in the boroughs. The effect of doing away with the medieval qualifications for parliamentary suffrage was to raise the question of the suitablity of the medieval constitution for other borough functions. Soon after the reform bill of 1832 a royal commission of inquiry into bor- ough governments was appointed, and their report was fol- * Robertson, Statutes, 432-437, first edition. LOCAL GOVERNMENT 451 lowed in 1835 by the municipal corporations act — the first step in the process of reform. Fifty years later the third parliamentary reform bill of 1884 had a similar effect on rural local government. By the extension of the borough franchise to the counties it made the old conditions seem as out of place as the first reform bill had in the boroughs. In the meantime, a great variety of individual acts had been passed making single changes, conferring new powers or creating new offices or new local areas. The result was a confused mass of local authorities and districts, overlapping one another and making a "jungle of jurisdictions," a " chaos of authorities." The process of bringing this chaos into the present form has been largely one of simplification, though it has also been one of creation and extension. For our purpose there is no object in following the hundreds of particular steps by which the present result has been reached ; the result itself we need to study briefly. To the American who compares in detail the English sys- tem of local government with his own, it still seems to lack simplicity, and he finds it difficult to form a picture of it which is at the same time clear and distinct. The details tend to prevent a general view. Persistence in the attempt leads to the conclusion that the similarities in the local gov- ernment systems of the two nations are on the whole more numerous than the differences, though these are striking. Perhaps we may say that the English system strikes us as being very much the result which we should get if we super- imposed the local government of the states in which the county is the local unit upon that of the states in which the town is the local unit, making a not entirely perfect divi- sion between the two units of the functions which would thus be duplicated. In England there are, however, three local units one above the other: the county and county boroughs, which are divided into boroughs and urban and rural dis- tricts, these last being in turn subdivided into parishes. In this scheme the position of London is somewhat peculiar. 452 THE AGE OF REFORM The government of the city, technically so-called, the square mile extending north from the Thames between the Tower and Temple Bar, has not been affected by the changes of the century, and it remains outside the jurisdiction of the London county council under its own lord mayor. The remainder of greater London, as one might call it, has been organized as a separate county under the London county council, which is formed on the same model as the other county councils but with somewhat more extensive powers. This county of London is divided, like the county boroughs, into boroughs, of which there are twenty-eight. The county in this scheme of local self-government is not the historical county, though actually it is so in six cases, and does not vary greatly in the others, but the " admin- istrative " county, of which sixty-two were formed from the fifty-two historical counties. The county boroughs were the towns which had anciently been made counties or which had, or should attain, a population of 50,000. Of these, sixty were provided for in the original bill, and there are now T over seventy. They are independent of the counties but their position and government is practically the same. In all these the governing body is a council of elected coun- cillors, and of additional aldermen elected for a longer term by the councillors. In the intermediate division, the bor- oughs and districts, the government is also conducted by an elected council, though without aldermen. In the boroughs this council serves for all borough purposes. The larger parishes have also councils, and in the smaller busi- ness is done by an assembly of all the voters, as in the New England town meeting. To the county councils were transferred nearly all the ad- ministrative duties which had accumulated in the hands of the justices of the peace, leaving to these their judicial and a few other functions. Upon the district councils rests the chief responsibility for local sanitary matters and the care of all roads not main highways, which are under control of CENTRAL SUPERVISION 453 the counties. In the parishes civil business has been sep- arated from ecclesiastical, and the latter is in the hands of the vestries. In general the matters which fall naturally to local control are shared in alike by all three local units in diminishing spheres of authority and responsibility from top to bottom. No principle of division between the local units seems clear to one strange to the actual operation of the system, and in some cases, like care of the poor, the place of a principle seems to be taken by tradition from the past. The chief matters under local control are: local finance, the lower grades of education, sanitation, police (shared with the justices of the peace), poor relief and asylums, and roads and bridges. The larger part of the actual work of government is done by committees, upon which persons may be asked to serve who are not members of the councils. The changes which have been made have not taken the control of government out of the hands of the upper and upper middle classes, but there is general satisfaction with the results, and a change in this respect is always within the power of the body of voters. To the American the least familiar feature of the English system is the supervision which is exercised over local gov- ernment by authorities of the national government. We need to remember here as elsewhere that the English central government has to perform the functions both of our na- tional and our state governments. We have I believe, how- ever, nowhere anything corresponding to the supervision exercised over local government by certain of the English central administrative departments. There are five of these, each giving its head cabinet rank. The home office supervises local police and a part of the work of local sani- tation, with a few other things ; the local government board has a great variety of duties, including care of the poor, sanitation and local finance ; the boards of education, trade and agriculture supervise the interests indicated by their names. These central departments have the power of issu- 454 THE AGE OF REFORM ing orders of a legislative character ; they have a right of veto upon many local proposals; they act through a some- what elaborate system of inspectors ; and one of their chief functions is to furnish expert advice and assistance in local enterprises. As the staff in these offices is a permanent one, and as a tendency has been detected on the part of the local authorities to rely more and more on their guidance, the fear has been expressed of the growth of central bureau- cratic authority as a result. It is hardly possible to say that the reforms in the law and in judicial institutions which followed 1832 are of less value to the individual than those in local government, though they are less conspicuous. 5 In 1836 changes were made in criminal trials by which the accused was given the right to counsel and to a more full knowledge of the evidence against him, and in 1837 further advance was made in limit- ing the number of capital crimes. Following these acts a long series of statutes has been passed affecting both the con- tent of the criminal law and procedure in trials in the interest of humanity and impartial justice. In 1907 the court of criminal appeal was established and very full rights of ap- peal allowed. In the field of civil law the greatest need of reform was felt in the cumbrous and expensive procedure which had been inherited from medieval times. In 1832 procedure was slightly simplified and was made uniform in all three common law courts. Other reforms followed, espe- cially in 1852 when two statutes were adopted by which ex- tensive changes were made in procedure and in the staffs of the common law courts. Serious reforms in the chancery system began about this time, consolidating the courts, sim- plifying procedure, and tending to do away with the conflict between equity and common law. These various streams all contributed to the series of judicature acts of 1873 and following years down to 1910, by which the whole judicial system has been reconstructed s Robertson, Statutes, 437-142, first edition. PRESENT DAY LAW COURTS 455 in external organization and in much of its inner content. 6 All the national courts have been brought into one " supreme court of judicature" which is generic in character, existing only in its two branches, the court of appeal and the high court of justice; the latter also exists only in its three "di- visions," the king's bench, the chancery, and the probate, divorce, and admiralty court. The names of the two latter indicate their character, and in the king's bench division the old common law courts have been consolidated, exchequer and common pleas courts disappearing. A part of the business of the high court is also done in the assize courts on circuit, the modern form of the old itinerant justice sys- tem. The operation of the divisions of the high court has been made as uniform as possible both in procedure and reme- dies, common law and equity being fused, but in business they remain distinct. From the decisions of the high court a-n appeal lies to the court of appeal, and from that to the house of lords as a supreme court. Local justice in civil cases has also been provided for by a division of the country into about 500 districts grouped in circuits, first made in 1846, and called by the historical name of county courts, though they have no connection, historical or geographical, with the older system. From nearly all their judgments an appeal may be taken to the high court and carried on df desired to the house of lords. They have proved very popu- lar in cases of minor importance, and their jurisdiction has been enlarged in the present century. The courts of the justices of the peace, as local criminal and police courts, still continue in petty and quarter sessions. Little more need be said of the authority of the crown during this period than has already been said. For a long time it was thought that William IV had given in 1834 an- other example of the power of the king suddenly to dismiss his ministers while they were supported by the house of com- mons. It now seems proved, however, that the step was c A. and S., 443-453. ±56 THE AGE OF REFORM taken with the consent, apparently at the suggestion, of the prime minister, Lord Melbourne, who thought his posi- tion insecure and wished to retire from it, though the king, who disliked Melbourne, was glad of the excuse. The in- cident affords an interesting example of constitutional prac- tice. The leader of the opposite party, Sir Robert Peel, was in Rome at the moment. He returned to England at once, formally accepted responsibility for the king's action, organized a cabinet, and attempted to go on with the gov- ernment, though hopeless of the result. The appeal to the country in the dissolution of parliament which followed shortly increased the conservative vote in the house, but still left the party in a decided minority. Peel presented to parliament an attractive programme of reform, but the hos- tile majority would have none of it, and after a courageous struggle of four months since his appointment he was obliged to tell the king that he must recall his opponents to office. The action throughout was entirely in harmony with the in- terpretation of the constitution which then prevailed, and still prevails in theory, but it is not likely that any king will repeat the attempt, or that any minister could now sus- tain himself in a similar situation so long as Peel did. The action of Queen Victoria in 1839, in refusing to allow the ladies of her bedchamber to be changed by the incoming ministry, by which she maintained Lord Melbourne in office for two years after he had resigned, is hardly a case of the same kind. The queen was acting not from political mo- tives but because she believed she was improperly required to make a personal sacrifice ; the question was a new one which had never occurred as an issue before ; and Sir Robert Peel was not anxicms, from the uncertain $>arty temper of the house, to take office. By the time he had obtained a secure majority in 1841, the queen had concluded that she ought to yield the point. The publication of Queen Victoria's letters gives many interesting glimpses of the relation of the sovereign to the government during the middle portion of WHAT THE KING MAY DO 457 the century. The support which the queen gave to Sir Robert Peel during his efforts for tariff reform must have been a great encouragement to him. In 1853, when Lord Aberdeen was trying to form a ministry, the queen wrote him saying she hoped Mr. Gladstone would be made chan- cellor of the exchequer and Lord St. Leonards lord chan- cellor. In spite of this request, Aberdeen tried to get Mr. Graham to take the exchequer and Lord St. Leonards was not continued as chancellor. Particularly instructive are the accounts given in the letters, especially at the beginning of 1855, of the difficulties encountered and the methods em- ployed by British statesmen in forming a cabinet. The memorandum which the queen sent in 1850 to the minister for foreign affairs, Lord Palm'erston, through the prime minister, throws great light on the sovereign's relation to the formation of government policy. Lord Palmerston was inclined to conduct the business of his department in an independent and somewhat arbitrary way, and the memo- randum read : " The queen requires, first, that Lord Palm- erston will distinctly state what he proposes in a given case, in order that the queen may know as distinctly to what she is giving her royal sanction. Secondly, having once given her sanction to a measure, that it be not arbitrarily altered or modified by the minister. Such an act she must consider as failing in sincerity towards the crown, and justly to be visited by the exercise of her constitutional rights of dis- missing that minister. She expects to be kept informed of what passes between him and the foreign ministers, before important decisions are taken, based upon that intercourse ; to receive the foreign despatches in good time ; and to have the drafts for her approval, sent to her in sufficient time to make herself acquainted with their contents, before they must be sent off." What the queen demands is clearly not a voice in shaping the ministerial policy. The most that she implies in this direction is a possible withholding of consent. What she demands from the minister is complete and trustworthy 458 THE AGE OF REFORM information. In 1851 Lord Palmerston was dismissed from office because he had officially expressed views regarding the coup d'etat in Paris in variance with the policy adopted by the cabinet and sanctioned by the queen. In the period be- tween 1832 and the present time there has unquestionably been a great increase of the power and widening of the activ- ities of the executive, but this change has been to the advan- tage of the cabinet and not of the sovereign. For this rea- son, because of the supposed complete subordination of the cabinet to parliamentary control, the change has excited no opposition and no constitutional criticism. In the history of political parties the period w r hich fol- lowed the reform bill was one of a loosening of party ties and of unusual disorganization. A radical wing of the whig party had already formed, and grew in strength. Sir Rob- ert Peel's repeal of the corn laws split the tory party also, as the majority refused to follow him and the smaller body who did, known as the Peelites, acted for some years by themselves. The disintegration of the older parties is shown also by the gradual disuse in this period of the names whig and tory and the substitution for them of the new names liberal and conservative, with a restricted and special meaning attached to the still occasionally used terms whig and tory. As a result of this condition of things, the decade from 1850 to 1860 is a tkne of coalition ministries, mostly short-lived and displaying the inevitable weakness of coalition governments, that almost ever} r question of policy which arises is regarded by different sections of the cabinet from a different point of view. About 1859 the Peelites, whose ablest member was Gladstone, definitely identified themselves with the liberal party. Following this, unless we except the rise of the Irish home rule party to parliamentary influence in the late seventies, there was nearly a quarter of a century of more normal party relationships and party governments, though party bonds were then more elastic THE SECOND REFORM BILL 459 than now, especially, as is the case in all countries, in the liberal party. It was twenty years after the passage of the reform bill of 1832 before there was a serious attempt to make further changes of the same kind. In 1852 and again in 1854, Lord John Russell introduced new reform bills, the first time as prime minister and the second as a member of the cabinet and leader of the house of commons, but neither measure was pressed to a test vote. In 1859, Disraeli, chancellor of the exchequer in Lord Derby's conservative cabinet, brought in another, which was rejected and the ministry, go- ing to the country on the issue, was defeated and gave way to the liberals, who held office until 1866. In 1860 Lord John Russell, now foreign secretary, made his third attempt, but the bill was finally withdrawn through the pressure of other business, and in 1866 the ministry of Earl Russell, formerly Lord John Russell, was defeated on another reform bill and resigned. The liberal party was at that time so divided within its own ranks upon details of the question that it could not perfect and carry a measure. None of these proposed bills had been accompanied by any very strong popular demand, but, on the defeat of the last bill, the public, especially the working classes, made it clear that a demand for reform had risen which must be satisfied. The result was the reform bill of 1867, " the second reform bill," introduced by Mr. Disraeli, again chancellor of the ex- chequer. A conservative cabinet was in office under the earl of Derby, but the liberal party, when acting together, had a strong majority in the house of commons. In these cir- cumstances Disraeli proposed that the reform bill should be made a non-partisan measure, and it was really carried by a combination of both parties. The liberals were, how- ever, strong enough to make the bill over to suit themselves, and Disraeli wise enough to allow most of the conservative 460 THE AGE OF REFORM safeguards which he had embodied in his first proposals to be thrown out. The bill passed was a liberal party bill, though it probably could not have been carried without con- servative votes, and certainly it would have been rejected by the house of lords if it had not been the government meas- ure of a conservative cabinet. The second reform bill was framed upon the same lines as the first. 7 The qualifications required of electors were de- cidedly lowered, especially of voters in the boroughs, but the tests were of the same kind, virtually property qualifications. In the boroughs occupiers of houses were enfranchised, and occupiers of lodgings paying a rental of ten pounds. In the counties those able to meet a twelve pound occupation requirement were added to existing' voters. About a million new voters were created by the act, not quite doubling the previous number, but the step towards democracy was a longer one than this ratio would imply, for the main increase was from the artisan class in the boroughs. The percentage of increase in the borough vote of the country was 134, and in some towns the old number of voters was multiplied by three. Agricultural laborers were still without the vote, and all laborers in towns which were not parliamentary bor- oughs. In the redistribution of seats which accompanied the act, fifty-two were taken from the smaller boroughs and given to eleven new boroughs, to a few old boroughs in in- creased representation, and to the counties. One incidental effect of this bill was not foreseen and would not have been desired. It led to closer party organization and even to something like machine methods. By an amend- ment made by the house of lords and accepted by the com- mons, a limited proportional representation was introduced. In five boroughs and seven counties, electing three members each, the elector was not allowed to vote for more than two. The provision accomplished its purpose in most cases, but in Birmingham, under the lead of Joseph Chamberlain, by T A. and S., 532-537; Robertson, Statutes, 425-426, first edition. THE CONSTITUENCIES IN POWER 461 a new local organization called the " liberal association," which undertook a careful supervision of the liberal vote in the borough, the party was able to retain all three seats. This was the beginning of what came to be known in England as the caucus system. Other local " associations " were formed on the Birmingham model, and also a " national federation of liberal associations." The permanent result seems to have been, not exactly the American caucus and convention organization, but a more centralized party di- rection and supervision of the selection of candidates and of elections than existed before, and with it a decrease of in- dependence on the part of the individual voter and of the party candidate as well. The general tendencies which followed from the broaden- ing of the suffrage led to some extent in the same direction. Gradually the dependence of the house of commons upon the electors was increased. By degrees the controlling power of constituencies began to be more immediately felt. The house itself began to change. It had been a body whose members were chosen indeed by separate localities, but to represent not the locality but the whole nation. It was the theory, and so far as human nature permits it had been the fact, that the house in full and free discussion, with a com- pleteness of knowledge and a consideration of all circum- stances impossible to the electors, reached its own decisions and determined the fate of ministries and policies. Now the electors in the different constituencies began to demand a more direct responsibility to themselves, to regard their member as the means of their own expression on national questions, and above all to expect from him a constant fidel- ity to the party which had elected him. These are all clear indications of growing democratic power. For the present, in the period we are considering, they were only beginnings. Men of the time were scarcely conscious of them, and we have become aware of their existence less by a study of the facts of the time alone than by tracing back to their be- 462 THE AGE OF REFORM glnnings changes which are later more clearly forced upon us. The general election of 1868 gave the liberals a strong majority, and Disraeli, who had succeeded the earl of Derby as prime minister early in the year, resigned without waiting for the meeting of parliament, the first minister to recognize in this way the decision of the country. Gladstone then be- came prime minister and continued in office until 1874. The five 3 r ears of his administration was a time of important re- forms. The Irish church was disestablished, 8 and an Irish land bill passed, the beginning of protection for the tenant farmer. An education bill carried farther the nationaliza- tion of education. Non-conformists were admitted to the universities. The purchase of commissions in the army was abolished by an act of the royal prerogative, when the house of lords seemed likely to defeat the bill for that purpose. A second bill to introduce voting by ballot was passed after the house of lords had set the first bill aside. Finally the judicature acts already discussed were passed. Meanwhile proposals for the extension of the suffrage had been made in parliament, but no favorable action was taken before Gladstone's second ministry, which began in 1880. Bibliographical Note. — Sir W. R. Anson, The Law and Custom of the Constitution, 1907-9. P. Ashley, Local and Central Government, 1906. W. Bagehot, The English Consti- tution, 1872. J. R. M. Butler, The Passing of the Great Re- form Bill, 1914. A. V. Dicey, The Relation Between Law and Public Opinion in England in the Nineteenth Century, 1905; The Law of the Constitution, 1915. E. Dolleans, Le Chartisme, 1913. A. L. Lowell, The Government of England, 2 vols., 1912. W. B. Odgers, Local Government, 1907. C. Seymour, Electoral Reform in England and Wales, 1915. J. R. Thursfield, Peel,' 1891. G. S. Veitch, The Genesis of Parliamentary Reform, 1912. 8 A. and S., 538-543. CHAPTER XIX DEMOCRATIC ENGLAND If the reform bill of 1867 set England upon the threshold of a new political epoch in progress towards democracy, the third bill of 1884* threw the door wide open. In fact Eng- land was ready for a step which was nearly final. Reform had lost its terrors during half a century in which no national calamities had followed from it. Society had not been dis- rupted ; property had not been made insecure ; and the rad- ical party had not obtained permanent possession of the government. Even the larger extension of the suffrage in 1867 had not disturbed the balance of parties. Not merely in the intellectual convictions of men, but in habits of thought and action, democracy had made great progress. On becoming prime minister for the second time in 1880, Mr. Gladstone had a great majority in the house of commons, but he did not introduce a new enfranchisement bill until 1884. In the previous year an incident illustrates, in one of the first important cases of the kind occurring, the meth- ods by which the constituencies were bringing their influ- ence to bear upon parliament and also directly upon the cabinet. In October £500 delegates from 500 liberal asso- ciations met in conference at Leeds, and discussed a reform programme which they desired to have followed by the min- istry, and this was only one of several similar incidents of the time. The new reform bill was not seriously opposed on prin- ciple by the conservatives, but they found their point of opposition in the fact that a bill for a redistribution of seats did not accompany it but was to be postponed for a year. On this ground the bill was rejected by the house of 463 464 DEMOCRATIC ENGLAND lords. Mr. Gladstone refused to order a general election on this account, but in preparation for a new session, in which the bill should be introduced again, the subject was vigorously debated before the electors. In this debate a suggestion was heard, not indeed for the first time during the nineteenth century, but perhaps for the first time as a serious proposal, that it might prove necessary to remodel the constitution of the house of lords, and Gladstone formally called the attention of Queen Victoria to this feature of the discussion. The queen was naturally disturbed at such a possibility, and hardly less at the prospect of a deadlock between the two houses. She undertook in consequence the office of mediator, and wrote to Gladstone and to Lord Salis- bury urging a personal conference between them to see if they could not arrive at an understanding which would permit the bill to pass. In such a conference the proposed provisions of the re- distribution bill were explained to the conservative leaders and found to be unobjectionable, and the bill was passed by the lords. Gladstone at once expressed his gratitude to the queen, writing her that " his first duty was to tender his grateful thanks to Her Majesty for the wise, gracious, and steady influence on your Majesty's part which has so pow- erfully contributed to bring about this accommodation, and to avert a serious crisis of affairs." Already in 1869 Vic- toria had interfered in a similar way on the prospect of a deadlock on the Irish disestablishment bill with equal suc- cess, and received Mr. Gladstone's written thanks. Again in 1885, after Mr. Gladstone had been defeated by a com- bination of conservative and Irish votes, she labored with suc- cess to bring about an understanding between Lord Salis- bury, who was trying to form a conservative ministry, and Gladstone, who still commanded 100 more votes in the house than the conservatives unless they could have the uncertain support of the Irish. These instances are all good examples of the influence upon practical affairs which the crown may THE THIRD REFORM BILL 465 still exert, not to make decisions but to smooth away diffi- culties and to make things easy for those who do decide. By the reform bill of 1884 ! the " occupation franchise," which had been given the boroughs in 1867, was extended to the counties, and the qualifications for the suffrage in these two kinds of electoral districts were, with some slight exceptions, made uniform for the first time in parliamentary history. The right to vote was granted to every male over twenty-one years of age who was the " inhabitant occupier " of a dwelling house, or of any part of a house occupied as a separate dwelling, whether he occupied as owner, as tenant, or by virtue of any office, service, or employment, unless the house was also occupied by the person whom he served ; and to ever}' lodger occupying rooms of a yearly value, if let unfurnished, of ten pounds. The act did not quite introduce a democratic universal suffrage. Some old privileges, prop- erty franchises, the plural voter, still remained. A young man living in his father's famil} r , a servant living in his master's house, could not vote. But these exceptions were of comparatively small importance. The coachman or gardener living in a cottage on the estate could be put on the register, and any man earning day wages, or having an equivalent income, who was willing to take the trouble to meet the conditions, was really enabled to do so. Under this act nearly as many votes in proportion to the popula- tion have been cast in a parliamentary as in an American congressional election. In 1885 an act redistributing seats and rearranging elec- toral districts was passed, 2 making far more radical changes than ever before. Twelve new members were added to the house of commons, making 670 in all. Of these 465 were to be returned by England, 30 by Wales, 72 by Scotland, and 103 by Ireland, England having the smallest representation in proportion to population and Ireland the largest. Some i A. and S., 553-555; Robertson, Statutes, 427-4J8, first edition. 2 A. and S., 554-555; Robertson, Statutes, 4:27-428, first edition. 466 DEMOCRATIC ENGLAND few constituencies were left returning more than one member but the most of the United Kingdom was divided into 617 electoral districts each choosing a single member. These districts were determined by population and, while the prin- ciple of the representation of equal units of population Was not quite so exactly realized in England as in the United States, there are inequalities with us, and perfect exactness of measure is hardly 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 ; 3 registration had been and was to be further simplified in the interest of the elector; and corrupt practices acts had greatly reduced the oppor- tunity to influence elections improperly. Since 1885 in everything except a few points, less impor- tant practically than theoretically, England has been a de- mocracy. It is indeed fair to say that, so far as the im- mediate influence of public opinion upon government policy is concerned, England has been for a generation more demo- cratic than the United States. The cabinet system of gov- ernment, the ministry responsible to the house of commons, losing office when it 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, indeed with the increased power of the constituencies over the house hardly any other result is possible. This control of parliament and of the cabinet by the pres- sure of outside opinion is the most characteristic feature of the history of party and of the practical operation of gov- ernment since the reform bill of 1884. Even before that bill could have any effect, the pressure was very consciously felt a A. and S., 540-543. POWER OF PUBLIC OPINION 467 by ministers. In 1880, after he had become prime minister, Gladstone wrote to Lord Rosebery : " What is outside Par- liament seems to me to be fast mounting, nay to have already mounted, to an importance much exceeding what is inside ; " and after the government had resigned in 1885, the duke of Argyll wrote Gladstone that he thought he had allowed " speeches outside to affect opinion, and politically to commit the cabinet in a direction . . . which was not determined by the Government as a whole." These words describe nothing more than a natural result of the establishment of democracy, and the tendency to which they refer went on unchecked and with increasing force in the years following. The results brought about before the close of the century were very marked, and we have for them not merely the evidence of critics but the testimony of men familiar from experience with the inner working of government. They constitute unmistakably a change from the mid-Victoria period, both in the general aspect of parliamentary govern- ment and in the relationship of the component parts to one another, as these matters were described by the writers of that time, and as they then unquestionably existed. In gen- eral it may be said that the effect of these changes has been to bring about a much greater similarity in the surface ap- pearance and in the practical working of government be- tween England and the United States than formerly existed, notwithstanding the great constitutional differences which still remain. They are results which have not yet expressed themselves in constitutional form, except perhaps in one in- stance. They have affected the conventional rather than the legal side of the constitution, the interpretation rather than the form, but it need not be repeated that changes of that kind in English-speaking nations are changes of sub- stance. It cannot yet be asserted with confidence that these changes are so fixed that they imply the passage of the constitu- tion from one stage of its development into another. Cab- 468 DEMOCRATIC ENGLAND inet and parliamentary government are not yet so far re- moved from their Victorian phase, so much of the latter still lingers in theory and in popular interpretation, that a return to it in reality is not impossible if democracy should outgrew the stage of somewhat nervous experimenting to find out what it can do and how to do it, and settle down into a confident possession of power, so that the member of the house of commons need no longer be a delegate. If means can be found to relieve the house of more of the burden of local government and of minor and insignificant detail, so that opportunity of general debate on greater questions, debate that can be really fruitful of results, can be restored, the Victorian system of cabinet government may easily re- turn. We shall notice after 1905 some qualification of late nineteenth century tendencies. The really essential change was one that concerns the relation of the cabinet to the house of commons on one side and to the constituencies on the other. To state it in the baldest way : the house of commons seemed to be no longer the master and director of the cab- inet, but the cabinet, appointed and supported by the elec- torate, to be about to become the master and director of the house of commons. The statement is perhaps a little too strong, but the necessary qualifications can best be made in a more full account of the situation. Since the second reform bill, the majorities by which one party or the other has triumphed in the elections have been as a rule so great as to give the government formed by that party a complete control in the house. A majority of more than a hundred is not easily turned into a minority by the desertion of dissatisfied members. The exceptions have been found chiefly where independent groups, like the Irish home- rule party, Have held the balance of power. To this fact must be added two others. One is that the new constitu- encies demanded a much more unwavering loyalty to the party leaders than used to be shown them by the rank and file of their party in the house. They seem to have reached INCREASED POWER OF CABINET 469 a very definite conclusion that the things they desire can be best secured by a strict adherence to the party programme. The organization of the " associations " made it easier than before both to concentrate opinion at home and to bring it to bear upon the member. In the second place, secure seats were not so easy to find as under the aristocratic regime. An election, with all the cross-currents of interest in the community and with a number of candidates in the field, was always an uncertain and always, with its legitimate ex- penses, a costly affair. A member was not very happy in taking an independent stand unless he felt sure that he had behind him the opinion of those who elected him. In con- sequence the coercive power of a threat to dissolve parlia- ment and to appeal to the country in a general election be- came almost irresistible. The cabinet had in its hands a whip, which it did not hesitate to use, to drive doubtful sup- porters back into the party lines. To declare a bill a gov- ernment measure, and therefore one on which defeat would endanger the life of parliament, was an almost certain means of carrying it and of defence against any material amend- ment. If we suppose this theory carried to its logical conclusion, the cabinet would be the absolute master of parliament, and the theory on which the cabinet system of government is founded would no longer correspond to the facts. That theory is, that members of the house who have supported the cabinet on one question may vote against it on another. It is the theory that the government must maintain its posi- tion by convincing a majority of the house, or the uncon- vinced members of its own party will vote against it and turn it out. If this is no longer true, then after an election with its great majority a cabinet will be unshakable, until the life of parliament expires by statute limitation. In that case there would be no difference of any importance between the British system and the American plan of congressional elections at fixed dates. That the tendency is towards such 470 DEMOCRATIC ENGLAND a result cannot be denied, but it has hardly been reached as yet. Members of the party in the house do still occasion- ally turn against the government. Majorities, however large at the beginning, do still sometimes crumble and dis- integrate, as had Mr. Balfour's in 1905. The outside power, which sustains or destroys a cabinet, has been, for nearly two hundred years, public opinion. It is not so much this fact which has changed as the point at which this force makes itself evident. The house of commons is no longer the place where public opinion is collected and made known, as in the middle ages, nor, as in the eighteenth century so far as public opinion existed at all, where it is led and de- termined. Parliament and cabinet are both, independent of one another, controlled by opinion which is formed and declared elsewhere, and the house of commons seems to be likely to be reduced more and more to the position of a registering machine recording an outside decision. As a matter of the mechanics of 'the constitution, it still brings that decision to bear upon government, not because the opinion is of its own formation, but because it is the his- torical institution through which that function has always been performed, and nothing better for the purpose has yet been devised. If we could be sure that these tendencies which we detect in operation during the last forty years were real and per- manent, then we should have to do with a constitutional change as great as any in the past. Whether that is so or not, time alone can decide, but there are certain attendant features of this democratic movement which ought not to be overlooked. One of the most significant is that debating in the house of commons seems to have little influence on the vote which follows. The really interesting portions of a debate are the little tactical scrimmages which occur now and then, not the solid arguments pro and con. If the re- sult is a foregone conclusion, determined by the huge min- isterial majority and by the decision of the constituencies, THE COMMONS LESS POWERFUL 471 every one knows the debate on the merits of the measure will not change it. Speeches in opposition are not of much more effect than the protests entered in the journals of the house of lords. They serve to make a record of the speaker's stand. In many cases they really are addressed to the out- side public. Members do not listen to the debates. Inatten- tion does not go quite so far as in the American congress, but it seems to be approaching our record, and for t..e same reason. Real discussion, by which the opinion is formed which decides public questions, has been transferred from the house of commons to the political platform and to the news- paper and periodical press. It is addressed directly to those who make the decisions. Another characteristic is that oftentimes business, and sometimes business of great importance, is disposed of with no adequate discussion. This is not due alone to the fact that so large a portion of each session is taken up with government business. It is partly owing to the vast amount of local and detailed business which parliament must settle, and it affects government bills as well as private bills. If the house of commons loses its power to decide questions of prime importance, it may still perform a very necessary function in the criticism of details, in forcing the govern- ment, the main feature of whose measure is sure to be adopted, to defend every subordinate means it proposes to employ for its purpose. This is particularly true of finan- cial legislation, but, notwithstanding the pains which have been taken to secure full discussion by a compulsory assign- ment of time to this subject throughout the session, the object has not been attained. Business is always in arrears; it is crowded into the last days of the session, and important questions often have to be settled with almost no examination. The changes affecting relations between electorate, parlia- ment, and cabinet did not escape the attention of men who were actively interested in parliament and government. Lord Salisbury said in 1894: "There is an enormous change in 472 DEMOCRATIC ENGLAND the house of commons as I recollect it, and the evolution is still going on, and we have reached this point — that discus- sion of a measure is possible in the Cabinet, but for any effective or useful purpose, it is rapidly becoming an impos- sibilit}' in the house of commons." In the same year he said again : " I think . . . that in respect to the larger issues, the house of commons is gradually losing its power, between the cabinet on the one side, and the electorate on the other." In 1901 Lord Hugh Cecil, a conservative leader, said in the house of commons : " . . . there is a deep seated feeling that the house is an institution which has ceased to have much authority or much repute, and that when a better institution, the cabinet, encroaches upon the rights of a worse one, it is a matter of small concern to the country." In 1911, said the present lord chancellor, then Mr. F. E. Smith, also in the house : " Honorable members know the conditions under which business is carried on in the house. It is only a form and a name to say that they are left to the house of com- mons. They are not left to the house at all ; they are left to the cabinet." If these observations of modern tendencies are correct, cer- tain conclusions would seem to be inevitable. The house o£ commons no longer holds the ministry to its responsibility. If the house turns against the ministry only because the constituencies have turned that way, the power has passed from the house to the constituencies. The mid-Victorian judgment that the cabinet is a third house of the legislature is emphatically true ; the cabinet is almost the legislature. Again, while general elections in England are somewhat more likely to turn directly upon questions of national policy than in the United States, they will most frequently be a choice of men, or of general poliej', rather than a decision of specific issues. It seems inevitable also that there will be a slow lowering of the intellectual level of the house of commons, and many observers have believed that this change is already evident. There are so many points of similarity between THE PRESENT HOUSE OF LORDS 473 the features of English public life which have been noted and the political characteristics of public life in America that they would seem to indicate the natural tendencies of a democracy, or at least of a democracy learning the business of government. It is the business of the historian, however, especially with regard to his own age, to note what is, rather than to draw definite conclusions. His experience also teaches him greater caution in positive statement about his own time than even about some past age. The house of lords during this period has undergone less real change than the house of commons. The limits of its power have been for the first time expressed in statute form, but the statute did not make a change; it defined in specific terms a change which had already taken place. Apart from this one fact, the history of the house of lords has followed the same lines of development for many centuries. During modern times it has slowly grown in numbers with the in- crease of the population and wealth of England. The essen- tial facts have been given for the sixteenth century. The Stuarts made a net addition of 94, and William and Anne raised the total number to 178 besides the Scotch representa- tive peers. Many creations were made by George I and George II, but on the accession of George III the number was still only 174. His creations numbered 388, but of these only 128 were in existence as separate peerages, in the 460 members of the house, in 1860. Some titles had of course become absorbed in others, but many had become extinct. Nowhere is the tendency of the race to die at the top so easily illustrated as in the history of the British peerage. In the first twenty-eight years of Queen Victoria's reign there was no increase in members, one peerage becoming extinct for every new one created. Few families survive the second century after they attain rank, and the peerage has practically been renewed at about that interval of time ever since the Norman conquest. Creations have been freely made in recent times. The house numbered 591 at the acces- 4-74 DEMOCRATIC ENGLAND sion of Edward VII, and 623 at that of George V. Its number on March 31, 1919, was 698. Of these 130 are recorded as liberal, though between 1905 and 1919, 149 peerages had been created by liberal and coalition ministries. Since the democratic movement began in England the house of lords has become somewhat more representative, at least of the wealth of the country. To make it so, is said to have been the deliberate policy of the younger Pitt. Cre- ations have been more freely made from those who have dis- tinguished themselves in commerce and manufactures, and distinction in literature and science, particularly the latter, has also been recognized. But these creations have had no effect on the attitude of the house towards public questions. It has not become more representative of the nation polit- ically. As has been said above, it has always seemed to be difficult, with distinguished exceptions, for a family to remain long liberal after it enters the house of lords, and this has been especially true since the secession of the old whig families in protest against Gladstone's first home rule bill. Between 1830 and 1910 the conservatives in 34 years of office created 181 peers, and the liberals in 45 years, 270, but in the peerage books of 1911 the number of liberals recorded is 105, and by no means so many could be depended upon to be present in a division. In responding to a toast to the house of lords in 1881, the earl of Derby said : " I am not going to give you a con- stitutional essay on the rights and duties of the house of lords — rights which for the most part it does not practically enjoy, and duties which for the most part it does not prac- tically perform." Undoubtedly Lord Derby had no inten- tion of being taken literally. He was merely putting, in a pleasant after-dinner way, a popular feeling about the lords, but an exaggerated one. The house of lords has still im- portant rights which it enjoys, and important duties which it performs, as we shall see. A function of the house of great value which .still survives is that of debate and amend- VALUE OF THE UPPER HOUSE 475 ment. The course of business in the lords is far more leisurely than in the commons. It is not so buried in details. It can give abundant time to the more important subjects which come before it, and its rules of debate allow of thorough discussion. Those who attend regularly and take part in the debates are the ablest members of a picked body, espe- cially trained in public affairs, and the debating is on a very high level. The average is much above the average of the house of commons debates, and its influence, with the ex- ception of occasional speeches in the lower house, is greater. The amendments made by the lords, and not infrequently accepted by the commons, often go far to make up the latter's deficiencies in the examination of a measure. Even the re- jection of a bill which the commons has passed may be ac- cepted as a more accurate expression of public opinion, or at least as a not unwelcome postponement of a doubtful measure. The rejection by the upper house of Gladstone's second home rule bill in 1893 has commonly been regarded as warranted by the general feeling of doubt and reluctance among the people. The attitude of the house of lords to- wards the measures proposed by the liberal ministry after the election of 1906 will be considered in the next chapter. The cabinet not merely inherited, during the nineteenth century, the executive power of the crown and the legislative power of parliament, it was also itself directly affected by the currents of change which then prevailed. For one thing, it steadily increased in size. The cabinets of the opening century numbered barely a dozen members ; by the middle of the century the number had risen to fourteen or fifteen ; at the end there were nineteen or twenty members. The increase was not due primarily to a wish to have the advice of a larger number of political leaders. Such a wish is dis- proved by the tendency, which has been particularly marked of recent years, to form an inner circle of especially influ- ential ministers, like the conciliabulum of the eighteenth cen- tury. The increase has been due chiefly to the growth of new 476 DEMOCRATIC ENGLAND administrative departments, charged with work of so great importance that the head of the department seemed neces- sarily of cabinet rank, or to a corresponding increase of the importance of the work of older departments. The growth of the business of these departments, old and new, and the character of the work they have had to supervise, are signifi- cant signs of the expansion which government has undergone in the past two or three generations. The two secretaries of state of Elizabeth's time grew into five in the nineteenth cen- tury. During most of the eighteenth century there had been three, the third a part of the time for Scotland, a part of the time for the colonies ; but the third did not become permanent until 1794, when a secretary for war was ap- pointed. In 1801 he was given charge also of the colonics. In 1854 these two departments were separated and a secre- tary of state for the colonies appointed, and in 1858, when India was transferred from the East India company to the crown, a secretary of state for India. Since 1782 the two original secretaries have been, the one at the head of the home department, the other of the foreign. The office of the secretary at war, never a secretary of state, and generally occupied with subordinate duties only, was not continued after 1863. In strict legal theory, the five secretaries of state are one, that is, they perform the duties of one office. In most things any one of them can do the work of any other, and most statutes, in conferring powers upon " the secretary of state," do not distinguish any one of them spe- cifically. The home secretary is technically the first secre- tary of state. Equally great transformation, though rather in the oppo- site direction, has overtaken the other great offices of the old king's council. The lord high chancellor remains, with his original rank, and with his original functions changed only in part. The lord high treasurer and the lord high admiral disappeared altogether early in the eighteenth cen- tury, both offices being put into commission. The lord THE ADMINISTRATIVE BOARDS 477 president of the council and the lord privy seal still exist as offices, the first with formal duties infrequently occurring, the latter with none. These two offices are treated as sinecures and given to members of the house of lords, almost never to a commoner, who are desired in the cabinet but who are un- willing to undertake the duties of an active office. The office of chancellor of the duchy of Lancaster is also a sine- cure, and is often used in the same way for a commoner, The treasury is nominally " in commission " in the hands of four lords of the treasury, but the practical duties are per- formed by the chancellor of the exchequer, so that the four lordships are also sinecures, the prime minister usually being the first lord and three of the whips of the party in office the junior lords. Most indicative of the character of changes since the mid- dle of the century are the departments known as " boards," for the business of those which are older than 1850 has shown as great expansion as that of those which have been more recently created. The term " board " is really a mis- nomer, for no board exists except in legal theory ; each is really an executive department, like the American depart- ment of agriculture, with a minister at its head, who is re- cently almost, though not quite, always a member of the cabinet. A considerable part of the work of the boards is not administration in the strict sense, but supervision of the activities of local bodies. The oldest of these depart- ments is the board of trade, which goes back to a not con- tinuous history in the seventeenth century ; it was given a new organization and a new name, the board of trade and plantations, in 1696, and was again reorganized as the com- mittee of council for trade in 1786. Since that date various minor changes have been made, of name in 1862 and of organization in 1867, and the field of its work has been en- larged, though it lost its major connection with the colonies when they were transferred to the secretary of state for war in 1801. The board of education began also as a committee 478 DEMOCRATIC ENGLAND of the privy council in 1839. The vice-president of the council at the head of the committee was made a minister responsible to parliament in 1856, and in 1899 the committee was reorganized as a board with a president. The local government board, whose work has already been indicated, was formed in 1871, as the successor of the poor law board which had been established in 1847. The board of works was created in 1851, and the board of agriculture in 1889. A vast amount of detail is looked after by these boards in the course of the year, and much of it of great importance. This fact has been recently recognized in the case of the board of trade and the local government board by making the salary of their presidents equal to that of a secretary of state, £5,000. The account of the British cabinet and its activities, as given in this chapter, is no doubt incomplete. The fact should not be overlooked, however, that it cannot be the purpose of a book of this kind to explain fully what the cabinet is and how it operates. That duty belongs to books descriptive of the English government of today. The task undertaken here is to record changes which have occurred, and to describe tendencies which seem to be going on, and which may have constitutional consequences. A short time before the adoption of the third reform bill, a question arose which for a time attracted much public interest, relating not directly to the constitution of England but to that of the empire — the question of imperial federa- tion. The promise which this movement held out in its early history, that some form of closer political organization could be found for the empire, has not been fulfilled in the way proposed. General interest in the plan fell away in the later eighties and, though it has been revived again at intervals, no concrete scheme of federation has been proposed that has commanded any great body of support. On the other hand, events, not the result of design and not acting as parts of a considered plan, have really brought the A NEW CONSTITUTIONAL PLAN 479 empire more nearly into unity, for a time and for some things at least, and have led to some suggestions of value as to constitutional machinery. There is at the moment of this writing a fair prospect that there may grow out of experi- ence some method, which may properly be called constitu- tional, of making decisions as to common action throughout the empire in a good number of the activities which belong to government. An unintended outcome of experience is more likely to lead to a practicable result, and is more in line with the historical growth of the constitution, than the adoption of a ready-made plan as proposed in the early stages of the movement. While as yet no constitutional result has been reached which can be regarded with any certainty as permanent, there are many reasons why the history of the movement and its more probable results should be briefly considered: a constitution for the whole empire is a logical outgrowth of the past, and the next forward step naturally to be ex- pected in the long development we have been following; so much sound preparation and progress have already been made that it does not now seem likely to be broken off except by an interruption of some violence ; no practical difficulty seems to stand in the way more serious than those which faced the American constitutional convention of 1787. It may be added that the powerful appeal to the imagination which is made by the idea of a united government, bringing together in one such large portions of every continent, is not merely an element of interest in the plan, but also makes its accomplishment easier. If Professor Seeley's dictum that England conquered half the world in a fit of absent-mindedness is an exaggeration, it is nevertheless historically true that the British empire was slowly formed in the eighteenth and nineteenth centuries with no prevision of the result which was actually reached, and no definite intention to bring it about. The process was for a long time drift and accident, and in the constitu- 480 DEMOCRATIC ENGLAND tional field also England learned, only by slow degrees and by hard experiences, how to govern her colonies. We some- times think that she ought to have learned the lesson from her experience with the thirteen colonies, ending in the American revolution, but it is clear that she did not. In 1791 parliament gave a new constitution to Canada, which was formed upon the same lines as the worst of the govern- ments of the thirteen colonies, of those which had been the least satisfactory in operation. Two lessons England did learn from her experience in America, but neither to her ad- vantage nor to that of the colonies. One was that she must not attempt to make the colonies share in the burden of imperial defence, with the result that since that date she has had to bear more than her fair share of this burden. The other was that to grant concessions to a colony, to give it the power to govern itself, would be certain to lead to the loss of the colony. This was the prevailing belief during the first half of the nineteenth centur}', and it was only in the teeth of it that the first concessions of real self-govern- ment were made. The beginning of change is to be found in the results of the Canadian rebellion of 1837 — a rebellion against the constitution of 1791, to secure a greater measure of self- government. This was granted in the early years of the next decade, but only with reluctance and fear of the result. Shortly after, similar privileges were granted to Australian colonies, but with the same apprehensions. For the first two decades after 1850 it was the belief of practically all public men in England that the colonies were steadily ad- vancing towards independence, and that it was the duty of England to grant this as soon as it should be demanded. Before 1870, however, students of colonial affairs had begun to see that the results apprehended had not followed the grant of self-government, and a perception of the real re- sults which had followed was the first strong impulse in the turn of the tide. This perception may be best indicated CHANGED VIEW OF COLONIES 481 in the words of Herman Merivale, in the second edition of his Oxford lectures on colonization, published in 1861 : " None, but those who have traced it, can realize the sudden spring made by a young community under its first release from the old tie of subjection. . . . The cessation, as if by magic, of the old irritant sores between the colony and the mother country is the first result. Not only are they at an end, but they seem to leave hardly any traces in the public mind behind them. Confidence and affection towards the ' home ' . . . seem to supersede at once distrust and hos- tility. Loyalty, which was before the badge of a class sus- pected by the rest of the community, becomes the common watchword of all." These words express the universal judg- ment of today, but in 1861 the discovery was new and was only beginning to affect opinion in England. The second impulse towards a change of attitude in England was a reaction against the colonial doctrines of the Man- chester school of economists, which began about 1870. These teachings obtained their extreme expression in a book entitled The Empire, published by Professor Goldwin Smith in 1863. In it he advocated practically the immediate dissolution of the empire and the abandonment of the colonies to them- selves. Public interest was awakened, and the reaction brought to the point of public expression by a series of inci- dents in 1869 and 1870, which seemed to indicate that the government of the time, Mr. Gladstone's first ministry, was about to put the doctrines of the Manchester school into actual operation, and to break off the political connection between the mother country and the colonies. How far this opinion represented the real intentions of the ministry has never been thoroughly investigated. There is no question about the public judgment. It was clearly and fully ex- pressed in favor of the retention of the colonies, and it brought about an immediate and complete change in what it had judged to be the policy of the cabinet. It was in connection with this crisis that the proposal of 482 DEMOCRATIC ENGLAND imperial federation was first made in practicable form. It was made by Mr. Edward Jenkins, in two articles in the Contemporary Review for January and April, 1871. The idea had been vaguely discussed before, but interest in it now became more active and definite. In 1875 it was taken up by Mr. W. E. Forster, one of the leaders of the liberal party, as being in his judgment a policy which ought to be adopted b}' the nation. In 1884 the Imperial Federation League was organized in London, after a great public meet- ing at which a large number of distinguished public men, both of England and the colonies and of various political views, gave the plan their sanction. Mr. Forster was the first president of the League, and the earl of Rosebery the second. It began its work with much vigor; it established a monthly magazine as its organ, called Imperial Federation; and it was at the suggestion of the League that the first imperial conference of colonial representatives was called to meet in London in 1887. As an organization this repre- sents the high point of the League's success ; it continued active for a few } T ears, but developed considerable differences of opinion among its members and was dissolved by common consent in 1893. In the meantime another change in feeling about the colonies had taken place in England, beginning after 1850, which may have more influence upon the future of the empire and its organization than any arguments for formal federa- tion. The change is one which affects the idea of empire itself. By an unnoticed evolution, which has left few marks by which it can be traced, the word empire, for the greater portion of the English people, has ceased any longer to mean what it chiefly did during its first use in histor}', dominion and power, or to mean what it did during many generations of English history, trade and the accumulation of wealth. The human element has come to the fore, and the idea of obligation. Empire is not now felt to be so much geo- graphical expansion as expansion of the race. The new con- THE NEW IDEA OF EMPIRE 483 ception is not so much of increased power or wealth at home, as of new Englands in many regions of the globe, filled with prosperous and patriotic Englishmen, and probably destined in the future greatly to exceed the parent state in wealth and population. Empire means less- the territories which the Englishman occupies, wherever they may lie on the map, than the political liberty and freedom of opportunity for all which he is there working out, or the training in these best of his possessions which he is imparting to inferior races. In re- flex action, the ease with which thoroughgoing democratic institutions, like the referendum or elective upper chambers, have been engrafted upon the British constitution in the colonies, and their harmonious working with it, have had no small influence at home. Cabinet government and minis- terial responsibility appear to work as well in the colonies as at home and to be affected by the same influences. Union based upon common institutions and conceptions like these is stronger than any which depends upon formal laws and con- stitutions. If these can be maintained, a federal government is not necessary. The method of councils and conference, which has demonstrated in the recent war its efficiency on so vast a scale, is all that is needed. It must be added that in a new empire of this kind, which necessarily implies the entire local independence of the different units, the personifi- cation of the union in a personal sovereign, a natural rally- ing point of affection and loyalty, is of high value. Many English students of the constitution believe they see a new future for the monarchy in its imperial position. The method of council and conference has already been tested for a generation in the management of imperial affairs, it must be confessed, however, with less development than might naturally be expected. The first formal conference met in May, 1887. The colonial representation w r as com- posed partly of ministers in office and partly of non-ministers. The chief subjects discussed were imperial defence and inter- communication, especially postal and telegraphic, and these 484 DEMOCRATIC ENGLAND have remained the chief subjects of discussion in all later conferences, with others similar, like international trade and tariffs, patents and copyrights, and ship subsidies. Neither this conference nor any later one assumed any legislative power, but made recommendations only. In 1889 and in 1891 Lord Salisbury's government declined to call another confer- ence, and the second did not meet until 1897. But the colonies themselves held a trade conference at Ottawa in 1894, at which the home government was represented. In 1897 the representatives were the prime ministers, who were present from all the self-governing colonies of the empire, eleven in number. In the third conference, in 1902, Mr. Chamberlain, the colonial secretary, urged strongly larger contributions from the colonies to imperial defence, and de- clared that England was ready to allow them in return a voice in determining imperial polic}\ This conference adopted a resolution in favor of regular meetings at fixed intervals, and the resolution was given effect by the con- ference of 1907, which adopted a constitutional organization with a permanent staff, members ex officio, and meetings once in four years. The conference would have gone farther in the way of organization but for the strong objection of Canada. The conference of 1911 discussed more fully than any previous conference proposals for imperial organization, which were in themselves more definite than had been before brought forward, but without constitutional result. The war interrupted the regular course of conference meetings, but it led to another form of imperial council, as we shall see, of quite as great promise for the future. The course of conference discussions shows clearly that the one great neces- sity of union is a common imperial policy in foreign affairs, and it shows clearly that a practicable method for the forma- tion of such a policy, in which all parts of the empire shall have an equal proportionate share, is the one serious un- solved problem that stands in the way of this great advance IRISH HOME RULE 485 in constitution making. The problem is, however, hardly a more serious one in the constitution of the empire than in the constitution of the kingdom. The one field of government's activity over which democracy seems unable to exercise any effective control, for a supervision of which it has not yet been able to discover any practicable machinery, is the field of foreign affairs. Two great obstacles lie in the way and seem to be irremovable, the need of secrecy in some most essential matters, and the need of swift decisions. Closely allied in some respects to the question of imperial federation is the question of Irish home rule, with this differ- ence. Imperial federation, or any form of common govern- ment for the empire, if successfully established, is a long forward step in the history of constitutions, and likely to be of enormous advantage as example and model in the future of the world. Any plan for Irish home rule, or even for dominion status, is likely to follow a well-beaten path, with no very instructive deviation. Even if the plan adopted should involve as a consequence the federation of the whole British Isles, which does not seem likely, it is not easy to see where the opportunity for creative originality can be found. Bibliographical Note. — G. B. Adams, Influence of the American Revolution on England's Government of Her Colonies, Repts. Am. Hist. Association, 1896, I. 373; Origin and Results of the Imperial Federation Movement, Proc. Hist. Soc. Wisconsin, 1898, 93. H. E. Egerton, A Short History of British Colonial Policy, 1897. G. L. Dickinson, The Development of Parliament in the Nineteenth Century, 1895. W. E. Gladstone, Gleanings of Past Years, 1879. Sir T. E. May, The Constitutional His- tory of England, Vol. III., by Francis Holland, 1812. J. Mor- ley, The Life of W. E. Gladstone, 3 vols., 1903. C. Seymour, Electoral Reform in England and Wales, 1915. CHAPTER XX THE RECENT YEARS The first years of the parliament which was elected in January, 1906, seemed to promise the opening of a new epoch in English constitutional history, or at least a time of reversion to an earlier type. Two of the tendencies notice- able during the previous half century appeared to be declin- ing: the cabinet seemed to be returning to a dependence upon the house of commons, and the house of lords seemed about to resume its older place in legislation. It is now possible to say that the apparent change was not a real one, but the deviation from the straight line of development is worth}' of note. It is true that in some respects, down to the outbreak of the war, the cabinet was obliged to defer to the opinion of the house, as many in 1905 thought it would never do again. This at least is the way in which the fact would have been described by a mid-Victorian writer, who would have seen it particularly after the second election of 1910. A study of details, however, shows that the dependence was more apparent than real. In the first place, what it affected was not the general policy of the ministry, nor the chief features of the legislation which the cabinet proposed. In these re- spects the cabinet was as supreme as it had been during the past dozen years, and the house had as little power of alteration. It was comparatively minor details which were affected. In the second place, such dependence as the cabi- net showed was not upon the house of commons as a whole, as an organized body, but it was dependence upon the party subdivisions, the more or less independent groups, among its own supporters. 486 LIBERAL PARTY DIVISIONS 487 In continental states having parliamentary government, the tendency of liberal parties, of parties of the general left, to split up into groups has long been manifest. Sub- division seems to be a natural characteristic of parties whose chief programme is change and reform. Some groups wish to go faster than others do ; some groups emphasize strongly a particular change in which others are not as interested. In all these parties it is difficult to maintain a common pro- gramme and united voting strength except by concession and compromise, and compromise is usually not upon the main items of the party programme, upon which all divisions are apt to agree, but upon subordinate details. The more divided the party is, the greater is the necessity of com- promise, and the greater the opportunity to obtain its de- mands which is offered to the subordinate group, more de- voted, as is often true, to its own peculiar reform than to the programme of the party as a whole. Down to the end of the nineteenth century, while a tend- ency in the liberal party to divide into groups was not want- ing in England, it had no effect upon actual legislation. During most of the last quarter of the century the party was out of office, and had no opportunity to write its policy in the statute book. The one question which brings out most clearly the evidence and influence of subordinate groups, the Irish home rule question, the party failed to settle while in power. In the house of commons elected in January, 1906, the liberal party had so overwhelming a majority, well over 300, and more than 150 even if the Irish national- ists voted against them, and subdivision into groups was still so incomplete, that it was not necessary to carry the policy of compromise very far. Still the ministry did not always feel secure of its position, and the party showed an inde- pendence and a spirit of criticism not unlike a return to earlier times. After the elections of January and December, 1910, the strength of the independent element was greatly increased. In both those elections the liberal party proper 488 THE RECENT YEARS lost heavily, as compared with 1906, and the unionists, the term now coming into use as the common name for the united conservatives and liberal unionists, gained, so that these two parties stood in the house in almost equal numbers, the unionists at times even having two or three votes more than the liberals. The liberal cabinet remained in office, but it was entirely dependent upon the subordinate groups, now stronger and better organized than before, not merely to maintain itself in office, but to carry its measures into law. This is the period, then, from February, 1910, to the summer of 191 4, which is to be studied in recent English history for present tendencies, especially for the effect of party subdivision upon cabinet government. Apparently it is not possible to say that there was a return to the position in which the cabinet stood in relation to the house in 1870. Its real power of dictation to the house was not modified. There was more effective criticism of government measures in matters of detail than there had been during the ten years of the conservative government which followed 1895 ; but the really effective criticism was not that of the house, nor of the opposition, in the sense of the writers of fifty years ago, but of the government's own party, or of the groups in general alliance with it. At the same time it was made clear that the ultimate controlling power was the opinion in the constituencies, now well supplied with means of expressing itself. If we may judge by the opinions voiced in the reviews and leading political weeklies between 1906 and 1914s English students of their own political life saw no slackening of the tendencies noticed in the last chapter as modifying cabinet government. On the contrary, a recognition of these tendencies and of the probable constitu- tional results was more general than it had been at any time in the nineteenth century. The resumption of its legislative position by the house of lords, after the election of 1906, was more real. After ten years* possession of power, the unionist conservative THE LORDS RESUME POWER 489 party had been overwhelmingly defeated. The house of lords, however, seemed to take the ground that the great popular victory did not give the liberal party authority to carry into immediate effect their whole programme. The upper house resumed in full force its right of suspensive veto, and demanded in effect that the will of the nation should be conclusively shown on the more important con- tentious measures of reform which were proposed. While it cannot be asserted that the house of lords went beyond the function of a brake upon the wheel assigned to it in the preceding half century, it can be said that it seemed to be trying to find out what limit there was upon its action in that direction. The matter must not be numerically exaggerated. Out of 213 government bills between 1906 and 1910, eighteen failed to pass. The lords rejected only a part of these, but they amended others in such essential respects that they were dropped. Five acts which the majority in the house of commons regarded as of prime importance were among these: an education bill, a plural voting bill, a Scotch land- holding bill, a licensing bill, and the government budget of the year 1909. So that in substance the action of the lords was more of an interference with liberal plans of legislation than it appears to be when measured numerically. It was the rejection of the government's finance bill in 1909 that led to a constitutional settlement of the question raised by the house of lords. The budget involved a reassess- ment of land values, a taxation of the unearned increment, and in general a heavier taxation of wealth. It excited intense opposition among the classes naturally belonging to the conservative party. The right of the house of lords to amend a money bill had been lost, but the right to reject was recognized. It was generally felt, however, that to reject the bill, leaving the national finances of the year in con- fusion, was an extreme act and almost a direct challenge to the house of commons to define its own power and the power of the lords as well. It was also pointed out by some that 490 THE RECENT YEARS in this rejection the lords were really claiming new powers. If the government, in consequence of their action, reintro- duced the budget without the clauses to which they objected, the upper house would have established a right of indirectly amending a mone}' bill ; and, if the government chose to ap- peal to a new general election, it would have gained the right of forcing a dissolution of parliament. The assertion of the lords that some of the clauses of the bill were legislative and so cases of " tacking," which gave them a right to reject, was not convincing to many. Almost from the beginning of this parliament the proposal had been heard in the commons, and more frequently outside, that a definite limit ought to be placed upon the veto right of the upper chamber, and in June, 1907, the necessity was affirmed by a large majority of the house of commons in a formal resolution proposed by the prime minister, but no further action was taken at the time. The lords rejected the bill on November 30, 1909. Two days later the house of commons declared the action to be a breach of the constitution and a usurpation of privilege. Parliament was speedily dissolved, and a general election held in January, 1910. The election reduced the number of liber- als proper in the house to 274, and increased the unionist vote to 272, leaving the balance of power in the hands of the 41 labor members and the 82 Irish nationalists. These groups were, however, equally determined with the liberals that the veto power of the lords should be limited, and even more insistent that this question should be dealt with in advance of the financial difficulty. To meet this demand, resolutions embodying the points of their proposed bill were introduced by the government and adopted on April 14. With these resolutions and a statement by Mr. Asquith of what the ministry would do if the lords refused to accept the plan proposed, the groups supporting the government were satis- fied, and the finance bill, the same as that of 1909, was voted, and was now immediately agreed to by the lords. The THE LORDS TO BE COERCED 491 course of action on the veto bill was interrupted by the death of King Edward VII in May, and a general wish not to force matters to an extreme crisis on a fundamental question of the constitution at the beginning of a new reign. To avoid such an issue, an interesting experiment was tried, not unlike those proposed by Queen Victoria and re- ferred to above. A conference was arranged between lead- ers of both the great parties, members of both houses, four from each party, to see if action which both sides would accept could not be agreed upon. Many meetings of the conference were held during the summer and early autumn without success, and early in November it abandoned the task. This method of trying to settle a serious disagreement was tried again, with as little result, on the Irish question, when King George summoned, in July, 1914, a conference at Buckingham Palace of the speaker of the house of com- mons and two representatives each from the ministerialists, the opposition, the nationalists, and the Ulsterites, which held several meetings. Though the method has not as yet ob- tained a success equal to its promise, it is not felt that the promise has proved fallacious, and it will probably be made use of in the future. The failure of the conference led at once to the extreme action foreshadowed to the house by Mr. Asquith in April. The cabinet advised the king to dissolve parliament, and pre- sented at the same time to the king, as became known some time later, a memorandum asking him to agree in case of a favorable election to create peers enough to carry the veto bill through the house of lords, if that should ultimately prove to be the only way to save the bill. As this memoran- dum stands in interesting relation to earlier incidents of this history' and is in itself constitutionally significant, it should be quoted in full: " His Majesty's Ministers cannot take the responsibility of advising a dissolution unless they may understand that, in the event of the policy of the government being approved by an adequate majority in the new House 492 THE RECENT YEARS of Commons, His Majesty will be ready to exercise his con- stitutional powers, which may involve the prerogative of creating peers, if needed, to secure that effect shall be given to the decision of the country. His Majesty's Ministers are fully alive to the importance of keeping the name of the king out of the sphere of party and electoral controversy. They take upon themselves, as is their duty, the entire and ex- clusive responsibility for the policy which they will place before the electorate. His Majesty will doubtless agree that it would be inadvisable, in the interests of the state, that any communication of the intentions of the crown should be made public unless and until the actual occasion should arise." Nothing so extreme had ever been asked, however, of any earlier sovereign. The creation of twelve peers was sufficient in Queen Anne's time. Fifty would have been enough in 1832. Now the estimated number of necessary new crea- tions was 400. Naturally the opposition lords were excited and angry, both when they only suspected such cabinet action and when it became known. The cabinet's memorandum was called an ultimatum, and the action was spoken of as coercing the king. Very generally it was believed that, if the extreme steps were actually taken, it would be the ruin of the peerage. The king, after full discussion of the ques- tion with the prime minister and with Lord Crewe, leader of the government party in the house of lords, gave the pledge asked for. The election, held in December, 1910, left parties as they were in the house of commons. None of the main groups was increased or decreased by as many as four votes. The result was regarded, however, as authorizing the min- istry to go on to limit the powers of the upper chamber. In the meantime proposals for the reconstruction of the house of lords had been made by members of it, and even by the house itself in formal resolutions. They were hardly less drastic than those of the government but differed from them in more or less important details, in dealing largely with re- THE PARLIAMENT BILL 493 lations between the two houses and especially in emphasizing the plan of submitting disputes between the houses to a decision of the people by a referendum. These proposals indicated at least a conviction on the part of the lords that extensive constitutional changes could not be avoided. In the new house of commons the prime minister immediately reintroduced the parliament bill of the previous year, and it passed the house in May, 1911. At first the lords attempted to amend the bill, but when it became evident that their amendments would not be accepted, and when it was made clear that the king would follow the advice of the cabinet and create the required number of peers, the house voted not to insist on the amendments. The vote was 131 to 114. Most of the unionist peers refrained from voting; a few voted with the liberals, and the bill passed the house very much as the first reform bill had in 1832. The parliament bill as passed was limited to " restricting the existing powers of the House of Lords," -and made no provision for a reconstruction of the house, though this part of the plan had been as much discussed as the other, and was declared by the preamble of the bill to be intended. It was provided that two classes of bills might become laws without the consent of the house of lords ; money bills and other " public bills." A money bill becomes an act of parliament if it is not passed by the lords within one month after receiv- ing it from the commons. A certificate of the speaker of the house of commons guarantees that the bill is a money bill, that is, that it does not contain other legislation. Other public bills, if passed by the house of commons in three successive sessions, whether of the same parliament or not, and rejected by the house of lords each time, become acts of parliament on the third rejection, provided the passage through the house of commons has occupied two years from the second reading in the first session. The bill must be identical in all sessions except for such changes as the speaker may certify to be necessary from lapse of time, or as may 494 THE RECENT YEARS be contained in amendments proposed by the lords and ac- cepted by the commons. In practice, however, it may be accompanied with a separate amending bill. By the parlia- ment bill also the life of a parliament was reduced to five 3 T ears, and this limitation cannot be changed without the expressed assent of the house of lords. Under this act the home rule for Ireland bill and the Welsh disestablishment bill became laws in 1914, though the operation of both was suspended during the war. To an outside student of English history, the constitu- tional importance of the parliament act seems to have been a good deal exaggerated, especially by its opponents. It has made only one real change. It has taken away the power of the house of lords to delay for more than two years a measure sanctioned by the people, as the bills referred to above were delayed, or the plural voting bill, later twice passed by the house of commons under the parliament act before August, 1914. It does not seem possible, however, to defend such a right of indefinite delay on any ground which does not deny the existence of democratic government. This change being admitted, the parliament act does no more than to put into fixed statute form the theory regarding the function of the upper house in legislation which had been universally held, as a theory, for three-quarters of a century. It specifies two years as the limit of delay, but the right to delay a measure until public opinion had clearly declared in its favor is all that had been claimed for the lords, though they can now only occasionally cause a delay until after an election. The accepted theory required them to yield at some time, as completely as they did on the budget of 1909 when presented to them again in 1910. Two other constitutional results, which have been asserted, must be noticed. It has been said that the constitution of England is now in part written. This is no more a result of the parliament bill than of many other statutes in the past, and none of them makes a written constitution, or part EFFECTS OF THE WORLD WAR 495 of one, in quite the American sense. They do not mark out a new way for the future ; they rather make a record of past progress. The parliament bill embodies in written and bind- ing form the results of the constitutional advance since 1688, as they affect the house of lords, as the Bill of Rights did the results of the seventeenth century, as they affected the mon- archy. It has also been asserted that the effect of the par- liament act will be to increase the power of the cabinet over the house of commons. The majority party will be bound, it is thought, to keep the ministry in office till the end of the fixed term rather than to run the risk of bringing to an end the progress already made towards some desired legislation. It is quite possible that in individual cases the act will have this effect. They are likely to be individual cases, however, not numerous enough to form a tendency, and they are not likely to reinforce materially the influences working in the same direction. As a matter of history, it is desirable to outline the changes in the practical operation of the government brought about by the war, but we are still too near the event to be able to say whether they are results that will prove to be really con- stitutional or merely temporary. Undoubtedly in some re- spects the tendency of war conditions has been to accelerate changes already under way. At once the effects of the war began to be apparent in parliament. The prime minister announced, even before the formal declaration of war, that all controversial legislation would be postponed. The statutes which were passed over the house of lords' veto, and which were likely to occasion more or less ill-feeling in their operation, the home rule for Ireland and the Welsh disestab- lishment acts, were suspended. Party differences were laid aside and, except for the action of a few extreme irreconcil- ables, almost disappeared in common support of the govern- ment. A little later the clause in the parliament act limiting the life of a parliament to five 3 7 ears was suspended, and by a series of such suspensions the war parliament, which had 496 THE RECENT YEARS been elected in December, 1910, was continued until Novem- ber, 1918. In 1915 the reelection of members appointed to the cabinet was suspended. The most important changes, likely to be most permanent, were those which affected the cabinet itself. For nearly a year after the beginning of the war the liberal cabinet of Mr. Asquith conducted the government. In February, 1915, the cabinet asked and obtained the entire time of the house for government business. In May of the same year the cabinet was reorganized. Taking occasion of some resignations, the unionist leaders are supposed to have informed the prime minister that they could no longer guarantee the support of their party unless it were made responsible for some share in the conduct of affairs. In the reorganized or coalition cabinet which was formed, the unionists were given eight places, in a cabinet of twenty-two. The fact that these ap- pointments included all the chief leaders of the parties made a more complete coalition, or coalescence, of parties than any previous ministry had effected. For all practical pur- poses " the opposition " no longer existed in the house. Meantime the cabinet as a body proved too large for the quick decisions necessary in time of war, especially as new and pressing exigencies demanded the formation of new de- partments, really from the importance of their business of cabinet rank. Out of this situation gradually grew the war committee, which in November, 1915, was more definitely established with five or six members, all holding important offices. For many of the most important questions to be settled, this committee was in reality, though not in form, an inner cabinet. The government thus established remained in control of affairs until December, 1916. In the meanwhile, in July, 1915, a step was taken which may lead to the most far-reach- ing of the constitutional changes brought about by the war. Sir Robert Borden, prime minister of the Dominion of Canada, being present in London, was invited to sit with CABINET CHANGES 497 the cabinet. In itself the innovation was not a great one, as there had been some occasions in the past when cabinets had asked outsiders to give counsel at their meetings. But it was something new to ask the chief minister of one of the great colonies to sit with the cabinet, as if in an officially representative capacity, and it is in the development of this phrase of the innovation that its significance consists. The war committee rapidly repeated the history of the cabinet itself in its expansion. In July, 1916, it was formally increased to seven, but its greatest expansion came from the number of experts and advisers constantly invited to sit with it. At the beginning of winter the Times de- clared that there were two cabinets sitting side by side. At the same time general dissatisfaction was felt with the conduct of affairs, which were thought to be going badly, especially after the failure of the Dardanelles expedition. When the coalition ministry was formed in 1915, it was loudly accused by some of being a dictatorship. Now opinion declared that it was not enough of a dictatorship. The demand was general for further concentration of power. There never has been a clearer illustration of the fact, which has been so many times illustrated in history, that the effect of war is to centralize government, than the history of the British cabinet in this war. The second reorganiza- tion of the cabinet came in December, 1916. Mr. Lloyd George proposed to the prime minister that the war com- mittee should be limited to four, not including Mr. Asquith, and intimated that, unless, very thoroughgoing changes were made, he must retire from the government. After some correspondence, the prime minister resigned, and on the failure of Mr. Bonar Law, leader of the unionist party, to form a ministry, Lloyd George succeeded. Thus a second time since the war began the cabinet had been thoroughly made over, once involving the fall of the prime minister, with no adverse vote of the house of commons and no verdict of a general election. But it would be ab- 498 THE RECENT YEARS surd to maintain that the change was not demanded and sanctioned by public opinion. The revolution of December, 1916, never could have been carried through, and the ministry of Lloyd George could not have maintained itself a month, if it had not had the general support of the nation. Every- one who is familiar with the situation knows this to be the case, but the significant thing is that the voice of the na- tion had found ways of effective expression outside its his- torical vehicle in parliament. The democratic methods of expression, which we saw coming into use in the period fol- lowing the second reform bill, reach their culmination in this event, all the more certainly because employing no formal declaration or resolution. In the administration of the war cabinet, two innovations, both of which had been foreshadowed, are of especial promise for the future. The war cabinet of five or six members was the real cabinet, not merely for military affairs but for the ordinary government of the country. But most of its mem- bers held no administrative offices. They held sinecures, or they were ministers " without portfolio." But the heads of the administrative departments were no less of cabinet rank for their most important business than before; that is, questions were constantly arising which the cabinet must de- cide, essential to the good government of the country, in which the interests of their departments were intimately concerned, and which could not be safely settled by the cabinet without their advice. The practice of expert advisers, which the war committee had so extensively employed, was carried somewhat farther to solve this difficulty. The head of the department concerned was invited to the discussion of the question, not as an expert merely but as a full member of the cabinet for the occasion. The expedient promises a way out of the difficulty of the cabinet, overgrown through the apparently necessary multiplication of administrative de- partments of cabinet importance. The head of the depart- ment is a member of the cabinet for the policies of his de- CHANGES IN METHODS 499 partment, with all the privileges and responsibilities which that position involves, but the coordination of all into a government policy and the general conduct of affairs are the responsibility of the small cabinet proper, which he does not usually attend. Evolution since the war has not followed this road, and undoubtedly the exigencies of the war created a number of departments — of munitions, of blockade, etc. — not to be continued in time of peace. The chart showing the adminis- trative organization during 1917, published in the report of the war cabinet for that year, lists twenty-nine great ad- ministrative departments and cabinet officers. Yet in the complexity of modern business the problem is a real one, and even the enlarged cabinet of 1920 may find it well to follow the example of the war cabinet, and the future may make some larger use of it. Two or three incidental results of the formation of the war cabinet deserve mention. The members found their duties so constant and so pressing that those not leading the two houses abandoned attendance in parliament except at long intervals. Bitter complaint was made of the prime minister's neglect of the house, especially after the making of the armistice, but the force of necessity was stronger than the force of tradition. It is not likely that in times of peace the neglect will be so great, but in all probability the constant attendance of Gladstone is a thing of the past. The solidarity of ministerial responsibilit}' temporarily disappeared. The criticism of the government of India in view of the failure of the first Mesopotamian cam- paign, embodied in a vote of the commons, led to the resigna- tion of Mr. Austen Chamberlain, without involving any other resignation. With general government in the hands of a small cabinet, this result would naturally and easily follow with reference to special departmental questions. The tra- ditional secrecy of cabinet sessions came to an end. Advisers and experts were freely admitted. A secretariat was or- ganized and regular minutes kept, and reports were published 500 THE RECENT YEARS of the yearly work. What the future may contain of cab- inet history no one can say, but it is unlikely that the ex- periences of the war will leave its development unaffected. The second innovation was the expansion of the war cab- inet into an imperial war cabinet in three periods, during the spring of 1917, and the summer and autumn of 1918. Almost immediately on its organization, in December, 1916, Lloyd George's government sent invitations to the Dominion prime ministers "to attend a series of special and continu- ous meetings of the war cabinet," and to the viceroy of India to send Indian representatives to assist the secretary of state for India in these meetings. Those invited were to be full members of the cabinet for the purposes of the meetings, that is, for questions of imperial world policy. The ex- periment worked exceedingly well. The prime minister was able to announce in the house of commons that it " had been a complete success " and that he " had formally proposed on behalf of the British government that meetings of an im- perial cabinet (composed as above described) should be held annually, or at any intermediate time when matters of urgent Imperial concern had to be settled." The proposal is said to have been " received with the cordial approval of the over- seas representatives and with great satisfaction by the house of commons." During the first two periods when the im- perial war cabinet was in session, an imperial conference, of the kind held in former years, was also in session on other days, of which the Dominion members of the cabinet were also members. The colonial secretary presided, and there were other colonial representatives besides the members of the cabinet. As in former years, its functions were advisory merely and it did not possess the authority of the imperial war cabinet. Here seems provided all the machinery neces- sary for the constitutional organization of the British em- pire, thoroughly tested in a violent world crisis, simple in operation, avoiding the dangers of a more formal executive and legislative government, and providing amply for what is THE FOURTH REFORM BILL 501 the greatest need — a common policy adopted by common consultation. The war cabinet remained in operation until nearly a year after the armistice was signed. While nearly all the activ- ities of parliament had to do with the war, one measure of great constitutional importance was adopted in the session of 1917 — the "representation of the people" act, or the fourth reform bill, which received the royal assent early in 1918. The provisions of the bill had been agreed upon at a conference of party leaders arranged by the speaker of the house of commons, and it passed without serious opposition. This act swept away almost all the old qualifications for suf- frage, and set up a common qualification based on local occu- pation or residence, alike for counties and boroughs. It es- tablished universal manhood suffrage, gave the vote to women of thirty years of age, if they or their husbands are local government electors, limited plural voting to two constitu- encies, and election expenses to five pence per voter in bor- oughs and seven pence in counties, and introduced a new distribution of representation according to population, upon the principle of one member for every 70,000 in Great Britain and for every 43,000 in Ireland. It added thirty- seven new members to the house of commons and 8,000,000, to the number of voters, including 6,000,000 women. Un- der this act an election was held in December, 1918, the first since December, 1910, which resulted in an overwhelming vic- tory for the coalition ministry. By another act of 1918 women were made eligible to seats in the house of commons, the age required in this case being twenty one years. Notwithstanding the heavy majority of the ministry, the new house of commons was divided into numerous groups and displayed considerable independence in the session of 1919, and a disposition to criticize. In July the cabinet was de- feated in a small vote, but was not called upon to resign. A good deal of criticism centered upon the continuance of the war cabinet so long after the end of the war, and after 502 THE RECENT YEARS a more severe defeat in October the cabinet was recon- structed. The new cabinet of nineteen members was formed on the pre-war plan of including the heads of the most im- portant departments. A reaction against the peculiar war practices, especially against war centralization, is only to be expected, but it does not necessarily mean the end of all influence from these practices. Where they fall in line with tendencies which were in existence before the war began, they are likely to add distinctly to their strength. It would be, however, a new experience in recent Anglo-Saxon history if the permanent influences from a period of war were un- democratic. It may be repeated in conclusion that the great majorities in recent parliaments which render the defeat of the ministry unlikely, together with the causes which have been noted above which make the members reluctant to bring on a dis- solution, have a tendency to give a house of commons once elected and a cabinet once in office security for the full statutory period of a parliament's life, as if elected and ap- pointed for a fixed period. When we recall in addition that various causes have considerably reduced the power of the house to hold the ministry to the traditional responsibility which was characteristic of the British system in the middle of the last century, it is possible to say that recent tenden- cies have brought the British government in its practical operation, not in form, nearer to the American system. There still remain great differences. The presence of the ministry in parliament is one which cannot be overlooked, and the meeting of parliament immediately after a general election. In other ways also public opinion brings itself to bear upon the decisions of the house more quickly than with us. Ours is a slower acting democracy, but there is un- doubtedly greater similarity in the actual workings of gov- ernment between the two countries than there was half a century ago. The inference is encouraging with regard to the next stage in this long evolution which we have been THE FUTURE 503 following. From the fact that our two countries, in trying to find out for the first time in history the best ways to operate a great democracy, seem to be quite independently taking the same road, we may have good reason to hope that we are moving in the right direction. Bibliographical Note. — C. D. Allin, The Position of Parlia- ment, Polit. Sc. Quart., xxix, 214. 1914. J. A. Fairlie, British War Administration, 1919. Sir S. Low, The Governance of England, 1914. W. Notestein, The Career of Mr. Asquith, Polit. Sc. Quart, xxxi, 361, 1916. R. L. Schuyler. The British War Cabinet, Polit, Sc. Quart., xxxiii, 378, 1918; The Decline of the House of Commons, Columbia Univ. Quart., xxi, 310, 1919; The British Cabinet, 1916-1919, Polit. Sc. Quart., xxxv, 77, 1920. The War cabinet, Report for the Year 1917, 1918; Report for the Year 1918, 1919. G. M. Wrong, Canada and the Imperial War Cabinet, Canadian Hist. Rev. N. S., I. 3, 1920. INDEX Administration, Saxon, 24 f . ; Norman, 56 f., 64, 90 f.; in itinerant justice courts, 103 f. ; beginning of modern, 156 f., 232 f., 452 ff. See Council small, Sheriff. Admiralty, the, office, 476. Ashby v. White, 381. Asquith, H., 490, 496, 497. Assembly, Saxon national, 16; of the shire, 21, 23; Norman national, 54, 64, 69 ff. Assize of Clarendon, 117. Assize of Northampton, 117. Agreement of the People, the, Assizes, the, 106, 116, 134 f., 323 ff. Agriculture, board of, 453, 478. Aids, the feudal, 65, 190; in Magna Carta, 132; in the Confirmation of the Charters, 189, 190. Alderman, Saxon, 22, 57. American constitutional ideas, connection with English, 304, 309, 319, 322 f., 324 f., 326 f., 330, 333, 360 f. Anglo-Saxon, original institu- tions of, 10. Anne, reign of, 377 ff. Anselm, archbishop, 94. " Apology, a Form of," 273, 284. Appeal, from court to court, Saxon, 23 f. ; simplified, 329; in criminal cases, 454. Appropriations, beginning of, 203 f ., 226 f . ; developed, 348 f. Arms, assize of, 117- Army, standing. 331 f., 352, 371. Arrest, freedom from, parlia- mentary, 224, 275, 284, 298, 307. 156. " Association," the liberal, 461, 469. Attainder, bills of, 228 f., 280 f., 311. Aylesbury men, the, 381. Bacon, Francis, lord chancel- lor, impeachment of, 281 f. Bagehot, on the English con- stitution, 442. Bail, excessive, 347. Ballot, the, 329, 448 f., 462, 466. Barebone's parliament, 326. Baron, the feudal, relation to government, 43, 64; to the King, 55 ff. ; disappearing, 210. Baronial court, the, 65, 73 f., 107, 119, 135 f., 156, 160. Bate's case, 273. Battle, proof by, 71. Becket, Thomas, archbishop, 96 ff. Benefit of Clergy, 97. " Benevolences," 237, 259, 275, 290. Bills, for petitions in legisla- tion, 227. 505 506 INDEX Bishop, the, in the shire court, 21; as a baron, 91, 97, 194. Bishops, petition against, 1610, 314. Bookland, 40 f. Borough, the county, 451 f. Borough, the, origin of, 32 ; place in state organization, 32 f . ; rights granted to by charter, 171 f. ; modern changes in government of, 450 f., 452. Boroughs, parliamentary, crea- tions by Tudors, 25G; redis- tribution in Instrument of Government, 327 f . ; pocket and rotten, 397, 413, 435 f., 447; changes in second re- form bill, 460; in third, 465; in fourth, 501. Bot, the, 31, 84, 85. Bourines, Battle of, 127. Bracton, Henry de, 111, 154, 158. Bright, John, 429. Brougham, Lord, 429. Buckingham, duke of, impeach- ment of, 288. Budget question of 1909, 489 f. Burgess class, the, 171 f., 179 f., 195. Burke, Edmund. 415. Bute, earl of, 402 f. Cabinet, formation of, 349 ff., 363 ff.; growth of, 383 ff.; the inner, 396 ; increase of size, 396; not understood, 399, 411 f.; fully established, 428 f. ; system of government illustrated, 440 ff., 445 ff. ; dependence on the constitu- encies, 463, 466 ff., 486 ; re- cent history, 475, 486 ft - ., 495, 502; effect of war of 1914 on, 496 ff. Cabinet, the war, 1916, 498 f., 501 f. ; imperial war cabinet, 500 f. Canon law, 61. Carucage, the, 123 f. Carucats, the, 124. Catholic emancipation, 423, 424 f., 432. Catholicism, fear of, 287, 342 f. Caucus, introduction into Eng- land, 461. Cavalier parliament, the, 338 ff., 313. Celtic influence on the consti- tution, 5. Centralization, by Henry II, 99 f., 119; as a result of war, 416, 497. Chancellor, the, 114, 157, 250, 476. Chancery, courts of, 113, 155, 157, 234; as offshoot of council, 230 f. See Equity. Charles I, character of, 287, 322 ; reign of, 287 ff. ; insists on his own responsibility, 290; trial and execution, 320 f. Charles II, reign of, 334 ff.; character of, 340 f. Chartism, 448 f. Church, Anglo-Saxon, attitude towards the monarchy, 13 f . ; effect of the Norman Con- quest on, 66 f . ; feudalized, 67 ; ri9e in power, 93 ff. ; in Magna Carta, 130; brought INDEX 507 under control of parliament, 244 f., 258 f. Civil rights, at end of fifteenth century, 237. Clarendon, earl of, 339, 364. Clarendon code, 339 ff., 376. Classes in the population, Saxon, 33 ff.; in Norman age, 74 f . ; in thirteenth cen- tury, 170 ff.; as affected by the industrial revolution, 421. Clergy, in parliament, 185, 194 f. Coalition ministries, in early cabinet history, 368 ff . ; in modern times, 458; in war of 1914, 496 f. " Coat and conduct money," 305. Cobden, Richard, 429. Coke, Sir Edward, chief jus- tice, 276. Colonies, office for the, 351, 476; government of, 480. " Commendams," case of, 276, 278. Committee, the war, 1915, 496 f . Common law, origin of, 109 ff. ; growth of, 154 ff., 158; a protection to the constitution, 277 f. Common law courts, in Tudor age, 259 f.; united, 455. See Common pleas, Exche- quer, King's bench. Common pleas court, origin of, 109; in Magna Carta, 134. Commons, House of, origin, 104 f. ; right to a share in legislation, 199, 204 ff.; no share in judicial power of curia regis, 208, 282 f. ; pack- ing of, medieval, 213 f., 238; Tudor, 256; exclusive control of taxation, 224 f., 351 ; qual- ifications for membership, 225 f., 328, 381; in Tudor age, 254 ff.; power estab- lished, 332; supremacy of, 387 f., 393, 394; in the pres- ent constitution, 446 f., 467 ff., 495, 502; dependence on the constituencies, 461, 466 f., 472, 486. Commonwealth, the, created, 325. " Comprehension," 271, 303, 339, 340. Compromise, the, of modern English constitution, 335 ff., 363 f., 387 f., 411. Compurgation, procedure of, 28 ff . ; in the new procedure, 116. Conference and council method in inter-state affairs, 483. Conference, imperial, first, 482. 483 f.; second to fifth, 48 i; during war of 1914, 500 f. Conference of leaders of part- ies to prevent deadlock, 464, 491, 501. Confirmation of the Charters of 1297, 189 ff., 196, 202. Conservative party, 458. Constitution, written, the first, 323 ff.; the Instrument of Government, 326 ff. ; Bill of Rights as, 358. Constitutions of Clarendon, 96 f., 117. Contract, the feudal, 68, 81, 508 INDEX 126 f., 129; the "original," 356. Convention parliament, of 1 660, 337; of 1689, 355 ff., 360. Conventicle act, 1664, 339. Convocation, the church as- sembly, 194, 351. Copyhold, 260. Coram rege business, 109, 134. Coronation oath, 14, 126, 198. Corporation act, 1661, 339. Corrupt practices, political, 346, 447, 466; parliament- ary, 397, 404 f., 413. Council, the great, 64 ; Norman, 68 ff . ; in Magna Carta, 132 f. ; continued after rise of parliament, 172 f. ; change of into parliament, 169, 172, 187; at York, 1640, 307 f. Council, Saxon small, 16; Nor- man, 70 f ., 230 ; differentia- tion of, 92, 113, 157, 229 ff. ; as court of law, 155; in fif- teenth century, 229 ff . ; in Tudor age, 249; criminal jurisdiction of, 248 f. ; ordi- nary jurisdiction abolished, 313 f. ; modern judicial func- tion, 314. See Privy council. County, in modern local gov- ernment, 452; the "admin- istration," 452. County courts, modern, 455. See Shire courts. Court baron, the, 156, 160. Courts, Saxon national, 15; Saxon king's local, 17; of the shire, 21 ff., 23; of the hun- dred, 24; of the town, 26; Norman King's local, 59, 88, 101 ; modern organization of, 454 f. See Judicial system, Shire court. Cowell's Interpreter, 278. Criminal law, Saxon, 25 ; Nor- man, 72, 84 f. ; changes in by Henry II, 114 ff.; reform of, 431. Criminal trials, Saxon, 30 f . ; of clerks, 96 ; changes in by Henry II, 114 ff.; in star chamber, 248 f.; reform of, 454. See Procedure. Cromwell, Oliver, 319, 326 ff. Curia regis, 64, 68 ff. Customs duties, in time of Ed- ward I, 189, 200 f. See Impositions, tunnage and poundage. Danegeld, in Saxon age, 19, 47; after the Conquest, 122. Darnel's case, 291. Debate, in present house of commons, 470 f. ; in house of lords, 474 f. Declaration of Independence, the American, 139, 296 f., 357 f. Declaration of indulgence, Charles I's, 241 f. ; James II's, 363 f. Declarations of the rights of man, 357. De donis conditionalibus, the statute, 164 ff. De mercatorihus, statute, 159, 181, 205. Democracy, the independent party and, 319, 323, 353; INDEX 509 rise of modern, 410 ff., 420 ff., 463 ff. Deposition of the king, 13, 139, 140, 220 f., 355 f., 360. De tallagio non concedendo, 189 f. Dialogue of the Exchequer, 117 f. Difpdatio, the, 128, 137. Dispensing power, 234 f., 341 f. Disraeli, Benjamin, 429, 459 f., 462. Dissenter, the, 340. Divine right of kings, 265, 357, 366. Domain, the, 63; domain man- ors, 63 f. Domanial court, 26 f., 160. Domesday survey, method of, 88 f. Dunning's resolution, 406. Earl, The, Saxon, 22 f ., 48 ; the Norman, 57 f. See Palatine earldoms. Edgar's Law, 25. Education, board of, 453, 477 f. Education, free public, 329. Education, national, 449, 453, 462. Edward I, reign of, 157 ff. ; the English Justinian, 158; and parliament, 182 f. See Confirmation of the Charters. Edward II, the reign of, 197 ff.; deposition of, 199, 213, 356. Edward III, reign of, 202 ff. Edward VII, 442, 491. Election of the king, 18. Eliot, Sir John, 288 f., 297, 298. Elizabeth, question of succes- sion of, 257; age of, 262 f. Empire, changed idea of, 482 f. England, character on eve of Conquest. 9. Englishry, presentment of, 85. Entails of land, 165. See Recovery. Equity system, the, origin of, 111 ff.; growth of, 155, 168; union with common law, 329, 455; criminal, see Star Chamber. See Chancery Courts. Escheat, 66, 162. Exchequer, accounting, in Saxon times, 48; in Norman, 91 f. ; as offshoot of council, 230 f. Exchequer, chancellor of, 398, 477. Excise tax, 329, 338, 391 f. Exclusion bill, the, 344. Federation, imperial, 478 ff. ; league, 482 f. Feudalism, Saxon, 41 ff. ; Nor- man, 61 ff., 67 f. ; how intro- duced into England, 66 f . ; 'attack of Henry II on, 108; decline of, 147, 153 f., 161. Fifteenth and tenth, the, 285, 351. Finance bill of 1909-10, 489 f. Five Knights' case, 291. Five members, attempted ar- rest of the, 316. Five mile act, 1665, 339. Flambard, Ranulf, 80. Floyd, case of, 282 f. 510 INDEX Folkland, 40 f . Foreign affairs, parliament and, 283; the king and, 442; sec- retary of state for, 476; an imperial policy in, 484 f. Forests, royal, reestablished, 299, 313. Fortescue, Sir John, on the king's power, 219 f. Fox, Charles James, 406 ff., 415 ff., 425. Franchisal court, 74, 155 f., 159 f. Frank almoign tenure, 67, 97, 106. Frankish influence on the con- stitution, 6 f. Frankpledge system, the, 71 f. Freedom of debate, 214, 223 f. Freeman, the, Saxon, 35 f. ; in Magna Carta, 136 f. Fyrdwite, the, 46. Gentry, the, rise of the class, 170 f. ; in local government, 338, 453. George I, reign of, 383 f . ; with- draws from cabinet meetings, 384, 390. George II, reign of, 384 ff. George III, reign of, 362, 399 ff. ; and American Revolution, 405 f . ; note to Earl Temple, 407, 441 ; and Catholic eman- cipation, 424 f. George IV, 432. George V, 491 f. George, Lloyd, 497. Gesith, the, 34. Gladstone, W. E., 429, 442, 457, 458, 481; reforms in first ministry, 462; second ministry, 463 ff. Glanvill, Ranulf, 99, 111, 118. Grand assize, the, 106, 116. Grand jury, origin of, 115 f. Grand Remonstrance, 315 f. Grey, Earl, efforts for electoral reform, 414, 434, 436; and the first reform bill, 436 ff. Habeas corpus, 129, 136, 269, 291; act of 1679, 347; sus- pended, 415, 431. Hampden, John, 302, 306. Hampton court conference, 272. Harley, Robert, 377, 378. Haxey, case of, 214, 223. Henry I, his reign, 80 ff. ; coro- nation charter, 81 f., 126 f. Henry II, his reign and re- forms, 95 ff., 118 f. Henry III, 140; reign of, 144 ff. Henry IV, Bolingbroke, 216; character of his reign, 217. Henry VII, reign of, 240 ff.; special work of, 246 f. Henry VIII, his chief measures, 256 ff. Hidage, 123. Hide, the, 36. High commission, court of, 259, 314, 353. Home department, the, 453. 476. Home rule, Irish, 485, 491, 494, 495 ; party, 468. Honor, the, 74. Hooker. Thomas, and sover- eignty of the people, 321. Hundred, the, 20, 260; court of, 24, 71, 260. INDEX 511 Hundred rolls, the, 159. Impeachment, beginning of, 208 ff. ; revival in Stuart age, 280 ff., 310 ff.; perfected, 348, 374; obsolete, 366. 371 ff. Imperial war cabinet, 500 f. Impositions, 273 f. Independent wing of Puritans, 271; in power after second civil war, 318 ff . ; their polit- ical ideas, 319 ff.; in Amer- ica, 326 ff., 330 ; ideas of re- ligious liberty, 319, 328; af- ter the Restoration, 339 f. India, secretary of state for, 476. Industrial revolution, the, 420 ff.. 429. Inquest of Sheriffs, the. 117. Inquisition, the (Inquest), 105. Innocent III and King John, 125; feudal lord of England, 125; and Magna Carta, 140. Instrument of Government, the, 326 ff. Insurrection, feudal right of, 53, 137 ff. Investiture strife, the, 94. James I, character of, 265 ; age of, 265 ff. ; financial difficul- ties of, 271 ff., 283. James II, the reign of, 351 ff . ; deposition of, 355 f. John, his absolute power as king, 125 ff . ; becomes vassal of the pope, 125; agrees to the Great Charter, 128; de- position of, 140. Judgment making, Saxon, 23. See Procedure, judicial. Judges, as law advisers of gov- ernment, 276 f. ; tenure of of- fice, 313, 330, 346, 374; in- dependence of the executive, 346. Judicature acts, 454 f. Judicial system, Saxon, 19; feudal, 64, 70, 73 f . ; of Nor- man period, 85 ff. ; of Henry II, 100 ff.; of Henry III, 154 f. ; modern, 454 f. See Courts. "Junto," the, 370, 375, 381. Jurisdiction, Ecclesiastical, 94 ff. Jurisdiction, private, rise of, 26 f . ; on eve of the Conquest, 45 ; under Normans, 72 ff., 119; under Henry III, 155 f. ; in Tudor age, 260. Jury, the, 82; origin and de- velopment, 86 f . ; in itinerant justice court, 102 f., 105; grand, 115 f.; petty, 116; in taxation, 123; general ver- dicts, 354. Justice of the peace, early his- tory, 260 f . ; in present local government, 452 f. Justices, itinerant, 86 ff., 102, 115. Justiciar, the, 114. Keeper, lord, 250. King, the, in the modern con- stitution, 440 ff. See Kingship. King's bench court, 109, 157, 230 f. Kingship, origin of the Saxon, 512 INDEX 10 f.; character of, 11 ff., 52; character of the Norman, 52 ff., 78 f. ; as representing divine government, 108, 112; changed idea of, 147 f. ; abol- ished, 1649, 325; restored, 334 ff. See Monarchy. King's peace, the, Saxon, 25 f. ; Norman, 84 f. King's pleas, the, Saxon, 48 ; Norman, 84 f., 115; in pri- vate hands, 160; in Tudor age, 260. Knighthood, compulsory. 298 f, 313. Knights, as a class, 170 f. ; in council of 1254, 174 f.; em- ployment of, in public busi- ness, 175 f. ; join the house of commons, 195 f. Knight's fee, the, 62. Laga Edwardi, the, 83, 126. Lancaster, house of, relation to constitution, 217 ff. Lancastrian age, character of, 218 ff., 237 f. Land holding, forms of Saxon, 38 ff. ; of feudal, 44 ; feudal abolished, 338. Land laws of Edward I, 161 ff. Langton, Stephen, archbishop, 126. Laud, William, archbishop, 303, 305, 312. Law above the King, 79, 210, 295, 311, 314, 359. Law, the rule of, 314. Law books, early Norman, 82 f.; Glanvill, 111, 118; Bracton, 111; Fortescue, 219 f.; Blackstone, 399. Law, English, early, purely Germanic, 5 ; character of, 8, 19 f. ; changes in, 85 ff., 100 ff., 154 f., 158 ff., 454 f. Leges Henrici, 83 ff. Legislation, Saxon, 15; Nor- man, 70 f. ; share of commons in, 199, 204 ff.; by bills, 227; in Tudor age, 251 f. Liber homo, 35. Liberal party, 396, 458 f.; tendency to split, 487. Liberty, the, 28, 56, 159. Lincoln, bishop of, refuses to send knights to France, 125. Livery and maintenance, 247 f. Loans, forced, Tudor, 259; Stuart, 290 f. Local government, Saxon, 20 ff., 27; effect Norman Con- quest on, 51, 71 ; the jury in, 87; Tudor, 259 ff., 450; modern, 450 ff. Local government board, 453, 478. Locke, John, 357, 360 f. London, local government of, 451 f. Long parliament, the, 309 ff. ; legislation of, 312 ff., 337. Lords, House of, 195 f., 362; in Tudor age, 253 f . ; and the execution of Charles I, 320 f. ; disappearance of, 323; abolished, 325; as court of law, 351, 455; and first reform bill, 437 ff.; in pres- ent constitution, 443 ff., 494 ; and liberal ministries, 444; reconstruction of, 464, INDEX 513 492 f. ; in recent times. 473 ff., 488 ff. ; debate in, 474 f . ; powers in taxation, 489 f. Lordships private, rise of, 27 f., 39 f. Magna Carta, 82, 128 ff., 144, 156, 189 ff., 199, 210, 311 f.; as foundation of the constitu- tion, 129 f., 138 f. ; confirma- tion of, 139 f., 142 f., 149; reissues of, 140 f. ; cited in struggle with Stuarts, 291. " Maletote," the, 189. Manor, the, 26, 39 f., 45, 62 ff. ; the domain manor, 63 f. Manorial court, See Domainal court. Marlborough, duke of, 378. Marlborough, statute of, 151. Mary I, question of succession of, 257. Marriage, feudal right of, 66, 131, 162. Martial law, Stuart use of, 291, 293. Melbourne, Lord, 456. Militia ordinance, 317. Military service, Saxon, 46 f. ; Norman, 55, 64, 153 f. Millenary, petition, 272. Ministerial responsibility, me- dieval, 209 f . ; modern, 289 f ., 336 f., 349, 363, 366, 372 f., 381 f., 395, 400, 407, 472, 502 ; to prime minister, 391 f., 400. Misericordia regis, 85. Monarchy, Saxon elective, 12 f. ; Norman absolute, 53 f., 77 ff., 100; limited, 147 f., 188, 198, 219 f., 362 f., 366, 393 f . ; Tudor absolute, 242 ff. ; end of absolute, 331, 362 ; future of, 483. See Kingship. Monopolies, of Stuart age, 280; forbidden by law, 285; re- established by Charles I, 299 f. Montfort, Simon de, 152; and origin of parliament, 177 ff. Mortmain, statute of, 163. Murdrum, 85. Mutiny act, 377. Nation, the, beginning of idea of, 148; development in six- teenth century, 246. New England, puritan consti- tutional ideas in, 304; influ- ence upon England, 323. Newcastle, duke of, 394, 402. Nineteen Propositions, the, 317 f. Nisi prius cases, 103. Nobility, the Saxon, 33 ff.; Norman, 74 f. ; modern, 210; Tudor new families, 254. Non-conformist, the, 340. Non-resistance, doctrine of, 346, 351 f., 379. Norman Conquest, the, 50 f. ; constitutional results of, 7j 51 f. ; effect on the church, 60 f. North, Lord, 403, 405 f., 412. Oath, coronation, 14, 126, 198; of compungators, 28 ff.; of fealty to King, 57. Office holders, in parliament, 375 f., 397, 405, 413. 514 INDEX Officers personally responsible for acts, 237- Opposition, medieval baronial, 153, 180, 188, 197. 190 f., 207, 211, 213; parliamentary, 395. Orange. William Prince of, 355. Ordeal, the, 30 f., 116. Orders in Council, 207. Ordinances, 205 ff., 232, 317. Ordinances of 1311, 198 f. Outlawry, 31. Palatine earldoms, the, 58. Palmerston, Lord, 429, 441, 457 f. Papacy, financial demands of England under Henry III, 146; international govern- ment of, 244 ; breach of Eng- land with, 257 ff. Pardoning power, 234 f. Parish, as successor of the town, 261 f. ; in modern local government, 453. Parliament, 150, 153, 418 f.; origin of, 169 ff.; transi- tional period, 180 ff. ; of 1265, 178 f.; of 1295, 184 f.; as protector of the constitu- tion, 180, 187, 192, 197, 211 f. ; growth of its power. 192 ff.; in Lancastrian age, 218, 233 f.; in Tudor age, 243, 251 f., 252 ff., 258 f., 263; attitude in Stuart age, 266 ff.. 288 f. ; supremacy of, 331, 334 ff., 380, 400; life of, see Triennial acts, septen- nial acts. Parliament bill, 1911, 444 f., 492 ff. Parties, political, rise of, 344 f., 369 ff. ; suspension of, in time of war, 416 f., %95. Party government, 388 f. ; sus- pended in time of war, 416 f., 495. Peel, Sir Robert, 396, 429, 439, 456 f. Peerage, the, origin of, 196; in Tudor age, 253 f.; creations since Tudor age, 473 f. Peers, the judgment of his, 136 f. ; creation of to create a ma j ority ; by Anne, 380 ; for first reform bill, 438; for parliament bill, 491 f. People, the, source of govern- ment's authority, 321, 323 ff., 327. See Sovereignty of. People's Charter, the, 448. Peterloo massacre, 430. Petition, as initiating legisla- tion, 204 ff., 227 f. Petition of right, the, 293 ff., 298, 346. Pipe Rolls, the, 92. Pitt, William, elder, 392, 394, 396, 401 ff. Pitt, William, the younger, 407 ff., 434. Policy, governmental, parlia- mentary control of, 207 ff., 336, 367 f., 400, 402, 405. Poor, care of the, 262. 449, 453. Popish plot, 343. roynings' law, 251 f., 423. Precedent, use of in Stuart age, 268 ff., 271. 277 f. Premunientcs clause, 185, 194. Prerogative, the royal. 78 f., INDEX 515 112; procedure, 106 f., Ill, 248 f.; organ of, 230, 818. Presbyterian party, 271; in long parliament, 315; de- feated in second civil war, 318; in the Restoration, 337 f., 339 f. Press, freedom of, 329, 377. Pride's purge, S20. Prime minister, the, 381 !'., 428 ; the first, 366 f., 390 f. Primer seisin, 65. Privileges of parliament, 222, 229; right to, questioned by the king, 283 f. Privy council, 2 19 f ., 396 ; ap- pellate jurisdiction of, 313 f. ; relation to cabinet be- ginning, 349 f., 369, 375. See Council, small. Privy seal, 250. Privy seal, lord, 477. " Privy seals," 259, 275, 290. Procedure, judicial, Saxon, 23 f., 28 ff.; Norman, 71, 104; new prerogative, 106 f. ; as source of the common law, 110 f.; criminal, 115 ff., 155, 248 f . ; reform of, 329, 454. Proclamations, 207; in Tudor age, 252; in Stuart period, 274 f. Protectorate, the, created, 327- Protestantism, in Tudor age, 258 f. " Protestation," the, 283 f. Provisions of Oxford, 151 ff., 180, 318. Provisors, 146. Public opinion, influence on government, 392, 408, 417 f., 437, 466 f., 470, 498, 502. Publication of parliamentary debates, 419 f. Puritans, 270 f., 303 f.; their constitutional ideas in Amer- ica, 304, 322 f., 360 f.; in long parliament, 315. Pym, John, 806, 311. Quarter sessions, 261. Quartering of troops, 291, 293. Quia emptores, statute of, 159, 163 f., 181. Quo warranto inquiry, of Henry III and Edward I, 156, 159, 188; proceedings against the boroughs, 346, 450. Radical movement, after 1815, 430 f., 448, 458. Recognition, the, 105. Recovery, the, to break an en- tail, 166 f. Reform age, of nineteenth cen- tury, 431 ff. Reform bill, first, 436 ff. ; re- sults of, 447 f . ; second, 459 f.; third, 463 ff.; fourth, 501. Regencies, 426 f. Relief, the, 65, 181, 162. Religious liberty, 119, 328. Remainder, in a grant, 165. Representation, distribution of, 327 f., 413 f., 435, 447; re- forms of, 433 ff., 460, 463 f., 465 f.. 501. Representation of the people act, 501. Representative system, not in Magna Carta, 129, 138 f.; 516 INDEX beginning of, 175, 177, 183, 185 f., 192. Repression of opinion, at time of French revolution, 415 f. ; after Napoleonic wars, 430 f. Restoration, the, 334 ff., 363. Revenue, sources of Saxon, 47 f. ; Norman, 90 f. ; at end of twelfth century, 121 f. ; Stuart illegal, 275, 298 ff.; parliamentary control of, es- tablished, 332. See Taxation. Reversion, of lands, 165 ff. Revolution, American, 405 f. Revolution, French, effect on electoral reform, 414. Revolution of 1399, 215, 216 f.; first step towards in Stuart age, 297 f.; of 1688, 355 ff., 379. Richard I, as king, 121, 124; ransom of, 123. Richard II, reign of, 212 ff.; deposition of, 215, 356. Rights, bill of, 357 ff. Roman influence on the consti- tution, 5 f., 7. Root and branch bill, 315. Roses, wars of the, 218, 236. Rump parliament, the, 320, 323, 326. Russell, Lord John, 429, 434 ff., 459. Sacheverell, Dr., 378 f. Saladin tithe, the, 122 f. Saxon institutions, survival of, 82 ff., 89. Scotland, act of union with, 380; secretary of state for, 476. Scots resist Laud's high church plans, 305; enter England against Charles I, 307; sup- port parliament, 309; in sec- ond civil war, 318. Scutage, 122; in Magna Carta, 132, 141. Septennial act, 398; repealed, 494. Serf, the Saxon, 37 f. Serjeanty tenure, the, 64, 156 f. Settlement, act of, 373 ff. Sheriff, the Saxon, 17 ff.; Norman, 58 ff., 87, 90. Sheriff's farm, Saxon, 18, 47 f. ; Norman, 59, 91. Sheriff's turn, 72. Ship money, 300 ff., 313. Shire, the, 9, 20 ff. ; court of, 21 ff., 23, 71, 102, 186, 260. Short parliament, the, 305 f. Slave, the Saxon, 36 f. Smith, Goldwin, The Empire, 481. Smith, Sir Thomas, on the Tu- dor parliament, 263. Socage tenure, 74. Sovereignty, issue of, in Stuart age, 267 f., 274, 278 f., 295 f., 297, 301 f., 317, 320, 335 f., 363. Sovereignty of the people, 309, 317, 320 ff., 329, 422. Star chamber, court of, 235, 248 f. State, secretary of, 251, 476. Statute, the, 158, 205. Stephen, character and effect of his rule, 93, 95. Strafford, earl of, 306 f . ; im- peachment of, 310 f. INDEX 517 See Wentworth, Sir Thomas. Strode, case of, 224. Stuart age, fundamental issue in, 267 f . ; creative, 268 f . Sub-infeudation, 64. Subsidy, the, 285. Succession to the crown, 220 f . ; regulated by Henry VIII, 256 f.; in 1689, 356; in act of settlement, 374. Suffrage, parliamentary, first regulation, 226; female, 329, 501; regulation by house of commons. 381 ; reform of, 413 f., 433 ff., 447, 460, 465, 501. Suit of court, 155. Sunderland, earl of, 370. Supremacy, Act of, 258. Suspending power, 341 f. See Dispensing power. Tallage, 190, 201. Tariff reforms, 431 f., 449. Taxation, Saxon, 19, 47; rise of national, 121 ff., 190; in Magna Carta, 131 f.; by Ed- ward I, 187 f.; illegal with- out consent, 190 f., 197, 200, 202; used by Parliament, against the King, 200 ff., 283, 288 f. ; Tudor arbitrary, 259; Stuart, 275, 298 ff., 307. See Revenue, Commons, House of. Temple, Earl, note of George III to, 407. Temple, Sir William, plan for a council, 350, 364, 366. Test act. the, 343, 353; re- pealed, 432. Teutonic influence on the con- stitution, 6 f. Thegn, the, 34. Tithing, the, 25, 71 f. Toleration, religious, 376, 432 f. Tory party, 369, 389, 403, 410, 417, 431, 458. Town, the, 20, 26, 261 f. Trade, board of, 453, 477. Treason, charge of against Straft'ord, 310 f. ; against Charles I, 320 f . ; trials for, 377, 415. Treasurer, Lord, 250, 398, 476. Triennial act, of 1641, 312, 338; of 1694, 377; repealed, 397. Trinoda necessitas, 40, 48. Trusts, early form of, 167 f. Tudor age, 238, 240 ff. Tunnage and poundage, 288, 290, 297, 300, 313, 338. Unconstitutional, power to de- cide acts, 328. Uniformity, act of, 258, 339. Union, act of, with Scotland, 380; with Ireland, 422 ff. Unionist party, 488. United States, puritan consti- tutional ideas in, 304, 322. Uses, early form of, 167 f. Utrum, the assize, 106, 116. Vassalage, Saxon, 46. Veto, the king's. 23, 61, 204, 373; in the Instrument of Government, 328. Victoria, 441, 442 f., 446 f., 464. 491. 518 INDEX View of the frankpledge, 72, 73, 160. Village community, the free, 26, 38 f. Walpole, Sir Robert, 384 ff.; fall of, 392 f . ; earl of Or- ford, 393. War, the secretary at, 351, 476 ; the secretary for, 476. War of 1914, effect on govern- ment, 495 ff. Wardship, feudal right of, 66, 131, 162. Warrants, general, 419. Wellington, duke of, 430, 438, 439, 444. Wentworth, Sir Thomas, 302 f ., 305. See Strafford, earl of. Wergeld, 31, 34 f., 38. Whig party, 369, 389, 396, 403, 458. Wilkes, John, 419. William I, conquest of Eng- land, 50 f . ; his canons for government of the church, 60, 96. William II, character of his rule, 79 f., 81. William III and Mary II, 355 ff., 362 ff., 366 ff. William IV, 455; and first re- form bill, 438 ff. Wite, the, 31, 84, 85. Witenagemot, the, 14 ff., 69. Wool, as source of revenue, 123, 171, 200 f. Works, board of, 478. Writ, the, 86, 105 f., 114, 154; of right, 107 f.; prae- cipe, 108; in Magna Carta, 135 f. Written constitution, the, 323 f., 326 f.. 358, 494 f. Wycliffe, 212. York, duke of, heir of Charles II, 343, 344. Yorkist period, 236 ff., 247. 6 697 5 TTMIVFRSITV OF CALIFO r\I a. LOS ANGELES University of California Library Los Angeles fh'is book is DUE on the last date stamped below. 1 i .'4K2IS1 L^tintriw* "y> UNIVERSITY OF CALIFORNIA-LOS ANGELES L 008 255 762 UC SOUTHERN REGIONAL LIBRARY FACILITY AA 001 276 751 3