THE LIBRARY 
 OF 
 
 THE UNIVERSITY 
 
 OF CALIFORNIA 
 RIVERSIDE
 
 THE ENGLISH CONSTITUTION
 
 THE 
 
 BY 
 
 G^ ;Vr 
 
 MILE BOUTMY 
 /I 
 
 TRANSLATED BY 
 
 ISABEL M. EADEN 
 
 WITH AN INTRODUCTION BY 
 
 SIR FREDERICK POLLOCK, BART., M.A. 
 
 PROFESSOR OF JURISPRUDENCE, OXFORD 
 
 MACMILLAN AND CO. 
 
 AND NEW YORK 
 1891 
 
 AH KiaMt Heterved
 
 RICHARD CLAY AND SONS, LIMITED, 
 LONDON AND BUNGAY.
 
 INTRODUCTION 
 
 IT gives me much pleasure to see my friend M. 
 Boutmy's work offered to English readers in a trust- 
 worthy form. I have not thought it necessary to 
 examine the translation with minute care, but I have 
 seen enough of it to rejoice that the author has been so 
 fortunate in his translator. It is anything but an easy 
 matter to turn good French into good English ; in this 
 case the task has been performed with excellent skill 
 and judgment, and with close fidelity to the original. 
 
 The book seems to me to deserve a welcome in 
 England on two distinct grounds. First, if we take it 
 as a concise view of the development of the English 
 Constitution on the social and economic side, it fills a 
 place that is not to my knowledge exactly filled by any 
 of our own books. And this alone might suffice to 
 recommend it. But another quality may well give it a 
 positive value, not only for students, but for masters in 
 history and political science. We have here the frank 
 and lucid record of the impression made by the peculiar
 
 INTRODUCTION 
 
 course of English constitutional changes on a foreign 
 observer of exceptionally good intelligence and in- 
 formation. M. Boutmy has brought to his work not 
 only knowledge of our language, but a careful study of 
 the best authorities, and a mind singularly free from 
 prejudice. He is not an appointed champion of either 
 Romance or Teutonic origins, and he can admit that the 
 main work of the French Revolution had already been 
 done in England a century earlier. It is good for us to 
 know what are the conditions that to a Frenchman of 
 M. Boutmy's stamp appear to have been the really 
 decisive ones in our history, and which features have 
 struck him as most characteristic. 
 
 English readers, it is true, will not be ready to allow 
 that even the fairest and acutest outside view can be 
 faultless in the sense of proportion and local atmosphere. 
 If home-bred institutions have their anomalies and 
 abuses, they have also their "temperaments," as the 
 publicists say, which are not to be found in books. We 
 shall read M. Boutmy with our individual reservations 
 and supplements, with doubts and may be with differ- 
 ences on this and that point. But the differences will 
 be profitable. A book like M. Boutmy's is in many 
 ways good for information ; its farther and best purpose 
 is to set the reader thinking. 
 
 F. P.
 
 PREFACE 
 
 VARIOUS publications have lately done much to clear 
 up the subject of the origin and early development of 
 political institutions in England. The light thrown by 
 Guizot on one division of the subject has not indeed 
 grown dim. Recent writers have not observed more 
 accurately than did the great historian, but their obser- 
 vations have gone further and deeper, a broader view of 
 the whole has been obtained, and a more complete 
 mastery of detail. My aim is to point out to the 
 French reader the chief conclusions which contem- 
 porary research has either thrown into higher relief 
 or confirmed by fresh documentary evidence. 
 
 Modern political England was formed in its essential 
 elements during the period which embraces the 
 eleventh and fourteenth centuries; the character and 
 mutual relations of those elements took their fixed 
 and final shape under the Tudors. Those five hun- 
 dred years witnessed, so to speak, the unbroken de- 
 velopment of a vigorous frame towards that solidity
 
 PREFACE 
 
 of structure which marks the attainment of manhood. 
 A comparison between the various phases of this first 
 process of evolution and the corresponding stages of 
 the process in France suggests more than one useful 
 lesson. 
 
 The authors whose researches have given a new 
 aspect to this period of history and to those events 
 which led up to it have gone direct to the autho- 
 rities, and have with their own hands turned over the 
 pages of a multitude of original texts. Nothing can 
 make up for the want of this. The political theorist, 
 who merely draws from the stream, should be slow 
 to dissent from, and cautious in objecting to, the 
 conclusions of those writers who have gone to the foun- 
 tain head. Still, professed students have, like other 
 men, their passions and their prejudices, political or 
 national as the case may be : they show too a special 
 inclination to forsake the broad highway of history 
 which their predecessors trod, for some narrow by- 
 path which they have opened out for themselves and 
 which they explored in the first instance alone or 
 nearly alone. Lookers on who have no such personal 
 reasons for leaving the beaten track do not always 
 find in mere general reasons a sufficient justification 
 for doing so. Freeman, for instance, delights in tracing 
 out the beginnings of a quasi-republican monarchy, his 
 political ideal, in the remotest possible past of English
 
 PREFACE 
 
 history. 1 Gneist is inclined to refer all that he con- 
 siders valuable to a Germanic origin. Augustin Thierry 
 has made the separation between conqueror and con- 
 quered more deep and lasting than it really was, 
 and has consequently overestimated the influence of 
 the Norman element. Freeman and Gneist go to 
 the opposite extreme ; they agree in teaching that the 
 English nation, as it exists now, is nothing but the 
 Anglo-Saxon nation restored to its former inheritance ; 
 they hold that we can discern in the period preceding 
 the Norman Conquest, not only the vague beginnings 
 but the more or less definite features of that free 
 government of which we are able to trace the develop- 
 ment during a period which is, in a fuller sense, 
 historical, and that the outlines of those features, rude 
 indeed and few, but clear and well marked can even be 
 recognized in the constitution of the old Germanic 
 communities. 
 
 Distant surveys like these, with their ever-widening 
 horizons, flatter the imagination, and are by no means 
 to be treated with contempt. We may glean much 
 political information by the study of society at a very 
 early period, if our object is merely to trace general 
 features of manners and disposition, and the first clearly 
 marked lines which show the direction of the national 
 character. Such investigations lead, on the other hand, 
 1 Freeman, Growth of the English Constitution, ch. iii.
 
 PREFACE 
 
 to deplorable mistakes when our avowed object is to 
 discover in the remote past the details of well-defined 
 institutions, to mark their systematic operation, and to 
 prove how subsequent institutions have sprung from 
 them by a process of elimination, addition, or elabora- 
 tion. 1 Stubbs shows very clearly that the Germanic 
 tribes described by Caesar and 150 years later by Tacitus, 
 had not as yet emerged from the inorganic stage, and 
 that no conclusions can be drawn from political forma- 
 tions which, ill-defined and perpetually shifting, pre- 
 sented only some passing phase to the notice of either of 
 those excellent observers. 2 Historical phenomena like 
 these are merely floating clouds, which may resemble 
 mountains in outline but must not be mistaken for them. 
 Stubbs admits that the results of research in this direc- 
 tion are very " indistinct," that even ninth century 
 testimony upon the subject of the Saxons in the land 
 of their origin is vague and obscure, and that as to the 
 Angles, the Danes, or the Normans at the time of their 
 invasion, " we know nothing." His professions of ignor- 
 ance or uncertainty are less explicit on the subject of 
 the Anglo-Saxon monarchs, although he owns that 
 "there is no subject on which we have less knowledge, 
 than on the administration of public revenues before 
 the Conquest." Certain institutions there are indeed 
 
 1 See Dicey, The Law of the Constitution, pp. 12 to 18. 
 
 2 Stubbs, i., c. ii., ibid. c. iii. c. vi.
 
 PREFACE 
 
 about which he professes to be better informed, but 
 these he robs of their character and value as original 
 and local creations by what he himself says of similar 
 institutions existing contemporaneously in other coun- 
 tries. 1 They are for the most part rudiments of organ- 
 ization, denoting a certain degree of civilization and a 
 certain social condition ; the same surrounding circum- 
 stances have brought them into existence at almost the 
 same moment in almost every country of Europe. The 
 all important differences which have since revealed 
 themselves in the political constitution of the various 
 States are therefore attributable to more recent causes. 
 
 Freeman had need of far-fetched inductions and 
 forced analogies to enable him to establish, not only the 
 link of tradition but a species of identity between the 
 Anglo-Saxon Witenagemot, and the House of Lords of 
 to-day ; 2 Stubbs himself seems to have been over hasty 
 in recognizing in the County Court, an institution which 
 belonged to the period preceding the Conquest, the 
 living germ from which parliamentary representation 
 spontaneously sprang. Both Witenagemot and County 
 
 1 Stubbs, i. 208. Similarly Stubbs refers to Carolingian 
 models, various administrative institutions of Henry II., scutage, 
 the assize of arms, the inquest of sheriffs, &c. (Stubbs i. 441, 
 591, 613.) 
 
 2 " The House of Lords," he says, " represents or rather is the 
 ancient Witenagemot." Growth of the English Constitution, ch. ii. 
 p. 62.
 
 PREFACE 
 
 Court were already moribund in the eleventh century 
 and the corresponding institutions which we find after 
 1066 differ in so many points from their so-called 
 originals that we may set them down as new creations. 
 It is clear that the latter owed their character far more 
 to the great event which had just taken place, than 
 they did to that ruined edifice, the plan and the 
 materials of which were to some extent utilized in their 
 construction. 
 
 One word in conclusion as to the proper treatment of 
 the subject. The origins of a political constitution are 
 to be found, either in a period very remote, or in one 
 much more recent than those authors, whose arguments 
 I am criticizing, will admit. What we must look for in 
 the distant past are the original and deep-seated tend- 
 encies, the primitive leanings, of the national character ; 
 they are more easily traceable at a period when as yet 
 the vicissitudes of history have not furrowed and broken 
 up the surface of the ground ; they explain the general 
 direction, and measure the energy of those forces which 
 are one day to set in motion a system of political machi- 
 nery. As to the machinery itself, its beginnings and 
 its modifications are nearly always due to causes more 
 specific and more practical, more recent and nearer to 
 hand. For my own part I believe that the constitutional 
 and parliamentary system, of which England created for 
 the world the original and great example, had its origin
 
 PREFACE xiii 
 
 in historical rather than in purely ethnical sources. It 
 was rather the outcome of the needs which circum- 
 stances, and especially one great and fortuitous event, 
 had created, than an inheritance handed down through 
 successive generations from the period of the Saxon 
 conquest. There is, in my opinion, too great a tendency 
 to look upon the English nation as a race which, after 
 the passing crisis of 1066, recovered, so to speak, its 
 identity, regained its old self and its former spirit, and 
 slipped back into the groove from which it had been 
 wrenched by a violent shock. It would be more accurate 
 to look upon it simply as a political society, which had 
 in the eleventh century become so disorganized that its 
 vital powers were well-nigh extinct, but which at the 
 critical moment, felt the salutary shock of a military, 
 economic and administrative revolution; and which 
 again, less indeed through that revolution itself than 
 through the slowly felt influence of consequent events, 
 less indeed through the peculiar genius of each one of 
 its component races than through the physical and 
 moral conditions to which the people as a whole was 
 made subject, acquired the structure and the form, which 
 it has retained substantially to the present day.
 
 CONTENTS 
 
 FIRST PAET 
 
 ENGLAND IN THE ELEVENTH AND SIXTEENTH 
 CENTURIES 
 
 PAGE 
 
 INTRODUCTION V 
 
 PREFACE vii 
 
 I 
 
 THE ADMINISTRATIVE MONARCHY AND THE GREAT VASSALS 
 
 THE GREAT CHARTER 3 
 
 II 
 
 THE HIGHER BARONAGE AND THE PEERAGE 33 
 
 III 
 
 THE KNIGHTS AND THE BURGESSES THE DECAY OF THE 
 
 FEUDAL SYSTEM 42 
 
 IV 
 
 LOCAL SELF-GOVERNMENT AND THE LANDOWNERS THE 
 
 PARLIAMENT . 57 
 
 THE TUDORS--THE EXTINCTION OF THE FEUDAL NOBILITY- 
 
 THE FALL OF THE ROMISH CHURCH MODERN ENGLAND 70
 
 CONTENTS 
 
 SECOND PAET 
 
 ENGLAND IN THE SIXTEENTH AND SEVENTEENTH 
 CENTURIES 
 
 I 
 
 PAGE 
 
 GENERAL VIEW OF THE SUBJECT THE THREE REVOLUTIONS 91 
 
 II 
 
 COLONIZATION, COMMERCE AND INDUSTRY BEFORE THE 
 
 EIGHTEENTH CENTURY 99 
 
 III 
 
 THE COUNTRY GENTLEMEN 108 
 
 IV 
 THE YEOMEN 120 
 
 V 
 
 THE AGRICULTURAL LABOURERS . 127 
 
 THIRD PART 
 
 THE INDUSTRIAL AND AGRARIAN REVOLUTION OLI- 
 GARCHICAL GOVERNMENT IN THE EIGHTEENTH 
 CENTURY 
 
 THE CONCENTRATION OF ESTATES DISAPPEARANCE OF THE 
 
 YEOMEN 137 
 
 II 
 
 THE CIVIL, FISCAL AND ECONOMIC PRIVILEGES OF THE 
 
 LANDED GENTRY 149
 
 CONTENTS xvii 
 
 III 
 
 PAGE 
 
 THE POLITICAL AND SOCIAL PRIVILEGES OF THE LANDED 
 
 GENTRY THE RULE OF THE OLIGARCHY 158 
 
 IV 
 
 THE OLIGARCHY AND THE PARLIAMENTARY SYSTEM . . . 174 
 
 V 
 
 THE MANUFACTURING PERIOD THE TWO NATIONS .... 181 
 
 VI 
 
 MANUFACTURES AND THE MANOR 196 
 
 VII 
 
 THE REFORM OF 1832 CONCLUSION . 202
 
 THE ENGLISH CONSTITUTION
 
 PART I 
 
 ENGLAND IN THE ELEVENTH AND 
 SIXTEENTH CENTURIES 
 
 ]t E-C.
 
 THE ADMINISTRATIVE MONARCHY AND 
 THE GREAT VASSALS 
 
 THE GREAT CHARTER 
 
 IT was in 1066 that the line which the whole history 
 of political institutions has subsequently followed was 
 traced and defined. After, and in consequence of the 
 invasion, monarchy and feudalism were confronted in 
 England with conditions differing altogether from those 
 which confronted them in France or Germany. The 
 forces which the two powers brought into the field, 
 their methods of marshalling those forces and, so to 
 speak, their formation for attack and defence, the 
 alliances which they sought, the claims which they 
 raised and the rights which they insisted on, varied 
 sensibly on one side of the Channel and on the other. 
 From that exceptional state of things in England ex- 
 ceptional consequences have sprung. The institutions 
 of the middle ages, profoundly modified by the fact of 
 the conquest, produced, in some sort of themselves, 
 national unity, the conception of the state, equality 
 of taxation, equality before the law, self-government, 
 
 B 2
 
 4 THE ENGLISH CONSTITUTION PART i 
 
 political liberty and its organs, at a date when no 
 other people of Europe had even thought of those 
 things. 
 
 Let us examine more closely and compare the 
 England and the, France, ?f the eleventh century. On 
 the Continent' feudalism; arose', in part from the want 
 of proportion between the vast extent of the Caro- 
 lingian monarchy and the weakness of the administra- 
 tive machinery with which the monarchy sought to 
 control a still barbarous society. It was the result of 
 the progressive disintegration, first of the empire, then 
 of the kingdoms, still too bulky, of France and Ger- 
 many. From their fragments sprang a large number 
 of small states loosely bound together in a federation 
 and acknowledging the nominal headship of one of 
 their own number. In the eleventh century the French 
 monarchy, despoiled of its domains and lending itself to 
 the spoiler, all but disappeared in the midst of a feudal 
 system which steadily grew in power and stability 
 around it. The sovereignty, still from time to time 
 exercised with guarded energy, degenerated rapidly 
 into suzerainty. The dynasty which, under cover of 
 the indifference of the great nobles, had seized the 
 throne, was nothing more in fact than prima inter 
 pares. It clung indeed to its high pretensions and 
 disclosed them at intervals, but it was not to struggle 
 openly on their behalf till two centuries had passed 
 after the revolution of 987 ; it waited till might could 
 succour right. Up to that time it was careful to avoid 
 contests of which the issue was uncertain, and shrank 
 from exposing itself to rebuffs calculated to weaken that
 
 SECT, i THE MONARCHY AND GREAT VASSALS 5 
 
 titular supremacy which it held in reserve for future 
 use. 
 
 Nothing similar is to be found in the England of 
 1066. From the very fact of the conquest, the Teutonic 
 idea of the general surrounded by his companions in 
 arms, and even something of the Roman idea of the 
 prince in relation to his subjects, reappeared more or 
 less, side by side with the idea of the suzerain and his 
 territorial vassals. The country which submitted to the 
 Normans was in extent well within the administrative 
 capacity of an eleventh century government. Four and 
 a half times smaller than the France of our day, for it 
 did not take in Wales, nor as yet the three northern 
 counties, the territory of the kingdom did not exceed 
 in its greatest length (from London to Newcastle) the 
 distance from Paris to La Rochelle. The feudalism 
 developed within this area was the result, not of a 
 gradual and natural disintegration of the state, or of a 
 series of spoliations submitted to by a helpless sovereign, 1 
 but of an apportionment carried out at the good pleasure 
 and under the direction of a victorious prince, who had, 
 and intended to retain, the upper hand. The way in 
 which the distribution of fiefs amongst the companions 
 of the Conqueror was managed, is significant. In 
 France, the great fiefs, representing as they did duchies, 
 counties, or marquisates created by the first Carolin- 
 gians, consisted in each case of one unbroken stretch 
 of territory. In England, the king more prudently 
 
 1 Buckle points out that in France the great nobles held their 
 domains not by grant but by prescription. Buckle, ii. 311. See 
 also Hallam's Middle Ages, i. 158.
 
 THE ENGLISH CONSTITUTION PART i 
 
 rewarded his chief vassals with estates scattered here 
 and there through every part of the territory. He to 
 whom fell the largest share had 793 manors scattered 
 over twenty counties. Forty other Barons, the heads of 
 their class, held manors in six, twelve, and even twenty- 
 one counties. 1 It seems certain that no one of the 
 seignorial jurisdictions, except those of the palatine earls, 
 extended over the whole of the shire, and that the 
 majority of them did not reach beyond the limits of the 
 hundred. 2 
 
 These facts enable us to form an idea of the scattered 
 distribution of feudal holdings. Most of the great 
 vassals were only able to gather any considerable armed 
 array by the tedious process of despatching a summons 
 into every district in England ; while the forces at their 
 command in each county were far inferior to the forces 
 of the king's officer, the vice-comes or sheriff, under 
 whose orders were ranged all the inferior tenants of the 
 crown. Add to this that many of these scattered 
 estates lay within range, nay, within the very grasp of 
 the king, who was able through them to strike 
 effectually at his insubordinate barons. The very 
 multiplicity of their fiefs only laid the great nobles 
 more open to attack at a number of points at once. 
 
 1 In the fourteenth century the domains of the great vassals 
 were still very much dispersed. " Many a time," says Froissart, 
 " it has happened when I rode through the country with him 
 (Despencer) -for the lands and rents of the English barons lie here 
 and there and much scattered about [car les terres et revenues des 
 barons d'Engleterre sont par places et moult eparses] that he 
 would call to me and say, 'Froissart, seest thou yonder great 
 town. ...?'" 2 Gneist, i. 123.
 
 SECT, i THE MONARCHY AND GREAT VASSALS 
 
 We should therefore be much deceived as to the 
 condition, de jure and de facto, of the great Norman 
 vassals in England, if we formed an opinion of it from 
 the condition of the great French feudatories at the 
 same period. Amongst the members of the Anglo- 
 Norman baronage, the earls at this time held the high- 
 est rank. It would be altogether inaccurate to regard 
 them either as the king's lieutenants or as feudal lords 
 holding sway over whole counties. In the first place, 
 there were many English counties without an earl ; l 
 in the next place, all earls did not necessarily bear the 
 name of a county ; they frequently bore the name of a 
 town or simply their family name : 2 the difference is 
 significant. The bulk of their estates lay, as a rule, in 
 the district from which they derived their titles, though 
 there were very early examples to the contrary. 3 
 
 In that district, moreover, they did not exercise in any 
 sense of the word, the authority of government. 4 There 
 was scarcely any variation from this rule except in the 
 cases of the palatine earls of Chester and of Durham 
 
 1 The Conqueror appears to have created only three English 
 earls ; a document of the time of Henry I. mentions only five. 
 Stubbs, i. 360. 
 
 ' Gneist, i. 114. 
 
 3 Documents show us that the domains of Simon de Montfort 
 were scattered through the counties of Leicester, Northampton, 
 Suffolk, and Berks. It was in the first of these counties that his 
 estates were smallest. The whole formed what was called the 
 " honour " of Leicester. The title of earl was attached to it. (See 
 Bemont, Simon de Montfort, p. 35.) Three hundred years later, 
 in the fifteenth century, the estates of the Earl of Oxford lay, for 
 the most part, in Essex, those of the Earl of Norfolk in Surrey. 
 Stubbs, iii. 528. 4 Stubbs, ibid. 530.
 
 THE ENGLISH CONSTITUTION TART I 
 
 who, entrusted with the defence of the new political 
 establishment against the Welsh and Scotch respectively, 
 possessed within the limits of their counties the most 
 extensive royal rights [regalia]. As for the others their 
 titles were merely a badge of honour or a means of 
 emolument. As a rule they carried the sword of the 
 county, and claimed as their right one-third of the 
 judicial revenues received by the sheriff or vice-comes. 
 It is this fact which points most clearly to their con- 
 nection with a definite administrative area, but it was 
 a privilege not granted in every case, nor was it always 
 hereditary. 1 In brief, the great English vassals were 
 landlords, rather than territorial barons. They were 
 often very influential men ; they were in no sense 
 sovereigns ; the basis of sovereignty, the petty state con- 
 sisting of a compact territorial unit, was lacking in their 
 ease ; the title of sovereignty, an original delegation, 
 real or fictitious, of the chief attributes of royal authority, 
 was lacking equally. The simple fact that it was 
 possible for King Stephen to create earls without ter- 
 ritories, making them a charge on the royal treasury 
 and endowing them with a sort of paid senatorship^ 
 marks the enormous difference which existed at the 
 beginning of the twelfth century between the higher 
 English baronage and the great French feudatories. 
 The former continued to resemble closely the so-called 
 comitatus, that is to say, the group of adherents whom 
 the king rewarded by donations of money or lands, 
 granted for life or in perpetuity. The personal tie was 
 
 1 Dialogus de Scaccario, i. 17. Stubbs' Select Charters.
 
 SECT, i THE MONARCHY AND GREAT VASSALS 
 
 still the dominant factor 1 in England, at a period when 
 feudalism in France was already appearing under the 
 independent and fully developed form of a territorial 
 hierarchy composed of local potentates, who were 
 masters and almost kings in their fiefs. 
 
 Face to face with this baronage, so inferior in prestige 
 and resources to the baronage of France and Germany, 
 we find a monarchy exceptionally powerful and well 
 armed when compared with the continental monarchies. 
 There was an enormous disproportion between the 
 forces of an Earl Warenne or an Earl of Hereford and 
 those of a king of England, who was also Duke of 
 Normandy, and, less than a century after, Count of Anjou, 
 Maine and Lorraine, suzerain of Brittany and lord of 
 Aquitaine ; on the other hand the difference was almost 
 nothing between a Count of Flanders or Toulouse and 
 a Louis VI., the ever-harassed possessor of a slender 
 territory, who gained loud praise from Suger by making 
 the royal name feared " even in the heart of Berri." 
 In England proper, the crown had from the first taken 
 a position, the strength of which is indicated in more 
 ways than one. We know that William I. held in 
 demesne all the great towns of the kingdom, save those 
 in the palatine counties. 2 He was able to complete 
 without opposition the survey of landed estates through- 
 out the country and to assess the taxes upon an accurate 
 
 1 " Comites sibi creat " is the language of so late a document as 
 the Dialogus de Scaccario, i. 17. Stubbs' Select Charters. 
 
 2 It is remarkable that of 1,500 charters of towns which have 
 come down to us, there are only forty-nine emanating from 
 barons. Gneist, i. 115.
 
 10 THE ENGLISH CONSTITUTION PART i 
 
 basis. He had exacted, not only from his own vassals, 
 but from their vassals in turn, a direct oath of fidelity 
 to his person. By doing this he had reknit over the 
 heads of the feudal hierarchy the immediate bond of 
 obedience between the subject and the crown. The 
 rights of wardship and marriage which he exercised over 
 the fiefs of his barons were more stringent than those 
 exercised in any other country where the feudal system 
 prevailed. He multiplied forests in an oppressive 
 degree, 1 and kept in his own hands the jurisdiction over 
 all hunting grounds whether within or without his 
 demesne. His fiscal exactions were vexatious ; those 
 of his immediate successors became intolerable. 2 The 
 
 1 Stubbs, i., ch. xi. 403. 
 
 2 Two facts bring before us with peculiar clearness the vigour 
 of the royal power in England. First, the private wars which the 
 kings of France are careful to regulate, and are compelled to allow 
 upon certain conditions up to 1330 and in 1353, disappear at an 
 early date from the other side of the Channel. The great vassals 
 keep the king's peace amongst themselves. They seldom take up 
 arms except against the king, and that only when they are perse- 
 cuted and oppressed, or when they hope to effect a change 
 of dynasty. Secondly, no subject in England ever obtained 
 the right to coin money bearing any other effigy than that 
 of the sovereign. We meet with a solitary exception during 
 the reign of Stephen, but it serves only to confirm the general 
 truth of the statement : " Tot reges vel potius tyranni quot castel- 
 lorum domini habentes singuli percussuram proprii numismatis," 
 says Henry of Huntingdon. This was clearly regarded as a mere 
 usurpation which was put an end to with the restoration of order 
 under Henry II. " Publica moneta una et eadem erit in regno in 
 argento percussa," says Matt. Paris. On the other hand, seignorial 
 coinage continued in France up to the beginning of modern 
 times.
 
 SECT, i THE MONARCHY AND GREAT VASSALS 11 
 
 barons rebelled and were worsted, their goods were 
 confiscated and handed over to others. 
 
 In France we meet with no such excessive exercise 
 of authority after the time of the first Carolingians, and 
 no one of the kings could have attempted it, even at a 
 much later date. In the middle of the thirteenth 
 century, we find the distinction in full force between 
 provinces " obedient, to the king " and " not obedient to 
 the king" (pays d'obeissance le roi et de non obeissance 
 Ic roi) ; the latter, in which the king had no real power, 
 comprising all the domains of the great feudatories, 
 nearly two-thirds of the France of to-day. 
 
 In England the monarchy, so powerful in itself, had 
 enjoyed from an early date the advantage of an 
 administrative machinery which was fairly perfect at 
 a time when its rudiments only existed elsewhere. At 
 the centra] point, the king's court with its two branches, 
 one fiscal, the other judicial, 1 but both served by the 
 same officials, gave a uniform impulse to the whole 
 administration. In the counties the crown was repre- 
 sented by the sheriff, who was in no sense subordinate 
 to the earl, as his title of vice-comes would seem to 
 imply, but who depended directly on the central 
 government. His relations with the earls, the prelates, 
 and the barons of his county were the relations of an 
 official with individuals of influence, but of doubtful 
 sympathies, upon whom he keeps a discreet watch, 
 and with whom he may be at any time forced into 
 open rupture. He conveyed to them the royal ordi- 
 nances, and the expression " the power and jurisdiction 
 1 Hallam's Middle Ages, iii. 138.
 
 12 THE ENGLISH CONSTITUTION PART i 
 
 of the king and the vice-comes " (fortitudo et justicia 
 regis ml vice-comitis), 1 shows clearly that there was no 
 intermediary between the king and his local repre- 
 sentative. The great vassals had striven to appropriate 
 this important office, at once military, judicial, and 
 fiscal. In certain counties they succeeded in making it 
 hereditary, but these cases of usurpation continued to 
 be very rare. Almost everywhere the vice-comites or 
 sheriffs remained royal functionaries appointed every 
 year, and held closely in hand by the central govern- 
 ment. From 1170 onwards it became the rule no 
 longer to choose the sheriffs from among the barons 
 but from among the officers of justice. 2 More than once 
 the shrievalties were suspended and the duties of the 
 office temporarily performed by judges, members of the 
 king's court, two of whom administered as many as 
 eleven counties. At every turn we find the king re- 
 buking his sheriffs, removing them, driving them from 
 office singly or in numbers. In the following century 
 again, their authority was visibly curtailed but their 
 activity was still ceaseless and multifarious. Later still, 
 when the monarchy had found other agents, their 
 privileges were systematically cut down. During the 
 thirteenth century the sheriffs filled a position corre- 
 sponding closely to that of the bailiffs (baillis) or 
 seneschals, who in France administered the king's 
 demesnes. But their administration was not, like that 
 of the French seneschals, confined to a limited portion 
 of the national territory ; they were to be met with from 
 
 1 Ordinance of William I. separating the temporal and spiritual 
 courts. Select Charters, Stubbs, 82. - Stubbs, i. 474.
 
 SECT. I THE MONARCHY AND GREAT VASSALS 13 
 
 one end of England to the other, and they made the 
 presence of the crown felt in the remotest corners of 
 the kingdom. They exercised in the name of the crown 
 the numerous prerogatives entrusted to them, and their 
 very disgraces brought home to every one the fact of 
 its strength and compelled a recognition of its 
 authority. 
 
 The creation of itinerant judges completed at an 
 early date the administrative organization of the 
 English monarchy. These officers formed a bond 
 between the central and the local government : we 
 find them in the reign of Henry I., less than half a 
 century after the conquest. They were, as a rule, 
 members of the king's court, and resumed their seats 
 there when their circuits were finished. The Carolingian 
 missi dominici were revived by the English monarchy 
 in this institution, and in the matter of size, the kingdom 
 lent itself better to the system than did the empire. 
 In France they had long disappeared ; the royal 
 enqutteurs of Saint Louis in the thirteenth century 
 were merely a short-lived institution destined hardly to 
 survive that prince. In later times neither the journeys 
 of the royal commissioners sent into the provinces and 
 towns to collect the taxes, nor later still the expeditions 
 of the masters of requests (maitres des rcquetes), bore 
 the stamp of a regular system. These were simply 
 special missions. The case was the same with the 
 grands jours, that is to say, sittings of the judges held 
 in those provinces so remote from Paris that they could 
 not conveniently take their appeals to the parliament 
 there. We might say, to borrow a legal phrase, that
 
 14 THE ENGLISH CONSTITUTION PART i 
 
 the royal court of final appeal was " portable " [to be 
 brought] in England, and " querable " [to be sought] in 
 France. In England the court came to the suitors ; in 
 France they were compelled to go to it ; and that fact 
 naturally curtailed the limits of its activity and 
 diminished its prestige. The position filled by the 
 English justices in eyre was an important one. When 
 they held their assizes in a county, no immunity, no 
 baronial franchise excused attendance at their court. 
 No individual, at all events in the first instance, escaped 
 their jurisdiction. They decided on the spot, in the 
 spirit of the high tribunal of which they formed part, 
 appeals from the local courts. It is easy to estimate 
 the extraordinary authority and prestige enjoyed by a 
 monarchy, which had for its representatives in every 
 part of the kingdom delegates of such eminence, who 
 returned at regular intervals to take their instructions 
 from the central government and imbibe the spirit of 
 its policy. 1 
 
 A monarchy powerful and well served, a baronage 
 feeble in comparison, these are two important features 
 which place England in sharp contrast to the other 
 European nations. A deeply-rooted and precocious 
 sense of national unity is a characteristic no less re- 
 markable and distinctive. Freeman, and after him 
 Green, show that the first Teutonic invaders of Great 
 Britain the Jutes, the Angles, the Saxons, and even 
 the Danes sprang from the same Low-German origin ; 
 that they settled in one of the least thoroughly Latinized 
 of the Roman provinces ; that the slow progress of their 
 1 Stubbs, i. 604, 605.
 
 SECT, i THE MONARCHY AND GREAT VASSALS 15 
 
 conquest, and the vigorous resistance with which they 
 met, ended either in the extermination or the strict 
 localization of the Celtic tribes, and the destruction of 
 all landmarks of a former civilization, so that nowhere 
 else do we find a race less mixed in blood or retaining 
 in greater perfection its original type. Of the facts 
 cited by these learned authors in proof of the peculiar 
 character of the Saxon invasion, I note only two : first, 
 that these heathen nations, though brought into contact 
 from 449 with a Christian population more civilized 
 than themselves, for the most part retained their 
 paganism till about the middle of the seventh century 
 (597-681), and that they owed their tardy conversion, 
 not to the conquered race, but to missionaries from 
 Rome or Ireland ; secondly, that their language did not 
 exhibit then, nor till after the Norman invasion, any 
 appreciable traces of Latin influence, and that the Teu- 
 tonic structure of its idiom was so firmly fixed that 
 even now it is impossible to compose a complete English 
 phrase from purely Latin elements. The Normans in 
 their turn sprang from the same stock as the invaders 
 who preceded them, and however French they had 
 become in manners and language, there must have 
 remained in them, so to speak, a certain German sub- 
 stratum in which, as in its native soil, the Anglo-Saxon 
 seed took root and flourished rapidly and with unusual 
 vigour. 
 
 I pronounce no opinion on the importance and the 
 range of these race influences. In this case, moreover, 
 another influence, and a more general one, intervenes 
 and controls them,
 
 16 THE ENGLISH CONSTITUTION PART i 
 
 It is only natural that the sense of common and 
 independent interests should spring up and grow 
 strong more rapidly in an insular than in a continental 
 state. Frontiers traced by a river or a mountain can 
 be, and as a fact often are, shifted. Nationalities 
 divided by a barrier so slight and variable are conse- 
 quently slow to detach and differentiate themselves. A 
 sense of nationality may eventually condense and settle 
 into shape, but it is only by an historical process and 
 by the long-continued influence of common traditions. 
 Where the geographical boundaries are indefinite, this 
 sense is at first and for a long time remains wavering, 
 tentative, and hesitating. On the other hand, a 
 boundary so clearly marked and so permanent as is 
 the sea acts as an incessant inducement to regard as 
 final the separation of the peoples which it divides, and 
 to look upon any particular group which it shuts 
 off from the rest as forming a natural unit. The 
 Norman barons, less than a century after the conquest, 
 show an inclination to look upon themselves as one with 
 the conquered people. 1 The followers whom the Angevin 
 kings brought with them from the Continent, inhabitants 
 of Touraine and Poitou, or even Normans fresh from 
 Normandy, are not looked upon by the first settlers 
 with hatred and suspicion, merely as new claimants to 
 a share of the spoil ; but the latter instinctively regard 
 them, their compatriots of yesterday, as aliens, albeit 
 
 1 Before the end of the thirteenth century the difference in 
 dress between Normans and Saxons had disappeared. View of the 
 Dress and Habits of the People of England, Strutt, ii.
 
 SECT, i THE MONARCHY AND GREAT VASSALS 17 
 
 they both speak the same language and one which the 
 Saxons cannot understand. 
 
 Hatred of the men from beyond Channel is con- 
 spicuous in the whole long series of complaints and 
 remonstrances addressed to the kings ; and on the other 
 hand a document from which I have already quoted, the 
 Dialogue de Scaccario, testifies that by the end of the 
 twelfth century the fusion of victor and vanquished was 
 complete. "Sic permixtae sunt nationes," says the 
 manuscript, "ut vix discerni possit hodie, de liberis 
 loquor, quis Anglicus quis Normannus sit genere." x 
 
 The same document notices the frequency of mixed 
 marriages between the two races, and the fact is all the 
 more remarkable as, at the same period, marriage with 
 an alien appears to have been regarded as in some 
 measure a disgrace. Clause 6 of the Barons' Petition 
 in 1258, demands that heiresses of noble birth shall not 
 be so given in marriage as to " lose rank," or to " enter 
 into a mesalliance." These are the nearest equivalents 
 to the word disparagentur, and the explanation given 
 in the context is characteristic. 2 " By uniting them," 
 it goes on to say, " with men who are not natives of this 
 kingdom of England." This tradition, it is well known, 
 still obtains amongst the English nobility, who seldom 
 marry outside their own body. A cosmopolitan nobility 
 and an ultramontane clergy have proved the scourge of 
 
 1 Dialogue de Scaccario, i. 10. Stubbs' Select Charters. 
 
 2 Petunt de maritagiis domino regi pertinentibus, quod non 
 maritentur ubi disparagentur, videlicet hominibus qui non sunt 
 de natione regni Angliae. Petition of the Barons at the Parlia- 
 ment of Oxford. 6. Stubbs' Select Charter*. 
 
 B.C. C
 
 18 THE ENGLISH CONSTITUTION PART i 
 
 more than one continental state. In England, the 
 nobility and the clergy may have been, as elsewhere, 
 selfish, unruly, grasping and oppressive ; but we find 
 them from the very beginning, and, so to speak, in 
 obedience to the destiny of their geographical position, 
 imbued with a sense of nationality, at once deep-seated, 
 narrow, and defiant, which brought with it this advantage 
 that it limited the scope and checked the development 
 of any spirit of caste, and which ceaselessly, though 
 silently as I shall explain more fully later on sapped 
 the foundations of the Catholic Establishment in 
 England. 
 
 One circumstance in particular assisted the rapid 
 development of this feeling of nationality ; I allude to 
 the long-established homogeneity of the different parts 
 of the kingdom. Let us consider for a moment how 
 France was divided for administrative purposes from 
 the very beginning, and down to the end of the old 
 regime. We find great provinces as extensive as 
 ordinary kingdoms; Brittany, for example, was equal 
 in area to more than a fourth part of England proper ; 
 several of the provinces were almost in the position of 
 " sub-nationalities," a distinct race forming the bulk of 
 the population; several had been actual states and 
 cherished the memory of a time when their rulers 
 enjoyed independent sovereignty. Their re-union with 
 the Crown was a gradual process ; it was brought about 
 in some cases by conquest, in many by marriage, in- 
 heritance, or treaty ; in almost all, under terms which 
 safe-guarded their ancient privileges. 1 
 
 1 Under Philip the Long, Languedoc would not agree to a
 
 SECT, i THE MONARCHY AND GREAT VASSALS 19 
 
 The king having taken the place of the former lord, 
 treated directly and separately with each province, 
 whether for the granting or the method of collecting 
 the taxes. The same lines of division appear in the 
 national assemblies which began to meet at the end of 
 the fourteenth century ; the deputies were divided in 
 the first place according to class (ordre), but immediate 
 subdivisions appeared in each class corresponding to 
 f>rovinces or groups of provinces. 1 And more than once, 
 one or other of these groups, intent merely upon its own 
 advantage, after securing some arrangement favourable 
 to itself, would withdraw or take no further part in the 
 proceedings, thus rendering abortive such measures as 
 concerned the common interest. In short the existence 
 of arbitrary power and a monarchy of great prestige 
 clothed the country with the semblance of unity, but 
 even in the seventeenth century the nation was still in 
 embryo. 2 France was no longer a federation, and she 
 
 uniform coinage for the whole kingdom ; she clung to her own 
 standards and measures and rejected those used in Paris. 
 
 1 Note particularly the assemblies of 1576 and of 1588. They 
 were divided according to " governments." The same disposition 
 was shown in 1483 at the assembly of Tour?. In 1346 again, 
 Hervieu notices a vote recorded according to provinces or accord- 
 ing to "nations." The same thing occurs in 1349 in the case of 
 the " langue d'oil," distinct assemblies for the langue d'oil and the 
 langue d'oc were for a long time the rule. 
 
 2 We know that Adam Smith mentions the freedom of internal 
 trade, complete and of long standing as it even then was, as one of 
 the highest advantages enjoyed by the England of his day. In 
 France the kings made efforts to secure ifr, but they clearly did 
 not think themselves strong enough to impose it by force. In 
 1621 Louis XIII. authorized the establishment of new custom 
 
 C 2
 
 20 THE ENGLISH CONSTITUTION PART i 
 
 was not, as yet, an undivided people. We know that 
 at the date of the wars of religion, la Nolle had 
 contemplated the possibility of a dismemberment of 
 the monarchy. 1 
 
 houses in certain frontier provinces which had been without them 
 up to that time, but he gave those provinces the choice of placing 
 them either on their external or internal boundary. Burgundy 
 gave the preference to internal trade, and its customs line was 
 drawn on the side of Franche Comte which then belonged to 
 Spain. On the other hand, Saintonge, the district of Aunis, 
 Guienne, Brittany, and Maine had their customs line drawn on 
 the side of Normandy and Poitou, and so insured the freedom of 
 their foreign trade. Later, when Colbert established the grandes 
 fermes, he did not insist on union, he merely suggested it to the 
 provinces, and we know that the only provinces which accepted 
 his suggestion were those which formed the central northern 
 group. No other fact could show more aptly that France was, 
 even at that time, held together only by the very loose ties of a 
 species of federalism, and that the sense of a common fatherland 
 was not as yet strong enough to secure the unity of the State. 
 Clement, Histoire du Systeme Protecteur. 
 
 1 The history of the origin of the " intendants," those agents 
 and types of French centralization, is full of meaning. Their 
 office does not have its rise, as we might be led to believe, in the 
 normal development of the administrative system. It belongs to 
 a period of anarchy ; it is a relic handed down to us, in an aggra- 
 vated form, of a condition of things resembling a state of siege. 
 Speaking generally, the first known form of the intendant seems to 
 have been the commissioner who was sent in the sixteenth century 
 into those provinces in which order had to be restored, as the 
 colleague of the general in command. Hence the expression, 
 " military intendants " (intendants du militaire) continued to ap- 
 pear in their commission. The office existed wherever disorders 
 existed ; it ceased with them, and was revived again when they 
 revived, until in 1635 it took permanent shape, and we find it 
 established in every part of the kingdom in spite of the absence 
 of disturbance. The intendants exercised at first, as was to be
 
 SECT, i THE MONARCHY AND GREAT VASSALS 21 
 
 England alone of all European states enjoyed the 
 good fortune of a homogeneous existence from the 
 twelfth century onwards. She owed this advantage, in 
 part, to the peculiar character of her administrative 
 districts which she inherited from the Anglo-Saxons. 
 Even the county, the most extensive of those districts, 
 barely equals in area, on the average, half a modern 
 French department or the tenth part of such a province 
 as Brittany. Even if a county had claims of its own, it 
 had not the requisite forces at command to support 
 them. Several counties represented more or less ex- 
 actly the settlement, not of a race, but of a particular 
 tribe of invaders ; occasionally they betokened the 
 existence of some short-lived monarchy, rarely that of 
 a nationality which had been practically distinct. Very 
 few among the counties could recall the enjoyment of a 
 separate political existence, as the perpetual revolutions, 
 conquests, and readjustments of Anglo-Saxon times had 
 obscured all memories of the past. The counties were 
 subjugated at one stroke by the Norman kings, and no 
 one of them, apart from the others, had the opportunity 
 of bargaining for the maintenance or concession of 
 
 expected, "extraordinary," that is, almost unlimited powers. 
 These become their " ordinary " powers a little later on. I know 
 no more striking proof of the divided and fragmentary condition, 
 politically speaking, of France so late as the beginning of the 
 seventeenth century, than the fact that the king's agents in the 
 provinces traced their origin, not from civil officers like them- 
 selves, whose powers had been gradually enlarged, but from com- 
 missioners not unlike the commissioners of the Convention, who 
 came in^the track of armies, as if to conquer over again. See 
 Hanoteaux, Lea Intendants.
 
 22 THE ENGLISH CONSTITUTION PART i 
 
 peculiar privileges. Under these circumstances they 
 became scarcely more than mere divisions for adminis- 
 trative and fiscal purposes, without individual character 
 or interest. 
 
 They were not in any way analogous to the provinces 
 of the old regime. Setting aside their violent and arti- 
 ficial nature, the departmental circumscriptions devised 
 by the Constituent Assembly of 1789 to shatter the 
 ancient framework of provincialism, present a truer 
 analogy. After 1100 no trace of provincialism existed 
 in England, while France had still seven centuries to 
 wait, and then only reached the same result by dint of 
 a revolution so violent that it swept away in its progress 
 what remained of her local liberties. England, through 
 a singular combination of circumstances, had attained 
 territorial unity and the sense of nationality at the 
 moment when, under the Plantagenet dynasty, she 
 began to take her place in the general history of 
 Europe. 1 
 
 Yet one more observation : throughout this territory 
 thus welded together, and amongst this people thus set 
 free from provincialism with its petty ambitions and 
 selfish aims, we find prevailing at a very early period a 
 uniform law and uniform customs. Towards the end of 
 the reign of Henry II. all important local differences 
 had disappeared. In this respect also national unity 
 
 1 It is probable that the condition of England in this respect 
 would have been nearly the same as that of France if England 
 had been quicker to conquer Wales, Scotland, and Ireland, and so 
 had been compelled, at an early period, to reckon in her political 
 assemblies with the representatives of annexed but very dissimilar 
 provinces.
 
 SECT. I THE MONARCHY AND GREAT VASSALS 23 
 
 was an accomplished fact. In less than a century the 
 itinerant judges had placed it upon a definite and sub- 
 stantial basis. As delegates of one and the same court 
 sitting permanently in London, as members from the 
 beginning of that great council which was the nucleus 
 of Parliament, as officers whose duty it was to second 
 and enforce the king's high ordinances, and later as the 
 official exponents of legislation and framers of the 
 statutes which reflected its will, they carried with them 
 into the provinces a loftiness, a breadth, and a continuity 
 of doctrine which rapidly swept before it local usage and 
 custom. The feudal and local courts themselves were 
 too deficient in authority to harbour these customs for 
 very long, and they disappeared at an early date to 
 make way for the new organization of "justices of the 
 peace," a body at once administrative and judicial, 
 commissioned by the Crown for the whole of each 
 county, and more influenced than its predecessors by 
 the spirit of the superior courts. The itinerant judges 
 on their travels hither and thither found everywhere 
 after the century of disorder which followed the con- 
 quest an industrious and progressive community com- 
 posed of races, classes, and individuals, all of whom 
 were interested in getting their respective rights accu- 
 rately defined. The body of jurisprudence elaborated 
 by these high officials on their periodical circuits, and 
 the mass of legislation prompted by them on their 
 return to the king's side, were very considerable : they 
 speedily embraced the whole range of social relations, 
 and breathed into them gradually the spirit of uni- 
 formity. After the reign of Stephen, the three " codes,"
 
 24 THE ENGLISH CONSTITUTION PART i 
 
 West Saxon, Mercian, and Danish, which divided the 
 kingdom among them, were heard of no more ; ! after 
 the reign of Henry II., with a few strictly local excep- 
 tions, England possessed but one single customary 
 law the common law one and the same for the 
 whole land. 
 
 In France, the classification of " customs " [coutumes] 
 was completed in the sixteenth century under Henry III. 
 Two hundred and eighty-five (of which sixty were of first- 
 rate importance) were found to exist, and this without 
 counting the great division between the country of 
 customary law and the country of Roman law (pays de 
 droit coutumier et pays de droit Romain). In the fif- 
 teenth, sixteenth, and seventeenth centuries, when the 
 kings annexed great provinces, all that they thought of 
 doing, or could do, was to create a certain number of 
 separate judicial districts, with a parliament over each. 
 The subdivision and confusion were so great, and each 
 district clung so obstinately to its own usages, that it 
 seemed impossible to dispense with this intermediate 
 stage ; a more hasty centralization would have 
 jeopardized everything. Unity in this as in other 
 respects was in France a thing of very slow growth. 2 
 
 1 Stubbs, i. ch. xiii. 
 
 2 We find the following passage in .Portalis's preface to the 
 " Code Civil." 
 
 " France, like the rest of the great European States, has gradu- 
 ally grown to its present size by the conquest and the voluntary 
 adhesion of different nationalities. 
 
 " The conquered populations and those who retained their free- 
 dom invariably stipulated in their capitulations and treaties for 
 the maintenance of their own system of civil taxation. Experience
 
 SECT, i THE MONARCHY AND GREAT VASSALS 25 
 
 Hindered throughout a long period by the obstinate 
 remnants of a feudalism which had become part of the 
 daily life and instincts of mankind, unity was in the 
 end compelled to take a strictly logical shape, an im- 
 perative and statutory form, and to owe its final estab- 
 lishment to express command and the exercise of force. 
 
 In England legislative unity was not formally imposed, 
 since it met with no serious resistance : it crept in and 
 diffused itself noiselessly in the unobtrusive shape of 
 judicial precedent, and its development was blended 
 with the development of men's needs and habits. 
 Legislation was by no means complete by the end of 
 the twelfth century, but unity of national law was, we 
 may consider, established in 1200, thirty years after the 
 definite institution of an itinerant High Court. 
 
 To repeat : a strong king, a weak baronage, a homo- 
 geneous kingdom these are the three points brought 
 out by this long analysis. We must keep them in view 
 if we are to understand how it was that political liberty 
 appeared in England at so early a date and clothed in 
 its most perfect form a national parliament at a time 
 when other countries were painfully elaborating the 
 clumsy and complicated mechanism of States General 
 and States Provincial. Let us examine for a moment 
 
 shows that a change of rulers is more easy to bear than a change 
 of code. 
 
 " Hence the enormous variety of the systems of customary law 
 (coutumes) which we find existing in the same empire. We 
 might say with truth that France was nothing more than an 
 aggregation of communities. As a country it was common to all, 
 but the states which composed it were separate and distinct. 
 There was one single territory, but various nationalities."
 
 26 THE ENGLISH CONSTITUTION PART i 
 
 this monarchy which we have described. We foresee 
 that it will abuse its vast powers, and that this abuse 
 will provoke a vigorous resistance. Elsewhere, when 
 monarchy becomes absolute, it is at a period when those 
 who govern have brought to perfection the art of veiling 
 the arbitrary exercise of power, of qualifying it by various 
 forms, of justifying it by many good services rendered to 
 the State ; while, on the other hand, the mass of the 
 subject classes employed in peaceful avocations and 
 with substantial interests at stake, have grown more 
 tractable and ready to endure. These moderating in- 
 fluences were altogether wanting in the English com- 
 munity under the Norman and Angevin kings. War 
 was then the only State service. The tribunals and the 
 administrative organization were above all instruments 
 of insatiable extortion. There was no excuse and no 
 compensation for the savage tyranny of the Crown, and 
 those who suffered by it were men with the unmodified 
 natures and the unchecked passions of a primitive 
 period. It required all this to rouse the strenuous 
 resistance which founded the political institutions of 
 England. Freeman considers that if John " Lackland " 
 had possessed the virtues of a St. Louis, an end would 
 have been made of English liberty. He might have 
 added with more truth : " If John had possessed no 
 more power than St. Louis." Where is the prince who 
 can resist the temptations and the demoralizing influ- 
 ences of unlimited authority ? The detestable rule of 
 the first Norman and Angevin kings is due to no other 
 cause. The abuse of overmuch power, the extreme 
 violence of the manners of the time these things com-
 
 SECT, i THE MONARCHY AND GREAT VASSALS 27 
 
 bined brought on in the thirteenth century the crisis 
 which gave birth to the great charter. 
 
 The great barons who were kept in awe by the 
 mightier forces of the English Crown had by nature no 
 more to recommend them than had the nobility of the 
 Continent. During the century which followed the 
 invasion they were nothing more than a troop of 
 hungry adventurers, turbulent soldiers, and licentious 
 petty tyrants in need of incessant repression and 
 chastisement. They appear in their true light under 
 Stephen, and we can reckon up, so to speak, the 
 frightful anarchy of that period by counting the 
 number of " adulterine castles " which the barons built, 
 and from which, setting authority at naught, they 
 ravaged the open country. At the end of the period, 
 small as the kingdom was, there remained no less than 
 375 of these castles to be destroyed. The barons were, 
 as yet, far from having reached the point of common 
 political action, and they had given' no sign of the 
 wisdom and generosity which were so conspicuous a 
 century later. The surprising political intelligence of 
 the rebels of 1215 was in no sense due to a natural gift 
 or inborn fitness ; l it was the slowly ripened fruit of 
 necessity. Consider the case of these great barons with 
 their estates dispersed throughout the country and con- 
 fronted by a tyrannical monarch. The great French 
 feudatories could shut themselves up in their states, 
 and from thence, independently of each other, defy a 
 
 1 In 1310 the ordinances were framed chiefly with the object 
 of benefiting the nobles and in the interest of their class. 
 Stubbs, ii. 329, 330.
 
 28 THE ENGLISH CONSTITUTION PART i 
 
 suzerain whose power hardly exceeded their own. The 
 great English vassals had not, properly speaking, states 
 at all ; they had only domains, and their suzerain was 
 one of the most powerful princes of Christendom. 
 Distance gave them no sense of security : a few days' 
 march, and the king's army was at their castle gates. 
 A few of them only the great Northern and Kentish 
 barons could count to any extent upon local feeling. 
 Nothing of the kind existed in the other counties. The 
 object which the English feudatories aimed at, and the 
 means which they employed, took their character from 
 these exceptional circumstances. Their aim was not 
 independence such a claim would have seemed 
 chimerical : it was to control, or at most to share in, 
 that power their dependence upon which they took for 
 granted. 1 Their means were not those of individual or 
 local resistance, nor even of the resistance of their own 
 class. If they wished to contend at an advantage with 
 an adversary so superior in force to themselves, the 
 barons had but one course open to them. It was 
 necessary, not merely to unite, to make common cause, 
 and to organize their own body, but to rally to them 
 from one end of the kingdom to the other all who were 
 exposed to the tyranny of the Crown ; and no rallying 
 cry would be listened to with attention unless it pro- 
 claimed the grievances of all alike. The resistance then 
 
 1 If we read the petitions of the barons in 1215 and 1258, we 
 shall be surprised to find on the one hand how much they were 
 ready to submit to at the hands of the central power, and to 
 observe on the other the boldness of the oligarchical system, by 
 means of which they proposed to control that power and almost 
 to absorb it.
 
 SECT, i THE MONARCHY AND GREAT VASSALS 29 
 
 had to be political if the victory, when gained, was not 
 to prove barren ; it had to be of necessity general, 
 national, nay, even democratic, if the victory was to be 
 gained at all. All this happened in 1215. Feudalism, 
 in other countries, never failed to show itself what it 
 essentially is a dividing, a decomposing, and an 
 oppressive agent : we see how in England it became, 
 by force of circumstances, an agent of unity and of 
 common political action, and the more or less interested 
 champion of the oppressed. To use Hallam's fine ex- 
 pression, " The permanent threat of an over powerful 
 monarchy neutralized the centrifugal force of the feudal 
 system." 
 
 This is what imparts grandeur and originality 
 to the mighty drama of which the first act ended 
 with the great charter, and which reached its 
 climax with the constitution of Parliament about 
 1340. It was then that a nation came into being, or 
 rather took visible form, a nation ranged in compact 
 order round its natural chiefs. This new power found 
 in Parliament at once a means of action and a permanent 
 organ, in which the resistance of 1215 took the pacific, 
 regular, and continuous form of political opposition and 
 control. It is thus that we must explain the peculiar 
 characteristics which have made it from the beginning 
 an institution original and unique in Europe. The 
 absence of separate provincial traditions, privileges, and 
 interests rendered the existence of anything more than 
 one central assembly impossible. The necessary frame- 
 work of States Provincial and the objects to be arrived 
 at by means of them were both lacking : this means of
 
 30 THE ENGLISH CONSTITUTION PART I 
 
 localizing resistance, and of dividing in order to govern, 
 was denied to the English monarchy. 1 On the other 
 hand, compare this Parliament with the French States 
 General. Although these latter included nominally all 
 classes of the nation except serfs, they did not meet in 
 the same spirit nor with the same results as did the 
 English Parliament. 
 
 In France each of these classes was separately sum- 
 moned by the sovereign without the opportunity of 
 previous conference and without the tie of common 
 traditions. They quitted their isolation for the first 
 time when Philip the Fair convoked them in 1302. 2 
 They were not at that time, nor did they ever become, 
 capable of understanding each other. In England, on 
 the contrary, all classes met again upon a footing of old 
 acquaintance when Parliament was established at the 
 end of the thirteenth century. More than once during 
 the last hundred years had they stood shoulder to 
 shoulder in the struggle provoked by the monarchy. 
 
 1 In France it seems certain that the States Provincial, like the 
 States General, were a creation of the monarchy. They only fell 
 into disuse after the reign of Charles VII. Louis XI. submitted 
 to them the treaty of Arras. Revue Historique, July-October, 
 1879. 
 
 2 I am aware that the States may have met previously, but I 
 do not stop to discuss the point as I am anxious to confine myself 
 to what is of real importance and productive of political results. 
 See Hervieu, Etats Generaux. 
 
 In France the meetings of the States General, even at the time 
 when their reputation Was highest, that is, during the fourteenth 
 century, were little more than accidental, they were a power in 
 the State, and one frequently appealed to, but not an element of 
 the constitution. Guizot's Hist, of Civilization, i. 191 ; iii. 275.
 
 SECT. I THE MONARCHY AND GREAT VASSALS 31 
 
 More than once had they realized that their joint 
 interests were threatened, and that their combined 
 rights lent each other mutual support. The efforts 
 which they had made in common, were crowned by a 
 memorable victory, and consecrated by a solemn instru- 
 ment, framed by great nobles, with careful regard to 
 the welfare of the humble and the poor. Memories 
 like these endure and cannot be gainsaid. The articles 
 of the great charter have little importance as authorita- 
 tive and practical provisions ; they have much as the 
 evidence and symbol of collective and national action, 
 as a pledge given by each class to all other classes ; 
 their great strength lies in their influence on the 
 imagination. The country troubled itself but little to 
 inquire whether such or such clauses, those, for example, 
 which assured to its leaders some control over the course 
 of government, were retained or not in the confirma- 
 tions of the charter. The main point was, that the 
 charter was confirmed, and that with it was perpetuated 
 the memory of a day when all Englishmen had made 
 common cause against oppression. Thirty-two ratifica- 
 tions succeeded each other, and yet the nation was 
 neither indifferent to nor weary of them. Legend is 
 not an accurate reflex of the reality which it portrays, 
 but it is in itself a reality, and is often, of all realities, 
 the most living and the most fruitful. 
 
 The force of sentiment is, after all, the guarantee of 
 guarantees, the only substantial and solvent surety for 
 undertakings written upon parchment otherwise empty 
 enough. A single day's generosity sufficed to lead the 
 English people to place trust and hope in the English
 
 32 
 
 barons, and, in a manner, to endow the latter with a 
 conscience, external to themselves, which checked their 
 caprice and controlled their selfishness, and which even 
 they came to mistake for their own internal and 
 personal convictions. The oligarchical tendencies of the 
 English baronage in the thirteenth and fourteenth 
 centuries cannot be disputed, but they were powerless 
 to cause a rupture between the barons themselves and 
 the rest of the nation. We see how, in spite of the 
 official division into lords and commons, Parliament has 
 remained for centuries an Assembly, homogeneous and 
 national to the core, where class rivalries have been as 
 rare as the conflicts of local ambitions ; while the French 
 States General have been nothing more than a place of 
 meeting and contact for classes who were indifferent or 
 hostile to each other, and for provincial delegations who 
 with great difficulty raised themselves above the private 
 interests of their constituents.
 
 II 
 
 THE HIGHER BARONAGE AND THE 
 PEERAGE 
 
 IT is now time to turn to the examination of the 
 elements which have entered into the composition of 
 Parliament, to observe how they are brought together 
 there, and in what order they are distributed, what is 
 the connection existing between the place which they 
 fill in the nation, and the part which they play in the 
 Chamber, and conversely, the influence thereby exer- 
 cised on their mutual relations, and on their unequal 
 growth within the body politic. A careful study of the 
 local life of the middle ages is the only method of 
 throwing light on these questions ; England differed 
 from the other countries of Europe, not less in her local 
 life than in the position of her governing classes. The 
 special feature above all that we meet with, is a rural 
 middle class, a social force unknown in Continental states ; 
 the following stages may be noted in the process of its 
 formation and development. The upper class gradually 
 became divided, and the lower part moved downward 
 for a time ; it sank as it were into the nation, and 
 mingled with the classes beneath it, then after endow- 
 E.c. D
 
 34 THE ENGLISH CONSTITUTION PART I 
 
 ing the latter with equality in matters of law and of 
 taxation it mounted again to a high position, carrying 
 those lower classes upward in its train. Later we find 
 this same class displaying more and more activity in 
 obedience to the royal summons, and founding between 
 the twelfth and fourteenth centuries, at the expense of 
 the ancient county administration, the local self-govern- 
 ment of our own time ; we find it again when it had 
 become too powerful to be kept aloof, taking its place in 
 Parliament, where, thanks to its mixed nature, and its 
 affinities with both, it served as a link between the 
 higher nobility and the representatives of towns ; and 
 last of all we find that when in the sixteenth century, 
 through the extinction of the ancient baronial houses 
 a void was created in the ranks of the Upper Chamber, 
 the class of which we speak stood ready to fill it, and 
 that it has formed the stock from which the modern 
 English aristocracy springs. The development of this 
 class is one of the main facts in the political history of 
 England. It is necessary to dwell upon it for a 
 moment. 
 
 Almost immediately after the conquest, we find the 
 Anglo-Norman baronage divided into two parts, and, so 
 to speak, into two layers ; the higher barons, barones 
 majores, and the smaller vassals holding directly from the 
 Crown, tenentes in capite, called also barones minores, a 
 numerous, proud and self-reliant class. They were, it is 
 to be noted, in the matter of tenure and jurisdiction, 
 independent of the great barons. If they were not the 
 equals of the latter they were not, at any rate, their 
 subordinates ; they owed them no service, they held of
 
 SECT, ii THE HIGHER BARONAGE AND PEERAGE 35 
 
 the king alone. The only early marked differences 
 between the two orders were, first, that the barones 
 mafores possessed domains considerably wider in extent 
 (a barony containing 13^ knight's fees) ; secondly, that 
 they were summoned to the army and the king's council 
 individually, while the inferior tenants were summoned 
 in a body through the sheriff. These were differences 
 in degree, not in kind. 1 
 
 Before long the character of each of these two parts 
 of the baronage underwent a change, and the interval 
 between them grew visibly wider. Yet the original 
 unity of the baronial order was never entirely lost sight 
 of, not even at a time when the greater barons had 
 enjoyed for more than a century an exclusive right of 
 admission to the councils of the sovereign, and when 
 the lesser barons, classed confusedly with the inferioi 
 vassals in the category of simple knights, were in a 
 fair way of becoming blended with the general body of 
 landowners. When the knights were summoned to 
 Parliament, their first impulse was to attach themselves 
 to the barons, the first impulse of the barons was to 
 welcome their advances ; a little later on the two groups 
 separated, and the knights took their seats with the 
 representatives of the towns ; they not only brought to 
 their new colleagues the loftiness, the boldness and the 
 tenacity of an ancient military class with its time- 
 honoured traditions of command and discipline, 2 but 
 they supplied them also with a natural channel of 
 
 1 See Gneist, i. 290. 
 
 2 We know that during the fourteenth century the House of 
 
 D2
 
 36 THE ENGLISH CONSTITUTION PART i 
 
 communication, and an easy means of good under- 
 standing with that higher baronage from whom 
 they themselves had grown apart rather than 
 broken away. Barons and knights were destined 
 for a long period to remain the elder and the 
 younger branches of the same family : an important 
 fact which later on it will be necessary to consider 
 again. 
 
 Still, at an early date, as I have indicated above, the 
 habits and proclivities of the higher and the lower 
 baronage began to diverge. The lesser vassals were 
 naturally less constant than the great barons in their 
 attendance at the public assemblies, and they showed 
 less alacrity in following the king on his campaigns. 
 The management of their estates compelled to a greater 
 extent their personal attention, and their absence from 
 home in those times of violence and rapine exposed 
 their property to dangers from which more powerful 
 individuals were secure. As we shall observe further 
 on they were compelled to purchase exemption by pay- 
 ments in money from personal attendance in the field. 
 Their attendance at the king's council, where the 
 presence of large numbers would be less desirable, was 
 dispensed with upon easier terms, and the custom of 
 summoning the inferior tenants-in-chief fell rapidly into 
 disuse. For more than a century after the Conquest no 
 mention is made of " the advice and consent " of this 
 
 Commons was led by the knights of the shires. The borough 
 representatives, two or three times more numerous, merely fol- 
 lowed their lead.
 
 SECT, ii THE HIGHER BARONAGE AND PEERAGE 37 
 
 class in the preambles to the royal ordinances. 1 Only 
 the great vassals, the bishops and the judges are 
 mentioned, and they are mentioned with a regularity 
 which proves their constant attendance. We find the 
 throne of the Norman and Angevin kings surrounded 
 by a body of men, the great officers of the palace, who 
 were also at the head of the state administration, and a 
 certain number of prelates and barons, whose capacity 
 and judgment were highly esteemed by the king ; this 
 was the king's council. To this permanent nucleus 
 were added upon important occasions, if, for instance, 
 war had to be declared, an extraordinary subsidy to be 
 furnished, or an edict to be promulgated, the remainder 
 of the great vassals, lay and ecclesiastical. They then 
 formed the " magnum concilium" the great council. 
 The king insisted upon their presence ; for their consent, 
 which, iri obedience to his august will, 2 they could riot 
 refuse, discouraged any local resistance to the execution 
 of the measures agreed to ; they themselves felt it to be 
 to their own interest to attend, and so have an oppor- 
 tunity of discussing, and if possible, of diminishing, the 
 burdens with which they were threatened. 
 
 1 See Stubbs, Select Charters. Observe an even later instance, 
 the writ of 1237. On this occasion the magnates alone seem to 
 have been present, although the subsidy purports to have been 
 granted by the knights and freemen as well. The latter repre- 
 sented their " villeins." In 1232 the villeins are mentioned with 
 the rest as having granted the subsidy. It is clear that neither 
 knights nor freemen were present in person any more than the 
 villeins ; the great nobles contracted for them. 
 
 2 There is no instance under the Norman kings of the refusal 
 of a subsidy. Stubbs, Select Charters, preface, p. 18.
 
 38 THE ENGLISH CONSTITUTION PART i 
 
 These simple facts had most important consequences. 
 The baronage was split up, and by a gradual process of 
 expansion two distinct bodies were formed ; a resident 
 provincial upper class, comprising all the petty tenants- 
 in-chief of the Crown and the inferior barons, and a 
 political aristocracy comprising all the great barons and 
 the counsellors summoned by the king. And we can 
 make out the exact point where the division took place ; 
 the fact that they were accustomed to attend the sittings 
 of the king's council was the distinguishing mark of 
 that aristocracy ; the fact that they were summoned to 
 it individually and by name became in time their 
 official badge of dignity. It is important to bear this in 
 mind ; for the attributes of nobility and the privileges 
 at that time and in all countries alike accorded to the 
 highest class, ceased abruptly at this dividing line. In 
 England these privileges were from an early time made 
 appurtenant to the high functions of the public coun- 
 cillor and the statesman ; they were strictly confined to 
 the great dignitaries, and were never extended downwards 
 to the rest of the barons, who, thrown rather in the 
 direction of the class immediately below them, before 
 long became merged in, and sank to the level of, the 
 general body of freemen. 
 
 A seat at the council-board cannot be shared, nor 
 public employment split up indefinitely. Nobility there- 
 fore in England became, like the peerage, strictly 
 hereditary in order of primogeniture. It was attached 
 to an office which could not be divided and passed to 
 the eldest son only, in direct succession ; younger sons 
 were in no way distinguishable from ordinary citizens.
 
 SECT, ii THE HIGHER BARONAGE AND PEERAGE 39 
 
 Instead of an order made up of privileged families with 
 a tendency to increase from generation to generation, 
 by excess of births over deaths, England possessed merely 
 a group of privileged individuals whose numbers tended 
 naturally to decrease as direct lines died out, a group 
 which but for new creations would as a matter of fact 
 have become extinct. England owes her "isonomy," 
 which is Hallam's boast, to a peerage, weak in numbers 
 and established from the first as a governing body, 
 which has, so to speak, confined its privileges to 
 its own level, and so prevented their extending 
 downwards in a lower and corrupt form to the 
 whole of a particular caste distributed throughout the 
 nation. 
 
 In France the feudal lords were, from the beginning, 
 so divided in interest, and so widely scattered that their 
 chiefs were never in a position, even if the idea had 
 occurred to them, to form themselves into an upper 
 aristocracy, and to claim a share in the government. 
 The title and privileges of nobility, lacking this high 
 prerogative as their basis, were driven to rest their 
 claims upon the common-place circumstance of birth 
 and descent. Not confined exclusively to the upper 
 few, these privileges were extended promiscuously to the 
 whole class of so-called " gentlemen " (gentilshommes), 
 estranging and isolating it completely from the general 
 body of the nation. Instead of a limited political aris- 
 tocracy, we find in France an aristocracy of birth, whose 
 immunities, attached in each case to the family name 
 and descending to all the children, multiplied simul- 
 taneously with the junior branches, and weighed
 
 40 THE ENGLISH CONSTITUTION PART i 
 
 down the lower orders with an ever-increasing 
 burden. 1 
 
 The English have been saved a like calamity by 
 their early-formed conception of the essential nature of 
 nobility, and we find the original source of this con- 
 ception in the fact that the English barons from the 
 very beginning formed a state council, a body of political 
 magnates. This fact it is which, for more than two 
 centuries, has at once narrowed and raised the base 
 upon which the aristocracy have rested their title, and 
 has placed upon a sure foundation the equality of all 
 other classes. By the fifteenth century, the swarming 
 French nobility had secured in their exemption from 
 taxes a privilege attached to birth which cut them off 
 from, and rendered them odious to, the mass of the 
 commonalty; in England at the same period the 
 " isonomy " of classes and their relative continuity, had 
 
 1 We must add that an aristocracy which (as in England) formed 
 the Council of State, naturally looked upon nobility rather as the 
 foundation of their high prerogative than as a title to exemption 
 from public burdens. Such an aristocracy, thirsting for power or 
 sated with the profits derived from it, appropriated only those 
 privileges which could add to its prestige and influence ; it could 
 afford to despise those which were most calculated to excite the 
 anger and envy of the nation at large. I refer especially to such 
 as involved immunities from taxation. In France the advantages 
 assigned to nobility were naturally fitted and adapted to a class 
 which grew poorer as it grew more numerous, and which, without 
 either influence or wealth to sustain its rank, sought eagerly for 
 other marks of superiority ; these it found in outrageous fiscal 
 exemptions, in offensive privileges, in puerile distinctions, in a 
 ruinous exclusiveness the infringement of which was penalized 
 as derogatory.
 
 SECT, ii THE HIGHER BARONAGE AND PEERAGE 41 
 
 become not less characteristic of the social system than 
 were the unity of the kingdom and the solid establish- 
 ment of the State. 1 
 
 1 We know that in 1789 the proposal to create a chamber of 
 high dignitaries met with the most strenuous resistance from 
 the whole body of the French nobility, and above all from the 
 country gentlemen. They instinctively felt that this selection of 
 a political aristocracy would be followed, so far as they themselves 
 were concerned, by loss of caste and a sinking to the level of the 
 commonalty. Later, in 1814, M. de Villele expressed the same 
 sentiment when, criticizing the establishment of a house of 
 hereditary peers, he asked how France could furnish two hundred 
 individuals so superior to the rest as to merit this high distinction. 
 It would amount, he added, to a suppression of the remainder of 
 the nobility in favour of the two hundred chosen families. That 
 which he dreaded as a calamity is exactly what has been taking 
 place, since the middle ages, on the other side of the Channel, 
 and has laid the foundation of civil and political liberty in 
 England.
 
 Ill 
 
 THE KNIGHTS AND THE BURGESSES 
 THE DECAY OF THE FEUDAL SYSTEM 
 
 WE have next to consider the position and progress 
 in the counties of the inferior tenants-in-chief of the 
 Crown. The first steps in the process of their develop- 
 ment which strike our notice are purely feudal in 
 character. Knights' fees, unknown at the period 
 immediately following the conquest, were rapidly 
 created, and by 1100 they existed in great numbers. 1 
 They were definite estates, to which the obligation of 
 military service was specially attached, instead of being 
 charged, generally, on the lands belonging to the manor. 
 Hence, as happened also on the Continent, arose a 
 well-marked distinction between two species of estates, 
 one noble and the other inferior ; the first held by 
 military service, and subject, not only to strict rules of 
 primogeniture, but also to the oppressive rights of aid, 
 wardship and marriage ; 2 the second held in " free 
 socage" this is the legal term and exempt from the 
 more onerous feudal obligations. Military tenure 
 1 Stubbs, i. 283. 2 Hallam, Mid. Ages, i. 179.
 
 SECT, in THE KNIGHTS AND THE BURGESSES 43 
 
 brought about a first process of fusion between the 
 tenants-in-chief of the Crown, and the tenants of 
 barons or sub-tenants, 1 the terms of the holdings being 
 the same in both cases ; 011 the other hand, it seemed 
 calculated altogether to separate them both from 
 the general body of landed proprietors, and to make of 
 the knights a class by themselves, a species of equestrian 
 order, at once overbearing and exclusive. 
 
 Other causes more powerful than the feudal spirit 
 averted the danger. In the first place, England in the 
 twelfth century was among the European countries, 
 which possessed the greatest proportion of free men, 
 that is, of free landowners the two things being then 
 identical by the side of, and in addition to, the feudal 
 knighthood. They consisted either of Normans of 
 inferior rank who had come over with or rejoined their 
 lords, or of original Saxon proprietors there were many 
 of these existing before the conquest, especially in the 
 Eastern counties who, restored to favour after a time 
 with the new masters of the soil, had recovered their 
 freedom and part of their estates. Various documents 
 of the twelfth century show us these Saxons living upon 
 the best terms with the Norman freemen and barons, 
 allied to them by marriage, and very soon themselves 
 aspiring to baronial rank. 2 The non-noble free land- 
 owners in England possessed as a class the numbers^ 
 unity, and stability which they lacked in France. The 
 fact that their class originally supplied the principle of 
 the classification of persons is only one proof of its 
 importance. Bracton, writing in the thirteenth century, 
 1 Gneist, i. 291. 2 Dialoguu de Scaccario, Stubbs' Select Charters.
 
 44 THE ENGLISH CONSTITUTION PART i 
 
 distinguishes only two personal conditions liberty and 
 villeinage : other distinctions are to him merely sub- 
 divisions of no legal importance. The French jurist, 
 Beaumanoir, 1 writing almost contemporaneously, di- 
 vides the people into three classes : nobles, freemen, and 
 serfs. In France, the class of freemen practically con- 
 sited of the burghers. It was with difficulty that 
 the freemen who inhabited the rural districts avoided 
 the forfeiture of their freedom : they only escaped by 
 migrating to the towns. 
 
 To sum up : the non-noble free proprietors in England 
 formed a powerful body well suited to attract to them- 
 selves the class immediately above namely, that of the 
 knights, and to absorb it or be absorbed by it if circum- 
 stances should diminish the distance between them. 
 The junction of the two was not long in taking place ; 
 the knights' fees, which were originally of considerable 
 extent, began from the twelfth century to suffer frequent 
 subdivision ; these partitions were effected chiefly in 
 order to provide portions for daughters and younger 
 sons, and the practice became so common that the 
 legislature was compelled to interfere. The great 
 charter (the version of 1217) prohibits the alienation 
 of fees being carried to such an extent as to render 
 what remained insufficient to bear the prescribed mili- 
 tary burdens. This was another symptom of the growth 
 of the division of property. In 1290, 2 the legislature 
 abolished subinfeudations, and at the same time 
 sanctioned the right, in the case of every man who 
 
 1 Hallam, Constitutional History, i. 197. 
 
 2 By the stat. "Quia Emptores," 18 Ed. I. c. i.
 
 SECT, in THE KNIGHTS AND THE BURGESSES 45 
 
 was not an immediate vassal of the king, to sell, even 
 without the consent of his lord, the whole or part of his 
 estate. 1 In either case the new owner became the 
 vassal of the lord whose vassal the grantor had been. 
 These measures helped to multiply the lesser tenants- 
 in-chief of the Crown ; on the other hand, as the 
 domains of the knights changed hands and diminished 
 in importance, the social condition of their holders 
 became more like that of the ordinary free landowners, 
 who, lately their inferiors, had come to be their equals 
 in wealth. Neither class had actually sunk, for during 
 the same period wealth in general, and consequently 
 the profit drawn from landed estates, had substantially 
 increased, so that the income derived from the half or a 
 third part of a given property was probably equal in 
 amount to its entire revenue at a former date. Both 
 classes however were undergoing a levelling process 
 which extended even to certain of the barons whose 
 fiefs had been cut up by grants of dowries or other 
 donations. The diminution in the number of baronies 
 after the reign of Henry III. is a well-known fact. 2 
 
 We find also that in other respects during the same 
 period the modes of life and habits of the two classes 
 no longer differed from each other. The knights, for the 
 same reasons which made them slow to attend the 
 
 1 In 1327 the right of alienation was extended even to the 
 immediate vassals of the king. Stubbs, ii. 370. 
 
 2 Matt. Paris, v. 617. Of ninety-eight baronies whose repre- 
 sentatives had been summoned in 1300, fourteen were extinct at 
 the accession of Henry IV., and thirty-three had lost the import- 
 ance and dignity of hereditary peerages. Stubbs, iii. 16, 17.
 
 46 THE ENGLISH CONSTITUTION PART i 
 
 king's council, showed, from an early date, the liveliest 
 repugnance to service in the field, which, as the posses- 
 sions of the Crown most exposed to attack were those 
 which lay in France, implied almost always absence 
 from England and a campaign beyond sea in some 
 distant part of the Continent. The knights soon showed 
 themselves intent on escaping this obligation, and when 
 Henry II. offered to exempt them from it on payment 
 of a tax, they accepted his offer with eagerness. This 
 was the tax known as " scutagium " (scutage), and on 
 payment of it the knights were permitted to remain at 
 home. This method of commutation, however, left un- 
 touched the other burdens of military tenure, notably 
 the oppressive and outrageous rights of marriage and 
 wardship which existed in their most rigorous form only 
 in England and Normandy. 1 Attempts were conse- 
 quently made to avoid knighthood itself, the cause or 
 occasion of so much hardship, and the formal act of 
 admission to the order was purposely omitted or evaded. 
 Ordinances insisting on the acceptance of the honour 
 occur perpetually during the thirteenth century, a clear 
 proof that it was submitted to with ill grace. The re- 
 vival of the spirit of chivalry in the reign of Edward III. 
 was merely an accident, a passing fashion. As early as 
 1278, we find the king ordering the sheriffs to impose 
 knighthood, not only upon persons belonging to the 
 knightly class, but upon every one whose income from 
 real estate amounted to twenty pounds sterling, from 
 whatever lord, and by whatever title, he might hold his 
 lands. This direction was, afterwards, frequently re- 
 1 Hallam, Mid. Ages, i. 179.
 
 SECT, in THE KNIGHTS AND THE BURGESSES 47 
 
 peated, and it shows how far by process of time and 
 stress of circumstances the two classes had mingled with 
 each other, the richest of the free proprietors being 
 promoted to the rank of knights, and knights who had 
 suffered the partition of their estates sinking into mere 
 landowners. 1 It is remarkable that in less than a 
 century the principle of primogeniture already applied 
 to the military tenures became the customary rule of 
 the ordinary, the so-called " socage " tenures, Kent and 
 a few other districts alone forming an exception. This 
 shows plainly that the distinction between the tenures 
 corresponded to no equally marked distinctions between 
 the persons who held by them. It was to a great 
 extent the same class which held land by these two 
 titles, and to that class applied in both cases the same 
 rules of succession. In short, from the thirteenth 
 century the great majority of the knights seem to have 
 acquired the tastes and habits of mere rural landowners. 2 
 The military organization prevailing at the end of the 
 fourteenth century marked the end of this process of 
 evolution. The gratuitous and compulsory military 
 service charged upon knights' fees had disappeared, 
 and the tax which had been substituted for it was no 
 longer collected. 5 The nucleus of the king's army, at 
 any rate upon foreign service, was composed of restless 
 
 1 Stubbs, iii. 545. 
 
 2 As early as 1074, in the species of manifesto against King 
 William I. put forth by the Norman barons, they speak with 
 envy of the English, who are suffered to till their land in peace, 
 and drink and feast, while their conquerors are compelled to 
 serve upon the Continent. Stubbs, i. 291. Nolens vexare 
 agrarios milites. (Charier of Henry II.} 3 Stubbs, iii. 540.
 
 48 THE ENGLISH CONSTITUTION PART I 
 
 and warlike barons, who gathered around them men of 
 like disposition with themselves and who sold to the 
 king for hard cash the aid of their regiments of adven- 
 turers. Most of the original knights kept more and 
 more aloof from these bands of condottieri. Many did 
 not even bear the title of knights at all ; they were 
 esquires, gentlemen, " competent to become knights," in 
 the words of an ordinance of 1446, 1 which directed the 
 candidates for the shrievalty to be chosen from among 
 them, in default evidently of men who had actually 
 received knighthood. At the same time they bore 
 arms, but they did so in common with other classes of 
 the nation for the preservation of order in the counties. 
 An ordinance enjoins that every freeman is to arm 
 himself according to his means, some with mail coat, 
 buckler, and lance, others with the simple doublet 
 of mail. They formed a sort of home force 2 a 
 species of local militia which no longer rested on the 
 old feudal basis, its duties being those of a civil police. 
 It was especially its persistently warlike spirit and its 
 attachment to the career of arms which, down to 1789, 
 kept the French noblesse as a class apart from the rest 
 of the nation. In England the military spirit had 
 vanished except in the case of a few turbulent barons 
 who were destined to destroy each other and to dis- 
 appear from the scene before the beginning of the 
 
 Bjiii 547. 
 
 2 By the terms of the Statute, 25 Edward III., ch. 8, it is 
 made illegal to lead the militia out of its own county, iinless in 
 case of urgent necessity certified by Parliament, or to lead it out 
 of the kingdom under any circumstances whatever. Gneist, i. 289.
 
 SECT, in THE KNIGHTS AND THE BURGESSES 49 
 
 sixteenth century. It might be said that, from the 
 end of the fifteenth century, the bulk of the old English 
 knighthood was nothing more than an upper rural class, 
 to which belonged upon an equal footing with each 
 other all the more important free landowners. Le 
 Pogge * describes them at the period of which we are 
 now speaking as given to agriculture, selling wool and 
 the produce of their herds, thinking it no disgrace to 
 grow rich by such means, and acknowledging wealth as 
 the test of nobility. We see how very near the truth it 
 would be to affirm that the feudal system in the strictest 
 sense of the term has never existed in England. In the 
 first place no opportunity occurred for the creation of 
 great provincial " satrapies." Of the two other political 
 elements of feudalism, the first the baronial jurisdic- 
 tion was narrowed in its development, feeble, and 
 short-lived ; it only very rarely went beyond the limits 
 of a manorial court, and it never attained the com- 
 petency or dignity of a high tribunal ; 2 at an early date 
 it yielded to and was swept away by the king's courts, 
 and the fourteenth century, so to speak, knew it no 
 more. The remaining element the military fief was, 
 in the same century which witnessed its creation, 
 exempted from the obligation of military service : this 
 exemption was granted in consideration of a special 
 money payment which before long lost its name 
 and disappeared in the general mass of civil taxa- 
 tion. 3 According to Coke, scutage was not levied after the 
 eighth year of Edward II. The remainder of the 
 
 1 Le Pogge, De Nobilitate. 2 Stubbs, i. 399. 3 Stubbs, ii. 522. 
 E.C. E
 
 50 THE ENGLISH CONSTITUTION PART i 
 
 burdens, those which were purely fiscal, charged upon 
 the military tenures, were already looked upon as 
 obsolete in the time of James I. In the reign of 
 Charles II. they were finally put an end to by means 
 of a money commutation, and all tenures, without 
 exception, were reduced to the type of ordinary free 
 proprietorship, known as " socage." After 1660, military 
 feudal estates no longer existed in England. 
 
 The civil elements of the feudal land system were 
 equally quick to emerge and take a modern shape. The 
 end of the fourteenth century witnessed the commence- 
 ment and rapid growth of the practice of letting land to 
 farm, which became general at the beginning of the 
 sixteenth century, and which was, from the very outset, 
 a form of tenure absolutely free from all feudal charac- 
 teristics : it depended on purely economic relations, and 
 by the terms of its instruments freedom of contract was 
 recognized as the basis of agreement. 1 Certain extreme 
 rights which have been reserved to landlords do not in 
 any sense belong to the middle ages : the most stringent 
 of them are a late invention of the landed aristocracy, 
 and date from the eighteenth century. Copyhold tenure 
 is frequently referred to as an evidence of deeply-seated 
 and persistent feudal sentiment. Those who so refer 
 to it have been misled by appearances. Copyholds were, 
 according to the theory lately current, grants of land of 
 a revocable nature made by the lord to his serfs, and 
 burdened with a great variety of charges which exhibit 
 types of nearly all the feudal obligations known to 
 French law. These grants were held before long to 
 1 Pollock, Land Laws, 139.
 
 SECT, in THE KNIGHTS AND THE BURGESSES 51 
 
 confer a formal and perpetual title, and by the end of 
 the sixteenth century they covered a third of the whole 
 kingdom ; many of them survived as late as the middle 
 of the nineteenth century without the legislature 
 troubling itself to amend their imperfections. If, 
 however, we consider that the same persons frequently 
 held both copyholds and freeholds that is, lands of free 
 tenure ; l that copyholds in many cases belonged to great 
 nobles ; that the time had long passed since their 
 holders formed to any extent a class by themselves ; 
 that the peculiar burdens imposed upon them had been 
 so effectually diminished as to afford no obstacle to 
 agricultural progress; and that the system has always 
 been treated as an object of temperate criticism, never 
 as a grievance, we shall recognize the fact that, even as 
 regards copyholds, the feudal system has only survived 
 in legal technicalities, and not in facts of political or 
 social importance. 2 
 
 As for the mixed elements, at once civil and political, 
 of feudalism I mean primogeniture and entails they 
 met with no better fate. The system of great estates 
 
 1 The statutes relating to the property qualification of members 
 of Parliament and county magistrates make no distinction be- 
 tween freeholds and copyholds ; the income derived from land, 
 which they require, can be drawn indifferently from estates of 
 either tenure. 
 
 2 The persistent retention of feudal terms and ceremonies 
 proves, even in the case of copyholds, that the institution had, 
 in reality, ceased to be feudal. If no one objects to the preser- 
 vation of obsolete forms, it must be because they hurt no one, 
 and because, beneath its disguise, the thing itself has under- 
 gone such substantial modifications as have fitted it to the needs 
 of mode rn society. 
 
 E 2
 
 52 THE ENGLISH CONSTITUTION PART i 
 
 owned by noble families which exists at the present 
 time is in no sense a legacy of the middle ages, but a 
 creation of the last century. It is now more than 350 
 years since freedom of testamentary disposition became 
 the rule (subject to a restriction which was to disappear 
 in 1660), and the rule of primogeniture was confined to 
 cases of intestate succession. It is now nearly 500 
 years since the ingenuity of jurists found a means of 
 emancipating real property by collusive legal pro- 
 ceedings, and practically secured to owners of estates 
 very extensive powers of alienation. 1 
 
 1 It is instructive to follow, even in the middle ages, the efforts 
 of Parliament to establish and maintain the system of entails, 
 and the invariable failure of these attempts shows clearly the 
 direction and influence of public feeling. All the English jurists, 
 common law judges, equity judges, and lawyers show by turns 
 their hostility to these restrictions upon free disposition. In each 
 century their fertile ingenuity suggests fictitious interpretations 
 and collusive proceedings which nullify all statutory prohibitions. 
 In this work they showed no less energy than did the French 
 jurists in adding to the royal prerogative. Very soon after the 
 conquest freedom of testamentary disposition ceased to exist, and 
 primogeniture was the universal law of all tenures. Under 
 Edward I. the famous statute " De donis conditionalibus " put a 
 stop to freedom of alienation in the case of all fiefs of a certain 
 description, and attempted to create perpetual entails ; but lawyers 
 found, in time, more than one way of eluding it, and the Courts 
 lent themselves willingly enough to their artifices. We need not 
 describe here in detail the expedient of " common recoveries," or 
 that of " fines," or finally, the crowning fiction of " uses." The 
 effect of " uses " was, so to speak, to strip from the legal property 
 in the land the substantial enjoyment of it, preserving the former 
 in name and form, and creating under this disguise an estate 
 which possessed all the actual advantages of ownership, but which 
 was free from feudal responsibilities, and was neither recognized
 
 SECT, in THE KNIGHTS AND THE BURGESSES 53 
 
 England has been before all other countries a country 
 of free ownership, of moderately-sized and small estates. 
 
 by the common law, nor subject to its prohibitions or penalties. 
 It seems that more than half the land in the kingdom had come 
 to be held by this title, that is to say, it had escaped from 
 feudalism and was subject to the incidents of modern ownership. 
 Lands held upon " uses " could be sold, devised, or apportioned, 
 though, as a matter of fact, they generally devolved upon the 
 eldest son. This system lasted till the reign of Henry VIII., its 
 weak point being that lands so held escaped confiscation, and thus 
 it became the object of the Crown to bring them again within the 
 operation of the common law. The Act of 1535 was intended to 
 abolish " uses," but they had grown so indispensable that hardly 
 had they been suppressed than they reappeared in substance, and, 
 under another name, that of " trusts," were again assisted by the 
 connivance of the Court of Chancery. Meantime, the agitation 
 caused by their threatened abolition forced the hand of the legis- 
 lature, and in 1540 formal sanction was given to freedom of disposi- 
 tion by will. This, as first granted, was only partial, but it was 
 made complete and extended to all real estate by the statute of 
 Charles II. which abolished military tenures. The end of the 
 seventeenth century saw feudal ownership finally moulded into 
 the shape of modern civil ownership. The point to be remem- 
 bered in this lengthy statement is, that with very few exceptions, 
 under the systems which were nominally most restrictive, real 
 property in England has always been capable of division and 
 alienation, of being acquired by those whose good management 
 has supplied them with the means of adding to their estates, or of 
 fulling into the hands of men who, grown rich by commerce, 
 aspire to a position in their county. Mr. Brodrick mentions the 
 frequency, during the fifteenth century, of litigations relating to 
 land, as a proof that real property in England has long been 
 distinguished by the ease with which it could be alienated or 
 divided. Assuredly a country can hardly be suspected of attach- 
 ment to feudalism which has shown itself so intent upon 
 destroying the political effects of the feudal system, arid so in- 
 genious in warding off its economical results.
 
 54 THE ENGLISH CONSTITUTION PART 
 
 The present system of latifundia and settled estates 
 only began to flourish after the Restoration : it is based 
 not upon the law but upon social custom, and is the 
 outcome of a deliberate policy on the part of the upper 
 classes. But in this case again the courts were not slow 
 to limit the effective operation of entails to the life of a 
 person in being plus a period of twenty-one years less 
 than was allowed in France under the ancien regime. 
 Modern entails have developed within the narrow space 
 marked out by the legislature and the judges, who have 
 insisted that each generation shall be given the oppor- 
 tunity of reconsidering the arrangement made, and of 
 restoring absolute ownership in case it thinks fit to do 
 so. The fact that a perpetuity is in many instances 
 created is owing solely to the wish and choice of succes- 
 sive beneficiaries. In our own days a series of statutes 
 has freed the owner for the time being from the observ- 
 ance of those covenants in his settlements which are at 
 variance with political economy, and has finally restored 
 to him (though only for the benefit of all parties inter- 
 ested under the settlement) the chief rights which his 
 position as a quasi usufructary forbade him to exercise. 
 It is beyond question that the state of things which 
 grew up during the last two centuries was unconnected 
 with the feudal system which preceded it ; it was the 
 effect of a great aristocratic conception which finally 
 provoked a democratic reaction, both being entirely 
 modern in their causes and novel in their spirit. 
 
 In our survey of the various elements which entered 
 into the composition of Parliament, the towns remain 
 to be considered. The growth of the towns in England
 
 SECT, in THE KNIGHTS AND THE BURGESSES 55 
 
 was distinguished by certain peculiarities. In the first 
 place, the great centres seemed to have formed more 
 slowly than in France. In England, liberty, a certain 
 degree of prosperity, and opportunities of acquiring 
 wealth were all to be found in the rural districts. 
 Residence in the towns was not the only mode of 
 bettering their lot which was within the reach of the 
 lower classes. City life, therefore, presented fewer 
 attractions than it did elsewhere. Even in the time 
 of Charles II. no very populous cities existed except 
 London, and still less did any such exist in the 
 fourteenth century. Moreover, England was not in 
 any sense a manufacturing country : she was an 
 agricultural, and above all, a pastoral country, de- 
 pendent to a great extent upon the wool trade. The 
 great majority of her cities were mere country towns ; 1 
 their inhabitants in their manners and pursuits differed 
 in no degree from the other inhabitants of the county. 
 The great towns, almost all of which were directly 
 subject to the king, escaped those struggles between the 
 count, the bishop, and the citizens which fill the history 
 of the French communes. No rival influence had 
 opposed the grant of royal charters to the towns ; the 
 burghers had no grievances to prejudice or exasperate 
 them against the neighbouring barons or knights, but, 
 on the contrary, reposed in both a full and ungrudging 
 confidence. Lastly, the townsfolk enjoyed frequent 
 opportunities of contact with the nobility of the district, 
 
 1 Nine-tenths of the cities of medieval England would now be 
 regarded as mere country towns, and they were country towns 
 even then. Stubbs, iii. 595.
 
 56 THE ENGLISH CONSTITUTION PART i 
 
 for the towns were, by the general system of administra- 
 tion, placed so far as related to inspection of the militia 
 and the election of citizens and burgesses, under the 
 same authority as the county, and were compelled to 
 send representatives to the county court whenever the 
 itinerant justices held their assize. It is to be observed 
 that in 1360 justices of the peace appointed for the 
 whole of a county had jurisdiction given them over 
 such of the towns as enjoyed no special immunity. The 
 conclusion is clear. There was nothing in England 
 which answered to the " third estate " in France a 
 class, that is to say, both isolated and close, composed 
 exclusively of townspeople, enjoying no commerce with 
 the rural population (except such as consisted in the 
 reception of fugitives), and at once detesting and dread- 
 ing the nobility by whom it was surrounded. In 
 England the contrary was the case. The townsfolk 
 and the other classes in each county were thrown 
 together upon numberless occasions; a long period of 
 common activity created a cordial understanding be- 
 tween the burghers on the one hand and their neigh- 
 bours the knights and landowners on the other, and 
 finally prepared the way for the fusion of the two 
 classes.
 
 IV 
 
 LOCAL SELF-GOVERNMENT AND THE 
 LANDO WNERS 
 
 THE PARLIAMENT 
 
 WE seem so far to have made but little progress towards 
 the question of Parliament, but we are gradually work- 
 ing our way round to it. While the knights as a class 
 seemed to be losing ground when deprived of their military 
 character and feudal rights, and were mixing gradually 
 with the class next below them, both classes were, as a 
 matter of fact, improving their position and strengthening 
 their claims to consideration by dint of active usefulness 
 and services rendered to the State. Their movement 
 upwards and their reappearance upon the scene may be 
 ascribed to the operation of those agencies of royalty, 
 the itinerant courts. It was this apparent instrument 
 of centralization in the hands of a power still poor in 
 means arid experience which called into being local self- 
 government in its modern form, and prepared the rural 
 middle class for the part which it began to play a 
 century later on the political stage. The first Norman 
 kings had already restored to activity an old Anglo-
 
 58 THE ENGLISH CONSTITUTION PART i 
 
 Saxon institution, the county court. This court, which 
 the prelates, earls, barons, and free proprietors were 
 expected to attend, in addition to the reeve and four 
 inhabitants of each village, presented those democratic 
 features which are found in so many institutions of the 
 middle ages. Its functions were many and various ; it 
 was at once a court of criminal and of civil jurisdiction, 
 a registry for the transfer of lands, the place of publica- 
 tion of royal ordinances, and an office for the receipt of 
 taxes. This system, so powerful and so concentrated in 
 appearance, was not long in betraying its shortcomings. 
 To begin with, those of the great barons who enjoyed 
 independent jurisdiction were exempted from appearing 
 at the ordinary meetings of the shire moot. The knights, 
 too, from an early period and in a great number of 
 cases, obtained dispensations from attendance, and the 
 towns were careful that a clause conferring a like 
 immunity should be inserted in their charters. Eobbed 
 of its better elements, the county court was, in addition, 
 almost emptied by the general reluctance to attend. 
 The system of itinerant judges, as remodelled in 1176, 
 brought it fresh life. These high functionaries, the 
 trusted agents of the king's court, came into the 
 counties with most extensive powers. They were 
 enjoined by their commissions not to suffer themselves 
 to be thwarted either by the immunities of the barons 
 or the franchises of the towns. When they held their 
 assizes each town deputed twelve burgesses to appear in 
 company with the other classes which formed the 
 county court, and the greatest nobles attended there, at 
 all events by deputy. The whole population of the
 
 SECT, iv LOCAL SELF-GOVERNMENT 59 
 
 locality, nobles and commoners, from country and town, 
 were thus brought together. Moved by this powerful 
 influence, the county court and the hundred courts 
 reached their zenith in the thirteenth century, and no 
 doubt contributed in a singular degree to hasten the 
 fusion of races and classes. In proportion however as 
 the number of their members increased, these courts 
 became less fitted to discharge the complex duties 
 which grew with the growth of the administration. 
 Administration by an assembly is no more practicable 
 than is government by a club. Consequently, the king's 
 justices while allowing the county court to exist in 
 name, soon came to look upon it as nothing more than 
 the place of election of the various commissions to whom 
 the transaction of business was practically entrusted. 
 It is not difficult to imagine of what men these com- 
 missions would consist. The judges generally speaking 
 bore no good will to the barons, and they mistrusted the 
 sheriff, whose authority was in a certain sense in rivalry 
 with their own. As strangers in a county they had 
 need of local help, and they were in no position to 
 organize a resident bureaucracy. They were compelled 
 then to have recourse to the neighbouring knights, the 
 only class independent and enlightened enough to yield 
 them effectual aid ; as a matter of fact we find the 
 judges using the knights more and more as their coad- 
 jutors and sharing with them the powers withdrawn 
 from the sheriff or the county court. It is impossible to 
 trace in detail the endless process of transfer. The 
 assessment and collection of taxes, the arming of the 
 local forces, the duty of administering the oath of the
 
 60 THE ENGLISH CONSTITUTION PART i 
 
 peace, the local investigation of crimes and misdemean- 
 ours, the selection of the grand jury, the voice in legal 
 decisions obtained through the petty jury, all these in turn 
 were entrusted to commissions of knights working for 
 the most part under the direction of the itinerant judges. 
 The greater part of these powers had belonged previously 
 to the county court, and the sheriff; in 1215 the latter 
 also lost his jurisdiction as the king's representative in 
 criminal matters, which was transferred to the judges of 
 the high court, and by the end of the same century he had 
 become little more than an officer carrying out the decrees 
 of the itinerant judges and enforcing their orders. 
 
 We can trace without difficulty the effect of this 
 revolution. The energies of the knights were no longer 
 concentrated in the county court. As a class they ceased 
 to be subject to the sheriff, no longer recognizing in him 
 the direct representative of the royal authority. Other 
 officials of higher rank, the immediate agents of the 
 Crown, had intervened ; they had appealed directly to the 
 knightly class, had ousted ancient authorities in its 
 favour, had claimed its co-operation, guided its energies 
 towards a thousand different objects, and inaugurated a 
 vast progressive movement of which they, the judges 
 and the knights, were finally the sole exponents. In 
 England it was centralization which inaugurated 
 decentralization and self-government. In 1360 the 
 process of evolution was to culminate in the institution 
 of justices of the peace, nominated by the Crown, and 
 chosen from among the same local class, that is the 
 knights. These justices, summoned in the first instance 
 to replace the sheriff in the performance of certain police
 
 SECT, iv LOCAL SELF-GOVERNMENT 61 
 
 duties, were perpetually receiving fresh powers ; criminal 
 jurisdiction was conferred upon them as extensive in 
 principle as that of the royal courts ; their quarter 
 sessions superseded completely the jurisdiction of the 
 county court, and they were finally entrusted with the 
 whole local administration, the care of roads, bridges and 
 prisons, the execution of the labour laws, the supervision 
 of parish business and the relief of the poor. We observe, 
 moreover, that where knights were not forthcoming for 
 the discharge of all these new services, administrative 
 and judicial, thus thrown upon their order, the Crown 
 called in the assistance of the other landowners, and that 
 this process of substitution became the rule as the 
 services themselves multiplied, and the knights di- 
 minished in number. Thus the whole body of the free 
 landowners, squires and gentlemen as well as knights, 
 took part in the administration, and in the following 
 centuries we find them energetic, busy, and laborious, 
 discharging without reward or assistance the ever- 
 increasing duties of a vast bureaucracy. In the fifteenth 
 century the process of assimilation was so complete and 
 had extended so far amongst the free landowners that 
 the Crown was forced to protect the important offices 
 which had formerly appertained to the old knighthood 
 against invasion by men of no position. By a series of 
 enactments belonging especially to the period of the 
 three Henries, property qualifications were required in all 
 cases; they were required for the office of juryman, for 
 certain ranks in the militia, for the commission of the 
 peace, for a Parliamentary vote, and for a seat in Parlia- 
 ment. The establishment of a property qualification
 
 62 THE ENGLISH CONSTITUTION PART i 
 
 signifies that the distinctions of birth and pedigree no 
 longer hold good, and that others have to be sought for 
 in wealth. In the case which we are considering it was 
 the ownership of extensive landed property which 
 afforded a sound principle of selection and supplied the 
 basis of a claim to certain privileges : the first, extremely 
 onerous in its nature, consisted in the unpaid discharge 
 of all local duties ; while the second, the privilege of 
 sharing in the government, was justified by the first and 
 immediately consequent upon it. 
 
 The class to which I refer, so conspicuously non-feudal 
 in character, had, in fact, won a position for itself by the 
 close of the thirteenth century. Regarded with gratitude 
 on account of its performance of many local services, and 
 courted by reason of its numbers and influence by kings 
 and nobles, it received, as was inevitable, its summons to 
 Parliament. Once there, it is not surprising that it 
 held aloof from the military chiefs, men steeped in the 
 unruly and turbulent spirit of the middle ages. The 
 landowners were penetrated by a spirit altogether dif- 
 ferent and modern in its character; they were the 
 keepers of the king's peace, they held their powers by 
 royal commission, and under the exact terms of statute 
 law. They were in advance of their age and practically 
 belonged to a future state of society. It is thus that we 
 must explain a fact peculiar to England, the formation 
 of a second chamber largely recruited from one class, the 
 landed gentry, who would in other countries have ranked 
 with the nobility and have practically followed their 
 lead. An institution of this nature could never have 
 arisen on the Continent, where, under ill-organized
 
 SECT, iv LOCAL SELF-GOVERNMENT 63 
 
 monarchies, capable neither of utilizing nor controlling 
 them, the nobility had remained so feudal and so 
 warlike, so little inclined to consider themselves as 
 agents of the State and the law, so ignorant of civil 
 obligations imposed by statute, so confined within 
 themselves, so jealous of their privileges in a word, so 
 little fitted to furnish from within their own ranks the 
 accredited representatives of the nation at large. 
 
 We are now in a position to understand how the 
 English Parliament was formed. The nucleus of that 
 body, the first crystal to which the rest have adhered, 
 was the magnum concilium, composed originally of the 
 great ecclesiastical and lay vassals. I do not concern 
 myself to decide by what title the former sat there, 
 whether by right of a fief or a barony, or in their spiritual 
 capacity. The fact, far more conclusive than their 
 exact legal position, is that they belonged for the most 
 part to the great feudal families, that they all held 
 estates baronial in importance and character and subject 
 to the same services and taxes as the estates of their lay 
 colleagues, 1 and that they were commonly treated as 
 " barons like the rest " (sicut baroncs cceteri}? These two 
 orders of magnates, attracted to each other by so many 
 conditions common to both, constituted by themselves 
 up to the middle of the thirteenth century, the great 
 
 1 Taxes on fiefs held by the clergy were voted with taxes on 
 fiefs held by laymen. Taxes on spiritualities were voted or 
 granted separately. Stubbs, ii. 173, &c. 
 
 2 It is remarkable that the position of the clergy as an element 
 of the common council was not defined by the great charter apart 
 from that of the other tenants in cap'ite. Stubbs, ii. 169, 194.
 
 64 THE ENGLISH CONSTITUTION PART i 
 
 council of the sovereign. The memory of joint efforts 
 protracted through a long period averted the danger of 
 a sharply-defined separation between the nobility and 
 clergy, such a separation as appeared in France with the 
 " States General " and continued uninterrupted till 1789. 
 Here again the early growth of a political aristocracy 
 involved results of inestimable value. 
 
 About thirty years after the regular establishment of 
 itinerant courts, the knights who, as a class, had gained 
 in position through the acceptance of important 
 duties and the performance of important public 
 services in connection with local administration, and 
 who were at the same time supported and recruited from 
 the upper ranks of the landed gentry, were on the eve of 
 achieving their entrance to Parliament. They did not 
 seek admission there but gained it by the force of 
 circumstances. So large, so compact, so active a body 
 had they become that neither king nor barons could 
 afford to neglect them, but both chose rather to seek 
 them out and invite and urge their co-operation. In 
 1213, during the struggle which resulted in the great 
 charter, it was the king who took the first step, and for 
 the first time our knights chosen from each county 
 were summoned for the express purpose of conferring 
 with the monarch upon affairs of State. In 1215 the 
 great charter seems to have neglected the principles of 
 election and representation, and the reign of John was 
 followed by a lull in the dispute. There was a return 
 to the ancient methods of procedure, and the great 
 council remained comparatively aristocratic till 1254, 
 when the struggle between the Crown and the baronage
 
 SECT, iv LOCAL SELF-GOVERNMENT 65 
 
 broke out afresh. Each of the rival parties felt the 
 need of securing allies from the other classes in the 
 nation, and on this occasion two knights were summoned 
 from each county and sat with the proctors of the 
 parochial clergy, who were themselves called upon for 
 the first time to send representatives to Parliament. 
 Till then only the abbeys, priories, and cathedral churches 
 had been required to send representatives to attend in 
 company with the bishops. The part assigned to these 
 new comers was as yet very humble ; their business was 
 to listen, to acquaint themselves with the resolutions of 
 the great council, and to publish them in the counties 
 and parishes. They seem to have taken no part in the 
 deliberations ; they were dismissed before the end of the 
 session and left the weightier matters of which they 
 had no cognizance to be debated by the great lords 
 of council alone. 
 
 Be that as it may, both knights and clergy in varying 
 numbers, irregularly and at long intervals, are found in 
 attendance at several of the subsequent Parliaments, in 
 1261, 1264, 1270 and 1273. In 1295 the custom of 
 summoning two knights from each county had become 
 fixed, and by the same date a special form of summons 
 was in use for convoking the delegates of the parochial 
 clergy. From that time forward no Parliament was 
 formally constituted without a summons addressed to 
 each of these two classes. During the same period 
 another element had been admitted to the assembly. 
 The principal towns, those especially which possessed 
 charters, had been convoked in 1265 by Simon de 
 Montfort ; thirty years later a royal ordinance called 
 E.G. F
 
 66 THE ENGLISH CONSTITUTION PART i 
 
 upon them to send two inhabitants, citizens, or burgesses, 
 as representatives, and after that year they received 
 regularly a summons to Parliament. The year 1295 is 
 therefore a date of capital importance. The beginning 
 of the fourteenth century found Parliament consisting 
 of all the essentials of a truly national assembly, and 
 representing even more completely than at the present 
 day (for certain elements have been lost by exclusion 
 or disuse) the various components of the English 
 nation. 
 
 How different this from the state of things in France 
 where, during the greater part of the middle ages, both 
 the rural districts and the parochial clergy were prac- 
 tically unrepresented. The difference however will 
 appear still greater if we observe in what manner the 
 elements enumerated above separated from each other, 
 grouped themselves together, and fell into their places 
 within the Parliament itself. At the outset the 
 burgesses held their sittings apart ; on the other hand 
 the knights of the shire joined themselves to the barons, 
 a natural state of things when both represented feudal 
 and rural interests. The clergy voted their subsidy 
 apart. We find this threefold division in 1295 and 
 again in 1296, in 1305 and in 1308 ; and we find it also 
 in the French States General at the same period. Before 
 long, however, another arrangement prevailed. The 
 bonds of sympathy were strongest on the one hand 
 between the barons and the prelates accustomed for two 
 centuries to deliberate together, and on the other be- 
 tween the knights and the burgesses, both the creatures 
 of election, chosen or proclaimed simultaneously at the
 
 SECT, iv LOCAL SELF-GOVERNMENT 67 
 
 county court, where they had often sat side by side 
 under the presidency of the justices in eyre. A 
 method of distribution in agreement with these tenden- 
 cies began more and more to prevail. After 1341 the 
 heads of the clergy (save on certain rare occasions) 
 maintained their union with the lay nobles and formed 
 with them the House of Lords, and from the same date 
 the two other classes were grouped together by a 
 corresponding process. The knights and the burgesses 
 formed the House of Commons and, except in a few rare 
 cases, none of which occur after the fourteenth century, 
 were never afterwards separated. As for the last element, 
 the parochial clergy, they too formed part of the House 
 of Commons; but instances of their attendance soon 
 become infrequent and finally cease altogether. Their 
 poverty and the cares of their ministry compelled their 
 absence ; they also felt themselves more at home in their 
 own special assemblies, the convocations of York and 
 Canterbury, which they attended as a sort of Lower 
 House upon the summons of their primates. The 
 custom grew up accordingly for the Church's share in 
 the subsidy to be voted in Convocation, not in Parliament. 
 Thus from the middle of the fourteenth century the 
 House of Commons was deserted by the clergy, and the 
 secular representatives of the counties and boroughs 
 were left to themselves and masters of the situation. 
 The heads of the clergy were still powerful in the House 
 of Lords, where abbots and priors were twice or thrice as 
 numerous as bishops, and they viewed with indifference 
 the disappearance of the plain parish priest from the 
 House of Commons, the future greatness and supremacy 
 
 F 2
 
 68 THE ENGLISH CONSTITUTION PART i 
 
 of which they could not as yet foresee. We thus find the 
 English Parliament complete in all its component parts 
 in 1295, and organized and grouped fifty years later 
 in accordance with three principles which mark a 
 radical difference between it and the French States 
 General. These three principles are : 
 
 I. The division of Parliament into two Houses, a divi- 
 sion which crossed and partly obliterated the lines of 
 demarkation between the classes, while in France, on the 
 contrary, those lines were emphasized by the fact that 
 each of the three orders formed a separate House. In 
 England no order sat alone ; in each House two orders 
 sat together, an arrangement which precluded the 
 dominance of any narrow spirit of class. 
 
 II. The coming together in the English Lower House 
 of the urban element and a rural element of ancient 
 standing, wide influence, and exceptional energy which 
 had belonged originally to the baronage. It was chiefly 
 the want of such an association as this which caused the 
 weakness of the French " third estate," a purely urban 
 body made up of successful civilians, borough magistrates 
 or lawyers, men unconnected with any interest in land, 
 and strangers to the profession of arms. Failing the 
 existence of an agricultural middle class, that third 
 estate never succeeded in bridging the gulf which divided 
 it from the noblesse, it remained shut up in its isolation, 
 swayed alternately by timidity and violence, the common 
 vices of every new class which has neither allies nor 
 traditions to support it. 
 
 III. The predominantly lay character of this supreme 
 body. One branch of it contained no ecclesiastical
 
 SECT, iv LOCAL SELF-GOVERNMENT 69 
 
 representatives at all ; in the other branch these repre- 
 sentatives were mingled with the secular element, they 
 sat only by virtue of a secular title, the baronial fief 
 appurtenant to bishoprics and to certain abbeys, and 
 were thus imbued to a very high degree with national 
 feeling and the spirit of a civil community.
 
 THE TUDORS.THE EXTINCTION OF THE 
 
 FEUDAL NOBILITY. THE FALL OF 
 
 THE ROMISH CHURCH. 
 
 MODERN ENGLAND 
 
 THUS Parliament has existed in its present form since 
 the middle of the fourteenth century. A second stage 
 in the political evolution of England began with the 
 Lancastrian, and was completed with the Tudor period. 
 The composition of the various classes of society, their 
 places in the social scale, and their relative importance 
 in the State, underwent at that time a profound change. 
 A fresh system of stratification, so to speak, was estab- 
 lished which was to remain undisturbed by all subse- 
 quent shocks, and which formed the foundation upon 
 which modern England was built up. Two facts above 
 all gave its final form to the character of political 
 society, and, in 'spite of two revolutions, made their 
 influence felt as far down as the vast industrial and 
 rural transformation which was accomplished in Eng- 
 land in the eighteenth century : these were, the
 
 SECT, v THE TUDORS, END OF FEUDAL NOBILITY 71 
 
 extinction of the feudal nobility and the fall of the 
 Romish Church. 
 
 Nowhere did the nature and composition of the 
 baronage change more often than it did in England. 
 We have seen the band of marauding soldiers who had 
 crossed over with, or immediately after, William I., 
 thinned by war and confiscation and recruited after- 
 wards from new arrivals who were for the most part 
 descended from ministers and high officials of the 
 Norman and Angevin kings. This nobility of judges 
 and administrators had its traditions of order and 
 government, and gave its tone to the legal and armed 
 resistance organized by the great vassals in the 
 .thirteenth century. It was under its inspiration 
 that the barons made common cause with each other, 
 became alive to the existence of interests wider and 
 more general than their own, rallied the whole 
 nation to them, and constituted themselves a political 
 aristocracy. 
 
 This was one transformation ; a century and a half 
 later all had been changed both in form and substance. 
 Feudalism had been apparently established ; it was 
 based on the rule of primogeniture which had become 
 the general custom, and on enactments designed to 
 preserve intact both the reversionary rights of the over- 
 lord and the military and pecuniary burdens incidental 
 to the tenure. We know now that the whole organiza- 
 tion proved a failure in the end. Chivalry threw its 
 dazzling veil over a society in which selfishness, covet- 
 ousness, and cruelty existed no less than during the 
 preceding age, arid in which those vices were no longer
 
 72 THE ENGLISH CONSTITUTION PART I 
 
 redeemed by occasional outbursts of heroism. At the 
 head of this society stood the higher nobility greatly 
 reduced in numbers. The old baronies had been split 
 up into petty estates or accumulated as the appanages of 
 certain families connected by blood or marriage with the 
 royal house. The repeated subdivisions of their baronies 
 obscured and nullified the territorial titles of the peer- 
 age ; as a collateral result the purely formal element of 
 the peers' dignity, the fact of summons to the council 
 or of creation by the king was held to confer a sufficient 
 title, and with this theory was combined the principle 
 of hereditary succession which was then gaining more 
 general acceptance. We can fix approximately on 1295 
 as the date when a summons to the House of Lords began 
 to be looked upon as the evidence of a hereditary right, 
 a right which tended naturally to exist by itself and 
 apart from any question of tenure. In 1387 the process 
 of evolution seems to have come to an end ; that year 
 witnessed the first creation of peers by letters patent. 1 
 It was at this period that the House of Lords received 
 the organization which it has preserved down to our 
 own time. 
 
 On the other hand the great appanaged houses, allied 
 as they were by blood to the Crown, split up before long 
 into two rival factions, each of whom attached them- 
 selves to the rival pretenders to power. It was no 
 serious conviction of the legitimacy of their leader's 
 claims, no sincere affection for his person, which threw 
 these two divisions of the nobility into conflict with each 
 other. Self-interest in its coarsest sense, unbounded 
 1 Stubbs, ii. 182 ; iii. 437.
 
 SECT, v THE TUDORS, END OF FEUDAL NOBILITY 73 
 
 lust for plunder, an instinct of hatred which sought but 
 a pretext to be let loose, were the thinly disguised 
 motives of all their enterprises. During the whole of 
 the long period which stretched from Eichard II. to 
 Henry VII. the barons played a bloodthirsty game of 
 war and chance, conspiring, betraying, slaughtering each 
 other in battle, beheading on the morrow of each com- 
 bat those whom the fortunes of the day had spared. 
 The House of Lords was nothing but a temporary halting 
 place for the faction which for the moment had suc- 
 ceeded in banishing the other, while at its head a de 
 facto king, recognized it may be by the acclamation of 
 a city mob, invoked for form's sake a right in which no 
 one seriously believed. In face of these rival and 
 shifting factions the House of Commons, the only per- 
 manent and broadly national authority, began by force 
 of circumstances to exercise to some extent the function 
 of an arbitrator. 1 It was only to that body that the 
 assertors of rights so disputable could look for even a 
 precarious recognition. Diffident as yet and undecided, 
 viewing with astonishment these unsought additions to 
 its power, the House of Commons for more than a 
 century exercised a preponderant authority. Its archives 
 became stored with precedents ; its records were adorned 
 with repeated assertions of right ; its procedure was 
 improved by the introduction of liberal methods ; these 
 were no doubt mere forms and did not contain within 
 themselves the substance of political liberty (as the experi- 
 ence of the next century under the rule of the Tudors 
 showed clearly enough), but they preserved its machinery 
 1 Stubbs, ii. 307.
 
 74 THE ENGLISH CONSTITUTION PART I 
 
 in working order and ready to hand against the arrival 
 of a favourable day. The right of settling the actual 
 terras of an enactment instead of merely suggesting 
 its aim by complaint or petition, the privilege of voting- 
 taxes of all kinds, of controlling the expenditure of 
 public moneys, the initiative of the Commons in relation 
 to supply, their voice in the nomination of officers of 
 the State in a word, all the vast future prerogatives of 
 the Lower House, made their appearance during this 
 period ; some of these took at the time their final shape 
 and provided well-marked types to which the rest in 
 their turn were to conform. 
 
 Meantime the merciless conflicts between the great 
 nobles had produced the result which might have been 
 easily foreseen. The Wars of the Roses which filled the 
 second half of the fifteenth century furnished the barons 
 with an arena in which their instincts of violence had 
 freer play than ever ; it was they who, under the pretext 
 of dynastic interests which had ceased to exist, of their 
 own free choice prolonged the struggle. Altogether 
 unlike the Italian condottieri, the English barons showed 
 no mercy to their own order ; they massacred and ex- 
 terminated each other freely, while they were careful to 
 spare the commonalty. Whole families were extin- 
 guished or submerged in the nameless mass of the 
 nation, and their estates by confiscation or escheat 
 helped to swell the royal domain. When Henry VII. 
 had stifled the last movements of rebellion and had 
 punished, through the Star Chamber, those nobles who 
 were still suspected of maintaining armed bands, the 
 baronage was reduced to a very low ebb ; not more than
 
 SECT, v THE TUDORS, END OF FEUDAL NOBILITY 75 
 
 twenty-nine lay peers were summoned by the king to 
 his first Parliament. 1 The old Norman feudal nobility 
 existed no longer ; the heroic barons of the great charter 
 barely survived in the persons of a few doubtful de- 
 scendants ; their estates were split up or had been for- 
 feited to the Crown. A new class came forward to fill 
 the gap, that rural middle class which was formed, as we 
 have seen, by the fusion of the knights with the free 
 landowners. It had already taken the lead in the House 
 of Commons, and it was from its ranks that Henry VII. 
 chose nearly all the new peers. A peerage renewed 
 almost throughout, ignorant of the habits and traditions 
 of the earlier nobility, created in large batches, closely 
 dependent on the monarch who had raised it from little 
 or nothing and who had endowed it with his bounty 
 this is the phenomenon which confronts us at the end 
 of the fifteenth century. Nothing strikes me as offering 
 in a political sense a closer resemblance to the House of 
 Lords under Henry VIII. than the Senate of the first 
 Napoleon, composed as it was for the most part of new 
 men, the creations of the sovereign. In the days of the 
 Tudors England was no stranger to those " mushroom 
 
 1 Gneist, Verfassungsgeschichte, 476. It has been somewhat 
 rashly inferred from the ordinance convoking the first Parliament 
 of Henry VII. that at that time not more than twenty-nine 
 temporal peers were left. The number of peers in that category 
 who had a right to a summons does not appear to have fallen 
 suddenly so low. Green (ii. 14) points out that the number of 
 peers at the accession of Henry VII. was the same as at the 
 accession of Henry VI.; a notable decrease, however, had long 
 since taken place. Forty to fifty lay peers is the almost un- 
 varying number under the Lancastrian kings. Stubba, iii. 442.
 
 76 THE ENGLISH CONSTITUTION PART i 
 
 peers " of whom the despot spoke so scornfully ; through- 
 out the whole period the House of Lords was full of 
 them. But Napoleon's vision was bounded by the 
 present. The haughty oligarchy who two centuries later 
 were to play the part of guardian to the English mon- 
 archy and to fashion the cause of political liberty into 
 an instrument fitted to their own ends, were the 
 direct descendants of these humble dependents of the 
 Crown. So great is the virtue of time and the 
 hereditary principle ! 
 
 A no less radical change was brought about in the 
 position of the higher clergy. Immediately after the 
 conquest William had elaborated a system of ecclesi- 
 astical jurisdiction distinct from the jurisdiction of the 
 temporal courts. To the clergy were given courts of 
 their own which took cognizance of the crimes and 
 misdemeanours committed by members of their body, 
 and the result of this immunity was to form them into 
 an autonomous and distinct society. All clerical persons 
 met on the summons of their archbishops in the Con- 
 vocations of Canterbury and York, where they framed 
 statutes for the regulation of their order, and from an 
 early period granted by a separate vote the taxes affect- 
 ing spiritualities (tithes and oblations). The Church 
 was not merely independent ; she had a voice in the 
 affairs of the laity, her chiefs being members of the 
 Great Council. Canon law was developed with astute 
 comprehensiveness; all matters involving a religious 
 element, wills, marriages, and finally all informal con- 
 tracts fell within the province of the spiritual courts. 
 As a natural result wealth followed influence, and it was
 
 SECT, v THE TUDORS, END OF FEUDAL NOBILITY 77 
 
 generally computed in the middle ages l that the clergy 
 owned a third part of all the lands in the kingdom. 
 The congregations, particularly the Cistercians, possessed 
 revenues which might vie with the revenues of a State. 
 The Church, too, profited from bounties which knew no 
 limit, and it was her subtle genius and her example 
 combined which first suggested to the lawyers of the 
 day a method of attacking the feudal land system. The 
 Papacy was naturally tempted to lay its grasp on that 
 redoubtable organization and those immense resources. 
 In no other country have the pretensions of Rome 
 shown themselves more exorbitant, her greed more in- 
 satiable, her interference more rash. On two occasions, 
 under William I. and under John, 2 circumstances lent a 
 colour to her claim to treat the English kingdom as a 
 fief of the Holy See. We find her levying direct con- 
 tributions from the clergy, sometimes even from the 
 laity, skilfully multiplying appeals to the curia, appro- 
 priating the right of nomination to a vast number of 
 benefices and bestowing them upon Italians, creatures 
 of her own. 
 
 The same words would describe pretty accurately the 
 position of the Church in other countries. The point to 
 be remarked in the case of England is the peculiarly 
 resolute and successful spirit of resistance manifested by 
 the laity. We should err however in regarding this 
 spirit as simple in its nature and operation ; it supplied 
 an outlet to that national feeling, the deeply-seated 
 
 1 Notably in 1380. 
 
 2 Stubbs, i., ch. xii. The tribute imposed upon John was, as a 
 matter of fact, paid as late as 1333.
 
 78 THE ENGLISH CONSTITUTION PART i 
 
 causes and the peculiar vigour of which I have already 
 described ; this feeling was present and potent every- 
 where, it lent to everything its form or its substance, and 
 it could not fail to blend its own hostility to foreign 
 interference with the hostility of the civil power to the 
 Papacy and of the secular to the ecclesiastical authority. 1 
 Various circumstances added to the strength of this 
 feeling and assisted it in the struggle. The great eccle- 
 siastical dignitaries, as we have seen, belonged to the 
 same class and sometimes to the same families as the 
 great lay vassals : they made common cause with the 
 latter and took a foremost place in the struggle at the 
 period of the great charter. They, like the lay barons, 
 felt the pressure of that species of external conscience 
 which united all Englishmen in hatred of oppression and 
 in mistrust of the foreigner. All, or nearly all, of them 
 acted rather as statesmen than as heads of a separate 
 body ; rather as Englishmen than as princes of the 
 Roman court. The House of Lords, where they pre- 
 ponderated greatly over the lay peers, may perhaps have 
 shown less complacency than did the Lower House 
 towards attacks directed against the Church, but they 
 
 1 The prohibition of gifts of land to religious houses appears as 
 early as 1217 in the great charter. But it is at this time nothing 
 more than a precaution designed to preserve the feudal basis of 
 military organization. The sequestration of the Papacy by Philip 
 the Fair seems to mark the beginning of an intense feeling of 
 hostility on the part of the English to tke See of St. Peter. It is 
 clear that their national pride, ever watchful and on the alert, 
 saw fresh cause to suspect and mistrust a power which had become 
 a tool in the hands of a mighty neighbouring State. Green, i. 
 bk. iv., ch. 2, 149, &c.
 
 SECT, v THE TUDORS, END OF FEUDAL NOBILITY 79 
 
 were not less ready to join in passing laws designed for 
 the defence of civil society. A species of pre-anglicanism 
 seems to have pervaded all the higher clergy, and not 
 less beneficial was the fact that the lower clergy did not 
 sit in the House of Commons ; voluntarily or by the 
 order of their chiefs they had withdrawn from it, and 
 deliberated by themselves in their Convocations which 
 were, both by nature and in form, purely ecclesiastical 
 assemblies. Deceived by the strength of their position 
 in the Upper House and in the Great Council, the prelates 
 looked upon their own presence there as all-sufficient, 
 and considered it wise to prohibit their clergy from 
 appearing in the Lower House, where, being fewer in 
 number, they might be out-voted by the laity. Thus 
 the prelates persistently declined all right of representa- 
 tion in the House of Commons and established the 
 custom of disposing in Convocation of all matters which 
 concerned the Church. They felt that by so doing they 
 were better able to marshal their forces, and in the 
 interests of the whole body of which they were the 
 heads to force their own terms upon the king. It is 
 impossible to over-estimate the consequences of their 
 mistake. Neither the name of the Church, nor her 
 authority, neither the influence of her enlightenment, nor 
 the resources of her ingenuity, were present as active 
 forces in the assembly which was destined to become in 
 a greater and greater degree the embodiment of the 
 national spirit. The prelates allowed this spirit to gain 
 strength and boldness, to struggle and prevail, while at 
 each stage of its development the clergy were felt to be 
 ignorant of the aspirations of the people and indifferent
 
 80 THE ENGLISH CONSTITUTION PART i 
 
 to their efforts. The Church ended by counting for 
 nothing in the hopes and aims of a nation which had 
 remained for the rest deeply religious ; or rather the 
 nation had grown accustomed to see in her only the abuses 
 from which she profited, the vast privileges which it was 
 so natural to grudge her, her complicity or, at least, her 
 common interest with Home. This explains the con- 
 tinuously progressive movement, first of resistance to 
 the Church, then of active hostility to her, which appeared 
 in Parliament at an early date and continued down to 
 the sixteenth century. The great revolution which then 
 took place was only the final downfall of an edifice the 
 walls of which had long been battered and undermined. 1 
 That catastrophe had been announced, and the way for 
 it prepared, by innumerable ordinances and statutes 
 aimed, some against mortmain, some against the en- 
 croachments of the spiritual tribunals, others against 
 appeals to the Roman curia or against the interference 
 of the Pope in the nomination of bishops. Wicliff and 
 the Lollards, 2 in the fourteenth and fifteenth centuries 
 had stirred up popular opinion against the higher clergy, 
 the movement thus created was in the first instance 
 encouraged by the Government, and was checked but 
 not crushed by the persecution which followed. The 
 
 1 See Stubbs on the reigns of Edward II., Edward III. and 
 Richard II. The whole fifteenth century abounds in complaints 
 of, and in measures of resistance to, the influence of the Roman 
 court and the clergy. In 1341 the seals are for the first time en- 
 trusted to a layman. In 1371 Parliament demands the appoint- 
 ment of laymen as ministers. 
 
 2 The De Dominio Divino dates at latest from 1368. Green, 
 i. 447.
 
 SECT, v THE TUDORS, END OF FEUDAL NOBILITY 81 
 
 Lancastrian kings were favourable to the Church, and 
 during their reigns the Roman court resumed the 
 nominal exercise of many prerogatives of which previous 
 legislation had professedly deprived it ; but it exercised 
 them for the most part in form merely and at the 
 pleasure of the Crown. Thus the spiritual power was 
 retreating and waning throughout the fifteenth century. 
 The fall of the old baronage left the Church without an 
 ally, and face to face with an all-powerful king ; it left 
 her without a voice in a Lower House which regarded 
 her only with mistrust, and hopelessly outnumbered in 
 an Upper House which was packed with the dependants 
 of the Crown. What wonder that she yielded when the 
 hand of the Eighth Henry lay heavy on her ? 
 
 The ten years interval between 1530 and 1540 saw 
 the accomplishment of this important revolution. The 
 king in anger with the Pope severed England from the 
 See of Rome, declared himself the supreme head of the 
 Church, the guardian and defender of the true religion ; 
 the assemblies of the clergy could only be held by his 
 permission and their canons had no authority without his 
 sanction ; the king in council constituted the supreme 
 court of appeal in matters spiritual, and even heresy 
 fell within his jurisdiction. Cranmer appears to have 
 maintained that the Crown alone without the necessity 
 of any ordination could create a priest, 1 and even after 
 the abandonment of that extreme opinion, it was gene- 
 rally admitted that the bishops received investiture from 
 the monarch and that their dignity was held at his plea- 
 sure only, and was determined at once by the demise of 
 1 Burnet, Hist, of the Ref. (Ed. 1829). vol. i, pt. i, pp. 579, 580. 
 B.C. G
 
 82 THE ENGLISH CONSTITUTION PART I 
 
 the Crown. Accordingly when Henry died fresh com- 
 missions were taken out by the archbishop and his 
 suffragans. 1 The revenues of the bishops were cut down, 
 they no longer appeared as great nobles, and nothing was 
 left to recall their ancient baronial rank. The same 
 period 2 witnessed the confiscation of the estates of the 
 convents and abbeys, and their apportionment by the 
 Crown amongst its creatures, the new nobility. All the 
 chief laymen were more or less interested in the mainten- 
 ance of a new order of things which had endowed them 
 with so much wealth. An analogous state of feeling 
 showed itself amongst the French peasantry after the 
 partition of the national property in 1789. Their fear 
 lest a restored dynasty should reverse so revolutionary a 
 measure commended and excused in their eyes a series 
 of detestable governments, and transmitted to their 
 descendants an instinctive hatred of all that recalled the 
 old regime. In like manner the unconscious impulse of 
 selfishness and avarice supported and strengthened the 
 new Church which Henry VIII. had created ; personal 
 and family interests fenced in and fortified the Protest- 
 ant faith against any re-invasion of Roman doctrine. 
 From the end of the sixteenth century the high eccle- 
 siastical dignitaries, but lately a majority in the Upper 
 House, 3 were compelled to sit as a minority there and 
 witness the rapid growth of the lay peerage. The Church 
 of which, after the king and by his good pleasure, they 
 were the heads, was no longer in the true sense of the 
 
 1 See Macaulay, Hist, of Eng. i. 55 57, and authorities there 
 quoted. 
 
 2 15361538. 3 Hallam, Constitutional Hist. i. 78.
 
 SECT, v THE TUDORS, END OF FEUDAL NOBILITY 83 
 
 words the ancient Apostolic Church deriving her author- 
 ity from tradition and not owing her existence to the 
 law though subject to legal limitations. She had been, 
 so to speak, founded anew by an act of the secular power, 
 and it was from this that she derived her claim to the 
 obedience of English subjects. Although the clergy 
 preserved their landed endowments and continued to 
 take their tithe, they bore from this period the features 
 and characteristics of an official priesthood. There 
 was nothing about them which recalled the Church of 
 Anselm, Becket, or Langton, or even of Arundel and 
 Beaufort ; they more nearly resembled the French clergy 
 as the Revolution left them, a subsidized priesthood, 
 subject to the State and the law, and closely controlled 
 by the civil power. The English priesthood were 
 destined to fall far lower still, for they could not, as the 
 French clergy could, claim connection with the Roman 
 See, nor were they supported by the consciousness that 
 they shared in the greatness and the dignity of the 
 Catholic establishment. Macaulay gives us l a graphic 
 account of the humiliations suffered in the seventeenth 
 century by the English clergy, especially by the inferior 
 priest, whose life was a series of privations and hidden 
 sufferings, and who thought himself fortunate if he 
 married a waiting maid. However that may have been, 
 those abuses and dangers which the laity instinctively 
 dread whenever the Church enjoys simultaneously spirit- 
 ual prestige, political weight and the authority insepar- 
 able from vast territorial wealth, were definitely averted 
 at the time of the accession of Elizabeth. The work of 
 1 Macaulay, Hist, of England, i. 327. 
 
 G 2
 
 84 THE ENGLISH CONSTITUTION PART i 
 
 destroying the ecclesiastical power, initiated in France 
 by the Revolution of 1789, was not spared to England, 
 but in her case it was accomplished in the middle of the 
 sixteenth century. The monarchy which undertook the 
 task was the same which, following out the results of 
 the Civil War, completed, three centuries before it was 
 completed in France, another work of 1789 : I refer to 
 the overthrow of the old feudal nobility, and the setting 
 up in their place of a middle class corresponding politic- 
 ally and socially to the modern French bourgeoisie. 
 
 We can now perceive how it was that the English, 
 though subject for a period to arbitrary power, were able 
 to rid themselves of it without the aid of a political, econ- 
 omic, and social revolution analogous to the Revolution 
 which took place in France. As far back as the sixteenth 
 century England enjoyed those essential reforms which 
 France was still looking for in 1789, which she bought 
 so dearly in the end, and which she has even to some 
 extent failed to secure, the rush which succeeded a long 
 period of repression having hurried her somewhat past 
 the goal. Three paradoxes sum up the whole matter. 
 An all-powerful monarchy in co-existence with a bar- 
 barous state of society gave England a Parliament 
 which was at once the representative of a homogeneous 
 kingdom and the agent of a liberal polity. The 
 transformation at a very early period of the great 
 feudatories into a political aristocracy imposed on 
 them equality in matters of law and taxation and 
 saved them from the invidious privileges which 
 belong to a nobility of birth. The early development 
 of centralization in the persons of the itinerant judges
 
 SECT, v THE TUDORS, END OF FEUDAL NOBILITY 85 
 
 at a time when the establishment of a resident bureau- 
 cracy was impossible, taught the country to administer 
 its own affairs, and called into being, elaborated 
 and made permanent, a system of self-government by 
 the local aristocracy. A little later, as a consequence of 
 the Wars of the Roses, the lawless traditions of ancient 
 feudalism had, with its last representatives, disappeared 5 
 the Church had taken a subordinate place in the State 
 and had become subject to the civil authority ; and the 
 House of Commons, on the removal of the two great 
 powers whose natural office it was to counteract the 
 weight of the Crown, had, for at least a century, enjoyed 
 a decisive and predominating influence. 
 
 That a society in a political sense so advanced should 
 not have escaped despotism shows clearly how limited 
 are the capabilities of institutions taken by themselves, 
 and what it is idle to expect of them apart from the 
 men by whom they have to be worked. England was 
 already, so to speak, fully equipped with institutions ; 
 the relations to each other within the Constitution of the 
 great political factors had been effectually settled ; the 
 machine was there, but the workers were wanting. 
 Among the spiritual peers, nobly-born prelates, 1 states- 
 men, members of the council, and diplomatists had 
 been supplanted by obscure theologian scholars, men 
 who were content to live in the unnoticed enjoyment of 
 their emoluments. 2 Among the temporal peers, courtiers 
 
 1 Macaulay, Hist, of England, i. 326. 
 
 2 It is remarkable that, since the Reformation, no English 
 prelate has filled an important political office, while in France the 
 most distinguished prime ministers have been churchmen.
 
 86 THE ENGLISH CONSTITUTION PAKT i 
 
 and upstarts, greedy of titles and wealth, and bound to 
 the throne by their acceptance of its bounties, had taken 
 the place of great nobles ambitious only of power. The 
 foremost among the new nobility were, as was natural, 
 men who would have played an active part in the House 
 of Commons, and that body lost in consequence its ablest 
 and most prominent members. Thus the men who com- 
 posed each estate of the realm had died out, and the State 
 was like some factory where the foreman and the gang 
 trained to work each great machine had perished in an 
 accident. Chance substitutes had been hastily secured ; 
 they stood aghast at such complicated mechanism, made 
 awkward attempts to handle it, and found it in the end 
 both easier and safer to yield blind obedience to the 
 master. This went on for a hundred and fifty years. 
 The machine was there, nevertheless, with all its parts 
 complete ; it was ready for handling and challenged 
 experiment, and so served by degrees to exercise, em- 
 bolden, and discipline a new body of workers. 
 
 It has been remarked that the Tudor century was in 
 form far more " parliamentary " not only than the century 
 which followed it, but also than the century which 
 preceded it. It was a period of abundant, almost over- 
 abundant legislation. The actual centre of government 
 was the king's council ; the more important measures 
 were agreed on there, but they all received the sanction 
 of the two Houses and were clothed by them in statutory 
 form. The Tudor kings were willing enough to submit 
 their measures to Parliament, where they felt generally 
 secure against opposition ; they knew that that assembly 
 was ready to yield to and even to anticipate their wishes.
 
 SECT, v THE TUDORS, END OF FEUDAL NOBILITY 87 
 
 Thus the very weakness of its members helped to 
 preserve the parliamentary institution, and to secure its 
 continued activity. Under the rule of that despotic 
 dynasty Parliament enjoyed in appearance all its rights ; 
 the machine was waiting intact and in working order 
 for some one to set it again in motion. The considera- 
 tion of these facts explains how it was that in the end 
 liberty was so swift to reassert herself. 
 
 When the estates of the realm had once recruited 
 their ranks despotism could no longer exist. It fell in 
 1648, recovered itself, and fell again and finally in 1688. 
 It was the peculiar feature of these two revolutions that, 
 in order to establish the free government which followed 
 them, no political machinery had to be created, no fresh 
 relation established between the various authorities in 
 the State, no change effected in the social hierarchy, no 
 recognized privileges done away with. All that was 
 necessary was already in existence, all that was lacking 
 was the will and skill to start the machine. If we 
 examine these two great crises we find neither the 
 antagonism of classes at war with each other, nor the 
 insatiable hatreds born of abuses too long endured, nor 
 the grandiose theories of enthusiasts exasperated by a 
 protracted denial of reform. The two revolutions left 
 behind them, not indeed such positive progress as it is 
 the business of the publicist to chronicle, but rather 
 a new vitality born of those elements from that time 
 forward fixed and unvarying of which the great 
 authorities of the nation in their reformed shape were 
 composed. 
 
 The true revolution commenced its silent work at the
 
 88 THE ENGLISH CONSTITUTION PART i 
 
 moment when the revolution of physical force had been 
 accomplished. The whole of the eighteenth century 
 and the first thirty years of the nineteenth century were 
 taken up by a process of radical transformation both 
 economic and social, the shock of which was felt in every 
 division of the State. It was the double swing of one 
 and the same oscillation. Its first movement served to 
 develop during a century the most tyrannous of 
 oligarchies, humbled the monarchy, and finally reduced 
 public liberty to helplessness. Then by a kind of recoil 
 specially appreciable after 1832 it attacked the supre- 
 macy of the aristocracy, aided by the vast but slowly- 
 moved forces of the commercial and working classes, and 
 developed a democracy which seems destined as time 
 goes on to set its mark upon every institution. 
 
 The following chapters will be devoted to this subject, 
 which I propose to take up again and treat in its 
 entirety. At the point which we have now reached, 
 there is one fact in our conclusion which it is important 
 to seize upon, and which has perhaps lacked hitherto 
 the elaborate demonstration which it deserves ; it is 
 that England, in advance of all other nations, had 
 completed the growth of her body politic, that she had 
 been the first to rid herself of the substance of feudalism 
 while retaining certain of its forms, and that she bore 
 even under the Tudors all the characteristics of a fully 
 developed modern community, possessing clear concep- 
 tions of " State " and " Law," equipped with the whole 
 machinery of representative and parliamentary govern- 
 ment, and acknowledging the supremacy of the civil 
 power.
 
 PART II 
 
 ENGLAND IN THE SIXTEENTH AND 
 SEVENTEENTH CENTURIES
 
 I 
 
 GENERAL VIEW OF THE SUBJECT 
 THE THREE KEVOLUTIONS 
 
 ENGLAND is at this moment (1887) passing through 
 one of the great crises in her history. The radical party 
 have forced the last barrier which shut off Parliament 
 from the lower classes. Universal suffrage exists in fact 
 though not in name, and although the thing itself has 
 been more or less skilfully disguised under a number 
 and variety of electoral qualifications. How will the 
 new sovereign make use of the powers which have been 
 given to it ? One thing we know already beyond any 
 doubt, that it will attack the administrative and judicial 
 authority of the aristocracy in the counties, and that the 
 attack will be specially directed against the present 
 methods of holding and transmitting landed property. 
 The English in their turn are to pass through the 
 ordeal of agrarian legislation. In Ireland the ordeal 
 has already begun, and there it is taking the shape of 
 a compulsory buying out of the great landowners. It is 
 freely stated that those privileges which are threatened 
 are a remnant of feudalism and that the land system
 
 92 THE ENGLISH CONSTITUTION PART n 
 
 and the irresponsible management of county matters are 
 survivals of the middle ages. This is altogether a 
 mistake ; hardly anything feudal has existed in England 
 since the days of the Tudors, with the exception of a 
 few technical forms, words merely, not facts. The 
 abuses which it is sought to reform the excessive 
 concentration of estates in the hands of a few, the 
 arbitrary character of the jurisdiction wielded by the 
 local aristocracy do not date from so far back ; they are 
 the results of the great revolution which took place in 
 the eighteenth century. 
 
 That revolution is for the most part ill understood. 
 Historians do not always refer to it, assuming apparently 
 that the work had been completed by the two revolutions 
 of the seventeenth century. These latter are marked, 
 as no doubt they ought to be, with red letters in the 
 English calendar, but they were not alone in deserving 
 that honour. They prepared the way for everything ; 
 they effected nothing. 
 
 History is an echoing vault, the assassination or the 
 expulsion of a king raises a clamour which fills it and 
 reverberates through it. The eighteenth century was 
 disturbed by no noisy catastrophe of this sort ; it was 
 poor in subjects of tragic interest. The middle class 
 comedy which occupied the stage was purely common- 
 place and was remarkable down to its very last scene 
 only for the excessive mediocrity of its characters and 
 its incidents. It was during this period, nevertheless, 
 that political society was reconstructed to its very 
 foundations, and that the constitution took the complete 
 and final form under which we know it now. In the
 
 SECT. I GENERAL VIEW OF THE SUBJECT 93 
 
 seventeenth century the way was cleared; in the 
 eighteenth the goal was reached. From Elizabeth to 
 Charles II. and William III. society witnessed no change 
 in the relation of its classes to each other ; no fresh 
 movement was added to the machine of parliamentary 
 government. From William III. to William IV. the 
 reverse was the case. During that interval one class 
 disappeared entirely and another rose in its place ; the 
 whole economy of society was upset, and the government 
 which that society obeyed underwent a transformation 
 not less complete. It operated at last by a system of 
 mechanism almost unknown to the preceding age. 
 
 Let us consider for a moment the principles and 
 rights upon which a free government is based. The 
 most important of these were riot specified in the 
 instrument itself which recorded the triumphal results 
 of the Revolution of 1688 ; those which were specified 
 were not accompanied by any practical guarantee nor 
 supported by any positive sanction. The press, to take 
 first the commonest means of constitutional action, was 
 still subject to a censorship which was not to be removed 
 till 1695, and then for reasons altogether unconnected 
 with freedom of opinion. 
 
 Associations and meetings for religious purposes, 
 those of Catholics, at all events, were treated with a 
 severity which, far from diminishing, went on increasing 
 after 1688. Political meetings seem to have found no 
 place among the customs of the time ; the first recorded 
 instance of such a meeting occurs in 1769. 1 
 
 During the eighteenth century the representative 
 1 Buckle, Hist, of Civ. (3rd eel.) i. 394.
 
 94 THE ENGLISH CONSTITUTION PART n 
 
 system was becoming every year more restricted and 
 more perverted through the use that was made of rotten 
 boroughs. The Habeas Corpus, the bulwark of personal 
 liberty, dates from before the Revolution, viz., 1679. 
 The principle that the judges held their office for life or 
 during good behaviour was only secured by the Act of 
 Settlement in 1700, and was only to come into force on 
 the accession of the new dynasty. To turn again to Parlia- 
 ment, the publication of the debates, that first condition 
 of liberal government, was and remained forbidden. 
 The Houses sat with closed doors, and down to the year 
 1771 the reporting of debates and votes was carried on 
 indirectly or by stealth, and was more than once visited 
 with punishment. 
 
 All the constitutional barriers against the arbitrary 
 power of the Crown and personal government date from 
 the eighteenth century. At the present day it is a 
 settled principle that no department of the State is 
 managed by the king in person ; he only acts through 
 the agency and at the initiative of a minister. This 
 point was in no sense settled by the events of 1688 ; 
 William III. was in the full sense of the term his own 
 minister of foreign affairs. At the present day the 
 king is no longer present at the meetings of his ministers. 
 They debate, combine their views, and come to a decision 
 by themselves. He has only to deal with measures 
 already determined in all their details, and as to which 
 his cabinet have already, without his assistance, come to 
 an agreement. This point was in no sense settled by 
 the events of 1688. Queen Anne attended regularly 
 the meetings of her cabinet, stated her wishes, and
 
 SECT, i GENERAL VIEW OF THE SUBJECT 95 
 
 when necessary anticipated opposition by abruptly 
 closing the sitting. 1 At the present time the monarch's 
 right of veto has fallen into disuse. This point was in no 
 sense settled by the events of 1688. The right of veto 
 was exercised during the whole reign of William III. 
 and as late as 1707. 
 
 In the present day ministers are members of the two 
 Houses and are responsible to them. This point was in 
 no sense settled by the events of 1688. Ideas upon the 
 subject were so vague that in 1700 Parliament believed 
 that it was securing its independence by excluding 
 ministers from the House of Commons. This impolitic 
 measure was repealed in 1705. It was only in 1739 
 that the irresponsibility of the Crown and the responsi- 
 bility of ministers 2 were for the first time recognized in 
 a public debate. In the present day, ministers together 
 form a homogeneous cabinet. This point again was not 
 settled by the events of 1688. The whole of the 
 eighteenth century witnessed the formation of cabinets 
 where men of different opinions sat side by side, and 
 often as late as George III. the caprice of the king 
 brought into the cabinet and maintained there some 
 favourite who was a member of the Opposition. This 
 was the position of Lord Thurlow in various successive 
 administrations. The principle that the members of a 
 cabinet must be of the same political sentiments was not 
 to be fully established till after the beginning of the 
 present century. 
 
 Should we be correct in saying that the two great 
 
 1 Hardwicke, State Papers, ii. 482. 
 
 2 Hallain, Mid. Ages, iii. 232, note.
 
 96 THE ENGLISH CONSTITUTION PART n 
 
 crises of the seventeenth century have contributed 
 nothing directly to the political constitution ? Assuredly 
 not ; in the first place, they broke through the monarchy 
 of divine right which had grown up with Anglican 
 theocracy; they substituted for it a monarchy which 
 was the result of circumstances and the creature of 
 contract, and which, called into being by a revolution, 
 seems, so to speak, to have been connected from its 
 birth with the political liberties then reasserted, and 
 from which it has never since been separated. Again it 
 was owing to these events that the monarchy took the 
 form of a parliamentary monarchy, that is to say, that in 
 matters relating to the executive, the actual control and 
 the final decision was given to Parliament. After 
 events have all followed from this, but only in process 
 of time and by the aid of an economic and social trans- 
 formation which was the special achievement of the 
 eighteenth century. For example, was this parliamentary 
 monarchy to be aristocratic or democratic ? A Parliament 
 can be either. Which class was to enjoy the largest 
 share of power ? What share or what compensations 
 were to be reserved to the less favoured classes ? Was 
 not merely the final decision but also the initiative to lie 
 with Parliament ? in other words, was Parliament to be 
 a mere committee of control, or was it destined to become 
 a governing body ? In the latter case, by what steps 
 was it to attain its object? How was it possible to 
 reconcile the principle of national representation, the 
 prerogatives of the Crown, the requisite promptness, 
 secrecy, and continuity necessary for the transaction of 
 public affairs, the dignity and independence of statesmen,
 
 SECT, i GENERAL VIEW OF THE SUBJECT 97 
 
 and the responsibility of ministers to Parliament ? All 
 these problems of first-rate importance still left unsolved 
 after 1688 were only worked out by a gradual process 
 during the course of the eighteenth century. 
 
 Two words suffice to contrast the revolutions of the 
 seventeenth century with the revolution which, beginning 
 about 1760, ended in 1832. The first were purely 
 political, the second was both political and social. The 
 peculiarity of a social revolution lies in the fact that it 
 is preceded, developed and brought about by a change 
 in the relative proportions of the wealth and prestige 
 enjoyed by the various classes of the community and by 
 the various members of each class. The task of such a 
 revolution is to effect a species of proportionate adjust- 
 ment of power or political influence and to bring them 
 into correspondence with the altered distribution of 
 economic forces and moral claims. The two revolutions 
 of the seventeenth century had nothing of the sort to 
 accomplish. They proceeded on complaints urged by 
 the whole nation against the oppressive encroachments 
 of the Crown ; their object was to maintain intact the 
 ancient provisions of the Constitution, to protect them 
 against untoward innovations, to discover and set up 
 again the buried landmarks of authority and to see that 
 that authority was guaranteed in the future. In a 
 certain sense and in their original impulse they only 
 aimed at restoring the ancient law of the land. They 
 met with no opposition except from the high-handed 
 duplicity of princes ; and the only change which they 
 had to bring about was that of one dynasty for another. 
 The revolution in its radical sense was riot then needed 
 E.C. 11
 
 THE ENGLISH CONSTITUTION 
 
 and did not in fact take place. We may say with 
 sufficient accuracy that its first beginnings appeared 
 only after the Restoration, that it grew and ripened 
 during the first half of the seventeenth century, that it 
 burst forth after 1760 in the shape of an agrarian 
 revolution which can be compared to nothing but that 
 " transfer of property " l on a gigantic scale in the 
 opposite direction which was to take place thirty years 
 later in France. The revolution in England was 
 consummated by a twenty years' crusade against the 
 revolution in France, and it ended by concentrating all 
 political power in the hands of a singularly exclusive 
 rural caste, and that at a moment when a powerful 
 industrial class, after a rapid growth of less than half a 
 century, had become the dominant economic factor- 
 Throughout a whole period we find what almost amounts 
 to two distinct nations living side by side within the 
 same kingdom and yet holding distinct economic 
 theories and enjoying almost distinct civil rights, the 
 one dispensing government and law, the other, so to 
 speak, outside the legal pale. The day, however, came 
 at last when the urban and manufacturing classes, who 
 had gained the ground which their rivals had lost, 
 asserted their claim to a share of power and infused a 
 fresh spirit into the national policy. 
 
 Taine, Oriyines de la France Conteinporaine,
 
 II 
 
 COLONIZATION, COMMERCE, AND INDUSTRY 
 BEFORE THE EIGHTEENTH CENTURY 
 
 IN order to view these changes comprehensively and 
 distinguish their real causes, we must start farther back 
 in our subject, with English society under the Tudors, at 
 the moment when it was settling down almost into its 
 modern shape ; we must make a thorough examination 
 of its structure, and trace the variations of shape and 
 fashion which successive events impressed upon it down 
 to the beginning of the eighteenth century. The divi- 
 sions of the various classes, the spirit which animates 
 them, their mutual relations, the means of passing from 
 one to another, the amount of wealth, well-being, and 
 liberty enjoyed by each respectively, their privileges and 
 their spheres in the State, their positions in reference to 
 the Crown and to Parliament, all these deserve at any 
 rate a passing notice. 
 
 The historian never escapes completely from the 
 impressions of the present ; it is in vain that he tries 
 to dispel them ; he feels their influence continually, and, 
 in spite of his most conscientious efforts, they modify 
 Ids conceptions of the past. At the mere name of 
 
 H 2
 
 100 THE ENGLISH CONSTITUTION PART n 
 
 England we picture to ourselves a country which is the 
 centre of a mighty colonial system, her possessions 
 scattered here and there in the old world and the new, 
 her fleets without number, her ports in every land ; we 
 see a great metropolis surpassing all Scotland and soon 
 to rival all Ireland in the numbers of its population ; 
 twenty other great towns each containing more than 
 100,000 souls ; forty-two others very little inferior : we 
 imagine whole districts where houses multiply till they 
 touch and crowd upon each other, where pure air never 
 enters and no green thing can grow ; factories in thou- 
 sands mingling their smoke ; a pallid population of 
 toilers, crowded almost shoulder to shoulder over leagues 
 of country, their numbers swollen at nightfall with the 
 dusky phantoms cast up by the dark city underground ; 
 vast areas densely packed with a haggard, toiling popu- 
 lation. We cannot rid ourselves of these powerful im- 
 pressions when we attempt to call up the England of 
 another age. We cannot realize void and silence in the 
 very place where that vast workshop, that busy mart, 
 that warehouse and dock for all the world swarms to- 
 day with din and movement. 
 
 The original of this picture is, however, of recent 
 date ; the England of the Tudors was the very reverse 
 of the England of our day. The English were still at 
 the beginning of the seventeenth century as much, if 
 not more than any other nation of civilized Europe, a 
 stationary agricultural and pastoral community, with a 
 tendency even to become more pastoral than agricultural. 
 The nation which was destined to show such eagerness 
 for emigration, such skill in founding colonies upon im-
 
 SECT, n COLONIZATION, COMMERCE, ETC. 101 
 
 trodden shores, had not, till the last years of Elizabeth's 
 reign, acquired any territory putside Europe, The first 
 of her expeditions which did' 116"! fentf in disaster was in 
 1606. Spain, Portugal, Hollaad ;and Frar-ce had out- 
 stripped her, and were t6 continue for"m6re than a cen- 
 tury to threaten the great future of her colonies. 1 
 
 The stream of colonization flowed in no great volume 
 till after the Restoration. 2 It was under Charles II. 
 that permanent settlements were founded or acquired 
 in Carolina, Pennsylvania, at New York and in 
 Delaware, and completed the occupation of the American 
 coast as far as Charleston. Nevertheless in 1688 the 
 French were masters of the two great rivers, the St. 
 Lawrence and the Mississippi, and their chances for the 
 future appeared to be at least equally good with those 
 of their rivals. It was only in the eighteenth century 
 that the balance inclined decisively in favour of the 
 English. At the same period the possessions of the 
 latter in Hindustan consisted only of a few factories. 
 Their first acquisition of territory outside Bombay dates 
 from 1757. (Porter.) A few years later they were to 
 
 1 English emigration, much restricted to begin with, had in- 
 creased after 1620. But " as soon as the Long Parliament met 
 this stream ceased to flow, and afterwards for a hundred years 
 there was so little immigration into New England from Old 
 England that it was believed not to balance the counter-movement 
 of colonists quitting the colony." Seeley, Expansion of England, 
 71. 
 
 2 At the date of the Navigation Act, New York and New 
 Jersey were Dutch ; Georgia, the Carolinas, Pennsylvania, and 
 Nova Scotia were not yet planted ; Virginia, Maryland, and New 
 England were in their infancy. Toynbee, Industrial Revolution, 
 78.
 
 102 THE ENGLISH CONSTITUTION PART n 
 
 found a vast Indian empire on the ruins and upon the 
 model of the work which Dupleix had begun for France. 
 A single sentence anicL two. dates sum up the story : 
 England: had only^ begun i( to count as a great co- 
 lonial power towards i the end of the seventeenth 
 century; she outstripped her rivals only from 1763 
 onwards. 
 
 Trade moved along an almost parallel line. It had 
 only begun to pass into native hands at the commence- 
 ment of the Tudor period : during the whole of the 
 middle ages it had remained in the hands of foreigners 
 Lombards Dutch, and above all the Hanse traders whose 
 exorbitant privileges were only suppressed during the 
 reign of Edward VI. In 1640 various writers express 
 themselves as if commerce had been a thing unknown 
 in England before the time of Burleigh and James I. 
 The literature of the subject was not in existence, so to 
 speak, before the seventeenth century; after 1625 the 
 epoch of the first great trading companies we find it 
 in abundance, and that it betrays the beginnings of 
 certain pretensions to supremacy at sea. The Navigation 
 Act of 1651 indicates for the first time a clear and well- 
 defined conception of the future in store for English 
 commerce. We must, however, go down to the end of 
 the century to find England contending on nearly equal 
 terms with the trade of the Low Countries. As late as 
 1694 she was compelled to dispute with them concerning 
 fishery rights in her own waters, and in 1690 an author 
 terms the Dutch l " masters of the field in trade." At 
 the same date the current rate of interest was 8 per 
 
 1 Child, New Discourse on Trade, 1690, p. 122, 4tli edition.
 
 SECT, il COLONIZATION, COMMERCE, ETC. 103 
 
 cent, in London and 3 per cent, in Holland. It was 
 only in the course of the eighteenth century that the 
 commercial preponderance of England was to become 
 an indisputable fact. 
 
 Manufactures developed still more slowly, and at the 
 Tudor period they were almost non-existent. The Vene- 
 tian ambassadors wrote that England was a rich country, 
 and they specified the sources of her wealth. These 
 consisted less, they said, in her tin mines and the direct 
 products of a most fertile soil than in her wool, which 
 was known and sought after for its fine quality in 
 every market of Europe. Nearly all this wool, was 
 merely produced in England and exported raw to 
 the Low Countries to be worked up by Flemish 
 weavers. 
 
 Well on into the sixteenth century England was still 
 " to Flanders what Australia is now to the West Riding. 
 London was as Sydney, and Ghent and Bruges were as 
 Leeds and Bradford." l About this time, however, the 
 Spaniards had by their religious persecutions in the 
 Netherlands driven a great number of Flemish workmen 
 to the other side of the Channel, and England began 
 herself to manufacture a part of her wools. The so- 
 called Norwich period began, and was to take in the 
 whole of the seventeenth century. It is specially to be 
 noted that this single industry formed the only English 
 manufacture ; at least there was no other throughout 
 the whole of the British Islands either important or 
 flourishing. Writing about 1700 Berkeley could still 
 speak of it as the " foundation of our national wealth," 
 1 Seeley, Expansion of England, p. 85.
 
 104 THE ENGLISH CONSTITUTION PART n 
 
 and in 1701 it formed not less than a quarter of the 
 whole external trade. 
 
 At the same date the manufacture of cotton was only 
 in its infancy. In 1750 the value of the exports did not 
 exceed 50,000. Adam Smith, writing in 1776, only 
 mentions the cotton trade once and that incidentally, as 
 if it was of no importance. 1 
 
 About 1750 four-fifths of the iron came from Sweden, 
 and the English production of that metal did not exceed 
 17,000 tons. Smelting with wood was the only process 
 known. In the absence of contrivances for the applica- 
 tion of steam power, the workings for coal remained in- 
 considerable. Cut off these three industries coal, iron 
 and cotton and what is there left of the England that 
 we know ? The sea washing an extensive coast line and 
 running up into a multitude of gulfs and estuaries sup- 
 plied admirable facilities for external communication ; 
 internally merchandize circulated duty free from one end 
 of the kingdom to the other : two valuable advantages 
 which England possessed over France. Inland com- 
 munication however was very imperfect ; there were no 
 canals (the first was constructed in 1755). Roads were 
 few and in bad repair, with a scanty service of coaches. 
 Even at the end of the eighteenth century the main 
 lines of traffic were nothing more in many places than 
 country tracks easily cut up or too narrow for loaded 
 vehicles, and a long line of pack horses, each carrying 
 bales of wool, was no uncommon sight. We can hardly 
 
 1 Baines states that the machines used in the cotton manu- 
 facture were, up to the year 1760, nearly as simple as those of 
 India. History of the Cotton Manufacture, p. 115.
 
 SECT, ii COLONIZATION, COMMERCE, ETC. 105 
 
 imagine a hundred years ago a state of things so differ- 
 ent from the present. 
 
 There is a general relation between the growth of 
 trade and manufactures and the growth of the towns. 
 We find that, London apart, the total urban population 
 was very inconsiderable. In the time of Elizabeth this 
 state of things seemed likely to grow permanent through 
 the severity of the regulations imposed by the guilds of 
 merchants or master workmen who had almost every- 
 where the control of municipal administration. With 
 the Tudors and under the Stuarts the government of 
 the towns had fallen in most cases, with the connivance 
 of the Crown, into the hands of small close bodies 
 elected from within. 1 These jealous and interested 
 cliques availed themselves of a statute of Elizabeth 
 which forbade the exercise of a trade by any one who 
 had not passed through a seven years' apprenticeship. 
 Accurately speaking this law only contemplated trades 
 already existing in 1563, and did not apply except in the 
 cities and market towns but it rendered the ancient 
 cities singularly unfit to serve as seats of manufactures. 
 The artisan was repelled by the prospect of his seven 
 years' service. The capitalist found that he could never 
 extend his business, he was therefore compelled to wind 
 it up and quit the town for the country. The manufac- 
 
 1 An opinion of the judges of the year 40 41 of Elizabeth 
 goes near to recognizing in these select bodies the right to make 
 bye-laws, and to appoint local functionaries, authorizing them to 
 cite usage and prescription in support of their claim, " in order to 
 avoid the difficulties and confusion of popular election." Gneist, 
 ii. 474.
 
 106 THE ENGLISH CONSTITUTION PART n 
 
 turer, tired of being thus trammelled and harassed, 
 established himself outside the walls and installed his 
 workmen in cottages around him. 1 Thus the ancient 
 centres of population showed no visible increase under 
 the Tudors and the Stuarts. They appear on the map 
 as a few black points scattered at wide intervals through 
 the blank space which represents the country. The 
 same proportion is maintained nearly down to the 
 eighteenth century. At the end of the seventeenth 
 century out of a population of five and a quarter millions, 
 four millions dwelt in the country. There was not, with 
 the exception of London, any town of 30,000 inhabitants, 
 and there were only four of more than 10,000 each. 
 Bristol, the second or third city in the kingdom, was said 
 to be the only one in which from certain points the eye 
 rested on nothing but houses. 2 The numerous boroughs 
 or cities upon which the Crown conferred the right of 
 sending members to Parliament were for the most part 
 overgrown and often very miserable country villages, to 
 which the neighbouring squires and farmers carried their 
 produce for sale. The interests of such places were 
 purely agricultural, like those of the country proper ; the 
 manners of their inhabitants were those of a rural 
 population. In the time of Elizabeth, and even after 
 the Revolution, the towns were still, speaking generally, 
 
 1 In this manner the woollen manufactures extended from 
 Worcester through the whole of Worcestershire, the cloth manu- 
 facture spread through the villages of Somersetshire and Yorkshire, 
 and the manufacture of iron through the villages of the Sussex 
 weald. Brodrick, English Land and English Landlords, p. 31. 
 
 2 Macaulay, History of England, i. 335.
 
 SECT, n COLONIZATION, COMMERCE, ETC. 107 
 
 in a state of dependence upon the country districts, and 
 their society, like their trade and manufactures, lacked 
 stability, energy, and volume ; they were in no position 
 to make head against the time-honoured supremacy of 
 the rural classes.
 
 Ill 
 
 THE COUNTRY GENTLEMEN 
 
 THIS bird's-eye view of the distribution of economic 
 forces hardly takes in more than the principal features 
 and the most salient points. We must come down from 
 our position of vantage and examine more closely the 
 actual state of the people and the arrangement of the 
 various classes. 
 
 At the head of the agricultural and pastoral com- 
 munity, the only class of any importance, the " country 
 gentlemen " stands prominently forward, the most 
 original and the most influential of the social elements 
 which went to form the national character. 
 
 We know that the feudal nobility was nearly extinct 
 at the end of the fifteenth century, and that it had been 
 necessary to reconstruct the peerage with materials 
 taken from the stratum immediately below it. The 
 new peers never severed their connection with the class 
 from which they sprang, they merely took up a position 
 somewhat in advance of it. They looked upon their 
 fellow landowners as their equals of yesterday and their 
 possible equals of to-morrow, while the simple land- 
 owners felt themselves very little inferior to the titled
 
 SECT, in THE COUNTRY GENTLEMEN 109 
 
 members of their own class. Each member of that class 
 felt that he was enjoying something analogous to the 
 noblesse graduelle of the French, that is, nobility con- 
 ferred by the honourable discharge during two genera- 
 tions of the duties of a public office. In England the 
 public office consisted of the management of a great 
 estate with the duties incident to it social intercourse, 
 the dispensing of patronage, and an active share in local 
 business. All the rich squires were, so to speak, peers 
 in expectation. In the fifteenth century the superior 
 social unit was not the peerage, it was the rural gentry 
 including the peerage. 1 The peer's dignity did no more 
 than confer precedence as amongst " gentlemen." The 
 latter word which came into common use at the time of 
 Elizabeth is not the equivalent, Macaulay has proved 
 it in a famous passage, of the French word gentilhomme ; 
 it is rather the converse of it. A feudal tenure or a 
 formal process of ennobling were not at the outset in- 
 dispensable in order to confer the quality of gentleman, 
 and birth alone could not transmit it. The ownership 
 of a great estate, municipal rank, knowledge, and ability 
 as a lawyer, all alike procured admission into this species 
 of open nobility : poverty alone acted as a disqualifica- 
 tion. The nobility enjoyed no privilege and was exempt 
 
 1 Speaking of the nobles who alone, according to Fortescue, 
 could afford to educate their sons at the Inns of Court, Water- 
 house adds (p. 520) : These by the text are said to be " nobilex," 
 and their sons sent thither " nobiliumfilii " which is to be under- 
 stood not of the high nobility, the peerage (though often their 
 sons were thither sent), but of the sons of the lower nobility, 
 knights, esquires, gentlemen 's sons, toho are cldejly the "noliles" 
 here.
 
 110 THE ENGLISH CONSTITUTION PART n 
 
 from no public burden. At a later period there was no 
 need of any violent change in custom nor of any statut- 
 ory innovation to enable any man, who united a certain 
 degree of education, and above all certain habits of life, 
 to the necessary amount of wealth, to claim as of full 
 right his admission to the order. 
 
 In the sixteenth century the ranks of the nobility 
 were filled with new men; all the evidence goes to 
 prove it. They were merchants, borough magistrates, 
 lawyers, or even wealthy manufacturers, who had acquired 
 or had been presented with estates in the country, 
 especially property which had been taken from the 
 Church. They " scented our needy heirs," they " pur- 
 chased wards of noble birth " and married them to their 
 daughters or their sons. 1 These self-made men had 
 only one object to wring from their land the highest 
 possible return. With them came upon the scene the 
 gentleman and the farmer, who looked upon fanning as 
 a commercial venture and a speculation. The landowner 
 who himself examined his bullocks to see that they 
 were fit for the butcher, the lady who carried her own 
 butter to market or who let off her husband's sporting 
 rights, were types of a new period ; men of the old 
 school were at first astonished and scandalized at 
 methods which before long they were destined to adopt. 2 
 
 1 See Crowley's Select Works (1550), and Harrison's 
 of England (loll}. 
 
 2 The people of the North held longer to old customs and 
 ancient methods of cultivation, just as they kept up a feeling of 
 loyalty to their local chiefs and adhered to them in their number- 
 less revolts ; they too, in their turn, were to be carried onward 
 by the tide of progress.
 
 SECT, in THE COUNTRY GENTLEMEN 111 
 
 From this date it was an established maxim that wealth 
 was the supreme good ; men shared authority and took 
 rank according to the amount of their incomes. The 
 England of our own day is already before us. In the 
 fifteenth century the inferior limit of the gentry was 
 determined by real property qualifications imposed dur- 
 ing the reigns of the three Henries and chiefly during 
 the reign of Henry VI., the effect of which was to shut 
 off all persons below a certain rank from the offices 
 which had devolved upon the ancient knighthood. 
 When the test of a property qualification is imposed, it 
 implies that distinctions founded on birth and lineage 
 are no longer accepted as final ; that law and custom 
 have given them up, and that the upper classes feel the 
 necessity of looking elsewhere for protection against the 
 growing encroachments of their inferiors. 
 
 As is generally the case, the new comers, the men who 
 had risen, were most eager to close the door behind 
 them. Accordingly an income of a certain amount 
 derived from land was made a necessary qualification for 
 service on the grand jury, for a commission in the militia, 
 and for the office of justice of the peace. The sum fixed 
 upon tended to remain the same as the minimum annual 
 value assigned to a knight's fee (20). The gentry were 
 in reality a privileged class, but their privilege rested 
 upon the possession of landed wealth ; the class was thus 
 recruited upon a broad system of selection, which ex- 
 cluded none but the lower social elements, and took in 
 easily those who rose to it. Higher in the scale moral 
 and social homogeneousness was brought to perfection 
 arid almost absolute civil arid political equality was
 
 112 THE ENGLISH CONSTITUTION PART n 
 
 attained. An earl's daughter saw no impropriety in 
 marriage with the son of a plain country gentleman, nor 
 even at a later date with the son of a city merchant. 
 The words ddrogeance and mesalliance have no equiva- 
 lent in English. At the time of Sir Edward Coke the 
 House of Lords contained a few peers who had sprung 
 from a feudal stock ; it contained many more who were 
 the descendants of eminent lawyers. All alike, the 
 scions of great houses and the offspring of commoners, 
 had an equal voice in the counsels of their sovereign. 
 The younger sons of these same peers, and even their 
 presumptive heirs, mingled in the House of Commons 
 upon a footing of equality with the representatives of 
 the rural gentry and the wealthy merchants of the 
 towns. It was in 1549 that for the first time a peer's 
 eldest son solicited election to Parliament. The names 
 of father and son alike appeared in the commission of 
 the peace side by side with the names of the squires of 
 their county and of various other persons chosen for 
 their knowledge of law. The words of the commission 
 itself recognized no distinctions amongst them. Outside 
 the Upper House, where there was not room for every 
 one, all without distinction were legally qualified to dis- 
 charge every office ; all were called to the conjoint and 
 collective exercise of public authority. Eligibility to 
 public office (I' admissibiliU aux emplois), that feature of 
 civil equality looked upon as peculiarly French, has, so 
 far as concerns all gentlemen, existed in England since 
 the sixteenth century. 
 
 In short, all the higher elements of the nation were 
 united and fused into one single class ever open for the
 
 SECT, m THE COUNTRY GENTLEMEN 113 
 
 reception of those lower elements of which the develop- 
 ment had been less rapid. The English aristocracy 
 under the Tudors and down to the end of the seventeenth 
 century had taken the shape of what, in France, at a 
 later period, was termed by Royer-Collard " the middle 
 class" (la clause moyenne). It had the breadth and scope 
 of a comprehensive democracy resting on property quali- 
 fications ; it was as far as possible removed from the 
 narrow type of oligarchy to which in the eighteenth 
 century it showed a tendency to revert. Privilege 
 appended to money, the development of wealth into a 
 class test superseding the old distinctions of birth, is one 
 clear essential feature of this period, a feature which 
 only becomes more prominent as we draw nearer to the 
 present time. Two other facts, the unity of the State, 
 the authority of the law taking the place of the anarchi- 
 cal autonomy of feudalism, complete the concise formula 
 which sums up the characteristics of English society 
 from the Tudor period onwards. These facts were 
 brought into special prominence when the judicial and 
 administrative power in the counties was conferred upon 
 the leading gentry. 
 
 In the fourteenth century the local tribunals, super- 
 seded or discredited by the king's courts, were fast 
 losing ground. In 1360, the Crown first selected from 
 amongst peers, knights, esquires and lawyers certain 
 persons in each county who were formed into a com- 
 mission with powers over the whole of it, were entrusted 
 with the maintenance of order within its limits, and 
 were armed to that end with judicial and executive 
 authority. These were magistrates or justices of the 
 
 E.C. I
 
 114 THE ENGLISH CONSTITUTION PART n 
 
 peace. A little later this process of selection, confined 
 for a time to knights, was made applicable to all owners 
 of land of a certain rateable value. The duties of the 
 magistracy continued to multiply with the increasing 
 demand for order and progress in a rapidly developing 
 community. The investigation of crime, the police 
 duties of the county, the supervision of labour, the 
 relief of the poor, measures of sanitation and, at a later 
 time, the prosecution of papists and dissenters, all these 
 combined to swell their jurisdiction. 1 
 
 What is important to be noted here as the most char- 
 acteristic feature of this jurisdiction is that its origin was 
 unconnected with feudal jurisdiction in any shape; it 
 was not a disguised or debased form of the latter, it was 
 rather its very converse. Feudal jurisdiction in each 
 district belonged to a single individual, the new juris- 
 diction was collective. Feudal jurisdiction was created, in 
 theory, by an irrevocable grant from the Crown, it neces- 
 sitated in each case an actual subdivision of the sovereign 
 power ; the new jurisdiction rested on an essentially re- 
 vocable delegation ; it was a mere commission granted 
 to officials. The former called in the lawyer only as the 
 inferior adjunct of the feudal lord ; the latter admitted 
 him upon a footing of equality with other gentlemen, as 
 if to emphasize by the honour shown to the specialist 
 
 1 It is noticeable that the magistrates wielded each of these 
 powers under an express and specific statute. They did not 
 possess them impliedly as enjoying a q Mast-sovereign jurisdiction. 
 However great their power was they administered and adjudi- 
 cated only in the terms of a series of precise and limited authori- 
 ties conveyed in Acts of Parliament.
 
 SECT, in THE COUNTRY GENTLEMEN 115 
 
 the intention to secure the effective discharge of a 
 public service. Feudal jurisdiction was, as a rule, united 
 to dominant rights of property over all land in the dis- 
 trict in which it was exercised; the new jurisdiction 
 could be granted to all the great landowners of the 
 county whether noble or not, who were qualified by the 
 enjoyment of a certain income. All magistrates were 
 given jurisdiction over the whole county and not merely 
 over the district in which they possessed manorial 
 rights. Jurisdiction therefore in England was not con- 
 ferred by, nor co-extensive with, landed property (juris- 
 diction defined by property being an essential feature of 
 feudalism) ; the ownership of property merely supplied a 
 qualification which was intended to secure in the ad- 
 ministrator and in the judge a person of adequate moral 
 weight and sufficiently interested in local affairs. Here 
 once more we find the unity and vigour of the State 
 conspicuous in England at an early period, the central 
 power driving out feudalism and employing for the pur- 
 pose a class of great landowners who very quickly absorb 
 and level down whatever is left of the old hierarchy. 1 
 
 1 In the exercise, however, of their vast power, the gentry 
 encountered a limiting and a controlling force. This limiting 
 force was parochial autonomy industriously developed by Eliza- 
 beth and fostered by the energy of the yeomen a proud, 
 numerous, and strong-willed race. The controlling force was the 
 power of the Crown acting through its various agencies. The 
 Tudors and the Stuarts kept the county magistrates well in hand 
 and spoke authoritatively to them by the mouth of their judges ; 
 a general application of the writ of certiorari compelled the 
 attendance of the magistrates to answer for their acts before the 
 king's courts ; more than this, the criminal side of the Star 
 Chamber was swift to visit upon the justices any misuse of their 
 
 I 2
 
 116 THE ENGLISH CONSTITUTION PART n 
 
 Thus the gentry had already become at the end of the 
 seventeenth century the head and the heart of the 
 English community. They were the source of all activity 
 and the object of every aspiration. Everything in one 
 way or another fell to them and contributed to their 
 importance. 
 
 The strength of their position, the firmness and 
 reality of their hold upon public opinion, were never 
 better shown than during the most troubled period of 
 English history (1640-1688). In less than half a cen- 
 tury the English people witnessed the advent of a great 
 parliamentary struggle, an eight years' civil war, a 
 mighty religious movement, the condemnation and vio- 
 lent death of a king, the establishment of a republic, 
 the defeat of the moderates, the accession to power of 
 the extremists, the military despotism of a great man, 
 then the completion of the cycle by the return of the 
 legitimate line, to be followed finally by a fresh depart- 
 ure in the shape of a dynastic revolution. These great 
 events, however, numerous and important though they 
 were, left the political centre of gravity fixed as before 
 
 authority, and the Crown to deprive them of their office, if their 
 fidelity proved open to question. Thus the self-government, still 
 vigorous and intact, of small parochial democracies, the authority 
 of the State still unimpaired and far-reaching, hedged in the 
 magistracy on either side and anticipated the danger of a too 
 extensive jurisdiction and an almost unlimited commission. 
 These are the barriers which, as we shall see, were overthrown or 
 lowered in the eighteenth century. An assumption of title to 
 confidence, a species of divine right of aristocracy, were destined 
 to level these obstacles to the exercise of arbitrary power, and to 
 cast aside these guarantees, which came to be regarded as super- 
 fluous.
 
 SECT, in THE COUNTRY GENTLEMEN 117 
 
 in the country gentlemen. Buckle attempts to prove 
 that the revolution of 1648 was directed against the 
 nobility and that it was the work of the lower classes. 
 His argument does not hold good. He quotes the names 
 of several individuals of low origin who played a pro- 
 minent part in the events of the time. It is the 
 characteristic of every revolution which is prolonged for 
 any lengthened period that men who have nothing to lose 
 thrust themselves into the movement, succeed in making 
 themselves prominent, and force on those extreme mea- 
 sures which bring about a final reaction. These bubbles 
 on the surface are no evidence either of the direction 
 of the stream or of the properties of its waters. 
 A political movement like that of 1640, which at its 
 various stages, and down to 1660, numbered among its 
 chiefs men who were unquestionably gentlemen, like 
 Pym, Hampden, Cromwell, 1 Ludlow, Lenthall, Hutchin- 
 son and Vane, presents assuredly none of the features of 
 a war of classes ; on the contrary the fact remains that 
 the aristocracy was split into two factions, 2 and that from 
 the very beginning one of these followed the fortunes 
 of the king, the other those of the Parliament. This 
 
 1 This author (Buckle) insists on the fact of Cromwell being 
 the son of a brewer. It is quite possible that Cromwell's father 
 brewed and sold beer : this proves nothing. The one incon- 
 testable and decisive fact is, that father and son were country 
 gentlemen of old extraction connected by blood with Thomas 
 Cromwell of Henry VIII. 's time, and connected by marriage with 
 the Hampdens, the Whalleys, and several other families of con- 
 sideration. See Carlyle, History of Cromwell, i. 19. See also F. 
 Harrison's Oliver Cromivell, c. i. 
 
 2 Gneist, ii. 560.
 
 118 THE ENGLISH CONSTITUTION PART n 
 
 shows clearly that the quarrel was in principle a political 
 and religious one, and that neither the nobility nor the 
 gentry saw in it either a threat aimed at their privileges, 
 or an attack directed against an arrangement of classes 
 of which they enjoyed the benefit. We have lists of 
 the associations formed in the eastern counties during 
 the Civil War. All the names which occur are followed 
 by the titles of esquire or gentleman. Not that the 
 smaller landowners and the farmers took no part in it ; 
 but they remained in the background behind their 
 acknowledged superiors who were engaged with them 
 in the struggle. Midway in that struggle the House of 
 Lords may have been abolished ; later on the position of 
 the gentry in certain places may have been struck at by 
 special measures of banishment or confiscation. These 
 violent proceedings were aimed not at the class but at 
 individuals singled out by their political and religious 
 opinions. The country gentlemen as a class continued 
 to hold their ground. The county archives of Devon- 
 shire have preserved for us an ordinance l of the lords 
 protectors of the liberties of England nominating local 
 magistrates ; the names of these magistrates are worth 
 quoting. They are Holies, Davises, Yonges, Drakes, 
 Fortescues, Carews ; in other words they belonged to 
 the families which then formed, and which form still at 
 the present day, the heads of the local gentry. In the 
 full career of the Republic the whole county adminis- 
 tration remained in the hands of the justices, and they 
 transacted the business connected with it at their quarter 
 
 1 In 1651. Vide Quarter Sessions, from original records. 
 A. H. Hamilton.
 
 SECT, in THE COUNTRY GENTLEMEN 119 
 
 sessions ; they exercised also judicial rights, and it should 
 be remembered that at this period their powers extended 
 to the infliction of capital punishment. The legal 
 records of the time prove that they punished poachers 
 with severity ; that they fined unqualified persons who 
 kept dogs for sport ; that they regulated wages, and on 
 occasions fixed the maximum. These were the acts of 
 a privileged class still in full and undisturbed possession 
 of its privileges. If we imagine what their position 
 would have been in corresponding circumstances in any 
 one of the French departments in 1791, it will enable 
 us to see clearly how different in their nature the two 
 revolutions were. This short review of the state of the 
 local administration in the middle of the seventeenth 
 century, makes plain the fact that there was at that time 
 in England no revolt against the established social order, 
 and no generally felt need of a redistribution of power 
 amongst the various classes of the community.
 
 IV 
 THE YEOMEN 
 
 NEXT after the gentry, and following hard upon them, 
 we find existing in the latter half of the seventeenth 
 century another class which enjoyed great influence and 
 was not less peculiar to England. I mean the yeomen. 
 The yeomen formed, so to speak, a second component, 
 and a vigorous and characteristic one, of that rural 
 society which gave its tone to the whole nation. At 
 the period when the higher gentry began to absorb what 
 remained of the feudal nobility, and established them- 
 selves definitely as an upper class, the small landowners 
 freeholders holding estates of inheritance or for life 
 long leaseholders and the larger copyholders made cor- 
 responding progress, and the yeomen (the common term 
 applied to all of them) began in their turn to fill the 
 position and take the rank of an agricultural middle 
 class. The reign of Henry VI. had marked the zenith 
 of their influence ; they had by that time fully realized 
 the fact of their existence as a body. The inferior limit 
 of their class was approximately determined by the 
 electoral qualification of the forty-shilling freeholder 
 (under the Act of 1430), or by the 4 qualification for
 
 SECT, iv THE YEOMEN 121 
 
 the office of juror. The superior limit was marked from 
 a legal point of view by the property qualification of a 
 magistrate, but socially there was not on this side any 
 definite boundary line. In 1446 it was considered 
 necessary to forbid the county electors to return 
 " valetti," l that is yeomen, to the House of Commons, a 
 proof that custom and opinion left to themselves did 
 not look upon the higher section of their class as 
 unworthy of a seat in Parliament, an honour originally 
 confined to the knights. Fortescue testifies almost with 
 triumph to the fact that in no country of Europe were 
 yeomen so numerous as in England ; he adds that, how- 
 ever small the locality, there was always to be found in 
 it a knight or a squire or some rich inhabitant amongst 
 the so-called freeholders, and many yeomen who were 
 qualified by their estate in land to sit upon a jury, and 
 that of these last there were some who could afford to 
 spend as much as 600 crowns a year. 
 
 The list given above enables us to understand how 
 numerous were the distinctions and grades which led 
 down by a hardly perceptible incline from the great 
 lord to the most humble tenant. With this state of 
 things Fortescue contrasts the condition of Continental 
 countries, where it was a rare exception to see other 
 persons than the nobility in possession of land. 
 
 Harrison in his description of England in the time of 
 Elizabeth, 2 bears the same testimony. He depicts to us 
 the forty-shilling freeholders living at their ease in good 
 houses, keeping servants to assist them in their labours, 
 
 1 Stubbs, iii. 556. 
 
 2 Harrison's Description of Enylaiul. Hollinshed. (1586), p. 163.
 
 122 THE ENGLISH CONSTITUTION PART n 
 
 sending their sons to the universities and to the Inns of 
 Court, finally buying up the estates of impoverished 
 gentlemen and becoming gentlemen themselves. In 
 like manner under James I., Fynes Morrison describes 
 the men of little education who came from the towns 
 and elbowed out the needy squires. In the fifteenth 
 and sixteenth centuries the ruin and spoliation of the 
 feudal families, and at a later date of the monastic 
 orders, had benefited the yeomen to a considerable 
 extent, though to a less degree, than the gentry. The 
 farmers had, like the gentlemen, felt the advantage of 
 improved methods of cultivation, and enclosures had 
 enabled them to work their land in a more rational and 
 profitable manner. Landlords asked for higher rents, 
 but their tenants were willing and able to pay them. 
 Under the Tudors a vigorous parochial system took the 
 place of hundreds and tithings ; it was subordinate to 
 the county authority, but this notwithstanding the 
 yeomen took an active and independent part in the 
 conduct of public business. As was the case with the 
 gentlemen in the county, so in the parish the law 
 imposed upon the yeomen an honourable and constantly 
 increasing burden of public and gratuitous service. We 
 find them employed as vestrymen, churchwardens, 
 overseers, surveyors of highways, parish constables, and 
 jurymen. They filled, according to their condition, a 
 useful part in the State. 
 
 The number and prosperity of the small landowners is 
 one of the most marked features of the rural England of 
 Elizabeth ; but the records and poems of the period 
 point already to the beginnings of agrarian jealousies
 
 SECT, iv THE YEOMEN 123 
 
 between the two classes who own the soil. It is not the 
 old squirearchy who in the first instance are the 
 aggressors, but the pushing and covetous race of new 
 landowners, men from the towns who have invaded the 
 country, " men whose fortunes date from yesterday," 
 who have bought up the lands of the Church. It was 
 against such men that complaints were directed ; there 
 were amongst them, as we find from the petition of 1514, 
 merchant adventurers, 1 drapers, goldsmiths, butchers, 
 tanners, and other handicraftsmen. These interlopers, 
 greedy of further wealth, attempted to substitute a more 
 productive method of working the land for the three- 
 course system ; they enclosed commons, threw numbers 
 of small farms into one, and reared great quantities of 
 sheep. Wherever their venture prospered herbage was 
 substituted for corn, sheep for human beings, the small 
 country villages were depopulated, and where they had 
 stood nothing was to be seen but a solitary expanse of 
 grass. The language of contemporary writers is pathetic. 
 " They throw down houses," writes Sir Thomas More, 
 " they pluck down towns, and leave nothing standing, 
 but only the church to be made a sheephouse." 2 
 
 The whole legislation of the Tudors bears witness to 
 these encroachments ; it abounds in measures devised to 
 check or prevent them ; the pulling down of farm 
 buildings is forbidden, the rebuilding of those which had 
 
 1 The merchant adventurers were men who traded through 
 other ports than those of the Staple. 
 
 2 " Your sheep eat up and swallow down .... the very men 
 themselves," again says Sir Thomas More. Utopia, Arber, 
 p. 41.
 
 124 THE ENGLISH CONSTITUTION PART i 
 
 been pulled down since the fourth year of Henry VIII. 
 is made compulsory ; it is also made compulsory to 
 annex to such buildings a sufficient acreage of land, and 
 to maintain a suitable dwelling on every estate of from 
 thirty to fifty acres. An analogous obligation was im- 
 posed upon purchasers of ancient monastic lands, and 
 in addition they were compelled to retain as arable as 
 much land as had on the average been in cultivation 
 during the preceding twenty years. No single indi- 
 vidual was allowed to own more than two thousand sheep. 
 The preamble to one of these enactments states that it 
 was passed " in order to prevent the ruin of agricultural 
 villages and farms." 
 
 Bacon explains authoritatively the aim and object of 
 these prohibitions. It was a question not only of 
 preventing the depopulation of the kingdom but of 
 retaining a great part of the soil in the hands of the 
 " yeomanry or middle people, of a condition between 
 gentlemen and cottagers, or peasants ; " in other words to 
 save from destruction the agricultural middle class which 
 Bacon in another passage speaks of as the backbone of 
 the army, the guarantee of the revenue " The more 
 gentlemen," he says, " ever the lower books of subsidies." l 
 
 Thus the designs of the gentry upon the land date 
 from a very early period, but it should be observed that 
 these new-comers, and that portion of the old landowners 
 who followed their example, did not aim at disturbing 
 the political equilibrium by doing away with the yeomen ; 
 their object was simply to increase the profit derived 
 from their own estates by the employment of fewer 
 1 Bacon, Hist. Henry VII., Lumby, p. 71, &c.
 
 SECT, iv THE YEOMEN 125 
 
 hands (the value of labour having risen appreciably) and 
 by raising from the soil such produce as brought the 
 highest return. They were merely skilled and mer- 
 cenary agriculturists ; they were not moved, as were the 
 men of two centuries later, by the desire of political 
 influence. The energetic resistance of the legislature, 
 that is, of the Crown aided by certain of the gentry, 
 seems moreover to have been successful in keeping these 
 enterprises within bounds. It is clear that at the time 
 when the Civil War broke out, the yeomen still formed a 
 numerous, vigorous and prosperous class. It was they, 
 as Whitelock says, who, " well armed within with the 
 satisfaction of their own good consciences, and without 
 by iron arms," vanquished the royalists. In 1663, 
 Waterhouse, commenting on Fortescue, can find nothing 
 in England comparable to the great French feudatories 
 except by reviving far-off memories of Bohuns and 
 Bigods, and he draws a picture of the rich English land- 
 owners surrounded by industrious neighbours who in 
 their turn grow in wealth and importance and them- 
 selves become in some cases the owners of great estates. 
 Towards the end of the seventeenth century two 
 estimates placed the number of the yeomen at 160,000 
 and 180,000 respectively. According to the first they 
 were in the enjoyment of incomes amounting on the 
 average to from 60 to 70 a year, and formed with 
 their families a seventh of the whole population. Small 
 landowners were at this period even more numerous than 
 tenant farmers. Chamberlayne, in his State of Great 
 Britain, published at this period, repeats exactly what 
 Fortescue had said two centuries earlier. " Of the free-
 
 126 THE ENGLISH CONSTITUTION PART n 
 
 holders of England there are more in extent and richer 
 than in any other country in Europe." At the com- 
 mencement of the century which was to witness the 
 accomplishment of that revolution which I have under- 
 taken to chronicle, the yeoman class had been threatened 
 rather than attacked ; it still counted within the nation 
 as an economic, political and social element of very 
 great weight. 1 
 
 1 Toynbee, Industrial Revolution, p. 60.
 
 THE AGRICULTURAL LABOURERS 
 
 A STUDENT of the time who carried his investigations 
 below the class of farmers and small landowners would 
 be struck at the outset with the species of legal servitude 
 which lay heavy on the agricultural labourer ; he would 
 imagine that he had discovered in him the one suffering 
 member of that prosperous community. It is one of 
 the features of feudal society that, outside the towns, 
 the individual counts for nothing unless he hold 
 lands, which confer a power upon their owner and stand 
 a pledge for his acts. Those who possess nothing but 
 the strength and skill to labour are outside the law ; they 
 are subject to the good pleasure of their superiors, who 
 are responsible for them as well as for the maintenance 
 of public order which is supposed to be threatened by 
 them. 
 
 In the fourteenth century, when this system of 
 patronage had lost its force, there ensued great disorder 
 and a complete displacement of personal and economic 
 relations ; it was considered impossible to combat this 
 state of things except by a series of harsh statutes which 
 dealt either with the pettiest details or involved pro-
 
 128 THE ENGLISH CONSTITUTION PART n 
 
 visions of a sweeping and indefinite character ; the 
 justices of the peace were entrusted with the task of 
 carrying them into effect. Under the Tudors the 
 monks were dispossessed of the estates which they had 
 administered in patriarchal fashion, and the rapacity of 
 the new owners showed itself in the frequent expulsion 
 of tenants : these evictions, and the dispersion of the 
 indigent poor who had clustered round the monasteries 
 for protecti9n, once more turned adrift a considerable 
 section of the lower orders and rendered necessary the 
 re-enactment in a fuller and more elaborate shape of the 
 statutes of Richard II. At this period we find justices 
 of the peace fixing the rate of wages, regulating the 
 price of provisions, imposing compulsory service and 
 apprenticeship, and sanctioning the forcible employment 
 of the poor in the cultivation and harvesting of the 
 crops. The hours of labour were fixed by law. The poor- 
 rate was the inevitable result of this system of servitude 
 and the price paid for its establishment. 
 
 It is possible "that so far as regarded the civil and 
 criminal law, the English peasant, even though he were 
 a pauper, may at this time have enjoyed more freedom 
 than any other peasant in Europe ; but so far as regarded 
 public administration, the maintenance of order and 
 social economy, the class in England which owned no 
 land, was in a measure outside the legal pale ; English 
 liberty, the subject of so much boasting, did not extend 
 so far down the social scale. 
 
 It is one of the curiosities of history that oppressive 
 laws do not always check the prosperity of the particular 
 class which seems to feel their ^weight. A century
 
 SECT, v THE AGRICULTUEAL LABOURERS 129 
 
 and a half before Elizabeth, the English peasant enjoyed 
 the necessaries of life in the greatest abundance. 
 Immediately after the Black Death the rate of wages 
 rose considerably. The rigorous enactments of the time 
 the preambles themselves of the statutes prove it were 
 aimed at a class which was in a state of progress, a class 
 which had become a disturbing element for the very 
 reason that its condition had changed. 
 
 This process of change had set in motion the law of 
 supply and demand, and so alarmed a community who 
 were accustomed to consider the ratio between the two 
 as permanently fixed. The men who under the terms 
 of these statutes were prosecuted and punished as 
 vagabonds were very frequently nothing more than 
 workmen in search of better wages. The rate of wages 
 had, in fact, become higher as the general increase of 
 wealth enabled landowners and farmers to offer better 
 terms. At the time of Edward IV. the English peasant, 
 as Fortescue describes him, was warmly clad in woollen 
 stuffs ; he lived on fish and meat, and only drank water 
 as a penance ; he was well provided with household 
 furniture and implements of husbandry. The French 
 peasant, of the same period, was clad in sackcloth and 
 ill-nourished on rye bread, and feasted at rare intervals 
 on a morsel of bacon, or on the offal and heads of beasts 
 that had been slaughtered for his lord. Fortescue views 
 this contrast with complacency, but he is a boastful 
 writer, and his work has the suspicious flavour of a 
 panegyric. Still, after making due allowance for exag- 
 geration, sufficient evidence remains to place beyond all 
 question that the condition of the English agricultural 
 E.C. K
 
 130 THE ENGLISH CONSTITUTION PART n 
 
 labourer at the end of the fifteenth century was an 
 enviable one. It is not impossible that his condition 
 changed somewhat for the worse during the sixteenth 
 century, but in any case it continued to be superior to 
 that of the corresponding class on the Continent. A 
 French writer asserts that English workmen earned 
 more in a week than Spaniards or Germans did in a 
 month. He speaks with wonder of the journeymen 
 carpenters who had money to spare and found time to 
 play tennis. The existence of a compulsory poor-rate 
 shows indeed that at the time of which we are speaking 
 paupers were a numerous body ; but it should be 
 observed that the poor law was then neither a symptom 
 of that hopeless destitution which we sometimes meet 
 with in purely industrial communities, nor had it then 
 become, as it became later on, a pauperizing and de- 
 moralizing agent. At this period relief was given to 
 the impotent and helpless only ; the able-bodied poor 
 had no claim to it, and they were forcibly compelled to 
 work ; it was moreover distributed by the parish, that 
 is to say, through an agency almost paternal in its 
 character. Thus the poor-rate in Elizabeth's time had 
 nothing in common with the local and aristocratic 
 socialism which was so much in vogue during the 
 eighteenth century. Civil society had taken over the 
 traditional responsibilities of the Church with regard to 
 the poor, and every little parish discharged them with- 
 out ostentation, and, on the whole, impartially. While 
 some required assistance, the greater part of the peasants 
 were prospering. We find them again in the seventeenth 
 century subject to the same system of discretionary
 
 SECT, v THE AGRICULTURAL LABOURERS 131 
 
 supervision, dwelling in cottages built upon the waste, 
 for which in many cases they paid no rent. Each 
 cottage had its plot of ground where fruit or vegetables 
 could be grown, and beyond the hedge which bounded 
 it lay the common where a cow, a pig, or a few fowls 
 could feed at will. Frequently, too, the labourer lodged 
 at the farmhouse, and among the numerous class of 
 small farmers it was customary for the servant to eat at 
 his master's table, and to live more or less as a member 
 of the family. At the commencement of the eighteenth 
 century agricultural wages were both absolutely and 
 relatively much higher than they had been previously. 
 Wheaten bread was in general use amongst the peasantry, 
 and cheese, and even meat, formed part of their diet. It 
 was their golden age. We shall see that during 
 the years immediately preceding 1800, and the forty 
 years which followed it, the condition of the peasant 
 changed perceptibly for the worse. At the same time 
 it must be borne in mind that the terrible suffering 
 revealed by the inquiries held during that period was 
 in no sense the legacy of a bygone system of oppression : 
 it was an immediate result of the agrarian revolution 
 which was brought about in the eighteenth century. 
 
 To put the case shortly. In 1700, rural England 
 still formed almost the whole of England. It surpassed 
 the commercial and manufacturing classes in numbers, 
 wealth, and in the importance of its public services ; it 
 over-shadowed them through the moral authority and 
 the dominant position of its leaders. 
 
 Those leaders, that is, the country gentlemen, pos- 
 sessed none of the characteristics of feudalism ; the very 
 
 K 2
 
 132 THE ENGLISH CONSTITUTION PART n 
 
 opposite was the case : they formed a class essentially 
 modern in its nature. It was at that time the funda- 
 mental peculiarity of the English people that the 
 various grades of the social hierarchy were divided by no 
 wide intervals; different classes approached so nearly 
 that they seemed sometimes to overlap. In the fifteenth 
 century the country gentlemen invaded and absorbed 
 the peerage ; the country gentlemen themselves were in 
 their turn recruited by the addition of wealthy merchants, 
 borough magistrates, and the more eminent lawyers, 
 and thus attracted to their own ranks the leading 
 representatives of the urban communities and of the 
 commercial and industrial interests. A step lower and 
 the yeomanry followed in continuous sequence. The 
 first conspicuous break occurs at the point where below 
 the humblest yeoman the inferior and, so to speak, 
 inorganic sections of the community began; yet even 
 there the dividing line was less marke4 than it is in the 
 present day. If the more considerable of the small 
 freeholders bordered on the gentry, the more humble 
 remained, to a certain extent, in touch with the paid 
 labourer. They treated him as a rule like one of their 
 own family; the shepherd or the ploughman lived at 
 the farm ; artisans dwelt under the eye of their master 
 in cottages built upon the waste. In a progressive 
 community the upper classes are strengthened in their 
 authority and power, and fortified against destructive 
 influences in proportion as the separation between class 
 and class is made slighter and more liable to be over- 
 stepped by those sections that press on either side of 
 the border lines. The vague limitation of classes acts
 
 SECT, v THE AGRICULTURAL LABOURERS 133 
 
 as a check upon the growth of class feeling ; each rank 
 is prevented from forming a distinct conception of its 
 own interests, and shows no tendency to stand aloof or 
 to regard all other ranks with a feeling of distant 
 hostility. 
 
 Homogeneousness and coherence, continuity and 
 gradation, these, at the period to which I am referring, 
 were the clearly marked characteristics of English 
 society. No surer guarantees of social harmony exist ; 
 and I have shown that, as a matter of fact, this harmony 
 was never seriously shaken by the most violent political 
 or religious disturbances. 
 
 This is what the eighteenth century destroyed ; 
 towards the end of that century all had changed. 
 Throughout the social scale deeply seated class divisions 
 and interests in burning rivalry split up the surface of 
 society, silently undermined its tranquility, and hastened 
 the day when, if peril was to be avoided, the problem of a 
 wholesale reconstruction would have to be faced. We 
 have next to investigate the causes of this phenomenon, 
 and to note the various stages in the work of dissolution 
 and ruin.
 
 PART III 
 
 THE INDUSTRIAL AND AGRARIAN 
 REVOLUTION 
 
 OLIGARCHICAL GOVERNMENT IN THE 
 EIGHTEENTH CENTURY
 
 THE CONCENTRATION OF ESTATES- 
 DISAPPEARANCE OF THE YEOMEN 
 
 THE first point which strikes us is the phenomenon 
 of an aristocracy open to all and liberal in its tendencies, 
 which becomes in the end a tyrannical oligarchy. 
 
 In 1660, on the return of Charles II., the gentry, as 
 was only to be expected, were reinstated, and their posi- 
 tion made secure by statutes arid measures of rehabilita- 
 tion. The events of 1688 were in no sense a reaction 
 against this outcome of the Restoration. The revolu- 
 tion which placed William III. upon the throne had not 
 the depth of a movement which was social and popular, 
 or even national, in the widest sense of the word. It 
 was the work not even of the country aristocracy as a 
 body, but of a coalition of great nobles moved by private 
 interest or alarmed for their personal safety. This body 
 of conspirators, fortunately for themselves, found in their 
 legitimate prince a man gifted in a peculiar degree with 
 a faculty for betraying his own cause, in the monarch 
 whom they set up a man of transcendent abilities, and 
 in the nation at large the indifference and the weary
 
 138 . THE ENGLISH CONSTITUTION PART in 
 
 disappointment which succeed a protracted struggle. 
 The middle and lower classes had expected nothing from 
 a change which came upon them almost by surprise ; 
 they could reap no advantage from it. The social, 
 political, and administrative preponderance enjoyed pre- 
 viously to 1640 by the rural gentry remained intact after 
 1688. From this period, on the contrary, dates the 
 rapid development of a great change in a direction 
 favourable to the aristocracy, a change which the upper 
 classes had long contemplated and striven for. 
 
 The gentry had absorbed two centuries before what 
 remained of the old nobility, and had formed themselves 
 into a single non-exclusive upper class which rested on, 
 and was continually being recruited from, a numerous and 
 rising middle class the small landowners. The higher 
 class, by a gradual process of contraction and self-isola- 
 tion, cast off its weaker elements and those connecting 
 it with the class below it, and finally grew into that 
 haughty aristocracy which withstood the French Revolu- 
 tion. This social and political change was due to an 
 agrarian revolution. Two facts sum up the position : 
 the agricultural middle class disappeared ; the monopoly 
 of land became stricter and more oppressive. The social 
 arrangement to which England in the middle ages owed 
 her superiority was reversed. We are again confronted 
 with a historical paradox. We are wont to regard it 
 as a law of history that every aristocracy which has 
 begun to lose its original shape and consistency knows 
 no pause in its process of change, but tends, without 
 ceasing, to sink into democracy. England supplies the 
 rare example, so opposed to our ordinary experience, of
 
 SECT, i THE CONCENTRATION OF ESTATES 139 
 
 a nation imbued to a certain extent with the spirit of 
 democracy, but which has for the time reproduced or 
 permitted the reproduction of an oligarchy. 
 
 Two causes combined to hasten this metamorphosis : 
 the preponderance of the House of Commons, estab- 
 lished between 1700 and 1750, and the great mechanical 
 inventions of the end of the eighteenth century. Both 
 causes stimulated the attacks directed against the yeo- 
 men ; the second of the two diminished the vigour and 
 obstinacy of their resistance. In Walpole's time men 
 looked upon Parliament as the practical seat of power ; 
 the House of Commons attempted, if not to make or 
 unmake ministries, at least to force the hands of min- 
 isters and to call them to account for their conduct ; it 
 had an indirect voice in the disposal of places and hon- 
 ours. The Septennial Act, passed in 1716, rendered 
 Parliament less dependent on public opinion and better 
 able to pursue uninterruptedly a more consistent and 
 effective policy and a more continuous line of action. 
 The House was fast becoming the basis of Government, 
 and to gain the control of it was a natural object of 
 ambition. To do this it was necessary to manipulate 
 the constituencies, to exclude, so far as was possible, 
 independent electors, and to admit those only who could 
 be coerced or bribed without difficulty. The great 
 Whig and Tory lords, royalist squires, Indian nabobs, 
 men who had made their fortunes by commerce or 
 manufactures, vied with each other in prosecuting the 
 work of dispossession. 1 They set themselves to wrest 
 
 1 The statute of 1711, which made the possession of a con- 
 siderable landed estate a necessary qualification for a seat in the
 
 140 THE ENGLISH CONSTITUTION PART in 
 
 his estate from the hands of the small freeholder, and to 
 compel him to migrate to the towns or the colonies. In 
 1727 Lawrence, in a handbook for the use of stewards, 
 counselled the model steward to keep a sharp eye on the 
 estate lying next that of his lord, and to use his best 
 endeavours to induce the small freeholders to sell. 1 We 
 have here the evidence of a deliberate plan of expro- 
 priation ; we have also a proof that the buying up of 
 the small estates had not so far made any great progress. 
 During the last quarter of the eighteenth century the 
 object in view, which up to that time had been pursued 
 with more or less want of energy, began to offer greater 
 attractions, the temptation grew stronger, the efforts 
 made more systematic and more effectual. Between 
 1750 and 1780 the great manufacturing industries had 
 come into existence, and were attracting to the towns 
 vast populations whose sustenance had to be provided 
 for. The production of the food necessary to supply 
 their wants promised to be an operation involving con- 
 siderable profits. The rural gentry foresaw, or reckoned 
 on, the higher returns which they would obtain by the 
 application to large areas of improved methods of agri- 
 culture, and by the employment of increased capital. 
 They betook themselves with redoubled energy to the 
 task of seizing upon and appropriating the soil, and 
 again they were assisted by the industrial revolution 
 which completed the discomfiture of the class which 
 was the object of their attacks. Almost down to 1760 
 
 House of Commons, emphasized and strengthened the tendency of 
 the time. 
 
 1 Lawrence's Duty of a Steward (1727), p. 36.
 
 SECT, i THE CONCENTRATION OF ESTATES 141 
 
 his own instinct and self-preservation had to a greater 
 or less extent inspired the yeoman with the energy 
 which enabled him to cope with artifice and resist en- 
 croachment. He knew that to part with his small farm 
 was to jeopardise his means of livelihood. No other 
 prospect of any promise lay before him. Colonization, 
 commerce and manufactures were not as yet sufficiently 
 developed, or sufficiently within reach, to provide him 
 with an opening or insure him compensation for the 
 change in his position. Under Charles II. England knit 
 together her American settlements by occupying the 
 whole coast-line. Between 1740 and 1763 she added 
 to her colonial empire the choicest colonies of France. 
 A great impulse was given to emigration. Emigrants 
 were no longer, as in the preceding century, adventurers 
 seeking for gold or spices : they were settlers in search 
 of land worth cultivating. The small freeholder who 
 had turned his land into money was sure of finding on 
 some distant coast a free life and lucrative employment 
 for his energies and his capital. A little later, and the 
 great industries, with their promise of high profits, 
 attracted him to the town, and so indirectly modified his 
 unwillingness to be driven from his land ; he listened to 
 the offers made him, he yielded to the temptation, and 
 finally agreed to sell. 
 
 This second stage in the conquest of the land by the 
 gentry, subsequently to 1760, made itself felt in a 
 variety of ways. 
 
 In the first place the enclosure of commons or waste 
 lands went on increasing ; between 1710 and 1760 the 
 various Enclosure Acts had affected (in round numbers)
 
 142 THE ENGLISH CONSTITUTION PART in 
 
 335,000 acres. Between 1760 and 1845, a period twice 
 as long, they dealt with more than twenty times the 
 quantity, about seven million acres, nearly a third part 
 of the cultivated area. 1 It was chiefly the powerful 
 squire who profited by these additions to private owner- 
 ship; he was often the only interested party; his 
 interest was always preponderant. It was his lawyer 
 who drafted the Enclosure Act ; men belonging to his 
 own class carried the measure through Parliament ; his 
 own agent enforced its provisions ; he could purchase, if 
 necessary, at a very small outlay the support of the land- 
 less " houseowners " of the parish. The small free- 
 holders, who were the losers by the arrangement, shrank 
 from opposition in the shape of ruinous legal proceed- 
 ings, and were in the end forced to submit. The poorer 
 yeomen added to the profits of their land by the exer- 
 cise of some small domestic industry ; but this resource 
 was cut off by the competition of manufactures established 
 in the towns. The weaver's occupation was gone ; the 
 window pierced in the wall of his cottage, which in 
 better days had served to light him at his work, now 
 revealed nothing but his idle loom. The progress of 
 the science of agriculture, and the change in the methods 
 employed, were not less disastrous to the yeomen. The 
 commonest result was the disappearance of small farms 
 which were thrown together into great holdings. In 
 1795, Eden 2 found two farms where there had once been 
 thirty; and in 1826, Cobbett 3 found one where there 
 
 1 Shaw-Lefevre, Essays on the Land Question, p. 199. 
 
 2 Eden, State of the Poor, ii. 148. 3 Cobbett, Rural Rides 
 Ed. 1830), p. 579.
 
 SECT, i THE CONCENTRATION OF ESTATES 143 
 
 had been fourteen. Many a small owner, who had 
 passed his life on familiar terms with his work-people, 
 sank to the grade of a day labourer ; while the large 
 farmer, who had risen to the rank of a capitalist, worked 
 land and men on strictly commercial principles, and cut 
 a far bigger figure than the unpretending freeholders 
 who struggled on by his side. In the fifteenth century 
 the word " yeoman " was applied indifferently to the 
 smaller land-owners and larger farmers. In the eight- 
 eenth century, on the other hand, " farmer " was used to 
 describe both the one and the other ; the preponder- 
 ating section of the class gave its name to the whole, and 
 stamped it, so to speak, with one general mark of 
 inferiority and dependence in relation to the gentry. 
 
 In that land of great holdings, the old homesteads 
 which no longer served any purpose were rigorously 
 destroyed ; cottages were pulled down which sheltered 
 vagrant labourers who might perhaps become chargeable 
 to the parish. Goldsmith describes in touching words 
 the exodus of a people and the destruction of their 
 homes. 1 Instead of a populous and busy country side, 
 the small land-owner or the yeoman saw nothing around 
 him but a solitude. The little village which once served 
 as a market for his produce was emptied of its inhabit- 
 ants, who had migrated to the towns, driven thither by 
 the ruin of domestic handicrafts. His moral and social 
 isolation were not less hard to bear. We shall see later 
 on how the destruction of parochial self-government 
 shut him off from a sphere of every-day usefulness. 
 His neighbours, the wealthy farmers, were agricultural 
 
 1 Goldsmith, The Deserted Village.
 
 144 THE ENGLISH CONSTITUTION PART nt 
 
 speculators intent only on improving their methods of 
 cultivation by the expenditure of increased capital ; 
 they hardly spoke the same language that he did, and 
 their habits and prejudices differed altogether from his. 
 The distance which separated him from peers and great 
 land-owners was even greater. Political privileges had 
 been narrowed, and the better class of small proprietors, 
 who had been wont to aspire to public offices, were now 
 excluded from them. The end of the seventeenth, and 
 the beginning of the eighteenth century were remarkable 
 for a series of enactments which raised the standard of 
 real property qualifications and extended them to offices 
 which previously had been open to all ; the only qualifi- 
 cation, for example, which had been demanded from 
 members of the House of Commons was contained in 
 the elastic provision which required them to be " men of 
 substance." A statute of Anne, passed in 1711, required 
 that country members should hold land of the yearly 
 value of 600 ; and borough members land of the yearly 
 value 'of 300. The chief object aimed at was the 
 exclusion of merchants and manufacturers whose per- 
 sonal estate, however large, conferred upon them no 
 qualification, but the effect of the Act was to shut out 
 as well the better classes of the yeomanry. A landed 
 estate worth 40 by the year had been fixed as the 
 qualification of a justice of the peace ; the amount was 
 raised to 100 (5 and 18 George III.). Peers' sons, or 
 the heirs to peerages, eldest sons, or the heirs of land- 
 owners, whose estates were worth 600 a year, were made 
 eligible for the office without any personal qualification. 
 By certain statutes of George III. deputy-lieutenants
 
 SECT, i THE CONCENTRATION OF ESTATES 145 
 
 were to be chosen by the lord-lieutenant of the county 
 from among land-owners whose estates brought them in 
 not less than 200 yearly. The higher grades in the 
 militia were filled exclusively from the upper gentry. 
 A colonel had to be the owner of real estate worth 
 1,000 and a lieutenant-colonel of real estate worth 
 600 by the year. 1 In the same way the right of sport- 
 ing with fire-arms, which by a statute of James I. had 
 been granted to owners whose rents amounted to from 
 10 to 30, was now by a statute of Charles II. re- 
 stricted to owners whose rents amounted to from 100 
 to 150. These laws were all part of a process of dis- 
 qualification ; their tendency was to put an end to or 
 lessen the interests and the pleasures which belonged 
 to the ownership of a small country property. 
 
 Sporting rights were amongst the things which helped 
 most to emphasize and embitter the separation of the 
 two classes, and to render the position of the small 
 landowners vexatious and almost intolerable. The 
 higher property qualification, fixed by law in the eight- 
 eenth century, made sporting the exclusive privilege of 
 the peer and the squire. The yeoman was indignant 
 to find that his country life, monotonous enough already, 
 had been robbed of one of its main attractions. The 
 sight of a company of squires meeting in all the good 
 fellowship of sport brought home to him more keenly 
 the isolation and inferiority of his position ; he felt himself 
 
 1 The reconstruction of the militia on this aristocratic basis 
 dates from the first years of Charles the Second's rei^n (13 Car II., 
 c. 6; 13 and 14 Car II., c. 3 ; 15 Car II., c. 4). That basis was 
 still further narrowed in the eighteenth century. 
 
 E.U. L
 
 146 THE ENGLISH CONSTITUTION PART m 
 
 an outcast. He was hard pressed by the competition of 
 large farmers ; he was eaten up by game which he dared 
 not destroy ; harassed, worried, threatened with lawsuits 
 by the squire's agent, tempted by the high price offered 
 for his land, or attracted to the town by the rapid for- 
 tunes which he saw made there every day all these in- 
 fluences working together were too strong for him, and 
 he parted with his land ; his hedges were cut down, and 
 where his dwelling had stood stretched the silent ex- 
 panse of some great park. 
 
 The whole latter part of the eighteenth century wit- 
 nessed the decadence of the agricultural middle class ; 
 Waterloo completed their destruction. The French wars 
 had given temporary support to the yeomen ; farm 
 produce during that period commanded extreme prices ; 
 but this very fact encouraged land-owners to incur ex- 
 penses, to enlarge their mode of living, and to borrow 
 money for the improvement of their estates. The fall 
 in prices which followed the peace, aggravated as it was 
 by the abolition of the forced currency, took the greater 
 part of the yeomen unawares; they found themselves 
 hopelessly involved, and sold their land to satisfy their 
 creditors. They may be said to have reached their 
 lowest point of depression during the last years of 
 George III. The social element, which in the middle 
 ages had formed the bone and sinew of the State the 
 rural middle class had become extinct. 
 
 Three statistical results suffice to illustrate and sum 
 up this agrarian revolution. At the very time at which 
 I am writing, 10,207 individuals own two-thirds of 
 England and Wales, 330 individuals own two-thirds
 
 SECT, i THE CONCENTRATION OF ESTATES 147 
 
 of Scotland, and 1,942 individuals own two-thirds of 
 Ireland. 1 
 
 , English Land and English Landlords,Pa.Tt ii. chap. 
 3. It is not possible to trace the progress of this agrarian revolution 
 year by year, but it is not without interest to ascertain accurately 
 its final result, from which certain consequences have followed. 
 At the end of the last century, according to the generally received 
 calculation, the number of land-owners in England and Wales was 
 200,000 ; in 1861 a return, carelessly compiled and hastily inter- 
 preted, gave support to the statement that the number of landed 
 proprietors had fallen from 200,000 to about 30,000. The last 
 estimate was contested, and in the absence of the information 
 necessary to decide the point both sides applied to the Govern- 
 ment to order a fresh inquiry. The result was made known in 
 1875. If we take the gross figures, we find that the soil of 
 England and Wales, exclusive of London, was divided amongst 
 972,836 land-owners. The total, nearly a million, was consider- 
 able, and would lead us to suppose that, far from having under- 
 gone a process of concentration since the beginning of the century, 
 landed property had to a very great extent been divided and 
 parcelled out. A more careful analysis shows us that this con- 
 clusion cannot be j ustified. 
 
 It was observed, in the first place, that of the whole number 
 of proprietors, 270,000 only, in round numbers, owned more than 
 one acre, and that among them were divided 32,862,343 acres, 
 being almost the whole of the 33,013,514 acres returned. Only 
 151,000 acres remained to be divided amongst the remaining 
 700,000 land-owners, that is to say, they held on an average about 
 two-tenths of an acre apiece. It seemed clear that plots so dimin- 
 utive were not agricultural holdings, and all doubt was dispelled 
 when it was shown by calculation that each acre of land classed 
 under this heading returned an average rent of 200, while the 
 average rent of land in general was 2 per acre. The small 
 owners included in this category evidently consisted not of rural 
 proprietors but of owners of plots in the towns or suburbs let at 
 a high rental. All towns except London were, as a matter of fact, 
 included in the return. There are various reasons why a similar 
 
 L2
 
 148 THE ENGLISH CONSTITUTION PART ra 
 
 deduction should be made from the 122,000 proprietors of from 
 one to ten acres ; they held among them only 478,679 acres, being 
 less than four acres apiece. A large proportion of these plots of 
 from one to ten acres were evidently devoted to commercial 
 purposes, to warehouses, gardens, pleasure-grounds, &c., and 
 were without any agricultural or rural character whatever. 
 In addition to this their comparative annual values disclosed the 
 semi-urban character of these estates. Their total rental, their 
 quantity being less than 500,000 acres, was greater than the rental 
 of the 3,317,000 acres unquestionably rural in character which 
 made up the properties ranging from 500 to 1,000 acres. If we 
 consider that the corporations and their estates ought also to be 
 excluded, and if the necessary deduction is made in respect of 
 estates returned in more than one category, and in respect of long 
 leaseholders improperly returned as freeholders, we arrive at a 
 result which gives us no more than 150,000 owners spread over 
 an area equal to rather less than a third of France (the actual 
 figures being 57,917 square miles as against 203,866), and forming 
 part of a population equal to 70 per cent, of the population 
 of France (the actual numbers being 26,000,000 as against 
 37,000,000). We have, therefore, in England one rural land- 
 owner for (roughly speaking) each third of a square mile and for 
 every 112 inhabitants. It is difficult to ascertain whether since 
 1830 the relative proportion of the rural proprietors to the whole 
 population has declined or increased : it is however impossible 
 that any considerable change can have taken place since that 
 date, and we may in any case take it as established that between 
 the end of the sixteenth century and the first thirty years of the 
 nineteenth century, the proportion had fallen in the ratio of six 
 to one.
 
 II 
 
 THE CIVIL, FISCAL, AND ECONOMIC PRIVI- 
 LEGES OF THE LANDED GENTRY 
 
 WE can now picture to ourselves an oligarchy of 
 landlords who had divided the country between them. 
 There lies before us an unbroken succession of great 
 estates, with no small freehold to mar its continuity, 
 and scattered here and there, like islands in a sea, a few 
 towns where all that was left of population and wealth 
 showed a growing tendency to concentrate. The gentry, 
 as was natural, showed great anxiety to preserve these 
 latifundia the source of their wealth and the foundation 
 of their influence in the continuous possession of the 
 same families by transmitting them undivided from 
 generation to generation through a succession of sole 
 owners. Real estate was indeed, under the common 
 law, subject to the rules of primogeniture in cases of 
 intestate succession ; but the owner of real estate 
 possessed both freedom of alienation inter vivos and, 
 subject to a partial restriction which was before long 
 removed, 1 the right of testamentary disposition. As 
 
 1 In 1660. By Stat. 12 Car II., c. 14.
 
 150 THE ENGLISH CONSTITUTION PART in 
 
 the law stood at the beginning of the seventeenth 
 century a family estate was liable to a continual risk of 
 subdivision ; the shortcomings of the law in this respect 
 were however made good by the system of family 
 arrangements known under the name of " settlements." 
 During the Civil War the ingenuity of Orlando 
 Bridgeman, evolved this contrivance in its full perfection ; 
 it was adopted in the interest of their class by all the 
 land-owning families, and from that time forward the 
 custom has been adhered to with singular tenacity. By 
 the terms of these " settlements " the successor to an 
 estate surrendered beforehand the full ownership which 
 would one day accrue to him ; he accepted thenceforth 
 the position of a mere tenant for life in relation to his 
 eldest son, who, as a matter of fact, might be still 
 unborn, and by so doing surrendered the right of 
 devising, selling, mortgaging, or even leasing for any 
 longer time than his own life, the estate which he 
 was compelled to hand on intact and unencumbered to 
 the remainderman. This splitting up of the rights of 
 ownership rendered it almost impossible for the pro- 
 prietor of a settled estate to alienate it, or for his 
 creditors to seize it. It is true that the remainderman, 
 when the previous interests had fallen in, enjoyed the 
 rights of ownership to their full extent and could make 
 a valid disposition of the property. Precautions were 
 however taken to prevent this. The expectant owner 
 had, during the lifetime of the tenant for life, no claim 
 to any part of the income, and when he was of an age to 
 need a provision, more especially at the time of his 
 marriage, temptations were placed in his way. He was
 
 SKCT. ii CIVIL PRIVILEGES OF LANDED GENTRY 151 
 
 easily prevailed upon to forego future in exchange for 
 present benefits, such as an annuity or a sum to be 
 settled on his wife, and to accept in his turn the position 
 of tenant for life in relation to his own son born or not 
 yet born as the case might be. In this manner the right 
 to dispose of a family property was being constantly 
 relegated to a future generation, and the estate passed 
 through the hands of a succession of life-tenants 
 free from the risk of disintegration. According to the 
 evidence collected by a parliamentary inquiry the 
 estates subject to settlement, and so rendered prac- 
 tically inalienable include even at the present time 
 more than two-thirds of the land in England and 
 Scotland. 1 
 
 This state of things, be it observed, is not due to the 
 law. Parliament, and still more the courts, have ever 
 regarded perpetuities with disfavour. The latter have 
 been strenuous in asserting the principle that a 
 testator's or settlor's power of disposition cannot ex- 
 tend beyond the life of a person or persons now living 
 and a further period of twenty-one years. This system 
 of limited settlement, recognized by law, is operative at 
 most during about eighty years ; but upon it has been 
 grafted a system of unlimited settlement founded on 
 voluntary agreement, an ingenious device contrived 
 towards the end of the eighteenth century in the inter- 
 est of a particular class and adopted continuously 
 by successive generations. There has been practically 
 a re-enactment in modern days of the feudal law 
 
 1 Brodrick, English Land and Eiiylixh Landlords, p. 100.
 
 152 THE ENGLISH CONSTITUTION PART m 
 
 De donis conditionalibus, which legal ingenuity in 
 the middle ages was so skilful to evade, and which 
 was formally abrogated by the legislation of the 
 Tudors. 
 
 A few highly-placed dignitaries can afford to despise 
 immunity from civil and fiscal burdens as a purely 
 economic advantage ; the pleasures and profits of political 
 power render them indifferent to inferior gains. On 
 the other hand, a numerous class, the adherents of the 
 men who are actually at the head of affairs, rarely deny 
 themselves such exemptions or emoluments as circum- 
 stances place in their way. The English land-owners 
 formed no exception to the rule. The opinion current 
 in France since 1789 holds England to have existed as 
 the land of privilege from very early times. Looking 
 only at the English peerage, and comparing it with the 
 nobility of other countries, the expression is inaccurate ; 
 it is to a great extent justified if it is used of the 
 landed proprietors as a class, and especially of the 
 landed proprietors at the end of the eighteenth century. 
 Strong proof that this was so is afforded by the fact 
 that in no other country than England have the rules 
 of law applicable to real property, and those applicable 
 to personal property, been kept so distinct, nay, so 
 opposed to each other ; that this, moreover, continued 
 to be the case even when the latter form of wealth 
 had vastly increased, when it appeared not merely in 
 the shape of casual increment or surplus income, but 
 had already become an essential and constant element 
 of every private fortune. Class interests prevailed 
 over natural forces and prevented the union of the
 
 SECT. IT CIVIL PRIVILEGES OF LANDED GENTRY 153 
 
 two branches of law, with the result that all the 
 favours of the legislature were reserved for realty 
 alone. 
 
 This legislative partiality, as might be expected, 
 became even more marked in the eighteenth century. 
 Down to 1832 a continuous series of provisions protected, 
 strengthened, and extended the civil, fiscal, and economic 
 privileges attached to landed property. As regards 
 civil privileges, we have seen that, in cases of intestacy, 
 real estate was governed by the rule of primogeniture, 
 while personal estate was equally divided. The strict 
 settlements of the eighteenth century were, it is true, 
 applicable to property of both descriptions ; but their 
 main object was to safeguard the integrity of landed 
 estates against the caprice or extravagance of their 
 owners. Creditors had no claim upon settled land, and 
 their position was very little better with regard to land 
 which was free from settlement ; in neither case could 
 they sell it ; they could only appropriate a part of the 
 income in or towards the satisfaction of their demands. 
 The fiscal privileges attaching to land were not less 
 remarkable. It is a complaint of the Radical party at 
 the present day, that at the period of the abolition of 
 the charges affecting military tenures affecting, that is 
 to say, certain descriptions of landed estates the con- 
 sequent loss of revenue was made up by excise duties 
 payable by the whole community. It is not altogether 
 without reason that this charge is made. It is equally 
 clear that real estate has been favourably treated as 
 regards the Land Tax of 1602. This tax, levied in the 
 first instance at varying rates, was finally fixed in 1798
 
 154 THE ENGLISH CONSTITUTION PART m 
 
 at the apparently considerable rate of four shillings in 
 the pound ; it has, however, from the first been assessed 
 upon the absurd basis of a valuation made in the reign 
 of Edward I. The personal property of a deceased 
 person is subject to probate duty on the grant of 
 probate, that is, on the official confirmation of the will, 
 or to administration duty on the grant of letters of 
 administration, that is, on the appointment by the 
 court of some one to administer the estate. Real 
 property is not subject to this duty. In 1780, Pitt 
 established succession duty in addition to probate duty ; 
 again real property was spared and left untouched by 
 the statute. Even in 1853, when this exception was 
 done away with, it was provided that the succession duty 
 to be paid upon realty should be calculated on the value 
 of the successor's interest considered as a life annuity 
 and having regard to his age ; also that it might be 
 discharged in eight half-yearly instalments ; while in the 
 case of personalty it was calculated according to the 
 capital value and discharged in one lump sum. This, 
 as a matter of fact, is the system in force at the 
 present r time. 1 In 1880, Mr. Gladstone calculated 
 that the amount of succession duty paid by the 
 farmer or the merchant bore the proportion of 
 three to one to the amount paid by the landed pro- 
 prietor. 
 
 Economic privileges were striven for by the land- 
 owners with equal anxiety ; it was their constant object 
 
 1 Brodrick, p. 251. Mr. Childers's last budget before the fall 
 of Mr. Gladstone's Government included a modification of this 
 system.
 
 SECT, it CIVIL PRIVILEGES OF LANDED GENTKY 155 
 
 to secure profitable markets for the produce of their 
 estates, and, above all, to compel the rest of the nation to 
 purchase from them at fancy prices. It was they who 
 owned the bulk of the forests, and in 1750 they combined 
 with the tanners to prohibit the importation of bar iron 
 from the colonies, their fear being that less iron might 
 be smelted in England and the consumption of wood 
 decrease in consequence. They were producers of wool, 
 and in concert with the cloth manufacturers they 
 imposed an excise duty on printed calicoes, absolutely 
 prohibiting their importation between 1721 and 1774. 
 This excise duty, which was renewed in 1774, was not 
 removed till 1831. They produced cattle, butter, and 
 cheese, and immediately after the Restoration, between 
 1660 and 1685, the importation from Ireland of live- 
 stock, meat, and dairy produce was forbidden by law. 
 A little later, in 1699, another enactment prohibited 
 the exportation of Irish wool elsewhere than to England ) 
 and prohibitive duties were imposed upon Irish woollen 
 goods. The landlords were interested in the production 
 of cereals, and in 1682 we find the first duty placed on 
 imported corn ; in 1690 the first bounty given to ex- 
 ported corn. The corn laws were suspended during a 
 period of from thirty to thirty-five years down to the 
 end of the eighteenth century ; they were revived in 
 1804, and were carried to still greater lengths in 1815 ; 
 they began to be relaxed in 1822, but did not finally 
 disappear till 1846. 
 
 The French nobility struggling for pensions and 
 places showed no more greed than did the English 
 gentry in devising measures favourable to themselves,
 
 156 THE ENGLISH CONSTITUTION PART in 
 
 in class legislation, as they themselves call it. But in 
 England there was another side to the picture. The 
 same men who evaded national burdens were eager to 
 take upon themselves local burdens the relief of the 
 poor, measures of police, the repair of roads and bridges, 
 and other charges of a like nature. Their disinterested 
 conduct in this respect has been greatly extolled ; but if 
 we examine further into the question we shall find that 
 the facts no longer surprise us, though they continue to 
 excite our commendation. The discharge of those 
 burdens by the land-owners was the compensation and 
 the excuse for the maintenance of those great estates 
 which locked up land in perpetuity and made it im- 
 possible for the poor man to possess a home ; still more 
 was it the price paid for absolute rule in the counties. 
 Systematic expropriation had left the country gentlemen 
 the only class possessed of any means in the rural 
 districts. The State alone could have lightened their 
 burdens, but State assistance would have justified State 
 interference. The government which supplied the funds 
 would have had an incontestable right to superintend 
 their expenditure, and would little by little have gained 
 a hold on local administration. It is in this direction 
 that things are now moving, but the landlords averted 
 the danger for a time by taking the whole charge upon 
 themselves. It is to be observed, moreover, that if the 
 land-owners defrayed the local taxes they themselves 
 collected them and disposed of the proceeds absolutely 
 and irresponsibly. Men are more inclined to give when 
 they retain the control of their contributions and do not 
 see them pass into other hands to be expended on some
 
 SECT. II CIVIL PRIVILEGES OF LANDED GENTRY 157 
 
 remote and ill-defined object. Their sacrifices in this 
 direction supplied the great land-owners with a fresh 
 source of prestige, an instrument of power and a means 
 of resisting the interference of the State.
 
 Ill 
 
 THE POLITICAL AND SOCIAL PRIVILEGES 
 OF THE LANDED GENTEY 
 
 THE RULE OF THE OLIGARCHY 
 
 WE have drawn a picture of these hundred and fifty 
 thousand country gentlemen owning great estates which 
 they could not divide and wielding absolute authority 
 throughout the country districts. The law lent them 
 its support, the treasury dealt tenderly with them, the 
 regulations of the customs and inland revenue protected 
 their produce against competition. The word "land" 
 possessed apparently some sacred quality, and privileges 
 seem to have attached themselves to it of their own 
 accord. In other countries it was birth that brought 
 privileges with it ; in England it was " land " which 
 attracted them and which in a manner forced their 
 bestowal by the legislature. In order to realize the 
 extent to which this system was carried, we must 
 consider the great English land-owner not only in 
 relation to his surrounding circumstances but also in 
 his dealings with his fellow-men.
 
 SECT, in SOCIAL PRIVILEGES OF LANDED GENTRY 159 
 
 Who were his neighbours ? Tillers of the soil, and 
 almost all of them his tenants ; the small agriculturist 
 who farmed his own land had been, as we have seen, 
 swept away. The legislation of the Tudors, ever careful 
 of the interests of the yeomanry, had protected the 
 tenant-farmer against the abuse of the exceptional 
 power to seize his goods and chattels which his land- 
 lord enjoyed at common law ; the eighteenth century 
 only increased still further the hardships incident to the 
 law of distress. Up to 1700 it was customary in 
 England to grant leases for life or for long terms of 
 years ; during and at the end of the following century a 
 custom grew up of inserting a clause in agreements to 
 make them determinable at the end of any year. 
 Instead of tenants who were assured of ten, fifteen, or 
 twenty years' possession, and felt almost the independence 
 of ownership, there remained for the most part mere 
 tenants at will, whose precarious occupation lay at the 
 mercy of a six months' notice to quit. This servile 
 relationship was softened on the part of the master by a 
 high conception of public and private duty, while the 
 servant on his side grew to look upon it as involving- 
 moral obligations, as a quasi-feudal tie ; but though 
 honourable in form the relationship remained sub- 
 stantially a servile one. 
 
 Next in order to the farmer comes the agricultural 
 labourer. The formation of great farms and the increase 
 of pasture-lands lessened year by year the demand for 
 hands in the country districts, and the peasants, attracted 
 by a higher rate of wages, migrated to the towns. It is 
 to be observed that it was the strongest, the healthiest,
 
 160 THE ENGLISH CONSTITUTION PART m 
 
 and the most energetic who were affected by the 
 movement ; only the idle, the incapable, and the weakly 
 remained behind in the fields. It was at once a process 
 of selection in an inverse sense and of actual diminution 
 in numbers. 1 
 
 Adverse conditions of existence reduced this degraded 
 remnant of their class to lower misery still. The great 
 landlords, joining field to field, became in many cases 
 owners of the whole parish, and under the provisions of 
 enclosure acts added even the common lands to their 
 estates. The labourer lost the cottage and paddock 
 there which he had occupied rent free, and the right of 
 pasture for his cow. He became the tenant in almost 
 all cases the weekly tenant of the squire. He might 
 find himself at seven days' notice without wages or 
 shelter from the weather. In most instances, indeed, 
 shelter was not to be found. From the time of Charles 
 II. the local authorities had enjoyed a primd facie right 
 to expel any person coming in search of work who was 
 likely in their opinion to become chargeable to the 
 parish. The land-owner however was not content with 
 this safeguard ; owning the soil of the whole parish he 
 pulled down every hovel and forbade the erection of any 
 new building. The parish was " close " ; the " clearance " 
 and, so to speak, the sweeping out of the human rubbish 
 was complete. The country resembled a vast park, all 
 trees and grass, without a building to break the line of 
 
 1 In their evidence given before the Commission of 1879 upon 
 the agricultural depression, farmers complained that the younger 
 labourers were moving into the towns and that only old men were 
 left upon the farms.
 
 SECT, in SOCIAL PRIVILEGES OF LANDED GENTEY 161 
 
 the horizon, while the dispossessed labourers sought a 
 shelter in the nearest parish which was still left " open." 
 They crowded together in unhealthy dwellings too 
 small to accommodate them. " Slums " were not confined 
 to the great towns ; they became a reproach to many a 
 country village. 1 
 
 We have, up to this point, treated of the country 
 gentleman's position upon his own estate, and we have 
 seen that within its boundaries his rule was absolute 
 over men and things. His authority within his district 
 was not less firmly established. In the county too he 
 and his fellows were supreme, and finally, the country 
 gentlemen as a class enjoyed in Parliament and in 
 the State an equally marked preponderance. Near his 
 mansion lay the hamlet or the small country town, both 
 soil and houses being in many cases his property. He 
 was free to reject any tenant who was not to his fancy, 
 to prevent the erection of new buildings, practically 
 to forbid the sale of intoxicating drinks, to establish 
 special economic conditiohs within his little kingdom 
 and to enforce compliance, under threat of eviction, 
 with his own code of morals, particularly in the matter 
 of " temperance." It was in his power to curtail even 
 freedom of religion by refusing, as has happened more 
 than once in Wales, to grant a convenient plot of land 
 
 1 In 1775, under George III., was repealed the statute of 
 Elizabeth, which provided that no cottage should be built in the 
 country unless there were added to it four acres of land, and that 
 no cottage should be lived in by more than one family. This 
 prohibition prevented the occupation of lodgings by paupers. See 
 The Poor Law, W. Fowle, p. 68. 
 
 E.C. M
 
 162 THE ENGLISH CONSTITUTION PART in 
 
 as a site for a chapel. 1 In some few cases the soil 
 upon which a great town was built was some land- 
 owner's private property ; 2 and he of necessity would 
 have a considerable voice in the internal economy of 
 the place. In many instances it was a great land- 
 owner who appointed the incumbents of the parishes 
 in his own neighbourhood. His right of presentation 
 was inherited from the original founder of the church, 
 or acquired by purchase from some neighbour or 
 from the Crown. At the present day, of 13,305 
 ecclesiastical benefices in England, 8,151 are the pro- 
 perty of lay patrons : these constitute so many pieces 
 of valuable preferment to be bestowed by the country 
 gentlemen upon their younger sons or adherents. Thus 
 to the authority of the squirearchy in temporal matters is 
 added the prestige of influence in matters ecclesiastical. 
 
 Each county had its militia, and we have seen how- 
 a considerable real property qualification closed the 
 higher ranks in it to all but landed proprietors. They, 
 at the annual trainings, commanded a regiment com- 
 posed largely of their humbler neighbours small owners, 
 if there were any left, copyholders and tenant farmers 
 whose sense of their own inferiority was intensified by 
 habits of military obedience. 
 
 The squirearchy had at its command a final instru- 
 
 1 See the provisions of the "Worship Sites Bill brought in by 
 Mr. Broadhurst, May 22, 1885, and thrown out after a short 
 debate, its object being to provide for the compulsory granting of 
 sites. 
 
 2 For instance, Tynemouth and Eastbourne have been built 
 upon land belonging respectively to the Dukes of Northumberland 
 and Devonshire.
 
 SECT, in SOCIAL PEIVILEGES OF LANDED GENTRY 163 
 
 ment of power the most effectual and the most unfailing 
 of all, I refer to the administrative, judicial and executive 
 powers which were placed in their hands as county 
 magistrates. The property qualification required, which 
 had been more than doubled during the reign of Anne, 
 and the right of nomination enjoyed by the lord- 
 lieutenant (generally some great noble), secured the 
 office of the magistracy, in almost all cases, to wealthy 
 landowners. I have shown how numerous were the 
 powers conferred, even in the preceding century, on these 
 voluntary functionaries, the Justices of the Peace. As 
 the needs of a progressive community grew more and 
 more imperative and complicated, fresh legal provisions 
 were created which required agents to carry them out 
 and new penalties were devised which needed an 
 authority to enforce them. The Justices of the Peace 
 already performed this double task, and each newly - 
 created duty was added, by a natural process, to duties 
 qf a similar character which they had long been accus- 
 tomed to discharge. It is not my intention to trace the 
 limits or to specify the details of their jurisdiction. It 
 comprised within itself and concentrated in the hands 
 of each of its agents portions of all those powers which 
 it is the object of French legislation to keep distinct. 
 The English magistrate united in his own person not 
 only the characters of administrator and judge, but 
 certain of the duties of every local functionary and 
 public body as they exist in France. It was he who 
 enjoyed to a greater or less extent some of the attri- 
 butes of a " preset," " sous-preTet," " conseil de preTec- 
 ture," " conseil general," " conseil d'arrondissernent," 
 
 M 2
 
 164 THE ENGLISH CONSTITUTION PART in 
 
 "juge de paix," "juge d'instruction," " commissaire de 
 police," and " maire." l The point of most interest to be 
 observed here is the addition which the eighteenth 
 century was still able to make to his sphere of activity 
 and his means of influence, and the consequently higher 
 degree of independence and effectiveness which he 
 enjoyed in the exercise of his office. 
 
 We are at once struck with the fact that the duties 
 of the magistracy, but a short time before fragmentary 
 and unorganized, had been extended, classified and 
 reduced to a system. Formerly there had been the 
 justice who sat alone, the petty sessions of the district, 
 and the greater sessions of the county. At the time oi 
 which we speak there were in addition special sessions 
 held periodically for the transaction of certain matters 
 of administration the appointment of parish officers, 
 the licensing of public- houses, questions relating to the 
 repairs of highways, &c. Formerly, appeals had been 
 carried to the royal courts, but at the time of which we 
 speak the quarter-sessions had become the ordinary 
 court of second instance and the court of final decision 
 in almost all cases where an appeal lay from petty 
 sessions ; appeals were thus carried from magistrates to 
 magistrates again. The procedure and composition of 
 these tribunals is not less worthy of attention. In the 
 eighteenth century summary jurisdiction without the 
 
 1 I have attempted elsewhere to describe the magistrates in 
 the complex variety of their local duties. I have only to refer in 
 this place to the peculiar conditions of arbitrary irresponsibility 
 under which they exercised their powers. Annales de VEcole des 
 Sciences politiques, vol. i. p. 179.
 
 SECT, m SOCIAL PEIVILEGES OF LANDED GENTRY 165 
 
 intervention of a jury was very considerably extended : 
 it was the ordinary course of procedure in cases where 
 the magistrate sat alone and in petty sessions. Thus 
 with respect to an increasing number of small offences 
 and minor matters the traditional guarantee of sound 
 justice was cast aside. A far firmer hold is obtained 
 upon the inhabitants of each district by those who 
 exercise within it from day to day a many-sided juris- 
 diction than by the courts which take cognizance of 
 important crimes. It was the country gentleman who 
 with patriarchal irresponsibility exercised this juris- 
 diction. The situation was rendered still graver by 
 the fact that another and very effectual safeguard had 
 practically been done away with in the case of those 
 sessions at which the magistrates sat together. Before 
 the eighteenth century it had been customary to include 
 the names of a certain number of trained lawyers in 
 the commission of the peace for the county, and it was 
 arranged that one of them should be present on all 
 occasions to assist his colleagues, whose only qualifica- 
 tion for their office was the possession of a landed estate. 
 In the eighteenth century this rule was no longer 
 observed : the skilled professional element was elimi- 
 nated, and with it disappeared the last feeble influence 
 which still acted as a check upon class spirit and class 
 interests. 
 
 Thus in innumerable cases there was no jury to 
 secure an impartial consideration of facts, and 110 trained 
 lawyer to secure an intelligent application of the law. 
 It would have been natural to suppose that to make up 
 for this state of things the right of appeal to the
 
 166 THE ENGLISH CONSTITUTION PART in 
 
 superior tribunals would have been developed with 
 jealous care. In the eighteenth century the very con- 
 trary was the case. Down to the time of Charles II. 
 the procedure of certiorari, under which the matter in 
 question was transferred from the justices to the 
 superior courts, had remained applicable in all cases.- 
 In 1672 this safeguard was done away with in certain 
 matters relating to the revenue, and it was afterwards 
 abandoned in questions relating to the highways. At 
 the same time recourse to this remedy was rendered 
 more difficult by multiplying the necessary legal for- 
 malities. (5 George II., ch. 19.) In most of the sub- 
 sequent statutes a clause barring the operation of the 
 writ of certiorari was inserted, so to speak, almost as 
 a matter of course. It seems to have been the rule to 
 make the decision of quarter-sessions final in all cases 
 in which questions relating to real property or the 
 public order were not involved. It amounted practically 
 to giving full discretionary power in cases where the 
 judge in his own interest and in that of his class 
 might be both prejudiced and partial. 
 
 Finally, it is to be observed that the magistrates were 
 protected in the exercise of their functions by a series of 
 enactments equivalent in their effect, if not similar in 
 their substance, to Article 75 of the French Constitution 
 of the year VIII. Unlike French officials they were 
 held liable to answer in damages for negligence or gross 
 blunders this being the English principle but all right 
 of action against them was barred after the lapse of six 
 months ; if they pleaded lona fides, they had prima facie 
 a good answer to any proceedings, and this same plea of
 
 SECT, m SOCIAL PRIVILEGES OF LANDED GENTRY 167 
 
 bona fides exempted them from all responsibility for 
 mere irregularities of procedure. 
 
 With regard to such civil and criminal proceedings as 
 come before the superior courts, England has been for 
 a long period in advance of all other European nations. 
 The ancient safeguards of property and liberty (the writ 
 of Habeas Corpus, trial by jury, the examination of 
 witnesses in open court) subsist intact, and are jealously 
 maintained by public opinion. With regard to adminis- 
 trative matters and minor offences, that is to say, in 
 cases where no sufficient general interest exists to 
 awaken public opinion, a single phrase describes ac- 
 curately the powers of the county magistracy: 
 Absolutism shielded by impunity. 
 
 It is astonishing that this system has been tolerated 
 for so long ; it is more astonishing that all classes have 
 united in praising it. All voices indeed are not audible 
 in history : the successful and the strong utter their 
 opinions freely ; the oppressed are too prudent or too 
 weary to speak out. To find trustworthy evidence and 
 to form upon this point a conclusive opinion, we should 
 have to call as a witness many a poor wretch who sleeps 
 in some village churchyard. This reservation weakens 
 but does not destroy the strong presumption to be 
 inferred from a general concert of opinon in favour of 
 the rule of the country gentleman. All those whose 
 judgment has come down to us agree in paying a high 
 tribute to the character of the upper classes in England. 
 Still, although absolutism may possibly be harmless, it 
 remains absolutism nevertheless. " My father," says 
 Mr. Milbank in a novel of Disraeli's, " has often told mo
 
 168 THE ENGLISH CONSTITUTION PART m 
 
 that in his early days the displeasure of a peer of 
 England was like a sentence of death to a man." l The 
 peer perhaps might never avail himself of this excessive 
 power, but without even being actively employed the 
 existence of such power could not fail to be felt and the 
 dread of it to weigh heavily upon the minds of men. 
 
 Thus the county magistrates were subject to the 
 control of no superior authority. The legislature 
 assumed their absolute integrity, and the State transferred 
 its powers to them spontaneously. The extension of 
 their authority in a downward direction was unlimited ; 
 parochial autonomy was done away with, and the parish 
 made subject to their supervision. This was perhaps 
 the most important feature in that revolution in favour 
 of oligarchy which the eighteenth century brought 
 about. The decline of parochial self-government can be 
 traced from year to year. Each parish had from very 
 early times chosen its own constable and its surveyors 
 of highways, while the overseers of the poor were 
 appointed by the magistrates, but from a list of names 
 drawn up by the parish. It was these overseers who 
 regulated the relief given to the paupers, and it was 
 they who apportioned the incidence of the poor rate 
 amongst the various ratepayers ; the justices could only 
 disallow a rate which was illegal on the face of it. It 
 was thus left to each parish to fix the amount of its own 
 burdens and to get in the contributions through its 
 proper officers. By the end of the eighteenth century 
 the greater part of these prerogatives and privileges had 
 disappeared. The appointment of parish constables 
 1 Coning sby, ii. 41.
 
 SECT, in SOCIAL PRIVILEGES OF LANDED GENTRY 169 
 
 was given to the justices, and subsequently to 1691 no 
 relief could be given to paupers whose names did not 
 appear on the annual parish list except with the sanction 
 of a magistrate or under an order of quarter-sessions ; 
 the overseers had no authority to act independently. 
 During the whole of the eighteenth century the magis- 
 trates greatly misused their powers, and were lavish of 
 relief to every applicant. After 1801 they were em- 
 powered not only to disallow a rate made informally, 
 but to amend it in detail and to vary the lists of those 
 rated and the amount to be paid by each. As from that 
 time forward the poor rate showed a tendency to become 
 the type and the common model of all direct taxation, 
 the power of modifying it became a matter of great 
 importance. This state of things was strangely at 
 variance with those principles which were most firmly 
 established by custom and most jealously guarded by 
 public opinion. It was left to a body of men, chosen by 
 no process of election, and subject to no control at the 
 hands of those interested, to increase to any extent the 
 charge upon the parish, and to portion out to each 
 householder his share of a burden which their own in- 
 discriminate almsgiving might aggravate indefinitely. 
 
 Still, in spite of all this spoliation the parish still 
 existed ; it remained to reduce it to nothing, without 
 formally decreeing its abolition, and to minimize in it 
 all elements of a separate local existence. In 1782 the 
 justices were authorized to unite several parishes and to 
 compel them to contribute together for the support of 
 paupers. These unions speedily covered a considerable 
 proportion of the kingdom. Each union was managed
 
 170 THE ENGLISH CONSTITUTION PART m 
 
 by a committee of " guardians " acting under the 
 supervision of " visitors " ; both were appointed by the 
 justices, and the visitors were generally chosen from the 
 class to which the justices themselves belonged. The 
 tendency from the end of the last century was to make 
 the system of poor relief, which had formed the object 
 and motive of all parish organization, applicable to 
 wider areas. Later still, when other measures had to 
 be carried out, notably those relating to sanitation, 
 districts more extensive than parishes were formed for 
 the purpose. It is these districts which at the present 
 time supply the unit of administration, 1 and lie 
 ready to be utilized for the working of each new local 
 institution. 
 
 Thus the inhabitants of the parish saw themselves 
 deprived to an ever greater and greater degree of every 
 common interest and of every opportunity of continuous 
 and united action. It is possible that these small com- 
 munities, drained of their yeomen by the concentration 
 of estates, could no longer have furnished individuals 
 qualified for the performance of local duties. This was 
 indeed a reason and a justification for the transfer of 
 those duties to larger districts containing a greater 
 number of capable persons ; but on the other hand, it 
 was certain that a redistribution like this would com- 
 plete the ruin of local autonomy, and give a fresh 
 impulse to the exodus of the smaller landowners who 
 were deprived of the interest which belonged to the 
 
 1 The system of primary education and of highway manage- 
 ment furnish the only exceptions, both institutions being, for the 
 most part, localized in the parishes.
 
 SECT, m SOCIAL PRIVILEGES OF LANDED GENTRY 171 
 
 uncontrolled discharge of active and responsible functions 
 In this manner was swept away the last trace of those 
 minute and vigorous democracies which owed their 
 organization to the Tudors. The eighteenth century 
 extinguished and closed those numberless foci of the 
 spirit of citizenship, those nurseries of a class which had 
 long furnished one of the sturdiest elements of the 
 English community. When the nineteenth century 
 began it was no longer popular self-government by 
 parishes, but aristocratic self-government by counties, 
 which handed on the name and tradition of local liberty. 
 Parochial franchises had been supplanted by class 
 privileges ; an oligarchy had mastered and governed 
 despotically the whole of rural England. 
 
 One chief privilege served to unite and perpetuate 
 all these privileges of minor importance ; the country 
 gentlemen were alone, or almost alone, in the enjoyment 
 of parliamentary representation and of a voice in the 
 legislature. It was only at their good pleasure that 
 legislative benefits were conferred upon the rest of the 
 community. The House of Lords was composed almost 
 entirely of landowners. An ample revenue derived from 
 land was the first qualification required on the part of 
 future peers, and, speaking generally, only those who 
 possessed it could secure a patent of nobility. The 
 Lower House was recruited almost entirely from among 
 the country gentlemen, as they alone possessed the 
 necessary real property qualification. A great number 
 of electoral boroughs, the so-called " pocket boroughs," 
 belonged to them ; as they owned botli soil and houses, 
 the inhabitants who were their tenants at will were
 
 172 
 
 ready to vote as the steward bade them. The country 
 gentlemen devised, sold, or exchanged with their friends 
 the shares which they held in the government of the 
 country; they even succeeded in buying out and out 
 the venal corporations of the ancient cities. The great 
 centres of energy and enterprise which manufactures 
 had created might prefer to elect men from among 
 themselves, men who had made their fortunes ; but they 
 were without separate parliamentary representation ; 
 they were merged in the general mass of the country. 
 Thus in both Houses and in the government the landed 
 aristocracy had no rival to fear, and political parties 
 were only formed by the division within itself of that 
 all-powerful class. At the beginning of the nineteenth 
 century, of 658 members of Parliament, 487 were virtu- 
 ally nominated by peers or wealthy squires. Sanford 
 enumerates 110 members who, between 1832 and 1867, 
 sat as the nominees of thirty-one great families, the 
 names of which he gives in his Livre d'Or. The 
 political weight of these thirty-one families was equal 
 to that of London and the forty towns next to it in size, 
 equal to that of Ireland, double that of Scotland. The 
 same class, as was only natural, retained in its own hands 
 the government which depended on the Houses, and the 
 public offices which depended on the government. In 
 Pitt's ministry of 1783 all his colleagues were peers, and 
 he himself was the son of a peer. Embassies, high 
 military commands, colonial governorships, ecclesiastical 
 dignities and preferments, all the prizes at the disposal 
 of the State, were distributed amongst the landed aris- 
 tocracy, and became in their hands a means of further
 
 SECT, ni SOCIAL PRIVILEGES OF LANDED GENTRY 173 
 
 advancement. The parties which succeeded alternately 
 to power, Whig nobles or Tory nobles, each secured 
 their share of the spoil. The rest of the community 
 waited their turn in vain ; their day never came ; nothing 
 fell to their lot. If ever a privileged class existed, it 
 was the English aristocracy during the eighteenth cen- 
 tury. It constituted by itself that populus Anglicus 
 which monopolized as of right public offices and honours, 
 as opposed to the rest of the nation, the plebs, who were 
 only admitted to it in certain exceptional cases and after 
 a period of probation more or less prolonged in the 
 ranks of the landed gentry.
 
 IV 
 
 THE OLIGARCHY AND THE PARLIAMENT- 
 ARY SYSTEM 
 
 I HAVE shown that the English Constitution had in 
 the eighteenth century passed through nearly all its 
 stages of actual progress. There is one fact in connec- 
 tion with this which has never attracted sufficient 
 notice, namely, that if the ruling class in England had 
 not, as we have seen, been transformed into a narrow 
 oligarchy, the prototype of parliamentary government 
 as known to us would never in all probability have taken 
 substance and shape ; and as all civilized States have at 
 one time or another borrowed from England the main 
 features of their constitutions, it is possible that the 
 political destinies of the world might have been very 
 different from what they are. Democracy succeeded 
 indeed in adapting and reproducing, not without diffi- 
 culty, the parliamentary system, but it was only after a 
 perfect model had been through other agencies built up 
 for imitation. An aristocracy alone could create such a 
 system, could mould its customs and form its traditions. 
 
 The eighteenth century witnessed the gradual de- 
 velopment of what was to be the chief motive power,
 
 SECT, iv THE OLIGARCHY 175 
 
 the mainspring of the whole machine ; namely, the 
 interconnected existence of two great, compact and dis- 
 ciplined parties, who, as either of them commanded a 
 majority, assumed power by turns, the king meanwhile 
 being reduced to the position of a mere spectator. 
 These two parties took the shape, in the first instance, 
 of opposing coalitions of powerful families who, thanks 
 to " pocket boroughs " and " rotten boroughs," could 
 dispose of some hundreds of seats in Parliament, and so 
 ensure the return to the House of Commons of a strong 
 body of their own adherents. The representatives of 
 the mass of the people formed an insignificant minority. 
 The English government at the time of which we speak 
 was like some trading company in which a few great 
 capitalists have acquired nearly all the shares and 
 formed two rival " rings" ; their parliamentary representa- 
 tives held their " proxies " ; their " general meetings " 
 took place in the House of Commons; they overawed 
 or bought up the few independent " shareholders," 
 and contended with each other concerning the ap- 
 pointment of "directors," or in other words, of ministers. 
 That one of the two factions which carried the majority 
 of votes could, if its members worked together, render the 
 position of ministers untenable, and this is what invari- 
 ably took place except when it happened that the ministers 
 and the leaders of the dominant faction were identical. 
 Ministries were thus perpetually being formed of the 
 chiefs of that party which was in a majority in the 
 House of Commons ; the king's influence was not 
 powerful enough to maintain any but these in office. 
 There was no reason why the faction which had attained
 
 176 THE ENGLISH CONSTITUTION PART m 
 
 power should share the fruits of it with its rivals ; it 
 had not too many places to bestow upon its own ad- 
 herents and friends. Thus it came to pass that cahinets 
 were composed altogether of men of one political hue. 
 Moreover, the constant menace of an ever-present foe, 
 ready at any time to attack the citadel if he suspected 
 the garrison of discord or disaffection, helped to enforce 
 strict obedience on the part of the ministerial rank and 
 file towards their leaders, and on the part of those 
 leaders towards their chief. To put it briefly, two great 
 parties in opposition to each other, both compact and 
 well disciplined, and both by turns through their 
 chiefs intrusted with the government, a monarch 
 impotent in their hands but still looked up to 
 with reverence as the visible depositary of power 
 these, I take it, form the chief parts and springs of 
 that machinery which is actually at work before our 
 eyes. 
 
 It is easy to see that such a system is to some extent 
 forced, exceptional and artificial, and, in a way, opposed 
 to nature ; that it assumes the presence of politicians 
 endowed with a certain measure of coolness and self- 
 control, and that it has probably owed much to a happy 
 combination of circumstances. For parliamentary 
 government of this nature to succeed at the outset the 
 existence of such an oligarchy as flourished in the 
 eighteenth century was indispensable ; under a demo- 
 cracy it must have broken down. It is for example 
 open to question whether, under a type of government 
 more popular in its character, it would have been pos- 
 sible, in the first instance, to form parties possessing at
 
 SECT, iv THE OLIGARCHY 177 
 
 once sufficient authority and weight, continuity, firm- 
 ness and lofty moderation to control the authority of 
 the throne without overturning the throne itself or 
 stripping it of its prestige. Only a proud aristocracy, 
 upheld but restrained by a sense of near relation- 
 ship to the Crown, could grapple successfully with 
 such a task. It is not difficult to believe that, under a 
 popular form of government, the multiplicity of opinions, 
 the divergence of interests, the shiftings of sentiment 
 in the masses of the people would have reduced Parlia- 
 ment to a state of disorganized confusion, of moving 
 chaos ; that within the parliamentary body a multi- 
 plicity of petty groups would have formed for an instant 
 only to dissolve again, that no main line of division 
 could have been agreed on, no permanent classification 
 of parties arrived at. On the other hand the tradi- 
 tional relationship to each other of the great houses 
 which formed the two opposing groups, each united by 
 the common object of securing power and the spoils of 
 office, made it tolerably certain that only the two great 
 parties, Whig and Tory, would count for anything, and 
 that the composition of either party would vary very 
 little. Members for pocket boroughs had merely to 
 look in a given direction and follow the parliamentary 
 leader whom their noble patrons had chosen for them ; 
 obedience came easily to them, they looked upon it 
 as a duty imposed by personal or political relationship ; 
 speculative opinions seldom disturbed the serenity of 
 their time-honoured prejudices ; far from creating any 
 claim to favour, the possession of such opinions would 
 have but served to discredit them in the eyes of their 
 E.c. N
 
 178 THE ENGLISH CONSTITUTION PART in 
 
 political masters. 1 No effort was needed to establish 
 among such men the tradition of party discipline. The 
 representatives of popular electorates, on the other 
 hand, dare not for an instant lose sight of their con- 
 stituents, they are hampered by the necessity of satis- 
 fying their supporters while obeying the orders of their 
 chief; they are frequently troubled by personal convic- 
 tions, or are more or less under the influence of local or 
 special surroundings : there is every reason to think 
 that men thus placed would never have succeeded in 
 observing continuously the rule of obedience to their 
 party, in practising it till it became a habit, and in 
 making it synonymous with the decency and honour of 
 parliamentary life. Finally, the accepted and impera- 
 tive usage, that a cabinet left in a minority should retire 
 from office, could hardly have been established under a 
 democracy. If it has become admissible, practicable 
 and safe for a vote of the House of Commons to over- 
 turn a ministry, it is because the opposition keeps 
 another ministry constantly in readiness a ministry 
 that has been formed beforehand and is prepared at a 
 day's notice to take over the government, so that no 
 interregnum is possible. It is very doubtful whether, 
 in a chamber representing a shifting variety of opinions 
 and interests, a combination so complex as a cabinet 
 could have been for long held together and kept ready 
 to hand. It is probable that at each crisis the reins of 
 
 1 " What are you saying ? " says Lord Monmouth, in a novel 
 of Disraeli's, to his grandson. " You go with your family, sir, like 
 a gentleman ; you are not to consider your opinions like a philo- 
 sopher or a political adventurer." Coningsby.
 
 SECT, iv THE OLIGARCHY 179 
 
 power would have fallen to the ground, and the country 
 have been left without a government, till some body of 
 men got together in haste, chance-comers or make-shifts, 
 had undertaken the task and assumed the attitude of 
 statesmen. Thus one of the fundamental maxims of 
 the system, that a ministry when outvoted must resign, 
 could in the case of a popular assembly have resulted 
 only in disorder and anarchy ; Parliament would have 
 had neither justification nor inducement for laying 
 down any such rule, and it would doubtless have sought 
 some other solution. 
 
 To sum up the process, the Crown was deprived of its 
 supremacy while its prestige was preserved, the various 
 groups, in a Chamber crowded to the utmost, were 
 reduced practically to two, they were given hoino- 
 geneousness and taught steadiness and obedience, and so 
 rendered capable of serving as the foundations of stable 
 government. Matters were so arranged that, if at any 
 moment an adverse vote compelled a ministry to retire, 
 the harmony between the House of Commons and the 
 government though disturbed for a moment was forth- 
 with restored. To effect all this involved the presence of 
 conditions nicely adjusted and sometimes difficult to 
 reconcile, and which, at the outset, could never have 
 existed in any Parliament which formed a genuine 
 assembly of the nation, and which represented with 
 fidelity the capricious and incoherent opinions of the 
 masses. The House of Commons was however at the 
 period in question little more than a place of meeting 
 for the representatives of the two coalitions of great 
 families : it was owing to its peculiar character in this
 
 180 THE ENGLISH CONSTITUTION PART in 
 
 respect that it was enabled to carry out a work in- 
 volving so much patience, firmness, discretion and 
 moderation the creation of modern parliamentary 
 institutions. 
 
 Subsequently to 1832 England has been able, while 
 drawing nearer to a system of popular government, to 
 preserve the usages and customs of a system altogether 
 different ; she has shown a natural tendency to cling to 
 methods so happy in their results that they have be- 
 come the subject of national pride. Other countries, 
 more democratic than she is, have succeeded in adopting 
 the principles and observing the laws of that form of 
 free government which she was the first to reveal to 
 them, and they have erected by its means a standard of 
 justice unattainable by any aristocracy. But neither 
 these countries, nor England herself after 1832, could 
 have discovered these principles and these laws, or could 
 have applied them successfully without the teaching, 
 the experience, the examples and the precedents which 
 the eighteenth century furnished, or could have gradu- 
 ally fitted them in with the opinions and habits of the 
 day. Democracy has copied and adopted the parlia- 
 mentary system and perpetuated its existence with 
 more or less success ; but it was essentially incapable of 
 either inventing or founding it. Without the existence 
 of the English oligarchy of the eighteenth century, in 
 whose shade it grew up and flourished, that best type of 
 free government would never have come into being and 
 would have remained unknown to the world.
 
 THE MANUFACTURING PERIOD THE TWO 
 
 NATIONS 
 
 WHILE the country gentlemen were busy establishing, 
 as if for all time, their dominion over men and things, 
 events were taking place in their midst which at first 
 furthered their projects and seconded their efforts, before 
 long operated in opposition to them, and ended by 
 destroying their work just when it seemed complete and 
 permanent I refer to the rise and development of the 
 great mechanical industries. 
 
 I have endeavoured to show that England entered 
 later than is generally supposed, and even then not 
 without hesitation, upon that contest for trade in which 
 she has since outstripped her competitors. From the 
 end of the seventeenth century we find united in her 
 many. of the conditions which are essential to industrial 
 progress. The English possessed in 1700 a powerful 
 trading fleet, the result of the Navigation Act, and they 
 controlled a vast colonial market whence they could 
 derive raw produce in plenty, and where they were 
 able to dispose upon exceptional terms of their own 
 manufactured goods. From this time forward manufac-
 
 182 THE ENGLISH CONSTITUTION PART in 
 
 turers might count upon abundant outlets for their 
 wares ; they were encouraged and stimulated to pro- 
 duce. Various institutions, the necessary adjuncts and 
 infallible signs of increasing production, had already 
 made their appearance. The letter post was in full 
 operation, the Bank of England had been founded in 
 1694. During the same year facilities were given, with 
 the creation of the permanent debt, for the undertaking 
 of public enterprises which were of a remunerative and 
 lasting character, but which at the same time imposed 
 no too heavy burden on the present ; both the State 
 and individuals showed a more far-seeing care for and 
 confidence in the future. The currency had just been 
 reformed and placed upon a correct basis. Associations 
 of capitalists were organized ; commercial companies 
 multiplied and their fleets covered the seas. The 
 country had already been smitten with the fever of 
 great speculations and yielded to the enticements of 
 colossal ventures. Still these favourable circumstances 
 and these exciting causes acted upon manufacturing 
 activity merely as a reasonable stimulant ; they did not 
 extend so far as to bring about any sensible modification 
 in the balance of the various economic forces. I have 
 quoted many proofs of this ; there is one which sums up 
 the whole case. The rapid increase of manufacturing 
 wealth engenders as a rule a spirit of energy and 
 enterprise which shows itself in an increase in the birth- 
 rate. But the population of England and Wales, accord- 
 ing to the most favourable estimate, only rose from 
 5,134,516 to 6,039,684 between 1700 and 1750 in other 
 words it increased in fifty years by less than a million, by
 
 SECT, v THE MANUFACTURING PERIOD 183 
 
 17 to 18 per cent, on the original number. 1 This is 
 identical with the feeble rate of increase maintained in 
 France at the present time (1831-1851). 
 
 The ignorance of true economic principles, the indo- 
 lent security fostered by protection, the slow growth of 
 science and of the scientific methods in manufactures 
 all these were so many obstacles to progress. After 
 1750 six great discoveries which were destined to trans- 
 form altogether the conditions of labour followed each 
 other in rapid succession. In 1769, Arkwright invented 
 his water- frame ; in 1770, Hargreaves his spinning- 
 jenny ; in 1776, Crompton invented his mule ; in 1792, 
 Kelly his self-acting mule. The working power of these 
 inventions was multiplied by the steam-engine, which 
 was patented by Watt in 1769, and was applied to the 
 cotton manufacture in 1785, the same year in which Cart- 
 wright constructed his power loom. These improvements 
 were not to yield all their results before the present 
 century. Arkwright's patent fell in about 1790. Cart- 
 wright's power loom was not employed upon a large 
 scale before 1815, and the self-acting mule with the 
 improvements added by Eoberts, not before 1825. 
 
 On the other hand, the system of smelting by coal 
 was discovered between 1740 and 1750, and that of 
 steam blasts in 1788. The manufacture of iron and the 
 working of mines developed rapidly. For the distribu- 
 tion of the resulting products fresh lines of communica- 
 tion were opened up. In 1777 the Grand Trunk Canal 
 between the Trent and the Mersey was finished ; other 
 canals connected Hull with Liverpool, and both with 
 Toynbee (quoting Finlaison), Industrial Revolution, p. 33.
 
 184 THE ENGLISH CONSTITUTION PART in 
 
 Bristol. In 1792, a canal ninety miles long was con- 
 structed between London and the Midland towns by 
 way of Oxford, and in 1810 the system of canals was 
 almost complete. Roads increased in number still more 
 rapidly, and were carefully kept in order. Railways 
 were of later date, and their effects were only felt when 
 a third part of our century had passed ; but we may put 
 it that from 1780 the industrial revolution was fairly in 
 progress. 
 
 Its effects were soon apparent. Everything, even the 
 sustenance and exertions of man, resolves itself into the 
 production of so much heat and is capable of being 
 measured in foot-pounds. It has been calculated that 
 the annual output of the coal mines alone, expressed 
 as so much working power, equalled in amount 
 the horse provender which could be produced from 
 36,000,000 acres of land or the food for human workers 
 which could be produced from 252,000,000 acres. It 
 was as if a new territory of vast extent and extreme 
 fertility had been opened up by the side of the old. 
 Under circumstances of so much promise the birth- 
 rate rose rapidly. We have seen that the popula- 
 tion increased by about a sixth only during the first 
 fifty years of the eighteenth century ; between 1750 and 
 1800 it increased by more than half; between 1800 and 
 1850 by more than 90 per cent. ; and by more than 
 50 per cent, during the thirty years which followed. 
 Since the beginning of the century the agricultural 
 population has remained stationary or has diminished. 
 Thus the gigantic increase which each decennial census 
 shows is due to the growth of the manufacturing and
 
 SECT, v THE MANUFACTURING PERIOD 185 
 
 trading community. A little later than 1860, the two 
 divisions of the population, the agricultural and the 
 industrial, stood to each other in the numerical relation 
 of 1,000 to 2,675, and the values of the goods produced 
 by them respectively in the proportion of 3,500 to 
 5,800 millions of francs ; an actual excess of the one 
 over the other could probably be traced back as far as 
 the beginning of the century. That swarm of human 
 beings suddenly and artificially generated in the heat 
 of countless furnaces, possessed from the very outset 
 the characteristics of a second nation. They neither 
 mingled intimately with the nation which already existed, 
 nor shared the surface of the soil in equal proportion 
 with it. They filled the empty spaces which surrounded 
 the new mining centres and established themselves in 
 insignificant towns, places unknown to the annals of 
 municipalities and as yet of no account in the com- 
 mercial statistics of the country. It was the north of 
 England, a district till then scarcely peopled, which 
 profited almost exclusively by the increase of inhabitants. 
 In 1700 the ten counties which surpassed the others, 
 excluding the metropolitan counties, in the density of 
 their population, all lay to the south of the latitude of 
 Birmingham. In 1750, of the ten most thickly popu- 
 lated counties, there were four, and at the present time, 
 there are at least six, lying to the north of that limit. 
 
 It was above all in the towns that the influx of 
 population was apparent. In 1680 London formed the 
 only considerable mass of dwellings which existed in 
 the kingdom. Other great towns shot up and spread 
 with the rapidity of a conflagration, " shooting up like
 
 186 THE ENGLISH CONSTITUTION PAET in 
 
 flames and tending ever to engulf each other." 1 It was 
 not the old cities known to history, Bristol, Norwich, 
 York or Exeter, which grew indeed, but slowly, but 
 towns like Liverpool, the population of which rose from 
 4,000 in 1685 to 40,000 in 1760, and to 552,508 in 
 1881, and Manchester, which contained 6,000 inhabitants 
 in 1685, from 40,000 to 45,000 in 1760, 95,000 in 1801 
 and 517,649 in 1881 ; the populations of Birmingham 
 and Sheffield, which were smaller than that of Man- 
 chester in 1685, reached nearly to 30,000 in 1760, 
 increased respectively to 74,000 and 46,000 in 1801, 
 and number at the present time 400,000 and 285.000. 
 These were all places which had been in the sixteenth 
 century either unknown or unimportant. A new 
 England was added to the old ; it was as if a new land 
 had been upheaved from the sea, and joined on to the 
 shores of some old-world continent. The teeming 
 swarms of population sought breathing space in the 
 new territory and seized upon it as upon virgin soil ; 
 they found nothing there, and created a society for 
 themselves a society that was ignorant of the traditions 
 and ideas which prevailed in the country and the older 
 towns. The very conditions of labour intensified the 
 difference between the two communities. I have shown 
 how manufactures in the first stage of their modern 
 development deserted the corporate towns for the 
 purely rural districts, .that they were carried on there 
 side by side with agriculture and under domestic, almost 
 patriarchal conditions ; weaving, for instance, was carried 
 
 1 " Croissent comme la flamme et ne cessent de tendre vers un 
 abime de grandeur." Etudes sur I'Angleterre, Le"on Faucher.
 
 SECT, v THE MANUFACTURING PERIOD 187 
 
 on by men who owned the looms they worked. As 
 machinery was brought into practical use workmen 
 were compelled to live within reach of the motive 
 power, and an end was thus put to the transitional 
 system of combined industries. In the country dis- 
 tricts the rural element alone remained. The factory 
 system appeared with all its characteristics : concentra- 
 tion of capital, sub-division of labour, the personal 
 contact of great numbers of individuals between whom 
 existed no moral tie, and a broadly traced line of 
 division between employer and employed. On the other 
 hand the human being became a mere part of the 
 machine ; the workman no longer controlled the industry 
 at which he toiled ; he was compelled to watch an 
 uninterested hireling the mechanical beat of an engine 
 which derived its brute force from the action of steam. 
 A mere spectator could detect that a new community 
 had arisen. Sir Robert Peel remarked in 1806 that 
 the progress of machinery had created " a supplementary 
 race of men ; " a new race had in fact appeared upon 
 the scene with instincts, passions, sufferings, grievances, 
 ideas, habits and laws peculiar to itself. From that 
 time there were in England two distinct nations ; 
 Disraeli has contrasted them in Sybil, and Mrs. Gaskell 
 in North and South, and the younger of the two grew 
 so rapidly that, springing as it did almost from nothing, 
 it comprised in 1871 more than four-fifths of the 
 working population. 
 
 In this twofold world, with its two centres of attraction, 
 the social and political system created by the country 
 gentlemen was altogether out of place. It was contrary
 
 188 THE ENGLISH CONSTITUTION PART in 
 
 to reason and opposed to the logic of facts that one 
 whole section of the community the youngest, the most 
 ambitious, and soon to be the most numerous, which by 
 reason of the novel interests and the unforeseen wants 
 which its development had evoked, was more nearly 
 affected than the others were by the state of the law 
 and its administration should find itself without a voice 
 in the legislation and government of the country. A 
 fairer division of political power was sure in the long 
 run to prevail ; this event was rendered even more cer- 
 tain by the conduct of the country gentlemen, who by 
 monopolizing the land had narrowed the social basis, 
 while they extended the agrarian basis of their authority, 
 and who had weakened the title to influence which num- 
 bers might have given by depopulating the rural districts. 
 Each census which revealed a relative diminution of the 
 rural community with a marked increase of the industrial 
 community, made it more difficult to defend the exclu- 
 sive retention of privileges by that section of the nation 
 which was steadily declining in numbers. 
 
 At the end of the eighteenth century a still more 
 deeply -seated cause isolated rural England I refer to its 
 peculiar views upon "the subject of political economy. 
 At that date, throughout the manufacturing world, the 
 excitement of success created a tendency to look upon 
 the maximum of production as a species of sovereign 
 good. The maximum of production is only attainable 
 where no obstacle created by law or custom exists to 
 prevent that which has to be done from passing into 
 the hands most capable of doing it, nor to prevent those 
 hands in their turn from undertaking the task and doing
 
 SECT, v THE MANUFACTURING PERIOD 189 
 
 their best. The free circulation of capital, the free 
 play of individual capacity, this was the twofold rule 
 enunciated by the new nation with greater and greater 
 emphasis. A third principle was also insisted on, namely 
 that if the individual and capital were to be freely em- 
 ployed in the work of production, the full fruits of their 
 activity must be secured to them ; it followed from this 
 that the idle and the weak were to be left to bear the 
 consequences of their idleness and weakness, and were 
 not to be allowed to become a burden on the deserving 
 and the strong, or, in other words, that each one's share 
 in the profits was to be reckoned by the value of his 
 services, and not by the extent of his necessities. 
 
 The doctrines and methods adopted by the country 
 gentlemen were altogether opposed to these maxims. 
 The great landowners, as we have seen, by their system 
 of settlements had re-established, for their own ends, a 
 species of mortmain ; land passed out of circulation and 
 became the subject of a more or less forced monopoly 
 in the hands of a class which was day by day becoming 
 less numerous. The landowner who failed to make a 
 profit from his land was unable to sell it ; one whole 
 class, the class which is in France most ardently attached 
 to the soil the peasantry were prevented from buying. 
 On the other hand, the right of ownership was split up ; 
 nothing was left but an incomplete form of dominium, 
 a life interest subject to the rights of a remaindennan 
 a state of things essentially incompatible with the proper 
 management of an estate. A strange spectacle con- 
 fronts us. We have followed the great landowner in 
 the exercise of his multitudinous public functions, we
 
 190 THE ENGLISH CONSTITUTION PART in 
 
 have gauged his influence and traced in detail the limits 
 of his authority, but when, with minds profoundly im- 
 pressed with the idea of his boundless power, we accom- 
 pany him to his own estate, we find that this great man, 
 this autocrat, is the most helpless of human beings. A 
 mere usufructuary, thwarted at every turn, he can sell 
 no portion of his estate nor raise by mortgage the funds 
 necessary for its development. He can neither cut down 
 a tree nor grant a long lease. His lawyer is perpetually 
 at his elbow raising legal objections to the most prudent 
 and the most useful schemes, or aiding him with all the 
 subtlety of the law to avoid that heavy responsibility 
 which the exercise of the every-day acts of ownership 
 involves. The landowner's only means of effecting what 
 he wishes is by obtaining the sanction of the Court of 
 Chancery a sanction only granted in certain special 
 cases. The anomaly of his position strikes us from 
 every point of view. 1 
 
 The position of the farmer was not less inconsistent 
 with economic principles than was that of the great 
 landowner. The law of distress, as elaborated in the 
 eighteenth century, sacrificed the ordinary creditor and 
 endangered the under tenant ; the farmer had in con- 
 sequence great difficulty in procuring the advances which 
 he required or in sub-letting a part of his holding. The 
 system of letting from year to year produced even worse 
 results. The tenant at will had no security that he 
 would enjoy the fruit of his toil or reap the benefit of 
 
 1 The position of the "limited owner" has been altogether 
 changed by modern legislation, notably by the Settled Land 
 Act, 1882."
 
 SECT, v THE MANUFACTURING PERIOD 191 
 
 his improvements ; he felt no incentive to the employ- 
 ment of more costly methods of cultivation or to the 
 application of the latest agricultural discoveries. A 
 politician guided by sentiment might regard the tenant 
 as sufficiently protected by the traditional fairness and 
 good faith of the landowner, by the honourable under- 
 standing which had existed for generations between in- 
 dividuals and families of the two classes. Political 
 economy cannot accept the virtues of humanity as its 
 basis. It is possible that the tenant of a generous land- 
 lord might feel that he ran no risk in laying out his own 
 capital in improving the land, but he lacked the means 
 of inspiring the banker, whose confidence was indispens- 
 able to him, with the same feeling of security. Here 
 again rural England, when confronted with the difficult 
 problem involved in the relations existing between the 
 owner and the cultivator of the soil, fixed upon a solu- 
 tion directly opposed to the teaching of Smith or Young. 
 The position taken up by the rural community at the 
 beginning of the present century grew more and more 
 precarious and untenable as the energies of the remain- 
 ing sections of society were directed towards a solution 
 which was altogether different. 
 
 Any violent disproportion between the positions of 
 the powerful and the weak provokes the interference of 
 the State in its character of guardian of the rights of 
 individuals, and leads in the end to the adoption of 
 socialist remedies : the country gentlemen foresaw and 
 anticipated this. No more curious record exists than 
 that which reveals to us a particular variety of socialism, 
 to which the name of " Tory socialism" has been given,
 
 192 THE ENGLISH CONSTITUTION PART in 
 
 springing at the end of the eighteenth century from the 
 very movement which originated the system of lati- 
 fundia. It was a species of compensation spontaneously 
 offered for abuses which were not to be removed ; it was 
 a salve applied to a virulent disorder, the causes of 
 which no one dared to attack. The poor relief of 
 Elizabeth's time was not, speaking strictly, a socialist 
 measure : it drew a distinction between the old and 
 infirm and the able-bodied; the latter did not receive 
 actual relief ; work was found for them and they were 
 compelled to perform it. It was the parish, a species of 
 enlarged family, which relieved the impotent poor, and 
 it did so under the guidance of the Church and in her 
 charitable spirit. After 1782 the character of the system 
 changed altogether. The creation of great estates had 
 dispossessed, driven off, and crowded together in certain 
 spots great masses of human beings inevitably doomed 
 to poverty and degradation. The country gentlemen in 
 order to avoid State interference were compelled to deal 
 with this state of things themselves. Throughout the 
 country, by order of the justices, parishes were grouped 
 together for purposes of poor relief, and civil sub-divi- 
 sions of the county were thus practically created. A 
 staff of officials knowing little of those whom they 
 assisted, and acting under the immediate control of the 
 magistrates, dealt out relief with the practical object 
 of preserving the public peace, and of insuring that 
 tranquillity and decorum which the gentry took care 
 should be maintained. During more than fifty years 
 both theory and practice had alike required that the 
 pauper should receive no relief unless he consented to
 
 SECT, v THE MANUFACTURING PERIOD 193 
 
 be lodged, or, in other words, confined in a workhouse. 
 " Outdoor relief " was not permitted ; that is to say, no 
 assistance was given to paupers in their homes. Relief 
 in this shape was evidently an encouragement to idleness 
 and improvidence. But detestable as the system was, 
 it was once more made legal by an Act passed in 1782. 
 It was no doubt supposed that a slender pittance would 
 suffice to silence complaints, but outdoor relief soon came 
 to be regarded first as a payment in aid of insufficient 
 wages, then as a payment made to bring up wages to a 
 standard looked upon as normal ; and finally, the amount 
 of relief granted was made to depend without limitation 
 upon the number of individuals to be supported. On May 
 6, 1795, some Berkshire justices, meeting at Speenham- 
 land, issued a proclamation declaring that in future 
 allowances calculated upon a certain principle should 
 be made to poor workmen and their families, and they 
 accordingly fixed a scale of relief adjusted in proportion 
 to the price of wheat and the number of children in 
 each household. The report of this proclamation spread 
 from one end of England to the other. Its extraordinary 
 provisions were copied and adopted by the magistrates 
 in a great number of counties, and were so readily 
 acquiesced in by the country gentlemen that the pro- 
 clamation became generally known as the " Speenham- 
 land Act of Parliament," the word Parliament implying 
 that it had all the authority of a general enactment. 
 The effects of it were such as might have been expected ; 
 demoralization, the multiplication of irregular connec- 
 tions and an enormous increase in the poor-rate. 1 This 
 According to the Report of the 25th March, 1832, of seven 
 E.C. o
 
 194 THE ENGLISH CONSTITUTION PART m 
 
 was at all events socialism and nothing else ; its dis- 
 tinguishing marks are clearly visible. The system was 
 not indeed worked by the State but in extensive districts, 
 where its working tended to become, like the working of 
 a State institution, indiscriminate and inelastic. Relief 
 was dealt out as the State itself would have dealt it out, 
 according to the necessities of the individual relieved, not 
 according to the value of his services ; and in the result a 
 minimum rate of wage was fixed, payment for work and 
 the legal allowance being added together as complemen- 
 tary to each other, so as to amount in all cases to the same 
 total. The same policy inspired a statute of 1819, 1 which 
 provided that any parish might acquire land to the 
 amount of twenty acres (raised later to fifty,l & 2 William 
 IV., c. 42), and employ upon it, at reasonable rates of 
 wages, the poor who were capable of work. This was 
 simply an example of national workshops (ateliers nation- 
 aux) in an agricultural form. It is clear that the country 
 gentlemen did their best to relieve the misery and remedy 
 the injustice which were the results of the system upon 
 which their own supremacy was founded. They gave 
 without stint to render that system tolerable. They 
 endeavoured to silence the complaints of the destitute 
 paupers who depended on them by providing for their 
 daily subsistence. They did not see they shrank from 
 seeing that their task was hopeless and contrary to the 
 laws of nature, and that the remedy which they applied 
 
 millions sterling expended in the relief of the poor, only five per 
 cent, was paid for work ; all the rest went for the support of the 
 impotent and the idle. 
 
 1 59 George III., c. xii. 12.
 
 SECT, v THE MANUFACTURING PERIOD 195 
 
 enlarged the wound though it might for the moment 
 dull the pain. Above all were they blind to the fact 
 that their practice was directly opposed to the principles 
 of that young, energetic, and self-reliant generation 
 which was springing up around them, and that conse- 
 quently the organization of which they were the head 
 was destined all the sooner to be condemned as artificial 
 and antiquated. The State interference which they 
 dreaded was only a question of time; the excessive 
 concentration in the hands of a few of so much property 
 and influence rendered it inevitable that a day would 
 come when the legislature would be compelled to aid 
 the dispossessed and check the abuse of power, and that 
 with this end in view the State would impose a new 
 code of regulations and employ its own agents to carry 
 them out. Tory socialism, a lower and short-lived form 
 of State socialism, forced into existence by the intoler- 
 able oppression of monopoly, could never have amounted 
 to more than a provisional solution of the difficulty. 
 
 o 2
 
 VI 
 MANUFACTURES AND THE MANOR 
 
 WHILE the rural community culminated in an oli- 
 garchy such as I have described, a process of evolution 
 no less remarkable in character was going on in the 
 manufacturing world. It began peaceably enough with 
 a form of alliance between the manufacturers and the 
 country gentlemen ; it ended in the shock of an open 
 rupture. Even before manufactures had made any not- 
 able progress manufacturers seem to have enjoyed great 
 influence. Adam Smith shows that they had become 
 formidable to the government, and that they had ob- 
 tained so much hold upon public opinion as to command 
 popular support. Parliament turned an attentive ear 
 to their demands ; they procured the passing of certain 
 Acts which operated altogether in their own interests, 
 and which were in many cases a source of annoyance 
 to the landowners. We see with surprise that the 
 country gentlemen accepted and passed measures which 
 imposed what were apparently most vexatious restrictions 
 on sheep-shearing and the transport of wool. 1 It is 
 probable that, to begin with, these measures were much 
 1 Wealth of Nations, book iv. ch. 8
 
 SECT, vi MANUFACTURES AND THE MANOR 197 
 
 less a concession to the interests of a powerful class than 
 the outcome of a mistaken belief common to all classes, 
 that it is of the highest advantage to a State to attract 
 and retain the largest possible amount of foreign money. 
 The country gentlemen had no doubt to reckon with 
 the novi homines, but they did so upon advantageous 
 terms by dealing with them individually. No sooner 
 had a manufacturer attained conspicuous prosperity than 
 overtures were made to him, and he fell a rich and easy 
 prey. Some prosperous traders were conciliated by 
 marriages, others acquired estates, were received upon a 
 footing of equality by the country gentlemen, enrolled 
 themselves in the ranks of the squirearchy, and aimed 
 at founding families. During the whole of this first 
 period the manufacturers were intent on their own 
 interests, but they had no conception that those interests 
 were often opposed to those of the great landowners. 
 Both classes alike favoured monopoly ; they supported 
 each other, exchanged favours, and legislated by turns 
 for each other's benefit. The men who had made their 
 own fortunes and outstripped their rivals saw no cause 
 for annoyance in the privileges of the country gentle- 
 men. They were as yet unaware of their own strength ; 
 they were moreover few in numbers, and they had risen 
 in succession as individuals rather than as a class. So 
 soon as they had struggled to the surface they were 
 attracted and absorbed by the dominant section ; they 
 grew contented with things as they were, and their ex- 
 ample maintained amongst those who followed them in 
 their rise a feeling of respect for a social organization 
 which could thus reward a life of toil.
 
 198 THE ENGLISH CONSTITUTION PART in 
 
 Interests which have not yet found expression in an 
 abstract proposition may draw men towards each other ; 
 they do not form them into a compact body capable of 
 united action. Men thus associated are an army with- 
 out uniform or flag ; they may have endurance enough 
 to act on the defensive, they have neither the dash nor 
 the enthusiasm which would enable them to deliver an 
 attack. Those principles only which can be embodied 
 in some general theory can initiate a decisive effort and 
 sustain it to the end, and such principles were not lack- 
 ing to the manufacturing classes. The closeness of the 
 connection which united the theory of free exchange 
 and competition with the cult of nature, that chief 
 article of belief in the eighteenth century, has not per- 
 haps been sufficiently insisted upon. 1 The doctrine of 
 the day which taught that human nature possessed an 
 unerring instinct, which successfully supplied the place 
 of the reasoned efforts of the legislature, and a capacity 
 for development which effectually disconcerted them, 
 was silently influencing the minds of men, compelling 
 them to refer everything to the action of that one cause. 
 The phrase Laissez faire, laissez passer only reasserts 
 this double principle in the language and form of 
 political economy. The first axiom is embodied in the 
 optimism of Adam Smith, the second in the fatalism of 
 Malthus and Kicardo. For a long period theories such 
 as these remained the property of philosophers and 
 publicists, but they could not fail to grow and spread. 
 Ricardo carried them with him into Parliament when 
 he was elected in 1819. It is clear that the humanit- 
 1 Toynbee, Ind. fiev., p. 20.
 
 SECT, vi MANUFACTURES AND THE MANOR 199 
 
 arian Tory socialism, which, as I have shown, suggested 
 the expedient of outdoor relief, forced on the legislature 
 the creation of parish farms, and fixed a normal rate of 
 wages (the excess over and above the market rate being 
 made up by charitable contributions), was altogether at 
 variance with the theory of free competition. In this 
 lay the beginnings of a conflict of legislation and of a 
 schism which was to divide the two Englands, rural and 
 commercial, from each other. 
 
 The opposition between the two was at first not very 
 noticeable. The manufacturers were slow to shake off 
 their belief in monopoly. The treaty of 1786 with 
 France merely carried out the theories of protection in 
 a mitigated form ; there was nothing to show that the 
 parties to it had been really converted to contrary views. 
 
 It was only towards 1820 that the doctrine of econ- 
 omic freedom gained any decided hold upon men's 
 minds, exposed popular fallacies, and was recognized as 
 a practical truth. It was only then that it appealed 
 confidently to public opinion, and that it began to in- 
 fluence legislation. To this year belongs the petition 
 presented to Parliament by the merchants of London. 
 In this document was set forth the disastrous effect of 
 prohibitive and protective duties, and of a legislation 
 which pretended to regulate the course of trade. From 
 that time the movement went on. The Edinburgh 
 Chamber of Commerce drew up a petition to the same 
 effect, and a committee of the House of Commons pre- 
 sented a report which was nothing less than a free-trade 
 manifesto. In 1823 the London merchants called for 
 the abolition of the protective system in still more
 
 200 THE ENGLISH CONSTITUTION PART in 
 
 energetic terms, " even though " (these were the words 
 of their petition) " other nations should be slow to 
 establish reciprocity." The legislature finally yielded to 
 a pressure which had become irresistible. In 1822-23 
 the exclusive privileges established by the navigation 
 laws were curtailed, and they were done away with 
 entirely in 1849. In 1825 the laws forbidding the ex- 
 portation of wool were repealed, and those forbidding 
 the exportation of machinery were relaxed (the latter 
 disappeared completely only in 1843). During the same 
 year the penalties imposed upon persons hiring work- 
 men for service abroad, and upon the workmen so hired, 
 were abolished. The right of the labouring class to 
 form combinations, and to organize strikes with a view 
 to higher wages, was recognized. It is impossible to 
 peruse the enactments of the period between 1820 and 
 1830 without feeling the influence of a new social 
 element, resolute, liberal, and progressive in its nature, 
 in striking contrast to the first so-called " cotton lords," 
 that feeble and narrow clique so quickly swallowed up 
 in the great body of landowners. A flood of light, it is 
 plain, had illumined the new generation ; they saw, 
 knew, and believed. To them was given the love of com- 
 petition and of freedom of action, a desire for wider 
 fields, a spirit of optimism which gloried in rather than 
 dreaded the struggle for life. Impulses like these, such 
 as the men who preceded them had never felt, filled 
 their minds, severed their sympathies from the rural 
 aristocracy, and made of them its determined opponents. 
 From that time forward the conflict raged between the 
 old England and the new, between the manufactory and
 
 SECT, vi MANUFACTURES AND THE MANOE 201 
 
 the manor. The great manufacturers, as a class, were 
 not only fully conscious of their own power and weight 
 in the country, but they held a common faith, they had 
 given their common adhesion to certain well-defined 
 principles, and they were intent upon carrying those 
 principles, to their practical conclusion. Each of the 
 opposing hosts represented a distinct body of interests ; 
 a distinct economic theory was inscribed on the banner 
 of each. The class which had risen claimed a place in 
 the political world from which it had till then been 
 shut out ; its demands were backed by the opinion of 
 the nation ; it worsted its opponents, and finally carried 
 its point. This redistribution of power received its 
 legislative recognition in the Eeform Act of 1832. We 
 must not however regard this great measure as merely 
 conceding their political rights to a portion of the 
 nation which had been denied them ; it was something 
 more than a step towards equality, than a concession 
 granted to democracy. A new theory of politics, slowly 
 elaborated after much effort, appeared in the Reformed 
 Parliament, inspired fresh legislation, modified the 
 moral code, and strove to reorganize on its own lines 
 the political system of England.
 
 VII 
 
 THE REFORM OF 1832 
 CONCLUSION 
 
 IT was in 1832 that the two Englands first met in 
 conflict. It does not fall within the scope of this work 
 to chronicle in detail the collisions and onslaughts, the 
 doubtful victories and the gradual retreat of the country 
 gentlemen, or to trace down to the present day the record 
 of a struggle which is still unfinished. One by one the 
 privileges of the higher classes were done away with. 
 Their political privileges fell first. The Keform Act of 
 1832 gave to the great manufacturing towns the right 
 of returning members, and transferred to them the seats 
 in Parliament which had belonged to the "pocket 
 boroughs" of the country aristocracy. The Act of 1835 
 dissolved the ancient municipal corporations, close and 
 corrupt bodies who sold their votes to the great land- 
 owners. In 1838 the exclusive character of the property 
 qualification for a seat in Parliament, which had till then 
 depended on real property alone,was modified, and in 1858 
 the property qualification was abandoned altogether. 
 
 Their economic privileges were swept away at a single
 
 SECT, vii THE REFORM OF 1832 203 
 
 blow in 1846. The corn laws were repealed, and the 
 markets opened to cereals from abroad. Their fiscal 
 immunities were broken in upon, notably in 1853 ; and 
 during last year 1 (1885) a proposal of the then govern- 
 ment would have modified them still further. But it is 
 in relation to questions of civil privilege and administra- 
 tive authority that the combat waxes hottest, and that 
 victory will carry with it the most important results. 
 During the whole of the eighteenth century the country 
 gentlemen, as we have seen, did their utmost to turn 
 the ownership of land into a monopoly by accumulating 
 it in the hands of a few, and to establish a system of 
 mortmain by tying up estates in the same families from 
 generation to generation. They sinned directly against 
 economic law in rendering the position of the farmer 
 precarious and uncertain to the highest degree, when his 
 undertaking was one which could only be carried on in 
 a spirit of far-seeing enterprise and with a view to far- 
 off results. A system which favoured monopoly and 
 mortmain, and ran counter to the laws of political economy, 
 gave ample reason for the intervention of the legislature 
 in the name of the public welfare. Napoleon remarked, 
 when the law of 1810 relating to mines was under 
 discussion, that he would never suffer any individual to 
 throw twenty square leagues of land in a corn-growing 
 province out of cultivation, in order to form a park. 2 
 
 1 Written in 1886. The passage refers to a proposal in Mr. 
 Childers'a Budget of 1885. 
 
 2 Menant, Annales de VEcole des Sciences politiques, No. 2. 
 Carlyle puts the following language into the mouths of the squire- 
 archy : " What would become of you if we chose to grow
 
 204 THE ENGLISH CONSTITUTION PART in 
 
 The right of the individual to dispose of his property 
 does not justify him in depriving the people of their 
 means of subsistence. The danger was, in the case of 
 England, all the more grave as, according to the most 
 eminent lawyers, the Roman and French conception of 
 the ownership of property, as implying the absolute 
 right to use and abuse it, is unknown to the English 
 common law. The principle of that law is to recognize 
 " tenures " only, that is to say, the holding of land which 
 has been granted on certain conditions. This species of 
 ownership, altogether relative in character, occupies a 
 moral and legal position far less strong than does owner- 
 ship as understood in certain other countries, as, for 
 instance, in France ; it is less able to defend itself ener- 
 getically from attacks directed against it in the name 
 of public expediency. The late statutes dealing with the 
 relations of landlords and tenants in Ireland offended 
 against no principle of English law, 1 even when they 
 thrust aside freedom of contract, substituted a standard 
 of value fixed by an official arbitrator for the law of supply 
 and demand, and practically conferred upon the tenant 
 
 only partridges henceforth and a modicum of wheat for our own 
 use? Cannot we do what we like with our own?" Past and 
 Present, p. 215. 
 
 1 The Irish tenant no more looks upon his rent as proving the 
 ownership of the land by the landlord than does the landlord 
 look upon his taxes as proving the ownership of the land by the 
 State. Gladstonian legislation has nearly arrived at the Irish 
 theory of ownership, by reducing the landlord, speaking approxi- 
 mately, to the position of a mere rent-charger. The tenants 
 consider that not enough has yet been done for them, seeing that 
 they are still liable to eviction in cases where they are unable to 
 pay their rents.
 
 SECT, viz THE REFORM OF 1832 205 
 
 a species of joint ownership in the soil. They were 
 opposed to interests and considerations which were 
 economic only ; the only serious arguments which they 
 had to contend with were those founded on expediency. 
 We find in the recent Act passed for the benefit of 
 the Scotch crofters a still graver legislative infringement, 
 in a certain sense, upon the rights of property. It is to 
 be observed that while the subject was under discussion 
 the arguments on both sides were founded on the 
 special_circumstances of the case, and again amounted to 
 nothing more than appeals to expediency. Even in 
 England the landlords have shown themselves no better 
 able to withstand, upon principle, a measure designed 
 to protect the tenant against damage done by game, nor 
 a measure designed to secure him compensation for his 
 own permanent improvements. Here again we have 
 another attack directed against freedom of contract. The 
 farmer now possesses certain rights which he cannot 
 surrender by agreement ; there are certain improvements 
 which he can carry out, even against the wishes of his 
 landlord, without losing his right to be compensated for 
 them on a scale to be fixed by arbitration. If moreover 
 we are to attach weight to the complaints of the class 
 who have benefited by recent legislation, and to the 
 schemes put forward by theorists, the Agricultural 
 Holdings Act is merely the tentative introduction to more 
 radical measures. It is openly proposed to reduce the 
 landlord to the position of a rent-charger, and a time is to 
 come when his tenants shall be free to cultivate his 
 estates and transfer their interests in them without his 
 having any right to interfere. This is however by no
 
 206 THE ENGLISH CONSTITUTION PART in 
 
 means the only threat directed against real property. 
 Politicians of importance have taken up, and made a 
 part of their programme, as worthy of serious attention, 
 projects which go so far as to confer on municipal 
 authorities the right of compulsory purchase of urban 
 and suburban properties at such prices as would be given 
 by a willing buyer to a willing seller volentis volenti. 1 
 They see nothing extravagant in compelling the res- 
 titution of plots of land supposed to have been unjustly 
 appropriated, and in setting back the limits of prescrip- 
 tion in order to deal more effectually with the wrongful 
 occupiers. To this must be added the agitation kept 
 on foot by societies like the Land Reform Union and 
 the Scotch Land Restoration League, the stir created 
 by the books and speeches of Henry George, and the 
 pamphlet of Mr. Wallace, and the response which they 
 have drawn from classes of the community the clergy, 
 for instance generally credited with conservative views. 
 For a long time too the soil which was to receive the 
 seeds of modern socialism had been prepared by the 
 theories of well-known writers. John Stuart Mill, for 
 instance, claimed, as belonging to the State, the unearned 
 increment, viz., that portion of the increase in the value 
 of land not due to the efforts of the owner but to the 
 general progress of the nation. The English system of 
 great landed estates has provided an opening for, and 
 given an impulse to, a whole series of agrarian laws. 2 
 
 1 The proposal of Mr. Jesse Collings adopted in substance by 
 Lord Randolph Churchill. See report of debate of Oct. 2, 1886. 1 
 
 2 Democratic legislation has not kept pace with agrarian legis- 
 
 1 This proposal has since been appioved in a modified form, and has passed into 
 law as " The Allotments Act, 1887."
 
 SECT, vn THE REFORM OF 1832 207 
 
 The administrative powers of the country gentlemen 
 have been to an equal extent abridged and threatened. 
 The duties to be performed have multiplied continuously 
 with the needs of a progressive community ; the task of 
 performing them has in the end proved too much for 
 
 lation ; but it is a fact of no slight significance that the Lord 
 Chancellor of a Tory government brought in, in 1887, a Bill which 
 aimed at no less than the virtual suppression of the right of 
 primogeniture by destroying at a blow the distinction existing 
 between realty and personalty in cases of intestate succession. 1 
 Fresh facilities for the barring of estates tail and provisions for- 
 bidding their creation in the future gave still greater emphasis to 
 the anti-aristocratic character of the measure. 
 
 I give below a list of reforms insisted on at the present time by 
 the advanced party. The "Free Land League" voted the following 
 programme in 1885 (See the Daily News, 19th August, 1885) : 
 
 (1) Abolition of the law of primogeniture. 
 
 (2) Abolition of copyhold and customary tenure, and obsolete 
 
 manorial rights. 
 
 (3) Prohibition of settlement of land upon unborn persons, 
 
 and of the general power of creating life estates in 
 land. 
 
 (4) Conveyance by registration of title ; all interests in the 
 
 property registered to be recorded. 
 
 (5) Provision for the sale of encumbered settled property. 
 
 (6) Preservation of commons, and of popular rights over land 
 
 and water, and restoration of any illegally taken away 
 in recent times. 
 
 (7) Enfranchisement of long leaseholds. 
 
 (8) Amendment of law of landlord and tenant calculated to 
 
 promote and further to protect improvements. 
 
 (9) To promote the acquirement of land by the people for 
 
 residence and cultivation both by general laws and by 
 the instrumentality of municipalities and other local 
 bodies. 
 
 1 A Tory government lias, in fact, passed a measure which strikes the first blow 
 at the rule of primogeniture. See 8tat. 53 and 54, Vic., c. 29.
 
 208 THE ENGLISH CONSTITUTION PART in 
 
 the strength and ability of the original county authori- 
 ties. It has been necessary to organize special bodies 
 for the administration of districts intermediate in size 
 between the county and the parish. The magistrates 
 are ex officio members of these bodies, but, as a matter 
 of fact, they take little part in their proceedings. On 
 the other hand the State intervenes more actively under 
 the new system than it did under the old. It does so 
 not only by means of a code of minute regulations, but 
 also through the agency of an official whose powers are 
 continuously on the increase "the inspector." The 
 inspector can attend the proceedings of any board and can 
 call for their accounts ; he corresponds with the secretary 
 of the department over the heads of the local authorities, 
 and he alone has the power of initiating the dismissal 
 of their officers. It is only in their Quarter Sessions 
 that the country gentlemen have preserved their liberty 
 of action ; there they are still unembarrassed by the 
 presence of elected colleagues or the interference of the 
 State. The Quarter Sessions have, however, retained 
 but little of their importance. 1 The small proportion 
 borne by the county rate to the whole sum of local 
 taxation, hardly five per cent., gives us some idea of this 
 rapid falling off. A remarkable change has taken place. 
 In the eighteenth century the gentry had excluded the 
 professional element, the lawyers, from the commission of 
 the peace. At the present time the country gentlemen 
 are in their turn elbowed out and thrust aside by the 
 engineer, the doctor, the officer of health by a whole 
 
 1 The jurisdiction of Quarter Sessions as a criminal court is not 
 referred to here.
 
 SECT, vii THE REFORM OF 1832 209 
 
 bureaucracy of skilled specialists. It has been already 
 proposed more than once to deprive the squirearchy of 
 their administrative and financial powers, and to transfer 
 those powers to councils for the most part chosen by 
 election, where the magistrates in fact will not sit, 
 though they may have technically the right to do so. It 
 is proposed to do away with the plural vote which gives 
 to the landowners so marked an advantage, to introduce 
 the ballot, &c. It is hoped by the same measure to 
 restore to the parish its former autonomy, and to revive 
 the parochial self-government which the eighteenth 
 century suppressed. Threatened on one side by the 
 State and officialism, on the other by the principle of 
 popular election, the magistracy as an aristocratic in- 
 stitution needs all its ancient prestige to delay the 
 inevitable success of that double attack. 1 
 
 1 Since these lines have been written the proposed reform has 
 been effected in England by the Local Government Act, 1888, and 
 in Scotland by the Local Government (Scotland) Act, 1889. The 
 present Cabinet moreover is pledged to complete the work by 
 embodying in a supplementary statute those clauses of their 
 scheme which the resistance of the Opposition has constrained 
 them to postpone for a time. The Local Government Act of 1888 
 has completed the discomfiture of the ancient system of county 
 government. A wide and gaping breach has been effected in the 
 ancient barrier which secured the supremacy of the squirearchy, 
 and guarded the approaches to the House of Lords. 
 
 The new enactment retains for the magistrates their judicial 
 functions, but it transfers all the administrative functions of 
 Quarter Sessions to elective county councils. The control of the 
 police, a judicial as well as an administrative matter, is not left 
 wholly with the magistrates ; it is intrusted to a mixed committee 
 containing an equal number of elected councillors. It is intended 
 E.C. P
 
 210 THE ENGLISH CONSTITUTION PART m 
 
 The country gentlemen have guided for centuries the 
 destinies of England. Legislation, executive govern- 
 ment, local administration and foreign politics, all phases, 
 in short, of political life, show clear traces of their handi- 
 work. Under the Tudors they played a useful part ; 
 they were the agents of the Crown and were moved by 
 true patriotism ; but with the fall of the House of Stuart 
 their ambition grew, and they attempted the perilous 
 heights of absolute power. They had already subdued 
 and despoiled the Church, expelled a dynasty, and 
 humbled the Crown. They attempted finally to bring 
 the whole nation into subjection to themselves. They 
 monopolized the land, they broke down parochial self- 
 government, and seized on the right of nomination to 
 all local offices ; they extended their jurisdiction in the 
 counties till it was almost unlimited, and so robbed of 
 its importance the central authority of the State ; they 
 controlled the electorate, and filled both Houses of 
 Parliament ; they succeeded in closing to all other classes 
 the access to political power. At the very time when 
 
 in the future to substitute elective district councils for the 
 highway boards and boards of health upon which the landlords 
 exercise a preponderating influence. No one has a seat ex offido 
 upon the new councils ; the landlords can become members of them 
 only through the votes of their fellow-citizens. Property quali- 
 fications are no longer required, and there is no plural vote to tell 
 in favour of the largest tax-payers. The rule is, one man one 
 vote, and the franchise is enjoyed by every householder who pays 
 rates. The fact is full of meaning that it is a Conservative 
 government which has taken the initiative in organizing a reform 
 so clearly destructive of the former authority of the landlords. 
 It was plain that the time had come and that the sacrifice had to 
 l>e made.
 
 SECT, vii THE REFORM OF 1832 211 
 
 they were most intent on casting the nation into bondage 
 what was almost a new community was added to the 
 England of the past, a community open to influences 
 from without, teeming with new ideas, swept in every 
 direction by a breeze of liberty and progress. The 
 attempt of the landlords failed. The new generation 
 cast off its oppressors and retaliated upon them within 
 their own territory. From 1832 onwards the move- 
 ment has 'never paused. The great manufacturers 
 carried the breach, and the other classes followed them. 
 In 1867 the working classes in the towns forced their 
 way into the electorate. The tenant farmers were given 
 the right of voting in 1832, but they have only enjoyed 
 its unfettered exercise since the adoption of the ballot 
 in 1872. In 1884 the agricultural labourers were in 
 their turn admitted to the franchise, and England has 
 just l made her first trial of almost universal suffrage. 
 The peculiar effect of the aristocratic revolution of the 
 eighteenth century was not so much that it let loose 
 democracy democracy would in any case have had its 
 day as that it disturbed profoundly the conception 
 of property, and that it excited more violently than 
 elsewhere the chimera of agrarian radicalism. That 
 dangerous addition to the political and social claims of 
 the present day is an answer, and a natural one, to the 
 inordinate pretensions of the landowning oligarchy in 
 the last century. But, be that as it may, at the no 
 distant date when a reformed system of local administra- 
 tion and a redistribution of landed property shall have 
 
 1885.
 
 212 THE ENGLISH CONSTITUTION PART in 
 
 shifted the basis of political power, the England of the 
 past is destined, if I may so put it, to suffer a change of 
 soul. Her ancient spirit must needs disappear with the 
 county aristocracy, that healthy and vigorous frame 
 which formerly sheltered it, and a new life must 
 quicken the freshly moulded clay of the English 
 democracy. 
 
 THE END. 
 
 RICHARD CLAY AND SONS, LIMITED, LONDON AND BUNQAY.
 
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 See pp. 5, 29. 
 
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