BRITISH CONSTITUTION 'f 08 2 CAainjian— LORD BROUGHAM, F.R.S., Member of the National Institute of Frniice. Vice-Chairman-'EA.Rh SPENCER. Treasurer— JOUfi WOOD, Esq. Captain Beaufort, R.N., F.R. and R.A.S. Lord Campbell. Profesiior Carey, A.M. John Conolly,'M.D. William Coulson, Esq. The Bishop of St. David's. J. F. Davis, Esq., F.R.S. Sir Henrv De la Beche, F.R.S. Professor De Morgan, F.R.A.S. Lord Denman. Samuel Duckworth, Esq. The Bishop of Durham. John Elliotson, M.D., F.R.S. T. F. Ellis, Esq., A.M., F.R.A.S. Thomas Falconer, Esq. John Forbes, M.D., F.R.S. Sir I. L. Goldsmid, Bart., F.R. and R.A.S. F. H. Goldsmid, Esq. B. Gompertz, Esq., F.R. and R.A.S. Professor Graves, A.M., F.R.S. G. B. Greenough, Esq., F.R. and L.S. Sir Edmund Head, Bart., A.M. M.D. Hill, Esq., Q.C. Rowland Hill, Esq., F.R.A.S. Right Hon. Sir J. C. Hobhouse, Batt., M.P. Thomas Hodgkin, M.D. David Jardine, Esq., A.M. Henry B. Ker, Esq. Professor Key, A.M. John G. S. Lefevre, Esq., A.M. Sir Denis Le Marchant, Bart. Sir Charles Lemon, Bart., M.P. George C. Lewis, Esq., A.M. James Loch, Esq., M.P., F.G.S. Professor Long, A.M. The Right Hon. Stephen Lushington, D.C.L. Professor Maiden, A.M. A. T. Malkin, Esq., A.M. Mr. Serjeant Manning. R. L Murchison, Esq., F.R.S., P.G.S. Lord Nugent. John Lewis Prevost, Esq. Professor Quain. P. M. Roget, M.D., Sec. R.S., F.R.A.S. Sir Martin Archer Shee, P.R.A., F.R.S. Sir George T. Staunton, Bart., M.P. John Tavlor, Esq., F.R.S. Professor Thomson, M.D., F.L.S. Thomas Vardon, Esq. Jacob Walev, Esq., A.M. James Walker, Esq., F.R.S., P. Inst. Civ. Eng. H. Waymouth, Esq. Thomas Webster, Esq., A.M. Lord Wrottesley, A.M., F.R.A.S. J. A. Yates, Esq. Secretary, THOMAS COATES, Esq., 42, Bedford Square. This work is part of the Society's larger treatise of Political Philosophy, and the references are to the Parts and Chapters of that work. The great importance of the subject has occasioned this separate publication. UNDER THE SUI'ERIN TENDENCE OF THE SOCIETY FOR THE DIFFUSION OF USEFUL KNOWLEDGE BRITISH CONSTITUTION BY HENRY, LORD BROUGHAM F.R.S. MEMBER OF THE NATIONAL INSTITUTE OF FRANCE MEMBER OF THE ROYAL ACADEMY OF NAPLES LONDON CHARLES KNIGHT & Co. 22 LUDGATE STREET 1844 London : Printed liy William Ct.owes and Sons, Stamford Street. JN PREFACE. The Society have deemed that it may be useful to print a separate edition of the account given of the British ^ Constitution, in the Third Part of their laro;er treatise >_ on Political Philosophy. i ^ It is quite impossible to understand accui-ately tine "' principles of that Constitution without studying its his- tory in all times; and an attentive examination of that history is fruitful of most important practical truths for the government of men's conduct in the present day^ It shows that this country alone of the European states CO has in all ages possessed the great benefit of a Legis- ^ lature distinct from the Executive Government, the ^ Sovereign of England never having at any period had -=t the power of making general laws. But it likewise! shows most clearly that this or any other institution! can give little security to the liberties of the people, — i little obstruction to the maladministration of publid affairs. The lesson taught by the history of our Con-i i ^ stitution in all ages, is that unless the people continue! ^ . . . ' a watchful over their own riohts and their own interests,! ^^ the best constructed system of polity can afford them no! 30i02G vi PREFACE. sliolter tVoiu oppression, no safeguard against the mis- nianagemeut of their concerns. It may be very wrong- to say that forms of Government are of no importance, and that the best system is the one best administered. But it is assuredly a truth to which all History bears testimony, that the chief advantage of free institutions is their enabling men to obtain a wise and an honest administration of their affairs ; that the frame of Go- vernment approaches to perfection in proportion as it helps those who live under it to watch the conduct of their rulers, aiding them when right, checking them when wrong ; and, above all, that no Constitution, liowever excellent, can supersede the necessity or dis- pense with the duty of this constant vigilance. CONTENTS. CHAPTER I. GOVERNMENT OF ENGLAND.— ITS STRUCTURE IN THE ANGLO-SAXON TIMES. Obscurity of early Constitutional History ; its two causes — Royal Prerogative in early Times — Errors from National A'anity and Party Spirit — Resemblance with other Feudal Monarchies — Difference as to Legislative Power — Royal Authority traced from the Roman Times — Saxon Constitution — Heptarchy — Constitution after the Union — Power of the Crown — Great Officers: Eorlderman ; Gereefa; Borough - reeve — Danish Body-Guard, or Thingmann — Legislative Power — Witan and VVi- tenagemote — Royal Revenue — French and Anglo-Saxon Monarchies compared Aristocratic Nature of the Anglo-Saxon Government — That Government not pro- perly a mixed Monarchy ........ Page 1 CHAPTER II. GOVERNMENT OF ENGLAND.— ANGLO-NORMAN MONARCHY. William the Conqueror — Lord Coke's Error — Influence of Foreign Dominions — Great Possessions of the Conqueror's Family — Royal Authority not absolute, though great — Parliament or Colloquium ; its composition — Extension of Feudalism by Wil- liam — Almost all his immediate Successors Usurpers — Occasions of assemblino- Parliament — Examples: Henry II.; Stephen ; Richard I.; John — Taxation — Legis- lation — Henry II. 's Profligacy — Royal Power over the Church — Two practical Tests of Royal Authority — Tyranny and Profligacy of the Anglo-Norman Kings : Wil- liam I.; William II.; Henry I.; Henry II.: Richard I. — Anglo-Norman Monarchs practically almost absolute . . . . . . . . p. 1 4 CHAPTER III. GOVERNMENT OF ENGLAND.— FOUNDATION OF ITS PRESENT CONSTITUTION. Four essential Requisites of limited Monarchy — Error of supposing nominal Privi- leges real — Causes of the Resistance to John — Great Charter — Forest Charter — Broken by John — Civil War — French aid called in — Henry III. — Pembroke Re- gent — Confirmations of the Charters — Mad Parliament — King deposed — Simon de Montford — His Parliament with Borough Members — Edward I. — Earls Bohun and Bigod — Statute against Taxing by the Crown — Parliamentary Constitution fully established in Law — Merits of Cardinal Langton— Compared with Archbishop Win- chelsey — Errors of Romish Historians — Edward I.'s Legislation — His Wars p. 30 CONTENTS. CHAPTER IV. GOVERNMENT OF ENGLAND.— THE PLANTAGENETS. EiUvartl II. — The Ordinances — Virtual Deposition of the King — His actual Deposition — Edward III. — His Encroachments — Checked by Parliament — Right of levying Men — Restrictions on it — Parliamentary Elections and Procedure more obscure — County and Borough Elections — Composition of the Lords' House — Of the Com- mons — Places of Meeting — Powers of the Houses severally — Partial Parliaments summoned by the Crown — Procedure — Triers ; Petitions ; Bills — Preparing of Statutes — Mode of executing them — Vacation Committee — Richard II. — Revolu- tionary Times — Henry IV. — Henry V. — Progress of the Commons under the Lan- castrian Princes — Henry VI. — Progress of Parliamentary Privilege — Base Conduct of the Plantagenet Parliaments — Richard III. — Henry VII. — Decline of Baronial Power . . . . . . . . . . . . p. 44 CHAPTER V. GOVERNMENT OF ENGLAND.— THE TUDORS. Men's Conduct more important than Institutions — Tudors and Plantagenets compared — Sources of the Tudor Power : Title; Economy — Infamy of Henry A'lll.'s Par- liaments — Three Examples worse than the rest — Henry VIII. "s Judicial Murders — Henry VII. and VIII. compared — Edward VI. "s Reign — Subserviency of Mary's Parliament — Privy Council Jurisdiction ; Star Chamber — Its Operation on Parlia- ment and Juries — Abuse of the Power by Individuals — Elizabeth's Reign ; Progress of Parliamentary Privilege — Question of Monopolies — New Boroughs added — Tudor Measures touching Religion — Elizabeth's Persecutions — Causes of the Subserviency of the Tudor Parliaments . . . . . . . . p. 60 CHAPTER VI. GOVERNMENT OF ENGLAND.— THE STUARTS— COMMONWEALTH- RESTORATION. Contrast of James I. to Elizabeth — Divine Right — Error of Authors on this — Commons Struggle for their Privileges — Slavish Conduct of the Judges — Impeachments by the Commons — Extravagant Assertion of Privilege — Conflict between the King and Commons — Oppressions exercised by the Crown — Revolting Doctrines of the Stuart Princes — Character of Charles I. — Early Errors of his Reign — Favouritism to Buckingham — Baiseness of the Judges — New Oppressions of the Crown — Long Par- liament ; its admirable Conduct at first — Petition of Right — Strafford's Attainder — Violence of the Parliament — Overthrow of the Constitution — Commonwealth — Causes of the Rebellion — Error of Romish Writers — Evils of suffering a Minority to rule through Terror — Cromwell's Usurpation — His Plans and Constitutions — Obliged to call a Parliament — Restoration . , . . . . p. 76 CONTENTS. IX CHAPTER VII. GOVERNMENT OF ENGLAND.— THE STUARTS— REVOLUTION. Reigns of Charles IL aiul James IL the same in a Constitutional View — Characters of these Kings — Policy of Charles — His Alliance with France — Escape of the Country from Subjugation — Clarendon's Profligacy — Revolution delayed by Charles — Popish Plot : Exclusion Bill — Alarming Change of Public Opinion on James's Accession — Base Conduct of the Lawyers — Selfish Conduct of the Church — James's Attacks on tlie Church — Banishments — Narrow Escape from absolute Monarchy — Revolu- tion : it originated in Resistance . . . . . . . p. 94 CHAPTER VIII. CONSTITUTION OF ENGLAND. Resistance the Foundation of our Government — Necessity of keeping this always in view — Security derived from the late Parliamentary Reform — Universality of the Mixed Principle — Apparent Exceptions — Only real Exception, Privilege — Evils of that Doctrine ; its Abuse — Conduct of the Commons — Recent History. Outline of the Constitution — Prerogatives of the Crown ; Extent; Limits — Substantive Power of the Sovereign — Hereditary Principle — Errors on the Regency Question — King's Influence in Parliament — Lords' House — Claims of the Commons : Taxation ; Elections — Peerage — Large Creation of Peers; Crisis of 1832 — Prelates; Con- vocation — Judicial System — Independence and Purity of Judges — Security of the People — Parliamentary Superintendence; Meetings; Press — Vigour of the Executive — Resources of the Country called forth — American Government — Three Defects in the Parliamentary Constitution — Bribery — Power of Adaptation to Emergencies — Extraordinary Powers ; Habeas Corpus Suspension ; Alien Act ; Restraint of Meetings — Errors of Bentham School on Unconstitutional Measures — Writers on the English Government . . . . . . . . . p. 103 BRITISH CONSTITUTION. CHAPTER I. GOVEllNMENT OF ENGLAND ITS STRUCTURE IN THE ANGLO-SAXON TIMES. Obscurity of early Constitutional History ; its two causes — Royal Prerogative in early times — Errors from National Vanity and Party Sjjirit — Resemblance with other Feudal Monarchies — Difference as to Legislative Power — Royal Authority traced from the Roman times — Saxon Constitution — Heptarchy — Constitution after the Union — Power of the Crown — Great Officers: Eorlderman; Gereefa; Borough- reeve — Danish Body-guard, or Thingmann — Legislative Power — Witanand Witen- agemote — Royal Revenue — French and Anglo-Saxon Monarchies compared — Aris- tocratic nature of the Anglo-Saxon Government — That Government not properly a mixed Monarchy. The early history of every Constitution must of necessity be involved in great obscurity. Two causes contribute to keep us in ignorance and uncertainty respecting the origin, and even respecting the first stages in the progress of all political institu- 'tions. In the first place, all Governments must have been established long before the period of written history, because men must have lived together in society, and even brought their civil polity to a considerable degree of maturity, before any writer devoted his labour to record their progress in the arts of govern- ment. The want of written annals is but ill supplied by tradi- tion ; for that can never mark the successive changes in the form of government, and must always confound together the dates of different events. Then the blank in authentic or accurate accounts is always supplied by a plentiful admixture of fables, feigned by the superstition or national vanity of the j:)eople, or invented by the mere exercise of imagination in the absence of true narrative. Hence the accounts which come down to the earliest historians are always a confused mass of facts and fic- B 2 GOVERNMENT OF ENGLAND. [cil. T. tions, which they arc little better able to digest and to purify than ourselves. Even the colonial establishments of both ancient and modern times form no exception to these positions, because the founders of them only carrying out with them a portion of the institutions already existing in the mother coun- try, the true origin of the Colonial as well as of the Metropolitan Government is in truth one and the same. But, in the second place, the province of History itself, after men have begun to write it, pi'esents anything rather than a satisfactory or trustworthy record of the successive events which have been the origin of the constitutions ultimately found esta- blished in different countries. It is only in recent times that Historians have taken any care to describe the political consti- tutions of the nations whose annals they undertake to preserve. In ancient times, with scarcely any exception, and in modern times, until within the last two centuries, Historians assumed that a^ the civil institutions of the countries to which they belonged were matter of universal notoriety to the age in which they lived, and, moreover, regarding such subjects as of inferior interest to their readers, they confined themselves to describ- ing the great events of war, or the sudden revolutions effected by A-iolence, leaving us in the dark respecting the most important parts of the civil polity established in each sera and country. Hence, while the Greek and the Koman records contain a full detail of the battles, the sieges, the violent seditions, the massa- cres, which disfigure the early history of our species, and from ■ which no period of its annals is exempt, we are left in doubt or in the dark as to many points of extreme interest respecting the institutions by which men's rights were protected, or their duties enforced, or the exigencies of the pubhc service met ; and are fain to glean our knowledge of these t ly important matters from occasional notices in the speeches that have been preserved, or from the discussions of philosophers on Moral and Political ques- tions — discussions which always assume things to be known that have never reached our times. Of this many instances occurred in our examination of the ancient constitutions in a former part of this work (Part ii., Chap. x. et seq., xiv. et seq., 'Kyi. et seq.). But the same defect is perceptible to a great extent in modern histories. The preservation of the laws made from time to time, no doubt afibrds important materials, as do the records of politi- CH. 1.] ANGLO-SAXON MONAKCHY. 3 cal changes that have happened. But many things exist in every form of government which the records of statutes fail to represent ; and he would have a most imperfect knowledge of any constitution who should confine his study of it to the written law. It was only in the eighteenth century that the history of institutions, of manners and of customs, what may be termed the General History of Society, began to be written. The brilliant success of Voltaire in his truly philosophical work, and of Robert- son in his general view of European history, has founded a new and invaluable school of Political science — which the great failure of others* has not been able to destroy. But whoever would learn the political annals of the nations composing the great European Commonwealth, will look in vain to their Histories for informa- tion upon many of the most important branches of the subject. The debates of the English Parliament, and the controversies among party men and speculative reasoners, which existed in the seventeenth century, throw much light on the unwritten., law of the constitution at all times ; while we have already found hoAv difficult it was to ascertain the most important particulars con- nected with the successive changes in the structure of the French Monarchy from the entire want of the one of these sources of information, and the scanty amount of the other. The Constitution of England, unless in the circumstance of our Parliamentary debates having for the last two centuries drawn its original principles and early history into public dis- cussion, affords no exception to the general rule. The early period in which our civil institutions were founded is involved in great obscurity. The origin of these institutions, the shape which they at first assumed, the changes by which they were so moulded as to approach their ultimate condition, are all matters of doubt, and have given "se to controversies which there are no means of settling with any degree of satisfaction, controversies through which the candid student of our political History, only anxious in the pursuit of truth, finds it impossible to trace his way, or to avoid being bewildered among conflicting assertions. The first question that presents itself to the inquirer upon the early structure of the Constitution relates to the degree of free- * Dr. Henry's bad execution of a similar plan applied to England is well known, Mr. Miller's is an excellent work, though in many parts speculative and even fan- ciful. b2 4 GOVERNMENT OF ENGLAND. [cil. I. clom enjoyed by the People, and the extent of the power vested in the Sovereign. It is very natural for a nation Avhich highly prizes its liberty, and values itself upon the superiority enjoyed till within the last half century over all others, to plume itself also upon the length of time during which it has possessed so envied a distinction. A nation feels the same pride in this re- spect that a family does, and loves to trace back its nobility to a remote period of time, as individuals love to boast of the ho- nours enjoyed by their remote ancestors. Hence, as might be expected, the English, and more especially that party among them which chiefly maintains popular rights, have fondly traced the origin of our free institutions to the most remote ages, and have easily lent themselves to the belief that there never was a period when a system of representative Government did not exist in the country. Under various names they consider a Parliament always to have formed a portion of the government, whether a Great Council or a Witenagemote, or a Michelgemote, or a Colloquium, or a Parliament. In these theories there is some truth and some error. To hold that representation always existed is manifestly absurd ; it is a position borne out by no historical facts ; it is even plainly contradicted by the known facts recorded within the period of authentic History. We have already seen the clearest proofs of this in tracing the origin of representation ; we have found that at the Conquest, and for nearly two centuries later, there were no representatives even of the counties ; that the greater Barons or Peers sate in one Chamber with the lesser Barons or free tenants holding their lands, like the greater, directly or in I capite of the Crown ; that in the thirteenth century the counties ; began to send Knights as representatives of the lesser free- I holders whose personal attendance was thus excused, that it was only towards the latter part of the century that the bur- gesses, or inhabitants of the towns, were represented, and that they, with the Knights representing counties, formed a body apart from the Peers, and had a chamber of their own. (Part III. Chap, vii.) It was therefore a most violent exaggeration into which Lord Camden* fell when he affirmed, with undoubting confidence, * British Statesmen, vol. iii. — Art. Lord Camden. CH. I.] ANGLO-SAXON MONARCHY. 5 that at all times every portion of England was represented in Parliament, or, as he phrased it, that " at no period was there a single blade of grass within the realm unrepresented." The antiquaries — of whose lore he spoke with a contempt equally- dogmatical, as subverting our liberties by their " fantastical spe- culations" — both come far more near the plain matter of fact, and do those liberties much better service when they show re- presentation to be an improvement of comparatively recent date, and prove that if before the thirteenth century the country was represented it was only virtually, and not actually, inasmuch as the towns sent no one to Parliament at all, and of the county members those only sate in it who attended in their own proper persons, — none but tenants in chief of the crown having any place in the great council of the nation. But if the reasoners who have held the higher language upon the antiquity of our Constitution, had only maintained that we have no record of any time in which the power of the Sovereign was absolute, they would have asserted a truth which cannot be contested. There is every reason to believe that, from the earliest period of our history, the Monarch's authority was of a limited extent. In this respect our history differs not at all from that of the other Monarchies which arose out of the Feudal system, or indeed rather formed a part of that system. Those who fixed limits to the royal authority were in England, as everywhere else, the greater Barons, with their dependants or vassals, and aided, no doubt, also by the concurrence of the lesser landowners in their schemes of ambition, of resistance to the Prince, and of war with each other. Here, up to this point, the history of the English Government presents no exception to that of the other feudal kingdoms. But, the next position which we have to lay down presents a distinguishing feature in the English Government ; for it is a truth to which our Constitutional History bears testimony almost as irrefragable, that the legislative power, in other words, the supreme power in the state, was shared at all periods of time by the great landowners, the Barons, and that it was probably shared, in some degree, by the lesser Freeholders also. This latter position may admit of somewhat more doubt ; the share of the greater Barons seems to be incontrovertible. In the times of the ancient Britons, before the Poman con- 6 nOVERNMKNT OF ENGLAND. [CH. I, quest, the -whole country was undei- petty Princes, who waged continual war with each other, but united their forces by com- mon consent under Cassibelaunus, King of Kent, to oppose Julius Csesar.* The Princes appear to have had less power over their subjects than those of Gaul. But of course anything like regular government was out of the question ; only the lead- ing men here, as among the Germans, exercised great influence as a Council of Officers under the Chief. The common people appear to have been almost in a state of slavery to the chiefs : but there can be no doubt that the same Councils which were held in Gaul and in Germany upon public affairs, attended by their chiefs, were also held in Britain, f The Provincial Govern- ment of the Komans of course was established here after their conquest. Three legions of 42,000 men were stationed in the country, and the governor or proconsul exercised arbitrary power over the inhabitants. There were, in the later times of the empire, three of these officers : one termed D^ix BritannioB ; another Comes Britannioi ; and the third. Comes Littoris Saxonici, as opposed to the Saxon invasions during the third century. After suffering the greatest oppressions under the Roman Go- vernment, and also from the incursions of the Scots and Picts in the north, when the increasing weakness of the Empire rendered it impossible to aid them against the Barbarians, the Britons called in the assistance of the Saxons, who, imitating the policy ^ of the rider in the fable, when the horse asked his help, sub- dued them and retained peaceable possession of the country until interrupted, some centuries later, by the inroads of the Danes. The first invitation of the Saxons and Angles took place in consequence of a general council held by Vortigern, the most powerful of the British Chiefs, in the year 449 ; and the conquest of the whole country was not completed till the end of the next century. Eight separate kingdoms were then esta- blished, but the union of two of these made the whole amount to seven, usually called, from thence, the Heptarchy. J This division of the country continued above two centuries ; for al- though the seven kingdoms are commonly represented to have been united under Egbert in 827, it is certain that he only ob- tained a partial and uncertain dominion over the greater part of * De Bel. Gal., v. II. f lb., vi. 20. \ Sevenfold Government. CH. 1.] ANGLO-SAXON MONARCHY. 7 five ; that he never had any footing in the sixth, and that he and his son Ethelwolf never even took any other title than King of the West Saxons. Indeed long before his time, in the sixth century, the more powerful Kings of Wessex, and afterwards those of Northumbria, used to take the title of Breitwalda, or governors of Britain — a distinction which only ceased in 670, on the death of Oswy. Oswy was the seventh Breitwalda, and Egbert called himself the eighth Alfred, his grandson, was the first prince who was called King of England, and his grandson Athelstane first really ruled over the whole United Kingdom in 927, calling himself sometimes King of the English, some- times of England. The Saxon Monarchy Avas not of long duration : the Danes, in 1016, entirely defeated and conquered that people ; and after a restoration for a very short period of the Saxon line, the Norman Conquest, in 1066, finally over- threw it, establishing a foreign family upon the throne, and a foreign nobility in possession of the landed property of the whole country. The Constitutions of the Saxons appear to have been the same -^^ in the several kingdoms of the Heptarchy, and afterwards in the \ United Kingdom. The descent of the Crown was irregular, 7 because the ideas of men on hereditary succession were not matured ; and when a prince left a son, more especially if that son was very young, a dispute frequently arose between his claims and those of his grandfather's second son, that is, the young prince's elder paternal uncle. The choice in such cases devolved upon the leading men — the chief landowners or thanes of the country ; and even when there existed no dispute, the form of an election appears in all cases to have been observed, and the Sovereign is always said in the Chronicles to have been chosen King (electus in Regem). At his coronation, a ceremony deemed essential to the perfection of his title, and performed by the chief prelate, the primate, he was presented to the as- sembled people, who, however, never had any real voice in his election, but only by their acclamations gave an affirmative answer to the question put, asking if they approved, or took, or acknowledged him for their King. The power of the King \ » never was absolute, nor anything approaching to it, but it was great, and his influence was greater. He had not only far larger ( possessions than any of the thanes or lords ; his possessions 8 GOVEKNMENT OF ENGLAND. [ciI. I. ■were nearly equal to those of tlicm all put together. Thus in the kingdom of Kent there Avere 430 places, or estates, and of these 191 belonged to the King. The rest were divided among two Prelates, as many Abbots, the Queen Dowager, and six Thanes, making in all eleven principal proprietors, beside whom there were smaller owners or sub-tenants, holding of the eleven thanes, as these held of the crown. In war the King com- manded all the forces; he was the supreme judge, receiving appeals from all other judicatures, and sharing in all the fines paid upon conA^ction, according to the usual Saxon, and, indeed, feudal practice of commuting all punishments whatever for fines. The great officers — the Earl, Eorlderman, or Governor of the County, the Gereefa, Sherifi", or Viscount under him, the Borough- reeves, the Judges — were all appointed by the King, and re- movable at his pleasure. I speak of the general state of the prerogative, although by the laws of the Confessor the Herc- tochs, or Dukes, and Sheriffs, are said to be chosen by the free- holders in the yearly folkmote. But in earlier times the Crown clearly had the appointment, and Alfred is recorded by Asser, a contemporary writer,* to have removed all the ignorant eorl- dermen, and replaced them with others. He could grant " his peace," that is, a protection from the pursuit of enemies, to any one, and demand money or service for it ; and within four miles of his Court all were secure. His first vassals did him homage by attending three times a year on his Court, and he had a right to their services in war, with those of their sub-vassals or re- tainers, according to the immemorial Saxon and indeed feudal usage, which annexed military service to the tenure of all lands, the service of the tenant in capite being due to the King, that of the sub-tenant to his Thane, Hlafod, or Lord. But except arming his immediate retainers, the King had no standing army or regular guard. The Danish Princes introduced this practice, probably from the insecurity of their conquest, keeping on foot a guard called Thinrpnann, or Thine/late, of 3000 men, selected from their whole forces, for whose government Canute compiled a code of rules. But this was an institution unknoAvn to the Saxon poHty, or even to the Norman, after the Conquest. With all these prerogatives and means of influence it is plain that the Sovereign's authority must have been very extensive. * § 35. CH. I.] ANGLO-SAXON MONARCHY. 9 The legislative power, however, appears never to have re^ sided in the monarch. Great as his influence was, and likely to give him overwhelming power in passing laws, he nevertheless must resort to his council, or gemote, to make them. There is no trace of any period at which their share of passing laws did not belong to the loitan, or wise men, or councillors of the king. These formed his council ; they were never very numerous, sel- dom exceeding thirty, never sixty ; and the laws were made in the joint names of them and the king. Thus we find Ina, King of Wessex, in 688, making seventy-nine laws at his witenage- mote, " with the advice of his prelates, eorldermen, wisemen, and clergy." So Edgar, in 971, long after the union of the Hep- tarchy, speaks of the laws which had been made by him and his witan (LI. Sax. 80), and this form, as Avell as the substance, was universally preserved. As for taxation, the royal revenues formed the main body of the public income, and the services of the crown vassals superseded salary in the civil as well as pay in the military department. But direct taxes were occasionally levied, and frequently by the king without consent of the witen- agemote ; though certainly the most considerable of them, the Danegelt, originally raised in 991, to buy off with tribute the' Danish invasion, was imposed by the witenagemote. It was continued, after many promises to repeal it, by successive sove- reigns until the reign of Henry II., when it was finally abolished. One source of revenue, however, appears in these times always to have been under the immediate power of the king ; he levied duties of customs upon imported goods. His ofiicers also raised contributions on the monasteries and rich proprietors, both the landowners in the country and the burghers in towns. As for the advantages which he reaped from the fines paid by his vas- sals on succession to or alienation of their fees, as well as from the marriage and wardship of minors, these were rather part of his landed property than of his revenues, and were equally en- joyed by the other lords of the soil. The regular revenue chiefly consisted of the royal property and of the direct taxes which the witenagemote raised. It must further be observed that, beside; sharing the legislative power, the witenagemote also shared the' executive functions of the government. By degrees they seem to have had a voice in the choice of the governors and sheriffs of counties. All great acts of state were performed in their meet- V 10 GOVERNMENT OF ENGLAND. [CH. 1. ings. Treaties were signed by them as well as by the king ; and the power of making both war and peace became vested in them jointly with the sovereign. Indeed the necessity of having their concurrence when the king had no standing army, and could only rely on his own vassals for service in war, must at all times have made it highly expedient to act in concert with the great allodial proprietors, who owed him no military service other than they might voluntarily undertake ; and hence a reference of all ques- tions of peace and war to their assembly appears to have become a necessary course of proceeding. Even in other countries, where the States had less regular power, they were convened on such occasions. In France, as we have seen (Part i.. Chap, x.), the sovereigns had in early times a means of maintaining their power and of reducing the assembly of their states to insignificance, which our sovereign never enjoyed. This power was curbed by that of the great feudatories, the six other princes, who formed, as it were, members of a great federal community; and accordingly the English sovereigns were more powerful in proportion to their great vassals than the French. But a very material difference existed in the relations in which these princes stood to their councils or states. The Imperfect Federal Union in France pro- duced its usual effects, and enabled the king to overpower any one province by the force which he derived from the rest. Hence, when the States of one rejected a law, or refused supplies, he had recourse to the others. So would it have been in Eng- land had the division of the Heptarchy continued, and the King of Wessex been only the most powerful of the seven princes. Happily for both our regular government and our legislative freedom, the whole were early moulded into one. The sovereign could not appeal from one to the others : he was forced to con- sult the general council ; he was obliged to share with them his legislative functions ; and their voice became a real and effectual control upon his power, instead of falling into a mere form or little better, as in France, where the States were only assembled to aid the king with their information, or to prepare the way for their co-operation in his wars, or to hear him publish such ordi- nances as he was pleased to frame for the government of his dominions. 1 After the Norman Conquest the Royal authority was greatly en. I.] ANGLO-SAXON MONARCHT. 11 increased, and came, notwithstanding the legislative power of the great Council now called the Parliament, greatly to exceed that of the French Monarchs. Before the Conquest the most effectual check to it arose from the consolidation of landed pro- perty, of many great iiefs, in the hands of a very few great lords. As long as these fiefs were vested in a great number of crown feudatories, there was no chance of their offering any resistance to the far superior resources of the sovereign. But in the tenth century three nobles, Godwin, Leofric, and Siward, had en- grossed so large a portion of the country with the fourteen or fifteen earldoms conferred upon them and their families, that they more than overmatched the King, whose prin- cipal security lay in fomenting divisions among them. The whole spirit of the Saxon institutions was indeed eminently aristocratic, like those of all the feudal Monarchies. Not only the privileges of the great men, the Thanes, were ample, but there was a regard had to rank and blood running through every arrangement of the state policy. The violation of an ethel born or noble woman was paid for by a higher murde than that of an iin-ethel or common person. The murder of all persons was in like manner paid for by a loere or were geld, nicely adjusted to their relative rank. Nay, the testimony of persons was weighed in the same patrician balance, the oath of a tenant in chief, a King's thane, being of equal avail with that of six carles or peasants, and that of an eorlderman being equal to that of six thanes. A strange instance of this is preserved in the Saxon Chronicles. One Alfnoth sued the Abbey of Romsey for a piece of land; a jury of thirty-six thanes were about to decide the cause, and had retired, when Alfnoth, the demandant, chal- lenged the tenants, the Monks, to prove their title by oath ; the Eorlderman, patron of the Abbey, interposed, and the Court held his oath to be decisive, giving judgment for the Monks, and condemning Alfnoth to forfeit his goods and chattels for his false suit. It is clear that the Saxon Government was an Aristocratic Monarchy, a Feudal Aristocracy in the strictest sense of the word. The whole power in the State was shared between the Sovereign and the nobles, clerical and lay. The King had much opposition to encounter from their great possessions, from the numerous free followers over whom they exercised an abso- A 12 GOVERNMENT OF ENGLAND. [CH. I. lute control, from the still more numerous hordes of serfs whom they possessed in property, and who were for the most part attached to the soil of which they were the only cultivators, from the warlike habits of these chiefs, and the habitual exercise of violence in which they lived, reduced into a system and termed the right of private war. The superstitions of an ignorant people gave the priests an ascendant, which interposed another kind of check upon the Prince's authority, while the legislative functions of the state, what is, properly speaking, the supreme power, was shared by the King with the assembly of the Pre- lates and temporal Lords. With all these checks to his power it was still very great, from his ample possessions, his numerous vassals, and the divisions of those chiefs who were his natural adversaries. But to represent his prerogative as unlimited, and his government as despotic, would be a gross abuse of language ; it would, indeed, argue an entire ignorance of the Anglo-Saxon story. Yet he would not commit a much less considerable error who should represent, as some partizans of popular rights have done, this ancient constitution as INIixed in the modern sense of the term, and containing the democratic principle which grew up with it in a later age. Nothing can be more certain than that the people, the commons, had no share whatever, direct or in- direct, in the government. Nothing can be more manifest than that there was neither actual nor virtual representation in its structure ; and that neither the lesser freeholders attended the Witenagemote in person, nor the burghers either personally or by deputy. They who have fondly imagined that they could trace in these remote times any semblance of the Constitution now established among us, have bewildered themselves in obscure paths, where the lack of light enabled their fancy to conceive things that had no real existence. They therefore, in exerting all their ingenuity, whether to embody the creations of their imagination, or pervert historical facts to suit a particular theory, have, with the best intentions towards popular rights and free institutions, done a very unacceptable service to the cause they patronized. Whosoever founds his esteem of any constitu- tion upon the remote antiquity of its origin, may depend upon it that he of necessity limits its approaches to perfection, and restricts within narrow bounds his own efforts for its improve- CH. I.] ANGLO-SAXON MONARCHY, 13 ment. Besides, the institutions of a rude age must needs be most imperfect and little suited to the wants of a society ad- vanced in civilization and refinement ; and if those things alone are to be valued and maintained which have had their existence among barbarians, civilized men must of necessity abandon the most precious results of political experience. Of the numberless evils entailed on the community by the feudal aristocracy which formed our more ancient Constitution, we have already had oc- casion to treat in the second part of this work (Chap. vii.). It may be fairly questioned if any society above the condition of men in the rude state, ever existed in a more wretched condition than that of England at the very period to which those rea- soners, of whom I have just spoken, are so fond of bidding us look for the genuine principles of our free Constitution. ( 14 ) [CH. II. CHAPTER II. GOVERNMENT OF ENGLAND ANGLO-NORMAN MONARCHY. William the Conqueror — Lord Coke's Error — Influence of Foreign Dominions — Great Possessions of the Conqueror's Family — Royal authority not absolute, though great — Parliament or Colloquium ; its composition — Extension of Feudalism by William — Almost all his immediate successors usurpers — Occasions of assembling Parliament — Examples: Henry II.; Stephen; Richard I.; John — Taxation — Legislation — Henry ll.s profligacy — Royal power over the Cliurch — Two practical tests of Royal authority — Tyranny and profligacy of the Anglo-Norman Kings : William I. ; William II.; Henry I.; Henry II.; Richard I. — Anglo-Norman Monarchs prac- tically almost absolute. There can be no doubt that William was enabled to consolidate and extend the Royal authority from the period of his accession to the Crown. But much controversy has been raised upon the line of policy which he pursued, and even upon the course of his public conduct. While some have contended that he en- tirely changed the ancient policy of the realm, introduced the feudal system which had been established in Normandy, and fortified his authority by the extirpation of the ancient nobility and the transfer of all the landed property to his followers, — an- other class of reasoners have denied that he effected any change at all in the ancient Saxon institutions, and have strenuously con- tended that he obtained the Crown not by his victory over Harold, but by the will of Edward the Confessor, arguing that conqueror means in fact only conqucestor, a person who succeeds by devise or by any other mode of purchase, as contradistin- guished from one who takes by inheritance. Some indeed have been so inexcusably careless in their statements as to regard his title in the light of a devise, or at least of an appointment by the Confessor to him as one of the inheritable branches of the Saxon royal family,* and some in answering them have fallen into an * Of this class is no less a feudal lawyer than Lord Coke. In his Commentary on the Statute of Merton (2nd Inst.), he mentions the marriage of Robert, William's father, en. II.] ANGLO-NORMAN MONARCHY. 15 almost equal error by inadvertence to the canons regulating the descent of lands. Both these views of the subject must be regarded as ex- aggerated and erroneous. The record of Domesday Book clearly shows that many persons retained their property who had held it in the Confessor's time ; and although, in conse- quence of the rebellion which took place during his absence in Normandy^ the greatest changes took place in the distri- bution of landed property from the number of confiscations which ensued, there seems no sufficient ground for the charge brought against him of encouraging disaffection underhand, in order that he might have a pretext for making an universal transfer of landed property to the Normans. On the other hand, to deny that the military force which he introduced into the country, and the possession of his foreign dominions, enabled him to curb the Barons and exact a much more vigorous rule than the English had hitherto known, would be shutting our eyes to the obvious facts of the case. The never-failing conse- quences of the Imperfect Federal Union (Part iii. Chap, v.) were certain to flow, from the sceptre being in the hands of a prince who held on the continent a Principality equal to one- third of the French Monarchy. For nearly three centuries* the English monarchs were endowed with these resources ; and with Arlotta, his mother, after his birth, and conceives that though it made him legiti- mate by the custom of Normandy, and so inheritable to the duchy, it could not give him a claim to the crown of England, because no legitimation per suhsequens matrimo- nium is known to our law, the famous enactment at Merton having of course been de- claratory only. But even had William been born in lawful wedlock, he could not possibly have any claim; for his only connexion with the Confessor was the marriage of Edward's father with William's great-aunt, the sister of Richard II., his grand- father ; consequently he had no blood of the Saxon purchaser, and was a mere stranger, be he ever so legitimate. As well might our Queen claim the crown of Denmark, being the great-niece of Matilda, the Danish King's grandmother. It is a somewhat singular circumstance that the Judges, in delivering their opinions in the House of Lords, in the great case of Doe v. Vardell, in 1840, rested their argument mainly on this passage of the 2iid Institute, which contains an error so gross as to throw great doubts on its authenticity, and, if authentic, to destroy the weight of the authority, beside every one of the three marginal references being erroneous. The Chancellor (Lord Cottenham) acceded to the opinion of the Judges avowedly on the score of Lord Coke's authority, conceiving it to be now for the first time cited, whereas it had been cited and rejected in the Court below, the King's Bench, from which the case came by writ of error. I have the satisfaction of knowing that the opposite view which I took of the whole question has met with the general concurrence of foreign jurists — in particular. Dr. Storeys; see the last edition of his celebrated work on the Conflict of Laws. * Two hundred nad ninety-two years 16 GOVERNMENT OF ENGLAND. [CH. II. tlic event to which they owed their crown, a military conquest, with the constant presence of foreigners surrounding their per- sons, as well as the possession of so vast a proportion of the pro- perty of the country by those foreigners and their descendants, made the exercise of arbitrary power a far easier and safer thing than it had been under the native princes. Another change took place of great moment, and of extensive influence in aug- menting the power of the sovereign. It is certainly most in- correct to represent the Conquest as having introduced the feudal policy ; but it is certain that the Normans had established "f^ that scheme of government much more systematically and fully than any other people ; consequently William never rested till he had moulded the less perfect Feudalism of the Anglo-Saxons after the Norman model. Allodial proprietors were tempted by offers of protection, and wearied out by vexatious proceedings, till they sui'rendered their independent titles and became, the more considerable sub-vassals or tenants in chief of the Crown, the less considerable vassals of other great lords, who themselves held of the Sovereign. The Conqueror derived from hence no little addition both to the splendour of his Court and the real power of his office ; for all his vassals held by military service, and each when he took the field was attended by his own vassals or sub-vassals. The vast possessions of the king and his family must have prodigiously strengthened his authority. William had 1432 manors all over England ; his brother Odo, Bishop of Bayeux, 450; Geoffrey, 280 ; Eobert, Earl of Mortagne, 937, making in all no less than 3099 manors belonging to the family, beside the sixty-eight royal forests, as well as many parks and free chases. Nor must we omit a most important change in the alle- giance of the vassals introduced by the Conqueror, and calcu- lated materially to curb the power of the Barons. Formerly the vassal sware to his baron fealty absolutely ; he was both forced to follow him in rebellion against the Sovereign, and his oath of fealty to the Sovereign contained an exception of his duty to his liege lord. The Conqueror would not suffer any such limited or divided allegiance ; he required all to owe him fealty without any exception ; and he forfeited the lands of the sub-vassal as '.well as those of the vassal himself, if the tenant followed his liege lord in rebellion against the King, the universal overlord of the realm. ^ CH. 11.] ANGLO-NORMAN MONARCHY. 17 It has been said that Normandy was rather an apparent than a real increase of the English Sovereign's power, and of this opinion is Mr. Hume (Hist. vol. i. App. 1.) It cannot be de- nied that the Norman Barons> always aided by the French King in their attempts at throwing off the Duke's yoke, gave fre- quent occasion of annoyance to their prince, and often distracted his attention from the management of his English affairs. Yet no one can doubt that he derived considerable accession of power from so noble a principality ; he often used his foreign troops directly in the subjugation of his refractory English Ba- j rons ; and it is certain that the first establishment of a constitu- / tion, nearly resembling our present system, was after that duchy J and all the continental dominions had been severed from thej English Crown. But nothing certainly can justify those who' have contended on the other hand that there were no limits whatever affixed to the power of the Sovereign after the Conquest. The Monarch was very powerful ; he was not absolute ; and this leads us to consider the only but the material check to his power, beside the mere force of the wealthy Barons, always more or less a re- straint upon the Prince in every feudal Monarchy — I mean, of course, the General Council, whose interposition was always held necessary for the making of laws. This body had now changed its name, and was called by the Norman term of Parliament, in Latin Colloquium, instead of the Saxon Witenagemote or Michelgemote. In some sort, too, its composition had undergone a change ; but rather in appearance than in reality. The sounder opinion seems to be, that before the Conquest its members were the Prelates and the great allodial pro- prietors, and that the vassals of the king did not form a part of it. This is certainly the subject of controversy ; and they who deny the position have at least to urge in support of their opinion the great importance of the Crown vassals, the powerful tenants in capite, and the likelihood that the King, who alone had the power of summoning the Council, would call these his vassals to assist. But be this as it may, no doubt can exist that after William had, about the twentieth year of his reign, completed the feudalization of the whole kingdom, and converted all the allodial into feudal holdings, the Council was composed of the Bishops, Abbots, and greater Barons, tenants in chief of the Crown, who were re- 18 OOVERNMIiNT OF ENGLAND. [CH. II. (luiicHl to attend tlieir Lords' Court or Parliament three times a year, at the great festivals of Christmas, Easter, and Midsummer, as the Gemotes had been held before the Conquest at the same seasons. The numbers who attended the meetings were not great. TJie Avhole Barons of the realm were only, according to the most accurate enumeration, 605, of whom 140 were eccle- siastical ; but a very large proportion, from their distant resi- dence, never attended the court. The stated meetings were probably occupied chiefly with matters of form and routine, while the important concerns of the kingdom were reserved for occasional meetings, which the Prince summoned when he found that he v; anted their aid in his wars, or their assent in making laAvs, and bringing great oifenders to punishment. It is chiefly from the interposition of these occasional assem- blies, whenever matters of importance Avere to be transacted, that we learn the strength of the Parliament, and can estimate the degree in which the Poyal Prerogative was limited by the established Constitution, subject to one remark which I shall find it necessary afterwards to subjoin. Let us mention a few of the principal occasions on which the very imperfect history of our early Constitution has preserved the memory of this parliamen- tary interference, and we shall be convinced that though the Conquest consolidated and extended the prerogative, it did not materially break in upon the functions and authority of the Great National Council. When the Conqueror had nearly matured his plan for feudal- izing the kingdom, he assembled a Parliament in London ; and the country w^as divided into Knights' fees, the whole landown- ers, as well clerical as lay, being obliged to send for each fee, that is, each five hides, or 600 acres of land,* a Knight equip- ped for the field to serve during forty days.f This raised a body of 60,000 horse, there being 60,215 Knights' fees, whereof 20,015 were in the hands of the clergy. One of the most certain occasions of calling a Parliament was the death of the King ; when the old form of election was re- stored ; and indeed as all of the Conqueror's successors, except Henry II., that is, William Pufus, Henry I., Stephen, Kichard, * This is about a fair average ; but of course, as the apportionment was by value, there must have been a great difference in the extent, according to the quality of the soil. t Wilkins, L.L. Sax., 227. CH. II. J ANGLO-NORMAN MONARCHY. 19 and John, were usurpers upon the rightful heirs, the assent of the Council became a material confirmation of a bad title. Thus William II. was chosen according to his father's dying request, Kobert, his elder brother, being set aside. Stephen was crowned without any Parliament, but he convoked soon after a Synod of the Clergy, who assumed to dispose of the Crown. The Em- press Maude had been acknowledged Henry's next successor at a Parliament held nine years before his death. On Henry II. 's decease the Queen convoked a Parliament to receive Pichard I. and fix his coronation. At his death John held one at South- ampton, which gave him the preference over his nephew Arthur, the rightful heir to the Crown. It is manifest that little or no reliance can be placed upon such appeals to Parliament, as evincing the legal structure of the Constitution ; becau.se the power of the great Barons was such as made it necessary for the Sovereign who would suc- ceed upon an infirm title to conciliate as many of them as he could, and no better way presented itself of strengthening a defective claim to the Crown than obtaining the consent of a council composed of those Barons and the heads of the Church. There seems great reason for beheving that this also was the main if not the only reason for assembling Parliament when any measure of policy or new law was to be sanctioned ; and this is the remark subject to which I before stated the proposition, that appeals to Parliament were evidence of some power existing in the Constitution independent of and even superior to the King's. It is possible that this was rather an expedient to which the King resorted in consequence of the power and wealth vested in the Barons, than an acknowledged and fundamental principle of the Constitution. Nevertheless the appeal to those assemblies on all important occasions, whether executive or legislative, is unquestionable. When a prince was disposed to make any grant or concession to the people, it seems not to have been held necessary that a Parliament should be summoned. This arose from the original principle of the Anglo-Saxon and Norman legislation. The law was held to be the King's decree ; he made it generally on the petition of the Witan, or great lords and prelates ; but he might also make it of his own free will, provided it was _a con- cession to the nation, which might be presumed^ as of course to c 2 *}() OOVF.RNIMKNT OF ENGLAND. [cil. II. meet with their consent. The modern constitution retains this form, but extending it to all cases, as well those in which the prince yields something as those in which he claims something. According to this view of the matter. Henry I. promulgated his famous Charter, renewing and confirming the old Saxon laws and those of the Confessor, of which we have no account, unless that of Henry's confirmation. It is a very important statement in this charter that all the alterations made by the Conqueror in Edward's laws are distinctly stated to have been made with the consent of the barons as well as the prelates. The treaty (1153) between Stephen and Henry II. was ratified in an assembly of Prelates and Barons, who witnessed the charter then granted by Stephen. Stephen held three other councils, in which he agreed to confirm all the rights granted by Henry I. to the nation. The celebrated Constitutions of Clarendon, by which the clergy were subjected to the jurisdiction of the temporal courts, were made at a parliament attended by thirty-seven barons and eleven counts.* In 1191 a Parliament was held against the usurpation of Longchamp, in Richard I.'s absence, and to appoint a council of regency. In 1 205 a Parliament at AYinchester ordered every tenth knight in the realm to be raised and mounted at the charge of the other nine, as a force to aid in recovering the continental dominions of the Crown, and required every man, on an enemy landing, to rise and serve on pain of perpetual slavery with a heavy poll-tax. This Parliament is said to have been attended by the Prelates, Barons, and " all the faithful people of the King," which last term means only, as we have frequently shown, that^the assent of all not summojied was assurned^ When, in 1213, John surrendered the kingdom into~ the hands of the Pope, and agreed to hold it as a fief, doing him homage as his liege lord, a council of the Barons and Pre- * It is curious to observe the working of clerical prejudice in an accurate, and, generally speaking, a liberal mind. When Dr. Lingard (i. 386) is mentioning the most important of those provisions, that which makes a clergyman triable for a crime before a civil or temporal judge, he treats it as an innovation upon the rights of the clergy overturning the old law, and only says of it, " however it might have been called for by the exigencies of the time.'' Can he really mean to aflSrm that it re- quired any peculiar " exigency of the times " to render a priest amenable for theft, rape, or murder, like the rest of his fellow-subjects ? CH. II.] ANGLO-NORMAN MONARCHY. 21 lates was held, and two Bishops, nine Earls, and three Barons signed the instrument. Nor were the Barons willing to forget this transaction, or indisposed to avail themselves of its dis- graceful import when it suited their purpose. Soon after, they appealed to Pope Innocent, as their liege lord, against John, for whom however his Holiness not unnaturally decided.* Although it seems to have been understood that all general laws must have the consent of the Parliament, it seems equally clear that the limits of the Royal authority in regard to taxation were very imperfectly defined, especially in the earlier period of the Anglo-Norman monarchy ; yet it is not very easy to determine whether the Prince in his exactions was committing an usurpation or only acting according to his prerogative. The Conqueror and his successors, beside their exactions from their vassals in the name of marriage, wardship, and the fines which they levied upon them on many other accounts, also levied tolls at fairs and markets, and on the passage of goods over bridges. No ancient charter granting a right of market with tolls, pickage, and stallage, ever purports to be by consent of Parliament. Customs were also levied on goods imported and exported at the havens of the realm. On towns, especially those in the demesne lands of the Crown, a tallage, in the nature of excise, was levied, and the inhabitants used to off*er a composi- tion, which occasionally was refused. The Conqvieror, of his own authority, revived the payment of Danegelt, which the Confessor had remitted; and he is said to have raised by such means the incredible sum of nearly 1 1 ,000,000/. of our money. One of the provisions of Henry I."s charter was a restriction of the Crown's power of fining. Instead of the culprit being in the King's mercy, as had been the case under his father and brother, that prince restored the Saxon icere gelds, which ascertained the amount of fime for each offence. He also provided that no new taxes should thenceforth be imposed, and he materially lessened the burthen of the feudal incidents. Yet notwithstanding this charter, the result of the infirmity of his title at the beginning of his reign, his extortions were fully * Dr. Lingard, though he does not defend this base transaction, is anxious to exte- nuate it by all the means in his power. Nor can anything he conceived much more tlimsy than the topics he resorts to ; for example, that the condition of vassalage was reckoned honourable in those times ! '12 GOVERNMENT OF ENGLAND. [cH. II. equal to those of his predecessors, although from the Barons making no comphiint it is probable that he confined himself to oppressing the inferior classes and the towns. He also kept bishops' sees vacant three and even five years, during which he received all their revenues, and sometimes he seized all a prelate's property at his decease. Canons being made against the mar- riage of the clergy, he sold at a high price licences to break these. Desiring to raise a large sum, by fining the parochial clergy who had transgressed some canon, and finding this yield very little, he at once and of his own authority raised a general tax upon them, and called it a fine for breach of the canons. It is certain that, with great talents and address, he >tas one of the most unprincipled and tyrannical princes that ever sate upon the English throne. The quarrels in which Henry II. was constantly engaged with the Church, probably restrained his violent and cunning nature so far as to prevent him from exciting general odium by interfering with the property of his subjects. But his suc- cessor, the favourite theme of all our romance-mongers' praises,* the gallant Cceur-de-Lion, was the most rapacious prince of his age. His shameless sale of Earldoms for money, and his re- storing to the Scots their castles long in the hands of the Crown, for large ransoms to feed his extravagance, as well as his eman- cipating them from their fealty to the English Sovereign, are acts of as scandalous and as mean profligacy as any which his despicable successor ever committed. The regent, De Burgh, whom he left to scourge the country when he went abroad in 1194, is said to have raised in two years a sum equal to eleven millions of our money at the least. The exactions of this functionary drove the citizens of London to resistance, and Fitzosbert"s rebellion was the consequence. The Council of Regency in 1 103, for his ransom levied a tax of 20.*;. on every knight's fee, and 25 per cent, on all income, ecclesiastical as well as lay. They appear to have had no Parliamentary authority for this ; although they were named to the Regency by the Parlia- * Whoever admires Sir Walter Scott's genius for romance-writing — as who must not ? — naturally feels concerned for the failure of his Crusade tales to interest us in Richard. Notliing more unnatural, more upon stilts, more unbearable to read, than the speeches he puts into his hero's mouth, is anywhere to be found ; hardly his manufacture of speeches for Elizabeth, and of light conversation for Buckingham and Charles I. about '-Sweet Will " (?'. e. Shakspeare) and other matters. CH. II.] ANGLO-NORMAN MONARCHY. 23 ment held in 1191, as has been already stated. Following their example, John, in 1 199, soon after his accession, levied a seventh of the income as well as the personalty of his Barons by way of penalty for their having deserted him in his disastrous Norman campaign. In short, with the exception of the Parliament held at Nottingham in 1194, of spiritual and temporal Peers, we see hardly any example of a tax imposed by the National Council. That assembly imposed a tax upon land. The numbers which attended it, however, are a proof how little the principles of the constitution were understood, or the interference of the Parlia- ment valued ; only fifteen Peers of both kinds, lay and clerical, were present. It appears that in England as in France, a sem- blance rather than the reality of general assent to taxes was alone required for their being imposed. The great difference between the two constitutions was that the general laws appear in England always to have been made in the National Assembly or Parliament, while in France the King and his Council did no more than promulgate their edicts to the General Assembly, making sure of its assent, if indeed that assent was ever asked, of which there remains nothing like evidence. The power of the Crown in respect of the Church formed in these times a very important article of the constitution. In England, as in all other countries since the establishment of Christianity, the Bishops were originally the mere overseers of the clergy, and possessed of no temporal wealth or power u.nder a religion of which poverty was the chief characteristic ; and they were chosen partly by the clergy, and partly by their lay flock, as we have seen in the first part of this work (Ch. xi., XVI.). But in proportion as their importance increased, the Church showed a desire to exclude the laity from interfering in the choice, making a decree in the Council of Constantinople, 869, against all lay votes at elections, and also against the Chap- ters receiving any royal nomination. At the same time the sove- reigns evinced an equal disposition to interfere with their choice of prelates. Sometimes they accomplished, by main force, their purpose of directing the election ; more frequently by influence. In Spain alone was the power of appointment vested directly in the sovereign, by a grant of Urban II., in 1088. In France, although the princes of the two first races assumed the nomina- tion, they afterwards yielded it, at least nominally, to the clergy. 24 OOVKRNMENT OF ENGLAND. [CII. II. In England the right of the Chapters was not denied ; but then the King claimed two important privileges ; he insisted upon his licence to elect being necessary before the Chapters could proceed, which gave him the previous power of recommending whom he pleased, and he then required the presentment of the prelate when chosen for his confirmation or acceptance, which gave him a veto on the election in the last stasfe. The monas- teries in some cases claimed the right to the exclusion of the secular clergy, a claim admitted by even the stoutest advocates of the Romish Church to be wholly preposterous. The quarrel between John and the See of Rome began from the monks of Christ Church claiming to elect the Archbishop of Canterbury, and the Pope allowing this claim upon an appeal to him by all parties. The Anglo-Norman Kings may be said substantially to have directed the choice of all their prelates, though not to have directly named them. On particular occasions they made their appeal to the Great Council of the Barons, or Parliament, as when William the Conqueror appointed Lancfranc in 1070, by consent, it was said, of the Barons, probably because he was a foreigner, being a native of Pavia. The Barons appear occa- sionally to have interfered in this matter without being con- sulted, for we are told that they combined against Guitmond, to whom the King had offered an English see, which he refused on the ground that the King had no right to impose superiors on the clergy ; and this answer was said to have been so distasteful to the Barons, that they drove him from Normandy after pre- venting him from being raised to the See of Rouen. The only instance in which the Anglo-Norman Kings lost any of the Prerogatives which those of the Saxon times had possessed, was on the Earldoms becoming hereditary, as in Nor- mandy, instead of being, as formerly, conferred for life only. This difference was probably more in name than in substance ; for the Earl's son must generally have been so much more pow- erful than the rest of the Barons in the district as to ensure his nomination upon his father's decease. But, even were it other- / wise, we may easily perceive that, with such influence over the I clergy, with the direct power of appointing to all judicial and / other executive offices, with their exorbitant landed property, I and their numerous retainers, to say nothing of their privilege I of interfering Avith the course of justice and with property by its CH. II.] ANGLO-NORMAN MONARCHY. 25 administration, they must have possessed a power so extens ive as to reduce the privileges of the subject within narrow limits. There are two tests of the extent to which Royal prerogative is enjoyed in any community. The one is the power of making, or concurring in making, the laws by which the state is go- verned ; the other is the power of ruling arbitrarily, so as to set at defiance any laws which may nominally exist for the govern- ment of the state. The former in theory may appear to occupy a larger space, because the legislative in truth means the su- preme power in every country. But the force of the law itself, and consequently the value of the legislative authority, is truly tested by the latter circumstance, inasmuch as the silence of the law before the Monarch sets him above it, and if all his other attributes enable him to defy it, there is but little lost to him in having no power to change its provisions. Practically he may be absolute, though forming part of a constitution theoretically limited ; not to mention that if the existing laws do not inter- pose obstacles to his tyranny, it signifies very little that he should be unable of his own mere authority to change them by new enactments. If we apply these principles to the prerogative of the Anglo- Norman Crown, we shall find little reason for believing it to have been of a very limited nature. The Princes who reigned from the Conquest to the granting of the Great Charter were, in the strictest sense of the word, tyrants ; and Stephen, were he excepted from this description, owed his curbed authority to the constant rebellion of his Barons, and his disputed succession to the Crown, which filled his reign with anarchy, and covered the country with desolation. These Princes not only displayed the fiercer disposition of tyrants, with the caprice of their ungo- vernable humours, but they were constantly gratifying their arbitrary or cruel propensities at the expense of their subjects, and without exciting resistance or suffering restraint. The Conqueror, not content with possessing sixty-eight forests, with other old parks and rights of free chase for the amusement of hunting, to which, like all his race, he was passionately addicted, threw into a New Forest (the name it still bears) great part of the fine county of Hants, thirty miles square in extent. This operation was repeated in other districts by his sons and grand- sons, and it implied the destruction of all the property within 26 GOVER>(MENT OF ENGLAND. [cil. II. the district thus seized, the razing houses and cottages to the ground, the throwing lands out of tillage, the expulsion, and often the destruction, of the inhabitants. A promise to abstain from such waste was frequently made by these Princes when they had any point to gain, as to excite a spii-it of hostility to the refractory Barons ; and it was as often broken as made. At length the Charter of the Forest was extorted from John ; its effect was to disafforest all that had been thus wasted since Henry II.'s time, and it prevented the future spread of this in- tolerable mischief These Princes often prohibited under severe penalties any person from hunting on his own domains, or granted to one the exclusive right of chase over another's pro- perty, a right not yet wholly extinguished in all parts of the island.* But the worst of the Conqueror's crimes remains to be told, and the one which most strikingly proves under how little re- straint the caprice and the cruelty of the Norman Princes were placed by the Constitution, how much soever they may have been occasionally thwarted by their Nobles, barbarians as cruel, as overbearing, and as lawless as themselves. He resolved to draw a zone of desolation — a desert country — between his do- minions and the northern tribes, who had given him trouble by their incursions ; and accordingly he dispersed over the northern counties bands of soldiery, with orders to burn, sack, and ravage the land, sparing neither man nor beast. The whole country between York and Durham was thus laid waste ; upwards of 100,000 persons of all ages and both sexes, not enemies but subjects, were slain ; and a century afterwards the traces of this awful devastation were discernible on the whole of that road for above seventy miles. When we hear of Eastern Despots we must confess that they would be greatly slandered by any comparison of the Norman king's conduct with theirs. No instance is on record of any Oriental Prince ever thus treat- ing the territory and the people subject to his dominion ; their ravages are confined to hostile countries and inimical nations. Wdham Rufus passed his short reign in the unbridled gratifi- cation of his voluptuous passions and his cruel disposition; butchering prisoners with his own hand ; laying waste districts * The maxim in William's time was — " Whoso shall slay hart or hind, men shall him blind." CH. II.] ANGLO-NORMAN MONARCHY. 27 to extend his parks ; putting out the eyes of his captives when they were of rank — an Oriental cruelty, in which all the Anglo- Norman Kings indulged. It Avas his encomium on his rapacious minister, Ralph Flambard (the devouring torch), that to please a master he would brave the vengeance of all mankind ; and his exactions were so intolerable, that the blow which deprived Wil- liam of life was supposed to have been directed by private revenge. Henry I., the scholar, as flattering historians have named him, when alarmed by the resistance of his Barons, pursued a policy the most profligate and tyrannical ever known in modern times ; he employed all the energies of the law and the services of corrupt judges to entrap and convict great landowners, whose forfeited estates on their attainder he bestowed on men of the basest extraction and most abandoned lives. Outlaws themselves for infamous oflences, they thus became suddenly possessed of immense wealth, and formed a trusty body of allies against the old Barons of the realm. His dissimulation was proverbial ; his violent temper bespoke him the son of William ; his dungeons were crowded with victims ; and, at his death, there was found his cousin, the Earl of Mortoil, who had long been in the dun- geon, and had likewise been deprived of sight. Barre, a trou- badour poet and knight, prisoner of war, was ordered by him, in revenge of a satire he had written, to lose his eyes, notwith- standing the remonstrance of the Earl of Flanders, who was against a proceeding as cowardly as it was against the laws of chivalry and war. Henry persisted, and the unhappy victim dashed out his brains in a paroxysm of grief and indignation. The passion of the chase was not merely shown by the Anglo- Norman Princes in laying the country waste to extend their forests ; they established a code of forest laws the most cruel and barbarous of any known among men pretending to the least degree of civilization. All within the forest precincts, and all who dwelt on the borders, were subject to this sanguinary code. It punished the slightest of the innumerable offences which it denounced against the game and the timber, with mutilation, loss of limb, and loss of sight. Henry II. had, at the commence- ment of his reign, when his crown was doubtful, substituted for these punishments the more merciful penalty of fine and im- prisonment ; but as his authority became better established he 28 GOVERNMENT OF ENGLAND. [cH. II. restored the old and savage inflictions. His rapacity yielded to no Prince's since the Conquest ; justice was openly bought and sold during his long reign, and instances are not wanting of his tak- ing money from one party to accelerate the decision of a suit after having been bribed to retard it by the other. That he was the best of "William's successors may easily be admitted, without bestowing upon his memory any great praise ; but when Hume represents his character as " almost without a blemish ;" and addsj that it " extremely resembled that of his " grandfather Henry I.," we are naturally led both to reflect on the sangui- nary forest laws revived by the one Prince after he had yielded to the voice of nature in their repeal, and on the corrupt admi- nistration of justice, as well as on the barbarous cruelty of the other, in which he had not been surpassed by any sovereign who ever filled the English throne. As for Kichard, Hume himself, with all the " childish love for kings" which Mr. Fox so justly imputes to him, has confessed that he was cruel, haughty, tyrannical, and rapacious ; and indeed his courage appears to have been his only redeeming quality. I apprehend, therefore, that the exercise of such tyrannous acts as we thus find to have signalized the Anglo-Norman reigns, and without ever producing resistance from the subject, much less remonstrance from the Parliament, demonstrates the extent of the Royal authority and the feeble restraints imposed upon it by the constitution. Provided the King only called his Barons together upon great occurrences, to confer with them touching measures of peace and war, or to obtain their assent to new laws, it shordd seem that he was at liberty to act as he pleased ; that the administration of justice afibrded no protection to the people ; and that the privileges of the Parliament afforded no real check to the caprices, or the cruelty, or even the rapacity of the Prince. It is quite certain that although in England there was at all times a legislature, of which the King formed only one portion, and though the foundations were then laid from the most remote antiquity for the free government which was gradually raised upon them, yet as far as regards the actual power of the Sove- reign it was fully as great to all practical purposes, and that the rights and liberties of the people were fully as contracted, as in the neighboiuing kingdoms of France and Germany. Indeed CH. II.] ANGLO-NOKMAN MONARCHY. 29 the Baronial power, which formed the principal counterpoise in practice to the exercise of the Royal prerogative, was unqiiestion- ably more curbed and subdued in England than in the monar- chies of the Continent. There can be no creation of national vanity more groundless than the notions which represent our ancestors as enjoying more freedom, and their princes as holding a more limited authority than was known in the feudal monar- chies of the neighbouring nations. ( 30 ) [cH. III. CHAPTER III. GOVERNMENT OF ENGLAND FOUNDATION OF ITS PRESENT CONSTITUTION. Four essential requisites of limited Monarchy — Error of supposing nominal privileges real — Causes of the resistance to John — Great Charter — Forest Charter — Brol