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THE 
 
 RISE AND PROGRESS 
 
 OF 
 
 THE ENGLISH CONSTITUTION, 
 
THE 
 
 RISE AND PROGRESS 
 
 THE ENGLISH CONSTITUTION 
 
 E. S. CREASY, M.A., 
 
 BA KRISTER- AT-L AW ; 
 
 PROFESSOR OF HISTORY IN UNIVERSITr COLLEGE, LONDON ; 
 
 LATE FELLOW OF KINGS COLLEGE, CAMBRIDGE. 
 
 LONDON: 
 
 ^' RICHARD BENTLEY, NEW BURLINGTON STREET, 
 
 PUBLISHER IN ORDINARY TO HER MAJESTY. 
 M.DCCC.LIII. 
 
i 
 
 
 LONDON : 
 PRINTED BY WOODFALL AND KINDER, 
 
 ANGEL COURT, 6KINNBR STREET. 
 
PREFACE. 
 
 In 1848 I prepared and published a small pamphlet, 
 called " The Text-Book of the Constitution," in which 
 "were arranged the texts of Magna Carta, the Petition of 
 Right, and the Bill of Rights, with historical comments, 
 and with remarks on the People's Charter and other poh- 
 tical topics of that yeai*. Independently of its politics, 
 that pamphlet has been found useful as an historical 
 compilation; but the extent to which its latter pages 
 were occupied witli poUtical discussions, made me un- 
 wilhng either to employ it myself or to see it employed 
 by others in education. I do not wish to disavow any of 
 the opinions which I expressed in it, but a teacher of 
 History has no right to avail liimself of the position in 
 wliich he stands towards his pupils, for the pui-pose of 
 training up broods of young Tories, Whigs, or Radicals, 
 according to his own party predilections. I therefore 
 intended to prepare an edition of that little treatise, which 
 should deal only with the Past, and in which the spirit 
 of party pamphlet should be entirely got rid of. But 
 
VI PREFACE. 
 
 the work has grown under the pen ; and I have been led 
 to make additions, omissions, and re- arrangements, which 
 have rendered it a distinct book, and one to which the 
 name it now bears is much more applicable than the title 
 of its predecessor would have been. 
 
 Except in the earher part of the volume, I have en- 
 tirely avoided ecclesiastical topics. I have found it im- 
 possible to deal with them, without minghng in some of 
 the hottest controversies of the present day. 
 
 My obligations to Guizot, Palgrave, Kemble, Latham, 
 Worsaae, Bowyer, Warren, Macculloch, Forsyth, Pashley, 
 and, above all, to Hallam, are self-apparent in these pages. 
 Wherever I have found truths well stated by others, I 
 have preferred useful compilation to worthless novelty. 
 
 E. S. CEEASY. 
 
 University College, London. 
 October 13, 1853. 
 
CONTENTS, 
 
 CHAPTER I. 
 
 Page 
 
 Meaning of the term '•' English Constitution." — Is there an 
 English Constitution ? — Primary Principles of the Consti- 
 tution. — Magna Carta, the Petition of Right, and the Bill 
 of Rights forms its Code.-i— -General Ignorance of these Sta- 
 tutes. — Scope of the present Work. — Constitutional Law of 
 Progress. — How to learn the Constitution. — Classification 
 of Constitutional Functions. — Importance of studying lead- 
 ing Scenes in History. — History of the Elements of our 
 Nation, why material. — Exclusion of Party Politics 1 
 
 CHAPTER II. 
 
 Our Constitution coeval with our Nationality. — Thirteenth 
 Century the date when each commences. — The Four Ele- 
 ments of our Nation. — The Saxon, i. e. the Germanic, the 
 chief Element. — Parts of the Continent whence our Ger- 
 manic Ancestors came. — Their Institutions, Political, So- 
 cial, and Domestic. — Date of the Saxon Immigrations into 
 this Island. — What Population did they find here ? — The 
 British Element of our Nation, Romanized Celtic. — Primary 
 Character and Institutions of the British Celts. — Efiect of 
 Roman Conquests. — How far did the Saxons exterminate or 
 blend with the Britons ? — Evidence of Language . . 12 
 
Vm CONTENTS. 
 
 CHAPTER III. 
 
 rage 
 
 Conversion of the Anglo-Saxons. — Its civilizing Effects. — 
 Thej occupy the Roman Towns. — England attacked by the 
 Danes. — The third, i. e. the Danish, Element of our Nation. 
 Danish Institutions and Customs. — Ferocity of their Attack 
 on England. — E.xtent of their chief Settlements here. — 
 Evidence of Danish Names of Places and Persons. — Alfred 
 rescues Saxon England from them. — The Danish blends 
 with the Saxon Element. — Fusion of the first three Ele- 
 ments of our Nation 33 
 
 CHAPTER IV. 
 
 Anglo-Saxon Institutions. — Classes of the Population. — 
 Thralls, Ceorls, Thanes. — Townships. — Hundreds. — Tyth- 
 ings. — Frankpledge. — Lords — The Were. — The Socmen. — 
 The Towns. — TheWitenagemote. — The King. — The Bishops. 
 — The Clergy — The Poor. — Deterioration of the Saxon Po- 
 lity before the Conquest 42 
 
 CHAPTER V. 
 
 The Norman Element. — Different from the Danish. — Rolf the 
 Ganger's Conquest of Neustria. — State of Civilization in 
 France. — Characteristics of the Normans. — Their brilliant 
 Qualities. — Their Oppression of the Peasantry . . . r)G 
 
 CHAPTER VI. 
 
 The Norman Conquest. — Extent of the Changes which it 
 caused. — Numerical Account of the Norman and Anglo- 
 Saxon Populations. — Amount of Loss of Life caused by the 
 Conquest. — Probable Number of the Normans and other 
 New-comers from Continental Europe. — Did the Popula- 
 tion increase in the Century and a-half preceding the sign- 
 ing of Magna Carta ?— The Miseries of Stephen's Reign. — 
 Period of Tranquillity under Henry II.— Probable Amount 
 of Population in 1215 
 
CONTENTS. IX 
 
 CHAPTER VII. 
 
 Page 
 
 General View of the Feudal System. — Meaning of the terms 
 "Feudal" and «Allodial."—General Sketch of the Progress 
 of a Germanic Settlement in a Roman Province. — Causes of 
 Feudalism. — Progress of " Subinfeudation." — Aristocratic 
 Character of Feudalism. — Its Oppressiveness to the Com- 
 monalty. — Its brighter Features 73 
 
 CHAPTER VIII. 
 
 Distinction between Feudalism as developed in England, and 
 Feudalism as generally developed on the Continent. — How 
 far did it exist among the Saxons before the Conquest ; 
 how far among the Normans? — Character of William the 
 Conqueror. — Feudalism which he introduced. — His Checks 
 on the Baronial Power. — Great authority of the First An- 
 glo-Norman Kings 84 
 
 CHAPTER IX. 
 
 State of the Mass of the English Nation at the Commence- 
 ment of the Thirteenth Century. — The Peasantry. — Villein- 
 age : its Incidents : its probable Origin and Extent ; and 
 the Modes of becoming emancipated from it. — State of the 
 Lower Classes in Towns. — State of the Middle and Upper 
 Classes. — The various Tenures of Land. — State of the Bo- 
 roughs after the Conquest. — Their partial Recovery of their 
 Liberties 92 
 
 CHAPTER X. 
 
 Evil Character of King .John. — Its Importance to our His- 
 tory. — Fortunate Loss of Normandy. — John's Quarrels with 
 his Clergy and with the Pope. — The Interdict. — The Ex- 
 communication. — John's abject Submission to the Pope. — 
 Return of Archbishop Langton to England. — His patriotic 
 Character. — He checks the King. — King's Oath to redress 
 Wrongs. — His repeated Acts of Tyranny. — Council of the 
 
X CONTENTS. 
 
 Page 
 
 Barons. — Archbishop Langton produces the Charter of 
 Henry I. — Nature of this Charter, and its Value. — Demands 
 of the Barons on the King. — Vain Intervention of the Pope. 
 — Firmness of Archbishop Langton. — Strength of the Na- 
 tional Party. — Runnymede. — Articuli Cartas. — The Grant 
 of the Great Charter 106 
 
 CHAPTER XL 
 
 Magna Carta. — General Distribution of its Clauses. — Text of 
 the Great Charter, and Commenis 128 
 
 CHAPTER XII. 
 
 Renewals of the Great Charter in Henry the Third's Reign. 
 The Charter as confirmed by Edward I., and subsequent 
 Kings. — The Statute Confirmatio Cartarum. — All Taxation 
 without consent of Parliament made illegal . . . 165 
 
 CHAPTER XIII. 
 
 The Principles of the Constitution traced in the Charter. — 
 Kingship in England. — Its Powers and Limitations. — Par- 
 liament. — Origin of the House of Commons. — Of the two 
 Branches of the House of Commons. — Trial by Jury. — Writ 
 of Habeas Corpus. — Origin and Value of these Constitu- 
 tional Rights 178 
 
 CHAPTER XIV. 
 
 Progress of the Constitution during the Reigns of the ten last 
 Plantagenet Kings. — Growing Importance of the House of 
 Commons. — Qualifications of Members and Electors. — Pre- 
 rogatives of the Crown. — State of the Population. — Jurors. 
 —Boroughs. — Number of Electors 230 
 
 CHAPTER XV. 
 
 State of the Constitution under the Tudors. — Revival of spirit 
 in the House of Commons. — Weak but arbitrary Character 
 of the first two Stuart Kings. — Charles I. sincere, but an 
 Aggressor on the Constitution.—The Petition of Right . 265 
 
•^ CONTENTS. XI 
 
 CHAPTER XVI. 
 
 Page 
 
 The Restoration. — Affection of the English Nation for their 
 old Institutions. — Effects of the Period of Revolution. 
 — Military Tenures abolished. — Habeas Corpus Act. — 
 Custom of Fining Jurors for their Verdicts pronounced 
 Illegal.— Revolution of 1688.— The Bill of Rights.— The 
 Act of Settlement. — Kingship in England since the Revo- 
 lution. — Its Limitations. — Its enduring Value. — House of 
 Lords. — Attempt to check Creation of Peers. — Benefits of 
 the House of Peers to the Country. — House of Commons. — 
 Borough Members. — Rotten Boroughs. — Reform Bill . 280 
 
 CHAPTER XVII. 
 
 Present Population of England, and number of Parliamen- 
 tary Electors. — Property and Education considered as ele- 
 ments of Representative System. — Qualification of Jurors. 
 — Magistrates and Oflicers of various kinds, how appointed. 
 — Local Self-government. — Municipal Reform. — Influence 
 of Public Opinion. — Rights of Free Discussion, and Liberty 
 of Press 321 
 
THE EISE AND PEOGEESS 
 
 OP THE 
 
 ENGLISH CONSTITUTION. 
 
 CHAPTER I. 
 
 Meaning of the term "English Constitution." — Is there an English 
 Constitution ? — Primary Principles of the Constitution. — Magna 
 Carta, the Petition of Right, and the Bill of Rights form its Code. 
 — General Ignorance of these Statutes. — Scope of the present 
 Work. — Constitutional Law of Progress. — How to learn the Con- 
 stitution. — Classification of Constitutional Functions. — Importance 
 of studying leading Scenes in History. — History of the Elements 
 of our Nation, why material. — Exclusion of Party Politics. 
 
 Whatever may be thought of the execution of this 
 work, I have little fear of being censured, so far as regards 
 the design. An attempt to arrange in a simple form, and 
 to place before the pubUc, in a few easily accessible pages, 
 the great principles of our Constitution, — to prove their 
 antiquity, to illustrate their development, and to point out 
 their enduring value, will surely, in times like the pre- 
 sent, not be discouraged as blamable ; and, in the strange 
 dearth of really useful treatises on this important topic, 
 it will hardly be slighted as superfluous. 
 
 It is, in the first place, necessary to have a clear under- 
 
 B 
 
2 RISE A>?D PROGRESS 
 
 Standing of what we mean when we talk about "the 
 English Constitution." Few terms in our language have 
 been more laxly employed : and so uncertain is the know- 
 ledge, so very vague are the ideas which many have of 
 the constitution of their country, that when the opponent 
 of a particular measure or a particular system of policy 
 cries out that it is unconstitutional, the complaint gene- 
 rally means little more than that the matter so denounced 
 is something which the speaker dislikes. 
 
 Still the term, " the English Constitution," is suscep- 
 tible of full and accurate explanation ; though it may not 
 be easy to set it lucidly forth, without first investigating 
 the archaeology of our history, rather more deeply than 
 may suit hasty talkers and superficial tliinkers, but with 
 no larger expenditure of time and labour than every 
 member of a great and free State ought gladly to bestow, 
 in order that he may rightly comprehend and appreciate 
 the polity and the laws, in which, and hy which he lives, 
 and acts, and has his civic being. 
 
 Some furious Jacobins, at the close of the last century, 
 used to clamour that there was no such thing as the Eng- 
 lish Constitution, because it could not be produced in full 
 written form, like that of the United States, or like those with 
 which Sieyes crammed the pigeon-holes of his bureau, to 
 suit the varying phases of the first years of the French 
 Kevolution. And, as the trade of constitution-monger- 
 ing has again been thriving on the Continent, perhaps 
 some, who have seen other nations providing themselves 
 with elaborate formulas of social and poHtical rights 
 and processes, in all the paraphernalia of article, section, 
 supplement, and proviso, while England is content with 
 her old statute-book, and old traditional government and 
 laws,— may think that the term "English Constitution" 
 
OF THE CONSTITUTION. 3 
 
 means nothing beyond the no-meaning of so designating 
 the actual state of things in the country at the particular 
 time when the phrase is used, and which, of course, is 
 liable to vary with the varying hour. 
 
 In order to meet these cavils, there is no occasion to 
 resort to the strange dogma of Burke, that our ancestors, 
 at the Kevolution of 1688, bound, and had a right to 
 bind, both themselves and their posterity to perpetual ad- 
 herence to the exact order of things then established : nor 
 need we rely solely on the eulogies, which foreign as well 
 as native writers, a hundred years ago, used to heap upon 
 our system of government. Those panegyrics, whether 
 exaggerated or not, were to a great extent supported by 
 reasonings and comparisons, which are now wholly inap- 
 pHcable. But, without propping his poHtical creed on 
 them, an impartial and earnest investigator may still 
 remain convinced that England has a constitution, and 
 that there is ample cause why she should cherish it. And 
 by this it is meant, that he will recognise and admire, in 
 the history, the laws, and the institutions of England, 
 certain great leading principles, and fundamental political 
 rules, which have existed from the earliest periods of our 
 nationality down to the present time ; expanding and 
 adapting themselves to the progress of society and civili- 
 zation ; advancing and varying in development, but still 
 essentially the same in substance and in spirit. 
 
 These great primeval and enduring principles are the 
 principles of the EngUsh Constitution. And we are not 
 obliged to learn them from imperfect evidences or pre- 
 carious speculations ; for they are imperishably recorded in 
 the Great Charter, and in the Charters and Statutes con- 
 nected with and confinnatory of Magna Carta. In Magna 
 Carta itself, that is to say, in a solemn instrument deh- 
 
 B 2 
 
4 RISE AND PROGRESS 
 
 berately agreed on by tlie king, the prelates, the great 
 barons, the gentry, the burghers, the yeomanry, and all 
 the freemen of the realm, at an epoch which we have a 
 right to consider the commencement of our nationality, 
 and in the statute entitled Confirmatio Cartarum^ 
 which is to be read as a supplement to Magna Carta, we 
 can trace these great principles, some in the germ, some 
 more fully revealed. And thus, at the very dawn of the 
 history of the present English nation, we behold the 
 foundations of our great political institutions imperish- 
 ably laid. 
 
 These great primeval and enduring principles of our 
 Constitution are as follows : — 
 
 The government of the country by an hereditary sove- 
 reign, ruling with limited powers, and bound to summon 
 and consult a parliament, comprising hereditary peers and 
 elective representatives of the commons. 
 
 That the subject's money shall not be taken by the 
 sovereign, unless with the subject's consent, expressed by 
 his representatives in parliament. 
 
 That no man be arbitrarily fined or imprisoned, or in 
 any way punished except after a lawful trial. 
 
 Trial by jury. 
 
 That justice shall not be sold or delayed. 
 
 These great constitutional principles can all be proved, 
 either by express terms, or by fair implication, from 
 Magna Carta, and its above-mentioned supplement. 
 
 Their vigorous development was aided and attested in 
 many subsequent statutes, especially in the Petition of 
 Right and the Bill of Rights ; in each of which the EngHsh 
 nation, at a solemn crisis, solemnly declared its rights, and 
 solemnly acknowledged its obhgations : — two enactments 
 which deserve to be cited, not as ordinary laws, but as 
 
 d 
 
OF THE CONSTITUTION. 5 
 
 constitutional compacts, and to be classed as such with 
 the Great Charter, of which they are the confirmers and 
 the exponents. 
 
 Lord Chatham called these three " The Bible of the 
 Enghsh Constitution," to which appeal is to be made 
 on every grave poUtical question. The great statesman's 
 advice is still sound. It deserves to be considered 
 by subjects as well as by princes; by popular leaders 
 without the walls of parliament, as well as by ministers 
 within them. 
 
 And, indeed, it is not only to those who are prominently 
 engaged in pohtical struggles, but to all who would 
 qualify themselves for doing their duty to their countiy, — 
 to all who are conscious of what Arnold has called '* the 
 highest earthly desire of the ripened mind, the desire of 
 taking an active share in the great work of government," 
 — that these texts of our Constitution ought to be the 
 objects of peculiar study, in order that, first, we may learn 
 from them what our Constitution really is, and whether it 
 deserves to be earnestly upheld by us as a national bless- 
 ing, or ought t9/be looked on as an effete incumbrance, 
 whose euthanasia we should strive to accelerate; and, 
 secondly, that when we have convinced ourselves of its 
 merit, we may be able to test proposed measures by their 
 conformity with or hostility to its principles. 
 
 It is painfully strtuige to observe how few even of well- 
 educated Englishmen possess, or have so much as ever 
 read these three Great Statutes. Magna Carta, in par- 
 ticulai', is on everybody's lips but in nobody's hands ; and 
 though perpetually talked of, is generally talked of in 
 utter ignorance of its contents, beyond a vague impression 
 that it prohibits arbitrary taxation and arbitrary imprison- 
 
6 RISE AND PROGRESS 
 
 ment, and that it is in favour of Trial by Jury. The 
 original charter of King John is not even printed in the 
 common editions of the statutes. With respect to the 
 two other great laws which Lord Chatham ranks with 
 Magna Carta, namely, the Petition of Eight, and the Bill 
 of Rights, it may safely he asserted that hundreds have 
 never read a hne of them, who would be justly indignant 
 if we were to doubt their familiarity with the Attic legis- 
 lation of Cleisthenes, or with the Eoman reform bills of 
 TerentiJlus and Licinius Stole. 
 
 The texts of Magna Carta, the Petition of Right, and 
 the Bill of Rights will here be laid before the reader ; and 
 I have endeavoured to make the perusal of them more 
 interesting and more useful, by not only giving explana- 
 tions of the legal and archseological terms which they 
 contain, but by also adding historical introductions and 
 comments. Unless this is done, the spirit of the Consti- 
 tution cannot be perceived; and, if the letter of the 
 Constitution deserves admiration, still more does its 
 spirit. It is only thus that some of its essential charac- 
 teristics can be discerned; and, by studying it thus, 
 the more we convince ourselves of its reaUty and its 
 antiquity, the more confident shall we become of its 
 future durability. For, the same earnest and long-con- 
 tinued studies which teach the historical inquirer to 
 believe in and to venerate the great principles of the 
 English Constitution, also display to him the workings of 
 its normal law of progress, its plastic power of self- 
 amelioration and expansion, through which we may hope 
 to see all growing exigencies of modern times suppUed, 
 not only without danger, but with vigorous corroboration 
 to the fundamental institutions of ages past. 
 
 I 
 
OF THE CONSTITUTION. 7 
 
 The student of the English Constitution ought not 
 only to he familiar with the chief portions of Magna 
 Carta, the Petition of Right, and the Bill of Eights ; hut 
 he ought also to have a clear knowledge and an appre- 
 ciative feeling of the circumstances under which each of 
 the three primary laws came into existence ; of the imme- 
 diate purposes for which each was framed ; and of the 
 enduring general benefit to the nation which each was 
 also designed to secure. He ought to trace and examine 
 the development of the great principles which these 
 statutes embody; and his especial attention should be 
 directed to such other statutes as confirm, extend, or ex- 
 plain the leading enactments. He ought also to watch 
 how far the constitutional rights, which these laws sanc- 
 tion and provide, have been extended to all members 
 of the community. This is to be carefully noted, not 
 only in respect of the protections from positive wrong, 
 which the Constitution affords, but also in respect of the 
 other benefits which it offers. We must observe what 
 classes and what numbers of the population have from 
 time to time taken part in the active functions of the 
 government of the State. And it is always to be remem- 
 bered that the active functions of political government 
 include not merely such rights as the right of sitting in 
 parhament, the right of voting for members of parlia- 
 ment, and the like, but they include such rights as the 
 right of eligibiUty to any magistracy or executive office, 
 and the right of electing others thereto ; they include, 
 also, the right of taking any part in criminal or civil 
 trials, as, for example, the right of acting as jurymen. 
 I follow here the greatest of all wiiters on the subject of 
 human political institutions. Aristotle classifies the con- 
 stitutional functions of a member of a State under these 
 
8 RISE AND PROGRESS 
 
 three heads: Ist, the Deliberative; gnclly, the Magis- 
 terial ; Srdly, the Judicial.* 
 
 I have endeavoured to compile and arrange in these 
 pages information respecting the origin, the character, 
 and the progress of our Constitution, with regard to all 
 the points of view, the importance of which I have been 
 indicating. I am far from venturing, on this account, 
 to call this httle volume a complete liistory of the 
 English Constitution, but it may aid the student as an 
 introduction to other more learned and elaborate treatises ; 
 and, perhaps, even the well-informed politician may some- 
 times find it useful as a manual for immediate reference. 
 I believe, indeed, that with regard to Constitutional 
 history, as well as with regard to general history, much 
 has been done to secure a present knowledge and a 
 permanent recollection, when the intellect has once 
 thoroughly comprehended and the imagination has once 
 vividly reproduced a small but well- chosen number of 
 leading scenes in the long and complicated drama. Such 
 scenes abide clearly in the memory when the general mass 
 of the story becomes dim : and, when they so abide in the 
 memory, they are valuable, not only by reason of the 
 intrinsic importance of their own immediate topics, but 
 because they serve us as landmarks for an improved 
 survey of the whole subject. They are also most bene- 
 
 * Etrrt bfj Tpia fjiopia Ta>v iroki- rovrav iv fiev ti to ^ovXevofievov 
 
 Tficou Traq-cov, irepi cov del Beaypelu Trepl rav Kotv5>v. Acvrepov 8e 
 
 TOP (TTTovdalov vop.o6eTr)v eKacrTf} to ircpX tcls dpxas' tovto Se eaTiv 
 
 t6 a-vfi(f)epov. av ixovTojv KoXcoSy as del koI tIvcov elvai Kvpias' Kol 
 
 avayKt] Tf)u noXiTeiau ex^i-v KoXo)?, Troiav tlvo. Set yiyveo-dai Trjv al- 
 
 Acai Tcis TToXiTcias dWrjXav 8ia- peaiv avTav. TpiTOV de ti to 
 
 (f)ep€iv, iv TOt 8ia<f)ep€i.p eKaarou diKa^op. — Aristot. Folit., lib. iv. 
 
 TOVTQiV. "EOTt bi T(i>P Tpioiv C. 14. 
 
OF THE CONSTITUTION. 9 
 
 ficial in enabling us to realize the utility of the incidental 
 information as to particular passages of history, which 
 our other studies, and even our desultory reading for mere 
 amusement's sake, continually throw in our way. He 
 who has the knowledge of certain great leading historical 
 events firmly implanted in his mind, has in his mind a 
 set of bases, between and round which he naturally fixes 
 and groups all the historical facts that he reads or hears 
 of. His memory is thus continually refreshed. Each 
 piece of new information awakens in him intelligible 
 and connected ideas : and he addresses himself to the 
 acquisition of fresh facts, or to the consideration of rival 
 theories, with far higher powers and advantages, than can 
 be possessed by the man, who may, indeed, have read much 
 more, but who has read without selection and system ; 
 and whose mind, as to history, must (to boiTow a phrase 
 of Dryden) be only full of " a confused mass of thoughts, 
 tumbling over one another in the dark." 
 
 Attention is; therefore, here drawn to the acquisi- 
 tion of the Great Charter, the passing of the Petition of 
 Eight, and that of the Bill of Rights, as leading scenes 
 in our Constitutional history. The first of these has been 
 treated at far greater length than either of the other two, 
 both because there is not the same opportunity of re- 
 ferring my readers to other writers on the subject, and 
 because, as it occurs at the very opening of our national 
 history, a right comprehension of it forms the very foun- 
 dation of our Constitutional knowledge. This is premised, 
 lest it should be thought that the investigations of the 
 Constitutional history of each element of our nation, 
 which are introduced before discussing the Great 
 Charter itself, have been foisted in here merely for the 
 sake of inopportunely parading ethnological theories, or 
 
 B 3 
 
10 RISE AND PROGRESS 
 
 of swelling the size of this volume. The tenets there 
 brought forward are essential for the fixing of the corner- 
 stone of my position respecting the Enghsh Constitution. 
 I maintain that the principles of our Constitution have 
 been in existence ever since v/e, this English nation, have 
 been in existence. This is to be proved not merely by 
 quoting the Great Charter, but by making good the asser- 
 tion that the epoch when the Great Charter was granted is 
 the epoch when our nationality commenced. For this pur- 
 pose it is absolutely necessary to analyze our nation, to 
 trace the separate current of each of its primary sources, 
 and to watch the processes of their intermingling. Per- 
 haps I may venture to hope that one effect of studying our 
 history in this manner, may be to give it an additional in- 
 terest, from its evident connection with our classical stu- 
 dies. The main stream of our nation is Germanic : and he, 
 who devotes himself to the histories of Greece and Kome, 
 will find Greek history blending in Roman, and Roman 
 blending in Germanic. The institutions of our Germanic 
 ancestors commanded the anxious interest of the master- 
 minds of ancient Rome. Those same institutions are the 
 first subjects to which the inquirer into our laws and our 
 political organization must bend his thoughts. They have, 
 indeed, been greatly modified by the other elements with 
 which they have been mingled here, but they have exer- 
 cised more influence than any others. The Germania of 
 Tacitus is equally a hand-book for the student of modem 
 and for the student of ancient history. It thus demon- 
 strates the unity of all history. I 
 
 I hope that my work, in its present form, may be use- 
 ful to young readers, in aiding to educate them for the 
 future discharge of poUtical duties ; but I have earnestly 
 sought to keep these pages free from party politics. I 
 
 I 
 
OF THE CONSTITUTION. 11 
 
 know from my experience as a lecturer for tliirteen years, 
 how difficult it is to discuss EngHsh history without the 
 line of instruction being affected by the instructor's own 
 political bias. But I hope that the same experience 
 has enabled me to surmount that difficulty. I have 
 throughout this work kept its main object steadily in 
 view, and have rigidly rejected every topic and every 
 sentence that seemed calculated to serve other purposes. 
 I advocate here neither Conservatism nor Liberahsm, in 
 the sense in which those slogans of modern party- warfare 
 are commonly understood ; but I strive to point out those 
 great principles of the Constitution, which both Conser- 
 vatives and Liberals ought to know, and must acknow- 
 ledge, however they may differ as to the relative import- 
 ance which they would fain see each principle acquire. 
 
CHAPTER II. 
 
 Our Constitution coeval with our Nationality. — Thirteenth cen- 
 tury the Date when each commences. — The Four Elements of our 
 Nation. — The Saxon, i.e. the Germanic, the chief Element. — 
 Parts of the Continent whence our Germanic Ancestors came. — 
 Their Institutions, Political, Social, and Domestic. — Date of the 
 Saxon Immigrations into this Island. — What Population did they 
 find here 1 — The British Element of our Nation, Romanized Celtic. 
 — Primary Character and Institutions of the British Celts. — 
 Effect of Roman Conquests. — How far did the Saxons extermi- 
 nate or blend with the Britons ? — Evidence of Language. 
 
 It has been stated in the last chapter that Magna Carta 
 is coeval with the commencement of our nationahty ; in 
 other words, that we have had our present Constitution, 
 as represented in Magna Carta, throughout the whole time 
 of our true natural history, except some brief periods of 
 revolutionary interruption. The proof of this depends 
 on the date at which we fix the commencement of the 
 liistory of the Enghsh nation, as a complete nation. This 
 date is the 13th century.* 
 
 The accuracy as well as the importance of this date 
 
 I 
 
 ♦ I am glad to be able to caulay, in the 17th page of 
 
 cite the high authority of Mr. the first volume of his His- 
 
 Macaulay in support of the tory, after speaking of the Great 
 
 position that the history of the Charter as the first pledge of 
 
 English nation commences in the reconciliation of the Nor- 
 
 the 13th century. Mr. Ma- man and Saxon races, says— 
 
 J 
 
RISE AND PROGRESS OF THE CONSTITUTION. 
 
 13 
 
 will be more readily discerned, if we remember the diJffer- 
 ence that there is between the history of the English 
 and the history oi England ; — between the history of our 
 nation, and the history of the island on which we now 
 dwell. 
 
 Our English nation is the combined product of several 
 populations. The Saxon element is the most important, 
 and may be treated as the chief one ; but, besides this, 
 there is the British (that is to say the Romanized Celtic), 
 there is the Danish, and there is the Norman element. 
 Each of these four elements of our nation has largely 
 modified the rest; and each has exercised an important 
 influence in determining our national character and our 
 
 "Here commences the history 
 of the English nation. The 
 history of the preceding events 
 is the history of wrongs in- 
 flicted and sustained by various 
 tribes, which, indeed, dwelt on 
 EDglish ground, but which re- 
 garded each other with aver- 
 sion, such as has scarcely ever 
 existed between communities 
 separated by natural barriers." 
 Two eloquent pages are devoted 
 to the illustration of this fact. 
 I may be permitted in justice 
 to myself to remark, that I had 
 frequently in my lectures main- 
 tained the position that the his- 
 tory of the English nation does 
 not commence before the 13th 
 century; and it will be found also 
 in my " Text-book of the Con- 
 titution," which was published 
 before the appearance of Mr. 
 
 Macaulay's History. See also, in 
 connection with this subject, the 
 first of Arnold's Lectures on 
 Modern History. I do not agree 
 with that great and good man in 
 thinking that the Britons, who 
 lived here before the coming 
 over of the Saxons, are in no 
 respect connected with us as 
 our ancestors, and that, " na- 
 tionally speaking, the history 
 of Caesar's invasion has no more 
 to do with us than the natural 
 history of the animals which 
 then inhabited our forests." 
 But it was from his pages that 
 I was first led to appreciate the 
 paramount importance of the 
 Germanic source of our nation, 
 and also to realize the full 
 meaning of the terms "na- 
 tional " and " nationality." 
 
14 RISE AND PROGRESS 
 
 national institutions. It is not until we reach the period 
 •when these elements were thoroughly fused and blended 
 together, that the history of the English can properly be 
 said to begin. This period is the 13th century after 
 the birth of our Saviour. It was then, and not until then, 
 that our nationality was complete. By nationality is 
 meant the joint result of unity as to race, language, and 
 institutions. In the 13th century these unities were 
 created. Let us prove this separately. First, with respect to 
 race. Though the coming over of the Normans in the 11 th 
 century made up the last great element of our population, 
 a long time passed away before it coalesced with the 
 others. For at least a century and a half after the Con- 
 quest, there were two distinct peoples, the Anglo-Norman 
 and the Anglo-Saxon, dwelhng in this island. They were 
 locally intermingled with each other, but they were not 
 fellow-countrymen. They kept aloof from each other in 
 social life, the one in haughty scorn, the other in sullen 
 abhorrence. But when we study the period of the reigns 
 of John, and his son and grandson, we find Saxon and 
 Norman blended together under the common name, and 
 with the common rights, of EngHshmen. From that 
 time forth, no part of the population of England looks 
 on another part as foreigners ; all feel that they are one 
 people, and that they jointly compose one of the States 
 of Christendom. Secondly, with respect to language. 
 In the 13th century, our English language, such 
 substantially as it still is, became the mother tongue of 
 every Englishman, whether of Norman or of Saxon 
 origin.* So, finally, with respect to our institutions ; it 
 
 * The earliest extant speci- as contra-distinguished from the 
 men of the English language, Saxon and Semi-Saxon, is the 
 
OF THE CONSTITUTION. 15 
 
 was during this century that the Great Charter was 
 ohtainecl, and the statutes connected with and confirma- 
 tory of it were passed, in which we can trace the great 
 primary principles of our Constitution. It was in this 
 century that Parliaments, comprising an Upper House 
 of Temporal and Spiritual Peers, and Lower House of 
 Kepresentatives of Counties and Boroughs, were first 
 summoned. It was in this century that our legal system 
 assumed its distinctive features, and was steadily enforced 
 throughout the realm. 
 
 It is clear, therefore, that it is at this period, that our 
 true nationality commences ; for our history, from tliis 
 time forth, is the history of a national life, then complete 
 and still in heing. All before that period is a mere his- 
 tory of elements, and of the processes of their fusion. 
 But it is a preliminary history that must he studied in 
 order to comprehend aright the history that follows. In 
 order to understand the Great Charter, we must catch the 
 spirit of the age in which it was granted. To do this, 
 we must form to ourselves a vivid and a true idea of the 
 people that obtained it ; and we must, for that purpose, 
 trace the early career, we must mark the characteristics, 
 and watch the permanent influence of each of the four 
 elementary races by which the English people has been 
 formed. Of these four elements the Anglo-Saxon is 
 unquestionably the principal one. Our language alone 
 decisively proves this ; for it is still substantially the same 
 language which our ancestors spoke in Germany before 
 
 proclamation of Henry III. to minded that, for the first ccn- 
 
 the people of Huntingdonshire, tury and-a-half after the Con- 
 
 A.D. 1258. See Latham on the quest, the Normans in England 
 
 " English Language," p. 77. spoke French. 
 The reader need hardly be re- 
 
16 RISE AND PROGRESS 
 
 they left the banks of the Eyder and the Elbe for the 
 coasts of Britain.* We may, therefore, advantageously 
 first see who and what the Anglo-Saxons were in their 
 original homes ; and then examine who and what the 
 inhabitants of tliis island were whom the Anglo-Saxons 
 found here. The subsequent immigration of the Danes, 
 and the final influx of the Normans, will next be sepa- 
 rately considered : and, then (after watching also the pro- 
 cesses and the results of the partial fusion of these races, 
 both that which took place with respect to the first three 
 before the arrival of the Normans, and that which after- 
 wards took place with respect to the Norman conquerors 
 themselves, and those whom they subdued), we may pro- 
 ceed to the consideration of the first part of our immediate 
 subject, to ascertain the condition of the various classes 
 of the community at the time when the great national 
 movement took place, by which King John was compelled 
 to sign Magna Carta (a.d. 1215). 
 
 The chief element of our nation is Germanic, and we 
 have good cause to be proud of our ancestry. Freedom 
 has been its hereditary characteristic from the earliest- 
 times at which we can trace the existence of the German 
 race. The Germans, alone, of all the European nations 
 of antiquity that Rome assailed, successfully withstood her 
 ambition and her arms. They never endured either a 
 foreign conqueror, or a domestic tyrant. Similarly proud 
 and unblemished by servitude are the pedigrees of two 
 more of the elements of our nation. The Danes and the 
 Normans, who came among us, were and ever had been 
 
 * There are extant two An- evidence to have been composed 
 
 glo-Saxon poems, " Beowulf " before our Saxon ancestors came 
 
 and the " Lay of the Traveller," to Britain, 
 which are proved by internal 
 
OF THE CONSTITUTION. 17 
 
 freemen. It was only the British portion of our elements 
 that had endured foreign conquest and arbitrary rule; 
 and even this source of our nation had become so largely 
 tinged by the fusion of the Roman conquerors with the 
 conquered Celts, that we can regard it, if not with pride, 
 at least without humiliation. 
 
 The Germans who settled in this island during the 
 fifth and sixth centuries are usually spoken of as Saxons, 
 Angles, and Jutes. The collective name of Anglo-Saxons 
 has been given to them by historians, for the sake of dis- 
 tinguishing them from the Saxons of modern Germany ; 
 and it is a name which it is convenient to employ. 
 
 There has been, and there continues to be much learned 
 controversy as to the exact locahties on the Continent, 
 whence the Germanic conquerors of Britain came, and as 
 to their precise degrees of affinity one with tlie other.* 
 Without entering into these deep (though very valuable 
 and interesting) discussions, we may be safe in adopting 
 the general statement that the Anglo-Saxons were Ger- 
 mans of the sea-coast between the Eyder and the Yssel, 
 of the islands that lie off that coast, and of the water 
 systems of the lower Eyder, the lower Elbe, and tlie 
 Weser. It is important to observe that these are all parts 
 of Germany, which were less affected by contact with 
 the Komans, and with which the Komans were less 
 acquainted, than was the case with the parts of Germany 
 
 * I think that Kemble and "English Language," third 
 
 Latham have proved that no edition. See also, for the original 
 
 Jutes from the country now homes of the Anglo-Saxons, 
 
 called Jutland took part in the Latham's " Ethnology of the 
 
 Anglo-Saxon Conquest of this British Islands," and his edition 
 
 island. See Kemble's " Saxons of the " Germania" of Tacitus, 
 in England," and Latham's 
 
18 RISE AND PROGRESS 
 
 that lie near the Rhine and the Danuhe, the two houndaiy 
 rivers of the Roman continental empire in Europe. And 
 yet it is almost exclusively from Roman writers that we 
 gain our information ahout the institutions and usages of 
 our Saxon ancestors in their primeval fatherland. Caution 
 must he used in admitting and applying to them the details 
 which we read in Caesar and Tacitus respecting the man- 
 ners and institutions of the Germans. But we may gain 
 thence some general knowledge which may he safely relied 
 on, especially when taken in connection with what we 
 know of the Anglo-Saxons at a later period. Our Ger- 
 man ancestors were freemen, having kings with limited 
 authority, who were selected from certain families. 
 Reges ex nohilitate, duces ex virtute sumunt. Nee 
 regibus infinita nee libera potestas. (Tac. Mor. Germ., 
 vii.) Besides these kings, they had chieftains whom they 
 freely chose among themselves for each warhke enterprise 
 or emergency. All important State affairs were discussed 
 at general assemhlies of the people ; matters of minor 
 consequence heing dealt with hy the chief magistrates 
 alone. De minoribus rebus j)rincipes consultant^ de 
 majoribus omnes : ita tamen ut ea quoque quorum 
 penes plebem arbitrium est, apud principes fertrac- 
 tantur. (Tac. Mor. Germ., xi.) Any person might be 
 impeached and tried for his life at the cliief popular as- 
 sembly. Licet apud concilium accusare quoque, et 
 discrimen capitis intendere. (lb., xii.) The head men, 
 or magistrates, who were to preside in the local courts 
 were also elected at popular assembhes ; and the organi- 
 zation of the men of each district into Hundreds, for the 
 purposes of local self-government and for being joinM 
 securities for the good behaviour of each other, appears 
 also to have existed among them. Eliguntur in iisdem 
 
 i 
 
OF THE CONSTITUTION. 19 
 
 consiliis et principes qui jura per pagoft vicosque red- 
 dant. Centeni singulis ex plehe comites consilium 
 simul et auctoritas adsunt* They had no cities or 
 walled towns, but they had villages, where each man dwelt 
 in his own homestead.f 
 
 It is very important to mark this ; and to observe that 
 the ancient Germans were equally distinguished from the 
 classic Greeks and Komans, who were essentially dwellers 
 in cities, and from the wandering tribes of Central Asia, 
 who have ever been dwellers in tents, without settled home 
 or habitation. The love of individual liberty, the spirit 
 of personal independence, which characterized the German 
 warrior, as contrasted with the classic citizen, to whom the 
 State was all and the individual nothing, were perfectly 
 compatible with a respect for order, and a capacity for 
 becoming the member of a permanent and civilized com- 
 munity, such as never existed in the Scythian of antiquity 
 or the Tartar of modem times. 
 
 Slavery existed among the ancient Germans, but it 
 was generally of a very mitigated kind. They had few 
 domestic slaves, like those of the classical nations, or the 
 negroes in America; and the term "serf" would more 
 accurately describe the German " Servus "% whom Tacitus 
 speaks of. The serf had his own home and liis land, part 
 of the produce of which he was bound to render to his 
 
 * I do not mean that Tacitus " Germania," and the chapter 
 had precisely the idea of the in Kemble's "Anglo-Saxons "on 
 German "Centeni" which I "The Tithing and the Hun- 
 have stated ; but such was, most dred." 
 likely, the institution of which t Tac. Mor. Germ., xvi. 
 he was partly informed. See :|: Ibid., xxv. 
 Latham's note at p. CO of his 
 
20 RISE AND PROGRESS 
 
 master ; that was the extent of his servitude ; hut he was 
 destitute of all political rights. 
 
 Military valour was the common virtue of the nations 
 of the North. The Germans possessed this, hut they had 
 also pecuUar merits. The domestic virtues flourished no- 
 where more than in a German home.* Polygamy was 
 almost entirely unknown among them ; and infanticide was 
 looked on with the utmost horror. The great ethnologist, 
 Pritchard, in his survey of the different races of mankind, 
 truly observes that '^ In two remarkable traits the Germans 
 differed from the Sarmatic as well as from the Sclavic 
 nations, and, indeed, from all those other races to whom 
 the Greeks and Komans gave the designation of barba- 
 rians. I allude to their personal freedom and regard to 
 the rights of men ; secondly, to the respect paid by them 
 to the female sex, and the chastity for which the latter 
 were celebrated among the people of the North. These 
 were the foundations of that probity of character, self- 
 respect, and purity of manners, which may be traced 
 among the Germans and Goths even during Pagan times, 
 and which, when their sentiments were enlightened by 
 Christianity, brought out those splendid traits of charac- 
 ter which distinguish the age of chivalry and romance." f 
 
 Much indeed of the spirit of chivalry, and even the 
 germs of some of its peculiar institutions, may be found 
 in the customs of our Germanic ancestors as they are 
 described by Tacitus. The young warrior was solemnly 
 invested with the dignity of arms by some chief of emi- 
 nence ; and the most aspiring and adventurous youths 
 ■were wont to attach themselves as retainers to some re- 
 
 < 
 
 * Tac. Mor, Germ., xviii., xix. into the Natural History of 
 t Pritchard's " Researches Mankind," vol. iii. p. 423. 
 
 i 
 
OF THE CONSTITUTION. 21 
 
 nowned leader, whose person they protected in war, and 
 whose state they upheld in peace. (In pace decus^ in 
 lello prmidium.) These were the "Gesithas" of the 
 Anglo-Saxons ; they fed at the chief's table, they looked 
 to him for gifts of war-horses or weapons as rewards for 
 deeds of distinguished valour. Their relation to him was 
 that of Fealty ; and we may see here a species of Feudal- 
 ism, with the all-important exception that the relation 
 between retainer and chief had no necessary connection 
 with the tenure of any land.* 
 
 Such were our Anglo-Saxon forefathers, who in the 
 fifth century of the Christian era came across the German 
 ocean and changed the Roman province of Britain into 
 England, i. e. the land of the English ; the new collec- 
 tive name of the whole island being taken from the Ang- 
 lian portion of the conquerors, though the names of some 
 of its new subdivisions, such as Sussex, Essex, Wessex, 
 &c., have immediate reference to the Saxons. Whether 
 the current story of the landing of Hengist and Horsa 
 in Kent, of Vortigem and Rowena, &c., &c., is to be dis- 
 missed to the now populous region of myths, or whether 
 it is to be regarded as substantially true,t is not a subject 
 to be discussed here ; but the main facts may be taken 
 as certain, that a great Germanic immigration into Britiiin 
 took place during the fifth century,! and that it was 
 
 * See the excellent chapter " History of the English Lan- 
 
 in Kemble, on " The Noble by guage." 
 
 Service." !t I disbelieve the new theory 
 
 t See Kemble's " Saxons in of a large settlement of Saxons 
 
 England," and some sensible here in the fourth century, 
 
 observations on the other side The fact of there having been 
 
 of the question in Craik's then a "Comes ?i«om/Siat^oma" 
 
22 RISE AND PROGRESS 
 
 effected not by one great movement, but by a number of 
 unconnected expeditions of successive squadrons under 
 independent chiefs. 
 
 We now come to the consideration of the second ele- 
 ment of our nation. We have to examine what the popu- 
 lation was which the Anglo-Saxons found here, and to 
 ascertain to what extent they displaced or blended with it. 
 
 The Saxons found Celts * here, but they were not un- 
 mitigated Celts. They were Eomanized Celts. In order 
 fully to understand that term, we must investigate the 
 normal state of the British Celts, and consider also how 
 and to what extent they were influenced by Roman con- 
 quest before the arrival of the Saxons. 
 
 The description which Caesar gives of the inhabi- 
 tants of Britain is the earliest that we possess. Some 
 valuable information is also to be obtained from Strabo 
 and Diodorus Siculus.f The south-west part of the 
 
 OQ the east coast of Britain population having been spread 
 
 proves no more than the fact of over Britain. The extreme north 
 
 the subsequent existence of was probably occupied by a 
 
 English lords of the Welsh and Norse race at a very early time ; 
 
 Scottish marches. No one sup- but that does not affect English 
 
 poses the districts which these history. With respect to the 
 
 officers ruled to have been in- Belgic inhabitants of Britain, I 
 
 habited by the Welsh or the agree with those who hold that 
 
 Scotch. Such a name merely they were Celts, and that the 
 
 shows that the district was difference of their language 
 
 peculiarly exposed to the ra- from that of the other Celts was 
 
 vages of the nation by which it merely a difference of dialect. 
 
 is designated. See Latham's " Ethnology of 
 
 * The evidence of language, British Islands," p. 61. 
 
 as shown by the names of our t See Latham's " Ethnology 
 
 rivers and mountains and the of Britain," chap. 1 and 2. See 
 
 other great natural objects of also the chapter on Towns, in 
 
 the island being Celtic, is con- Kemble's " Anglo-Saxons." 
 elusive of the fact of a Celtic 
 
 J 
 
OF THE CONSTITUTION. 23 
 
 island had been known by the civilized nations of the 
 ancient world at a much more remote period. The Scilly 
 Islands and Cornish coasts were frequented in very early 
 times by the Phoenician and Carthaginian traders, who 
 obtained from our mines the tin which they imported to 
 their own countries and to the other States round the 
 Mediterranean, and which must have been required for 
 the purpose of making the bronze, which we know to 
 have been so largely used for purposes of utiHty, warfare, 
 and ornament. From the Phoenician merchants and 
 miners the native Britons acquired the art of working 
 metals, and of forming the bronze weapons and other 
 implements which are found in some of the ancient tombs 
 in this island. But the Phoenicians here, like the 
 Portuguese in the East Indies, seem merely to have 
 established factories, and not to have influenced mate- 
 rially the condition or the usages of the great mass of the 
 native inhabitants. At a period nearer to the time of 
 Caesar's landing, merchant-vessels from Gaul carried on 
 some intercourse with our south-eastern shores. Hence, 
 as Cffisar relates, the tribes of the maritime districts were 
 less barbarous than those of the interior, and agriculture 
 was more practised in the south than was the case further 
 north. The population of the island is said by him to 
 have been large,* a statement which Diodorus confirms, 
 but which is not to be taken according to our modern 
 ideas of density of population. The buildings of the 
 ancient Britons were numerous; but they had no fortified 
 towns, and used, for the purposes of defence, spots among 
 their woods which were naturally difficult of access, and 
 which they strengthened by a ditch and stockade. They 
 
 • " Hominum est infinita multitudo." Bell. Gall. v. 12. 
 
24 RISE AND PROGRESS 
 
 were subdivided into numerous independent tribes, with 
 many kings and petty rulers, and their wars with each 
 other were not so frequent as was generally the case 
 among the nations of antiquity.* We have no means of 
 knowing their poHtical institutions, beyond the fact of 
 their having kings and other rulers. If their polity 
 resembled (as is probable) that of their kindred Celts in 
 Gaul, they had a noblesse, and the mass of the people 
 was destitute of all rights and franchises.f Their reli- 
 gion was Druidism ; and Britain is said to have been the 
 parent- seat of that creed. The Druids were not only 
 priests, but they were, also, almost the sole civil magis- 
 trates and administrators of the law. J Perhaps th© 
 point in which the British Celts contrast most unfavour- 
 ably with the ancient Germans, is in respect to the 
 sanctity and purity of the marriage tie. We have seen 
 how this was respected among our Germanic ancestors ; 
 but the Celts, whom Csesar found here, had a custom, 
 which, I believe, is only paralleled among the savages of 
 some of the South Sea Islands. They formed sociahst 
 communities of ten or twelve in number, who had their 
 wives in common. § 
 
 Against these Celts, possessing, together with many of 
 the vices of the savage state, its usual merit of irregular 
 valour, Caesar led the Koman legions about half a cen 
 tury before the Christian era. But his invasion, thoug 
 attended with victory, and successfully renewed in the 
 following spring, was rather a transient inroad than an 
 
 i 
 
 * Diod. Sicul., V. 21. nullo adhibetur consilio." 
 
 t Caesar, BeU. Gall., vi. 13. X De Bell. Gall., vi. 13, 
 
 " Plebes psene servorum habetur § Ibid., v. 14. 
 
 loco, qu8c per se nihil audet et 
 
OF THE CONSTITUTION. 25 
 
 attempt at permanent conquest. After the withdrawal of 
 his troops, Britain was left to her rough independence 
 for nearly a century ; when the Komans again attacked 
 her, and, after a forty years' war, brought almost all that 
 part of the island which lies south of the Friths of Forth 
 and Clyde completely under the dominion of the 
 emperors of Rome. 
 
 " Wheresoever the Roman conquers, he inhabits." The 
 observation is Seneca's ; it was made while Britain was 
 being subdued, and it is true of this as of the other 
 conquests, which were effected by that remarkable people. 
 
 Unlike most nations of antiquity, the Romans neither 
 sought to exterminate nor to make a slave population 
 of those whom they invaded. By planting colonies, 
 and by taking the towns into the pale of the Roman 
 citizenship as *' municipia," a nation of Romans was 
 gradually formed in each conquered province. Britain 
 (which, with the exception of Dacia, was the last acquired, 
 and which was one of the earUest lost of the Roman pro- 
 vinces) was not Romanized so completely as was generally 
 the case; but Roman civilization flourished here for 
 three centuries, and some of its fruits still survive. 
 Thirty-three townships were established under the Ro- 
 mans in this island, each possessing powers of self- 
 government and taxation, and the inhabitants of each 
 electing their own decurions or senators, from among 
 whom the magistrates were appointed. We may be 
 partly indebted to this, the Roman influence on the 
 British element of our population, for the system of 
 municipal freedom and local self-rule, to which so much 
 of our glory and our power has justly been attributed.* 
 
 * See, with respect to the man Municipia, Guizot's " Lec- 
 order of Decurions in the Eo- tures on European Civilization;" 
 
 C 
 
26 RISE AND PROGRESS 
 
 It is to be borne in mind, that it was not exclusively 
 an Italian stream that blended with the Celtic source of 
 our nation, while Kome ruled the land. From the reci- 
 procal intercourse between the various portions of the 
 Eoman Empire, the British population must have been 
 sensibly tinged with the blood of the various races that 
 acknowledged the Imperators of Rome. And a similar 
 result must have been effected by the presence of the 
 Roman legions, especially in consequence of the policy 
 which the emperors adopted of pensioning off the 
 veteran legionaries with grants of land in the countries 
 where they had been stationed. Now, we must remem- 
 ber that the Roman legions under the empire were raised 
 and supplied by recruits drawn from all parts of the 
 Roman dominions, and that during the later times of Ro- 
 man history they were levied promiscuously from the dif- 
 ferent provincials and from the barbarians of the frontiers. 
 So that, under the Roman eagles, men of every race and 
 clime must have been assembled, with no common tie 
 save that of discipline, and that of a partially- acquired 
 knowledge of the Latin tongue. And even in the best 
 times of the empire every legion was accompanied by a 
 corps of barbaric auxiliaries, whose scene of operation 
 was carefully appointed at a distance from the country 
 which supphed them.* ■ 
 
 These are important points, when we are considering 
 the British element of our nation ; but it is certain that, 
 however varied the population of the south of the island 
 
 Savigny's " History of the Ro- sentative Government," lecture 
 
 man Law" (vol. i. translated 22. 
 by Calcraft) ; Kemble's " Anglo- * See Latham's "Ethnology 
 
 Saxons," vol. ii. chap. 7 ; and of the British Islands," p. 98. 
 Guizot's " History of Repre- 
 
OF THE CONSTITUTION. 
 
 27 
 
 thus became under Eoman rule, a community of Eoman 
 civilization was generally diffused, and the language, the 
 literature, and, above all, the laws of Eome, became 
 naturalized in Britain.* 
 
 As the power of imperial Eome decayed, her British 
 province began to suffer more and more from the inroads 
 of the savage tribes from the north of the island, and 
 from the attacks of the sea-rovers from the Saxon shores. 
 Eome gradually withdrew her troops ; and, at last, about 
 five centuries after the first landing of Caesar, she reluc- 
 
 * Mr. Macaulay, in the open- 
 ing of his History, underrates 
 the extent to which Britain was 
 Romanized. There is an ex- 
 cellent article on the subject in 
 the "Edinburgh Review," No. 
 cxci. Sir F. Palgrave's words, 
 in his History of the English 
 Commonwealth, on this point, 
 deserve citation. " The country 
 was replete with the monu- 
 ments of Roman magnificence. 
 Malmesbury appeals to those 
 stately ruins as testimonies of 
 the favour which Britain had 
 enjoyed ; the towers, the tem- 
 ples, the theatres, and the 
 baths, which yet remained un- 
 destroyed, excited the wonder 
 and admiration of the chro- 
 nicler and the traveller ; and 
 even in the 14th century, the 
 edifices raised by the Romans 
 w^ere so numerous and costly, as 
 almost to excel any others on 
 this side the Alps. Nor were 
 
 these structures among the least 
 influential means of establish- 
 ing the Roman power. Archi- 
 tecture, as cultivated by the 
 ancients, was not merely pre- 
 sented to the eye; the art 
 spake also to the mind. The 
 walls covered with the decrees 
 of the legislature, engraved on 
 bronze, or sculptured on marble ; 
 the triumphal arches, crowned 
 by the statues of the princes 
 who governed the province from 
 the distant Quirinal ; the tes- 
 selated floor, pictured with the 
 mythology of the State, whose 
 sovereign was its pontiff" — all 
 contributed to act upon the 
 feelings of the people, and to 
 impress them with respect 
 and submission. The conquered 
 shared in the fame, and were 
 exalted by the splendour of the 
 victors." — See also his " History 
 of Normandy and England," 
 chap. 1. 
 
 c 2 
 
28 RISE AND PROGRESS 
 
 tantly abandoned her reluctant province to nominal inde- 
 pendence, but to real anarchy and devastation. The 
 arrival of the Saxons checked the progress of the Cale- 
 donian marauders. These were driven back to their 
 northern fastnesses, but the German new comers 
 soon claimed supremacy over the British inhabitants. A 
 long chaotic period of savage warfare ensued ; and nearly 
 two hundred years of slaughter and suffering passed 
 away before our Saxon ancestors established their Octar- 
 chy in the island ; and, even then, a considerable portion 
 of the western districts remained in the possession of the 
 British, or, as the Saxons termed them, the Welsh. 
 
 How far in the parts of the island, wliich the Saxons 
 subdued, they exterminated the British, or to what ex- 
 tent the two populations were blended together, deserves 
 next our earnest inquiry ; and it is a matter on which the 
 correctness of our classification of the elements of our 
 nation must depend. 
 
 The Germanic origin of our language, and the pecu- 
 liarly savage nature of the warfare by which the Anglo- 
 Saxons conquered this island, have led some writers to 
 assert that the provincials of Britain were almost entirely 
 exterminated, and that the land was repeopled by the 
 rapid influx and continued increase of German colonies. 
 This hypothesis would exclude the Celtic element from 
 our nation. Arnold goes so far as to say that " The 
 Britons and Eomans had lived in our country, but they 
 are not our fathers ; we are connected with them as men 
 indeed, but, nationally speaking, the history of Caesar's 
 invasion has no more to do with us, than the natural his- 
 tory of the animals which then inhabited our forests. We,— ^ 
 this great English nation, whose race and language aro 
 now overrunning the earth from one end to the other, — we 
 
 d 
 
OF THE CONSTITUTION. 29 
 
 were bom when the white horse of the Saxons had 
 estabhshed his dominion from the Tweed to the Tamar." 
 On the other hand. Sir F. Palgrave and other autho- 
 rities consider that a very large portion of the population 
 of England, during the Anglo-Saxon period, was of British 
 descent. I believe that this is a subject on which the 
 recent labours of comparative philologists have supphed 
 the historian with new and valuable light. I incline so 
 far to the opinion of Arnold, as to regard the Germanic 
 as the main stream of our race, but I cannot wholly ex- 
 clude the Celtic ; nor can I dismiss Caractacus as an 
 alien in blood, though we can proudly claim a still closer 
 relationship with Arminius. In opposition to the Pal- 
 gravian hypothesis, the reader may be usefully reminded 
 that the Saxon invasion of Britain differed from the 
 usual course of the barbarian conquests on the Continent 
 over the severed fragments of Eoman Empire. There 
 the miHtary superiority of the assailants was generally 
 self-evident and uncontested. Moreover, the Germanic 
 invaders of Gaul, of Spain, and Italy were generally 
 warriors from tribes that had been influenced to some 
 extent by intercourse with the Romans, both in peace and 
 in war. Their chiefs were not wholly unfamiliar with 
 Roman discipline and Roman art, and were ready to 
 appreciate Roman civiHzation. Many, also, of the Ger- 
 manic conquerors on the Continent had been converted 
 to Christianity before their inroads had been com- 
 menced, nearly all were converted before their settle- 
 ments were concluded. But the Saxons had never 
 been refined by peaceful approximation to the Roman 
 frontier. No missionary had set his foot among their 
 forests or on their coasts. They were pagan pirates. 
 They invaded Britain by detachments, and under different 
 
30 RISE AND PROGRESS 
 
 independent chiefs. They never landed in such impo- 
 sing force as to awe the invaded into bloodless submission, 
 but merely in sufficient numbers to fight their way — to 
 conquer indeed — but only to conquer inch by inch. 
 Their savage paganism inflamed them with peculiar 
 frenzy against all that the Christianized Britons held 
 most sacred ; each side upbraided the other with perfidy 
 and fraud ; no possible bond of fair union existed between 
 them ; and, probably, in no conquest were the victors 
 more ruthless to the vanquished than in the desperate 
 and chequered struggle by which the Saxons won their 
 slow way over this island. 
 
 Led by this historical circumstantial evidence, and by 
 the great fact of our language being essentially Ger- 
 manic, I believe that the Saxons almost entirely exter- 
 minated or expelled the men of British race whom they 
 found in the parts of this country which they conquered. 
 But the same evidence (both the historical and the 
 philological), when carefully scrutinized, leads also to 
 the belief that it was only the male part of the British fl 
 population which was thus swept away, and that, by 1 
 reason of the unions of the British females with the 
 Saxon warriors, the British element was largely preserved 
 in our nation. I remind my readers that the British, 
 whom the Saxons found here, were mainly Celts. 
 
 Besides those Celtic words in the EngHsh language 
 which can be proved to be of late introduction, and those 
 •which are common to both the Celtic and Germanic 
 tongues, there are certain words which have been re- 
 tained from the original Celtic of the island. These 
 genuine Celtic words of our language (besides proper 
 names) are rather more than thirty in number. The late 
 Mr. Garnett formed a list of them ; and in his opinion 
 
 A 
 
OF THE CONSTITUTION. 31 
 
 the nature of these words showed that the part of the 
 British population, which the Saxons did not slay, was 
 reduced into a state of complete bondage, inasmuch 
 as all these words have relation to some inferior employ- 
 ment. Now, if the reader will carefully examine the list, 
 he will see that not only do these Celtic words all apply 
 to inferior employments, but that by far the larger num- 
 ber of them apply to articles of feminine use or to 
 domestic feminine occupations. They are as follows : — 
 Basket, harrow, button, Iran, clout, crock, crook, 
 gusset, kiln, cock {in cock-boat), dainty, darn, tenter 
 {in tenter -hook), Jieam, flaw, funnel, gyve, griddel 
 {gridiron), gruel, welt, wicket, gown, wire, mesh, mat- 
 tock, mop, rail, rasher, rug, solder, size {glue), tackle. 
 
 This remarkable list of words is precisely what we 
 should expect to find, on the supposition that the con- 
 quering Saxons put their male prisoners to the edge of 
 the sword, except a few whom they kept as slaves, but 
 that they took wives to themselves from among the cap- 
 tive daughters of the land. The Saxon master of each 
 household would make his wife and his dependents learn 
 and adopt his language ; but in matters of housewifery 
 and menial drudgery, their proud lord would scorn to 
 interfere, and they would be permitted to employ their old 
 own famihar terms. All the circumstances of the Saxon 
 conquests favour this hypothesis. The Saxons came by 
 sea, and in small squadrons at a time. They came also 
 to fight their way, and were Httle likely to cumber their 
 keels with women from their own shores. A few Ro- 
 wenas may have accompanied the invading warriors, but 
 in general they must have found the mothers of their 
 children among the population of the country which they 
 conquered. 
 
32 RISE AND PROGRESS OF THE CONSTITUTION. 
 
 This hypothesis also accounts for the difference which 
 undoubtedly exists between ourselves and the modem 
 Germans, both in physical and in mental characteristics. 
 The Englishman preserves the independence of mind, 
 the probity, the steadiness, the domestic virtues, and the 
 love of order which marked his German forefathers ; while, 
 from the Celtic element of our nation, we derive a greater 
 degree of energy and enterprise, of versatility, and practical 
 readiness, than are to be found in the modern populations 
 of purely Teutonic origin. 
 
 II 
 
CHAPTER III. 
 
 Conversion of the Anglo-Saxons. — Its civilizing Effects. — They 
 occupy the Roman Towns. — England attacked by the Danes. — 
 The third, i. e. the Danish, Element of our Nation. — Danish Institu- 
 tions and Customs. — Ferocity of their Attack on England. — Ex- 
 tent of their chief Settlements here. — Evidence of Danish Names 
 of Places and Persons. — Alfred rescues Saxon-England from 
 them. — The Danish blends with the Saxon Element. — Fusion of 
 the first three Elements of our Nation. 
 
 The conversion of the Anglo-Saxons to Christianity 
 (which was principally effected during the seventh cen- 
 tury) did much to mitigate the wild fierceness of the con- 
 querors, and also to modify their political and social in- 
 stitutions. The ecclesiastics from continental Christen- 
 dom, who were the first missionaries to Saxon England, 
 and who continued to migrate hither in no inconsider- 
 able numbers, came from lands where the old Roman 
 civilization had survived in a much greater degree than 
 was the case in Britain. They were famihar with muni- 
 cipal self-government practised in populous and im- 
 portant cities ; they were familiar, also, with the idea of 
 imperial power, as it once had been wielded by Roman 
 emperors in the West, and still lingered in the ostenta- 
 tious, though feeble grasp of the emperors of Constanti- 
 nople. The Church, moreover (withio the pale of which 
 St. Augustine and his coadjutors brought the English 
 nation), had her councils, her synods, and the full organi- 
 zation of a highly complex, but energetic and popular 
 
 c 3 
 
34 RISE AND PROGRESS 
 
 ecclesiastical polity. She recruited her ranks from men 
 of every race, and every class of society. She taught 
 the unity of all mankind ; and practically broke down the 
 harriers of caste and pedigree, by offering^ to all her tem- 
 poral advantages as well as her spiritual blessings. She 
 sheltered the remnants of literature and science; and 
 ever strove to make the power of the Intellect predomi- 
 nant over brute force and mere animal courage. All 
 these civilizing influences must have largely affected the 
 converted Anglo-Saxons, and have given increased efficacy 
 to the subdued, but not exterminated element of our race, 
 the Komanized British element, with which the Saxons 
 had partially coalesced. Moreover, the very wars which the 
 Saxons waged against the Britons and each other, must 
 have made the Germanic conquerors appreciate the 
 mihtary advantages of occupying the walled towns and 
 cities which the Komans had left in our island.f They who 
 thus became dwellers in cities would naturally adopt the 
 system of civic self-government, which Rome had once 
 introduced, and which was so congenial to the free spirit 
 of the new settlers. The remnant of the British popula- 
 tion in the cities may have taught much of this, but it is 
 
 * See, as to the influence of generally suffered the Roman 
 
 the Church of Rome as an in- cities to perish, and that their 
 
 8tniment of modern European own towns had a totally inde- 
 
 civilization, the admirable ob- pendent origin. The fact that 
 
 servations of the Protestant the Saxons were almost always 
 
 Guizot, "Histoire de la Civili- at war not only with the Britons, 
 
 Ration en Europe," Le9ons 5 et 6. but with each other, is conclu- 
 
 t I cannot adopt the opinion sive against supposing that they 
 
 of Mr. Kemble (chapter on the could have neglected the mili- 
 
 Towns, book ii., of the " Saxons tary advantages which the Ro- 
 
 in England") that tho Saxons man fortifications offered. 
 
OF THE CONSTITUTION. 35 
 
 probable that the clergy of the Koman See taught more. 
 Thus many germs of order appeared in Saxon England 
 when Christianized ; but, before they could be fully deve- 
 loped, a new indraft of rough barbaric blood was poured 
 into the population. Scandinavia sent hither her swarms 
 of warriors, fresh from her rugged coast, unsoftened by 
 any recollection of Imperial or any contact of Papal Rome, 
 to struggle long and fiercely for the mastery of the island, 
 and to make the third great element of the Enghsh nation. 
 The consideration of this element soon occupies the 
 historical student, who has been tracing the progress of 
 the Saxons in this island; for the Danes commenced 
 their ravages and partial conquests of England before the 
 Anglo-Saxon Octarchy could be fused into the English 
 kingdom ; before, indeed, any of the Saxon States had 
 acquired a permanent predominance over the rest. * 
 
 In the year 787, thirteen years before the accession of 
 Egbert to the throne of Wessex, some men of a strange 
 race landed from three vessels at an eastern port in 
 England. They slew on the beach the Saxon magistrate 
 who came down to question them, plundered the neigh- 
 bouring habitations, and hastily re-embarked with their 
 spoil. Such was the first recorded appearance of the Danes 
 in England ; but they almost monopolize the pages of 
 the Anglo-Saxon Clironicles, from that time forth to the 
 year 1066, when our last Harold destroyed the last host 
 of Scandinavian invaders at Stamford Bridge, only a few 
 days before his own defeat and death at Hastings. 
 
 * Kemble has completely Britain) are fabulous. See also 
 proved that the supposed Saxon " Hallam's Middle Ages," vol. ii. 
 BretwaJdas (or rulers of all p. 349, 10th edition. 
 
36 RISE AND PROGRESS 
 
 These northern sea-rovers, from whose ravages scarcely 
 any European coast during the ninth and tenth centuries 
 escaped, who everywhere appear as conquerors, and up to 
 whom so many nohle and royal pedigrees are traced, had 
 much original affinity of race, language, and institutions, 
 wdth the Anglo-Saxons whom they assailed so savagely in 
 their settlements in this island. 
 
 The Scandinavian and the Germanic tongues are classed 
 together hy comparative philologists under the common 
 title of the Gothic stock. Odin, Thor, Freia, and the other 
 principal deities of the Scandinavian Valhalla, had been 
 also the gods of the Anglo-Saxons, while the Anglo- 
 Saxons were in their primitive state of heathendom.* 
 Both Anglo-Saxons and Scandinavians believed that the 
 princely families out of which they chose their kings were 
 descended from Odin. The Scandinavians seem in their 
 political institutions to have been more turbulently free 
 than even their Germanic kinsmen. The three Scandi- 
 navian countries, that ultimately became the monarchies 
 of Denmark, Sweden, and Norway, were originally sub- 
 divided into numerous petty kingdoms. In each of these, 
 whenever the king died, his successor was elected out of 
 the descendants of the sacred stock by the choice of 
 the assembled freemen of the State. Part of the popula- 
 tion was in a state of slavery or thraldrom (troeldom), 
 the inevitable result of the perpetual wars and piracies 
 in which the Scandinavians indulged. These unhappy 
 beings were of course destitute of all political rights ; but 
 
 * See Kemble's chapter on Grimm's " Deutsche Mytholo- 
 Saxon Heathendom, and gie." 
 
OF THE CONSTITUTION. 87 
 
 every freeman capable of bearing arms might attend at 
 the " Ting," as the popular assemblies, both for legislative 
 and judicial purposes, were called, and every freeman had 
 an equal voice. Each Scandinavian State was subdivided 
 into hserads or hundreds, which formed communities for 
 local self-government, identical, probably, in nature with 
 the hundreds of the primitive Germans, which have been 
 already spoken of. They followed chiefs of their own 
 choice in warlike expeditions : though the king was re- 
 garded as the natural leader of the national force on 
 great occasions. But unless the assembled freemen in the 
 Ting willed it, the king could neither make peace nor war, 
 nor impose a tax, nor levy an army. He was little more 
 than a mihtary chieftain, and was sure of being speedily 
 deposed, if he did not exhibit sufficient spirit and energy 
 in warlike enterprises to satisfy his subjects. War, espe- 
 cially war by sea, was the occupation in wliich a Danish 
 freeman sought to live, and in which he prayed to die. 
 Some gleams, however, of more civihzed and civihzing 
 feehng may be traced amid the martial gloom of the 
 Scandinavian character. Women were regarded always 
 with honour, and often with chivalrous devotion. The 
 respect, also, of these wai-riors for their laws, as adminis- 
 tered by freemen towards freemen, was general and pro- 
 found. They delighted in poetry and minstrelsy. They 
 held the arts of the miner and the worker of metals in 
 estimation. Nor were their maritime skill and enterprise 
 displayed only for purposes of destruction. They looked 
 on commerce with respect; laws were established and 
 strictly observed for the protection of merchant vessels ; 
 and an extensive traffic was carried on by Scandinavian 
 adventurers with the far East, through Kussia and along 
 
38 RISE AND PROGRESS 
 
 the great rivers of central Asia.* But the fierce excite 
 ment of battle was generally the prevailing attraction for 
 which a Danish fleet was launched. Every free Scandi- 
 navian was a seaman ; and the art of ship-building was 
 brought early by them to considerable perfection ; though 
 they generally used in their predatory expeditions small 
 vessels of little draught, so as to enable them to ascend 
 the rivers of the countries which they attacked. It was 
 chiefly by squadrons from the Danish part of Scan- 
 dinavia that England was assailed, though the Norwegians 
 co-operated : t and our chroniclers speak of them gene- 
 rally as Danes. In France, and other countries of the 
 Continent, they were known by their own favourite de- 
 signation of Northmen. 
 
 The original affinity that had existed between the 
 Danes and the Anglo-Saxons by no means mitigated the 
 ferocity of the Scandinavian invaders towards the Ger- 
 manic occupants of the island : it rather was a cause of 
 exasperation. A change had taken place in the Anglo- 
 Saxons since their settlement here, which had broken off 
 every tie between them and their Scandinavian kinsmen. 
 
 * For the Danish institutions chiefly attacked England ; Scan- 
 
 and customs see Worsaae's book dinavians from Norway chiefly 
 
 on " The Danes and Northmen attacked Scotland. Of the three 
 
 in England, Scotland, and Ire- Scandinavian countries Sweden 
 
 land;" " Crighton's Scandina- sent the fewest assailants of this 
 
 via," vol. i. chap, iv., and an island. " Not that the Swedes 
 
 article by Sir Francis Palgrave were less piratical, but that they 
 
 on our Ancient Law-Courts, in robbed elsewhere ; in Russia, 
 
 the 75th Number of the " Edin- for instance, and in Finland." 
 
 burgh Review." — Latham'' s English Language^ 
 
 t According to Worsaae, p. 99. 
 Scandinavians from Denmark 
 
OF THE CONSTITUTION. 89 
 
 The Anglo-SaxoD had been converted to Christianity, 
 while the man of the North still gloried in the title of 
 Son of Odin ; and hated, as a renegade, him, who, once 
 proud of the same descent from the Asas, had left his 
 warrior faith for the new creed of the mass and the monk. 
 Led by their Vikingr, younger sons of royal houses, 
 whose only heritage was the sea and such lands beyond its 
 waves as their own swords could win them, these " Slayers 
 from the North," as the old legends termed them, re- 
 appeared in England again and again, settling ere long on 
 the shores which at first they merely ravaged, breaking 
 down Saxon bravery by their ferocious and fanatic valour, 
 overwhelming the three minor kingdoms of Mercia, East 
 Anglia, and Northumbria, and nearly crushing that of 
 Wessex, which had become the chief Saxon State of the 
 south and centre of the island. 
 
 The genius and heroic patriotism of Alfred rescued 
 Saxon England from utter destruction. A son and 
 grandson worthy of him succeeded him on the throne of 
 Wessex. The Danish population, which had spread over 
 the north-east of England, was brought to acknowledge 
 their authority, partly by victories in the field, partly by 
 the influence of superior civilization, and still more by 
 conversion to Christianity. Anglo-Saxon and Anglo- 
 Dane became more and more assimilated; the Anglo- 
 Saxon tongue, institutions, and habits generally ac- 
 quiring the ascendancy. But there can be no doubt of 
 the influence of the Danish having been strong and 
 permanent. The evidence of language, both in difier- 
 ence of dialect, and in the names of places and persons 
 still points out the parts of England where the Danish 
 occupancy was strongest. In every shire where we find 
 the compound names of places ending in ly, (as in 
 
40 RISE AND PROGRESS 
 
 Derby, Grimsly, Onnshy, &c.,) we trace the Dane. The 
 German (or Saxon) ending would he ton.^ The termi- 
 nation son to proper names of persons (as in Adatnson, 
 Nelson, i.e. Nielson, &c.) marks a Danish pedigree. 
 Other proofs of a similar kind are collected hy the modem 
 Dane, who shows a pride, which we may well share, in 
 these marks of affinity hetween the combatants of Copen- 
 hagen.f 
 
 The troubles which shook Saxon England after the 
 reign of Edgar (875) caused fresh attacks from Den- 
 mark. But Denmark was now consolidated into one 
 kingdom, and had been brought within the civilizing pale 
 of Christendom. The wars which Sveyn and Canute 
 waged here during the end of the 10th and commence- 
 ment of the 11th centuries were of a very different cha- 
 racter to the savage devastations with which the old 
 Northmen had swept the land. They were steady wars 
 of conquest : and for a time were successful. Canute (or 
 Knut, as the name is more properly written and pro- 
 nounced) was undisputed sovereign of England from 
 1017 to 1035. He united also the crowns of the three 
 Scandinavian kingdoms, and was one of the greatest 
 princes that ever ruled in this island, whether we regard 
 the extent of his power or his personal character. But 
 his dynasty was not destined to take root here, and after 
 the death of his son Hardicanute (1052), the Anglo-Saxon 
 element showed its predominance over the Anglo-Danish ; 
 and the nation restored a prince of the old royal stock of 
 Cerdic to the throne. Erom the accession of Edward the 
 
 * See Worsaae's " Danes in ■ Islands," chap. 13. 
 England," sect, viii., and La- t See Worsaae, p. 177, and 
 tham's " Ethnology of British pp. 186, 187. 
 
 I 
 
 I 
 
OF THE CONSTITUTION. 41 
 
 Confessor to the battle of Hastings, England may be 
 again correctly termed an Anglo-Saxon kingdom. 
 
 We have thus brought together three of the four 
 elements of our race; and watched their fusion. We 
 have seen the general prevalence of the Anglo-Saxon 
 over the British and the Danish : and henceforth we shall 
 speak of the product of the combined three as Anglo- 
 Saxon, in contradistinction to the fourth, the Norman 
 element, that is yet to come. But before we turn our 
 attention to Normandy, it is well to pause, and examine 
 (so far as is practicable) the general nature of the Anglo- 
 Saxon institutions before the Norman Conquest. 
 
CHAPTER IV. 
 
 Anglo-Saxon Institutions. — Classes of the Population. — Thralls, 
 Ceorls, Thanes. — Townships. — Hundreds. — Tythings. — Frank- 
 pledge, — Lords. — The Were. — The Socmen. — The Towns. — The 
 Witenagemote. — The King. — The Bishops. — The Clergy. — The 
 Poor. — Deterioration of the Saxon Polity before the Conc[uest. 
 
 Notwithstanding the effects of the Norman Conquest, 
 and the consequent introduction of the fourth element of 
 our present nation, the foundations of so many of the most 
 important of our institutions are Saxon, that aright under- 
 standing of the Anglo-Saxon system of government, and 
 the condition of the various classes of the community 
 under it, is indispensable in order to discern and appre- 
 ciate the changes and modifications introduced hy the 
 Normans, and also those which " the great innovator. 
 Time," has subsequently effected. And even at the pre- 
 sent day we must look back to the Anglo-Saxon period, if 
 we would properly comprehend the principles of many of 
 the most important and the most practical parts of our 
 laws and usages. 
 
 There is no branch of constitutional knowledge, in 
 which so much has been done during the last fifty years 
 as in Anglo-Saxon history. It used to be studied merely 
 with a view to modern politics, and it was misunderstood 
 and distorted accordingly. It is now investigated with 
 the desire of learning the truth, and the lessons which we 
 
RISE AND PROGRESS OF THE CONSTITUTION. 43 
 
 derive from it are therefore trustworthy and sound. Ex- 
 treme party-writers can no longer pretend to find or fancy 
 that they find their favourite tenets in the Anglo-Saxon 
 system ; hut we may all find much, the spirit of which is 
 worthy of admiration and pei-petuation, though the forms 
 through which it acted are obsolete and incapable of 
 revival. 
 
 It should be premised that the word " system," as ap- 
 plied to the Anglo-Saxon times, must be taken in a very 
 modified sense, or it is calculated to mislead by giving an 
 idea of uniformity, such as never existed. The Anglo- 
 Saxon institutions were not arbitrarily created by any one 
 lawgiver, or during any one age. They grew by degrees ; 
 and they grew also in a country which was an almost 
 perpetual scene of war and tumult, and which was inha- 
 bited by races of difierent origin; so that the local deve- 
 lopment of these institutions varied, besides their tempo- 
 rary fluctuations. It is unsafe to attempt to give more 
 than a general idea of their leading features, which must 
 be variously worked out in detail, according to the par- 
 ticular reign, and the particular part of England, to which 
 it is meant to be applied. 
 
 One class of the community in Anglo-Saxon times 
 (though probably no very large portion) was in a state of 
 absolute slavery. They were known in Saxon by the 
 names of Theow, Esne, and Thrall. They probably 
 originally consisted of conquered Britons; but as cri- 
 minals, who could not pay the fine imposed by law, were 
 reducible to this state, many unfortunate beings of Ger- 
 man ancestry must in process of time have been com- 
 prised in this degraded and sufiering class. The freemen 
 of the land were classified by a broad division into the 
 Ceorls who formed the bulk of the population, and into 
 
44 RISE AND PROGRESS 
 
 the Thanes who formed the nohility and the gentry. 
 Sometimes the classification is made into Ceorls and 
 Eorls ; the title of Eorl having reference to birth, whereas 
 the title of Thane had reference to the possession of 
 landed property. It was this, the ownership of landed 
 property, that mainly determined the status and political 
 rights of a Saxon freeman, and therefore the classification 
 into Ceorls and Thanes is the most convenient to follow.* 
 There is an additional reason for doing so, because the 
 Danes used the title Eorl (Jarl, Earl) to designate au- 
 thority and command ; and when the Danish influence 
 extended in Saxon-England, the title of Earl was em- 
 ployed not to mark a man of good birth, but the ruler m 
 of a shire or other district. 
 
 Many other names of bodies of people among the 
 Saxons, and among subdivisions of classes, might be 
 cited and explained, but to do so would require a dispro- 
 portionate amount of this treatise; and, for the broad 
 general view of Anglo-Saxon institutions, which alone is 
 aimed at here, the classification of freemen into Ceorls and 
 Thanes is sufficient. 
 
 Both the democratic and the aristocratic principles en- 
 tered largely into the Anglo-Saxon polity ; the latter finally 
 obtaining the ascendancy, chiefly by reason of the strict- 
 ness of the regulations, which it was found necessary to 
 introduce, in order to maintain some degree of public peace, 
 and to give some security for property and person, amid 
 the tumult and confusion which prevailed so often and so 
 
 * See on this subject, and on Hallam's "Middle Ages," vol. ii. 
 
 the position of an Earl, who had p. 256. See also Kemble's 
 
 not the property requisite to "Saxons in England," vol. i. 
 
 make him a Thane, an excellent p. 131. 
 note in the new edition of Mr. 
 
OF THE CONSTITUTION. 45 
 
 generally in England during the troubled ages of the 
 Anglo-Saxon rule. To adopt the technical language of 
 a modern writer on political pliilosophy,* Security being 
 the primary object of government, it was found necessary 
 to trench largely on both Liberty and Equality, in order 
 to preserve it. 
 
 One great fact, however, never must be forgotten while 
 we examine the Anglo-Saxon institutions, and mark the 
 privileges which the Thanes {i. c. the landed proprietors) 
 possessed over the mass of the free commonalty, the 
 Ceorls. The superior body was not composed of an 
 hereditary caste, or noblesse. It was an aristocracy, but 
 it was open to receive recruits from the ranks below it. 
 Any Ceorl, who could acquire a defined amount of landed 
 property, could become a Thane. 
 
 It is convenient to examine the Anglo-Saxon social 
 body, by commencing with its component parts. This 
 method is recommended by Palgrave, and (subject to 
 some slight additions and quahfications) we may safely 
 follow him in taking the Anglo-Saxon townships as the 
 integral molecules, out of which the Anglo-Saxon State 
 was formed. He says,t " Ascending in the analysis of 
 the Anglo-Saxon State, the first and primai7 element ap- 
 pears to be the community, which in England, during the 
 Saxon period, was denominated the Town, or Township. 
 In times comparatively modern, this term became less 
 frequently used, and it has been often superseded by the 
 word "Manor." The latter is of Norman origin, and 
 merely denotes a residence, and is frequently applied in 
 ancient records to any dwelling or mansion, without any 
 
 * Bentham. English Commonwealth," p. 65. 
 
 t " Rise and Progress of the 
 
46 RISE AND PROGESS 
 
 reference to situation, territory, or appendant jurisdiction. 
 An explanation of the Saxon term may be required. De- 
 noting in its primary sense the inclosure which sur- 
 rounded the mere homestead or dwelling of the lord, it 
 seems to have been gradually extended to the whole of 
 the land which constituted the domain." There was a 
 lord of every township, usually one of the more opulent 
 Thanes, though some townships belonged to the Sove- 
 reign as their superior. We will, however, limit our at- 
 tention to the ordinary and normal case, where a resident 
 Thane was lord of the township. He dwelt there on his 
 own demesne lands. Eound him there were grouped a 
 number of Ceorls, some occupying allotments of land, 
 some tilling the lands of others.* Each township had 
 its Gerefa, or Keeve, an elective chief officer; and also in 
 each township four good and lawful men were elected, 
 who, with the reeve, represented the township in the 
 judicial courts of the hundred and the shire. All these 
 appear to have been fi'eely elected by the commonalty of 
 each township from among their own body. The inha- 
 bitants of each township regulated their own police. 
 They were bound to keep watch and ward ; and if any 
 crime was committed in their district, they were to raisej 
 the hue and cry, and to pursue and apprehend the! 
 offender. 
 
 Such were the townsliips ; having, generally, each its! 
 own local court, with varying amounts of jurisdiction;] 
 
 * I am only endeavouring Infangthief, or Outfangthief, 
 
 here to give a general sketch of &c. Copious information on 
 
 a township, and therefore avoid these points may be found in i 
 
 entering into questions about Palgrave and Kemble. 
 Socmen, or Landboc, or Lon, or 
 
OF THE CONSTITUTION. 47 
 
 and being subordinate to the hundred court, which was 
 again subordinate to the shire moot or county court. 
 
 This leads us to consider the Enghsh hundreds, which 
 subsist to this day, though the townships have become 
 almost obsolete, having been superseded partly by the 
 Norman manors, and partly in consequence of the eccle- 
 siastical division into parishes having been adopted for 
 the pui'poses of petty local self-government. 
 
 Whether our hundreds had originally any reference to 
 numher or not, it is certain that they ultimately became 
 mere territorial divisions. And, both in order to facihtate 
 the organization of the inhabitants for mihtary purposes, 
 and to afford better security against crime, the hundreds 
 were subdivided into ty things. In one respect, the sys- 
 tem of tything was more comprehensive than the system 
 of townships, as there may have been land not included 
 in any township, and which would yet be within a hun- 
 dred, and consequently would, when hundreds were sub- 
 divided, be brought within a tything. 
 
 Every hundred had its court, which was attended by 
 the Thanes whose demesnes were within its boundaries, 
 and by the four men and the reeve of each to^vnship. 
 The hundred court was held monthly, and was subordi- 
 nate to the court of the shire. The shire or county courts 
 were held at least twice a year. They were presided over 
 by the bishop, and the eorlderman, or earl. Each shire 
 had also its reeve, who, in the absence of the eorlderman, 
 was the president of its court, in conjunction with the 
 bishop. All the thanes in the county, the four men, and 
 the reeve of each township, and the twelve men chosen to 
 represent each hundred, attended the county court, but it 
 is justly doubted whether any but the thanes had a voice 
 in it. Though an appeal from it seems to have lain to 
 
48 RISE AND PROGRESS 
 
 the Witenagemote, the supreme court of the kingdom, and 
 though the Witan in some cases sometimes exercised an 
 original jurisdiction, the shire moots were in practice the! 
 most important tribunals in the country, and both theyl 
 and the minor ones, which we have referred to, were cer- 
 tainly of a very free and popular character. 
 
 So far the Anglo-Saxon system seems democratic 
 enough ; but even before we proceed to the consideration 
 of the Witenagemote, there are two features to be attended 
 to which are of a very different character. 
 
 Every member of the Anglo-Saxon commonalty was 
 bound to place himself in dependence upon some man of 
 rank and wealth, as his lord. The " lordless " man was 
 liable to be slain as an outlaw by any one who met him. 
 And, in addition to this, every man was bound to be en- 
 rolled in some ty thing; the members of each ty thing 
 being mutually responsible for each other's good conduct, 
 to this extent at least, that if any one of them committed 
 a crime, the rest were bound either to render him to jus- 
 tice to take his trial, or to make good the fine to which, 
 in his absence, he might be sentenced. The efiect of 
 these regulations was almost to limit every man to the 
 place and neighbourhood of his nativity ; for it was dif- 
 ficult and almost impossible to get enrolled in a tything 
 or to find a lord in a place where a man was not known. 
 At the same time, it is to be borne in mind that this spe- 
 cies of compulsory settlement inflicted far less hardship 
 in Anglo-Saxon times, when there was Httle traffic or 
 communication between one district and another, and 
 little inducement for a poor man to try to change his 
 home, than has been in modern times caused by our lawsj 
 of settlement and removal. 
 
 The recollection of this will keep us from exaggerating! 
 
OF THE CONSTITUTION. 49 
 
 the importance of one point in the position of the Ceorls, 
 which has caused some writers to speak of it as a state 
 of servitude. Many of the Saxon Ceorls were legally 
 annexed to the lands of their lords, and could not quit 
 the estate on which they had to render their services. 
 But the Ceorl was in other respects personally free. He 
 was law-worthy, to use the old expressive phraseology. 
 Among the Anglo-Saxons (as among all the other northern 
 nations) a composition, or were-gild, was fixed by law 
 for the slaying of any member of the State, according to 
 the class to which he belonged. The were-gild for the 
 death of a Ceorl was 200 shiUings, and was payable to 
 liis family, and not to the lord of the estate on which he 
 lived. But the fine for killing a slave was pdd to the 
 slave's owner. The Ceorl had the right of bearing arms. 
 He was a legal witness. As already pointed out, he had 
 political rights with regard to the magistracies of his 
 township, his tything, and his hundred, both as an 
 elector and as himself eligible to office. He could ac- 
 quire and hold property in absolute ownership; and he 
 needed no act of emancipation to pass into the class of 
 thanes, if he acquired the requisite property qualification 
 of five hides of land. Many of the Ceorls were land- 
 owners to a smaller extent. Hallam considers the soc- 
 men, who are frequently spoken of in Domesday Book, 
 to have been Ceorls of this description. He says, " They 
 are the root of a noble plant, the free socage tenants, or 
 EngUsh yeomanry, whose independence has stamped 
 with pecuUar features both our constitution and our 
 national character." * 
 
 By far the larger part of the population in the Anglo- 
 
 * " Middle Ages," vol. ii. p. 274. 
 
60 EISE AND PROGRESS 
 
 Saxon times was agricultural, but the towns were of 
 considerable importance. The free spirit of local self- 
 government which marks the Anglo-Saxon polity as 
 displayed in its rural and village communities, was no 
 less strongly developed in their cities and towns. The 
 burg (as the town was usually called, meaning, literally, a 
 fortified place) was organized like a hundred, having 
 sub-divisions analogous to those of the hundred, accord- 
 ing to its size and population. The Burhwara, or men 
 of the borough, elected from among themselves their 
 local ofi&cers for keeping the peace, and other purposes 
 of municipal government. They thus also freely chose 
 their own borough-reeve, or port-reeve, as their head of 
 the civic community was termed. This officer presided 
 at their local courts (the burhwaremot, or hustings), and 
 in time of war led the armed burgesses into the field. 
 Sometimes the king, or a bishop, or a neighbouring lord 
 claimed and exercised seignorial rights within the borough; 
 nor can any description of the Saxon municipal system 
 be drawn that could be uniformly accurate. But, in 
 general, we may safely assert that the Saxon boroughs 
 were thriving and were free ; that they were strongholds, 
 where the germs of England's commercial prosperity, 
 and of the capacity of the Anglo-Saxon race for local 
 self-government, were matured, amid the turbulence of ^j 
 rude age, and the attempted encroachments of royal an( 
 aristocratic power.* 
 
 I shall have hereafter occasion to revert to the subjecl 
 
 * For further information as berg's " England under the 
 
 to the Anglo-Saxon boroughs, Anglo-Saxon Kings." See, also,] 
 
 their guilds, &c., see the Ap- the chapter in Kemble oi 
 
 pendix on Municipal Institu- " The Towns," vol. ii. p. 262. 
 tions, at the end of Lappen- 
 
OF THE CONSTITUTION. 61 
 
 of the Anglo-Saxon judicial system, particularly with 
 reference to trial hy jury; at present I will proceed to a 
 brief account of the supreme assembly, the Witenagemote, 
 which many political writers of the last century used to 
 describe as a genuine EngHsh parhament annually elected 
 by universal suffrage. 
 
 Palgrave, Hallam, and Kemble, however they may differ 
 among themselves on points of detail, have effectually 
 dispelled these monstrous and often mischievous delu- 
 sions. The Witan was essentially an aristocratic body. 
 It was summoned and presided over by the king. It was 
 attended by the bishops, by the earls or eorldermen ; the 
 thanes generally had a right to attend; and probably 
 those who resided in the neighbourhood of the place 
 where a Witan was held did attend in considerable 
 numbers. For the purpose of appeaUng against the 
 decisions of inferior tribunals, and of procuring justice 
 against powerful individuals, whom the minor courts 
 could not reach, the magistrates of boroughs, and the 
 four men and reeves of townships and other similar 
 officers must have occasionally been present. This is what 
 Sir Francis Palgrave terms " Remedial Representation." 
 But there certainly were no representatives of the Ceorls 
 at the Witan with any power to take part in or vote in its 
 proceedings. 
 
 The Witan made laws and voted taxes ; but this last 
 was a rare necessity. The king was bound to take their 
 advice as to making war or peace, and on all important 
 measures of government. The Witan had the power of 
 electing the king from among the members of the blood 
 royal. They on some occasions exercised the power of 
 deposing him for misconduct: and they formed the 
 
 D 2 
 
62 EISE AND PROGRESS 
 
 supreme court of justice both in civil and criminal 
 causes. 
 
 The nature and extent of the authority which the 
 Anglo-Saxon kings possessed are partly shown by the 
 description of the powers of the Witan. But, in addition 
 to many minor rights, the royal prerogatives of appoint- 
 ing many of the principal officers of government, of 
 commanding and disposing of the military force of the 
 kingdom, were of considerable importance ; and the per- 
 sonal character of the sovereign influenced materially the 
 prosperity or adversity of the country, during the troubled 
 centuries that passed between the accession of Egbert 
 and the fall of the last Harold. 
 
 It has been stated that the bishops were members of 
 the Witan. The influence of the clergy in the Anglo- 
 Saxon times was very great ; the humblest priest ranking 
 with the landed gentry as a mass thane. The ecclesiasti- 
 cal distribution of the country into parishes (i. e. preost 
 scyres, each being the district of a single priest) is 
 Anglo-Saxon; a division since generally adopted for 
 purposes of local self-government. It is to Saxon laws « 
 that modern disputants respecting tithes and church-ratesB 
 refer for the original legal obligation on the English laity 
 to provide these ecclesiastical revenues. Besides their 
 right to these, the church was largely endowed with glebe 
 for her parochial churches, and broad lands for her cathe- 
 drals and monasteries. The existence of one of these 
 great ecclesiastical foundations in or near a city favoured 
 the progress of municipal civilization ; and many of our 
 towns grew up round our ancient cathedrals. The high 
 officers of the church, her bishops and archbishops, were 
 recognised as the highest officers of the State also. Kem- \ 
 
OF THE CONSTITUTION. 63 
 
 ble has well remarked on the effect of this alliance 
 between Church and State in the Saxon times, that, 
 '^ guilty of extravagances the clergy were here, no doubt, 
 as elsewhere; but on the whole their position was not 
 unfavourable to the harmonious working of the State ; 
 and the history of the Anglo-Saxons is perhaps as little 
 deformed as any by the ambition, and power, and selfish 
 class-interests of the clergy. On the other hand, it 
 cannot be denied that in England, as in other countries, 
 the laity are under the greatest obhgations to them, partly 
 for rescuing some branches of learning from total neglect, 
 and partly for the counterpoise which their authority pre- 
 sented to the rude and forcible government of a military 
 aristocracy. Kidiculous as it would be to affirm that 
 their influence was never exerted for mischievous pur- 
 poses, or that this institution was always free from the 
 imperfections and evils which belong to all human insti- 
 tutions, it would be still more unworthy of the dignity of 
 liistory to affect to undervalue the services which they 
 rendered to society. If in the pursuit of private and 
 corporate advantages they occasionally seemed likely to 
 prefer the separate to the general good, they did no more 
 than all bodies of men have done, — no more than is 
 necessary to ensure the active co-operation of all bodies 
 of men in any one Hne of conduct. But, whatever their 
 class-interests may from time to time have led them to 
 do, let it be remembered that they existed as a permanent 
 mediating authority between the rich and the poor, the 
 strong and the weak, and that, to their eternal honour, 
 they fully comprehended and performed the duties of this 
 most noble position. To none but themselves would it 
 have been permitted to stay the strong hand of power, to 
 mitigate the just severity of the law, to hold out a ghm- 
 
 lu 
 
54 RISE AND PROGRESS 
 
 mering of hope to the serf, to find a place in this world 
 and a provision for the destitute, whose existence the 
 State did not even recognise." 
 
 This last observation of Kemble's refers to the wretched 
 position of those outcasts of the Saxon civil community 
 who could find no place in one of the mutual associations, 
 the tithings, and find no lord who would permit them to 
 become his retainers. These friendless helpless beings 
 could not have been very numerous (we are not speaking 
 of the wilful outlaws who lived by brigandage, but of 
 the involuntary outlaws), but some of them must have 
 existed. Such a being had no existence in the eye of the 
 law, the civil State regarded him not, but abandoned him 
 to arbitrary violence or starvation. But (to adopt again 
 the eloquent words of Kemble), Christianity "taught that 
 tliere was something even above the State, which the 
 State itself was bound to recognise." The Church im- 
 pressed the heavenly law by which the poor and needy, 
 whom the earthly law condemned to misery, were to be 
 relieved ; and the clergy presented their organization as 
 an efficient machinery for the distribution of alms. There 
 were other sources of relief for the poor. The tithes 
 and other ecclesiastical revenues contributed their portion, 
 and thus at every cathedral and every parish church there 
 was a fund for the helpless pauper, and officers ready for 
 its administration. 
 
 I leave unnoticed many points in the Anglo-Saxon 
 system, of interest in themselves, but not indispensable 
 for the general purpose of this treatise. But, in ap- 
 proaching the period of the Norman Conquest, it may be 
 usefully observed, with Guizot, that in the last period of, 
 the Anglo-Saxon system the power of the great nobles 
 was becoming more and more predominant, so as to 
 
 I 
 
OF THE CONSTITUTION. 66 
 
 menace both the independence of the crown and the free- 
 dom of the commonalty. The earls, or eorldermen, the 
 rulers of large provinces, like Earl Siward, Earl Leofric, 
 Earl Godwin and his sons, and others, were forming a 
 separate order in the State, through the aggressive in- 
 fluence of which the political rights and Uberties of the 
 others would probably have decayed and perished. The 
 catastrophe of the Norman Conquest prevented this; a 
 catastrophe terrible in itself; but, in all human proba- 
 bility, the averter of greater evils even to the Saxons 
 themselves than those which it inflicted. 
 
CHAPTER V. 
 
 The Norman Element. — Different from the Danish. — Rolf the 
 Ganger's Conquest of Neustria. — State of Civilization in France. 
 — Characteristics of the JSTormans. — Their brilliant Qualities. — 
 Their Oppression of the Peasantry. 
 
 Last, but not least in importance, of the four elements 
 of our nation came the Norman. In some respects it 
 may seem to be identical with the Danish : as Scandi- 
 navia was the parent country of both Norman and Dane. 
 But there is this essential distinction. The Danes came 
 to England direct from their Scandinavian homes. The 
 Norman nation had dwelt in France for more than a cen- 
 tury and a half between the time of its leaving Scandi- 
 navia and the time of its conquering England. During 
 that interval the Normans had acquired the arts, the lan- 
 guage, and the civilization of the Romanized Gauls and 
 the Romanized Franks. They had done more than ac- 
 quire the characteristics of others : they had created and 
 developed a new national character of their own, differing 
 both from that of their rude Danish and Norse kinsmen 
 on the shores of the Baltic and the North Sea, and from 
 that of the Romanesque provincials, whom they found on 
 the banks of the Seine and the southern coast of the 
 Channel. 
 
 i 
 
Osker, Eegner Lodbrok, Eric the Bed, Biorn Ironside, 
 Sidroc, and many more kings and jarls of the Norse or 
 Dansker-men, had sailed up the Seine and spread the 
 terror of their plunderings and slaughters through 
 France, before a young Norwegian chief, named Kolf, and 
 surnamed " Ganger " from his length of limb, left Nor- 
 way with a fleet of warriors, and in 876 a.d., after some 
 passing forays in England and Belgium, entered the 
 estuary of the Seine, and made the famihar voyage of 
 his countrymen up to Rouen. To say that he was enter- 
 prising, energetic, and fearless, is only to say that he was 
 a Norse Viking. But tall striding Rolf was much more. 
 He was a founder of empire. His brains were as good as 
 his sinews. He was a man of thought as well as a man of 
 action, and was worthy to be the lineal ancestor of Eng- 
 land's sovereigns. He " formed the plan of substituting 
 permanent colonization for periodical plunder. His host, 
 his men, his * baronage,' ultimately took possession of 
 the city of Rouen, and the neighbouring countr)% mea- 
 suring and dividing the land according to the Danish 
 custom, by the rope."* But their settlement there was 
 not efiected at once. A long series of wars with the 
 Frankish kings followed, varied by truces which were 
 always bought of the Northmen wdth French gold. At 
 last, in the year 912, King Charles Le Chauve formally 
 ceded to Rolf the province which the jarl already firmly 
 held, and which, from its new lord and his warriors, has 
 thenceforth borne the name of Normandy. 
 
 Even in the crushed and miserable state of France 
 
 * Palgrave's " Normandy and England," p. 518. 
 
 D 3 
 
58 RISE AND PROGRESS 
 
 under her last Carlovingian kings, Eolf, and his fellow- 
 adventurers from Scandinavia, could perceive and appre- 
 ciate the yet living fragments of a civilization superior to 
 their own. This, in truth, the instinctive faculty of dis- 
 cerning and adopting the creations of the genius of 
 others, peculiarly characterized the Normans, not only at 
 the period of their first settlement in France, hut through- 
 out the ages of the rule of their dukes in Normandy. 
 Eolf and his warriors embraced the creed, the language, 
 the laws, and the arts, which France, in those troubled 
 and evil times, during which the Carlovingian dynasty 
 ended and that of the Capets commenced, still inherited 
 from Imperial Kome and Imperial Charlemagne. Duke 
 Eollo (such were the title and name which Jarl Eolf as- 
 sumed) was succeeded in his duchy by a race of princes 
 resembling him in mental capacity, as well as in martial 
 bravery. The descendants also of the original Norman 
 barons, taken as a body, were conspicuous for the same 
 merits that had marked their sires. The century and 
 a half which passed between Duke Eollo's settlement in 
 Normandy and Duke William the Bastard's invasion of 
 this island was an important period in mediaeval history. 
 France, throughout this time, was little more than a fede- 
 ration of feudal princes; and, during this period, the 
 power, and pride, and predominance of the nobility, as a 
 distinct order from the mass of the nation, grew rapidly, 
 and assumed a peculiar social organization. 
 
 Amid the general disorder of France the noblesse for- 
 tified their castles where they dwelt ; each baron in his 
 stronghold, with his family and his band of favourite re- 
 tainers round him. The management of horses and arms 
 began to be regarded as the sole occupation worthy those 
 
OF THE CONSTITUTION. 59 
 
 of '' gentle " blood. During this century and a-half, 
 chivalry, with all its romantic usages and institutions, 
 grew into existence ; and the germs of modem literature, 
 of the poetry of the Trouveur aad the Trouhadoicr, ap- 
 peared. Eehgious zeal, also, as manifested in distant pil- 
 grimages, and in the lavishing of wealth and architectural 
 skill upon abbeys, cathedrals, and shrines, was carried to 
 a height previously unknown. In all these things, and in 
 a generous respect for intellectual excellence, by whom- 
 soever and however manifested, the Normans were pre- 
 eminent. Their national originality of character was 
 at the same time shown in the free, but orderly and intel- 
 ligent spirit, which made them establish and preserve in 
 their province a regularity of government, system, and 
 law, which contrasted strongly with the anarchy of the 
 rest of France. The Norman had a steady fixity of pur- 
 pose, he had a discernment of the necessity of social union 
 and mutual self-sacrifice of free-will among the individual 
 members of a State for the sake of the common weal. 
 Such qualities are the indispensable materials for national 
 greatness ; they were peculiar in those days to the Nor- 
 mans, especially as distinguished from the versatile and 
 impatient noblesse of the rest of continental Christendom. 
 
 We have no trustworthy details of the institutions and 
 laws of the Normans before the conquest of England. 
 We only know generally that there was a council of the 
 Norman barons, which the Norman duke was bound to 
 convene and consult on all important matters of state ; 
 and that William the Conqueror's counts and chevaliers 
 had not degenerated from the independent frankness of 
 their Scandinavian sires. 
 
 Such were the brighter qualities of the Normans, who 
 gave kings to our throne, ancestors to our aristocracy, 
 
60 RISE AND PROGRESS 
 
 clergy to our church, judges to our tribunals, rule and 
 discipline to our monasteries, instructors to our archi- 
 tects, and teachers to our schools. We must proceed in 
 our enumeration of the Norman gifts, and add, " who, 
 beside the misery which their conquest caused to the 
 generation then in being, gave, for many ages, tyrants to 
 our peasantry, and brutal oppressors to our burghers and 
 artizans." For there is a dark side of the Norman cha- 
 racter, which the historian of Enghsh liberty must not 
 omit ; and even the aristocrats of ancient republican 
 Eome were surpassed by the Norman nobility in pride, in 
 state craft, in merciless cruelty, and in coarse contempt 
 for the industry, the rights, and feelings of all whom they 
 considered the lower classes of mankind. 
 
 Hitherto in speaking of the Normans in Normandy, 
 we have been considering their usages and their charac- 
 teristics, so far only as they themselves were concerned. 
 It remains to view and judge them relatively to others. 
 
 The warriors of Kolf, and their descendants, were not 
 the whole population of Normandy; they formed only 
 a small minority of the human beings who lived in that 
 province. The peasantry, whom the Norse conquerors 
 found there, were not extirpated or evicted, but became ■ 
 part of the property of the new lords of the soil. They 
 were taken with the land, like the other animals that were 
 found on it. The mere fact of the foreign conquerors 
 making slaves of the conquered natives, would present in 
 itself nothing remarkable. Such was the established 
 practice of ancient and mediaeval times, nor can we say 
 that modern ages have been pure from it. But the domi- 
 nation of the Normans over their villeins (as the Neus- 
 trian peasants were termed) was marked by its peculiar 
 oppressiveness ; and especially by the tyranny of the 
 
 d 
 
OF THE CONSTITUTION. 61 
 
 forest-laws which the Normans established. Sir Francis 
 Palgrave says of this, that though the Normans did not 
 destroy the old inhabitants of Neustria, '' the conquerors 
 gave the widest construction to the law of property ; air, 
 water, and earth were all to be theirs — fowl, fish, and 
 beasts of chase, where the arrow could fly, the dog could 
 draw, or the net could fall — sportsmen and huntsmen, the 
 Danish lords appropriate to themselves all woodland and 
 water, copse and grove, river, marsh, and mere. Their 
 usurpation of the rights previously enjoyed in common 
 occasioned in the days of Rollo's great grandson a fearful 
 rebellion ; and the spirit of the forest laws, the pregnant 
 source of misery to old England, has perhaps acquired 
 additional bitterness in our present age; we retain the 
 evil, whilst our pariahs have lost the compensation which 
 mitigated mediaeval tyranny." 
 
 It is worth while to read in the old Norman chronicler, 
 William of Jumiege, his narrative of the insurrection, 
 which Palgi'ave refers to ; not only for the information 
 which it gives respecting its immediate subject, but, still 
 more, for the insight which it affords into the prevailing 
 sentiments among the Normans with respect to the labour- 
 ing classes. Count Ranulph's cruelty to the insurgent 
 peasants might be attributed to provocation or to indi- 
 vidual ferocity of character. But De Jumiege wrote 
 coolly and deliberately ; and the tone in which he speaks 
 of the sufferings and the duties of the peasantry, may be 
 taken as accurately representing the general opinion of 
 the Norman lords. After eulogizing the virtues of the 
 then reigning duke Richard, De Jumiege says, " While 
 he abounded in such goodness, it happened that in his 
 youth a certain seminary of pestiferous dissensions arose 
 within his dukedom of Normandy. For the peasants. 
 
62 RISE AND PROGRESS OF THE CONSTITUTION. 
 
 one and all, throughout the various counties of Nor- 
 mandy, holding many assemhlies, resolved to hve at their 
 own free-will; so that they should enjoy their own rights 
 as to forest and to fishery, without the harrier of the law 
 previously ordained. And for the purpose of estahlish- 
 ing these schemes, two delegates were elected hy each as- 
 sembly of the mad rabble, who were to meet in a central 
 convention for the purpose of confirming these resolu- 
 tions. And when the duke knew it, he forthwith ap- 
 pointed Count Ranulph with a multitude of soldiers to 
 repress the fierceness of the peasants, and disperse their 
 rustic convention. And he, not delaying to do the duke's 
 bidding, captured forthwith all the delegates, with some 
 other peasants : and having cut ofi" their hands and feet, 
 he sent them back in that helpless state to their com- 
 rades; to check them from such practices, and to be 
 warning to them not to expose themselves to something 
 still worse. And when the peasants received this lesson, 
 they forthwith abandoned their assemblies and their de- 
 bates, and returned to their proper places at their 
 ploughs."* 
 
 * William of Jumiege, book v. chap. 2. 
 
 I 
 
CHAPTER VI. 
 
 The Norman Conquest. — Extent of the Changes which it caused. 
 — Numerical Amount of the Norman and Anglo-Saxon Popula- 
 tions. — Amount of Loss of Life caused by the Conquest. — Pro- 
 bable Number of the Normans and other New-comers from Conti- 
 nental Europe. — Did the Population increase in the Century and 
 a-half preceding the signing of Magna Carta ? — The Miseries of 
 Stephen's Reign. — Period of Tranquillity under Henry IL — Pro- 
 bable Amount of Population in 1215. 
 
 The morning of the 29th day of September, 1066, saw 
 a host of the Norman chivali^ land upon the coast of the 
 South Saxons (Sussex), and the setting sun of the follow- 
 ing 14th day of October saw them the conquerors and 
 lords of England.* The last of the Saxon kings, with 
 his brethren, and most of the bravest Thanes of the 
 south and centre of the island, lay dead on the field of 
 Senlac. The two great Northern Earls, Edwin and 
 Morcar, were timid and irresolute. There was no vigorous 
 native chief to renew the war. The fortification of the 
 strong places throughout England had been neglected : 
 and as there was no post whither the shattered remains 
 of Harold's army could retreat, and where they could 
 halt in safety until reinforcements arrived, and until 
 
 * See the Battle of Hastings, cisive Battles of the World." 
 chap. 8 of " The Fifteen De- 
 
64 EISE AND PROGRESS 
 
 further measures of defence could be organized, a single 
 defeat placed the whole country in the power of the in- 
 vader. 
 
 Duke William had, indeed, some slight pretexts of 
 right to the English crown, besides the cogent title of 
 the sword. His relationship to Edward the Confessor, 
 and the alleged bequest of the sovereignty of England to 
 him by that king, gave a colourable excuse, both to his 
 own conduct in undertaking his great enterprise, and to 
 the conduct of the Saxons who submitted to him, instead 
 of prolonging a hopeless war after the battle of Hast- 
 ings. 
 
 He was crowned King of England by the Saxon arch- 
 bishop with the ancient Saxon forms, and after taking the 
 coronation oath of the Saxon kings, on Christmas Day, 
 1066. At first his rule was comparatively mild. By 
 confiscating the large estates of King Harold and Harold's 
 family, and principal adherents, WiUiam obtained the 
 means of appeasing (if he could not satisfy) the rapacity 
 of his followers, while he left for a time the greaterj| 
 number of the English landowners in the enjoyment of 
 their property. But, under any disguise, conquest is to 
 a brave people a bitter draught. The sense of fofeign 
 domination, and the insolence of William's Norman 
 barons and prelates weighed heavily on the spirits of 
 Saxon Thane and Saxon Ceorl. Then came fierce local 
 risings, with delusive partial successes over the foreigners ; 
 soon crushed by the disciplined troops and the high mili- 
 tary genius of the Conqueror. Then followed more 
 sweeping confiscations, and darker cruelties : the results 
 not so much of hasty anger, as of a stern, remorseless 
 policy. William resolved that his English subjects should 
 fear him, if they bated him ; and no feeling of mercy 
 
 d 
 
OF THE CONSTITUTION. 65 
 
 ever made him pause in any measure that seemed adapted 
 to increase and consolidate his power. 
 
 There are some yet standard works on our histor^ and 
 our laws, in which the Norman Conquest of England is 
 spoken of in terms, which would lead the reader to ima- 
 gine that it amounted to little more than the substitution of 
 one royal family for another on the throne of this country, 
 and to the garbling and changing of some of our laws 
 through the '* cunning of the Norman lawyers." But it 
 is certain that the social and political changes which that 
 Conquest introduced into England, excelled in import- 
 ance the effect of any similar event which had occurred 
 in mediaeval Christendom, and that they have not been 
 equalled by the results of any subsequent conquest which 
 one Christian nation has effected over another. In con- 
 sequence of the triumph of the Normans here, new tribu- 
 nals and tenures predominated over the old ones, new 
 divisions of race and class were introduced, whole dis- 
 tricts were devastated to gratify the vengeance or the 
 caprice of the new tyrants, the greater part of the lands 
 of the English were confiscated and divided among aliens, 
 " the very name of Englishman was turned into a re- 
 proach, the English language rejected as servile and bar- 
 barous, and all the high places in Church and State for 
 upwards of a century filled exclusively by men of foreign 
 race." The words of Thierry* on this subject are no less 
 true than eloquent. He tells his reader that " if he would 
 form a just idea of England conquered by William of 
 Normandy, he must figure to himself, not a mere change 
 of poHtical rule, nor the triumph of one candidate over 
 
 * Thierry's " Norman Con- " Middle Ages," vol. ii. p. 304. 
 quest." See, too, Hallam's 
 
66 EISE AND PROGRESS 
 
 another candidate, of the man of one party over the man 
 of another party, hut the intrusion of one people into the 
 bosom of another people, the violent placing of one 
 society over another society, which it came to destroy, 
 and the scattered fragments of which it retained only as 
 personal property, or (to use the words of an old act) as 
 * the clothing of the soil.' He must not picture to him- 
 self — on the one hand, William, a king and a despot — 
 on the other, subjects of William's, high and low, rich 
 and poor, all inhabiting England, and consequently all 
 Enghsh : he must imagine two nations, of one of which 
 William is a member and the chief — two nations which (if 
 the term must be used) were both subject to William ; 
 but as applied to which the word has quite different 
 senses, meaning in the one case suhordinate, in the other 
 subjugated. He must consider that there are two coun- 
 tries — two soils — included in the same geographical cir- 
 cumference ; that of the Normans rich and free, — that of 
 the Saxons poor and serving, vexed by rent and taillage ; 
 — the former full of spacious mansions, and walled and 
 moated castles, — the latter scattered over with huts of 
 straw and ruined hovels ; — that peopled with the happy 
 and the idle — with men of the army and of the court — 
 with knights and nobles, — this, with men of pain and 
 labour — with farmers and artizans ; — on the one, luxury 
 and insolence, — on the other, misery and envy — not the 
 envy of the poor at the sight of opulence which they 
 cannot reach, but the envy of the despoiled when in 
 presence of the despoiler." 
 
 We have now traced the four great elements of our 
 nation from their respective origins, until they were all 
 brought together in this country. The period whicl 
 elapsed between the introduction of the last of these inj 
 
OF THE CONSTITUTION. 67 
 
 point of date (that is to say, the Norman), and the 
 national rising against King John in the early part of the 
 13th century, is a period of fusion; very interesting, as 
 to many of its events, and as to the personal characters of 
 many who figured during it. In particular, the Con- 
 queror himself, the brave Saxon chieftain Hereward, the 
 Archbishops Lancfranc and Anselm, King Henry the 
 Second, Archbishop A'Beckett, and William Longbeard, 
 the Saxon burgess, who strove in vain to defend the 
 oppressed commonalty of the capital against their Norman 
 tyrants, all deseiTC the careful attention of the student of 
 EngHsh history, and of the student of human nature. 
 But to avoid prolixity, I pass over the details of this 
 period ; and proceed to examine the number and condition 
 of the various classes of the population of England in 
 the reign of John, the epoch of the true dawn of our 
 complete nationality. In making that examination, we 
 shall be led to consider several of the most important 
 events which had then happened in the interval since the 
 Conquest. 
 
 One primai7 point, before we notice the subdivisions of 
 the population, is to ascertain, as well as we ai'e able, the 
 numerical amount of the whole. And this is closely 
 connected with a topic, which ought not to be omitted 
 when we speculate on the comparative importance of each 
 of the four elements of our race ; I mean the proportion 
 which the Normans and other new-comers from Conti- 
 nental Europe bore to the Anglo-Saxons and Anglo- 
 Danes, among whom they settled as conquerors. 
 
 The population of England at the time of the Nonnan 
 Conquest is variously estimated at from a million and a- 
 half to two millions. It is necessary to bear this in mind, 
 when we read of the losses sustained by defeats in the 
 
68 RISE AND PROGRESS 
 
 field, and other calamities of this period ; because we are 
 too apt to think of the England of bygone centuries, as 
 of the England of our own times in point of population. 
 Unless we correct this anachronism in our ideas, we shall 
 not attach suflBcient importance to the destruction of two 
 or three hundred thousand human beings in that age, as 
 being a catastrophe, not only shocking in itself with 
 regard to the immediate sufierers, but calculated. seriously 
 to thin the land of its old inhabitants. 
 
 I propose to determine as far as possible, 1st, The 
 extent to which the Saxon population was diminished by 
 its afflictions under the Normans ; and, 2ndly, the pro- 
 bable number of the Normans and other Continental 
 Europeans who settled here. We shall find that these 
 calculations will supply us with our primary data for esti- 
 mating the number of the population at the epoch of the 
 Great Charter. 
 
 The Saxon army which perished with Harold, at Hast- 
 ings, is said not to have been a very large one. But the 
 slaughters of the Saxons, which followed, in consequence 
 of their subsequent insurrections against the Conqueror, 
 were numerous and severe : nor can we estimate the total 
 number that perished by the edge of the sword, during 
 William's invasion and reign, at less than a hundred thou- - 
 sand. The number of exiles also was considerable ; as 
 very many of the Saxons sought refuge in Scotland ; and 
 many fled beyond seas from the tyranny of their Norman 
 lords. But the massacres perpetrated in cold-blood by 
 William's command destroyed more than fell fighting, or 
 fled into exile : and the famines and pestilences caused by 
 his merciless devastations of wide tracts of populous and 
 fertile territory, were more destructive still. One of his 
 most atrocious acts of this kind was his laying waste the 
 
 I 
 
 i 
 
 d 
 
OF THE CONSTITUTION. 69 
 
 country between the Humber and the Tyne, partly out of 
 anger for a rising of some of the inhabitants against him, 
 and partly as a measure of precaution, because he ex- 
 pected an invasion from Denmark, and thought that the 
 Danes would most likely land in the North of England, 
 where the population was most nearly akin to them. The 
 Norman Monkish Chronicler, Ordericus Vitalis, who is 
 generally William's unscrupulous panegyrist, thus speaks 
 of his devastation of Northumbria. "He extended Ins 
 posts over a space of one hundred miles. He smote most 
 of the inhabitants with the edge of the avenging sword : 
 he destroyed the hiding-places of others : he laid waste 
 their lands : he burned their houses, with all that was 
 therein. Nowhere else did William act with such cruelty : 
 and in tliis instance he shamefully gave way to evil pas- 
 sion ; while he scorned to rule his own wrath, and cut off 
 the guilty and innocent with equal severity. For, excited 
 by anger, he bade the crops, and the herds, and the 
 household stuff, and every description of food to be 
 gathered in heaps, and to be set light to and utterly de^ 
 stroyed altogether : and so that all sustenance for man or 
 beast should be at once wasted throughout all the region 
 beyond the Humber. Whence there raged grievous want 
 far and wide throughout England; such a misery of 
 famine involved the helpless people that there perished of 
 Christian human beings, of either sex and every age, 
 upwards of a hundred thousand."* 
 
 A large part of Hampshire was similarly made a wilder- 
 ness by his orders, so as to supply him with a ** New 
 Forest," wherein he might pursue his favourite sport of 
 
 * Ordericus Vitalis, lib. iv. 
 
70 RISE AND PROGRESS 
 
 the chase. Many other acts of his might be mentioned, 
 all tending to waste the people who were his victims from 
 off the face of the land : and an infinitely larger number 
 of cruel and destructive acts were perpetrated by him and 
 his Norman followers, no special record of which has sur- 
 vived, but to which the lamentations of the old Saxon 
 Chroniclers bear emphatic, though confused testimony. 
 For instance : one of these old writers * tells us that he 
 forbears narrating, in detail, the conduct of the Normans 
 to the mass of the population, " because it was hard to 
 express in words, and because it would appear incredible 
 by reason of its excessive barbarity." Many more such 
 phrases of the Saxon monks who saw and mourned over 
 the miseries of their countrymen might be cited. And 
 there is also the explicit proof which the figures in 
 Domesday Book f supply of the decay of the populations 
 of the great cities and towns, and it was during the first 
 20 years of the Norman rule in this country. Altogether, 
 I believe that the old population of the island was dimi- 
 nished by, at least, a third, during the invasion and the 
 reign of William the Conqueror. 
 
 It remains to be considered how far this gap was filled 
 up by the Normans and their companions. 
 
 William's army at Hastings is said to have numbered 
 60,000 fighting men. Of these, a fourth fell in the 
 fight ; but we must add largely for the non-combatanl 
 who accompanied the troops. We have an account alsc 
 of another even larger host, which he summoned ovei 
 here from the Continent, in the 19th year of liis reign^ 
 
 * Hist. Eliens. 
 
 t See Hallam's " Middle Ages," chap. 8, p. 2. 
 
OF THE CONSTITUTION. 71 
 
 when he expected an invasion from Scandinavia ; and a 
 constant stream of new population from the Continent, 
 was poured into England during the times of all her first 
 Anglo-Norman monarchs. 
 
 Few of these adventurers returned to their homes. So 
 that it is probahle that, during the reigns of the Con- 
 queror and his sons, from two hundred thousand to three 
 hundred thousand Normans and other immigrants from 
 the Continent became inhabitants of this country. 
 
 The accession of population to England from the Con- 
 tinent, continued during the reigns of Stephen and Henry 
 II., especially the latter ; when the Plantagenet heritage 
 in the south of France, contributed to the influx. The 
 introduction also of a large colony of Flemings, who 
 were principally settled in the neighbourhood of Wales, is 
 not to be omitted. I do not, however, think that the 
 aggregate population of the various races in England was 
 larger at the death of Eichard I. than at the epoch of 
 the Conquest. The misery which the country suffered 
 during the reign of Stephen must fearfully have reduced 
 the number of human beings in the land. No description 
 of that misery can be more emphatic than that which the 
 old chroniclers give. They tell us that, "The nobles 
 and bishops built castles, and filled them with devilish 
 and evil men, and oppressed the people, cruelly torturing 
 them for their money. They made many thousands die 
 of hunger. They imposed taxes upon towns, and when 
 they had exhausted them of everything, set them on fire. 
 You might travel a day, and not find one man living in a 
 town, or in the country one cultivated field. The poor 
 died of hunger; and they who were once men of sub- 
 stance now begged their bread from door to door. Never 
 did the country suffer greater evils. The very Pagans 
 
72 RISE AND PROGRESS OF THE CONSTITUTION. 
 
 did not more evil than those men did. If two or three 
 men were seen riding up to a town, all its inhabitants left 
 it, taking them for plunderers. To till the ground was as 
 vain as to till the sand on the sea-shore. And this lasted, 
 growing worse and worse, throughout Stephen's reign. 
 Men said openly that Christ and his saints were asleep." 
 
 During the long and prosperous reign of Henry II., 
 the country recovered from " that shipwreck of the Com- 
 monwealth," as one of Henry's Acts of State emphatically 
 calls the condition of the land in the time of Stephen. 
 But looking generally to the character of the other reigns, 
 I do not think there is any reason to suppose that the 
 total population of the realm, in the time of John, ex- 
 ceeded the largest census which is assigned to Anglo- 
 Saxon England, namely, about two millions. 
 
CHAPTEK VII. 
 
 General View of the Feudal System. — Meaning of the terms 
 " Feudal " and " Allodial."— General Sketch of the Progress of a 
 Germanic Settlement in a Roman Province. — Causes of Feudalism. 
 — Progress of " Subinfeudation." — Aristocratic Character of Feu- 
 dalism. — Its Oppressiveness to the Commonalty. — Its brighter 
 Features. 
 
 In order to understand the classes, into which the two 
 millions of human beings, who dwelt here at the time 
 of the grant of the Great Charter, were divided, and the 
 system of government which then existed, a right compre- 
 hension of the principles of the Feudal System is indis- 
 pensable. Even the state of the enslaved peasantry of 
 England at the commencement of the 13th century, 
 cannot be thoroughly discerned, unless we view the 
 peasants in relation to their feudal lords. And, when we 
 proceed to the great events of the century, it would be 
 utterly impossible to give any intelligible account of the 
 greatest of all, the acquisition of Magna Carta, without 
 continually pausing to explain feudal terms and usages, 
 if we should not have taken a preliminary survey of 
 that strange body of social and pohtical institutions, 
 so long and so generally prevalent over Europe, 
 to which historians and jurists have given the title of 
 Feudal. 
 
 The inquiry is, indeed, far from being one of mere 
 
 E 
 
74 RISE AND PROGRESS 
 
 antiquarian interest. The forms of our Constitution 
 cannot be understood without it ; and the student of our 
 law, especially of the law of real property, must still re- 
 sort to the feudal system for the principles, and even for 
 the practice, of his art.* 
 
 I am not, however, going to discuss here, either the 
 etymology, or the date of the birth, or the exact pedigree 
 of Feuds. Suffice it, for the present occasion, to say 
 generally, that the feudal system was gradually matured 
 during the six or seven centuries of confusion, which 
 followed the irruption of the Germanic nations into the 
 Western Eoman empire : and that, at the epoch which we 
 treat as the dawn of complete English history (about 
 A.D. 1215), the feudal system was established, though 
 with different modifications, in every European country 
 that had been a Koman province and had been overrun 
 by German conquerors. The feudal system was also 
 then established in Germany itself. 
 
 There are many things, which are the more easily under- 
 stood by first obtaining an understanding of their oppo- 
 sites. This is the case with the word "Feudal." The 
 term used in contradistinction to it, by European jurists, 
 is " Allodial." Allodial land was land in which a man had 
 the full and entire property; which he held (as the saying 
 is) out and out. But feudal land (and the land itself soi 
 held was called a Feud, or Fief) was land which a man 
 held of some other man, from whom or whose ancestors^ 
 the holder (or his ancestor) had received permission to 
 possess and enjoy the fruits of the land ; but the property 
 and ultimate dominion of it remained in the giver, or, as 
 
 * See " Hayes on Convey- edition. See, also, Stephc 
 ancing," vol. i. p. 6. Fifth " Blackstone," vol. i. 
 
 I 
 
OF THE CONSTITUTION. 75 
 
 he was teclinicalJy called, the lord. The idea of the 
 sovereign owner of land allowing individuals to have the 
 possession of portions of it, and even to transmit such 
 possessory interest to their heirs, on condition of render- 
 ing certain services, usually military, may he found in the 
 institutions of almost every ancient European nation, and 
 in those of many Asiatic States at the present time. But 
 it was only in mediaeval Europe that this simple idea and 
 natural custom were elaborated into a complete system of 
 government and of social organization, to which every- 
 thing else was made subordinate, and by reference to 
 which every public office and every private right were 
 determined. 
 
 In order the more clearly to picture to ourselves the 
 chief causes of the establishment of Feudahsm, we may 
 sketch in our minds the progress, and watch the position, 
 of some one of those numerous bands of Teutonic con- 
 querors, that had won their way into a Koman province 
 at the fall of the ancient Western Empire. The sketch I 
 am about to give, is applicable to Romanized Europe 
 generally, not specially to England. My object at present 
 is to give the leading ideas of feudalism. When we come 
 to apply them to the state of things in this island, some 
 important modifications must be introduced : but still the 
 general theory must be first learned. Here, again, in 
 order to illustrate and explain feudalism, I shall first 
 illustrate its negation, allodiaHsm. 
 
 When, by degrees, the bands of Germanic warriors, 
 who had broken in upon Gaul and the other Roman pro- 
 vinces, began to lose their spirit of fierce restlessness, and 
 to wish for some permanent settlement in the territories, 
 which they had conquered from the provincials, and 
 had long fought for with each other, the ownership of 
 
 £ 2 
 
76 RISE AND PROGRESS 
 
 land acquired a value in their eyes, not merely of a 
 higher degree, but of a wholly different nature, to that 
 which it had in the eyes of their ancestors, who dwelt 
 amid their primitive forests and wildernesses ; and also to 
 that which it had had in their own, so long as they were a 
 mere troop of adventurers, roving in quest of plunder, or 
 seeking fresh enterprises for the sheer sake of the excite- 
 ment. Let us imagine an army of Germanic conquerors 
 in this mood for becoming inhabitants of the land which 
 they had conquered, and let us mark what would be the 
 natural results. Some part of the territory might probably 
 be left in the hands of the conquered population; but the 
 conquerors would share the rest. The points to attend to, 
 are to see, first, how they would share it ; and secondly, 
 what other system of parcelling out domains would soon 
 ensue. It is to be remembered that each barbaric king 
 was not the sovereign of an army of subjects in the sense 
 in which we employ the term " sovereign" and " subject;" 
 but of free and independent warriors, each of whom would 
 claim his share of the spoil as a right, as something toM 
 hold at his own free will, not as a boon revocable at a' 
 despot's caprice. The portion of land, which the German 
 soldier thus took, he took as his property; and his estate 
 in it was termed, by the Franks, Allodial. As the con- 
 querors dwelt among a numerically superior population, 
 their safety must have required them to keep up theirj 
 military organization ; and the subordination, which is 
 the essence of all military discipline, must have greatly 
 facilitated the change of tenure which, as we shall next 
 see, generally occurred.* 
 
 I have described the distribution of land that took 
 
 * See Note 8, to Robertson's " View of the State of Europe. 
 
 2 
 
OF THE CONSTITUTION. 77 
 
 place among the free warriors who composed a Germanic 
 army, and the terms on which that land was usually 
 assigned ; but all the confiscated territories was not thus 
 portioned out. Large demesnes were reserved for the 
 King, called fiscal lands. Out of the royal demesnes, the 
 sovereigns granted lands to their most favoured or distin- 
 guished personal followers under the title of fiefs or bene- 
 fices. Whether any definite services were at first affixed 
 to a beneficiary grant is uncertain ; but, in the nature of 
 things, some return would be expected from the favoured 
 follower ; an expectation which would soon ripen into a 
 demand : and military service against foreign or domestic 
 foes would, in such a state of society, be the return most 
 desirable to the grantor, and most easily and willingly 
 accorded by the receiver. But the ownersliip of the fief 
 did not pass out of the grantor. The favoured individual 
 (the Feudatory, in the technical phrase) received, not a 
 right of property, but a mere licence of possession and 
 enjoyment, an usu-fructuary right, which some authors 
 suppose to have been at first precarious and arbitrarily 
 revocable; though the feudatory's interest soon became 
 more certain and permanent, enduring for his life, unless 
 forfeited by some act of misconduct towards the giver, or, 
 as we will term him, assuming the feudal phraseology, the 
 lord. And gradually fiefs became hereditary; though, 
 throughout the development of the system, the ultimate 
 property was and is held to be in the lord, as evidenced 
 both by legal forms and symbols, and by the liabilities of 
 the fief to revert to the hand that gave it — liabilities 
 which long afforded sharp and practical symptoms of its 
 original character. 
 
 As the privileges of the feudatory thus became certain, 
 so were his duties systematized, and the consequences of 
 
78 RISE AND PROGRESS j 
 
 his breach of them defined. Mihtary service, fidelity in 
 counsel, respect for the person and honour of his lord, 
 attendance at his lord's tribunal, pecuniary contribution in 
 certain cases, formed the essence of these duties, varying, 
 however, in detail, at different times and in different coun- 
 tries. 
 
 Corresponding duties of protection from the lord to the 
 feudatory existed; and the general character of the re- 
 lation between the lord and vassal may be defined in Mr. 
 Hallam's words as a mutual contract of support and 
 fidelity. 
 
 I have been describing a case of feudaUsm in its 
 simplest form, where the feudatory, to whom the sovereign 
 lord of the land granted it, continued to hold the land 
 himself. But the process of " Sub-infeudation" was 
 common, and then a far more complex state of things 
 arose. The feudatory, who received large grants of land 
 from his sovereign, frequently had dependants of his own, 
 to whom he carved out portions of his fief, to be held of 
 himself on terms similar to those by which he held it of 
 his lord. His sub -gran tees thus became vassals under 
 him, and he was a feudal lord to them. They again 
 might sub-divide their sub-fiefs, and grant them to others. 
 And the process might be indefinitely renewed as often as 
 each subdivided piece of feudal land was capable of still 
 further sub-division. So that many hnks in the feudal 
 chain might intervene between the original grantor, or 
 Lord Paramount, and the actual occupant of the soil, who 
 was termed the Tenant Paravail. Thus, there arose a 
 seignioral hierarchy, specious in appearance, and which 
 Blackstone has eulogized, but in reality productive of 
 very great confusion. For, as it was in respect of the 
 land that the feudal relation arose, and not in respect of; 
 
 J 
 
OF THE CONSTITUTION. 79 
 
 any personal status of the individual, the same two men 
 might be and often were lords and vassals of each other 
 in respect of different lands, and an endless conflict of 
 ohhgations and rights was created. 
 
 Still, some protection was gained from the system; and, 
 as times grew more and more troubled after the dissolution 
 of the empire of Charlemagne, the oppressed and isolated 
 allodialist was glad to seek even temporary shelter, by 
 becoming one of the liegemen of some powerful baxon in 
 his neighbourhood. Frequently, also, the feudal barons 
 possessed themselves with the strong hand of the little 
 properties of their feebler neighbours. " During the 
 10th and 11th centuries," says Mr. Hallam, "it appears 
 that allodial lands in France had chiefly become feudal ; 
 that is, they had been surrendered by their proprietors, 
 and received back again upon the feudal conditions ; or, 
 more frequently, perhaps, the owner had been compelled 
 to acknowledge himself the man or vassal of a suzerain, 
 and thus to confess an original grant which had never 
 existed. Changes of the same nature, though not, per- 
 haps, so extensive or so distinctly to be traced, took 
 place in Italy and Germany. Yet it would be inaccurate 
 to assert that tlie prevalence of the feudal system has 
 been unlimited ; in a great part of France allodial tenures 
 always subsisted, and many estates in the empire were of 
 the same description." 
 
 The influence of the feudal system was not limited to 
 the lay part of the population, or to the rural districts of 
 the state. " The prelates and abbots were completely 
 * feudal nobles ; ' they swore fealty for their lands to the 
 king or other superior; received the homage of their 
 vassals, enjoyed the same immunities, exercised the same 
 
80 EISE AND PROGRESS '^■11 
 
 jurisdiction, maintained the same authority as the '^^ 
 lords among whom they dwelt."* Very frequently the 
 bishops and abbots gave fiefs to knights on condition of 
 defending the cathedral or the abbey; and of supplying 
 and leading the contingent of troops, which the Lord 
 Paramount demanded. The towns and cities also had 
 their feudal lords. Sometimes the rights of war and con- 
 quest gave to the sovereign or some powerful noble the 
 feudal seigniory over a civic community: sometimes the 
 burghers voluntarily placed their city under the feudal 
 seigniory of some celebrated chieftain, or neighbouring 
 baron, for the sake of military protection. The extent of 
 the jurisdiction of the feudal lord over a borough varied 
 according to the terms of the original compact, where it 
 had been voluntarily created ; and according to the terms 
 which the burgesses were able to purchase, where the 
 lords' right over them was the sweeping right of conquest. 
 The modes by which the boroughs obtained their charters 
 of liberties, their municipal organizations, and their ow™ 
 leagues with one another for self-protection, form one of 
 the most interesting portions of mediaeval liistory, but 
 can only be glanced at here. 
 
 The spirit of the feudal system was essentially aristo- 
 cratic. It required, indeed, the existence of a single 
 Lord Paramount, whether termed Emperor, or King, who 
 was theoretically the supreme fountain of honour and 
 justice, and the motive centre of authority both in peace 
 and war. But, in practice, the feudal aristocracy was an 
 aggressive power, that ever sought to aggrandize itself at 
 the expense of monarchy. The process of sub-infeuda- 
 
 * Hall, i. 194. 
 
 I 
 
OF THE CONSTITUTION. 81 
 
 tion was the great cause of this. Each haron, who girt 
 himself with martial vassals sworn to serve him, and who 
 made the revenues of provinces and cities his own, be- 
 came the founder of an '^ imperium in imperio." He 
 did not, indeed, often throw off the semblance of alle- 
 giance to his sovereign, but he claimed and exercised the 
 right of resisting his sovereign by open force, if the sove- 
 reign carried his feudal prerogatives too far, and of making 
 formal war on him as on a stranger, if his sovereign did 
 him wrong on any matter unconnected with their feudal 
 relationship. He claimed and freely exercised the right 
 of similarly making war on any of his fellow- subjects, 
 on the neighbouring barons or others who offended him. 
 This right of private warfare was the greatest affliction to 
 feudal Europe. Another point on which the feudal lords 
 strove to assert their independence of the crown, was the 
 right of administering justice in their own territories. 
 Each feudal lord had his baronial court, at which his 
 military tenants attended, and where the judicial combat 
 was the favourite mode of determining controversies 
 between the litigants, whether of a civil or a criminal 
 nature. 
 
 While the feudal aristocracy was thus encroaching 
 upon the natural powers of the monarchy, it was no less 
 aggressive upon the commonalty of the land. The 
 feudal barons and their retainers gradually formed an 
 aristocracy of birth as well as of tenure. It has been 
 pointed out, in describing our Norman ancestors before 
 the Conquest, how each baronial castle became a mihtary 
 school, wherein the exercises indispensable for the train- 
 ing and duties of the armed cavalry of those ages, were 
 taught to the barons' sons, and to the youths of similar 
 birth who were nurtured with them. It is to be ob- 
 
 £ 3 
 
82 RISE AND PROGRESS 
 
 m 
 
 iure,Hl 
 
 served, that every holder of a fief by military tenure, 
 however small his strip of land, was a noble, as dis- 
 tinguished from the tiller of the soil, the burgess, and 
 the artizan, and even from him who held land by aflj 
 less martial title. The superiority of the feudal war- 
 rior who was thus trained up, and who fought on horse- 
 back, protected by his coat-of-mail armour, over the 
 common people who fought on foot and without armour 
 of defence, was effective in war, and tended more and 
 more to encourage the pride of superiority of class. Men 
 who belonged to this equestrian rank (as the class of 
 feudal aristocracy in its early stage may be correctly 
 called) retained the same feelings of elevation, even 
 though they had parted with their land. Their children 
 did the same. The institutions of chivalry, and the adop- 
 tion of distinctive armorial bearings by members of parti- 
 cular families, aided powerfully in creating this mixed 
 feudal aristocracy based partly on tenure of land, and 
 partly on birth. The nobility, and the knights and 
 members of knightly families, made up a warrior caste, 
 who termed themselves gentle by birth ; and who looked 
 down on the great mass of the lay community as beings 
 of almost inferior nature. According to the favourite 
 theory of the admirers of the feudal system, men were 
 divided under it into three classes — warriors, teachers, and 
 producers. The feudal nobles and knights with their vas- 
 sals and military followers were the first class : the clergy 
 were the teacher class ; and the rest of the people were 
 the third, the productive class.* Unhappily the general 
 tendency of feudaUsm was to depress the producers. The 
 peasantry and the little allodiahsts were ground down 
 
 * Weber, « Universal History," 109. 
 
 I 
 
OF THE CONSTITUTION. 83 
 
 with servitude, and forced to till the soil as abject de- 
 pendants of the harons ; while the stores of the merchant 
 and the earnings of the artizan were too often treated as 
 the legitimate objects of knightly rapacity and violence. 
 If we investigate feudahsm in its social aspects, we shall 
 find ample cause for the inextinguishable hati-ed with 
 which, as Guizot truly states, it has ever been regarded by 
 the common people. * But this ought not to make us 
 blind to its brighter features. There was much in 
 feudalism, especially as developed in the institutions of 
 chivalry, that was pure and graceful and generous. It 
 ever acknowledged the high social position of woman, it 
 zealously protected her honour. It favoured the growth 
 of domestic attachments, and the influence of family 
 associations. It fostered literature and science. It kept 
 up a feeling of independence, and a spirit of adventurous 
 energy. Above all, it paid homage to the virtues of 
 Courage and Truth in man, and of Affection and Con- 
 stancy in woman. 
 
 * " Civilization en Europe. 
 
CHAPTER VIII. 
 
 Distinction between Feudalism as developed in England, anc 
 Feudalism as generally developed on the Continent. — How far 
 did it exist among the Saxons before the Conquest ; how far 
 among the Normans ? — Character of William the Conqueror. — 
 Feudalism which he introduced. — His Checks on the Baronial 
 Power. — Great Authority of the First Anglo-Norman Kings. 
 
 In applying to English History the description of the prin- a 
 ciples of feudalism, which was given in the last chapter, we 
 must remember several important points of distinction 
 between this island and the Continent, respecting the 
 adoption and the development of the feudal system. The 
 Roman province of Britain underwent two, if not three, 
 successive conquests by nations of Germanic race. First 
 there was the Saxon conquest, the peculiarities of which, 
 as contradistinguished from the Germanic conquests of 
 Roman provinces on the Continent, have been adverted to 
 in a previous chapter. There was afterwards the great 
 conquest of Saxon England by the Normans, who came 
 from semi- Germanised and semi-civilised France, and 
 who brought with them a system of feudalism already 
 moulded in its essential parts. Perhaps the extensive 
 immigration of victorious Danes, which occurred in the 
 interval between the Saxon and Norman conquests, ought 
 
RISE AND PROGRESS OF THE CONSTITUTION. 85 
 
 to be reckoned as a conquest itself. In no continental 
 province of the old Koman empire did similar events 
 occur. But the distinction between feudalism in Eng- 
 land, and feudalism in France, Germany, Italy, or 
 Spain, is even more due to the sagacious mind and reso- 
 lute will of one great man, of William the Conqueror 
 himself. 
 
 Before we examine this, there are two topics which 
 have been already adverted to, but which must be again 
 glanced at. These are, first, the question how far feudal- 
 ism existed among the Saxons in England before the 
 Conquest ; and secondly, how far did it exist among the 
 Normans in Normandy before the Conquest ? 
 
 On the first of these questions volumes have been 
 written, and many more will probably appear. I am not 
 going to discuss the conflicting theories that have been 
 put forward; and will only observe, that, so far as the 
 forms of feudalism are concerned, there are few, if any, of 
 which we cannot trace occasional precedents or analogues 
 among the Anglo-Saxons; but that no general elaborate 
 system of feudal form and ceremonies existed in Saxon 
 England, like that which we find here afterwards. So far 
 as regards the spirit of feudalism, there was certainly 
 little here before the Conquest. The Saxon ceorl and his 
 thane were in a far different position relatively to each 
 other, from that in which the Anglo-Norman villein stood 
 relatively to his lord. On the whole, I would affirm that 
 there were many institutions among the Anglo-Saxons of 
 a partially feudal nature, which much facilitated the sub- 
 sequent introduction of feudalism; but that the feudal 
 system, as a system, cannot be said to have existed here 
 before the overthrow of Saxon independence at Hastings. 
 
 With regard to the other topic — how far feudalism pre- 
 
86 EISE AND PROGRESS 
 
 vailed among the Normans themselves in Normandy be- 
 fore they conquered this country, Sir Francis Palgrave, 
 in his recent history of Normandy, disputes the commonly- 
 received opinion of Sismondi and others, that Duke KoUo 
 and his Northmen, when they became permanent denizens 
 of Normandy, introduced a complete system of feudahty.* 
 Palgrave's contradiction of Sismondi appears to be ver- 
 bally right, and substantially wrong. There seems to 
 be no evidence, direct or inferential, of either Duke Rollo, 
 or any other Norman duke, having suddenly composed 
 and introduced among his subjects an elaborate system of 
 feudalism, with all the laws and incidents of tenure de- 
 signed and provided for. But a perusal of Dudon de St. 
 Quentin, of William of Jumieges, and Wace, abundantly 
 proves that feudalism, in all its essential principles, either 
 had been established, or had grown up in Normandy, be- 
 fore William the Bastard became duke ; and one great 
 point, namely, that the Norman peasantry were tyrannized 
 over as villeins, in the fullest intensity of feudalism, is 
 shown by the narrative of the insurrection of those un- 
 happy men against Duke Bichard the Second, which T 
 have quoted in a preceding chapter. The clear evidence 
 also, which we possess, of how William dealt with land- 
 holders in England, is cogent proof that he was familiar 
 with the feudal tenure in his own duchy. I believe, on 
 the whole, that it is substantially correct to say, that Wil- 
 liam introduced the feudal system into this country, 
 though some portions of it were not fully developed till 
 after his time, and though Henry the Second and his Jus- 
 ticiars, when they re- organized the kingdom, after the 
 
 * P. C73. 
 
 a 
 
OF THE CONSTITUTION. 87 
 
 " shipwreck " which it underwent in Stephen's time, pro 
 bably made several innovations. 
 
 Hallam correctly describes William the Conqueror as a 
 cold and far-sighted statesman, of great talents, with 
 little passion or insolence, but utterly indifferent to human 
 suffering. These qualities were all eminently displayed 
 in the way in which he organized feudalism in this 
 country, adopting it so far as it tended to confirm his 
 conquest and consolidate his power, but modifying it from 
 the form in which it existed on the Continent, so as to 
 guard his throne from being overshadowed by a haughty 
 and turbulent nobihty, in the manner in which he him- 
 self and the other great peers of France overawed the 
 French Crown. Nor ought we, in justice to WilHam, to 
 doubt but that the instinctive appreciation of Order, which 
 is a characteristic of great men, must have strongly in- 
 fluenced him in the precautions which he took against the 
 development here of the baronial insubordination, which 
 filled the Continent with petty violences and local miseries. 
 Guizot truly says that " there are men whom the spectacle 
 of anarchy or of social stagnation strikes and distresses, 
 who are intellectually shocked thereat as with a fact which 
 should not be, and who become possessed with an uncon- 
 trollable desire to change it and to plant some rule, some 
 uniformity, regularity, and permanency, in the world be- 
 fore them." And such a man, notwithstanding his selfish- 
 ness, his pride, and his hardness of heart, was William, 
 Duke of Normandy, and, by conquest. King of England. 
 
 He established as an universal rule throughout the 
 country, that he himself was the supreme lord of all the 
 land. Such continues to be the theory of our law to the 
 present hour. " All the lands and tenements in England 
 in the hands of subjects," says Coke, " are holden medi- 
 
II 
 
 88 RISE AND PROGRESS 
 
 ately or immediately of the king ; for in the law of Eng 
 land we have not properly allodium." * 
 
 This feudal supremacy of the Crown was solemnly ac 
 knowledged at the great assembly which William con- 
 vened at SaUshury, in 1086. Every man of the least 
 note who held land in England attended there : f and 
 they all took the oath of fealty to William as their liege 
 lord ; and each of the vast multitude performed the 
 ceremony of homage to him. 
 
 Each landowner, whatever his rank or wealth, knelt 
 openly and humbly before William as he sat on his 
 throne. Each placed his clasped hands within the king's 
 hands, and pronounced the formal words, " I become 
 your man, from this day forth, of life, of limb, ^ncU 
 of earthly worship, and unto you will be true and faith- 
 ful, and bear you faith for the land I hold of you, so 
 help me God." ■ 
 
 But while William thus made feudalism universal in ' 
 England, he at the same time made an important altera- 
 tion in its system, by which he strengthened the authority 
 of the Crown, and provided against his great vassals 
 acquiring the insubordinate powers which the feudal nobi- 
 lity on the Continent enjoyed. He did not, indeed, pro- 
 hibit sub-infeudation. That was not done till two centu- 
 ries later. But William at the Salisbury convention 
 made all the sub-tenants of his Tenants in capite (i. e. 
 of those who held land immediately from himself,) take the 
 oath of fealty to him, the king, as the lord paramount of 
 all. Whereas on the Continent, the vassal who held lands, 
 took an oath of fealty to his own immediate lord ; — to 
 the sovereign, if he held directly from him, but to the 
 
 * Coke "Littleton," cap. i. sect. 1. t "Saxon Chron." 290. 
 
 d 
 
OF THE CONSTITUTION. 89 
 
 mesne lord, if (as in the great majority of cases) some 
 peer or baron, or perchance several of them, intervened 
 between the Crown and the occupant of the soil. 
 
 Besides thus " breaking in upon the feudal compact in 
 its most essential attributes, the exclusive dependence of 
 a vassal upon his immediate lord," * William took other 
 effective measures to keep down the influence of the 
 aristocracy, and exalt that of the Crown. While lavishly 
 generous in his grants of land to those who had served 
 him, he took care to reward each leading Norman noble 
 by estates scattered over different parts of the kingdom, 
 and not by compact little principalities, which might 
 serve as bases of rebelhon, and form independent States. 
 He maintained also in effective force the supreme autho- 
 rity of his own royal tribunal; and kept within as 
 narrow limits as possible the territorial jurisdiction which 
 each lord of a manor exercised in his court baron. 
 He had the wisdom also to retain the Saxon popular tri- 
 bunals of the county court and the court of the hun- 
 dred, although he diminished the dignity of the county 
 court by withdrawing ecclesiastical matters from its cogni- 
 zance. For all purposes of temporal jurisdiction it was 
 preserved. It may, indeed, be said to have acquired 
 vigour, and to have become more democratic in character 
 under the Anglo-Norman kings, than it had been before 
 the Conquest. Under the Anglo-Saxon system only the 
 Thanes, that is, the gentry, could act and vote as members 
 of the county court. Under the Anglo-Norman rule all 
 persons who held any land by a free tenure, had a right 
 to attend the county court and to take part both as 
 suitors and voters in its proceedings. While these demo- 
 
 * Hallam, vol. ii. 312. 
 
90 RISE AND PROGRESS 
 
 cratic courts of the shire and the hundred flourished, and 
 while also the power of the king's courts was gradually 
 extended (as was done by the Conqueror's wisest succes- 
 sors), it was impossible for any feudal lord in England to 
 raise his baronial court into the judicial importance, 
 which was arrogated by each count and seignior on the 
 Continent. 
 
 Such licensed anarchy, as is implied by a recognized 
 right of private warfare, was little likely to be permitted 
 under the iron rule of William. Every man, small ofl 
 great, was bound to keep the king's peace, and was 
 amenable to the criminal law for the breach of it. 
 Instances of violence and strife between rival nobles, that 
 seem to amount to private warfare, may certainly be 
 found in the Anglo-Norman times, but these, even when 
 unpunished, were looked on as breaches of the law, and 
 not as things done in the exercise of legal privileges.* 
 
 Thus, Norman feudaHsm in England secured more 
 order and regularity, and embodied a stronger central 
 governing power, than could be maintained in the feudal 
 States of Continental Christendom. There were other 
 causes for the predominant importance and authority of 
 Anglo-Norman royalty. One of these was the immense 
 wealth of the Crown, independently of any contributions 
 from its subjects. William kept nearly 1600 manors, 
 and almost all the cities and towns of any note, as his 
 own share of the spoils of the Conquest. Another cause 
 was the readiness with which the oppressed Saxon part of 
 the population ever served the king against any of their 
 
 * See Hallam, vol. ii. p. 345. seem to confirm Hallam's re- 
 The instances cited by Allen (on marks, 
 the Royal Prerogative, p. 120) 
 
 I 
 
OF THE CONSTITUTION. 91 
 
 Norman barons who rebelled. A third, and not the least 
 important cause, was the remarkable intellectual capacity 
 and energy, which characterized not only the Conqueror 
 himself, but all his successors on our throne, until John 
 became king of England.* 
 
 We shall have occasion hereafter to observe the happy 
 peculiarity of our Constitution, by which England 
 secured the blessing of a Nobility, but escaped the curse 
 of a numerous Noblesse, such as overspread the other 
 feudal States of Europe. At present our attention has 
 been limited to the distinctive points of English feudality, 
 prior to the reign of Jolm. 
 
 We may now direct our attention to the condition of 
 the population of the land, at the time when this dege- 
 nerate inheritor of the Conqueror's sceptre roused all 
 classes of freemen into a joint struggle against the abused 
 predominance of royal power. 
 
 See Palgrave's " Normandy and England," pp. 704, 707. 
 
y^ 
 
 CHAPTER IX. 
 
 State of the Mass of the English Nation at the Commencement of 
 the Thirteenth Century. — The Peasantry. — Villeinage : its Inci- 
 dents : its probable Origin and Extent ; and the Modes of be- 
 coming emancipated from it. — State of the Lower Classes in 
 Towns.— State of the Middle and Upper Classes. — The various 
 Tenures of Land. — State of the Boroughs after the Conquest. — 
 Their partial Recovery of their Liberties. 
 
 Of the two millions of human beings, who inhabited 
 England in the reign of John, a very large number, pro- 
 bably nearly half, were in a state of slavery. Those who 
 are disposed to listen to tales about " Merrie EnglandJ 
 and '' the good old times," should remember this fact. 
 At the commencement of true English history, we start 
 with the labourers in abject wretchedness. The narrative 
 of the changes in their social and political positions 
 thenceforward to modern times, is certainly a history of 
 progressive amelioration, though lamentably slow and im- 
 perfect. 
 
 The technical name for the kind of slavery which pre- 
 vailed in Anglo-Norman England, is Villeinage. Some 
 slaves were annexed to certain lands, and passed into the 
 dominion of the heirs or purchasers of those lands, when- 
 ever the ground, which was considered the more important 
 property, changed owners. These were called " Villeins 
 regardant." Others were bought and sold, and passe( 
 
RISE AND PROGRESS OF THE CONSTITUTION. 93 
 
 from master to master, without respect to any land. 
 These were termed " Villeins in gross : " the ancient law 
 applying to them the same uncouth but expressive phrase- 
 ology, by which it spoke of rights of common and other 
 inanimate legal entities. 
 
 It is probable that the number of villeins in gross was 
 never very considerable : but there are good grounds for 
 believing that, at the commencement of the thirteenth cen- 
 tury, the greater part of the labouring agricultural popula- 
 tion of England (including not only actual farm-labourers, 
 but the followers of those handicrafts which are closely 
 connected with husbandry, and were practised on the 
 land) were villeins regardant, and were looked on merely 
 as so much of the live-stock of the land to which they 
 belonged. 
 
 The best description of the ancient state of villeinage 
 is contained in Mr. Hargreaves' celebrated argument in 
 the case of the Negro Somerset, in 1772; where he suc- 
 cessfully maintained the noble position, that a slave who 
 touched British ground became free. He proved this by 
 showing that the law of England had never [that is to 
 say, never since the formation of the Common Law] re- 
 cognized any species of slavery, except the ancient one of 
 villeinage, then long extinct; and that our law had effectu- 
 ally guarded against the introduction of any new sort of 
 slavery into England. In doing this, Mr. Hargreaves 
 was led to make the most full and accurate investigation 
 of the nature of villeinage, which has ever been effected ; 
 and the law-tract to which I refer, is consequently of the 
 highest value to the student of early English history. 
 
 " Slavery," says Mr. Hargreaves, " always imports an 
 obligation of pei-petual service; an obligation which only 
 the consent of the master can dissolve. It generally 
 
94 RISE AND PROGRESS 
 
 gives to the master an arbitrary power of administering 
 every sort of correction, however inhuman, not immedi- 
 ately affecting the life or limb of the slave ; and some- 
 times even these are left exposed to the arbitrary will of 
 the master, or they are protected by fines, and other sHght 
 punishments, too inconsiderable to restrain the master's 
 inhumanity. It creates an incapacity of acquiring, ex- 
 cept for the master's benefit. It allows the master to 
 alienate the person of the slave, in the same manner as 
 other property. Lastly, it descends from parent to child, 
 with all its severe appendages." 
 
 The condition of a villein involved most of these 
 miserable incidents. The villein's service was uncertain 
 and indeterminate, being entirely dependent in nature and 
 amount on the caprice of his lord. In the emphatic 
 terms of some of our old law-writers, " The villein knew 
 not in the evening what he was to do in the morning, hut 
 he was hound to do whatever he was commanded" He 
 was liable to beating, imprisonment, and every other 
 chastisement that his lord thought fit to inflict ; except 
 that the lord was criminally punishable if he actually 
 killed or maimed his villeins, or if he violated the person 
 of his neif, as a female villein was termed. The villein 
 was incapable of acquiring property for himself ; the rule 
 being that all which the villein got became the lord's. He 
 usually passed to each successive owner of the land, as if 
 he had been a chattel attached to it. But the lord, if he 
 pleased, could sever him from the land, and separate him 
 from his family and children, by selling him as a villein 
 in gross by a separate deed. This wretched condition of 
 slavery descended to the children of villein parents ; and 
 even if the father only was a villein, the children in- 
 herited the same sad lot from him. Indeed, at one time, 
 
 d 
 
OF THE CONSTITUTION. 95 
 
 the severity of the law was such, that if a villein who he- 
 longed to one lord married a nief who belonged to an- 
 other lord, the children of such a marriage were equally 
 divided between the two slave-owners."* 
 
 Such was the wretched state in which we find the hulk 
 of the English peasantry at the time when the full history 
 of our nation commences. We cannot track the precise 
 steps by which the law of villeinage had become so esta- 
 blished ; but we have every reason to suppose, that this 
 took place in the interval between the Conquest and the 
 reign of Henry II., when we find villeinage completely 
 settled, t as appears by the book of Chief Justice Glan- 
 ville. The Norman lords had then brought the peasantry 
 of England into much the same state as that to which 
 their ancestors had formerly reduced the peasantry of Nor- 
 mandy. " By a degradation of the Saxon Ceorls, and an 
 improvement in the state of the Saxon Thralls, the classes 
 were brought gradually near together, till at last the 
 military oppression of the Normans, thrusting down all 
 degrees of tenants and servants into a common slavery, 
 or at least into strict dependence, one name was adapted 
 for both of them as a generic term — that of villeins re- 
 gardant." This last remark is taken from Sir Henry 
 Ellis's Introduction to Domesday Book ; and it is from the 
 valuable statistics which he has compiled of the number 
 of " Villani " and " Servi " therein recorded, relatively to 
 the numbers of other classes which are there mentioned, 
 and by bearing in mind the probable character of the 
 parts of the population not registered in Domesday Book, 
 that the best data are to be obtained for calculating the 
 
 * See Hargreaves' " Juris- p. 19. 
 consult Exercitations," vol. i. t Glanville, lib. v. c. 6. 
 
96 RISE AND PROGRESS 
 
 number of villeins in the reign of John : having regard, 
 also, to the probable deterioration in the lot of the lower 
 orders, which had been going on in the interim, or at 
 least until the time of Henry II. 
 
 It remains to mention the facilities which the law, as 
 established in the thirteenth century, gave for the eman- 
 cipation of villeins, and the difficulties which it placed in 
 the way of any accession to their number. 
 
 The lord might, at any time, enfranchise his villein ; 
 and there were also many acts of the lord, from which the 
 law inferred an enfranchisement, though none could be 
 proved to have actually taken place. If the lord treated 
 the villein as a freeman, by vesting the ownership of 
 lands in him, or by accepting from him the feudal so- 
 lemnity of homage, or by entering into an obligation 
 under seal with him, or by pleading with him in an ordi- 
 nary action, the law held that the lord should never after- 
 wards be permitted to contradict his own act, by treating 
 him as a villein. There were many other modes of con- 
 structive enfranchisement. One of the most important 
 was, that if a villein remained unclaimed by his lord for a 
 year and a day, in any privileged town (that is to say, in 
 any town possessed of franchises by prescription or 
 charter), he was thereby freed from his villeinage. More- 
 over, in all disputes on the subject of villeinage the pre- 
 sumption of law was in favour of liberty. The burden of 
 proof always lay upon the lord. And there were only 
 two ways in which villeinage could be proved. One was, 
 by showing that the alleged villein and his ancestors be- 
 fore him had been the property of the claimant and of 
 those through whom he deduced title for time whereof 
 the memory of man ran not to the contrary ; the other 
 was, by showing that the alleged villein had solemnly coi 
 
 y cona 
 
 J 
 
OF THE CONSTITUTION. 97 
 
 fessed his villeinage in a court of justice. The first of 
 these modes of proof was always hable to be defeated by 
 showing that the alleged villein, or some one of his an- 
 cestors, through whom villeinage was said to be traced, had 
 been bom out of wedlock. For, as the law held that an 
 illegitimate child was nullius JUius, it also held that an 
 illegitimate child could not possibly inherit the condition 
 of villeinage. 
 
 Thus, while, at the period when we first can assert the 
 common-law of the complete English nation to com- 
 mence, we find this species of slavery so widely esta- 
 bhshed in the country, we also find the law providing 
 means for its gradual, and ultimately certain, extinction. 
 We know little of the Justiciars of Henry II., in whose 
 time this branch of our law can first be traced distinctly. 
 But if, as is probable. Chief Justice Glanvile and Abbot 
 Samson of St. Edmunds,* and others, their fellows on the 
 judicial bench, while they found the power of the lords 
 over their villeins too firmly estabhshed to be called in 
 question without shaking the rights of property, devised 
 and encouraged these numerous methods, by which vil- 
 leinage could gradually be extinguished, they ought to be 
 reckoned among the truest benefactors of their country, 
 that England has ever produced. 
 
 Our means of knowledge respecting the condition of 
 the artizans and lower orders in our cities and towns at 
 this period are very scanty. 
 
 No large portion of them, if any, can have been in a 
 
 * See the account of Abbot and Present." Henry II. em- 
 Samson in the " Chronicle of ployed Abbot Samson as a 
 Jocelin de Brakelonde," partly judge, 
 translated in Carlyle's " Past 
 
RISE AND PROGRESS 
 
 state of slavery. It has been seen that in Henry II.'s 
 time the villein from the country, who resided, unclaimed 
 by his lord, for a year and a day in a town with franchises, 
 became thereby free ; and it is difficult to suppose that 
 any one born within the town would be in a worse con- 
 dition. The absolute slaves, the theows and thralls of 
 the Saxon times, cease to be mentioned soon after the 
 Norman Conquest. The villeins in gross (who alone 
 could be in an analogous position to that of those Saxon 
 thralls who lived in the towns) were few in number 
 throughout Anglo-Norman England; nor am I aware 
 that any positive mention of them in the towns can be 
 traced.* Generally speaking, we may consider that 
 villeinage in John's time existed only among the rural 
 population ; but it is to be remembered that the relative 
 proportion of the number of the dwellers in the country 
 to the number of the dwellers in the towns was much 
 greater then than it has become in modern times. - 
 
 * In the Inquisition made in 
 the Borough of Ipswich in the 
 second year of John's reign, 
 mention is made of various pri- 
 vileges enjoyed by the Bishop 
 and Prior of Norwich, and their 
 villeiTis, by the Bishop and Prior 
 of Ely and all their villeins, by 
 the Lord Roger de Bigod and 
 his villeins, and by other noble- 
 men and knights and their 
 villeins. But these seem to 
 have been cases of non-residents 
 in the borough. There is a re- 
 markable stipulation respecting 
 the villeins of some of the pri- 
 vileged persons whom this In- 
 
 quisition mentions. It is de- 
 clared that if the villeins are 
 merchants, they are to pay their 
 custom towards the king for 
 their merchandise. This seems 
 to prove that in John's time 
 some villeins were permitted by 
 their lords to traffic on their 
 own account ; as was often the 
 case with slaves in ancient 
 Rome. The gains of the mer- 
 chant-villein would be strictly 
 " Peculiumy See the Ipswich 
 Inquisition in Merewether anc 
 Stephens' " History of Be 
 roughs," vol. i. p. 396. 
 
OF THE CONSTITUTION. 99 
 
 The free labouring population, therefore, in John's 
 time, included the lower classes in the towns, and those 
 portions of the peasantry who had either escaped being 
 reduced to villeinage, or had been emancipated from it. 
 This class was gradually increasing in number ; but the 
 whole amount of free labourers in England in the early 
 part of the thirteenth century cannot have been con- 
 siderable. This is proved by the absence of any com- 
 plaint in the legislation, and of any in the law chronicles of 
 those times about vagrant beggars and paupers — subjects 
 which we find so repeatedly noticed in the statutes and 
 histories of the next and subsequent centuries.* The 
 villeins on each estate were maintained by the lord of it, 
 like his other cattle ; and such freemen as became desti- 
 tute found rehef from the Church ; the ample endowments 
 of which continued, after the Conquest, as before it, to 
 provide means for the maintenance of the aflBicted and 
 distressed, aided by the alms of the laity, which the 
 clergy received and administered : the clergy being in 
 those days the overseers and guardians of the poor. 
 
 As has been already stated. County Courts and the 
 Hundred Courts were preserved by the Anglo-Norman 
 kings ; and the subdivision of the freemen of each 
 hundred into decennas, and the old Saxon regulations 
 
 * " It is highly probable that a West India sugar plantation 
 from the time of the Conquest in more recent times has main- 
 till the reign of Edward III., tained his slaves. It is not till 
 England was little troubled with after Edward III.'s wars in 
 either vagrant beggars or pau- France, and after the industry 
 pers. The "patrimony of the and wealth of towns came into 
 poor " was found in the posses- existence, that we first notice 
 eions of the church, and each traces of any considerable class 
 lord maintained his serfs or vil- of free labourers." — Pashley^ 
 leins, much as each proprietor of p. 161. 
 
 F 2 < 
 
100 RISE AND PROGRESS 
 
 respecting frankpledge were also in full vigour in tlie 
 reign of John. The poorest free peasant was so far 
 vested with political functions, as to have the capacity 
 and to be under the obligation of being enrolled in a 
 decenna ; and he co-operated with his brother decennaries 
 in preserving the peace and being bail for each other. 
 He also attended as a member of the court of the Hun- 
 dred (the court-leet as it was now termed), and participated 
 in the numerous active duties of local self-government 
 that were there performed. The presidents of the Hun- 
 dred Courts had now, with very few exceptions, ceased to 
 be elective. Frequently the right of presiding in the 
 Hundred Court had become annexed to the lordship of 
 one of the principal manors of the district. In other 
 cases, the lordship of the Hundred (or the lordship of 
 the leet, as it is more often called) had been granted by 
 the Crown to some favourite baron, the office being 
 lucrative by reason of the fines and forfeitures that 
 accrued to its holder. But every freeman was eligible to 
 serve the minor offices of local self-government, so far 
 as the tithing and the hundred were concerned; and, as 
 a " free and lawful man," he also acted on the inquests 
 or juries, on which (as we shall see hereafter) the king's 
 judges frequently summoned the hundredors. 
 
 When we direct our attention to the state of the upper 
 and middle classes at this period (exclusively of the 
 inhabitants of the towns), we shall find the various inci- 
 dents of the several Anglo-Norman feudal tenures of, 
 land so frequently requiring allusions and explanations, 
 that it is best to direct our attention to them in the first 
 instance. 
 
 It is to be remembered that the king was and if 
 supreme feudal lord of all the land in the kinp:dom 
 
 M 
 
OF THE c(^NSTi:i;uTiC4N;. , ; ,; : 1,01 
 
 • There were three principal tenures by which the sub- 
 jects of John held their land, either immediately of him, 
 or immediately of some other subject, and so mediately 
 of the king. These were, 1st, tenure in chivalry, some- 
 times called military tenure, or tenure by knight's ser- 
 vice ; 2nd, tenure in free socage, the original of our 
 modem freehold tenure; 3rd, tenure in villeinage, the 
 original of our modern copyhold tenure.* 
 
 Tenure in chivalry was the most honourable ; it was that 
 by which the barons and other chief landowners held 
 their lands of the Crown, and by which they frequently 
 made sub-grants of land to their own military followers. 
 But the burdens of this tenure were numerous and 
 severe. They require particular attention, in order that 
 we may comprehend the oppressions at the hand of the 
 sovereign to which the barons, who gained the Great 
 Charter, were exposed, and which caused them to become 
 the chiefs of a great national movement on behalf of the 
 liberty of England. Not that we would deny or dis- 
 parage the renown justly due to them for the magna- 
 nimous and far-sighted spirit, in which they obtained 
 protection for the rights of others besides their own ; but 
 we must observe that a community in suffering led to 
 their community in action with the other freemen of the 
 realm, when those primary constitutional guarantees 
 against arbitrai-y oppression were obtained, which are 
 frequently designated in English history by the title of 
 the Baronial reforms. 
 
 * Tenure by chivalry in- Reeve's "History of the Eng- 
 
 cluded tenure by grand and lish Law," vol. i. p. 38. Ste- 
 
 petit serjeanty. For more full phens' " Blackstone," vol. i. 
 
 information on these points, see p. 174. 
 
1^2 -5^IS;3;AND PROGRESS 
 
 The king, as feudal lord of his barons, and other 
 military tenants, had a right to exact from them mihtary 
 service, or a pecuniary payment in lieu thereof: and 
 it seems to have become optional with the king to 
 claim the money, whether the vassal wished to serve in 
 person or not ; and even to exact both money and per- 
 sonal service. This war-tax was called "escuage," or 
 " scutage ; " and the constant wars and troubles of the 
 times always furnished a ready pretext for demanding it. 
 Other exactions of money-payments, under the title of 
 aids, were continually practised. Besides these, the heir, 
 on succeeding to his estate, was required to pay a sum of 
 money to the lord, under the title of a " relief" If the 
 heir was a minor, the lord took possession of the land as 
 guardian, and used or abused it as he pleased, till the 
 heir attained his majority. And even then the heir was 
 obliged to pay a fine on suing out his livery, that is, on 
 obtaining the delivery of the land from his guardian to 
 him. The lord also had the right of nominating and 
 tendering a wife to his male ward, or a husband to his 
 female ward. And if the ward declined to marry the 
 person so selected, the ward forfeited to the lord such a 
 sum of money as the alliance was considered worth. The 
 lord was entitled to a fine upon alienation ; that is, if the 
 tenant disposed of the land or any portion of it to any third 
 party. If the tenant died without heirs, the land reverted 
 to the lord. This was termed Escheat ; and, as the right 
 of devising real property did not exist in England after the 
 Conquest till Henry the Vlllih's time, Escheats must 
 have been numerous. The lord also claimed to take 
 back the land whenever the tenant committed any of a 
 numerous list of crimes or acts of feudal misconduct. 
 Such criminality or misconduct on the tenant's part wae 
 
 d, 
 
OF THE CONSTITUTION. 103 
 
 held to work a forfeiture ; a doctrine which was made 
 peculiarly severe in England where, *' hy attainder of 
 treason or felony, the tenant not only forfeited his land, 
 but his blood was held to be corrupted or stained; 
 whereby every inheritable quality was entirely blotted out 
 and abolished, so that no land could thereafter be trans- 
 mitted from him or through him in a course of descent." * 
 The king's military tenants in capite were also subject to 
 the peculiar burden of primer seisin, which did not 
 apply to those who held of inferior or mesne lords. 
 Primer seisin was a kind of extra relief; and under it 
 the king on the death of any of his military tenants in 
 chief took of the heir (if of full age) a whole year's 
 profits of the lands. 
 
 The landholders of inferior rank, who held their lands 
 not by mihtary, but by socage tenure, and whom we 
 might correctly speak of by a modern term as the 
 yeomanry of England, were not liable to so many ex- 
 actions from their feudal lord as were the military tenants. 
 The tenant in free socage was subject to the payment of 
 aids for knighting the lord's son, and providing a portion 
 for the marrying his eldest daughter. Relief was due on 
 this tenure ; but its amount was fixed and limited to one 
 year's rent of the land. Escheat and forfeiture were 
 incident to socage tenure, and fines were due upon ahena- 
 tion. The lord had no right of wardship or marriage 
 over his socage tenants. 
 
 The holders of land by villein tenure were originally 
 villeins on the domains of feudal lords of manors, whom 
 the indulgence of the lords permitted to remain in the 
 occupation of their little strips of ground so long as they 
 
 Stephens' " Blackstone," vol. i. p. 181. 
 
104 RISE AND PROGRESS 
 
 duly rendered the customary services. Wlien villeins 
 were emancipated, they often continued to reside on the 
 lord's estate and on the same holdings, and they still ren- 
 dered the old services to the lord, which were no longer 
 variable at his will. Sometimes, also, men who were 
 freehorn took lands which had been previously held by 
 villeins, and became bound to continue the services 
 which the lord had usually received from the servile occu- 
 pants of such lands. By degrees the customary expecta- 
 tion which such holders of manorial lands naturally felt 
 that they and their heirs would not be removed so long as 
 they paid the customary rent and performed their custo- 
 mary duties, ripened into the legal title of our modem 
 copyholders ; but it is not probable that any considerable 
 number of freemen occupied land by villein tenure so 
 early as the reign of John. ^ 
 
 William the Conqueror had kept among his own share 
 of the spoil nearly all the considerable cities and towns 
 in England. Some few had been granted by him to 
 favourite Norman lords. By no class was the effect of 
 the Conquest felt more severely than by that of the 
 citizens and burgesses. Their Norman lord required 
 of them an annual rent, and various dues and customs. 
 He commonly farmed these out to the highest bidder ; 
 who under the title of Bailiff, became the chief local ruler 
 of the oppressed citizens, instead of their own old electeda 
 port-reeve or borough- reeve. By degrees they bought 
 back some of their old liberties. Their Norman lords 
 found that they could not extort so much by force, as 
 
 * For further explanation of p. 175 ; Reeve's " Hist. Law,'* 
 tenure in villeinage, see Ste- vol. i. p. 269 ; and Scriven oi 
 phens' " Blackstone," vol. i. "Copyholds." 
 
OF THE CONSTITUTION. 105 
 
 the burgesses would voluntarily pay, for the sake of 
 getting rid of the obnoxious petty tyranny of the bailiff, 
 and recovering their own local self-government. This 
 led the king and other lords of towns to farm them to the 
 burgesses themselves, who paid a fixed rent, and were 
 thenceforth said to hold their town in fee-farm, or by bur- 
 gage tenure. They also obtained charters entitling them 
 to elect their own chief officer, who generally took the 
 Norman title of Mayor. Other privileges were simi- 
 larly purchased ; for, a fine of money was almost inva- 
 riably the consideration on which a charter was granted ; 
 and the cupidity of the lords made them seek pretexts 
 for declaring that a borough had forfeited its charter, in 
 which case another fine for a re-grant was exacted. 
 
 Besides these liabilities to the king, or other lord of 
 the city or land, the burgesses were liable to be tallaged ; 
 that is, to have special contributions of money levied on 
 them for the lord's behalf, in the same way that aids 
 were exacted by him of his tenants of land. 
 
 The political rights, (in judicial and other matters) of 
 the middle and upper classes, the powers of the sove- 
 reign, and the general legal system of the age, will be 
 most conveniently considered, when we discuss the terms 
 of the Great Charter and its supplements. We may at 
 present best proceed to a view of the circumstances under 
 which Magna Carta was gained from John ; how it was 
 renewed under Henry III. ; and how its powers were ex- 
 tended and confirmed by the final charter of Edward I. 
 
 F 3 
 
CHAPTEE X. 
 
 Evil Character of King John. — Its Importance to our History. — 
 Fortunate Loss of Normandy. — John's Quarrels with his Clergy 
 and with the Pope. — The Interdict. — The Excommunication. — 
 John's abject Submission to the Pope. — Return of Archbishop 
 Langton to England. — His patriotic Character. — He checks the 
 King. — King's Oath to redress Wrongs. — His repeated Acts of 
 Tyranny. — Council of the Barons. — Archbishop Langton produces 
 the Charter of Henry I. — Nature of this Charter, and its Value. — 
 Demands of the Barons on the King. — Vain Intervention of the 
 Pope. — Firmness of Archbishop Langton. — Strength of the Na- 
 tional Party. — Runnymede. — Articuli Cartse. — The Grant of the 
 Great Charter. 
 
 The Father of History sums up the evil qualities of a 
 Despot in these words : " He subverts the laws and usages 
 of the country, he violates women, and he puts people to 
 death without trial." * 
 
 The character and conduct of King John exemplify 
 every word of this emphatic definition. The feudal law 
 of England (as it has been described in the preceding 
 
 * tiofiaia T€ KLvei Trarpia, /cat aggravata3 fuerant ; nam quos- 
 
 jSiarai yvvoLKas, Kreivei re aicpi- dam absque judicio parium suo- 
 
 Tovs. — Herodotus, Thalia, Ixxx. rum exhajredebat, nonnuUos 
 
 The old chronicler, the Wa- morte durissima condemnabat. 
 
 verley annalist, says of John, Uxores filiasque eorum violabat ; 
 
 that the old laws and free cus- et ita pro lege ei erat tyrannica 
 
 toms of the realm " Maximo voluntas." — P. 181. 
 suo tempore corruptee nimis et 
 
KISE AND PROGRESS OF THE CONSTITUTION. 107 
 
 chapters) gave him oppressively strong powers over his 
 barons and other subjects ; but the savage tyranny of 
 John was exercised over every class, high and low, often 
 without the semblance, and in open defiance of the law. 
 Several of his predecessors had solemnly promulgated 
 charters, which tended to restrain the abuses of feudal 
 rule. These charters usually contained also general 
 promises to respect ancient rights, to cease to follow evil 
 practices, and to maintain the old hberties of the people. 
 The kings who gave them, often violated them ; but they 
 were recognitions (though vague and imperfect ones) of 
 rights that ought to limit the royal will : and none even 
 of the most arbitrary of the six first Anglo-Norman 
 kings professed to govern without regard to legal rules 
 and restrictions.* 
 
 The seventh set at nought every restraint of law, either 
 human or divine ; and what was afterwards said of Henry 
 VIII. might, with more truth, have been affirmed of John, 
 that he spared neither woman in his lust, nor man in his 
 revenge. But John was utterly destitute of such high 
 abilities and resolute will as signalized the haughty Tudor. 
 John mingled all the qualities that inspire contempt with 
 those that provoke hatred. His portrait has been thus 
 truly as well as powerfully drawn by Lingard : — " He 
 stands before us polluted with meanness, cruelty, perjury, 
 and murder; uniting with an ambition, which rushed 
 through every crime to the attainment of its object, a 
 pusillanimity wliich often, at the sole appearance of oppo- 
 sition, sank into despondency. Arrogajit in prosperity, 
 abject in adversity, he neither conciUated affection in the 
 
 * See Guizot's " History of ters of William the Conqueror, 
 Representative Government," Henry I., Stephen, and Henry 
 part 2, lecture vi., on the Char- II. 
 
108 RISE AND PROGRESS 
 
 one nor esteem in the other. His dissimulation was so 
 well known, that it seldom deceived ; his suspicion served 
 only to multiply his enemies, and the knowledge of his 
 vindictive temper contributed to keep open the breach be- 
 twixt him and those who had incurred his displeasure." 
 
 A few only of the specific instances of the tyranny of 
 this bad, but not bold man, may be cited here ; besides 
 referring to his murder of his nephew Arthur, which he 
 was believed by his contemporaries to have perpetrated 
 with his own hand * Wilham de Braosse, one of his 
 nobles, had ofiended him and escaped to Ireland. John, 
 in 1211, got into his power De Braosse's wife, Matilda, 
 their son William, and their son's wife. The king then 
 gratified his fiendish malignity by sending these three 
 prisoners to Windsor Castle, where he had them shut up 
 in a dungeon and starved to death, f In the next year, 
 one of his clergy, Geoffry of Norwich, whom the old 
 chronicler terms a loyal, learned, and accomplished man, 
 came under the capricious displeasure of the king. John 
 had him seized and carried off* to Nottingham Castle, 
 where he put him to death with refined and subtle 
 tortures. J 
 
 Under his tyranny there was no more safeguard for 
 property than for person. His exactions were often made 
 with open and undisguised violence, § though they were 
 
 * See for the various narra- tern torqueri : " according to an- 
 
 tives as to the manner in which other chronicler, John had him 
 
 John committed this murder, wrapped in a cope of lead and 
 
 the " Pictorial History of Eng- left to die of starvation, 
 land," vol. i. p. 519. § For instance, in 1203, he 
 
 t Matthew Paris, 230. Roger forced from his subjects, clerical 
 
 de Wendover, " Chron.," vol. iii. as well as lay, a seventh part of 
 
 p. 235. their moveables. See Roger de 
 
 X Matthew Paris, 232. "Fecit Wendover, vol. iii. p. 173, who 
 
 poen^ excogitate usque ad mor- names the '^ hujus rapinsc exe- 
 
OF THE CONSTITUTION. 109 
 
 also often practised in the form of judicial fines, whicli 
 John levied upon men and women on the most trivial and 
 insulting pretexts.* The grossness and the frequency of 
 his outrages on the honour of private families almost sur- 
 pass belief; and Eustace de Vesci was but one of many, 
 who, when they rose against John as the public enemy of 
 the country, were animated also by the fiercest indigna- 
 tion for the wrongs that had been offered them as hus- 
 bands or as fathers, by the brutal licentiousness of the 
 king, t 
 
 I have dwelt on the subject of the character of John, 
 because that character had a most important effect on our 
 constitutional history. Had he been less vicious and 
 cruel, it is probable that the barons would not have 
 leagued with the inferior freemen of England against 
 their Norman king. Had he been less imbecile, it is 
 probable that the national league would have been crushed 
 by him. Even the foreign events of John's reign (I mean 
 those which more immediately affected the continental 
 provinces of the Plantagenet princes) were of infinite 
 moment in determining the future destinies of England. 
 
 cutores." In 1205 he extorted lam's Middle Ages, \o\.n. 1^.317. 
 
 from them a sum which the Citing from " Madox's History 
 
 chronicler terms " infinite." — of the Exchequer." 
 
 lb. 182. t See Walter de Hemingburg, 
 
 * " The Bishop of Winchester 249. According to tradition 
 
 paid a tun of good wine for not John had caused the daughter 
 
 reminding the king (John) to of another great baronial chief 
 
 give a girdle to the Countess of to be poisoned, in revenge for 
 
 Albemarle ; and Robert de Vaux her having resisted his dis- 
 
 five best palfreys that the same honourable solicitations. See 
 
 king might hold his peace about the legends respecting Marian 
 
 Henry Pinel's wife. Another Fitzwalter,in Thomson's "Magna 
 
 paid four marks for leave to eat Carta," p. 505. 
 (prolicentia, comedendi)." — Hal- 
 
110 RISE AND PROGRESS 
 
 41 
 
 The shames of the sovereign proved the sources of 
 country's glory and freedom. 
 
 Foremost amongst these we may place the fortunate 
 loss of Noi-mandy. Philip Augustus, the ahle sovereign 
 of France, took advantage of John's murder of his nephew 
 Arthur, to cite him as Duke of Normandy, and a feudal 
 vassal of the crown of France, to take his trial before the 
 high peers of France on the charge of having murdered 
 an arriere vassal and homager of the French king. John 
 scoffed at the summons, but the French Court passed 
 sentence on him of forfeiture of all the lands which he held 
 in France by homage, and Philip Augustus carried that 
 sentence into speedy execution. All the provinces north 
 of the Loire which John's ancestors had bequeathed to 
 him, were wrested from him, but he succeeded in retaining 
 Guienne, Poitou, and a small portion of Touraine. 
 
 Both the amount of what he lost, and the amount of 
 what he retained, were important to the constitutional 
 history of England. After the annexation of the duchy 
 of Normandy to the actual dominions of the French king, 
 our barons' only homes were in England. Henceforth 
 we find them proud of the name of Englishman, the ap- 
 plication of which, to a man of Norman race, had once 
 been the deadliest of insults. The Saxon now no more 
 appears in civil war against the Norman, the Norman 
 no longer scorns the language of the Saxon, or refuses to 
 share with him in the common love for a common country. 
 No part of the community think themselves foreign to 
 another part. They feel that they are all one people, and 
 they have learned to unite their efforts for the common 
 purpose of protecting the rights and promoting the wel- 
 fare of all. 
 
 And, while the loss of Normandy thus happily tended 
 
OF THE CONSTITUTION. Ill 
 
 to promote the union of all the inhabitants of this land, 
 John's partial success in preserving Guienne and Poitou 
 from the conquering arms of Phihp Augustus, aided ma- 
 terially in completing the same result. From these pro- 
 vinces he drew large hands of mercenary soldiers, whose 
 support emboldened him to defy the remonstrances and 
 discontent of his English barons ; and trusting to whom, 
 he took no pains to form or preserve any party for him- 
 self among the nobihty of his kingdom. The rapacity 
 and the violence which these hireling cut-throats and 
 brigands from beyond the seas were licensed by their 
 sovereign to practise throughout England, came home to 
 the middle and lower orders of the English, and made 
 them eagerly co-operate with the barons against the 
 Crown. In the rural districts also the oppressive cruelties 
 of the forest- laws, which John carried to a worse pitch 
 than had been the case even under the most arbitrary 
 of his predecessors, tended still further to exasperate 
 the people against the Government; and filled the forests 
 with bands of adventurers, who were ready to join in any 
 enterprise against the tyranny which had driven them be- 
 yond the pale of the law. 
 
 John had made himself the enemy of the powerful 
 body of the EngUsh clergy, as fully as he had drawn on 
 himself the liostiHty of his lay subjects. He levied pecu- 
 niary contributions on his ecclesiastics as arbitrarily and 
 as rapaciously as he pillaged the rest of the nation. A dis- 
 pute which broke out in 1205, respecting the election to 
 the see of Canterbury,* involved John in dissension with 
 
 * The conflicting claims and pope in this election, are very 
 
 rights of the Augustine monks fairly stated by Lingard, vol. iii. 
 
 at Canterbury, of the suffragan p. 19, et seq. 
 bishops, of the king, and of the 
 
112 RISE AND PROGRESS 
 
 Innocent III., who refused to consecrate the nominee of 
 John. The Pope caused Cardinal Langton to he elected 
 by some of the Canterbury monks, who had been deal 
 puted to Kome, and, after a vain attempt to obtain the 
 English king's consent, he consecrated Langton at Viterbo 
 in Italy, as Primate of England. 
 
 Stephen de Langton, to whom we are more deeply in- 
 debted than to any other individual for the obtaining of 
 the Great Charter, was an Englishman by birth, but had 
 been chiefly educated in the University of Paris, where he 
 acquired the highest reputation for learning and piety. 
 Pope Innocent III. had invited him to Kome, and con- 
 ferred on him the dignity of cardinal ; and he now sought 
 to place him at the head of the Church of England. 
 John fiercely refused to permit Langton to set foot in 
 England ; and wreaked his vengeance on the Canterbury 
 monks, by seizing their lands and possessions, and driv- 
 ing them all out of England. The Pope in return placed 
 England under an interdict, on which John confiscated 
 all the ecclesiastical property in the kingdom. When the 
 interdict had lasted a year, the Pope pronounced sentence 
 of excommunication against John: and finally, in 1213, 
 Pope Innocent assumed and exercised the right of de- 
 posing John, and solemnly exhorted all Christian princes 
 and barons to unite in dethroning him as an impious anfl 
 unworthy king. * 
 
 These spiritual thunders of papal Rome were (like 
 the Amphictyonic decrees in ancient Greece, and the edicts 
 of the modem German diets), of little efiect when those 
 
 * See " Lingard," vol. iii. nerally on the subject, Hallam's 
 
 Notes at pp. 16 and 35 for the chapter on "The Ecclesiastical 
 
 grounds of these temporal pre- Power during the Middle Ages." 
 tensions of the popes. See ge- 
 
 ■ 
 
OF THE CONSTITUTION. 113 
 
 against whom they were levelled, maintained vigorous 
 union at home, and were threatened by the arms of no 
 formidable foe from abroad ; but they were truly terrible 
 when there was disunion in the State which was to be the 
 scene of their operation ; and when a powerful and am- 
 bitious prince, like Philip of Macedon in the classic age, 
 or Phihp Augustus in John's time, was ready to under- 
 take the execution of the sentence for the secret purposes 
 of his own aggrandizement. King John found himself 
 menaced with invasion from France; and though he 
 assembled an army of 60,000 men ("sufficient," says 
 the old historian, '*to have defied all the powers of 
 Europe had they been animated with love for their 
 sovereign"), John knew that all his subjects hated him 
 with a hate which he had richly earned, and there was in 
 the vast host around him scarcely a man on whose fidehty 
 he could depend. The ruffian in his disposition now sud- 
 denly was changed into the craven. He had an interview 
 at Dover with the Pope's confidential Nuntio, Pandulph, 
 and signed a deed (May 13, 1213) whereby he consented 
 to admit Langton as Archbishop of Canterbury, to re- 
 store the refugees both of his clergy and laity to their 
 possessions and offices, to liberate those whom he had 
 imprisoned, and to make full restitution for the injuries 
 which he had wantonly inflicted. On condition of the 
 king's doing this, the sentences of interdict and excom- 
 munication were to be revoked. 
 
 Had John's submission ended here, there would have 
 been nothing in the terms to censure, whatever we might 
 think of the motives which caused him to make it. But, 
 rushing from arrogant defiance of the Koman pontiff into 
 abject servility, on Ascension Eve, Wednesday, May 15, 
 1213, the king, by a formal deed, gave up his kingdom 
 
114 RISE AND PROGRESS 
 
 to the Pope, to take it back as the Pope's vassal, and 
 under the obHgation of paying a yearly tribute of 1000 
 marks. By this mean betrayal of his duty towards the 
 State, of which he was the kingly head, John won for 
 himself the partizanship of the Pope, but he increased 
 the alienation and disgust of his subjects, ecclesiastics as 
 well as laymen. Hallam * has truly observed that we are 
 deeply indebted to the English clergy for their zeal in 
 behalf of liberty during the reign of John's successor; 
 and the same remark may be made with reference to the 
 exertions of our churchmen in the nation's cause in the 
 time of John himself. Cardinal Langton is the most 
 illustrious example of patriotism and wisdom that the 
 history of the Charter suppHes. On this prelate's return 
 to England, and installation in his archbishopric, in 1214, 
 he showed immediately that, though he was one of the 
 Pope's cardinals, he was no mere emissary of an Itahan 
 priest, but a true-hearted Englishman, to whom his 
 country's honour and his country's freedom were most 
 dear, and one whom no threats of either temporal or 
 ecclesiastical superiors could deter from the path of duty. 
 Before he would grant absolution to the king at their 
 first meeting, he compelled him to swear that he would 
 abohsh all illegal customs ; that he would restore the good 
 laws of his predecessors, especially King Edward's; that 
 he would give just and true judgments to all men, and 
 that he would restore to all their rights.f A council was 
 
 * " Middle Ages," vol. ii. satisfied with the royal adminis- 
 
 p. 327. tration, fell into these English 
 
 + " It became the favourite cry sentiments. But what these 
 
 to demand the laws of Edward laws were, or more properly, per- 
 
 the Confessor ; and the Normans haps, these customs subsisting 
 
 themselves, as they grew dis- in the Confessor's age, was not 
 
OF THE CONSTITUTION. 115 
 
 also convened at St. Albans, at wliich Fitz-Peter, the 
 chief justiciary, presided on behalf of the king. Pro- 
 clamations were then issued in the king's name, ordering 
 the observance of the laws granted by Henry I., and 
 denouncing the punishment of death against all sheriffs, 
 officers of the royal forests, and other ministers of the 
 crown, who should exceed the strict limits of their au- 
 thority. The mention here of the laws of Henry I., 
 instead of those of Edward the Confessor, is somewhat 
 remarkable. Possibly it was made out of deference to 
 the prejudices of some of the Anglo-Norman barons, who 
 may have preferred the name of a Norman lawgiver to 
 that of a Saxon one, and who may not yet have learnt 
 the necessity of merging all differences of race between 
 themselves and their fellow inhabitants of this island. 
 The laws referred to were possibly those which we now 
 read in the collection entitled the laws of Henry I.,* 
 which, though not compiled or issued by that monarch, is 
 an unquestionably ancient collection, and is believed to 
 have been formed by some judge or lawyer during the 
 reign of the sovereign whose name it bears. It consists 
 principally of extracts from the laws of various Saxon 
 kings. One of its provisions deserves special notice ; it 
 is that which ordains that " every man is to be tried by 
 his peers."t 
 
 very distinctly understood. So which tradition told them had 
 
 far, however, was clear, that the not always existed," — Hallam's 
 
 rigorous feudal servitude, the Middle Affes, vol. ii. p. 321. 
 weighty tribute upon the poorer * See this collection in the 
 
 freemen had never prevailed first volume of "The Ancient 
 
 before the Conquest. In claim- Laws and Institutes of Eng- 
 
 ing the laws of Edward the land," p. 504, et seq. 
 Confessor, our ancestors meant t Ibid. 534. 
 but the redress of grievances, 
 
116 RISE AND PROGRESS 
 
 While this council was being held, John had sailed on 
 an expedition against France. Incensed at the refusal of 
 his barons to follow him, he returned to England, and 
 began to avenge himself upon them according to his 
 custom by leading the armed force of foreign mercenaries, 
 which he had brought back with him, through the parts 
 of his own kingdom where his barons' estates lay, as if it 
 had been an enemy's country, and pillaging and burning 
 without mercy. He had marched up from the south coast 
 as far as Northampton, when the archbishop met him and 
 rebuked him to his face. " This barbarous violence," said 
 the prelate, "is a direct breach of your oath. Your 
 barons must be judged and tried by their peers, and not 
 subjected to military execution." John fiercely answered, 
 " Kule you the Church, and leave me to govern the State." 
 He proceeded on his vindictive career as far as Notting-J 
 ham, where Langton again braved his wrath and com- 
 manded him to desist. The archbishop accompanied his 
 rebuke by threatening to excommunicate every follower 
 of John who should dare to draw his sword again in 
 such impious warfare. John now gave way, and for the 
 sake of appearance summoned those whom he accused to 
 appear before him, or his justices, in his Court. 
 
 Langton and the barons knew John's character too well 
 to believe that this submission to legal restraint on the 
 king's part would be permanent; and on the 25th of 
 August, 1213, at a great council of the prelates and the 
 barons, which was held at St. Paul's, in London, the 
 archbishop took measures for forming an efiective con- 
 federacy for curbing the power of the oppressor. 
 
 The ostensible purpose of the council was to settle the 
 amount of compensation which the king was to pay tofl 
 those who had been exiled during the late troubles, and 
 
OF THE CONSTITUTION. 117 
 
 "whose possessions the king had despoiled ; but Langton 
 addressed them on the subject which they all had most at 
 heart — the obtaining of some security against the tyranny 
 of John for the future. The archbishop told them that 
 he had discovered a charter of King Henry I. which 
 they might force the king to re-establish, and thereby 
 regain their liberties. They answered with joyous ac- 
 clamations, and the archbishop administered an oath to 
 them by which each bound himself to strive for their 
 liberties, if need were, even to the death. 
 
 This charter of Henry I. had been granted by that 
 sovereign when he first seized the crown to the exclusion 
 of his elder brother Kobert, and when he was desirous to 
 win the favour of the Saxon as well as of the Norman 
 inhabitants of England. It contains specific provisions 
 against the abuse of the right of wardship, against the 
 abuse of the right of claiming aids, and against other of 
 the chief feudal oppressions to which the miUtary tenants 
 of the crown were liable at the hands of the king. It 
 gives also a general promise to observe the good laws of 
 Edward the Confessor.* Copies of this charter were 
 deposited in the principal monasteries; and Blackstonef 
 has doubted the possibility of its having become so gene- 
 rally unknown in John's time that its discovery by the 
 archbishop should have been such a matter of triumph 
 and novelty as the old chroniclers relate. If, however, 
 we call to mind the devastations that took place through- 
 out England during Stephen's reign, and the neghgence 
 often shown by ecclesiastical bodies with regard to the 
 
 * See this charter in the first Charters," p. 8 of the Introduc- 
 
 volume of the " Statutes of the tion. 
 
 Realm," and in the note to t Ibid, p. 8, et seq. 
 Blackstone's " History of the 
 
118 RISE AND PROGRESS 
 
 preservation of even their own muniments, we may 
 readily understand that copies of the charter of Henry I. 
 may have become scarce, and almost inaccessible, in the 
 lapse of a century. If we recollect also how few laymen 
 had even enough education to read, we shall not be sur- 
 prised at the general ignorance which prevailed in 1213 
 as to the contents of the ancient charter which Arch- 
 bishop Langton spoke of. 
 
 By admitting the truth of the old narrative respecting 
 this charter of Henry I., we by no means detract from the 
 original value of the Great Charter of John. The older 
 instrument bears no comparison with the latter, with 
 regard either to explicitness, to fulness, or to compre- 
 hensiveness, in providing for the rights of all classes of 
 freemen. But still the charter of Henry I. applied speci- 
 fically to many of the feudal grievances under which 
 John's barons smarted ; it furnished them with a legal 
 authority to appeal to against the king ; and it gave to the 
 archbishop, and the other chiefs of the great movement 
 in behalf of the national liberties, an invaluable moral 
 basis for their operation. There is in the minds of most 
 civilized men a natural, a laudable reluctance to advance 
 their interests, or even to defend themselves, by the intro- 
 duction of mere political novelties: but the same men 
 will act cheerfully and zealously when they have the sanc- 
 tion of ancient ordinance on their side. The Kestorer has 
 a lighter task and a lighter conscience than the Innovator : 
 at least it is so at the commencement of his task ; though, 
 in order to restore with effect, it frequently becomes ne- 
 cessary to add, to alter, and to reorganize. Langton, and 
 other leading spirits of the baronial party, may have early 
 foreseen the necessity of doing much more than revive 
 the decayed legal safeguards of a former century ; but, for 
 
OF THE CONSTITUTION. 119 
 
 the mass of their party, the demand for the restoration of 
 the laws and hberties of Henry I. was an effective rallying 
 cry, till it was changed, at Kunnymede for a fuller and a 
 nobler strain. 
 
 During the greater part of the next year John was 
 engaged in unsuccessful warfare on the Continent; and 
 in the autumn he returned to England, soured with dis- 
 appointment, and bent on wreaking on his domestic 
 enemies the vindictiveness and the malice which had been 
 baffled and humiliated abroad. He had brought back 
 some bands of soldiers of fortune from France ; and with 
 these " ahen knights, cross-bow-men, and hired followers, 
 who came with anns and horses to molest England" (as 
 the Great Charter afterwards expressively described them), 
 John recommenced his old course of spoliation and out- 
 rage. His chief justiciary, Fitz-Peter, one of the very 
 few ministers who exercised any control over John, had 
 died during the last year. John, who had stood in some 
 awe of this man, exclaimed with joy when he heard of 
 his death, " It is well, Fitz-Peter will now shake hands 
 again with our late Archbishop Hubert in hell, for as- 
 suredly he will find him there. By God's teeth I am 
 now for the first time true lord and king of England." 
 1 Le showed, on his return to England in the autumn of 
 1214, what he meant by true lordship and kingship. 
 Plunging, without restraint or shame, into the Bac- 
 chanalia of despotism, the king continued to pillage, to 
 banish, and to slay, and to perpetrate, with every aggra- 
 vation of ribald insolence, those violations of domestic 
 honour, by which far tamer spirits than those of our 
 Anglo-Norman barons have oft been goaded into insur- 
 rection. 
 
 On the 20th of November, St. Edmund's Day, 1214, 
 
120 RISE AND PROGRESS 
 
 the earls and barons of England met again at St. 
 Edmund's Bury ; Archbishop Langton, who was the 
 guiding spirit of the assembly, came among them. The 
 Primate of England stood at the high altar ; and thither 
 advanced each peer according to seniority, and, laying his 
 hand on the altar, swore solemnly that if the king would 
 not consent to acknowledge the rights which they claimed, 
 they would withdraw their fealty and make war upon him 
 till, by a charter under his own seal, he should confirm 
 their just demands.. "And at length," says the old 
 chronicler,^ "it was agreed that, after the nativity of 
 our Lord, they should come to the king in a body, to 
 desire a confirmation of the liberties before-mentioned; 
 and that in the meantime they were to provide themselves 
 with horses and arms in the like manner, that if the king 
 should perchance break through that which he had spe- 
 cially sworn (which they well believed), and recoil by 
 reason of his duplicity, they would instantly, by cap- 
 turing his castles, compel him to give them satisfaction." 
 
 Accordingly in the beginning of the following year the 
 barons appeared before the king, fully prepared both to 
 state and to enforce the national will. The same old 
 historian thus narrates the scene : — 
 " The Demand for the Liberties 
 " of England made by the Barons." 
 
 " In the year of grace one thousand two hundred and 
 fifteen, which is the seventeenth year of King John, the 
 same king held his court, for the space of one day, at Wor- 
 cester, where he had been at the feast of the Birth of our 
 Lord. Thence he came with all haste to London, and was 
 received at New Temple Inn. Here, then, came to the 
 
 * Matthew Paris, p. 176. 
 
OF THE CONSTITUTION. 121 
 
 king tbe aforesaid great barons, in a very resolute guise, 
 with their military garb and weapons, insisting on the 
 liberties and laws of King Edward, with others for them- 
 selves, the kingdom, and the Church of England, to be 
 granted and confirmed according to the Charter of King 
 Henry the First. They asserted, moreover, that at the 
 time of the king's absolution at Winchester, those ancient 
 laws and liberties were promised, and that he was bound 
 to observe them by especial oath. But the king finding 
 the barons so resolute in their demands, was much con- 
 cerned at their impetuosity. When he saw that they 
 were furnished for battle, he replied, that it was a great 
 and difficult thing which they asked, from which he re- 
 quired a respite until after Easter, that he might have 
 space for consideration ; and if it were in the power of 
 himself or the dignity of his crown, they should receive 
 satisfaction. But at length, after many proposals, the 
 king unwillingly consented that the Archbishop of Can- 
 terbury, the Bishop of Ely, and Wilham Marshal should 
 be made sureties, and that by reason of their intercession, 
 on the day fixed he would satisfy all." * 
 
 During the interval which he had thus gained, John 
 sought to strengthen himself by detaching the clergy 
 from the barons. He granted (Jan. 15, 1215) a charter 
 to the Church of England, by which he secured to her 
 the free election of the bishops, and ordained that when 
 a bishop had been thus elected and presented to the king, 
 the king's consent should not be refused unless lawful 
 reasons could be assigned for the refusal. He took 
 another measure, which shows how much the influ- 
 
 * Matthew Paris, p. 176. Charta," p. 24, and notes. 
 Thomson's "Essay on Magna 
 
 O 
 
122 RISE AND PROGRESS '^^Hl 
 
 ence of tlie yeomanry and the other freemen of England^ 
 "below the rank of the harons had increased, and how _, 
 conscious John was that they also were ready to actH' 
 against him. He ordered the sheriffs to summon the 
 freemen of each shire and tender to them a new oath of 
 allegiance. He confessed at the same time how little he 
 had a right to rely on the loyalty of his subjects, hy seek- 
 ing the special protection which the church gave in those 
 ages to the person and the property of Crusaders. John 
 took the cross on the 2nd February, 1215, and vowed to 
 lead an army into Palestine for the recovery of the Holy™ 
 Sepulchre from the Infidels. % 
 
 >t^^ None of these manoeuvres were successful. The na- 
 tional union against him was firm, and Ms pretence of 
 preparing for the Crusades only revived the contemptuous 
 hatred of those who remembered his lion-hearted brother 
 Eichard, and John's treasonable practices against that 
 true Crusader. Nor did he gain any advantage in this 
 time of need from his ignominious subjection to the 
 Pope. John applied to Innocent for help against his 
 barons, and the pontiff openly sided with his vassal king. 
 A peremptory and vehement letter came from Kome to 
 Archbishop Langton, wherein the Pope directed his 
 cardinal to support John in upholding the rights of the 
 crown, and to reconcile the barons to their sovereign. In 
 another letter the Pope censured the violence of the 
 barons, and ordered them to act towards their sovereign 
 with humility. But neither the English primate nor 
 the English barons succumbed to this intervention of 
 Borne. Langton continued to advise the barons ; they con- 
 tinued their preparations ; and when Easter approached, 
 the confederates fixed their muster-place at Stamford, in 
 Lincolnshire. The time within which the king was to 
 
 as lo K 
 
 ■ 
 
OF THE CONSTITUTION. 123 
 
 answer their demands was now on the point of expiring ; 
 and in Easter week the barons assembled at Stamford 
 with a force of 2000 armed knights to receive or to en- 
 force the king's ratification of the hberties whicl) they 
 claimed. John was at Oxford. He did not summon the 
 barons thither, nor did he venture to go to them, but 
 he sent William Marshal, Earl of Pembroke, the Earl 
 Warenne, and Archbishop Langton to Brackley, in 
 Northamptonshire (whither the barons had marched), to 
 demand a more specific account of those laws and liber- 
 ties which were so earnestly desired. The confederates 
 delivered a schedule containing the ai-ticles of their claims. 
 The deputies returned with this to Oxford, and, when 
 Langton was explaining to the king what was demanded 
 of him, John broke out into one of his fits of impotent 
 phrenzy — ** And why do they not demand my crown 
 also ? " exclaimed he, with his customary blasphemous 
 oath — " By God's teeth I will not grant them liberties 
 that will make me a slave." He sent back his deputies 
 to the barons' camp with orders to offer an appeal to the 
 Pope, as feudal lord of England. The barons refused it. 
 Pandulph, the papal legate, was in England at the king's 
 court, and he now called on Archbishop Langton to ex- 
 communicate the barons as mutineers against the Holy 
 See. Langton calmly replied that he was better ac- 
 quainted than Pandulph was with the pontiff's real pur- 
 poses, and added, that unless John instantly dismissed 
 his foreign mercenaries, he, the archbishop, would excom- 
 municate them. John now threw himself into the Tower 
 of London, and endeavoured to secure the possession of 
 the capital. The barons acted as if open war had com- 
 menced. They proclaimed themselves the army of God 
 and Holy Church, and elected Robert Fitzwalter, Earl of 
 
 G 8 
 
i 
 
 124 RISE AND PROGRESS 
 
 Dunmore, as their general. Their numbers increased 
 rapidly; and the middle classes of England, both the 
 yeomanry in the country and the burghers in the towns,!] 
 now actively aided them, and rendered their success 
 certain. It was no longer a rising of one order of the^ 
 community, but a movement of all the freemen of th( 
 land. John seems to have felt the formidable import*! 
 ance which it thus assumed, and he endeavoured to' 
 detach the barons from the national cause, by offering 
 special terms in favour of themselves and their immediate 
 retainers.* But the baronial chiefs felt their true posi- 
 tion as champions of a nation's rights, and disregarded 
 the insidious offers of the king. The army of God and 
 the Holy Church moved first against Northampton 
 Castle, which was garrisoned by some of John's foreign 
 mercenaries. The garrison refused to capitulate; and the 
 national army, unprovided with engines for a regular 
 siege, moved upon Bedford, where they were gladly 
 received. Thence they marched to the Metropolis, where 
 they arrived on the 24th of May — the gates were open to 
 them — the citizens eagerly welcomed them as national 
 deliverers, and the Mayor of London took his position in 
 the army as one of the principal leaders. John had fled 
 from the Tower, and was now at Odiham, in Hampshire, 
 whither only seven knights had followed him. He now 
 in despair sent the Earl of Pembroke to London to 
 inform the confederates that he was ready to comply with 
 their petitions, and to desire that a place and time might 
 
 * See his letters patent, dated stone in the note at p. xxxi. of 
 
 the 10th of May, which are ex- the introduction to Blackstone's 
 
 tant in the rolls in the Tower, tract on the Charter, 
 and which are cited by Black- 
 
 i 
 
OF THE CONSTITUTION. 125 
 
 be named for a conference. The barons answered, " Let 
 the day be the 9th of June, — the place, Runnymede." 
 
 This Holy Land of English liberty is about halfway 
 from Odiham to London, and it is a grassy plain, of 
 about 160 acres, on the south bank of the Thames, be- 
 tween Staines and Windsor. Various derivations are 
 given for the name : that of the antiquary Leland affirms 
 it to have been so called from the Saxon word Runey or 
 council, and to mean the council meadow, having been 
 used, in the old Saxon times, as a place of assembly. No 
 column or memorial marks the spot where the primary 
 triumph of the English constitution was achieved ; but 
 the noble lines of Akenside should be present to the mind 
 of all who tread the plain of Runnymede. 
 
 INSCRIPTION roa A COLUMN AT RUNNYMEDE. 
 
 " Thou, who the verdant plain dost traverse here 
 While Thames among his willows from thy view 
 Retires ; stranger, stay thee, and the scene 
 Around contemplate well. This is the place 
 Where England's ancient barons, clad in arms 
 And stern with conquest, from their tyrant king 
 (Then render'd tame) did challenge and secure 
 The Charter of thy freedom. Pass not on 
 Till thou hast bless'd their memory, and paid 
 Those thanks which God appointed the reward 
 Of public virtue. And if chance thy house 
 Salute thee with a father's honoured name. 
 Go, call thy Sons ; instruct them what a debt 
 They owe their ancestors ; and make them swear 
 To pay it, by transmitting down entire 
 Those sacred rights to which themselves were bom," 
 
 On the 8th of June, the day before that named for the 
 conference at Runnymede, the king came to Merton, in 
 Surrey. But the conference was adjourned to the 15th, 
 
126 . RISE AND PROGRESS 
 
 the Monday following, and the king in the meantime 
 proceeded to Windsor ; thence, on the last appointed day, 
 heing Trinity Monday, a.d. 1215, the king, with his 
 scanty train of personal followers, came to Kunnymede, 
 where the barons and their host were now encamped. 
 
 On the part of John stood only eight bishops, fifteen 
 noblemen and knights, and Pandulph, the papal legate : 
 even of these many were only seemingly his adherents, 
 or, as the old chronicler expressively phrases it, they stood 
 ** Quasi ex parte Regis."* The opposite side of the 
 plain, that nearest to where the town of Egham now 
 stands, was white with the tents of an army, which the 
 old chronicler terms a host above all price.f " It is needr 
 less," says another old writer, " to enumerate the barons 
 who composed the army of God and the Holy Church ; 
 they were the whole nobihty of England." Negotiations 
 were formally opened and continued for several days, 
 during which it is probable that the chief managers of 
 the conference on either side may have retired to the 
 little island a short distance higher up the river, which 
 still bears the name of Magna Carta Island, and which 
 tradition points to as the scene of these memorable 
 deliberations. 
 
 The conference was not concluded till Friday, the 19th 
 of June. Articles or heads of agreement were first drawn 
 up, which were afterwards regularly embodied in the form 
 of a Charter. These " Articuli Magnse Cart® " are still 
 preserved, and deserve attentive comparison with the 
 Charter for which they served as the rough dmft, but 
 which does not always strictly accord with them. When 
 
 * W. de Heminburg. confecere. Matthew Paris, p.! 
 
 t Exercitum ineestimabilem -Jt^ * * 
 
OF THE CONSTITUTION. 127 
 
 the Charter itself was prepared, the royal seal was solemnly 
 aflfixed to it before the Congress at Euunymede, and it 
 bears date as of the first day of that conference, the 15th 
 June, in the year of our Lord 1215, being 149 years 
 after the Norman Conquest, and seven centuries and a 
 half after the reputed era of the landing of the first of 
 our Saxon ancestors in this island. 
 
CHAPTER XI. 
 
 Magna Carta. — General Distribution of its Clauses. — Text of the 
 Great Charter, and Comments. 
 
 Before settiog out the text of the Great Charter, it 
 may be useful to premise some general summary of its 
 contents. A veiy little attention is necessary to show 
 how unjust it is to speak of it as a mere piece of class- 
 legislation, obtained by the barons for their own special 
 interests. Guizot* well asks, "How is it possible that 
 at least a third of the provisions of the Charter should 
 have related to promises and guarantees made on behalf 
 of the people, if the aristocracy had only aimed at ob- 
 taining that which would benefit themselves? We have 
 only to read the Great Charter in order to be convinced 
 that the rights of all three orders of the nation are 
 equally respected and promoted." 
 
 By the three orders which Guizot here speaks of are 
 meant the clergy, the nobility, and the general common- 
 alty of the freemen of the realm. It will be seen, also. 
 
 History of Representative Government," pt. ii. lect. 7. 
 
RISE AND PROGRESS OF THE CONSTITUTION. 129 
 
 that the serfs are not wholly neglected in it. And inas- 
 much as the serfs were always capable of being raised 
 into freemen, and the process of their emancipation was 
 continually, though gradually, going forward, the Great 
 Charter, by providing for the rights of all freemen, pro- 
 vided in effect for the rights of all the inhabitants of the 
 land. 
 
 Part of the Great Charter consists of clauses relating 
 to the clergy. These are not numerous, as the charter 
 granted by John in the preceding February had provided 
 for ecclesiastical interests. The Great Charter confirms 
 these provisions. 
 
 With respect to the rights of the laity, the Great Char- 
 ter determines with careful precision the amount of feudal 
 obligation to which the barons and other immediate 
 tenants of the crown should be thenceforth subject. 
 Involved in those provisions is the all-important article 
 about convening the great council of the realm. It will 
 be seen also that the Charter binds the barons to allow 
 their sub-vassals the same mitigations of the feudal 
 burdens which the barons acquired for themselves from 
 the king. In behalf of members of the rest of the free 
 community, special clauses will be found by which the 
 ancient customs and liberties of cities and boroughs are 
 secured, and by which protection for the purposes of 
 commerce is given to foreign merchants. Thus far the 
 Charter legislates specially for the interests of separate 
 classes, though several of the clauses of this kind, 
 besides redressing an immediate and partial wrong, con- 
 tain also the germ of a permanent and national right. 
 But the Great Charter is also rich with clauses which 
 have for their object the interests of the nation as a 
 
 G 3 
 
130 RISE AND PROGRESS 
 
 whole. It provides for the pure, the speedy, the fixed, 
 and uniform administration of justice. It prohihits 
 arbitrary imprisonment and arbitrary punishment of any 
 kind. It places the person and the property of every free- 
 man under the solemn and sacred protection of free and 
 equal law. 
 
 Lastly, it contains clauses of a temporary character 
 for the redress of the immediate evils of the time, as by 
 directing the removal of the king's foreign mercenaries 
 from England, and it provides guarantees for King 
 John adhering to its obligations, by appointing a 
 baronial council who were to be the guardians of the 
 Charter, and who were to be armed with the most ample 
 powers for redressing any infraction of it which the king 
 or his ministers might attempt. 
 
 The translation of the Great Charter, which will now 
 be laid before the reader, is accompanied by explanatory 
 notes ; but full comment on its most important passages 
 is reserved until we shall have seen the form which the 
 Charter assumed, as adopted and ratified by Henry III. 
 and subsequent monarchs, and until we shall have also 
 examined the confirmation which it received from Edward 
 the First. 
 
 iTOagna (2rarta. 
 
 John, by the grace of God King of England, Lord of 
 Ireland, Duke of Normandy, Aquitaine, and Count 
 of Anjou, to his Archbishops, Bishops, Abbots, 
 Earls, Barons, Justiciaries, Foresters, Sherifis, Go- 
 vernors, Officers, and to all Bailiffs, and his lieges, 
 greeting. Know ye, that we, in the presence of 
 God, and for the salvation of our soul, and the 
 
 i 
 
OF THE CONSTITUTION. 131 
 
 souls of all our ancestors and heirs, and unto the 
 honour of God and the advancement of Holy 
 Church, and amendment of our Realm, hy advice 
 of our venerable Fathers, Stephen, Archbishop of 
 Canterbury, Primate of all England and Cardinal 
 of the Holy Roman Church, Henry, Archbishop of 
 Dublin, William of London, Peter of Winchester, 
 JocELiN of Bath and Glastonbury, Hugh of Lin- 
 coln, Walter of Worcester, William of Coventry, 
 Benedict of Rochester, Bishops ; of Master Pan- 
 dulph, Sub-Deacon and Familiar of our Lord the 
 Pope, Brother Aymeric, Master of the Knights- 
 Templars in England; and of the Noble Persons, 
 William Marescall, Earl of Pembroke, William, 
 Earl of Salisbury, William, Earl of Warren, Wil- 
 liam, Earl of Arundel, Alan de Galloway Con- 
 stable of Scotland, Warin Fitz Gerald, Peter 
 FiTz Herbert, and Hubert de Burgh Seneschal 
 of Poitou, Hugh de Neville, Matthew Fitz 
 Herbert, Thomas Basset, Alan Basset, Philip 
 or Albiney, Robert de Roppell, John Mares- 
 chall, John Fitz Hugh, and others our liegemen, 
 have, in the first place, granted to God, and by this 
 our present Charter confirmed, for us and our heirs 
 for ever : 
 1. That the Church of England shall be free, and 
 have her whole rights, and her hberties inviolable ; and 
 we will have them so observed, that it may appear thence 
 that the freedom of elections, w^hich is reckoned chief 
 and indispensable to the Enghsh Church, and which we 
 granted and confirmed by our Charter, and obtained the 
 confirmation of the same from our Lord the Pope Inno- 
 cent III., before the discord between us and our barons. 
 
132 RISE AND PROGRESS 
 
 was granted of mere free will ; which Charter we shall 
 ohserve, and we do will it to be faithfully observed by our 
 heirs for ever. 2. We also have granted to all the free- 
 men of our kingdom, for us and for our heirs for ever, 
 all the underwritten liberties, to be had and holden by 
 them and their heirs, of us and our heirs for ever: If 
 any of our earls, or barons, or others, who hold of us in 
 chief by military service, shall die, and at the time of 
 his death his heir shall be of full age, and owes a rehef,* 
 he shall have his inheritance by the ancient relief; that 
 is to say, the heir or heirs of an earl, for a whole earl- 
 dom, by a hundred pounds ; the heir or heirs of a baron, 
 for a whole barony, by a hundred pounds; the heir or 
 heirs of a knight, for a whole knight's fee, by a hundred 
 shillings at most; and whoever oweth less shall give less, 
 according to the ancient custom of fees. 3. But if the 
 heir of any such shall be under age, and shall be in 
 ward when he comes of age, he shall have his inheritance 
 without relief and without fine. 4. The keeper of the 
 land of such an heir being under age, shall not take of 
 the land of the heir but reasonable issues, reasonable 
 customs, and reasonable services, and that without de- 
 struction and waste of his men and his goods ; and if we 
 commit the custody of any such lands to the sheriff, or 
 any other who is answerable to us for the issues of the 
 land, and he shall make destruction and waste of the 
 lands which he hath in custody, we will take of him 
 amends, and the land shall be committed to two lawful 
 and discreet men of that fee, who shall answer for the 
 issues to us, or to him to whom we shall assign them : 
 
 * Explanations of the feudal clauses will be found at pp. 77- 
 terms in this and the six next 81, supra. 
 
OF THE CONSTITUTION. 133 
 
 and if we sell or give to any one the custody of any sncli 
 lands, and he therein make destruction or waste, he shall 
 lose the same custody, which shall be committed to two 
 lawful and discreet men of that fee, who shall in like 
 manner answer to us as aforesaid. 5. But the keeper, 
 so long as he shall have the custody of the land, shall 
 keep up the houses, parks, warrens, ponds, mills, and 
 other things pertaining to the land, out of the issues of 
 the same land ; and shall deliver to the heir, when he 
 comes of full age, his whole land, stocked with ploughs 
 and carriages, according as the time of wainage shall 
 require, and the issues of the land can reasonably bear. 
 6. Heirs shall be married without disparagement, and so 
 that before matrimony shall be contracted, those who are 
 near in blood to the heir shall have notice. 7. A widow, 
 after the death of her husband, shall forthwith and with- 
 out difficulty have her marriage and inheritance; nor 
 shall she give anything for her dower, or her marriage, or 
 her inheritance, which her husband and she held at the 
 day of his death ; and she may remain in the mansion 
 house of her husband forty days after his death, within 
 which term her dower shall be assigned. 8. No widow 
 shall be distrained to marry herself; so long as she has a 
 mind to live without a husband ; but yet she shall give 
 security that ste will not marry without our assent, if 
 she hold of us ; or without the consent of the lord of 
 whom she holds, if she hold of another.* 9. Neither 
 
 * 13y the old law, grounded tract herself, and so convey part 
 
 on the feudal exactions, a woman of the feu J to the lord's enemy, 
 
 could not be endowed without a This licence the lords took care 
 
 fine paid to the lord, neither to be well paid for, and, as it 
 
 could she marry again without seems, would sometimes force 
 
 his licence, lest she should con- the dowager to a second mar- 
 
134 RISE AND PROGRESS 
 
 we nor our bailiffs shall seize any land or rent for any 
 debt so long as the chattels of the debtor are sufficient 
 to pay the debt ; nor shall the sureties of the debtor be 
 distrained so long as the principal debtor is sufficient for 
 the payment of the debt; and if the principal debtor 
 shall fail in the payment of the debt, not having where- 
 withal to pay it, then the sureties shall answer the debt ; 
 and if they will they shall have the lands and rents of 
 the debtor, until they shall be satisfied for the debt which 
 they paid for him, unless the principal debtor can show 
 himself acquitted thereof against the said sureties. 10. 
 If any one have borrowed anything of the Jews,* more 
 or less, and die before the debt be satisfied, there shall 
 be no interest paid for that debt, so long as the heir is 
 under age, of whomsoever he may hold ; and if the debt 
 falls into our hands, we will only take the chattel men- 
 tioned in the deed. 11. And if any one shall die in- 
 debted to the Jews, his wife shall have her dower and 
 pay nothing of that debt; and if the deceased left 
 children under age, they shall have necessaries provided 
 for them, according to the tenement of the deceased; 
 and out of the residue the debt shall be paid, saving 
 however the service due to the lords ; and in like manner 
 shall it be done touching debts due to others than the 
 Jews. 12. No scutage or aid shall he ynposed in our 
 kingdom, unless by the general council of our kingdom; 
 except for ransoming our person, making our eldest 
 son a knight, and once for marrying our eldest 
 daughter ; and for these there shall he paid a reason- 
 
 riage in order to gain the fine. — Jews in England at this and 
 
 2 Bl. Com. 135. other early periods will be found 
 
 * Some curious information in Tovey's " Anglia Judaica." 
 
 respecting the position of the Oxford, 1738. 
 
OF THE CONSTITUTION. 185 
 
 able aid. In like maiifier it shall he concerning the 
 aids of the City of London. 13. And the City of Lon- 
 don shall have all its ancient liherties and free customs, 
 as well by land as by water : furthermore we will and 
 grant, that all other cities and boroughs, and toivns 
 and ports, shall have all their liberties and free cus- 
 toms. 14. And for holding the general council of the 
 kingdom concerning the assessment of aids, except in 
 the three cases aforesaid, and for the assessing of scu- 
 tages, we shall cause to be summoned the archbishops, 
 bishops, abbots, earls, and greater barons of the realm^ 
 singly by our letters. And furthermore we shall cause 
 to be summoned generally by our sheriffs and bailiffs, 
 all others ivho hold of us in chief, for a certain day, 
 that is to say, forty days before their meeting at least, 
 and to a certain place ; and in all letters of such sum- 
 mons we will declare the cause of such summons. And 
 summo?is being thus made, the business of the day shall 
 proceed an the day appointed, according to the advice 
 of such as shall he present, although all that were 
 summoned come not.^ 15. We "will not for the future 
 grant to any one, that he may take aid of his own free 
 tenants ; unless to ransom his body, and to make his 
 eldest son a knight, and once to marry his eldest 
 daughter; and for this there shall be only paid a rea- 
 sonable aid. IG. No man shall be distrained to perform 
 more service for a knight's fee, or other free tenement, 
 than is due from thence. 17. Common pleas shall not 
 follow our court, but shall be holden in some place 
 
 * Full comments on these gin of our Parliament is dis- 
 important clauses will be found cussed, 
 in chapter 13, where the ori- 
 
136 
 
 RISE AND PROGRESS 
 
 certain.* 18. Assizes of novel disseisin, and of mort 
 d'ancestor, and of darrein presentment, shall not be taken 
 
 * Bj the ancient Saxon con- 
 stitution there was only one 
 superior court of justice in the 
 kingdom, and that court had 
 cognizance both of civil and 
 spiritual causes, viz, the witten- 
 agemote or general council, which 
 assembled annually, or oftener, 
 wherever the king kept hisChrist- 
 mas, Easter, or Whitsuntide, as 
 well to do private justice as to 
 consult upon public business. 
 At the Conquest the ecclesias- 
 tical jurisdiction was diverted 
 into another channel, and the 
 Conqueror established a constant 
 courc in his own hall, thence 
 called by Bracton and other an- 
 cient authors aula regia or aula 
 regis. This court was composed 
 of the king's great officers of 
 state resident in his palace, and 
 usually attendant on his person ; 
 such as the lord high constable 
 and lord mareschal, who chiefly 
 presided in matters of honour 
 and of arms, determining ac- 
 cording to the law military and 
 the law of nations. Besides 
 these, there were the lord high 
 steward and lord great cham- 
 berlain, the steward of the 
 household, the lord chancellor, 
 whose peculiar business it was 
 to keep the king's seal, and ex- 
 amine all such writs, grants, and 
 letters as were to pass under 
 
 that authority, and the lord 
 high treasurer, who was the 
 principal adviser in all matters 
 relating to the revenue. These 
 high officers were assisted by 
 certain persons learned in the 
 laws, who were called the king's 
 justiciars or justices, and by the 
 greater barons of Parliament, 
 all of whom had a seat in the 
 aula regia, and formed a kind of 
 court of appeal, or rather of 
 advice, in matters of great mo- 
 ment and difficulty ; all these 
 in their several departments 
 transacted all secular business 
 both criminal and civil, and 
 likewise the matters of the re- 
 venue ; and over all presided 
 one special magistrate, called 
 the chief justiciar, or capitalis 
 justiciarius totius Anglice, who 
 was also the principal minister 
 of state, the second man in the 
 kingdom, and, by virtue of his 
 office, guardian of the realm in 
 the king's absence ; and this 
 officer it was who principally 
 determined all the vast variety 
 of causes that arose in this ex- 
 tensive jurisdiction ; and from 
 the plenitude of his power grew 
 at length both obnoxious to the 
 people and dangerous to the go- 
 vernment which employed him. 
 This great universal court 
 being bound to follow the king's 
 
OF THE CONSTITUTION. 
 
 137 
 
 but in their proper counties, and after this manner : We, 
 or, if we should be out of the realm, our chief justiciary, 
 shall send two justiciaries through every county four 
 times a year, who, with four knights, chosen out of every 
 shire by the people, shall hold the said assizes, in the 
 county, on the day, and at the place appointed. 19. 
 And if any matters cannot be determined on the day 
 appointed for holding the assizes in each county, so 
 many of the knights and freeholders as have been at the 
 assizes aforesaid, shall stay to decide them, as is neces- 
 sary, according as there is more or less business. * • 20. 
 
 household in all his progresses 
 and expeditions, the trial of 
 common causes therein was 
 found very burthensome to the 
 subject ; wherefore King John, 
 who dreaded also the power of 
 the justiciar, very readily con- 
 sented to that article which now 
 forms the above chapter of 
 Magna Charta.— 3 Bl. Com. 38. 
 See also Lord Campbell's " Lives 
 of the Chief Justices of Eng- 
 land/' vol. i. c. i. 
 
 * The legal term, "assize," 
 means strictly the jury of twelve 
 knights, whom Henry II. ap- 
 pointed as " assessors " to the 
 judges on certain trials of ques- 
 tions of fact respecting real 
 property. Thence the word 
 came to mean the trial itself; 
 and the term " assizes " has 
 long been popularly used for 
 the trials, both civil and cri- 
 minal, which are held before 
 the judges on their circuits. 
 
 The three actions (or assizes) 
 which are spoken of in the text, 
 had long been obsolete before 
 they were formally abolished 
 about 20 years ago. The two 
 first related to the trial of title 
 and possessory rights to real 
 property ; the last related to 
 disputes as to the rights to ad- 
 vowson. Actions of this nature 
 were obliged to be commenced 
 in the king's court. " But be- 
 cause few, comparatively speak- 
 ing, could have recourse to so 
 distant a tribunal as that of the 
 king's court, and perhaps also 
 on account of the attachment 
 which the English felt to their 
 ancient trial by the neighbour- 
 ing freeholders, Henry IL esta- 
 blished itinerant justices to de- 
 cide civil and criminal pleas in 
 each county. Justices in Eyre 
 (or, as we now call them, of 
 assize) were sometimes commis- 
 sioned in the reign of Henry L, 
 
138 
 
 RISE AND PROGRESS 
 
 A freeman shall not be amerced for a small fault, but 
 after the manner of the fault ; and for a great crime ac- ■ 
 cording to the heinousness of it, saving to him his con- ll 
 tenement ; and after the same manner a merchant, saving 
 to him his merchandise. And a villein * shall be amerced 
 after the same manner, saving to him his wainage, if he 
 falls under our mercy ; and none of the aforesaid amercia- 
 ments shall be assessed but by the oath of honest men in 
 the neighbourhood. 21. Earls and barons shall not be 
 
 but do not appear to have gone 
 their circuits regularly before 
 22 Hen. II. (1176). We have 
 owed to this excellent institu- 
 tion the uniformity of our com- 
 mon law, which would other- 
 wise have been split, like that 
 in France, into a multitude of 
 local customs ; and we still owe 
 to it the assura7ice, which is felt 
 hy the 'poorest and most remote 
 inhabitant of England, that his 
 right is weighed hy the same in- 
 corrupt and acute understanding 
 iipon which the decision of the 
 highest questions is reposed. The 
 justices of assize seem originally 
 to have gone their circuits an- 
 nually ; and as part of their 
 duty was to set tallages upon 
 all royal towns, and superintend 
 the collection of the revenue, 
 we may be certain that there 
 could be no long interval. This 
 annual visitation was expressly 
 confirmed by the twelfth section 
 of Magna Charta, which pro- 
 vides also, that no assize of 
 
 novel disseisin, or mort d'an- 
 cestor, should be taken except 
 in the shire where the lands in 
 controversy lay. Hence this 
 clause stood opposed on the one 
 hand to the encroachments of 
 the king's court, which might 
 otherwise, by drawing pleas of 
 land to itself, have defeated the 
 suitor's right to a jury from the 
 vicinage ; and, on the other, to 
 those of the feudal aristocracy, 
 who hated any interference of 
 the Crown to chastise their 
 violation of law, or control 
 their own jurisdiction." {Mid- 
 dle Ages, vol. ii. p. 334.) I have 
 drawn these remarks of Hal- 
 lam's partly from his text, and 
 partly from a note. It may be 
 doubtful how far the passage, 
 which I have italicised, is still 
 applicable, since the introduc- 
 tion and extension of the new 
 county courts. 
 
 * See an explanation of vil- 
 leinage, p. 92, supra. 
 
 I 
 
OF THE CONSTITUTION. 
 
 139 
 
 amerced, but by their peers, and after the degree of the 
 offence. 22. No ecclesiastical person shall be amerced 
 for his lay tenement, but according to the proportion of 
 the others aforesaid, and not according to the value of 
 his ecclesiastical benefice.* 23. Neither a town nor any 
 tenant shall be distrained to make bridges or banks, un- 
 less that anciently and of right they are bound to do it. 
 24. No sheriff, constable, coroner, or other our bailiffs, 
 shall hold pleas of the Crown.f 25. All counties, hun- 
 
 * Blackstone describes the 
 meaning of these clauses to be, 
 that no man should have a 
 larger amercement imposed 
 upon him than his circum- 
 stances or personal estate would 
 bear ; saving to the landholder 
 his contenement or land, to the 
 trader his merchandise, and to 
 the countryman his wainage or 
 team, and instruments of hus- 
 bandry. 
 
 t The object of this enact- 
 ment was, that all criminal 
 charges, which exposed the 
 party accused to the peril of 
 heavy punishment, should be 
 tried before judges of learning 
 and experience in the laws of 
 the realm, and not before in- 
 ferior, and probably incompe- 
 tent officers. (See Coke, 2 Inst. 
 30.) 
 
 " Pleas of the Crown'' mean 
 those judicial processes, which 
 are carried on in the Sovereign's 
 name against criminal offenders, 
 because (as Blackstone observes) 
 
 " in him centres the majesty of 
 the whole community, and he 
 is supposed by the law to be 
 the person injured by every in- 
 fraction of the public rights be- 
 longing to that community, and 
 is therefore in all cases the proper 
 prosecutor for every public of- 
 ence." At the time of the grant of 
 the Great Charter, the crimes of 
 theft (see Reeves, " Hist. Law," 
 vol. i. p. 281), forgery, coining 
 false money, and other acts 
 coming within the definition of 
 the crimen falsi, were held to be 
 pleas of the Crown, as well as 
 treason, murder, manslaughter, 
 robbery, and other graver atro- 
 cities (see Reeves, vol i. p. 200). 
 So that the effect of this clause 
 of the Charter was to put an 
 end entirely to the most im- 
 portant functions of the cri- 
 minal branch of the county 
 court, and of the other inferior 
 and local tribunals of the coun- 
 try. This prohibition was, how- 
 ever, held only to apply to hear- 
 
140 
 
 RISE AND PROGRESS 
 
 dreds, wapentakes, and tytliings, shall stand at the old 
 
 ing and determining pleas of 
 the Crown : and sheriffs conti- 
 nued to take (but not to trj) 
 indictments of felonies and mis- 
 demeanors, and coroners con- 
 tinued to take (but not to try) 
 appeals, till forbidden by a 
 statute of Edward IV. Coroners 
 still take inquisitions, whereby 
 parties are charged of murder 
 or manslaughter, and on which 
 they are tried by the judges, 
 who have commissions of oyer 
 and terminer and gaol delivery. 
 
 (For the duties and powers 
 which the courts of the tourn 
 and the leet still retained as to 
 frank-pledge and other matters, 
 see post, the note on the provision 
 respecting it, which was intro- 
 duced into the Great Charter as 
 issued by Henry III.) 
 
 The present clause of the 
 Great Charter mentions speci- 
 fically sheriffs, constables, coro- 
 ners, and bailiffs ; but it has 
 been held to prohibit all per- 
 sons from trying and deter- 
 mining criminal cases, unless 
 they have a special commission 
 from the Crown for that pur- 
 pose, such as the commissions of 
 oyer and terminer and of gaol 
 delivery, which are given to 
 the judges on each circuit, 
 or such as part of the com- 
 mission given to the justices 
 of the peace in their respec- 
 
 tive counties. " Some explana- 
 tion may be useful of the four 
 degrees of the royal officers 
 who are specified in the text 
 of the Charter, and forbidden 
 thenceforth to try pleas of 
 the Crown as by their general 
 authority. Sheriffs were the 
 chief officers under the king 
 in every county, deriving their 
 title from the two Saxon words 
 'shire' and 'reeve,' the bailiff 
 or steward of the division. They 
 are called in the Latin text of 
 the Great Charter, vicecomes, 
 which literally signifies 'in place 
 of the earl of the county,' who 
 anciently governed it under 
 the king, as Lord Coke ob- 
 serves in his Commentary on 
 the first statute of Westmin- 
 ster, chap. 10, enacted in 1274, 
 the third of Edward I. The 
 next officer mentioned in this 
 chapter of Magna Charta is 
 constabulariitSfOY constable, which 
 is sometimes derived from the 
 Saxon, but other authorities 
 have conceived it more truly 
 to come from the Latin comes 
 stabuli, a superintendent of the 
 imperial stables, or master of 
 the horse. This title, however, 
 began in the course of time to 
 signify a commander, in which 
 sense it was introduced into 
 England. In the present in- 
 stance, the word is put for the 
 
 I 
 
OF THE CONSTITUTION. ]41 
 
 rents, without any increase, except in our demesne 
 
 constable, or keeper of a castle, 
 frequently called a Castellan. 
 They were possessed of such con- 
 siderable power within their own 
 precincts, that previously to the 
 present Act they held trials of 
 crimes, properly the cognizance 
 of the Crown, as the sheriffs did 
 within their respective baili- 
 wicks; and sealed with their own 
 effigies on horseback. The Eng- 
 lish fortresses to which these 
 officers belonged, in the time of 
 King Henry II. amounted in 
 number to 1115 ; and it was 
 held that there should be one in 
 every manor, bearing the name 
 of that manor, wherein the 
 constable had equal rule. As 
 prisons were considered to be 
 an important part of all ancient 
 castles, these officers are some- 
 times called constables of fees, 
 which signifies whose who were 
 paid for keeping prisons. In this 
 part of their duty, they appear 
 often to have been guilty of 
 great cruelty ; since in the fifth 
 year of Henry IV., 1403, chap. 
 10, it is enacted, the justices 
 of peaces shall imprison in the 
 common gaol, 'because,' says 
 the passage, ' that divers con- 
 stables of castles within the 
 realm of England be assigned 
 to be justices of peace by com- 
 mission from our Lord the 
 
 King, and by colour of the said 
 commissions they take people 
 to whom they bear ill-will, and 
 imprison them within the said 
 castles, till they have made fine 
 and ransom with the said con- 
 stables for their deliverance.' 
 This statute, observe Jacob and 
 Toulins, seems to have put an 
 end to them. The title of Co- 
 roner implies that he was an 
 officer to the Crown, to whom, 
 in certain cases, pleas of the 
 Crown in which the king is 
 more immediately concerned, 
 are properly belonging ; and in 
 this sense the Lord Chief Jus- 
 tice of the King's Bench is the 
 principal coroner of the king- 
 dom. Previously to this chapter 
 of Magna Chart a, a coroner 
 might not only receive accusa- 
 tions against offenders, but might 
 try them ; but his authority was 
 afterwards in general reduced 
 to the inquiry into violent and 
 untimely death, on sight of the 
 body; although by custom in 
 some places he might make in- 
 quisition of other felonies. By 
 the first statute of Westminster, 
 chap. 10, his power was some- 
 what more positively explained, 
 since it was there ordained that 
 the coroner should attach pleas 
 of the Crown, and present them 
 to the justices, but he can pro- 
 
142 
 
 mSE AND PROGRESS 
 
 manors.* 26. If any one holding of us a lay-fee die, 
 and the sheriff, or our bailiffs, show our letters patent of 
 summons for debt which the dead man did owe to us, it 
 shall be lawful for the sheriff or our bailiff to attach and 
 inroll the chattels of the dead, found upon his lay-fee, to 
 the value of the debt, by the view of lawful men, so as 
 nothing be removed until our whole clear debt be paid ; 
 and the rest shall be left to the executors to fulfil the 
 testament of the dead, and if there be nothing due from 
 him to us, all the chattels shall go to the use of the dead, 
 saving to his wife and children their reasonable shares. 
 27. If any freeman shall die intestate, his chattels shall — 
 be distributed by the hands of his nearest relations andS 
 friends, by view of the church ; saving to every one 
 his debts which the deceased owed to him.f 28. No 
 
 ceed no further. The last rank 
 of great officers mentioned in 
 this chapter, is that of bailiffs, 
 whose name is derived from the 
 old French word Bayliff, the 
 keeper of a province ; but in 
 the present instance in this 
 term, says Coke, ' are compre- 
 hended all judges or justices of 
 any court of justice ;' by all 
 which specifications it is evident, 
 according to a rule cited by the 
 same author, that * the pleas of 
 our Lord the King shall be espe- 
 cially reserved, that by none 
 now in the kingdom, can pleas 
 be had or held, after the con- 
 firmation of the aforesaid char- 
 ter is made, without a special 
 commission.' " — Thomson'' s Mag- 
 na Charta, p. 204. 
 
 * The Anglo-Norman kings 
 used to make a regular profit 
 out of the appointment of she- 
 riffs to counties, and of the 
 officers to other districts. Some- 
 times they were farmed out to 
 the highest bidder. The effect 
 of this, of course, was to produce 
 great oppression of the people, 
 as the officials who paid thus 
 largely for their places, strove to 
 indemnify themselves by ex- 
 acting immoderate fees, by un- 
 just confiscations, by imposing 
 excessive fines, and every other 
 species of extortion. 
 
 This clause of John's Charter 
 is not repeated in the Charter 
 as confirmed by Henry III. 
 
 t For an account of the an- 
 cient law as to a man's right to 
 
 i 
 
OF THE CONSTITUTION. 
 
 143 
 
 constable or bailiff of ours shall take com or other 
 chattels of any man, unless he presently give him money 
 for it, or hath respite of payment by the good-will of the 
 seller.* 29. No constable shall distrain any knight to 
 
 bequeath his personal property 
 by will, the functions of execu- 
 tors, the mode in which per- 
 sonal property was distributed 
 when a man died intestate, the 
 claims of the church, the duties 
 of administrators, and the right 
 of creditors, see Williams on 
 Executors, or Stephens' "Black- 
 stone," vol. ii. See also, as to the 
 precise meaning of these clauses 
 of the Great Charter, 1 Reeve, 
 244, and Thomson's " Magna 
 Charta," p. 208. 
 
 * " The profitable prerogative 
 of purveyance and pre-emption 
 was a right enjoyed by the 
 Crown of buying up provisions 
 and other necessaries, by the 
 intervention of the king's pur- 
 veyors, for the use of his royal 
 household, at an appraised va- 
 luation, in preference to all 
 others, and even without the 
 consent of the owner ; and also 
 of forcibly impressing the car- 
 riages and horses of the subject 
 to do the king's business on the 
 public roads in the conveyance 
 of timber, baggage, and the like, 
 however inconvenient to the 
 proprietor, upon paying him a 
 settled price ; a prerogative 
 
 which prevailed pretty gene- 
 rally throughout Europe during 
 the scarcity of gold and silver, 
 and the high valuation of mo- 
 ney consequential thereupon. 
 In those early times the king's 
 household (as well as those of 
 inferior lords) were supported 
 by specific renders of corn and 
 other victuals from the tenants 
 of the respective demesnes ; and 
 there was also a continual 
 market kept at the palace gate 
 to furnish viands for the royal 
 use ; and this answered all pur- 
 poses in those ages of simpli- 
 city, so long as the king's court 
 continued in any certain place. 
 But when it removed from one 
 part of the kingdom to another 
 (as was formerly very frequently 
 done), it was found necessary to 
 send purveyors beforehand to 
 get together a sufficient quan- 
 tity of provisions and other ne- 
 cessaries for the household ; and, 
 lest the unusual demand should 
 raise them to an exorbitant 
 price, the powers before-men- 
 tioned were vested in these 
 purveyors, who, in process of 
 time, very greatly abused their 
 authority, and became a great 
 
144 
 
 RISE AND PROGRESS 
 
 give money for castle guard, if he himself will do it in 
 his person, or by another able man in case he cannot do 
 it through any reasonable cause. And if we lead him, 
 or send him in an army, he shall be free from such guard 
 for the time he shall be in the army by our command.* 
 80. No sheriff or bailiff of ours, or any other, shall take 
 horses or carts of any freeman for carriage, but by the 
 good-will of the said freeman.f 31. Neither shall we nor 
 our bailiffs take any man's timber for our castles or other 
 uses, unless by the consent of the owner of the timber.f 
 32. We will retain the lands of those convicted of felony 
 only one year and a day, and then they shall be delivered 
 to the lord of the fee.J 33. All wears for the time to 
 
 oppression to the subject, though 
 of little advantage to the Crown ; 
 ready money in open market 
 (when the royal residence was 
 more permanent and specie be- 
 gan to be plenty) being found 
 upon experience to be the best 
 proveditor of any ; wherefore by 
 degrees the power of purveyance 
 having fallen into disuse during 
 the suspension of monarchy, 
 King Charles at his restoration 
 consented to resign entirely 
 these branches of his revenue 
 and powers."—! Bl. Com., 287 ; 
 Oreening^a Magrm Charta, p. 
 17. 
 
 * According to Lord Coke, 
 the common law was that he 
 who held by castle-guard, that 
 is, by the service of keeping a 
 tower, or a gate, or the like of 
 a castle in time of war, might 
 
 do it either by himself, or by 
 any sufficient deputy ; and that 
 if such tenant were by the king 
 led or sent to his hosts in time 
 of war, he was excused and quit 
 of his service for keeping of the 
 castle either by himself or by 
 another during the time he so 
 served the king. — 2 Coke's hist, 
 34 ; Greening'* s Magna Charta, 
 p. 18. 
 
 t See note to c. 28. 
 
 X The word convict here means 
 attainted (2 CoJce's Inst., 37), al- 
 though it generally has a very 
 different signification. The dif- 
 ference between a man attainted 
 and convicted is, that a man is 
 said to be convicted before he 
 hath judgment, as if a man be 
 convicted by verdict or confes- 
 sion ; and when he hath his 
 judgment upon the verdict 
 
 let 0^ j 
 
 J 
 
OF THE CONSTITUTION. 
 
 145 
 
 come shall be put down in the rivers of Thames and 
 Medway, and throughout all England, except upon the 
 
 confession, then he is said to be 
 attainted (1 hist. 390 h), that is 
 to say, his blood is become {at- 
 tinctus) tainted, stained, or cor- 
 rupted ; insomuch that, by the 
 common law, in cases of treason 
 or capital felony, his children 
 or other kindred could not in- 
 herit his estate, nor his wife 
 claim her dower ; the same 
 could not be restored or saved 
 but by Act of Parliament, and 
 therefore, in divers instances 
 before the 54 Geo. 3, there was 
 a special provision by Act of 
 Parliament that such or such 
 an attainder should not work 
 corruption of blood, loss of 
 dower, or disherison of heirs. — 
 
 1 Lut. 391 h. And by the com- 
 mon law, all lands of inheritance 
 whereof the offender was seised 
 in his own right, and also all 
 rights of entry to lands in the 
 hands of a wrong-doer, were 
 forfeited to the king by an at- 
 tainder of high treason ; and to 
 the lord of whom they were im- 
 mediately holden by an attain- 
 der of petit treason or felony. — 
 
 2 Haw. P. C. c. 49, s. 1. But 
 the lord could not enter into 
 the lands holden of him upon 
 an escheat for petit treason or 
 felony without a special grant, 
 till it appeared by due process 
 that the king had had his pre- 
 
 rogative of the year, day, and 
 waste. — 2 Eaw. P. C. c. 49, 
 
 8.3. 
 
 But by the statute 64 Geo. 3, 
 145, intituled, " An Act to take 
 away corruption of blood, save 
 in certain cases," it is enacted, 
 "That no attainder for felony 
 which shall take place from and 
 after the passing of that Act, 
 save and except in cases of the 
 crime of high treason, or of the 
 crimes of petit treason or mur- 
 der, or of abetting, procuring, 
 or counselling the same, shall 
 extend to the disinheriting of 
 any heir, nor to the prejudice of 
 the right or title of any person 
 or persons other than the right 
 or title of the offender or offen- 
 ders, during his, her, or their 
 natural lives only ; and that it 
 shall be lawful to every person 
 or persons to whom the right or 
 interest of any lands, tenements, 
 or hereditaments, after the death 
 of any such offender or offenders, 
 should or might have apper- 
 tained, if no such attainder had 
 been, to enter into the same." 
 And by the 3 & 4 Will. 4, c. 
 106, s. 10, it is further enacted 
 that "when the persons from 
 whom the descent of any land 
 is to be traced shall have had 
 any relation who, having been 
 attainted, shall have died before 
 
146 
 
 EISE AND PROGRESS 
 
 sea-coast.* 34. The writ which is called prcecijpe, for the 
 future, shall not be made out to any one, of any tenement, 
 whereby a freeman may lose his court.f 35. There shall 
 be one measure of wine and one of ale through our whole 
 realm ; and one measure of corn, that is to say, the Lon- 
 don quarter ; and one breadth of dyed cloth, and russets, 
 and haberjeets, that is to say, two ells within the lists; 
 and it shall be of weights as it is of measures. 36. No- 
 
 such descent shall have taken 
 place, then such attainder shall 
 not prevent any person from 
 inheriting such land who would 
 have been capable of inheriting 
 the same, by tracing his descent 
 through such relation, if he had 
 not been attainted, unless such 
 land shall have escheated, in 
 consequence of such attainder, 
 before the 1st day of January, 
 ISMr— Greening, p. 18. The 
 personal property of a convicted 
 felon is still forfeited to the 
 Crown. 
 
 * The intent of this was to 
 prevent any person from appro- 
 priating to himself a fishery of 
 any part of a public river. Every 
 pubUc river or stream, says 
 Lord Coke, is the king's high- 
 way, which cannot be privately 
 occupied. It was accordingly 
 held to be illegal to erect any ob- 
 struction, such as a weir, across 
 a public river. The peculiar 
 kind of weirs mentioned in the 
 text, and called Kidelli, were 
 dams having a loop or narrow 
 
 cut in them, and furnished with 
 wheels and engines for catching 
 fish. — Thomson's Notes on the 
 Great Charter, p. 214. For 
 further information as to the 
 king's right to the soil, &c., of 
 the sea-shore, and of navigable 
 rivers, and so to the rights of 
 highway and fishery which the 
 public have in them, see Jer- 
 wood on Rights to the Sea- 
 shore, &c. 
 
 t This clause was designed 
 to protect, to some extent, the 
 local jurisdiction of the courts 
 baron. When the tenant of 
 lands, who was not a tenant in 
 capite of the Crown, was dis- 
 possessed, he was required first 
 to sue for their recovery in the 
 court baron of the inferior lord, 
 of whom he held them. It was 
 only when the inferior lord 
 resigned his privilege of juris- 
 diction, that the tenant was en- 
 titled to sue out in the king's 
 court the writ of right for the 
 recovery of the lands, which, 
 was called a praecipe in capite. 
 
 I 
 
OF THE CONSTITUTION. 
 
 147 
 
 thing from henceforth shall be given or taken for a writ 
 of inquisition of life or limb, but it shall be granted 
 freely, and not denied.* 37. If any do hold of us by 
 fee-farm, or by socage, or by burgage, and he hold also 
 lands of any other by knight's service, we will not have 
 the custody of the heir or land, which is holden of an- 
 other man's fee by reason of that fee-farm, socage, or 
 burgage ; neither will we have the custody of such fee- 
 farm, socage, or burgage, except knight's service was due 
 to us out of the same fee-farm. We will not have the 
 custody of an heir, nor of any land which he holds of 
 another by knight's service, by reason of any petty ser- 
 jeanty that holds of us, by the service of paying a knife, 
 
 * The object of this clause 
 was, to prevent the long impri- 
 sonment of a person charged 
 with a crime without inquiring 
 into his guilt or innocence. For 
 the proper purpose of imprison- 
 ing such is, as Lord Coke says, 
 only for securing that they may 
 be duly tried. The writ of in- 
 quisition mentioned in the text 
 was called a writ de odio et atid, 
 and was one of the great secu- 
 rities of personal liberty in those 
 days. It was a rule that a per- 
 son committed to custody on a 
 charge of homicide should not 
 be bailed by any other autho- 
 rity than that of the king's 
 writ ; but to relieve such a per- 
 son from the hardship of lying 
 in prison till the coming of the 
 justices in eyre, this writ used 
 to be directed to the sheriff, 
 
 commanding him to make iw- 
 quisitionj by the oaths of lawful 
 men, whether the party in pri- 
 son was charged through ma- 
 lice, utntm rettatus sit odio et 
 atid; and if it was found that 
 he was accused odio et atid, and 
 that he was not guilty, or that 
 he did the fact se defendendo or 
 per imfortunium, yet the sheriff 
 had no authority by this writ 
 to bail him, but the party was 
 then to sue a writ of tradas in 
 halliu7ii, directed to the sheriff, 
 and commanding him that if 
 the prisoner found twelve good 
 and lawful men of the county 
 who would be mainprize for 
 him, then he should deliver him 
 in bail to those twelve. — See 
 Reeve's Hist. Com. Law, 258 ; 
 Thomson^ s Magna Charta. 
 
148 RISE AND PROGRESS 
 
 an arrow, or the like.* 38. No bailiff from henceforth 
 shall put any man to his law upon his own hare saying, 
 without credible witnesses to prove it.f 
 
 39. NULLUS LIBER HOMO CAPIATUR, VEL TMPRISONETUR, 
 AUT UTLAGETUR, AUT EXULETUR, AUT ALIQUO MODO DEI- 
 STRUATDR; NEC SUPER EUM IBIMUS, NEC SUPER EUM 
 MITTEMUS, NISI PER LEGALE JUDICIUM PARIUM SUORUM, 
 VEL PER LEGEM TERR^E. 40. NULLI VENDEMUS, NULLI 
 NEGABIMUS, AUT DIFFEREMUS RECTUM AUT JUSTITIAM. 
 
 39. No FREEMAN SHALL BE TAKEN OR IMPRISONED, 
 OR DISSEISED, OR OUTLAWED, OR BANISHED, OR ANY 
 WAYS DESTROYED, NOR WILL WE PASS UPON HIM, NOR 
 WILL WE SEND HIM, UNLESS BY THE LAWFUL JUDGMENT 
 OF HIS PEERS, OR BY THE LAW OF THE LAND. 40. We 
 WILL SELL TO NO MAN, WE WILL NOT DENY TO ANY MAN, 
 EITHER JUSTICE OR RIGHT.J 
 
 * For explanation of socage oath, and bringing others to 
 tenure, knight's service, fee- swear with him to that effect, 
 farm, and burgage tenure, see This mode of defence was called 
 Chapter IX., supra. " Petit ser- in criminal cases a trial by com- 
 jeanty," as defined by Littleton, purgators (and will be hereafter 
 "consists in holding lands of referred to when the origin of 
 the king by the service of ren- trial by jury is discussed) ; in 
 dering to him annually some civil cases it was called Wager 
 small implement of war, as a of law, and has only been en- 
 bow, a sword, a lance, or an ar- tirely abolished in the last 
 row, or the like."— 2 Bl Com. reign (see 3 & 4 Will. 4, c. 42, 
 
 t See 1 Reeves, p. 248, as to s. 13). 
 the meaning of this disputed X These clauses are the crown- 
 clause. It is generally under- ing glories of the Great Charter, 
 stood as referring to the modes Mr. Hallam {Midd. Ag. ii. 324) 
 of trial in which a party charged calls them its " essential clauses/' 
 was allowed to prove that a cri- being those which " protect the 
 minal charge or a civil claim personal liberty and property of 
 made against him was un- all freemen, by giving security 
 founded, by pledging his own from arbitrary imprisonment 
 
 J 
 
OF THE CONSTITUTION. 
 
 149 
 
 41. All merchants shall have safe and secure conduct, 
 to go out of, and to come into England, and to stay there. 
 
 and arbitrary spoliation." The 
 same high authority observes 
 that these words of the Great 
 Charter, "interpreted by any 
 honest court of law, convey an 
 ample security for the two main 
 rights of civil society. From 
 the era, therefore, of King 
 John's Charter, it must have 
 been a clear principle of our 
 constitution that no man can 
 be detained in prison without 
 trial. Whether courts of jus- 
 tice framed the writ of habeas 
 corpus in conformity to the 
 spirit of this clause, or found it 
 already in their register, it be- 
 came from that era the right 
 of every subject to demand it. 
 That writ, rendered more ac- 
 tively remedial by the statute 
 of Charles II., but founded upon 
 the broad basis of Magna Charta, 
 is the principal bulwark of Eng- 
 lish liberty; and if ever tem- 
 porary circumstances, or the 
 doubtful plea of political neces- 
 sity, shall lead men to look on 
 its denial with apathy, the most 
 distinguishing characteristic of 
 our constitution will be ef- 
 faced." 
 
 Before commenting further 
 on these clauses of the Great 
 Charter of John, it may be con- 
 venient to observe that they are 
 formed into one chapter in the 
 
 Charter as issued by Henry III., 
 and confirmed by subsequent 
 kings, and that some words are 
 added to one of the provisions, 
 for the purpose apparently of 
 making the meaning more ex- 
 plicit. The chapter of Henry 
 II.'s Charter is as follows : "Nul- 
 lus liber homo capiatur, vel im- 
 prisonetur, aut disseisietur de 
 aliquo lihero tenemento suo vel 
 lihertatibus vel liheris coiisuetu- 
 dinihus suis, aut utlagetur, aut 
 exulet, aut aliquo alio mode 
 destruatur, nee super eum ibi- 
 mus, nee super eum mittemus 
 nisi per legale judicium parium 
 suorum vel per legem terrse. 
 Nullivendemus,nullinegabimus, 
 aut diflferemus rectum aut jus- 
 titiam." This chapter is trans- 
 lated in our common edition of 
 the Statutes as follows : " No 
 freeman shall be taken or im- 
 prisoned, or be disseised of his 
 freehold, or liberties, or free 
 customs, or be outlawed or ex- 
 iled, or any otherwise destroyed, 
 nor will we pass upon him, nor 
 condemn him, but by lawful 
 judgment of his peers, or by the 
 law of the land. We will sell 
 to no man, we will not deny or 
 defer to any man, either justice 
 or right." 
 
 These are all words which 
 should be carefully read over 
 
150 
 
 RISE AND PROGRESS 
 
 and to pass as well by land as by water, for buying and 
 selling by the ancient and allowed customs, without any 
 
 and over and again, for, as Lord 
 Coke quaintly observes, in his 
 comments on them, "As the 
 gold-finer will not out of the 
 dust, shreds, or shreds of gold, 
 let passe the least crum, in re- 
 spect of the excellency of the 
 metal ; so ought not the learned 
 reader to passe any syllable of 
 this law, in respect of the excel- 
 lency of the matter." 
 
 The first words of this chap- 
 ter of the Charter (for it is con- 
 venient to follow the arrange- 
 ment and the wording of Henry 
 III.'s version) express the ex- 
 tent of its applicability. It is 
 not a piece of class legislation, 
 but its benefits apply to all the 
 freemen of the land; and all 
 freemen are equal in the eye of 
 this great law. " JVidlus liber 
 homo capiatur'^ — no freeman 
 shall be taken, &c. Lord Chat- 
 ham's eulogium on the public 
 spirit shown in this respect by 
 the barons who signed the Great 
 Charter is no less just than elo- 
 quent. "My lords," said that 
 great statesman to the House 
 of Peers, in his speech on the 
 9th of January, 1770, "it is to 
 7/our ancestors, my lords, — it is 
 to the English barons, that we 
 are indebted for the laws and 
 constitution we possess. Their 
 
 virtues were rude and unculti- 
 vated, but they were great and 
 sincere. Their understandings 
 were as little polished as their 
 manners, but they had hearts to 
 distinguish right from wrong ; 
 they had heads to distinguish 
 truth from falsehood ; they un- 
 derstood the rights of humanity, 
 and they had spirit to maintain 
 them. 
 
 " My lords, I think that his- 
 tory has not done justice to 
 their conduct, when they ob- 
 tained from their sovereign 
 that great acknowledgment of 
 national rights contained in 
 Magna Carta ; they did not 
 confine it to themselves alone, 
 but delivered it as a common 
 blessing to the whole people. 
 They did not say, These are the 
 rights of the great barons, or 
 these are the rights of the great 
 prelates. No, my lords ; they 
 said, in the simple Latin of the 
 times, nvllus liber hoTno, and 
 provided as carefully for the 
 meanest subject as for the 
 greatest. These are uncouth 
 words, and sound but poorly in 
 the ears of scholars ; neither 
 are they addressed to the criti- 
 cism of scholars, but the hearts 
 of free men. These three words, 
 nvllus liber homo, have a mean- 
 
OF THE CONSTITUTION. 
 
 151 
 
 evil tolls ; except in time of war, or when they are of any 
 nation at war with us. And if there be found any such 
 
 ing which interests us all ; they 
 deserve to be remembered — they 
 deserve to be inculcated in our 
 minds — they are worth all the 
 classics." The force of this 
 noble panegyric will be doubly 
 felt if we call to mind the in- 
 sidious attempt made by John, 
 about a month before the con- 
 gress at Runny mede, to detach 
 the barons from the general 
 national interest, by offering to 
 them and their immediate re- 
 tainers, as privileges, those 
 rights which the barons claimed 
 and secured for every freeman 
 of the land (see p. 124, supra). 
 It is true that at the time of 
 the grant of the Charter a large 
 part of the population was not 
 free ; but it is to be remembered 
 that the villeins were always 
 capable of being raised, and 
 were constantly rising into free- 
 men, so that the ultimate effect 
 of this chapter was to give and 
 to guarantee full protection for 
 property and person to every 
 human being who breathes Eng- 
 lish air. 
 
 In Lord Coke's detailed com- 
 mentary on this chapter of 
 Magna Carta, he points out 
 that the evils from which the 
 laws of the land are to protect 
 each person are recited in the 
 order in which they most affect 
 
 him ; as, first, loss of liberty — '"iVo 
 freeman shall he taken or impri- 
 soned,'' because the freedom of 
 a man's person is more precious 
 to him than all the succeed- 
 ing particulars ; and the word 
 ^' taken,''' which occurs in this 
 clause, signifies also being re- 
 strained of liberty by petition 
 or suggestion to the king or his 
 council. Secondly, the chapter 
 declares that none "shall he dis- 
 seised of his free tenement, his 
 liberties, or his free customs;'''' 
 meaning that neither the king 
 nor others shall seize upon any 
 of his possessions, and that a 
 man shall not be put from his 
 livelihood without answer. The 
 word " liherties'''' has several sig- 
 nifications, as the laws of the 
 realm, privileges bestowed by 
 the king, and the natural free- 
 dom possessed by the subjects 
 of England ; for which cause mo- 
 nopolies in general are against 
 the enactments of the Great 
 Charter. 
 
 The present chapter ordains, 
 thirdly, that none shall be out- 
 lawed, exiled, or in any way de- 
 stroyed. By outlawry, is signi- 
 fied the ejecting of a person, by 
 three public proclamations, from 
 the benefit of the law, which, 
 from the time of Alfred until 
 long after the reign of William 
 
152 
 
 RISE AND PROGRESS 
 
 in our land, in the beginning of the war, they shall be 
 attached, without damage to their bodies or goods, until 
 
 I., could be done for felony 
 only, for which the penalty was 
 death; and therefore an out- 
 law, being considered as a wolf, 
 might be slain by any man. In 
 the beginning of the days of 
 King Edward III., however, it 
 was enacted that none but the 
 sheriff should put an outlaw to 
 death ; or else that they should 
 be considered guilty of felony, 
 unless he was slain in an at- 
 tempt to take him. The ex- 
 pression, being exiled, signi- 
 fies to be banished, or forced 
 to abjure the realm against an 
 individual's consent. For this 
 cause, Sir Edward Coke observes 
 that the king cannot send any 
 subject of England into foreign 
 parts on pretence of service, as 
 an ambassador, deputy of Ireland, 
 <fec., unless he be willing to go. 
 The chapter next declares 
 that none shall be " in any 
 manTier destroyed contrary to the 
 law of the land^"" which Sir 
 Edward Coke interprets to sig- 
 nify being "fore-judged of life or 
 limb, disherited, or put to toiture 
 or death." He also observes, that 
 the words " in any Tnanner'''' 
 are added to the expression 
 " destroyed^ and to no other in 
 the sentence, because they pro- 
 hibit any means being used 
 
 by which this destruction may 
 be brought about ; thus, if an 
 individual be accused or in- 
 dicted of felony, his goods or 
 lands can neither be seized into 
 the king's hands, nor granted, 
 nor even promised to another, 
 before his attainter. For, until 
 he be attainted, he ought to 
 derive his substance from his 
 own possessions ; and when they 
 have been previously granted, 
 it often followed that more un- 
 due means and violent prose- 
 cutions were used for private 
 interest, than the ordinary 
 course of the law would justify. 
 (See Coke's Second Institute, 
 and Thomson's Magna Charta.) 
 The next words in the origi- 
 nal Latin of the Charter are, "Nee 
 super eum ihimus n£c super eum 
 mittemus."" These are translated 
 in the ordinary edition of the 
 Statutes: "Nor will we pass upon 
 him,nor condemn him,^'' aversion 
 neither accurate nor sufficiently 
 expressive. Lord Coke says, 
 that the words signify that none 
 shall be condemned [that is, 
 except after lawful trial, as next 
 mentioned] at the king's suit, 
 either before the king in his 
 bench, where the pleas are sup- 
 posed to be held in his presence 
 or before any judg'^ or commis- 
 
 J 
 
OF THE CONSTITUTION. 
 
 153 
 
 it be known unto us, or our chief justiciary, how our 
 merchants be treated in the nation at war with us ; and 
 if ours be safe there, the others shall be safe in our 
 
 sioner whatever. Dr. Lingard 
 has pointed out that these words 
 specially refer to the outrages 
 which John had been accus- 
 tomed to commit. He had 
 hitherto been in the habit of 
 going with an armed force or 
 sending an armed force on the 
 lands and against the castles of 
 all whom he knew or suspected 
 to be his secret enemies, with- 
 out observing any form of law. 
 Then follow the words of the 
 Great Charter, which specify 
 the lawful trial which each 
 freemen is to be entitled to 
 before he can sufier aught at 
 the hands of the executioner. 
 He is to suffer none of the above- 
 mentioned things, " nisi per 
 legale judicium parium suorum 
 vel per legem terroe" unless hy the 
 lawful judgment of his peers or 
 hy the law of the land. The 
 full meaning of these important 
 words will be found discussed 
 in the text {infra, p. 217, e^ seq.) 
 when we investigate how far 
 Magna Carta recognises trial 
 by jury as a principle of our 
 constitution. For the present, 
 it may be observed, that this 
 part of the Great Charter esta- 
 blishes the general right of the 
 
 subject to have his guilt or in- 
 nocence of any criminal charge 
 that may be preferred against 
 him, determined by the free 
 voice of his equals, and not by 
 the sovereign or any nominee 
 of the sovereign. And the same 
 general principle is established 
 as to all civil suits by which he 
 may be affected, so far as their 
 determination may depend upon 
 the decision of the issues of fact. 
 The conclusion of this chapter 
 of Henry's Charter, (being the 
 40th clause of that of John), 
 ordains, " We will sell no man, we 
 will not deny or delay to any man, 
 justice or right." One imme- 
 diate object of this was to put 
 an end to the fines which John 
 and his predecessors had been 
 accustomed to extort from 
 suitors in their courts (see p. 
 109, supra). But it contains a 
 general principle also. Lord 
 Coke observes, that these words 
 are spoken in the person of the 
 king, who is supposed to be 
 present in all his courts of law, 
 wherefore all his subjects, of 
 every profession and degree, and 
 for all kinds of injuries, are en- 
 titled to have immediate and 
 perfect justice. 
 
 H 3 
 
154 
 
 RISE AND PROGRESS 
 
 dominions.* 42. It shall be lawful, for the time to 
 come, for any one to go out of our kingdom, and return 
 safely and securely, by land or by water, saving his 
 allegiance to us ; unless in time of war, by some short 
 space, for the common benefit of the realm, except pri- 
 soners and outlaws, according to the law of the land, and 
 people in war with us, and merchants who shall be in 
 such condition as is above mentioned.f 43. If any man 
 hold of any escheat, as of the honour of Wallingford, 
 Nottingham, Boulogne, Lancaster, or of other escheats 
 which be in our hands, and are baronies, and die, his 
 heir shall give no other relief, and perform no other ser- 
 vice to us, than he would to the baron, if it were in the 
 baron's hand ; we will hold it after the same manner as 
 the baron held it. J 44. Those men who dwell without 
 
 * Montesquieu has justly eu- 
 logized our English ancestors 
 for having thus " made the pro- 
 tection of foreign merchants an 
 article of their national liberty." 
 This generous and foresighted 
 enactment in favour of com- 
 merce ought alone to have pre- 
 vented any English writer from 
 speaking (as some have done) of 
 the struggle for Magna Carta as 
 a selfish squabble of the barons 
 against the king. 
 
 t This clause is only to be 
 found in the Charter of John. 
 The sovereign has the preroga- 
 tive of restraining by the writ 
 " Ne exeat regno," any subject 
 from quitting the kingdom. The 
 reason given for this power is, 
 
 that every man ought, if re- 
 quired, to defend the king and 
 the realm. It was not, however, 
 limited to time of war. In 
 practice it is now only used as 
 part of the process of the Court 
 of Chancery to prevent a party to 
 a suit in equity from improperly 
 withdrawing his person and pro- 
 perty from the jurisdiction of 
 the court before the end of the 
 suit. — See Bowyer' s Commentary 
 on the Constitution of England. 
 X The general purpose of this 
 clause was that the tenant of an 
 inferior lord (or baron) should 
 not have his feudal burdens in- 
 creased if the lord's estate (or 
 barony) lapsed to the Crown, 
 and the tenant thereby became 
 
OF THE CONSTITUTION. 
 
 156 
 
 the forest, from henceforth shall not come before our jus- 
 ticiaries of the forest, upon common summons, hut such 
 as are impleaded, or are pledges for any that are attached 
 for something concerning the forest.* 45. We will not 
 make any justices^constahles^sheriffsy or bailiffs, hut of 
 such as know the laic of the realm and mean duly to 
 observe ^Y.t 46. All barons who have founded abbeys. 
 
 the king's tenant. For an ex- 
 planation of the special terms, 
 see 1 Reeves, p. 238. 
 
 * This and the 47th, 48th, 
 and part of the 53rd clauses in 
 John's Charter, are all that re- 
 late to the mitigation of the 
 oppressions caused by the forest 
 laws, and the abuses perpetrated 
 under colour of them. These 
 evils were afterwards more spe- 
 cifically redressed by the Carta 
 de Forestae of Henry III. See 
 Blackstone's Introduction to the 
 Charters, pp. xxii. xli. 
 
 t This clause only appears in 
 John's Charter. It is said to 
 have been specially required at 
 the time, in consequence of the 
 misconduct and incompetency 
 of some of the judicial officers 
 whom John had lately ap- 
 pointed. 
 
 The principle on which it is 
 founded ought to be perma- 
 nently remembered both by 
 those who confer and those who 
 accept judicial appointments ; 
 especially the important station 
 of justice of the peace, an office 
 
 that was indeed created after 
 the time of John, but which 
 comes fully within the spirit of 
 this clause of the Great Charter. 
 Wilful or corrupt perversion of 
 the law by country or borough 
 magistrates is almost unknown 
 in modern times ; but the gross 
 ignorance of the laws of the 
 realm in which many of them 
 venture to administer those 
 laws, is equally discreditable to 
 themselves and mischievous to 
 the community. Lord Coke 
 truly said that " ignorantia ju- 
 dicis fit scepenumero calamitas 
 innocentisy And those who 
 mount the judgment-seat with- 
 out qualifying themselves by 
 knowledge as well as by pro- 
 perty, may well be reminded of 
 an anecdote of the great Alfred. 
 That king used earnestly to 
 watch and examine the mode 
 in which those who administered 
 justice under him discharged 
 their duty. When any of their 
 decisions which were erroneous 
 were observed by him or re- 
 ported to him, he used to sum- 
 
156 
 
 RISE AND PROGRESS 
 
 and have the kings of England's charters of advowson, or 
 the ancient tenure thereof, shall have the keeping of 
 them, when vacant, as they ought to have. 47. All 
 forests that have been made forests in our time, shall 
 forthwith be disforested ; and the same shall be done with 
 the banks that have been fenced in by us in our time. 
 48. All evil customs concerning forests, warrens, foresters, 
 and warreners, sheriffs and their officers, rivers and their 
 keepers, shall forthwith be inquired into in each county, 
 by twelve sworn knights of the same shire, chosen by 
 creditable persons of the same county ; and within forty 
 days after the said inquest, be utterly abolished, so as 
 never to be restored : so as we are first acquainted there- 
 with, or our justiciary, if we should not be in England. 
 49 # yIq ^ff[\l immediately give up all hostages and 
 
 mon them to his presence, his 
 principal object being to dis- 
 cover whether they had done 
 wrong through ignorance or evil 
 intention. " It sometimes hap- 
 pened that the justices admitted 
 their ignorance ; but Alfred 
 then earnestly represented to 
 them their folly, and said, * I 
 wonder at your great rashness, 
 that you, who have taken from 
 God and myself the office and 
 dignity of Wise Men, should 
 have entirely neglected the stu- 
 dies and conduct of the wise. 
 Therefore either resign your tem- 
 poral power, or exercise your- 
 selves, as I desire, more zealously 
 in the study of wisdom.'" See 
 Paulli's"Lifeof Alfred." 
 * The remainder of the Great 
 
 Charter of John (except the 
 54th chapter) is not repeated 
 in the subsequent Charters. It 
 consists of provisions of a tem- 
 porary nature rendered neces- 
 sary by the recent events, and 
 which sufficiently explain them- 
 selves. The 6 1st and 62nd chap- 
 ters deserve more particular at- 
 tention. Guizot remarks on 
 them, — " It is not enough that 
 rights should be recognised and 
 promises made, it is further ne- 
 cessary that these rights should 
 be respected, and that these 
 promises should be fulfilled. 
 The 61st and last article of the 
 Great Charter is intended to 
 provide this guarantee. It is 
 there said that the barons shall 
 elect twenty-five barons by their 
 
OF THE CONSTITUTION. 157 
 
 writings delivered unto us by our English subjects, as 
 securities for their keeping the peace, and yielding us 
 faithful service. 50. We will entirely remove from our 
 baihwicks the relations of Gerard de Atheyes, so that for 
 the future they shall have no bailiwick in England ; we 
 will also remove Engelard de Cygony, Andrew Peter, and 
 Gyon, from the Chancery ; Gyon de Cygony, Geoffrey de 
 Martyn and his brothers; Phihp Mark, and his brothers, 
 and his nephew, Geoffrey, and their whole retinue. 51. As 
 soon as peace is restored, we will send out of the kingdom 
 all foreign soldiers, cross-bowmen, and stipendiaries, who 
 are come with horses and arms to the prejudice of our 
 people. 52. If any one has been dispossessed or deprived 
 by us, without the legal judgment of his peers, of his 
 lands, castles, liberties, or right, we will forthwith restore 
 them to him ; and if any dispute arise upon this head, let 
 the matter be decided by the five- and- twenty barons here- 
 after mentioned, for the preservation of the peace. As 
 for all those things of which any person has, without the 
 legal judgment of his peers, been dispossessed or de- 
 prived, either by King Hem7 our father, or our brother 
 
 own free choice, charged to ex- accede to their demand, the 
 
 ercise all vigilance that the pro- barons shall have the right, 
 
 visions of the Charter may be forty days after the summons 
 
 carried into effect ; the powers has been issued by them, to 
 
 of these twenty-five barons are prosecute the king, to deprive 
 
 unlimited. If the king or his him of his lands and castles 
 
 agents allow themselves to vio- (the safety of his person, of the 
 
 late the enactments of the queen, and of their children, 
 
 Charter in the smallest parti- being respected) until the abuse 
 
 cular, the barons will denounce has been reformed to the satis- 
 
 this abuse before the king, and faction of the barons." He points 
 
 demand that it be instantly out also the effect of this in cen- 
 
 checked. If the king do not tralizing the council of barons. 
 
158 RISE AND PROGRESS 
 
 King Eichard, and which we have in our hands, or are 
 possessed by others, and we are bound to warrant and 
 make good, we shall have a respite till the term usually 
 allowed the crusaders; excepting those things about 
 which there is a plea depending, or whereof an inquest 
 hath been made, by our order, before we undertook the 
 crusade, but when we return from our pilgrimage, or if 
 perchance we tarry at home and do not make our pilgrim- 
 age, we will immediately cause full justice to be adminis- 
 tered therein. 53. The same respite we shall have (and 
 in the same manner about administering justice, dis- 
 afforesting the forests, or letting them continue) for dis- 
 afforesting the forests, which Henry our father, and our 
 brother Eichard have afforested ; and for the keeping of 
 the lands which are in another's fee, in the same manner 
 as we have hitherto enjoyed those wardships, by reason of 
 a fee held of us by knight's service ; and for the abbeys 
 founded in any other fee than our own, in which the lord 
 of the fee says he has a right ; and when we return from 
 our pilgrimage, or if we tarry at home, and do not make 
 our pilgrimage, we will immediately do full justice to all 
 the complainants in this behalf. 64. No man shall be 
 taken or imprisoned upon the appeal * of a woman, for 
 
 * An appeal, in the sense tion by a private subject against 
 
 wherein it is here used, does not another for some heinous crime, 
 
 signify any complaint to a supe- demanding punishment on ac- 
 
 rior court of an injustice done count of the particular injury 
 
 by an inferior one, which is the suffered, rather than for the of- 
 
 general use of the word ; but it fence against the pubHc. 
 
 here means an origiTial suit at This private process for the 
 
 the time of its first commence- punishment of public crimes 
 
 ment. An appeal, therefore, had probably its origin in those 
 
 when spoken of as a criminal times when a private pecuniary 
 
 prosecution, denotes an accusa- satisfaction, called a weregild. 
 
OF THE CONSTITUTION. 
 
 159 
 
 the death of any other than her hushand. 55. All unjust 
 and illegal fines made with us, and all amerciaments im- 
 posed unjustly and contrary to the law of the land, shall 
 be entirely forgiven, or else be left to the decision of the 
 five- and- twenty barons hereafter mentioned for the pre- 
 
 was constantly paid to the party 
 injured, or his relative, to ex- 
 piate enormous offences. As 
 therefore during the continu- 
 ance of this custom a process 
 •was certainly given for recover- 
 ing the weregild by the party 
 to whom it was due, it seems 
 that when these offences by de- 
 grees grew no longer redeem- 
 able, the private process was 
 still continued, in order to in- 
 sure the infliction of punishment 
 upon the offender, though the 
 party injured was allowed no 
 pecuniary compensation for the 
 offence.— 4 Bl. Com., 312. 
 
 An appeal of felony might 
 have been brought for crimes 
 committed either against the 
 parties themselves or their re- 
 lations. The crimes against the 
 parties themselves were larceny, 
 rape, and arson, and for these, 
 as well as for mayhem, the per- 
 sons robbed, ravished, maimed, 
 or whose houses were burnt, 
 might have instituted this pri- 
 vate process. The only crime 
 against one's relation for which 
 an appeal could be brought was 
 that of hilling him by either 
 murder or manslaughter. But 
 this could not be brought by 
 
 every relation, but only by the 
 wife for the death of her hus- 
 band, or by the heir male for 
 the death of his ancestor, which 
 heirship was also confirmed by 
 an ordinance of King Henry the 
 First to the four nearest degrees 
 of blood. It was given to the 
 wife on account of the loss of 
 her husband ; therefore, if she 
 married again before or pending 
 her appeal, it was lost and gone ; 
 or if she married after judgment, 
 she could not demand execution. 
 The heir must also have been 
 heir male, and such a one as 
 was the next heir by the course 
 of the common law at the time 
 of the killing of the ancestor. 
 But this rule had three excep- 
 tions : first, if the person killed 
 left an innocent wife, she only, 
 and not the heir, could have the 
 appeal ; secondly, if there were 
 no wife, and the heir were ac- 
 cused of the murder, the person 
 who next to him would have 
 been heir male should have 
 brought the appeal ; thirdly, if 
 the wife killed her husband, the 
 heir might appeal her of the 
 death. — See further 4 Bl. Com., 
 315. 
 
160 RISE AND PROGRESS 
 
 servation of the peace, or of the major part of them, 
 together with the aforesaid Stephen, archbishop of Can- 
 terbury, if he can be present, and others whom he shall 
 think fit to take along with him; and if he cannot be 
 present, the business shall notwithstanding go on without 
 him ; but so that if one or more of the aforesaid five-and- 
 twenty barons be plaintiffs in the same cause, they shall 
 be set aside as to what concerns this particular affair, and 
 others be chosen in their room, out of the said five-and- 
 twenty, and sworn by the rest to decide the matter. 
 56. If we have disseised or dispossessed the Welsh, of 
 any lands, liberties, or other things, without the legal 
 judgment of their peers, either in England or in Wales, 
 they shall be immediately restored to them ; and if any 
 dispute arise upon this head, the matter shall be deter- 
 mined in the marche by the judgment of their peers; for 
 tenements in England according to the law of England, 
 for tenements in Wales according to the law of Wales, 
 for tenements of the marche according to the law of the 
 marche ; the same shall the Welsh do to us and our sub- 
 jects. 57. As for all those things of which a Welshman 
 hath, without the legal judgment of his peers, been dis- 
 seised or deprived of by King Henry our father, or our 
 brother King Eichard, and which we either have in our 
 hands, or others are possessed of, and we are obliged to 
 warrant it, we shall have a respite till the time generally 
 allowed the crusaders; excepting those things about 
 which a suit is depending, or whereof an inquest has 
 been made by our order, before we undertook the crusade : 
 but when we return, or if we stay at home without per- 
 forming our pilgrimage, we will immediately do them full 
 justice, according to the laws of the Welsh and of the 
 parts before mentioned. 58. We will without delay dis- 
 
 I 
 
OF THE CONSTITUTION. 161 
 
 miss the son of Llewellin, and all the Welsh hostages, 
 and release them from the engagements they have entered 
 into with us for the preservation of the peace. 59. We 
 will treat with Alexander, King of Scots, concerning the 
 restoring his sisters and hostages, and his right and 
 hberties, in the same form and manner as we shall do to 
 the rest of our barons of England ; unless by the charters 
 which we have from his father, Wilham, late Ejng of 
 Scots, it ought to be otherwise ; and this shall be left to 
 the determination of his peers in our court. 60. All the 
 aforesaid customs and liberties, which we have granted to 
 be holden in our kingdom, as much as it belongs to us, 
 towards our people of our kingdom, as well clergy as 
 laity shall observe, as far as they are concerned, towards 
 their dependents. 61. And whereas, for the honour of 
 God and the amendment of our kingdom, and for the 
 better quieting the discord that has arisen between us and 
 our barons, we have granted all these things aforesaid ; 
 wilhng to render them firm and lasting, we do give and 
 grant our subjects the under- written security, namely, 
 that the barons may choose five-and- twenty barons* of 
 the kingdom, whom they think convenient; who shall 
 take care with all their might, to hold and observe, and 
 cause to be observed, the peace and liberties we have 
 granted them, and by this our present charter confirmed ; 
 so that if we, our justiciary, our bailiffs, or any of our 
 officers, shall in any circumstance fail in the performance 
 of them, towards any person, or shall break through any 
 of these articles of peace and security, and the offence 
 be notified to four barons chosen out of the five-and- 
 twenty before mentioned, the said four barons shall repair 
 
 * See note at p. 156, mpra. 
 
162 RISE AND PROGRESS 
 
 to US, or our justiciary, if we are out of the realm, and, 
 laying open the grievance, shall petition to have it re- 
 dressed without delay : and if it be not redressed by us, 
 or if we should chance to be out of the realm, if it should 
 not be redressed by our justiciary, within forty days, 
 reckoning from the time it has been notified to us, or to 
 our justiciary (if we should be out of the realm,) the 
 four barons aforesaid shall lay the cause before the rest 
 of the five-and-twenty barons; and the said five-and- 
 twenty barons, together with the community of the whole 
 kingdom, shall distrain and distress us all the ways pos- 
 sible, by seizing our castles, lands, possessions, and in any 
 other manner they can, till the grievance is redressed ac- 
 cording to their pleasure; saving harmless our own 
 person, and the person of our queen and children ; and 
 when it is redressed, they shall obey us as before. And 
 any person whatsoever in the kingdom, may swear that 
 he will obey the orders of the five-and-twenty barons 
 aforesaid, in the execution of the premises ; and he will 
 distress us, jointly with them, to the utmost of his power; 
 and we give public and free liberty to any one that shall 
 please to swear to them, and never shall hinder any 
 person from taking the same oath. 62. As for all those 
 of our subjects who will not, of their own accord, swear 
 to join the five-and-twenty barons in distraining and dis- 
 tressing us, we will issue orders to make them take the 
 same oath as aforesaid. And if any one of the five-and- 
 twenty barons dies, or goes out of the kingdom, or is hin- 
 dered any other way from carrying the things aforesaid 
 into execution, the rest of the said five-and-twenty barons 
 may choose another in his room, at their discretion, who 
 shall be sworn in like manner as the rest. In all things 
 that are committed to the execution of these five-and- 
 
OF THE CONSTITUTION. 163 
 
 twenty barons, if, when they are all assembled together, 
 they should happen to disagree about any matter, and 
 some of them, when summoned, will not, or cannot, 
 come, whatever is agreed upon, or enjoined, by the major 
 part of those that are present, shall be reputed as firm 
 and valid as if all the five-and-twenty had given their 
 consent; and the aforesaid five-and-twenty shall swear, 
 that all the premises they shall faithfully observe, and 
 cause with all their power to be obseiTed. And we will 
 not, by ourselves, or by any other, procure anything 
 whereby any of these concessions and liberties may be 
 revoked or lessened ; and if any such thing be obtained, 
 let it be null and void ; neither shall we ever make use of 
 it, either by ourselves or any other. And all the ill will, 
 indignations, and rancours that have arisen between us 
 and our subjects, of the clergy and laity, firom the first 
 breaking out of the dissension between us, we do fully 
 remit and forgive : moreover all trespasses occasioned by 
 the said dissension, from Easter in the fifteenth year of 
 our reign, till the restoration of peace and tranquillity, 
 we hereby entirely remit to all, both clergy and laity, and 
 as far as in us lies do fully forgive. We have, moreover, 
 caused to be made for them the letters patent testimonial 
 of Stephen, lord archbishop of Canterbury, Henry, lord 
 archbishop of Dublin, and the bishops aforesaid, as also 
 of master Pandulph, for the security and concessions 
 aforesaid. 63. Wherefore we will and firmly enjoin, that 
 the Church of England be free, and that all the men in 
 our kingdom have and hold_ all the aforesaid liberties, 
 rights, and concessions, truly and peaceably, freely and 
 quietly, fully and wholly to themselves and their heirs, of 
 us and our heirs, in all things and places, for ever, as is 
 aforesaid. It is also sworn, as well on our part as on the 
 
164 RISE AND PROGRESS OF THE CONSTITUTION. 
 
 part of the barons, that all the things aforesaid shall he 
 ohserved hond fide and without evil suhtilty. Given 
 under our hand, in the presence of the witnesses above- 
 named, and many others, in the meadow called Kuning- 
 mede, between Windsor and Staines, the 15th day of 
 June, in the 17th year of our reign. 
 
CHAPTER XII. 
 
 Renewals of the Great Charter in Henry the Third's Reign. — The 
 Charter as confirmed by Edward I. and subsequent Kings. — The 
 Statute Confirmatio Cartarum. — All Taxation without consent of 
 Parliament made illegal. 
 
 John died soon after the grant of the Great Charter, 
 leaving England torn by civil war and foreign invasion, 
 both of which had been caused by his perfidy and 
 tyranny. The first act of the great Earl of Pembroke, 
 as Protector of the Kingdom on the accession of Henry 
 III., was to renew the Great Charter, but with several 
 changes, the most important of which was the omission 
 of the provisions concerning the manner and reason of 
 levying scutages. It assigned as a reason for the omis- 
 sion of this and other weighty matters, that the prelates 
 and barons had agreed to respite the consideration of 
 them till further deliberation could be had, when they 
 and such other things as pertained to the welfare of all 
 should be most fully reviewed and set right. The stipu- 
 lations in John's Charter, which were of a temporary 
 nature, and referred to the troops and allies of that king 
 and his barons respectively, were of course not copied 
 into Henry's Charters. And the provisions for empower- 
 ing the twenty-five chosen barons to redress violations of 
 the Charter were not renewed. A duplicate of the Charter 
 
166 RISE AND PROGRESS 
 
 was forthwith transmitted to Ireland, for the benefit of 
 the king's subjects there; and writs were sent to the 
 sheriffs of the several English counties, commanding 
 them to cause the Charter of Liberties to be publicly read 
 in full County Court, and to see that its ordinances were 
 fiilly observed within their several jurisdictions. In the 
 next year, after the Freuch Dauphin had been driven 
 out of the kingdom, and the malcontent English who had 
 fought under him had returned to their allegiance, the 
 Charter of Liberties was granted again, and was again 
 renewed by Henry in the ninth year of his reign, at which 
 same time the Charter of the Forest was granted, whereby 
 many of the most atrocious iniquities of the primitive 
 game-laws were redressed. The two Charters were five 
 times renewed between this period and Henry's death. 
 At some of these renewals temporary variations were in- 
 troduced; but it is in the form in which it was pro- 
 mulgated in the ninth year of Henry's reign that the 
 Great Charter was solemnly confirmed by his successor, 
 and in that form it appears at the head of our statute 
 book, where (as before mentioned) it is printed from the 
 inspeximus and confirmation of it by Edwai'd I. 
 
 iWagna Carta, 
 THE GREAT CHARTER, 
 
 (translated as in the statutes at large,) 
 
 MADE IN THE NINTH TEAR OF KING HENRy THE THIRD, AND 
 CONFIRMED BY KING EDWARD THE FIRST, IN THE FIVE- 
 AND-TWENTIETH YEAR OF HIS REIGN. 
 
 EDWARD, by the grace of God King of England, Lord 
 of Ireland, and Duke of Guyan : to all archbishops, &c. We 
 
OF THE CONSTITUTION. 167 
 
 have seen the Great Charter of the Lord Henry, sometimes 
 King of England, our Father, of the Liberties of England, 
 in these words : 
 
 " Henry, by the grace of God King of England, Lord of 
 Ireland, Duke of Normandy and Guyan, and Earl of Anjou : 
 To all archbishops, bishops, abbots, priors, earls, barons, 
 sheriffs, provosts, and officers, and to all bailiffs and other our 
 faithful subjects, which shall see this present Charter, greet- 
 ing : Know ye that We, unto the honour of Almighty God, 
 and for the salvation of the souls of our progenitors and suc- 
 cessors, kings of England, to the advancement of Holy 
 Church and amendment of our realm, of our mere and free 
 will have given and granted to all archbishops, bishops, abbots, 
 priors, earls, barons, and to all freemen of this our realm, 
 these liberties following, to be kept in our kingdom of England 
 for ever." 
 
 CHAPTER I. 
 A Confirmation of Liberties. 
 
 " First, we have granted to God, and by this our present 
 Charter have confirmed for us and our heirs for ever, that the 
 Church of England shall be free, and shall have all her whole 
 rights and liberties inviolable. We have granted also, and 
 given to all the freemen of our realm, for us and our heirs for 
 ever, these liberties under-written, to have and to hold to 
 them and their heirs, of us and our heirs for ever." 
 
 CHAPTER 11. 
 
 The Relief of the King's Tenant of full Age. 
 
 [Same as 2nd Chapter of John's Charter.] 
 
 CHAPTER III. 
 
 The Wardship of the Heir within Age. The Heir a Knight. 
 
 [iSimilar to 3rd Chapter of John's Charter.] 
 
 CHAPTER IV. 
 
 No waste shall he made by a Guardian in waste lands. 
 [Same as 4th Chapter of John's Charter.] 
 
1 
 
 168 RISE AND PROGRESS 
 
 CHAPTER V. 
 
 Guardians shall maintain the Inheritance of Wards. 
 Of Bishoprics, dc. 
 [Similar to 5tli Chapter of John's Charter, with addition of 
 like provisions against the waste of ecclesiastical possessions 
 while in the king's hand during a vacancy in the see, &c.] 
 
 CHAPTER VI. 
 
 Heirs shall he Married without Disparagement. 
 [Similar to 6th Chapter of John's Charter.] 
 
 CHAPTER VII. 
 A Widow shall have her Marriage, Inheritance and Quarantine. 
 
 The King's Widow, dc. 
 
 [Similar (with additions) to the 7th and 8th Chapters of 
 
 John's Charter.] 
 
 CHAPTER VIII. 
 
 How Sureties shall be charged to the King. 
 [Same as 9th Chapter of John's Charter.] 
 
 CHAPTER IX. 
 
 The Liberties of London and other Cities and Towns confirmed. 
 
 [Same as 13th Chapter of John's Charter.] 
 
 CHAPTER X. 
 
 None shall distrain for more Service than is due. 
 [Same as 16th Chapter of John's Charter.] 
 
 CHAPTER XI. 
 
 Common Pleas shall not follow the King's Court. 
 
 [Same as 17th Chapter of John's Charter.] 
 
 CHAPTERS XII. AND XIII. 
 
 When and before whom Assizes shall be taken. Adjournment 
 
 for Difficulty. Assizes of Darrein Presentment. 
 
 [Analogous to 18th and 19th Chapters of John's Charter.] 
 
 ■ 
 
OF THE CONSTITUTION. 169 
 
 CHAPTER XIV. 
 How Men of all sorts shall be amerced, and by whom. 
 [Same as 20th aud 21st Chapters of John's Charter.] 
 
 CHAPTERS XV. and XVI. 
 Making and defending of Bridges and Banks. 
 [Similar to 23rd Chapter of John's Charter.] 
 
 CHAPTER XVII. 
 
 Holding Fleas of the Crown. 
 
 [Same as 24th Chapter of John's Charter.] 
 
 CHAPTER XVIII. 
 
 The King's Debtor dying, the King shall be first paid. 
 
 [Same as 26th Chapter of John's Charter.] 
 
 CHAPTERS XIX., XX., and XXI. 
 
 Purveyors for a Castle. Doing of Castle-ward. Taking of 
 
 Horses, Carts, and Woods. 
 
 [Same as 28th, 29th, 30th, and 31st Chapters of John's 
 
 Charter.] 
 
 CHAPTER XXII. 
 
 How long Felons' Land shall be holden by the King. 
 
 [Same as 32nd Chapter of John's Charter.] 
 
 CHAPTER XXIII. 
 
 In what places Wears shall be -put down. 
 
 [Same as 33rd Chapter of John's Charter.] 
 
 CHAPTER XXIV. 
 
 In what case a Pracipe in Capite is grantable. 
 
 [Same as 14th Chapter of John's Charter.] 
 
 CHAPTER XXV. 
 
 There shall be but one Measure through the Realm. 
 
 [Same as 35th Chapter of John's Charter.] 
 
 CHAPTER XXVI. 
 
 Inquisition of Life and Member. 
 
 [Same as 38th Chapter of John's Charter.] 
 
 I 
 
170 KISE AND PROGRESS 
 
 CHAPTER XXVII. 
 
 Tenure of the King in Socage, and of another by Knight's, 
 
 Service. Petit Serjeanty. 
 
 [Same as 37th Chapter of John's Charter.] 
 
 CHAPTER XXVIII. 
 
 Wager of Law shall not he without witness. 
 [Same as 38th Chapter of John's Charter.] 
 
 CHAPTER XXIX. 
 None shall he condemned without Trial. Justice shall not be 
 sold or deferred.^ 
 *' No freeman shall be taken, or imprisoned, or be disseised 
 of his freehold, or liberties, or free customs, or be outlawed or 
 exiled, or any otherwise destroyed ; nor will we pass upon 
 him, nor condemn him, but by lawfull judgement of his peers, 
 or by the law of the land. We will sell to no man, we will 
 not deny or defer to any man, either justice or right." 
 
 CHAPTER XXX. 
 Merchant Strangers coming into this Realm shall be well used. 
 [Same as 41st Chapter of John's Charter.] 
 
 CHAPTER XXXI. 
 
 Tenure of a Barony coming into the King's hands by Escheat. 
 
 [Same as 43rd Chapter of John's Charter.] 
 
 CHAPTER XXXII. 
 Lands shall not be Aliened to the Prejudice of the Lord's 
 Service [i. e. Lord of the Fee]. 
 
 CHAPTER XXXIII. 
 Patrons of Abbeys shall have the custody of them in time of 
 Vacation. 
 [Same as 46th Chapter of John's Charter.] 
 
 I 
 
 * See 39th and 40th chapters p. 148, supra. 
 of John's Charter, and notes at 
 
OF THE CONSTITUTION. 171 
 
 CHAPTER XXXIV. 
 
 In what cases only a Woman sliall have an Appeal of Death. 
 [Same as 51st Chapter of John's Charter.] 
 
 CHAPTER XXXV. 
 At what time shall he kept a County Court, a Sheriff's Tourn, \ 
 and a Leet. 
 " No county court shall from henceforth be holden but 
 from month to month : and where a greater term has been 
 used, it shall be greater. Neither shall any sherifiP or his 
 bailiff keep his tourn in the hundred but twice in the year ; 
 and nowhere but in due and accustomed place, that is to say, 
 once after Easter, and again after the Feast of Saint Michael. 
 And the view of frank-pledge shall be likewise at Saint 
 Michael's term, without occasion; so that every man may 
 have his liberties, which he had and was accustomed to have 
 in the time of King Henry our grandfather, or which he 
 hath purchased since. The view of frankpledge shall be 
 done so, that our peace may be kept, and that the tything be 
 wholly kept as it hath been accustomed ; and that the sheriff 
 seek no occasions, and that he be content with so much as 
 the sheriff was wont to have for his view-making, in the time 
 of King Henry our grandfather."* 
 
 * The sheriffs' tourn is (or courts leet were carved out of 
 
 rather was) the county court for the courts of the tourn, " for 
 
 criminal matters, and for the the ease of the people, that they 
 
 preservation of the peace ; and should have justice done them 
 
 that oflScer used to hold it in at their own doors." It is more 
 
 the respective hundreds of the probable that they are the 
 
 county by rotation. The courts original hundred courts of the 
 
 leet are minor local courts of Saxon times, though the area 
 
 the same character as that of of a manor often became the 
 
 the tourn, having the same area of their jurisdiction, in- 
 
 jurisdiction, but being limited stead of the old area of a hun- 
 
 to smaller districts. According dred. The right of holding a 
 
 to Lord Coke (2 Inst. 70), the court leet was often granted to 
 
 I 2 
 
172 
 
 RISE AND PROGRESS 
 
 CHAPTER XXXVI. 
 
 No Land shall be given in Mortmain. * 
 
 " It shall not be lawful from thenceforth to any to give his 
 
 lands to any religious house, and to take the same land again 
 
 the lord of a manor, partly for 
 the benefit of his tenants, re- 
 sident in the manor, and partly 
 for the benefit of the lord him- 
 self ; who, besides the judicial 
 authority and dignity which he 
 gained, derived pecuniary ad- 
 vantages from the fines and fees 
 of court; generally also when 
 the leet continued to be held for 
 a particular hundred, some 
 neighbouring lord received from 
 the Crown the right of presiding 
 in it personally, or by his 
 steward. The criminal juris- 
 diction both of the tourn and 
 the leet was reduced within 
 very narrow limits after the 
 24th clause of the Great Charter 
 (see supra, p. 139) respecting the 
 holding pleas of the Crown. 
 But these courts still continued 
 to be of practical importance 
 in many matters of local self- 
 government. Besides the im- 
 portant duty of the view of 
 frankpledge (see supra, p. 48), 
 the assembled inquest or jury 
 of the leet inquired and made 
 presentments respecting persons 
 of notorious evil fame ; respect- 
 ing cheats, especially with re- 
 gard to the vendors of unwhole- 
 some provisions ; respecting 
 escapes from prisons, breaches of 
 
 the peace, public nuisances, and 
 many other subjects. The court 
 leet (or tourn) could impose a 
 fine or amerciament on any per- 
 son who was presented as an 
 offender in any of these respects, 
 and such fine or amerciament 
 could be levied by distress. 
 Headboroughs or constables for 
 the hundred were also chosen 
 at the court leet, and many 
 other local oflicers. The tourn 
 had become obsolete before Lord 
 Coke's time. Courts leet are 
 still held for the appointment 
 of constables in some hundreds, 
 but they practically exercise no 
 other functions. For further 
 information as to these courts, 
 see Coke's second "Institute," 
 p. 69. Scriven on "Copyholds," 
 vol. ii., and Comyns's " Digest," 
 title Leet. With regard to the 
 local criminal jurisdiction ex- 
 ercised in particular places in 
 England by special charter or 
 usage, see an excellent note in 
 the second volume of Hallam's 
 "Middle Ages," p. 347. 
 
 * Alienation in mortmain, in 
 mortica manu, is an alienation 
 of lands or tenements to any 
 corporation, sole or aggregate, 
 ecclesiastical or temporal. But 
 these purchases having been 
 
 d 
 
OF THE CONSTITUTION. 173 
 
 to hold of the same house. Nor shall it be la^vful to any 
 house of religion to take the lands of any, and to lease the 
 same to him of whom he received it : if any from henceforth 
 give his lands to any religious house, and thereupon be con- 
 vict, the gift shall be utterly void, and the land shall accrue 
 to the lord of the fee." 
 
 CHAPTER XXXVII. 
 
 A Subsidy in Bespect of this Charter and the Charter of the 
 Forest, granted to the King, 
 •* Escuage from henceforth shall be taken like as it was 
 wont to be in the time of King Henry our grandfather ; re- 
 serving to all archbishops, bishops, abbots, priors, tempilars, 
 hospitalers, earls, barons, and all persons as well spiritual as 
 temporal, all their free liberties and free customs, which they 
 have had in time passed. And all these customs and liberties 
 aforesaid, which we have granted to be holden within this our 
 realm, as much as appertaineth to us and our heirs, we shall 
 observe. And all men of this our realm, as well spiritual as 
 temporal (as much as in them is), shall observe the same 
 against all persons in like wise. And for this our gift and 
 grant of these liberties, and of other contained in our Charter 
 of liberties of our forest, the archbishops, bisljops, abbots, 
 priors, earls, barons, knights, freeholders, and other our sub- 
 jects, have given unto us the fifteenth part of all their move- 
 ables. And we have granted unto them, for us and our heirs, 
 that neither we nor our heirs shall procure or do anything, 
 whereby the liberties in this Charter contained shall be in- 
 fringed or broken. And if anything be procured by any per- 
 
 chiefly made by religious houses, plied to such alienations, and 
 
 in consequence whereof the the religious houses themselves 
 
 lands became perpetually in- to be principally considered in 
 
 herent in one dead hand, this forming the statutes of mort- 
 
 hath occasioned the general ap- main. — See 2 Bl. Com. 268. 
 pellation of mortmain to be ap- 
 
174 RISE AND PROGRESS 
 
 son contrary to the premises, it shall be had of no force nor 
 effect. These being witnesses, Lord B. Archbishop of Can- ; 
 terburj, E. Bishop of London, I. Bishop of Bath, P. of ■I 
 Winchester, H. of Lincoln, K. of Salisbury, W. of Eochester, ' 
 W. of Worcester, J. of Ely, H. of Hereford, K. of Chiches- 
 ter, W. of Exeter, Bishops : the Abbot of St. Edmonds, the 
 Abbot of St. Albans, the Abbot of Bello, the Abbot of St. 
 Augustines in Canterbury, the Abbot of Evesham, the Abbot 
 of Westminster, the Abbot of Bourgh St. Peter, the Abbot 
 of Eeding, the Abbot of Abindon, the Abbot of Malmsbury, 
 the Abbot of Winchcomb, the Abbot of Hyde, the Abbot of 
 Certesy, the Abbot of Sherburn, the Abbot of Cerne, the 
 Abbot of Abbotebir, the Abbot of Middleton, the Abbot of 
 Seleby, the Abbot of Cirencester : H. de Burgh, Justice, H. 
 Earl of Chester and Lincoln, W. Earl of Salisbury, W. Earl 
 of Warren, G. de Clare Earl of Gloucester and Hereford, 
 W. de Ferrars Earl of Derby, W. de Mandeville Earl of ■ 
 Essex, H. de Bygod Earl of Norfolk, W. Earl of Albemarle, 
 H. Earl of Hereford, J. Constable of Chester, R. de Ros, R. 
 Fitzwalter, R. de Vyponte, W. de Bruer, R. de Muntefichet, 
 P. Fitzherbert, W. de Aubenie, J. Gresly, F. de Breus, J. de 
 Monemue, J. Fitzallen, H. de Mortimer, W. de Beauchamp, 
 W. de St. John, P. de Mauly, Brian de Lisle, Thomas de 
 Multon, R. de Argenteyn, G. de Nevil, W. Mauduit, J. de 
 Balun, and others." 
 
 " We, ratifying and approving these gifts and grants afore- 
 said, confirm and make strong all the same for us and our 
 heirs perpetually; and by the tenor of these presents do 
 renew the same, willing and granting for us and our heirs, 
 that this Charter, and all and singular its articles for ever 
 shall be stedfastly, firmly, and inviolably observed. Although 
 some articles in the same Charter contained yet hitherto 
 peradventure have not been kept, we will, and, by authority 
 royal, command, from henceforth firmly they be observed. 
 In witness whereof we have caused these our letters patent 
 
 d 
 

 OF THE CONSTITUTION. X75 
 
 to be made. Witness Edward, our Son, at Westminster, the 
 twelfth day of October, in the twenty-fifth year of our reign." 
 
 Magna Carta, in this form, has been solemnly con- 
 firmed by our kings and parliaments upwards of thirty 
 times; but in the twenty-fifth year of Edward I. much 
 more than a simple confiiTnation of it was obtained for 
 England. As has been already mentioned, the original 
 Charter of John forbad the levying of escuage save by 
 consent of the Great Council of the land ; and although 
 those important provisions were not repeated in Henry's 
 Charter, it is certain that they were respected. Henry's 
 barons frequently refused him the subsidies which his 
 prodigaUty was always demanding. Neither he nor any 
 of his ministers seems ever to have claimed for the Crown 
 the prerogative of taxing the landholders at discretion : 
 but the sovereign's right of levying money from his towns 
 and cities under the name of tallages was constantly 
 exercised during Henry III.'s reign and during the earlier 
 portion of his son's. But, by the statute of Edward I., 
 intituled Conjirmatio Chartarum, all private property 
 was secured from royal spoliation and placed under the 
 safeguard of the great council of all the realm. 
 
 King Edward had committed several violent and arbi- 
 trary measures in order to raise the moneys which his 
 wars required. The details of these transactions will be 
 found in Guizot's "History of Representative Govern- 
 ment," and in Blackstone's " Introduction to the Charter," 
 as well as in the regular Histories of England. Providen- 
 tially for this nation, wise and fearless patriots were still 
 to be found among our barons,* who led the national 
 
 * See Hallam's just eulogy Essex, vol. iii., "Hist. Mid. 
 on the earls of Hereford and Ages," p. 2, note. 
 
176 RISE AND PROGRESS 
 
 Opposition to these royal aggressions. But Edward, like 
 Elizabeth in after ages, was a prince of sagacity as well 
 as of spirit, and yielded to the popular feeling. * While he 
 was in Flanders, in 1297, his son (who presided as regent 
 in the English Parliament) passed, in the king's name, 
 the statute usually called " Confirmatio Chartarum," in 
 the then usual form of a charter. It was sent over to 
 King Edward, and signed by him at Ghent ;t and was 
 afterwards (after some attempts at evasion) solemnly 
 confirmed by him in a parliament held by himself in 
 person in the year 1300. 
 
 The material portions of this Statute, or Charter, are 
 as follows : — 
 
 "CONFIRMATIO CHARTARUM. 
 
 ANNO VICESIMO QUINTO EDV. I. 
 
 CAP. V. 
 
 " And for so much as divers people of our realm are in 
 fear that the aids and tasks which they have given to us 
 before time, towards our wars and other business, of their own 
 grant and good will (howsoever they were made), might turn 
 to a bondage to them and their heirs because they might be 
 at another time found in the rolls, and likewise for the prises 
 taken throughout the realm, in our name, by our ministers ; 
 we have granted for us and our heirs that we shall not draw 
 such aids, tasks, nor prises, into a custom for anything that 
 hath been done heretofore, be it by roll or any other prece- 
 dent that may be founden. 
 
 * "To know when to yield it is more than probable he 
 
 in government is at least as would govern a shop ill." — Bo- 
 
 necessary as to know when to linghroke. 
 lose in trade ; and he who can- t See Blackstone's " Intro- 
 
 not do the first, is so little likely duction," p. xcv. 
 to govern a kingdom well, that 
 
 I 
 
OF THE CONSTITUTION. 
 
 177 
 
 CAP. VI. 
 " Moreover, we have granted for us and our heirs, as well 
 to archbishops, bishops, abbots, priors, and other folk of holy- 
 church, as also to earls, barons, and to all the commonalty of 
 the land, that for no business from thenceforth we shall take 
 such manner of aids, tasks, nor prises, but by the common con- 
 sent of all* the realm, and for the common profit thereof, 
 saving the ancient aids and prises due and accustomed."! 
 
 * "Par commun assent de 
 tut le roiaume." The version 
 in our statute book omits the 
 important word " All." 
 
 t Lord Coke says the ancient 
 aids pour fie marier, &c. (see 
 mpraj p. 134), are here meant: 
 
 and the ancient takings or 
 seizures are here intended, such 
 as waifes, strays, the goods of 
 felons and outlaws, deodands, 
 and the like. — Second Institut. 
 p. 529. 
 
 I 3 
 
CHAPTER XIII. 
 
 The Principles of the Constitution traced in the Charter. — King- 
 ship in England. — Its powers and limitations. — Parliament. — 
 Origin of the House of Peers. — Of the two branches of the 
 House of Commons. — Trial by Jury. — Writ of Habeas Corpus. — 
 Origin and value of these Constitutional Rights. 
 
 Having now examined the text of Magna Carta and its 
 Supplement, we may pause and consider how far they re- 
 cognise or establish those great primary principles of our 
 constitution, which have been defined in the first chapter 
 of this work, and which may be conveniently repeated 
 here. 
 
 The government of the country by an hereditary sove- 
 reign, ruling with limited powers, and bound to summon 
 and consult a parliament comprising hereditary peers, and 
 elective representatives of the commons. 
 
 That the subject's money shall not be taken by the 
 sovereign, unless with the subject's consent, expressed by 
 his representatives in parliament. 
 
 That no man be arbitrarily fined or imprisoned, or in 
 any way punished, except after a lawful trial. 
 
 Trial by jury. 
 
 That justice shall not be sold or delayed. 
 
 In the first place, with regard to the government of the 
 country, the Great Charter and its supplements clearly 
 recognise the authority of an hereditary sovereign. The 
 
RISE AND PROGRESS OF THE CONSTITUTION. 179 
 
 repeated expressions in them of the king granting for 
 Jiimselfand his heirs the various popular privileges, which 
 they secure, are themselves sufficient to prove this. It 
 would not he difficult to trace in them definite proof of 
 the king's heing the fountain of honour,* of the king's 
 being the fountain of justice,* of the inviolability of the 
 royal person,* and of other admitted rules respecting 
 English royalty. But, without resorting to literal criti- 
 cism, no one can read the Charter without feehng per- 
 fectly certain that royalty is a fundamental portion, and 
 the primary governing power of our pohtical system. 
 Indeed, not only in England, but throughout Europe, 
 during the middle ages, the existence of a " permanent 
 suzerain, vested with large rights of a mixed personal 
 and proprietary character over his vassals, though subject 
 also to certain obligations towards them," was always 
 presumed as indispensably necessary for the existence of 
 political society, f " The rights of the chief were always 
 conceived as constituting a Status apart, and neither con- 
 ferred originally by the grant, nor revocable at the plea- 
 sure of those over whom they were exercised. This view 
 of the essential nature of political authority was a point 
 in which all the three great elements of modem European 
 society — the Teutonic, the Koman, % and the Christian, 
 
 * See sections 14, 39, 36, 45, an attentive perusal, 
 
 and 61 of John's Charter and % L e. the Imperial Roman, 
 
 notes in the last chapter. The influence of Republican 
 
 t See Grote's " History of Rome, when her history and 
 
 Greece," vol. iii., p. 13, et seq. ; literature were familiarized to 
 
 the reflections on the discon- Europe by the revival of clas- 
 
 tinuance of Kingship in Hellas, sical studies, was anything but 
 
 compared with its preservation monarchical, 
 in MedisBval Europe, deserve 
 
]80 RISE AND PROGRESS 
 
 all concurred, though each in a different way and with 
 different modifications." Thus in England we find the 
 nation constantly striving to regulate and temper, by 
 solemn compact and laws, the power of its royal chief, 
 but never attempting, in early times, to dispense with the 
 existence of a royal chief. Even when the oppressiveness 
 and proved perfidy of individual monarchs induced the 
 nation to take away practical power from them, and to 
 choose an executive board, who should rule in their name, 
 such provisions, however necessary, were always considered 
 and designed to be of a temporary nature. Nor even 
 when kings were solemnly deposed, as in the cases of the 
 second Edward and the second Kichard, was kingship 
 ever assailed. A new sovereign was instantly placed in 
 the room of the deposed one, in order that the nation 
 might not be deprived for a moment of the monarchical 
 head, that was reckoned politically indispensable. 
 
 The peaceable and undisputed accession of Edward I., 
 though he was far distant from England at the time of 
 the death of Henry III., established not only that the 
 crown was hereditary in the royal family, but also that it 
 was hereditary according to the principles of descent 
 which regulate a private inheritance. * 
 
 It appears with equal clearness from the Charter, that 
 the royal power which forms part of our constitution, is a 
 
 * The form of popular con- Such was the case till Edward 
 
 sent expressed at the coronation I.'s reign, which dated from the 
 
 was long considered necessary day (four days after Henry III.'s 
 
 to complete the royal title, death), when the barons swore 
 
 The heir to the throne had an fealty to him in his absncee, and 
 
 inchoate right immediately on his peace was proclaimed. — See 
 
 his predecessor's death, but his Hallani's Middle Ages^ vol. ii. 
 
 reign dated from his coronation, p. 342. 
 
OF THE CONSTITfJTION. 181 
 
 limited power. The king's council is adjoined to the 
 royal authority. The very charters purport in their pre- 
 ambles to be granted by the advice of the great spiritual 
 and lay councillors of the Crown. We shall have occa- 
 sion to consider the importance of this more fully, when 
 we examine the origin of our parliaments. But the great 
 principle which emphatically distinguishes a constitutional 
 from an absolute monarchy — the principle that the Crown 
 is subject to the law — requires our present attention, and 
 it is fully established by the Great Charter. A king, who 
 avows that he is bound to inflict no punishment, save ac- 
 cording to the law of the land, * and that he cannot, save 
 by the authority of the law, touch a freeman's property or 
 person, or control his freedom of action ; a king, who by 
 a public instrument surrenders all fines and amerciaments 
 which he has imposed contrary to the law of the land, f 
 completely admits the supremacy of law over royal power. 
 And in fact, although the government of our Anglo- 
 Norman kings was often extremely arbitrary, they never 
 were supposed, either by others or by themselves, to be 
 absolute irresponsible lords of the lives and properties of 
 their subjects, like the despots of the Eastern World. 
 But, though by common understanding the king was 
 bound to consult his great council before he made new 
 laws or exacted fresh taxes, and though the very essence 
 of feudalism involved a reciprocity of duties between lord 
 and vassal, the checks on royal caprice and royal oppres- 
 sion were always vague, and generally ineffectual before 
 the epoch of the Great Charter. From that time forward 
 the limitations of the royal prerogative were unmistak- 
 
 * Magna Carta, sec. 39, and f Sec. 55, supra, p. 159. 
 notes thereon, supra, p. 148. 
 
182 
 
 RISE AND PROGRESS 
 
 able and undeniable, and " Sub lege Eex " became a sure 
 constitutional maxim, though forensic sycophants in after 
 ages were sometimes found who whispered its converse. * 
 Next let us trace the great principle of the sovereign of 
 England being bound to summon and consult a parlia- 
 ment, comprising hereditary peers and elective represent- 
 atives of the commons. This important topic requires 
 consideration under several aspects. We must ascertain 
 first the existence of such a body as a great council of 
 the realm, or parliament ; and next examine of whom and 
 how it was composed. This will lead us to examine the 
 origin of each of the two Houses of Parliament ; and with 
 regard to the lower house, we shall have to trace sepa- 
 
 * See Hallam's " Middle 
 Ages," vol. ii. p. 431, for the 
 proofs found in Bracton, a judge 
 at the end of Henry III.'s 
 reign, of the limitations of 
 prerogative by law. " The 
 king can do nothing but what 
 he can do by law," &c. See, 
 also, Guizot on " Representative 
 Government," part 2, lect. 1, 
 ad fin. The volume of " Ancient 
 English Political Songs," pub- 
 lished by the Camden Society, 
 also gives good proof of how 
 the clergy and educated part of 
 the laity in the 13th century 
 reasoned on this topic. The 
 fine poem on the barons' war, 
 in Henry III.'s reign, (which 
 must have been written after 
 the battle of Lewes, 1264, be- 
 fore the battle of Evesham, 
 1265,) contains many spirited 
 passages as to the necessary re- 
 
 strictions of royal power. The 
 patriotic poet says : " It is a 
 vulgar error to assert that the 
 course of law depends on the 
 king's will. The truth is the 
 reverse ; for the king may fail, 
 but the law stands firm. The 
 law rules even the royal dignity. 
 Dicitur vulgariter ut rex vult, 
 
 lex vadit, 
 Veritas vult aliter j nam lex 
 
 stat, rex cadit. 
 
 regis 
 
 Legem quoque dicimus 
 
 dignitatem 
 Regere, <fec." 
 
 An excellent condensation of 
 the best passages of this re- 
 markable poem will be found in 
 M. Blaauw's " History of the 
 Barons' War," one of the best 
 historical monographs that we 
 
OF THE CONSTITUTION. 188 
 
 rately the growth of its two branches, its knights of the 
 shire, and its representatives of cities and boroughs. 
 Together with the general principle of the authority of 
 parliament, and its composition, we may conveniently 
 consider the special maxim relating to taxation, — the 
 maxim that the subject's money shall not be taken by the 
 sovereign, unless with the subject's consent, expressed by 
 his representatives in parliament. yN^ 
 
 Among all the nations of the Gothic stock, whether of- 
 its Scandinavian or of its Teutonic branch, and in all the 
 kingdoms founded by them out of conquered Roman 
 provinces, councils or assembhes of some form existed, 
 whose consent the ruling cliief was bound to obtain, in 
 order to legahze all important measures of State. We 
 have already drawn attention to the assemblies of the 
 principes, and the general assemblies of freemen among 
 the primitive Germans, * and to the Tings of the primi- 
 tive Danes, f The student may also here usefully refer 
 to what has been said respecting the witenagemotes of the 
 Anglo-Saxons. I At least he must bear in mind that it 
 was only with the sanction of this witan that an Anglo- 
 Saxon king could make new laws or impose new taxes ; 
 that the prelates and the great nobles and thanes attended 
 these assemblies ; and that the inferior class, the ceorls, 
 though not directly represented there, yet were not with- 
 out protectors and advocates ; inasmuch as certain of the 
 magistrates whom the men of every borough and town- 
 ship regularly elected from among themselves for the pur- 
 pose of local self-government, might be present at the 
 mtan for the purpose of obtaining redress for any wrong 
 
 * See supray p. 18. % Chapter iv. supra, p. 61. 
 
 i See su^pra, p. 37. 
 
184 RISE AND PROGRESS 
 
 which might have heen committed, and for the redress of 
 which the ordinary tribunals were inadequate. When 
 once present at the witan, though ostensibly only for the 
 purpose of remedial justice, the ceorl magistrates must 
 have had some influence in other matters also : inasmuch 
 as the cheerful co-operation of the bulk of the community 
 in carrying any particular measure into effect, never can 
 be thought immaterial, even by those who have the power 
 of enforcing sullen obedience. The Anglo-Saxon pohty 
 was overthrown by the conquering Normans ; but the re- 
 collection of this virtual though indirect system of repre- 
 sentation, must have survived among the bulk of the 
 population ; and may have greatly facihtated the adoption ■ 
 and insured the good working of the subsequent parlia- 
 mentary representation of the commons. 
 
 It has also been pointed out * that though we have no 
 authority for minute details of the pohty of the Normans 
 in Normandy, prior to the conquest of this country by 
 Duke Wilham, thus much is certain, that there was a 
 council of the Norman barons which the dukes were 
 obliged on all important occasions to summon and con- 
 sult. It was not likely that they, by whose help Wilham 
 won the crown of this country, and to whom he parcelled 
 out its lands as rewards, would consent to forego in their 
 new abodes the poHtical rights which they had enjoyed in 
 their old homes across the Channel. The Anglo-Norman 
 king summoned and consulted his Great Council, as he 
 had done while merely a Norman duke, f All who held 
 land by mihtary tenure immediately of the Crown, had a 
 
 * See supra, p. 59. p. 4, et seq. Guizot on " Repre- 
 
 t See Hallam's " Middle sentative Government," part ii. 
 Ages," vol. ii. p. 319, and vol. iii. lect. 4. » 
 
 3 
 
OF THE CONSTITUTION. 185 
 
 right to attend, and were expected to attend the king's 
 court on the solemn days of council, and all these were 
 originally styled the king's barons. * Besides these, the 
 prelates, and the heads of the chief abbeys and priories 
 formed here, as in every country of Christendom, an 
 essential part of the Great Council. No other per- 
 sons of any class whatever had the right to appear there 
 either in person, or by any sort of representative, to take 
 part in the proceedings; though petitioners for justice 
 still flocked thither, as to the highest court of the realm. 
 Many among the large number of the tenants-in-chief, 
 by reason of their comparative poverty, the distance of 
 their estates from the cities where the Council was usually 
 convened, and other causes, soon ceased to attend or to 
 be expected to attend as regularly as the more powerful 
 and wealthy nobles. These last were soon termed the 
 greater barons, and ultimately, the titles of " peer " and 
 " baron," which had first been common to all the king's 
 immediate tenants, were, in speaking of the kingdom 
 generally, exclusively applied to the heads of a few great 
 houses, who, largely endowed with lands, and constant 
 members of the Great Council, were clearly distinguish- 
 able in rank and in circumstances from the mass of the 
 inferior tenants-in- chief. Traces of the distinction ap- 
 pear earher than John's reign, but in that king's Great 
 Charter the line is drawn decisively and broadly between 
 these two bodies, which we may safely call, in modem 
 phraseology, the nobihty and the gentry of the realm. 
 By the 14th chapter of John's Charter, the king binds 
 himself in order to constitute the general council for 
 the grant of pecuniary aids, that it shall be summoned 
 
 V*^ 
 
 e Hallam's " Middle Ages," vol. iii. p. 6, et seq. 
 
186 RISE AND PROGRESS 
 
 thus — " We shall cause the archhishops, bishops, abbots, 
 earls* and greater barons to be separately summoned by 
 our letters. And we shall cause our sheriffs and bailiffs 
 to summon generally all others who hold of us in chief." 
 With respect to the spiritual peers no particular com- 
 ment here is necessary. We principally direct our atten- 
 tion to the origin of the temporal peers. Altogether we 
 see in the words of the Charter, which have just been 
 \ quoted, the clear original of our upper House of Parlia- 
 j ment, consisting of lords spiritual and temporal. And, 
 • as the temporal peerage was thus a body originally com- 
 posed of the most powerful landowners in the kingdom, 
 it naturally became an hereditary peerage without any ex- 
 press enactment to that effect. This will appear clear, if 
 we call to mind that the power of devising real estates 
 did not exist for many ages after the grant of the Great 
 Charter; and, although ahenation with the consent of the 
 lord, and upon paying him a fine, was permitted by law, 
 the entire transfer of large estates by such means could 
 seldom or never have occurred, for the simple and obvious 
 reason, that there were no wealthy capitahsts to come for- 
 ward, and buy the whole lands of a mighty but impo- 
 verished baron at a single bargain. As, therefore, the 
 estates of the great barons descended generally fi-om heir 
 to heir, and as each heir on coming into possession had 
 the same right as his predecessor to be treated as a great 
 baron of the realm, the idea of hereditary descent became 
 gradually associated with the status of a peer. And this 
 
 * The title "Earl," under the distinction. The title of duke 
 
 first Anglo-Norman kings, meant was first granted to a peer in Ed- 
 
 that its holder was governor of ward III.'s reign ; that of mar- 
 
 a county or province. By de- quess in Richard II. ; that of 
 
 grees it became a mere titular viscount in Henry VI. 
 
OF THE CONSTITUTION. 187 
 
 theory of the descent of peerage at last prevailed so far 
 as to be extended to a new species of peers : to men who 
 held no baronial possessions, but whom our kings sum- 
 moned by writ to meet and consult among the prelates, 
 the magnates, and the chief men of the realm. This 
 mode of creating peers by writ is said to have been first 
 practised in Edward I.'s reign; and it appears to have 
 been established as early as Eichard II.'s reign, that such 
 a writ of summons to parHament, and the fact of having 
 sat there by virtue of such a writ, gave an hereditary 
 right to the descendants of the person so summoned. 
 The modern form of the sovereign creating a peer by 
 letters patent dates from the reign of Richard II. By 
 an almost invariable usage, the letters patent creating a 
 peer, direct its hereditary descent. Whether in default 
 of such words the peerage would be only a peerage for 
 life, and whether it is in the power of the Crown to grant 
 a peerage that shall not be hereditary, are interesting 
 questions on which high authorities difier.* 
 
 We next come to the rise and progress of our Com- 
 mons House of Parliament ; and it will be convenient to 
 deal separately with its two branches — the knights of the 
 shire and the borough members. 
 
 The 14th clause of the Great Charter, after providing 
 that the prelates and great barons shall be summoned 
 individually, ordains that the king shall, by his sheriffs 
 and bailiffs, summon generally all others who hold of the 
 king in chief There is notliing said here about any two 
 or any other number in each county being elected to sit 
 
 * See Bowyer's " Commen- peerage, " Hallam's Middle 
 
 taries on the Constitutional Law Ages," vol. iii. p. 123, and sup- 
 
 of England," p. 461 ; and see plemental note at p. 234. 
 generally, as to the early English 
 
188 RISE AND PROGRESS 
 
 as representatives of the rest. But if we can satisfy our- \ 
 selves that the idea and the practice of representation 
 were at this period becoming familiar to the English, we 
 can readily understand that the practice of representation 
 in this instance also might be tacitly annexed to this pro- 
 vision of the Great Charter; and, then, if we consider 
 that, by virtue of the 14th clause, the mass of inferior 
 tenants-in-chief in each county would, at the summons of 
 their sheriff, elect certain individuals of their body to 
 represent them in the Great Council of the realm, we see 
 a clear recognition of that part of the supreme assembly 
 which now consists of the county members of the House 
 of Commons, and we find the principle of representation 
 also. 
 
 From the very first establishment of the Normans in 
 this country we find traces of the representative system. 
 The causes why this system of government was so seldom 
 and so unsuccessfully attempted by the classic States of 
 Greece and Rome, and why it grew and throve in me- 
 diaeval Europe, are most interesting to investigate, but 
 the discussion would occupy undue space in this work.* 
 Feudalism favoured, and to some extent involved. Repre- 
 sentation. The lord who attended his sovereign's coun- 
 cil was supposed to vote, and made grants on his own 
 behalf and on behalf of his vassals also. The abbots 
 (who as spiritual peers formed a considerable part of the 
 councillors of every sovereign in Christendom) were more 
 
 a 
 
 * See Newman's " Contrasts purely classic times is the sys- 
 
 between Ancient and Modern tern adopted by the Italian aUies 
 
 History," and Guizot on " Euro- in the social war. It is curious 
 
 pean Civilization," lect. 2. The to speculate what Italica would 
 
 most remarkable instance of have been if it had conquered 
 
 representative government in Rome. 
 
or THE CONSTITUTION. 189 
 
 completely the elected representatives of the whole hody 
 of their members. And the Church did much to diffuse 
 the idea of representative action hy councils, her synods, 
 and other assemblies, " all of which were formed on the 
 principle of a virtual or express representation, and had 
 a tendency to render its appUcation to national assembhes 
 more famihar."* 
 
 Specific instances of election of individuals from each 
 county for purposes connected with the administration of 
 government, even before the date of John's Charter, can 
 be proved ; and it is reasonable to beUeve that very 
 many more must have taken place which no chronicler 
 has thought it necessary to mention, and of which no 
 documentary proof has survived. Thus, four years after 
 the Conquest, we find William directing twelve persons 
 to be chosen for each county, to inform him rightly of 
 the laws and customs of England.f Writs are extant by 
 which King John, in 1214, the year before the grant of 
 the Great Charter, ordered the sheriffs of each county 
 to send to a general assembly at Oxford *' four chosen 
 knights, in order to discuss with us the affairs of our 
 kingdom." J It is also deserving of attention, that 
 another clause of John's Charter (the 48th) very ex- 
 plicitly requires an election of knights of the shire in 
 each county for a very important purpose. It directs 
 that " all evil customs concerning forests, &c., shall be 
 forthwith inquired into in each county by twelve sworn 
 knights of the same shire, chosen by creditable persons of 
 
 * See Hallam's"Midd. Ages," ad loquendum nobiscum de ne- 
 
 p. 11, and Guizot on "European gotiis regni nostri." See Gui- 
 
 Civilization," lect. 2. zot's remarks on these writs in 
 
 t Hoveden. his " History of Representative 
 
 X " Quatuor discretes milites Government," lect. 11, 
 
190 RISE AND PROGRESS 
 
 the same county." Moreover, the practice of knights 
 being chosen from each district, who, in behalf of the 
 whole body of the county made presentments of crimes 
 before the king's judges on their circuits, must have 
 materially aided in habituating the freeholders of each 
 county, especially the knights, to representative action. 
 This practice was certainly as old as the reign of Henry 
 the Second, and was probably based on a still more 
 ancient Anglo-Saxon custom.* An ordinance of Richard 
 the First had regulated the procedure for about twenty 
 years before the date of Magna Carta. Four knights were 
 chosen for each county, who then proceeded to choose 
 others for each hundred or wapentake. 
 
 We must also, in examining the 14th clause of John's 
 Charter, respecting the summoning of the mass of tenants- 
 in-chief to the Great Council, bear in mind who the 
 officer was by whom the summons was to be given. The 
 officer specially mentioned in the Great Charter for this 
 purpose is the sheriff. The sheriff would naturally exe- 
 cute this duty at the county court, of which he was the 
 presiding officer, and at which the mass of the tenants- 
 in-chief, hke other freeholders, were bound to attend. 
 It may be taken for certain that it was at the county 
 court that the twelve knights, under section 48 of the 
 Charter, were to be elected ; that it was there that the 
 four knights were chosen for the presentment of offences, 
 under Richard the First's ordinance; and that it was 
 there that the selections of knights for any purpose (such 
 as that which had occurred in 1214) were made. It 
 would naturally follow that the assembled tenants-in- 
 
 * See Forsyth's " History of Trial by Jury," p. 187. 
 
OF THE CONSTITUTION. 191 
 
 chief who heard at the county court a general summons 
 from the sheriff to the Great Council of the Realm, 
 would follow their usual course, and appoint some of 
 their numher to act for them. They may not have in- 
 tended to waive the abstract right which each possessed 
 of attending in person ; but it is improbable that on the 
 receipt of a mere general summons they should have re- 
 commenced a practice which they had laid aside as bur- 
 densome.* But it would be requisite to pay some kind 
 of obedience to the royal summons, and the mode of 
 doing so would naturally be by electing some of their 
 number to attend and act for the whole body. 
 
 The clauses of John's Charter respecting the manner of 
 granting aids and escuages, and the summonses to the 
 Great Council, were not repeated in the charter as issued 
 under Henry the Third. But it is clear that the prohibi- 
 tion against levying these imposts without consent was 
 considered to be still binding ;t nor did Henry, though 
 he tallaged the royal towns without mercy, venture to 
 take escuages or aids by the mere exercise of royal 
 power. 
 
 As the records of the long reign of this Prince pro- 
 ceed, we find the proofs of county representation in par- 
 liament becoming still more numerous and more clear. 
 Thus, during the earlier years of Henry the Third we find 
 repeated instances of elections of knights of the shire, for 
 the purpose of presenting grievances, and for assessing on 
 
 * See supra, p. 185. issued by Henry in the twenty- 
 t See Hallam's " Middle fifth year of his reign (see p. 
 Ages," p. 327. It will be ob- 173, supra), that he there Re- 
 served, on reading the conclu- knowledges a grant from his 
 sion of the Great Charter as subjects. 
 
192 RISE AND PROGEESS 
 
 each individual his fair proportion of a voted subsidy.* 
 In 1245 we find Henry, in the very terms of the Great 
 Charter of John, summoning the great barons singly, 
 and the other tenants-in-chief generally, by writs to the 
 sheriflfs of each county. To a Great Council summoned 
 in 1246, the title of Parliament is for the first time given 
 by the old chronicler, which had previously been applied 
 to any kind of conference, but thenceforth in England 
 became restricted to the Great Council of the nation. 
 In 1254 Henry directs a parliament to be convened at 
 London, to which the sherifi" of each county is to cause 
 to be elected in the county court two good and discreet 
 knights of the shire, whom the men of the shire shall 
 have chosen for this purpose, in the stead of all and each 
 of them, to consider along with the knights of other 
 counties what aid they will grant the king. 
 
 Finally, in 1265, in the celebrated parliament sum- • 
 moned by De Montfort in Henry's name, at which the 
 representation of the boroughs was created, that of the_ 
 counties was undoubtedly placed or confirmed on its per- ■ 
 manent basis as the writs are still extant by which each 
 sheriff is directed to return two lawful, good, and discreet 
 knights for his shire. 
 
 The date cannot be exactly given of the important 
 feature in county representation, of all the freeholders of 
 the county voting in the election of knights of the shire, 
 and not merely those who held their land directly of th© 
 Crown by military tenure. It is obvious that this exten- 
 sion of the franchise arose from the circumstance of the 
 knights being elected at the county courts, at which all 
 
 
 * Hallam's "Middle Ages," presentative Government," part 
 p. 13. Guizot's " History of Re- ii. lect. 11. 
 
 d 
 
OF THE CONSTITUTION. 193 
 
 the freeholders of the shire did suit and service. And 
 although opinions vary as to the precise time and mode 
 in which it was effected, it is clear that at a very early 
 period, certainly during Henry III.'s reign, the county 
 members of England were elected by all the free- 
 holders, without regard to their holding by military or by 
 socage tenure, and without reference to their being or not 
 being immediate tenants of the Crown. Subsequently, a 
 statute of Henry VI. limited the county franchise to such 
 freeholders only as possessed free tenements of the clear 
 annual value of forty shillings. 
 
 For the commencement of the other branch of our 
 House of Commons, the representatives of cities and 
 boroughs, we must take a date subsequent to the Great 
 Charter of John. They who obtained that Charter, had 
 designed to give the citizens and burghers of England 
 the same protection from royal rapacity which they ex- 
 acted for the landholders. This is evident from the 
 *' Articuli Magnse Cartee,"* the rough draft of the barons' 
 stipulations laid before King John at Kunnymede, and to 
 which he assented under seal. In the 32nd of these ar- 
 ticles, after the provision against the levy of scutages or 
 aids, save by consent of the General Council of the realm, 
 were added the important words, " And in like manner 
 be it done respecting the talhages and aids of and from 
 the city of London and other cities." Tlu'ough some un- 
 explained neglect or manoeuvre, these important words 
 were omitted when the Charter was formally drawn up ; and 
 the cities and towns were left exposed to the exactions of 
 their feudal oppressors, without any protection in the na- 
 
 * See them at length in 1, et 
 Blackstone on the Charter, p. 
 
194 EISE AND PROGRESS 
 
 tional council. Simon de Montfort was the first states- 
 man who perceived and fully appreciated the growing im- 
 portance of the commercial middle classes in England. 
 The instances sometimes asserted of borough representa- 
 tion before his time are both scanty and spurious ; but to 
 the parliament summoned by him in Henry's name, after 
 the battle of Lewes, 1264, two burgesses were returned 
 for every borough in each county, the writs for which are 
 still preserved. De Montfort soon perished in the vicis- 
 situde of civil war ; but his reform measure perished not 
 with him. The victorious royalists felt the policy of en- 
 franchising the trading community of the land. Parha- 
 ments continued to be summoned on De Montfort's plan ; 
 and when at length the Confirmatio Chartarum, in the 
 25th year of Edward I., by the enactments which have 
 above been quoted, made the consent of parliament neces- 
 sary to the levy of talliages, of subsidies, and, in effect 
 of all taxes, the presence of the burgesses in the parlia- 
 ments of England became thenceforward essential and in- 
 dispensable. 
 
 Had our kings been less wasteful and warlike, it 
 is probable that parliaments including the burgesses 
 would seldom have been convened ; and it is certain 
 that the House of Commons never would have grown 
 into a great governing organ of the constitution. There 
 was an essential difference in the origin of the two 
 branches of the lower house. The presence of the 
 knights of the shire in parliament sprung from the old 
 Anglo-Norman right of each immediate mihtary tenant 
 of the king to be present at the king's Great Counciy 
 Councils might have therefore long continued to be 
 called at which the prelates, the great barons, and the 
 knights, would attend and take part in legislation and 
 
 d 
 
OF THE CONSTITUTION. 
 
 195 
 
 the deliberations of state affairs, but in which the bur- 
 gesses would have no place. Councils of this nature 
 were in fact frequently convened at intervals in Edward 
 the First's reign, after the introduction of what we should 
 term full parliaments of peers, knights of the shire, and 
 burgesses.* But our kings were in constant need of 
 money, and the money granted by the burgesses was an 
 important consideration. The frequent convention of 
 parliaments therefore at which the burgesses attended be- 
 came indispensable ; and the gradual strengthening of the 
 parliament on which the Crown was thus dependent for'^ 
 supplies was equally inevitable. As it has been pithily 
 said, the power of the purse drew after it other power. 
 The representatives of cities and boroughs acquired and 
 exercised equal rights with the knights of the shire ; and 
 
 * Two kinds of parliament 
 appeared under Edward I. The 
 one kind was composed only of 
 the higher barons, and seemed 
 to form the grand council of 
 the king ; in the other, deputies 
 from counties and boroughs had 
 a seat. 
 
 No legal and fixed distinction 
 existed between these assem- 
 blies ; their attributes were al- 
 most identical, and they often 
 exercised the same powers. 
 However, the meetings of those 
 parliaments which were com- 
 posed only of the higher barons 
 were very frequent ; they took 
 place regularly four times a 
 year. The other parliaments, 
 on the contrary, were only con- 
 vened on extraordinary occa- 
 
 sions, and when it was necessary 
 to obtain from the freeholders 
 either of the counties or of the 
 towns and boroughs, some gene- 
 ral impost. 
 
 This, however, was not the 
 only motive which could lead 
 to the convocation of this last- 
 mentioned assembly, which, in 
 truth, alone deserves the name 
 of parliament. Whenever busi- 
 ness arose of so great import- 
 ance that the concurrence of a 
 great number of interests was 
 judged necessary, the great par- 
 liament was assembled, and by 
 this cause its range of delibe- 
 ration became more extended, 
 and it assumed a greater con- 
 sistency. — Guizot. 
 
 K 2 
 
196 RISE AND PEOGRESS 
 
 both these bodies, by uniting together, gained the needful 
 authority for their country's good which neither could 
 have singly maintained.* 
 
 The constitutional principle that the Crown should not 
 tax the subject without the consent of parliament was 
 undoubtedly the practical mainspring of parliamentary 
 power. But it would be unjust to the men of the thir- 
 teenth century to suppose that they had no discernment 
 of the general advantage which a State acquires when 
 the exercise of political power is carried on from the 
 amplest basis that is consistent with the due influence of 
 intelligence, property, and rank. Sir William Temple 
 has said that for a prince to govern all hij all is the 
 great secret of happiness and safety both for prince and 
 people.f Gleams of the spirit of this precept appear in 
 the political poem of Henry the Third's time, 'which has 
 
 * It is very instructive to tury, were overthrown, and the 
 
 compare the growth and dura- cause of constitutional freedom 
 
 bility of English liberty with in Spain fell with them. On 
 
 the fate of that of Castile, the other hand, it is well to 
 
 The Castilian cities sent depu- watch the fatal weakness of 
 
 ties to the cortes long before the freedom in Poland, where a 
 
 English towns were represented martial nobility and gentry had 
 
 in parliament. These popular the fullest rights, but where the 
 
 members of the early cortes were towns were allowed no political 
 
 fully equal in spirit to the early power. Ko§ciusco and his com- 
 
 members of our commons house, patriots endeavoured to reform 
 
 and had much more power. But this, but it was too late, 
 
 the inferior nobility, and the t Napoleon's maxim was the 
 
 country landowners of Castile, exact converse. " Everything 
 
 were unrepresented. Hence the for the people, nothing hy them." 
 
 cortes of Castile, when the The fate of Napoleon himself, 
 
 great struggle between them and of France both under and 
 
 and the Crown, in the reign of after him, is the best proof of 
 
 Charles V. (Charles I. of Cas- the superior wisdom of the 
 
 tile), came on in the 16th cen- English statesman. 
 
 I 
 
 d 
 
OF THE CONSTITUTION. 197 
 
 been already refeiTed to. For example, the poet (pro- 
 bably a friend and adviser of De Montfort) bids that 
 the commons of the realm be consulted, and that the 
 opinion of the whole body of the people be made 
 
 known: — 
 
 " Igitur communitas regni consulatur, 
 Et quid universitas sentiat sciatur." 
 
 Then, too, we find an archbishop of Canterbury, in Ed- 
 ward the First's reign, in a letter to the Pope, asserting 
 that it is the custom of the kingdom of England that, 
 " in matters which regard the state of that kingdom, the 
 advice of all those interested in the matter should be 
 consulted." Guizot observes on this, that " there is no 
 need that we should take this principle in its most rigo- 
 rous application ; it is not the fact that all those who 
 were interested in these matters were consulted about 
 them ; but the sentiment is still a witness of the progress 
 which had already been made by the ideas of a fi:ee and 
 public government."* 
 
 We have examined the respective origins of the ele- 
 ments of our parhament : next comes the very important 
 subject of its division into two houses, one consisting of 
 the lords spiritual and the lords temporal, the other of 
 the knights of the shire and burgesses. How momen- 
 tous the nature of this division has been for EngUsh 
 liberty may be partly judged of by comparing the consti- 
 tutional history of England with that of France, where 
 the three estates of the nobles {i. e. all who were of noble 
 blood), the clergy, and the commons, formed three 
 separate bodies in the States General. f 
 
 * " Hist. Represent. Gov.," t See Scott's Life of Kapo- 
 part 2, lect. 13. leon, vol. i. c. 4. 
 
198 RISE AND PROGRESS 
 
 The division of our parliament into two houses is 
 foreshadowed in the distinction drawn by John's Charter 
 between the great barons and the inferior tenants-in- 
 chie^^ Providentially for England, the representatives of 
 ^^r^lPese last, the knights of the shire, coalesced with the 
 borough representatives ; and though some time elapsed 
 before any certain system was maintained, they became 
 the joint representatives of the commons of England, 
 leaving the great barons to form together with the pre- 
 lates a separate senate and a separate order. The benefits 
 of this to England have been incalculable. She has had 
 the advantage of a nobihty, and has not been cursed 
 with a noblesse. One of the proud deficiencies of our 
 language is, that the term "roturier" is untranslatable 
 into English. As Hallam truly and eloquently remarks, 
 " from the reign of Henry III. at least, the legal equality 
 of all ranks [of freemen] below the peerage was to every 
 essential purpose as complete as at present." * * * 
 What is most particular, is that the peerage itself confers 
 no privilege, except on its actual possessor. The sons of 
 peers, as we well know, are commoners, and totally desti- 
 tute of any legal right beyond a barren pre-eminence. 
 There is no part of our constitution so admirable as this 
 equality of civil rights, this isonomia, which the philo- 
 sophers of ancient Greece only hoped to find in demo- 
 cratical government. From the beginning our law hai* 
 been no respecter of persons. It screens not the gentle-^ 
 man of ancient lineage from the judgment of an ordinary' 
 jury, nor from ignominious punishment. It confers not; 
 it never did confer, those unjust immunities from public? 
 burdens which the superior orders arrogated to them 
 selves upon, the Continent. Thus, while the privileges of 
 our peers, as hereditary legislators of a free people, ard 
 
 i 
 
OF THE CONSTITUTION. 19^ 
 
 "incomparably more valuable and dignified in their 
 nature, they are far less invidious in their exercise than 
 those of any other nobihty in Europe. It is, I am firmly 
 persuaded, to this pecuHarly democratical character of the 
 English monarchy that we are indebted for its long per- 
 manence, its regular improvement, and its present vigour. 
 It is a singular, a providential circumstance, that in an 
 age when the gradual march of civilization and commerce 
 was so little foreseen, our ancestors, deviating from the 
 usages of neighbouring countries, should, as if delibe- 
 rately, have guarded against that expansive force which 
 in bursting through obstacles improvidently opposed, has 
 scattered havoc over Europe." 
 
 The last great principles of our Constitution relate to 
 the security of person and property fi'om arbitrary vio- 
 lence, and to the administration of justice. They are 
 these three : — 
 
 That no man be arbitrarily fined or imprisoned, or in 
 any way punished, except after a lawful trial. 
 
 Trial by jury. 
 
 That justice shall not be sold or delayed. 
 
 This last maxim needs no comment. We have, and 
 our ancestors for more than six centuries have had, in. 
 the words of the Great Charter, the solemn declaration 
 and covenant of the sovereign — " We will sell to no man, 
 we will not deny or delay to any man, either justice or 
 right." Would that we could boast that it had been 
 carried out in practice as fully as it has been acknow- 
 ledged in theory. ** The laws delay " still, as in Shak- 
 speare's time, forms one of the curses of human life, to an 
 extent never contemplated at Kunnymede ; and our mo- 
 dern law-reformers would do well to consider how far 
 the practice of making suitors pay for judicial writs, and 
 
200 RISE AND PROGRESS 
 
 exacting court-fees on trials, is in accordance with the 
 great constitutional canon. The security from arbitrary 
 imprisonment, and the other great constitutional principle, 
 that of trial by jury, claim our most earnest attention, 
 both on account of their universal practical importance, 
 and by reason of the tendency now shown in many 
 quarters to disparage and discard that long-venerated 
 system of trial. 
 
 The great words of the Great Charter — worth all the 
 classics, to Lord Chatham's mind — which have protected 
 for six centuries, and still protect the personal liberty and 
 property of all freemen, have been already quoted, but 
 never can be too often repeated. " No freeman shall be 
 taken, or imprisoned, or be disseised of his freehold, or 
 liberties, or free customs, or be outlawed or exiled, or 
 any otherwise destroyed ; nor will we pass upon him, nor 
 send upon him, but by the lawful judgment of his peers, 
 or by the law of the land. We will sell to no man, we 
 will not deny or delay to any man, justice or right." 
 
 The value of these words of the Charter, as consti- 
 tutional checks on royal power, has been already referred 
 to. We are now viewing them as strictly applying to the 
 administration of justice. They contain two great princi- 
 ples. First, that no man shall be imprisoned on mere 
 general grounds of suspicion, or for an indefinite period, 
 at the discretion or caprice of the executive power ; but . 
 that imprisonment shall be only inflicted as the result of ^ 
 a legal trial and sentence, or for the purpose of keeping f 
 in safe custody an accused person on a definite charge, 
 until he can be tried on that charge. Secondly, they 
 provide that, as a general rule, every person accused of a 
 criminal ofience shall have the question of his guilt or I 
 innocence determined by a free jury of his fellow- 
 
 I 
 
 d 
 
OF THE CONSTITUTION. 201 
 
 countrymen, and not by any nominee of the Govern- 
 ment. 
 
 The first of these principles is familiar to us by the 
 term of an Englishman's right to a Habeas Corpus, if 
 his personal liberty be interfered with. Some writers on 
 our constitution have erroneously supposed that this safe- 
 guard of freedom dates only from the reign of Charles 
 II., when the celebrated Habeas Corpus Act was passed. 
 But its true foundation is the Great Charter ; and from 
 the earhest times of our law '* no freeman could be de- 
 tained in prison except upon a criminal charge, on con- 
 viction, or for a civil debt. In the former case it was 
 always in his power to demand of the Court of King's 
 Bench a suit of habeas corpus ad subjiciendum directed 
 to the person detaining him in custody, by which he was 
 enjoined to bring up the body of the prisoner with the 
 warrant of commitment, that the court might judge of 
 its sufficiency, and remand the party, admit him to bail, 
 or discharge him, according to the nature of the charge. 
 This writ issued of right, and could not be refused by the 
 court." * 
 
 It is impossible to overvalue this great barrier against 
 
 * Hallam's " Constitutional "The gaoler is not bound to 
 
 History," vol. i. p. 16. detain the prisoner, if there be 
 
 An imprisonment must either no cause of committal expressed 
 be by process " from a court in the warrant. And Sir Ed- 
 of judicature, or by war- ward Coke observes that the law 
 rant from some legal officer judges in this respect like Fes- 
 having authority to commit to tus the Roman governor, — that 
 prison : which warrant \riust be it is unreasonable to send a pri- 
 under the hand and seal of the soner, and not to signify the 
 magistrate, and express the crimes alleged against him." — 
 cause of the commitment, in Bowyer's Com/inentaries on the 
 order to be examined into, if ne- Const. Law^ p. 425. Coke's 2,nd 
 cessary, upon a Habeas Corpus,^^ Inst.y 52, 53. 
 
 K 3 
 
202 
 
 EISE AND PROGRESS 
 
 tyrannical power. Blackstone's eulogy on it, and his 
 historical sketch of the Habeas Corpus Act,* deserve 
 
 * " The language of the Great 
 Charter is, that no freeman shall 
 be taken or imprisoned but by 
 the lawful judgment of his 
 equals, or by the law of the 
 land. And many subsequent 
 old statutes expressly direct that 
 no man shall be taken or im- 
 prisoned by suggestion or peti- 
 tion to the king or his council, 
 unless it be by legal indictment, 
 or the process of the common 
 law. By the petition of Right, 
 3 Car. II., it is enacted that no 
 freeman shall be imprisoned or 
 detained without cause shown, 
 to which he may make answer 
 according to law. By 16 Car. I. 
 c. X., if any person be restrained 
 of his liberty by order or decree 
 of any illegal court, or by com- 
 mand of the king's majesty in 
 person, or by warrant of the 
 council-board, or of any of the 
 privy council, he shall, upon 
 demand of his council, have a 
 writ of habeas corpus, to bring his 
 body before the Court of King's 
 Bench or Common Pleas; who 
 shall determine whether the 
 cause of his commitment be 
 just, and thereupon do as to 
 justice shall appertain. And by 
 31 Car. II. c. ii., commonly called 
 the Habeas Corpus Act, the 
 methods of obtaining this writ 
 
 are so plainly pointed out and 
 enforced, that so long as this 
 statute remains unimpeached,no 
 subject of England can be long 
 detained in prison, except in 
 those cases in which the law 
 justifies and requires such de- 
 tainer. And lest this Act 
 should be evaded by demanding 
 unreasonable bail or sureties for 
 the prisoner's appearance, it is 
 declared, by 1 Wm. and M. 
 stat. 2, c. ii., that excessive bail 
 ought not to be required. Of 
 great importance to the public 
 is the preservation of this per- 
 sonal liberty : for if once it were 
 left in the power of any, the 
 highest, magistrate to imprison 
 arbitrarily whomever he or his 
 officers thought proper, as in m 
 France it is daily practised by I 
 the Crown, there would soon be 
 an end of all other rights and 
 immunities. Some have thought, 
 that unjust attacks, even upon 
 life or property, at the arbitrary 
 will of the magistrate, are less 
 dangerous to the commonwealth, 
 than such as are made upon the 
 personal liberty of the subject. 
 To bereave a man of life, or by 
 violence to confiscate his estate^ 
 without accusation or trial, 
 would be so gross and notorious 
 an act of despotism, as must at 
 
 i 
 
OF THE CONSTITUTION. 
 
 j^oa 
 
 the earnest attention of every student of our constitu- 
 tion. And if we would satisfy ourselves by recent practi- 
 cal proofs of the fearful sufferings which a nation may 
 undergo, when its rulers have power to arrest and im- 
 prison without trial, upon mere suspicion, we may use- 
 fully refer to Mr. Gladstone's narrative of the scenes 
 which he witnessed in the Neapolitan prisons in 1849. 
 If any one should suppose that such atrocities can exist 
 only under unUmited monarchies, he may clear himself 
 of that error by turning to the celebrated letters of the 
 Vieux Cordelier, of Camille DesmouHns, in wliich that 
 remorseful demagogue described the horrors that were 
 caused in republican France during the first revolution, by 
 making men's liberty or captivity dependent upon mere 
 general suspicion. 
 
 once convey the alarm of tyranny 
 throughout the whole kingdom : 
 but confinement of the person, 
 by secretly hurrying him to 
 gaol, where his sufferings are 
 unknown or forgotten, is a less 
 public, a less striking, and there- 
 fore a more dangerous engine 
 of arbitrary government. And 
 yet sometimes, when the State 
 is in real danger, even this may 
 be a necessary measure. But 
 the happiness of our constitu- 
 tion is, that it is not left to the 
 executive power to determine 
 when the danger of the State is 
 so great, as to render this mea- 
 sure expedient : for it is the 
 parliament only, or legislative 
 power, that, whenever it sees 
 proper, can authorise the Crown, 
 by suspending the Habeas Corpus 
 
 Act for a short and limited time, 
 to imprison suspected persons 
 without giving any reason for 
 so doing ; as the senate of Rome 
 was wont to have recourse to a 
 dictator, a magistrate of abso- 
 lute authority, when they judged 
 the republic in any imminent 
 danger. The decree of the 
 senate, which usually preceded 
 the nomination of this magis- 
 trate, " de7it operam consvles, ne 
 quid respublica detrimenti ca- 
 piaty" was called the senatus- 
 consultum ultimce tiecessitatis. 
 In like manner this expedient 
 ought only to be tried in cases 
 of extreme emergency ; and in 
 these the nation parts with its 
 liberty for a while, in order to 
 preserve it for ever." 
 
204 RISE AND PROGRESS 
 
 We come now to the second great judicial principle 
 contained in the clause of Magna Carta, which provides 
 that a freeman is to have a free trial; that he is to 
 suffer nought unless hy the lawful judgment of his peers, 
 or by the law of the land : in other words, the principle 
 of an Englishman's right to trial by jury. 
 
 The words of the Great Charter, Legale judicium 
 parium suorum, " the lawful judgment of a man's peers," 
 have for centuries been familiar to the nation as house- 
 hold words, and have been understood by Blackstone 
 and most other commentators on our laws and institu- 
 tions as referring to trial by jury. Some few writers, 
 however, whose station and learning entitle them to at- 
 tention, have treated this supposition as a mere vulgar 
 error; and deny that the judicium j)arium has any 
 reference whatever to trial by jury. The subject well 
 deserves investigation ; as it certainly involves not a 
 mere point of legal archaeology, but a constitutional 
 question of the most solemn order. 
 
 Did trial by jury exist in England in John's time ? 
 and, if so, did the framers of the Great Charter mean 
 trial by JTiry, when they spoke of the lawful judgment of 
 a man's peers? These are the points on which an 
 answer is to be given, and I believe that on each point 
 the answer should be in the affirmative. 
 
 Before investigating the existence of trial by jury in 
 the thirteenth century, we should be precise as to what 
 we understand by the term. Some persons, when they 
 speak of trial by jury, may have inseparably before their 
 minds an idea of it, formed in all particulars from what 
 they see of it now in actual practice. In a modern trial 
 by jury we find a trial by twelve men, fairly taken from 
 the general body of private citizens, with hardly any 
 
OF THE CONSTITUTION. 205 
 
 possibility of its being known beforeband wbo tbey will 
 be, who are sworn to give a true verdict on a distinct 
 question of fact before them ; who act under the pre- 
 sidency of a professional judge, from whom they take 
 directions in matters of law, and who must act according 
 to their findings on matters of fact. All these are 
 ancient characteristics of the institution, but there is also 
 this other ingredient of modem jury trial, with which we 
 are all practically familiar — that the juries give their ver- 
 dict, not according to their own knowledge of the trans- 
 action, but according to the evidence which others lay 
 before them. They act not as witnesses, but as critics of 
 witnesses ; as weighers, not as givers of proofs. Now, 
 if we are to consider this last quality of a modem trial 
 by jury to be necessarily involved in the term, we un- 
 doubtedly shall not find the trial by jury such as we 
 seek, in John's time, nor shall we discover it for two 
 centuries after his reign. If, on the other hand, when 
 we speak of trial by jury as a safeguard of English 
 liberty, we mean no more than the general principle, that 
 the question of a man's guilt or innocence of a criminal 
 charge is to be determined by a free and independent 
 body of his fellow-citizens, and not by officers of the 
 executive authority ; we shall find that principle flourish- 
 ing in the very earliest periods of our national existence ; 
 and we shall find it still earher in the tribunals of the 
 Germans, the Danes, and the Normans, that is to say, 
 among three of the four elements of our race. 
 
 Something, however, more definite than this is fairly 
 meant when trial by jury is spoken of. On the contrary, 
 the first-mentioned idea of the essentials of trial by jury 
 involves too much. Perhaps we may but express the fair 
 signification of the phrase, by saying that when we speak 
 
206 RISE AND PROGRESS 
 
 of trial by jury, we mean a system whereby the judges, 
 or public ofi&cers, who compose the court, and who are 
 commissioned by the sovereign to administer the law, to 
 put accused persons upon trial, to discharge them if inno- 
 cent, and to pass sentence upon them if guilty, are not 
 allowed to determine for themselves the question whether 
 an accused person be innocent or guilty, but are required 
 to take, on this point, the opinion of a body of private 
 individuals (usually twelve in number), fairly taken from 
 among those who are equals, in the eye of the law, with 
 the accused person, summoned to give, upon oath {Jurati), 
 a True Saying ( Veredicttwi) to the court, as to whether 
 the party accused be guilty or not guilty ; by means of 
 which true saying the court may be enabled to pronounce 
 a right judgment. We can readily understand, that in 
 early times the simplest and shortest plan was followed, ofj 
 summoning, as jurors, twelve men fi'om the immediate 
 neighbourhood, where the imputed crime was said to have 
 been committed, who were to give the court a True Say- jj 
 ing about it from their own knowledge. The well-work- 
 ing of this plan must have been greatly aided by the law 
 of frankpledge,^ which was, in those times, carried out« 
 in full practice, and which must have compelled the men 
 of each neighbourhood to keep watch upon the conduct 
 of each other. When the system of frankpledge became 
 obsolete, when population increased, and the facilities of ^ 
 moving from place to place became greater, the personal ' 
 knowledge which the twelve men from the neighbourhood 
 would have respecting an imputed crime, must have be- 
 come less full and less accurate. The custom, then, 
 would naturally grow up of their hearing the evidence of j 
 
 * See awpra, p. 48. 
 
OF THE CONSTITUTION. 207 
 
 others who happened to have actually seen the transaction 
 in question, or who could testify, of their own knowledge, 
 to any material fact, whence inferences of guilt or inno- 
 cence might he drawn; the production of documentary 
 proof (where any existed) hefore the jurors would he a 
 still more natural step. The jurors would weigh the value 
 of all this in giving their verdict, and thus, from heing 
 witnesses themselves, they would gradually hecome what 
 they now are, the hearers of witnesses, and the deciders 
 upon proof supplied hy others. We see, however, that 
 this last characteristic of modem trial hy jury would he 
 slowly and gradually established; and it need not he 
 sought for as an essential part of trial hy jury in its ori- 
 gmal existence. 
 
 Keeping in mind the third and last definition of trial 
 hy jury which we have been considering, hoth with respect 
 to what the term necessarily implies, and what it does not 
 necessarily imply, we may proceed to investigate its ori- 
 gin, and the recognition and sanction which it received 
 from the Great Charter. 
 
 For the sake of brevity and clearness, I deal here 
 almost solely with trial by jury in criminal cases. But it 
 will be easily understood how the same mode of trying 
 questions of fact in civil cases would be practised. I also 
 limit the inquiry to the subject of the actual trial of guilt 
 or innocence before the jury of twelve (which we now call 
 the petty jury) ; that is to say, before the jury who give 
 the verdict. The subject of the preliminary inquiry hy 
 the grand jury, who, in the name of the sovereign, make 
 presentment to the court of the charge, is one of minor, 
 though of considerable, importance, and can only be in- 
 cidentally mentioned here. ^ 
 
 Some writers have assigned to trial by jury a very 
 
208 RISE AND PROGRESS 
 
 specific and a very illustrious parentage. They have 
 represented it as an institution established by the great 
 Alfred, and as the peculiar gem of Anglo-Saxon free- 
 dom, which Norman tyranny could not destroy or dim. 
 Others assign to it a still more remote and very general 
 antiquity. They trace it in the ancient tribunals so gene- 
 rally prevalent among the Teutonic nations of the Conti- 
 nent, and also among the Scandinavian; in wliich '* a 
 select number of persons, often twelve, were taken from 
 the community and appointed to try causes, but who did 
 so in the capacity of judges," as well as in the capacity 
 which we understand as the peculiar province of jurors, 
 and " who, when satisfied as to the evidence, awarded, and 
 pronounced the doom."* Such were the Norwegian 
 Laugrettomen, the Swedish Nambd, the Danish Noevn, 
 the Jutish Sandemoend, the Germanic Scabini, and 
 others. But, as Mr. Forsyth, in his excellent '' History of 
 Trial by Jury," has pointed out, the difference between all 
 these tribunals and the English juries, is vital and essen- 
 tial. It is in England, and in England alone (unless 
 Normandy should be added), that we find juries quite 
 distinct from the judges who compose the court; — juries 
 who are summoned for the sole purpose of giving a True 
 Saying on a question of fact, and who have nothing to 
 do with the sentence of the court which follows the deli- 
 very of their verdict. The same writer has well observed 
 that it is to this peculiar characteristic of the English 
 jury that we owe the preservation of jury trial in this 
 
 * Forsjth's "History of Trial to the high merit which it dis- 
 
 by Jury." See chapters 2 and plays, and gladly acknowledge 
 
 3. Though differing from some my obligations to it for informa- 
 
 of the doctrines advocated in tion on many important sub- 
 
 this work, I must bear testimony jects. 
 
 J 
 
OF THE CONSTITUTION. 209 
 
 country, while the ancient popular tribunals of Germany, 
 France, and Scandinavia have perished. 
 
 " A court of justice where the whole judicial authority 
 is vested in persons taken from time to time from amongst 
 the people at large, with no other qualification required 
 than that of good character, can only he tolerated in a 
 state of society of the most simple kind. As the affairs 
 of civil life become more complicated, and laws more in- 
 tricate and multiplied, it is plainly impossible that such 
 persons, by whatever name they are called, whether judges 
 or jurors, can be competent to deal with legal questi(ms. 
 The law becomes a science which requires laborious study 
 to comprehend it ; and without a body of men trained to 
 the task, and capable of applying it, the rights of all 
 would be set afloat — tossed on a wide sea of arbitrary, 
 fluctuating, and contradictory decisions. — Hence in all 
 such popular courts as we are describing, it has been 
 found necessary to appoint jurisconsults to assist with 
 their advice, in matters of law, the uninstructed judges. 
 These at first acted only as assessors, but gradually at- 
 tracted to themselves and monopolized the whole judicial 
 functions of the court. There being no machinery for 
 keeping separate questions of law from questions of fact, 
 the lay members felt themselves more and more inade- 
 quate to adjudge the causes that came before them. They 
 were obliged perpetually to refer to the legal functionary 
 who presided, and the more his authority was enhanced, 
 the more the power of the other members of the court 
 was weakened, and their importance lessened, until it was 
 seen that their attendance might, without sensible incon- 
 venience, be dispensed with altogether. And of course 
 this change was favoured by the Crown, as it thereby 
 gained the important object of being able, by means of 
 
I 
 
 210 RISE AND PROGRESS 
 
 creatures of its own, to dispose of the lives and liberties 
 of its subjects under the guise of legal forms. Hence 
 arose in Europe, upon the ruins of the old popular tribu- ■I 
 nals, the system of single judges appointed by the king 
 and deciding all matters of fact and law, and it brought 
 with it its odious train of secret process and inquisitorial 
 examinations. But the result was inevitable. The an- 
 cient courts of Scandinavia and Germany carried in their 
 very constitution the element of their own destruction, 
 and this consisted in the fact that the whole judicial 
 power was in the hands of persons who had no special 
 qualifications for their office. 
 
 " Far otherwise has been the case in England. Here 
 the jury never usurped the functions of the judge. They 
 were originally called in to aid the court with information 
 upon questions of fact, in order that the law might be 
 properly applied ; and this has continued to be their pro- 
 vince to the present day. The utiHty of such an office is 
 felt in the most refined as well as in the simplest state of 
 jurisprudence. Twelve men of average understanding are 
 at least as competent now as they were in the days of 
 Henry II. to determine whether there is sufficient evidence 
 to satisfy them, that a murder has been committed, and 
 that the party charged with the crime is guilty. The 
 increased technicality of the law does not affect their fit- 
 ness to decide on the effect of proofs. Hence it is that 
 the English jury flourishes still in all its pristine vigour, 
 while what are improperly called the old juries of the 
 Continent have either sunk into decay or been totally 
 abolished." 
 
 It is to be hoped that few educated men of the present 
 day believe in the myth of trial by jury having been in- 
 vented by Alfired. But some attention to the Anglo- 
 
w 
 
 OF THE CONSTITUTION. 2ll 
 
 Saxon criminal system is necessary in order to under- 
 stand the rise and growth of trial by jury in England. 
 The Anglo-Saxon system of criminal judicature had cer- 
 tainly the great principle of trying men publicly before 
 a popular tribunal, and not permitting their fate to be 
 dependent on the subserviency or caprice of any officer of 
 the Crown. This principle is also an essential attribute 
 of trial by jury, and the introduction of that system was 
 without doubt facihtated by its being thus congenial to 
 the old feelings and customs of the mass of the popula- 
 tion. But according to the definition which has been 
 above considered and adopted, much more is involved in 
 the idea of trial by jury, which we shall vainly look 
 for in Anglo-Saxon times. An Anglo-Saxon criminal 
 trial did not take place before judges who summoned, as 
 their informants on matters of fact, twelve sworn men, or 
 any other definite number ; but it took place in presence 
 of all the assembled members of the hundred or the 
 county court, the latter being the tribunal before which 
 most criminal charges were determined. All the land- 
 owners of the county, under the presidency of the sheriff 
 and bishop, formed this court. They were its "Secta- 
 tores," or suitors. They all took part, or had a right to 
 take part, in a criminal trial, and they all looked on to 
 see whether the stipulated proof of guilt or innocence 
 was given. I say they looked on, for that term implies 
 more accurately the functions of the county-court suitors 
 in a Saxon criminal trial, than any word which involves 
 the idea of giving and comparing testimony, or of arguing 
 from apparent fact to inferential fact. This arose from 
 the system of the Saxon jurisprudence making a trial, as 
 Palgrave truly remarks,* "rather of the nature of an 
 
 * See Palgrave's " History of the English Commonwealth.' 
 
212 RISE AND PHOGRESS 
 
 arithmetical calculation, or a chemical experiment, than 
 what we now understand by the trial of a cause. A cer- 
 tain form was gone through, and according to its result, 
 which was always palpable and decisive one way or the 
 other, the accused person was found guilty or acquitted." m\ 
 This is in no degree an exaggerated account of the ^1 
 Anglo-Saxon system of trying offenders, either by the 
 production of compurgators, or by the ordeal. In the 
 first of these modes, the accused party was required to 
 produce neighbours to swear to their belief in his inno- 
 cence; and the effect of such neighbours'" oaths was 
 estimated not by the means of knowledge possessed by 
 the deponents, or by their characters, or even by their m 
 number, but by their "worth" in the Anglo-Saxon scale 
 of persons; according to which an eorl's oath was equal 
 to the oaths of six ceorls, and so on. If the accused ■ 
 party produced the requisite amount of oath (which was 
 in every case rigorously defined by a curiously-minute 
 penal tariff), he was set free. If the aggregate value of I 
 the oaths of his compurgators fell below the prescribed 
 sum, he was pronounced guilty. If the accused person 
 put himself upon the trial by ordeal, the weight of the 
 hot iron which he was to bear, or the depth to which he 
 was to plunge his arm into the hot water, was scru- 
 pulously preappointed by the law. The assembly looked 
 on. In trial by compurgation, they added up the amount M 
 of the oaths; in trial by ordeal, they watched the effect " 
 of the hot iron or hot water upon the culprit's skin, and 
 that was all which they had to do. * 
 
 * See Palgrave, ut supra. It chance of escaping through tl 
 
 must not, however, be supposed perjury of compurgators, or the 
 
 that, in cases of flagrant guilt, jugglery which was frequent in 
 
 the offender was allowed the the ordeal. On the contrary, 
 
 ;he 
 
OF THE CONSTITUTION. 213 
 
 It has already been shown that the Danish Nsevninger 
 cannot be regarded as juries. We cannot look on either 
 our Germanic or our Scandinavian ancestors as the 
 founders of that mode of trial. How, then, did trial by 
 jury arise in this country? There are two remaining 
 theories, from one of which this question must be 
 answered. According to one of these opinions, we are 
 chiefly indebted for trial by jury to our Norman an- 
 cestors, who are supposed to have brought it hither from 
 Normandy, where it had existed before the Conquest. 
 This is the view of Eeeves and of Serjeant Stephens, and 
 was apparently taken by Sir Francis Palgrave when he 
 wrote his *' Kise and Progress of the English Common- 
 wealth," though in his more recent "History of Nor- 
 mandy and England" he seems to have changed his judg- 
 ment. Other writers, of very high eminence, consider 
 that trial by jury first grew up in Anglo-Norman Eng- 
 land, and that it was introduced into Normandy itself 
 from England, while our kings were still dukes of that 
 country. Those who hold this theory consider Henry II. 
 and his justiciars as the founders of trial by jury, or 
 rather as the first developers of jury trial out of the 
 different processes and judicial customs which various 
 races and rulers had imported into this island, or had 
 created here. The choice between these two theories 
 depends mainly on the opinion which we form respecting 
 an old treatise called the " Grand Constumier," in which 
 the laws and judicial usages of Normandy are minutely 
 described. It is generally agreed, that the " Grand 
 
 the slayer who was found near hahend and hach-harend, was 
 
 the bleeding corse, or the thief strung up to the nearest bough 
 
 who was taken on fresh pursuit without ceremony, 
 in possession of the booty, hond- 
 
214 RISE AND PROGRESS 
 
 Constumier" was written before the separation of the 
 Duchy from the English Crown, which we know to have 
 been effected in John's time ; but it is suggested that it 
 may have been written after Henry II.'s time, and may 
 only describe usages which had originated in England, 
 and had been introduced from our courts into the Nor- 
 man courts. But this is a mere hypothesis, without any 
 evidence to uphold it; and it seems more reasonable to 
 regard the law and customs described in the " Grand 
 Constumier" as genuine primitive Norman than as 
 English importations. But I may remark, that even if 
 we adopt the other view, and consider the Norman insti- 
 tutions, which we are about to examine, as of English 
 origin, it will only make us regard trial by jury as more 
 exclusively and purely an English national institution. 
 In Normandy (besides trial by battle, in which the 
 accused and the accuser, or in some few cases their 
 champions, settled their differences in mortal combat) 
 criminal charges were tried as follows: — An inquest of 
 twenty-four " good and lawful men" was summoned from 
 the neighbourhood where the murder or the theft had 
 been committed. These were the "Jurati" or "Jura- 
 tores," so called from the oath they took to speak the 
 truth. The officer is directed by the Noiman law to 
 select " those who are believed to be best informed of the 
 truth of the matter, and how it happened." None were 
 to be adduced who were known friends or declared 
 enemies of either party. Before the culprit was put 
 upon his trial, a preliminary inquest was taken by four 
 knights, who were questioned concerning their belief of 
 his guilt; and in their presence the officer afterwards 
 interrogated the twenty-four jurors, not in one body, but 
 separately from each other. They were then assembled 
 
 I 
 
OF THE CONSTITUTION. 215 
 
 and confronted with the culprit, who could challenge any 
 one for lawful cause, and if the challenge was allowed, 
 the testimony of that juror was rejected. The presiding 
 officer or judge, then " recorded" the verdict of the jurors, 
 in which twenty at least were required to concur. 
 
 The introduction into England of this jury trial, as 
 well as of the trial hy battle, was naturally favoured by 
 the Norman judges who presided over the royal courts 
 after the Conquest; and the king's itinerant courts, in 
 which there was no assemblage of local members, soon 
 assumed the functions of trying many of the cases which 
 had previously been tried at the county courts. In all 
 these courts, in the old Aula Kegia, in the King's Bench, 
 which branched out of it, and in the courts of the Justices 
 in Eyre, the judges formed the court. They dehvered 
 judgment ; they caused justice to be executed. But they 
 did not determine on the question of fact as to guilt or 
 innocence themselves. For the answer to that question 
 the court looked to the event of the ordeal, or appeal of 
 battle, or to the true saying of twelve sworn men sum- 
 moned from the immediate neighbourhood. This was 
 the original trial by jury, which by degrees superseded the 
 other modes of trial. The Normans generally abolished 
 trial by compurgators in criminal cases; and though the 
 trial by ordeal long continued in force, men at length 
 began to regard it in its true light of an impious ab- 
 surdity, and of a not unfrequent engine of fraud. Henry 
 II., by the laws in which he instituted the trial by twelve 
 sworn knights, in certain civil causes, where real pro- 
 perty was the subject of dispute, familiarized men's minds 
 more and more with the theoi7 and practice of jury trial; 
 and the more it was known, the more it was valued. 
 Repeated instances can be traced, in the reigns of his 
 
216 EISE AND PROGRESS 
 
 sons, of accused persons being tried by juries on criminal 
 charges, for which mode of trial they paid a sum of 
 money to the king, evidently regarding it as a valuable 
 privilege. At length, in the year 1214, the year before 
 the signing of Magna Carta, the Council of Lateran 
 prohibited the further continuance of trial by ordeal — 
 throughout Christendom, and the adoption of trial byB 
 jury became unavoidably general in England, in order 
 to dispose of the numerous class of cases, where the 
 charge was preferred, not by an injured individual against 
 the culprit in the form of an appeal, but by the great 
 inquest of the county (our modern grand jury) in the 
 form of a presentment. For, of course, it was only where 
 there was an accusing appellant, that the trial by battle 
 was possible. Still, there was for a long time no mode 
 of compelling a prisoner to put himself on the country, 
 i. e. to commit the question of his guilt or innocence to ■ 
 twelve sworn men, summoned from the neighbourhood. 
 Edward I.'s law, inflicting the " Pei?ie forte et dure" on 
 prisoners who refused to plead, was passed to obviate this 
 difficulty ; which was not, however, completely got rid of 
 tiU the reign of George III. 
 
 Trial by jury was originally, both in Normandy and 
 here, an appeal to the knowledge of the country. The 
 jui'y were selected so as to insure the attendance of those 
 who knew most of the transaction. They gave a verdict 
 from their own knowledge of the case, and not from 
 hearing the testimony of others. Gradually, however, a 
 change took place in this respect. At first documentary 
 evidence, such as deeds, charters, &c., throwing light on 
 the matter in dispute, were permitted to be laid before the - 
 jurors. The next improvement was to introduce the J 
 viva voce testimony of persons, other than the jurors, 
 
 I 
 
 d 
 
OF THE CONSTITUTION. 217 
 
 who could give any infonnation as to the true circum- 
 stances of the case. This was certainly effected hy the 
 time of Henry VI., as appears by the treatise of Henry's 
 Chancellor, Fortescue, " De Laudibus Legum Anglise," in 
 which trial by jury is boasted of as the peculiar glory of 
 the English law, and the whole procedure is minutely 
 described. The production of witnesses who give evi- 
 dence on oath before the jury is there specially mentioned. 
 But the jurors were still, in Fortescue's time, summoned 
 from the neighbourhood, and were not only allowed, but 
 required, to act upon such knowledge of the facts as they 
 themselves possessed. The complete change in respect 
 to the modem system, whereby jurors are summoned, not 
 from the immediate neighbourhood, but generally from 
 the whole county, and are bound to decide only according 
 to the evidence laid before them, was not effected for 
 some centuries later.* 
 
 We now return to the words of Magna Carta, which 
 forbid a freeman to suffer " except by the lawful judgment 
 of his peers, or the law of the land." I beheve that the 
 trial by peers here spoken of means trial by jury. The 
 words will bear this meaning ; it is certainly impossible to 
 give them any other satisfactory meaning, and it is idle 
 to suppose that they were thus introduced into the Great 
 Charter without being designed to be seriously significant. 
 
 Some writers who deny the applicability of the thirty- 
 ninth clause of John's Charter, and the twenty-ninth of 
 Henry III., to trial by jury, have supposed that the 
 expression in it respecting a freeman's trial by his peers 
 refeiTed to the old county court and hundred criminal 
 judicature, according to which a freeman was certainly 
 
 * See Forsyth, pp. 164-167. 
 
218 EISE AND PROGRESS 
 
 tried before, if not hy, his brother freemen. We cannot 
 suppose (nor have I ever seen it suggested) that this 
 clause of the Charter related to civil actions only, and 
 merely meant those proceedings in county courts and 
 courts baron, in which the attendant suitors, as each 
 other's peers, adjudicated upon claims to property. The 
 whole spirit of the clause, as well as the arrangement of 
 its words, shows clearly that it was mainly designed as a 
 safeguard against wrongful penal procedure, and as pro- 
 viding a just mode of trial in proceedings by the Govern- 
 ment against the subject; though it was made sufficiently 
 extensive to protect rights of property as well as rights of 
 persons. It seems to me that the hypothesis of the trial by 
 peers in Magna Carta meaning the criminal judicature of 
 tlie county and hundred courts, is decisively contra- 
 dicted by the fact, that the twenty-fourth chapter of 
 John's Charter and the seventeenth of Henry's forbade the 
 sheriff and other inferior officers to hold pleas of the 
 Crown, and thus put an end, almost entirely, to the 
 criminal authority of those tribunals. It has been ex- 
 plained already to how scant a relic the power of the 
 toum and- the courts leet was thereby reduced; and it 
 is impossible to believe that the thirty-ninth clause of 
 John's Charter or the twenty-ninth of Henry's solemnly 
 ordained a mode of trial, which preceding sections of 
 those instruments had (with trijQing exceptions) solemnly 
 abolished. 
 
 The other hypothesis brought forward by those wb 
 deny that the "Judicium parium" in Magna Carta means 
 trial by jury is, that the Great Charter, in speaking of 
 trial by peers, had in view solely the great barons, who, 
 as members and peers of the great Court of the king, had 
 a right to be tried there by their peers. Undoubtedly this 
 
 J 
 
OF THE CONSTITUTION. 219 
 
 clause gives a peer of the land an indisputable right to a 
 trial in the House of Lords; hut I am led to reject the 
 interpretation which would restrict the operation of the 
 clause to the peerage only, by a consideration of the cir- 
 cumstances and documents connected with the passing 
 of the Great Charter, and which are collected by Black- 
 stone in the work so often referred to. 
 
 King John, about a month before the congress at 
 Runnymede, had made a fruitless attempt to detach the 
 great barons from the formidable national rising against 
 him, by offering to them and their immediate followers 
 the privileges which the thirty-ninth chapter of his Great 
 Charter afterwards assured to every freeman of the realm. 
 John's letters of proffered compromise are still in ex- 
 istence,* and in them he writes, " Be it known that we 
 have granted to our barons who are against us, that we 
 will neither take nor disseise them or their men, nor will 
 we pass upon them by force or by arms, except by the law 
 of our realm, or by the Judgment of their Veers in our 
 Court" dec. 
 
 The words "in our Court" here clearly limit the privi- 
 lege of "trial by peers" to the barons, who alone were 
 members of the king's Court, or could have their peers 
 there to try them. Had these words been repeated in the 
 analogous clause in the Great Charter, the interpretation 
 which we are now considering would have appeared cor- 
 rect ; but the phraseology of Magna Carta is widely 
 different. Magna Carta says "Nullus liber Homo 
 dissaisietur, &c., nisi per legale judicium parium suorum," 
 It is evident that the barons, when they rejected the in- 
 
 * See Blackstone's " History supra, and notes, 
 of the Charters," and see p. 121, 
 
 L 2 
 
220 
 
 RISE AND PROGRESS 
 
 sidious offer of John, and refused to make their reform a 
 mere chiss intrigue instead of a great national movement, 
 took care so to alter the terms of this important stipula- 
 tion as to make it embrace all the free community. Im 
 cannot but believe that the framers of Magna Carta did 
 intend to give a solemn sanction to the trial by jury, 
 which had been for years gradually becoming prevalent, 
 which had just been rendered more generally necessary 
 and desirable through the abolition of the ordeal, 
 and to the merits of which I cannot suppose those 
 illustrious statesmen to have been bhnd. The expression 
 " trial by peers," as applied to trial by jury, though it 
 may not have enough technical accuracy to satisfy a mere 
 legal antiquary, is, and was at the time, sufficiently appro- ■ 
 priate to justify its being so understood; and so it cer- 
 tainly has been generally understood by England's jurists, 
 judges, statesmen, and historians, for centuries.* 
 
 * I have not thought it ne- 
 cessary to introduce in the text 
 any formal refutation of a doc- 
 trine, which I have found in 
 some modern law books, that 
 although the Judicium Parium 
 in the Great Charter means 
 trial by jury, no peculiar sanc- 
 tion is thereby given to that 
 mode of trial, because the words 
 "vel per legem terras" follow 
 the words "judicium parium." 
 Had nothing more been in- 
 tended ia the Great Charter 
 than to ordain that a freeman 
 shall not be imprisoned, (fee, 
 except by the law of the land, 
 there would have been no need 
 
 to insert the words, "per legale 
 judicium parium " at all. But 
 if it was designed (as I believe 
 it was) to sanction trial by jury 
 as the rule in our courts, 
 though with necessary excep- 
 tions, we see the fullest reason 
 for the Charter being worded as 
 we find it. Of course there 
 would be no "judicium pa- 
 rium" wanted, where the ac- 
 cused party pleaded guilty ; or 
 where the trial by battle was 
 lawfully demanded, or where 
 (in civil cases) there was no 
 issue of fact taken, but merely 
 a demurrer raised to the legal 
 sufficiency of pleadings. Many 
 
OF THE CONSTITUTION. 221 
 
 It is but a few years since an English writer, by- 
 proffering an eulogy on trial by jury, would have laid 
 himself open to a remark, Hke that of the Spartan's to 
 the rhetorician, who volunteered a panegyric on Hercules : 
 " Why, who ever thought of finding fault with Hercules ? " 
 But now the fashion has sprung up of sneering at the 
 decisions of jurors; and we continually hear of schemes 
 to transfer the duty of pronouncing on disputed facts 
 from the jury-box to the bench. Juries are, of course, 
 liable to error ; and, when they err, their blunders are made 
 in public, and draw at least a full share of notice ; but, 
 on the other hand, we should remember the invariable 
 honesty, and the almost invariable patience, with which 
 juries address themselves to their duty. No spectacle is 
 more markworthy than that which our common law courts 
 continually offer, of the unflagging attention and resolute 
 determination to act fairly and do their best, which is 
 shown by jurors, though wearied by the length of trials, 
 which are frequently rendered more and more wearisome 
 by needless cross-examinations and unduly prolix oratory. 
 The juries of our agricultural districts, with a good share 
 of smock frocks in the jury-box (the constant object of 
 the small whispered wit of pert professionals), deserve to 
 be studied as proofs, of how much worth is veiled in low 
 estate in England, which trial by jury calls into action. 
 The thoughtful observer of their enduring zeal in the 
 unpaid discharge of a burdensome function, must re- 
 verence from the very depth of his heart the twelve 
 plain, good, and lawful men before him, "the sturdy 
 honest, unlettered jurors, who derive no dignity but from 
 
 other exceptional cases may be exceptions as prove the rule, 
 suggested, but they are all such 
 
222 RISE AND PROGRESS 
 
 the performance of their duties."* Such generous ful- 
 ness and fairness in hearing and thinking hefore deciding 
 are not found in any other trihunaL Another inestimahle 
 advantage pecuHar to jury trial is, that it is not known 
 beforehand who will he the jurors in any particular case, 
 so that there is no time given for the work of corruption. 
 It is hardly known, even at the trial, who the individual 
 jurors are; and, when the trial is over, the members of 
 the jury are dispersed and lost sight of amid the mass of 
 the community. Hence they are, while acting, exempt 
 from all bias of fear and from all selfish motive to 
 favour. And not only are they pecuharly free from all 
 evil influences upon their integrity, but they are free from 
 the suspicion of being so influenced. The people have 
 full confidence in their honesty. The same amount of 
 confidence (whether deserved or not) would not be ac- 
 corded to permanent paid officials : and there is truth in 
 the seeming paradox of Bentham, that it is even more 
 important that the administration of justice should be 
 believed to be pure than that it should actually be so. 
 Nor are the errors of judgment which juries fall into by 
 any means so numerous as the impugners of the system 
 assert. The jury generally know what they are about 
 much better than their critics do. "Twelve men con- 
 versant with life, and practised in those feelings which 
 mark the common and necessary intercourse between man 
 and man,"* are far more Hkely to discriminate correctly 
 between lying and truth-telUng tongues, between bad and 
 good memories, and to come to a sound, common-sense 
 conclusion about disputed facts, than any single intellect 
 
 * Livingston's Preface to the * Curran. 
 Louisiana Code." 
 
OF THE CONSTITUTION, 223 
 
 is, especially if that single intellect has been ^' narrowed, 
 though sharpened," by the practice of the profession of 
 the law. 
 
 It is unquestionably in criminal charges that the value 
 of trial by jury is most apparent, but the prevalence of 
 that mode of trial in civil causes also, so far as they in- 
 volve disputes of fact, is of incalculable advantage to the 
 community. Mr. Forsyth, in the work which I have be- 
 fore mentioned, refers well on this point to the opinion 
 of the most profound writer on political principles of the 
 present age, M. de Tocqueville : — 
 
 " We must not suppose that it is trial by jury in crimi- 
 nal cases only that exercises a beneficial influence, or 
 that it can safely stand alone. In his able and philo- 
 sophical work, De la Democratie en Amerique, M. de 
 Tocqueville avows his conviction that the jm*y system, if 
 Hmited solely to criminal trials, is always in peril. And 
 the reasons he gives for this opinion are well worthy of 
 consideration. He says that in that case the people see 
 it in operation only at intervals, and in particular cases ; 
 they are accustomed to dispense with it in the ordinary 
 affairs of life, and look upon it merely as one means, and 
 not the sole means, of obtaining justice. But when it 
 embraces civil actions, it is constantly before their eyes, 
 and affects all their interests ; it penetrates into the usages 
 of hfe, and so habituates the minds of men to its foims, 
 that they, so to speak, confound it with the very idea of 
 justice. The jury, he continues, and especially the civil 
 jury, serves to imbue the minds of the citizens of a 
 country with a part of the qualities and character of a 
 judge ; and this is the best mode of preparing them for 
 freedom. It spreads amongst all classes a respect for 
 the decisions of the law : it teaches them the practice of 
 
224 BISE AND PROGRESS 
 
 equitable dealing. Each man in judging his neighbour 
 thinks that he may be also judged in his turn. This is 
 in an especial manner true of the civil jury; for although 
 hardly any one fears lest he may become the object of a 
 criminal prosecution, everybody may be engaged in a 
 lawsuit. It teaches every man not to shrink from the 
 responsibility attaching to his own acts: and this gives a M 
 manly character, without which there is no political vir- ■ 
 tue. It clothes every citizen with a kind of magisterial 
 office; it makes all feel that they have duties to fulfil 
 towards society, and that they take a part in its govern- 
 ment; it forces men to occupy themselves with some- 
 thing else than their own affairs, and thus combats that 
 individual selfishness, which is, as it were, the rust of 
 the community. Such are some of the advantages which, 
 according to the view of this profound thinker, result 
 from trial by jury in civil cases. 
 
 " But, moreover, it is one great instrument for the 
 education of the people. * C'est la, a mon avis,' says 
 M. de Tocqueville, ' son plus grand avantage.' He calls 
 it a school into which admission is free and always open, 
 which each juror enters to be instructed in his legal 
 rights, where he engages in daily communication with 
 the most accomplished and enlightened of the upper 
 classes, where the laws are taught him in a practical 
 manner, and are brought down to the level of his appre- M 
 hension by the efforts of the advocates, the instruction ■ 
 of the judge, and the very passions of the parties in the 
 cause. Hence, says M. de Tocqueville, ' Je le regarde 
 comme I'un des moyens les plus efficaces dont puisse se 
 servir la society pour I'education du peuple.'" 
 
 I will appeal to one authority more to show that the 
 institution of trial by jury in this country has not only 
 
 I 
 
OF THE CONSTITUTION. 225 
 
 given us the fairest system of trial ever known, but has 
 also for centuries been of incalculable national advantage 
 as an instrument of national education. I gladly quote 
 on this point the no less true than eloquent words of the 
 great and good Dr. Arnold : — " The effect of any parti- 
 cular arrangement of the judicial power is seen directly 
 in the greater or less purity with which justice is admi- 
 nistered; but there is a further effect, and one of the 
 highest importance, in its furnishing to a greater or less 
 portion of the nation one of the best means of moral 
 and intellectual culture, the opportunity, namely, of exer- 
 cising the functions of a judge. I mean, that to accus- 
 tom a number of persons to the intellectual exercise of 
 attending to, and weighing and comparing evidence, and 
 to the moral exercise of being placed in a high and re- 
 sponsible situation, invested with one of God's own attri- 
 butes — that of judgment; and having to determine with 
 authority, between truth and falsehood, right and wrong 
 — is to furnish them with very high means of moral and 
 intellectual culture ; in other words, it is providing them 
 with one of the highest kinds of education." 
 
 The great constitutional enactments of Magna Carta 
 have, from the very earliest times, been regarded in that 
 light, and treated not as temporary regulations, but as 
 the fundamental institutions of our government and laws. 
 Their confirmation was repeatedly exacted from the reign- 
 ing sovereign by our parhaments ; not because the Great 
 Charter was supposed to become invalid without such 
 ratification, but in order to impress more solemnly on 
 impatient princes and profligate statesmen their duty of 
 respecting the great constitutional ordinances of the 
 realm. The most awful rites of religion were called in 
 aid by the English clergy (to whom, as Hallam remarks, 
 
 L 3 
 
226 EISE AND PROGRESS 
 
 we are much indebted for their zeal in behalf of liberty 
 during the thirteenth century), to bind the slippery con- 
 sciences of John's son, and grandson, and to awe them 
 by the terrors of excommunication from breaking the 
 great compact between the Crown and the people. The 
 most earnest efforts were also employed to make the 
 Great Charter familiarly known throughout the land by 
 all, as the common birthright of all, and the most strin- 
 gent measures of law were devised to insure the prompt 
 punishment of any who should dare to violate it. To 
 quote an instance or two of this : — by the Confirmatio 
 Chartarum, 25 Ed. I. (part of which has already been 
 cited), it was ordained that — 
 
 " The charters of liberties and of the forest should be 
 kept in every parish ; and that they should be sent under 
 the king's seal as well to the justices of the forest as to 
 others, to all sheriffs and other officers, and to all the 
 cities in the realm, accompanied by a writ commanding 
 them to publish the said charters, and declare to the 
 people that the king had confirmed them in all points. 
 All justices, sheriffs, mayors, and other ministers were 
 directed to allow them when pleaded before them ; and 
 any judgment contrary thereto was to be null and void. 
 The charters were to be sent under the king's seal to all 
 cathedral churches throughout the realm, there to remain, 
 and to be read to the people twice a year. It was or- 
 dained that all archbishops and bishops should pronounce 
 sentence of excommunication against those who, by word, 
 deed, or counsel, did contrary to the aforesaid charters." 
 
 By the " Articuli super Cartas^' a statute passed in 
 the 28th Ed. L, the charters are ordered to be read by 
 the sheriffs four times a year, before the people of the 
 shire in open county court. And the statute farther 
 
OF THE CONSTITUTION. 227 
 
 ordains, that for the punishing of ojffenders against the 
 charters — 
 
 " There shall be chosen, in every shire court, by the 
 commonalty of the same shire, three substantial men, 
 knights, or other lawful, wise, and well-disposed persons, 
 which should be justices sworn and assigned by the 
 king's letters patent under the great seal, to hear and 
 determine without any other writ, but only their com- 
 mission, such plaints as shall be made upon all those that 
 commit or offend against any point contained in the 
 aforesaid ch alters, in the shires where they be assigned, 
 as well within franchises as without, and as well for the 
 king's officers out of their places as for others ; and to 
 hear the plaints from day to day without any delay, and 
 to determine them, without allowing the delays which be 
 allowed by the common law. And the same knights 
 shall have power to punish all such as shall be attainted 
 of any trespass done contrary to any point of the afore- 
 said charters where no remedy was before by the com- 
 mon law, as before is said, by imprisonment, or by ran- 
 som, or by amerciament, according to the trespass." 
 
 A volume, precious to Englishmen for the merits both 
 of its subject and of its authors, might easily be collected 
 from the panegyrists of Magna Carta. Lord Chatham 
 has been already quoted ; we may well recall the words 
 of one statesman more, who is selected on account of 
 his eminence as an historian, and as a philosophical and 
 political inquirer. His eloquent observations are also 
 the more valuable for citation here, because they forcibly 
 point out the existence in our constitution of that law of 
 progress and development, the operation of which it is 
 one of the principal objects of these pages to illustrate. 
 Sir James Mackintosh says of Magna Carta — 
 
228 EISE AND PROGRESS 
 
 " It was a peculiar advantage that the consequences of 
 its principles were, if we may so speak, only discovered 
 gradually and slowly. It gave out on each occasion only 
 as much of the spirit of liberty and reformation as the 
 circumstances of succeeding generations required, and as 
 their character would safely bear. For almost five cen- 
 turies it was appealed to as the decisive authority on 
 behalf of the people, though commonly so far only as 
 the necessities of each case demanded. Its effect in 
 these contests was not altogether unlike the grand pro- 
 cess by whi^h nature employs snows and frosts to cover 
 her delicate germs, and to hinder them from rising above 
 the earth till the atmosphere has acquired the mild and 
 equal temperature which insures them against blights. 
 On the English nation, undoubtedly, the Charter has 
 contributed to bestow the union of establishment with 
 improvement. To all mankind it set the first example 
 of the progress of a great people for centuries, in blend- 
 ing thoir tumultuary democracy and haughty nobility 
 with a fluctuating and vaguely-Hmited monarchy, so as at 
 length to form from these discordant materials the only 
 form of free government which experience had shown to 
 be reconcilable with widely-extended dominions. Who- 
 ever in any future age or yet unborn nation may admire 
 the felicity of the expedient which converted the power 
 of taxation into the shield of liberty, by which discre- 
 tionary and secret imprisonment was rendered impracti- 
 cable, and portions of the people were trained to exercise 
 a larger share of judicial power than ever was allotted to 
 them in any other civilized state, in such a manner as to 
 secure, instead of endangering, public tranquilHty ; who- 
 ever exults at the spectacle of enlightened and inde- 
 pendent assemblies, which, under the eye of a well-in- 
 
OF THE CONSTITUTION. 229 
 
 " formed nation, discuss and determine the laws and policy 
 likely to make communities great and happy; whoever is 
 capable of comprehending all the effects of such insti- 
 tutions with all their possible improvements upon the 
 mind and genius of a people, — is sacredly bound to speak 
 with reverential gratitude of the authors of the Great 
 Charter. To have produced it, to have preserved it, to 
 have matured it, constitute the immortal claim of Eng- 
 land upon the esteem of mankind. Her Bacons and 
 Shakespeares, her Miltons and Newtons, with all the 
 truth which they have revealed, and all the generous 
 virtue which they have inspired, are of inferior value 
 when compared with the subjection of men and their 
 rulers to the principles of justice, if, indeed, it be not 
 more true that these mighty spirits could not have been 
 formed except under equal laws, nor roused to full acti- 
 vity without the influence of that spirit which the Great 
 Charter breathed over their forefathers." 
 
CHAPTEB XIV. 
 
 Progress of the Constitution during the Reigns of the ten last 
 Plantagenet Kings. — Growing Importance of the House of Com- 
 mons. — Qualifications of Members and Electors. — Prerogatives of 
 the Crown. — State of the Population. — Jurors. — Boroughs. — 
 Number of Electors. 
 
 It has been shown in the preceding pages that the thir- 
 teenth century saw the commencement of our nationality, 
 and that during it the great foundations of our consti- 
 tution were laid. But it would be ignorant rashness to 
 assert that the organization of our institutions was com- 
 plete even at the time of the death of Edward I. a.d. 1307. 
 What was said of the Koman Constitution by two of its 
 greatest statesmen, and written by another, may with 
 equal truth be averred of the Enghsh, — that no one man 
 and no one age sufficed for its full production.* But its 
 kindly growth went rapidly on during the reigns of the 
 later Plantagenets ; and the historian of the last cen- 
 turies of the middle ages,t traces with pride and pleasure 
 
 * " Tum Laelius, nunc fit illud part of the 8th chapter of Hal- 
 
 Catonis certius, nee temporis lam's " Middle Ages," and the 
 
 unius, nee hominis esse consti- valuable supplemental notes to 
 
 tutionem reipublicae." — Cicero the last edition. The student 
 
 De Bepuhlica, lib. ii. 21. may also examine with great 
 
 t See throughout the 3rd advantage the seven last lee- 
 
RISE AND PROGRESS OF THE CONSTITUTION. 231 
 
 the increase and systemization of the power of the House 
 of Commons in asserting and maintaining the exclusive 
 right of taxation ; in making the grant of supplies de- 
 pendent on the redress of grievances ; in directing and 
 checking the public expenditure ; in establishing the 
 necessity of the concurrence of both Houses of Parlia- 
 ment in all legislation; in securing the people against 
 illegal ordinances and intei'polations of the statutes ; in 
 inquiring into abuses; in controlling the royal admi- 
 nistration ; in impeaching and bringing to punishment 
 bad ministers and other great offenders against the laws 
 and liberties of the land ; and in defining and upholding 
 their own immunities and privileges. 
 
 The limits of this work will only permit the citation 
 here of a few proofs of the progress of our constitution 
 during this time. More elaborate treatises must be re- 
 ferred to for full information. 
 
 In the second year of Edward II.'s reign we find the 
 Commons, when applied to for a grant of money to the 
 Crown, making it " upon condition that the king should 
 take advice and grant redress upon certain articles wherein 
 they are aggrieved. They complain that they are not 
 governed as they ought to be, especially as to the articles 
 of the Great Charter."* 
 
 In 1322 a statute was passed, declaring that " the mat- 
 ters to be established for the estate of the king and of 
 his heirs, and for the estate of the realm and of the 
 people, should be treated, accorded and established in 
 parliament, by the king, and by the assent of the pre- 
 lates, earls and barons, afid the commonalty of the realm. 
 
 tures of the 2ud part of M. tative Government.' 
 Guizot's " History of Represen- * Hallam, p. 40. 
 
232 RISE AND PROGRESS 
 
 according as had been before accustomed." Mr. Hallam 
 well observes that " this statute not only establishes by 
 a legislative declaration, the present constitution of par- 
 liament, but recognises it as already standing upon a 
 custom of some length of time."* During Edward III.'s 
 long and active reign, the wars in which that sovereign 
 was almost continually engaged, kept him dependent on 
 his parliament for supplies of money ; and the power of 
 the Commons was thereby materially augmented, not- 
 withstanding the high abilities of Edward, and his fond- 
 ness for his royal prerogatives. The king was continually fl 
 attempting to raise money by arbitrary and illegal im- 
 posts; but the Commons never ceased to remonstrate 
 against such acts, and to insist on the fundamental right 
 of there being no taxation without consent. The com- 
 plete and permanent division of parliament into two 
 Houses, as at present, is admitted by all writers to have 
 been established in this reign, if not earlier. 
 
 The Commons have now formed themselves into a body 
 or estate of the realm, distinct from the estate of the 
 prelates and abbots, or spiritual peers, distinct from the 
 estate of the temporal peers, distinct from the Crown, 
 but comprehending all the rest of the free human beings 
 that live in the land. A distinct House of Parliament 
 represents this estate of the Commons, and is now gene- 
 rally (and with substantial, though not literal accuracy) 
 spoken of as being itself that which it represents, as the 
 Commons of the realm. 
 
 The leading feature of our constitutional history is no 
 longer a conflict between the king and the barons, wherein 
 the Commons, as auxiliaries of the latter, play a mere 
 
 * " Constitutional History of England," vol. i. p. 5. 
 
OF THE CONSTITUTION. 233 
 
 secondary part. That conflict has, to a great extent, 
 ceased. The reign of Edward III. presents to us the 
 aspect of the baronial aristocracy grouped round the 
 throne, while the Commons are the party of progress. 
 Not that the nobles of England have given up their high 
 station of protectors of the liberties of England; on 
 great emergencies, especially in the reign of Eichard IL, 
 we shall see them acting in unison with the Commons in 
 the national cause. But, as a general rule, it is the 
 Lower House of Parhament that now supports the strug- 
 gle for constitutional rights and the advancement of 
 popular power. " The Commons do not, indeed, aspire 
 to snatch the supreme power from the hands of the king 
 and the barons ; they would not have strength enough 
 to do so, nor do they entertain any thought of it; but 
 they resist every encroachment upon those rights which 
 they are beginning to know and to appreciate ; they have 
 acquired a consciousness of their own importance, and 
 know that all public affairs properly fall under their cog- 
 nizance. Finally, either by their petitions, or by their 
 debates in reference to taxation, they are daily obtaining 
 a larger share in the government, exercise control over 
 affairs which, fifty years before, they never heard men- 
 tioned, and become, in a word, an integral and almost 
 indispensable part of the grcat national council, and of 
 the entire political machine."* 
 
 It is also observable, that the Commons, during this 
 reign, in their opposition to the royal power, do not 
 attack the king himself, but they lay all blame upon his 
 ministers, and begin to " assert and popularize the prin- 
 
 * Guizot's « History of Re- ii. lect. 22. 
 prcsentative Government," part 
 
234 RISE AND PKOGRESS 
 
 ciples of parliamentary responsibility." They frequently 
 addressed Edward, complaining of his counsellors and 
 officers; and in 1376 we find them exercising, for the 
 first time, the formidable constitutional weapon of im- 
 peachment. In that year the Commons accused, before 
 the House of Lords, the Lords Latimer and Nevil, and 
 four commoners, Lyons, ElHs, Peachey, and Bury, who 
 had been employed by the king in revenue matters, for 
 various acts of ministerial misconduct.* The Lords tried 
 and convicted them, except Bury, who did not appear to 
 take his trial. The records of these proceedings well 
 deserve attention, especially of the trials of Latimer and 
 Nevil. 
 
 Edward frequently asked the advice of his parliament 
 on questions of war and peace. Some have thought that 
 this was done by the king through artifice, with a view 
 to throw the responsibility of warfare on the Commons, 
 and prevent their murmuring, when asked for subsidies, 
 but that the Commons avoided the responsibility. But 
 M. Guizot contends, I think correctly, that the Commons 
 of the 14th century frequently sought and exercised the 
 power of thus interfering in the administration of the 
 public affairs of the kingdom. " They accepted the at- 
 tendant responsibility, and they gained greatly by it. 
 In 1328, during the minority of Edward, and while Mor- 
 timer reigned in his name, the treaty of peace with Scot- 
 land, which fully liberated that kingdom from all feudal 
 subordination to England, was concluded with the con- 
 sent of the Parliament. The Commons are expressly 
 mentioned; and we may suppose that Mortimer was 
 
 * See 3 Rot. Pari., 323. An given in Hallam. 
 erroneous reference to Rymer is 
 
OF THE CONSTITUTION. 235 
 
 anxious thereby to cover his own responsibility for a dis- 
 graceful treaty. In 1331, Edward consulted the parlia- 
 ment upon the question of peace or war with France, on 
 account of his continental possessions, and also upon his 
 projected journey to Ireland. The parliament gave its 
 opinion in favour of peace, and of the king's departure 
 for Ireland. In 1336, it urged the king to declare war 
 against Scotland, saying : ' That the king could no 
 longer, with honour, put up with the wrongs and injuries 
 daily done to him and his subjects by the Scots.'* In 
 1341, after Edward's first victories in France, the par- 
 liament pressed him to continue the war, and furnished 
 him with large subsidies ; and all classes of society be- 
 stirred themselves to support the king in a conflict which 
 had become national. In 1343, the parliament was con- 
 voked to examine and advise what had best be done in 
 the existing state of affairs, especially in regard to the 
 treaty recently concluded by the king with his enemy the 
 king of France. Sir Bartholomew Burghersh told the 
 parhament that ' as the war was begun by the common 
 advice of the prelates, great men, and commons, the king 
 could not treat of, or make peace, without the like as- 
 sent.'t The two Houses deliberated separately, and gave 
 their opinion that the king ought to make peace if he 
 could obtain a truce that would be honourable and ad- 
 vantageous to himself and his friends; but if not, the 
 Commons declared that they would aid and maintain his 
 quarrel with all their power. In 1344, when theHruce 
 with the king of France had been broken off by him, the 
 parliament, on being consulted, manifested a desire for 
 
 * « Parliamentary History," f Ibid., p. 106. 
 vol. i. p. 93. 
 
236 RISE AND PROGRESS 
 
 '' peace, but thought it could only be obtained by carrying 
 on the war with energy, and voted large subsidies for the 
 purpose. In 1348, the war had become increasingly bur- 
 densome ; all the subsidies proved insufficient ; and the 
 king again consulted the parliament * concerning the war 
 undertaken with its consent.' The Commons^ perceiving 
 that they had gone rather too far in their language, now 
 showed greater reserve and answered ' that they were not 
 able to advise anything concerning the war, and there- 
 fore desired to be excused as to that point ; and that the 
 king will be advised by his nobles and council, and what 
 shall be by them determined, they would consent unto, 
 confirm, and establish.'* In 1354, the Lord Chamber- 
 lain, by the king's command, informed the parliament : 
 * That there was great hopes of bringing about a peace 
 between England and France, yet the king would not 
 conclude anything without the consent of his Lords and 
 Commons. Wherefore he demanded of them, in the 
 king's name, whether they would assent and agree to a 
 peace, if it might be had by treaty.* To this the Com- 
 mons replied, at first, ' that what should be agreeable to 
 the king and his council in making of this treaty, would 
 be so to them ;' but on being asked again, ' If they con- 
 sented to a perpetual peace, if it might be had,' they all 
 unanimously cried out. Yea ! Yea ! f Finally, on the 
 25th of January, 1361, peace having been concluded by 
 the treaty of Bretigny, the parliament was convoked, the 
 treaty was submitted to its inspection and received its 
 approval, and on the 3 1 st a solemn ceremony took place 
 in the cathedral church at Westminster, when all the 
 
 * " Parliamentary History," f Ibid., p. 122. 
 vol. i. p. 115. 
 
OF THE CONSTITUTION. 237 
 
 members of parliament, both Lords and Commons, indi- 
 vidually swore upon the altar to observe the peace. /\A/^ 
 
 " In 1368, the negotiations with Scotland were sub- 
 mitted to the consideration of the parliament ; the king 
 of Scotland, David Bruce, offered peace on condition of 
 being relieved from all homage of his crown to the king 
 of England. The Lords and Commons replied, ' That 
 they could not assent to any such peace, upon any ac- 
 count, without a disherison of the king, his heirs and 
 crown, which they themselves were sworn to preserve, 
 and therefore must advise him not to hearken to any such 
 propositions;'* and they voted large subsidies to con- 
 tinue the war. 
 
 "In 1369, the king consulted the parhament as to 
 whether he should recommence the war with France, be- 
 cause the conditions of the last treaty had not been ob- 
 served ; the parliament advised him to do so, and voted 
 subsidies. 
 
 " These facts prove the most direct and constant inter- 
 vention of the Commons in matters of peace and war. 
 Nor did they seek to elude this responsibility, so long as 
 the war was successful and national. When tlie subsi- 
 dies became excessive, they manifested greater reserve in 
 giving their opinion beforehand. When fortune turned 
 decidedly against Edward IIL, at the close of his reign, 
 the Commons, as we have seen, took advantage of the 
 right of intervention which they had acquired, to possess 
 themselves also of the right of impeaching the ministers, 
 to whom they attributed the misfortunes of the time. 
 All this follows in the natural course of things, and 
 
 * " Parliamentary History," vol. i. p. 131. 
 
238 RISE AND PROGRESS 
 
 clearly demonstrates the continually- increasing influence 
 of the Commons in political matters." 
 . The acknowledged right of the Commons to participate 
 in legislation is proved (as M. Guizot well observes) by 
 the very phraseology of the statute book. *' When we 
 open a collection of the statutes of this reign, we find at ™ 
 the head of each statute one of the two following for- 9 
 mulas : ' A la requeste de la commune de son roialme 
 par lor petitions mises devant lui et son co7iseil, par 
 assent des prelats, comtes, barons, et autres grantz, au 
 dit parlement assembles,' &c.* Or: 'Par assent des 
 pr^lats, comtes, et harons, et de tote la commune du 
 roialme, au dit parlement assembles^ &c.t Sometimes 
 the statute begins with these words : ' Ce sont les choses 
 que notre seigneur le roi, les prelats, seignours, et la 
 commune ont ordine en ce present parlement! "% 
 
 Another important fact characterising the reign of Ed- ■ 
 ward III., is " the regularity with which the parliament 
 was convoked. A measure was adopted for this purpose 
 in 1812, during the reign of Edward IL, by the Lords 
 Ordainers. Subsequently we meet with tw^o statutes relative 
 to the convocation of this assembly, one of which was 
 passed in 1331, and the other in 1362. Finally, in 1377, 
 the last year of the reign of Edward III., the Commons 
 
 I 
 
 * "At the request of the all the commons of the realm, 
 
 commons of his realm, by their in the said parliament assem- 
 
 petitions laid before him and bled." 
 
 his council, and by the assent :}: "These are the things which 
 
 of the prelates, earls, barons, our lord the king, the prelates, 
 
 and other nobles, in the said lords, and commons have or- 
 
 parliament assembled." dained in this present parlia- 
 
 t " By the assent of the pre- ment." 
 
 lates, earls, and barons, and of § Guizot. 
 
OF THE CONSTITUTION. 239 
 
 themselves demanded by petition that the sessions of 
 parliament should take place regularly every year. During 
 the reign of Edward III., we may enumerate forty-eight 
 sessions of parliament, which make nearly one session 
 in each year. 
 
 " Nor did the parliament merely provide for the regu- 
 larity of its convocation ; it took measures, at the same 
 time, to ensure the security of its deliberations. In 1332, 
 a royal proclamation forbade all persons to wear coats of 
 mail, or to carry any other offensive or defensive arms, in 
 those towns in which the parhament was sitting : it also 
 prohibited all games and diversions which might disturb 
 the deliberations of the assembly. The frequent recur- 
 rence of proclamations of this kind announces the forma- 
 tion of a regular assembly."* 
 
 During the 22 years of the reign of Richard II., the 
 power of the Commons made rapid progress, and at the 
 accession of Henry IV. " of the three capital points in 
 contest while Edward III. reigned, 1st, that money could 
 not be levied ; 2nd, or law^s enacted without the Commons* 
 consent ; and 3rd, that the administration of Government 
 was subject to their inspection and controul, the first was 
 absolutely decided in their favour, the second was at 
 least perfectly admitted in principle, and the last was 
 confirmed by frequent exercise." f They also claimed 
 and maintained a right to appropriate to special purposes 
 the supplies which they granted to the king ; and by the 
 impeachment of the Earl of Suffolk, Richard's favourite 
 minister in 1386, they confirmed their right of wielding 
 that formidable but necessary weapon against the minis- 
 ters of the royal will. The attempt made by the king 
 
 * Guizot. vol. iii. p. 124. 
 
 t Hallam's "Middle Ages," 
 
240 RISE AND PROGRESS 
 
 in 1398, to obtain a packed House of Commons deseiTes 
 notice as a royal confession, that it was necessary to 
 rule the nation through a parliament. The temporary 
 triumph which the king obtained by this device, was« 
 soon followed by his overthrow and deposition; and 
 thenceforth a free parliament became the popular cry 
 when the common liberties were supposed to be in danger.* 
 The princes of the House of Lancaster, conscious that 
 they reigned rather by the people's choice than by any 
 lineal title to the Crown, did not venture on any open re- 
 sistance to the powers which the Lower House of Par- 
 liament had obtained, and they regularly held a parlia-_ 
 ment in almost every year. Some arbitrary acts on th©B 
 part of the Crown may be found during their reigns, but 
 they are far less numerous than had formerly been the 
 case, and are clearly exceptional to the regular course of 
 Government. Even Henry V., in the zenith of his glory 
 and popularity, never ventured to slight the authority of 
 parliament in granting supplies in general legislation 
 and in participating in the administration of affairs. ■ 
 As the noble and learned historian of "England and 
 France under the House of Lancaster" observes,t "What- 
 ever money was raised by taxes, Henry owed entirely to 
 their votes ; and, as the intoxication into which his vic- 
 tories threw them along with the country, never tempted 
 him to encroach upon their functions, so he showed hisa 
 sense of their power by letting their chagrin at his only 
 disaster pass away before he asked for any aid to re- 
 estabUsh his fortunes. An important change in the 
 financial system was introduced in his time, and it showed^ 
 
 * « Penny Cyclopaedia," art. t P. 236. 
 " Borough." 
 
OF THE CONSTITUTION. 241 
 
 in a striking manner the ascendancy of the parliament, for 
 it was entirely of parliamentary creation, — I mean the 
 practice of pledging, as a security for loans made to the 
 Crown, duties already granted." 
 
 Our parliaments under the House of Lancaster, hesides 
 maintaining the rights which had heen acquired hy their 
 predecessors, estabhshed others of great importance. At 
 least it is in the records of that period that we first 
 obtain definite proof of them. HaJlam cites at length* 
 a remarkable passage from the Eolls of Parliament of 
 9th Henry IV., which shows the recognition of two im- 
 portant constitutional principles; namely, 1st, that all 
 money bills must originate in the House of Commons ; 
 and 2ndly, the right of the Houses that the king should 
 take no cognizance of the subject of their dehberations 
 until they had come to a decision upon it, and brought 
 that decision regularly before him. 
 
 With respect to the first of these two points it may be 
 further remarked, that in the earhest parliaments, the 
 regular course was for all statutes to originate in pro- 
 ceedings of the House of Commons. 
 
 The Commons used to petition the Crown, and the 
 King, on their petition, and by the advice of the Lords, 
 used to enact. By ancient custom the King used to reply 
 to all the petitions of the Commons at the end of the 
 session; and statutes founded on petitions that were 
 sanctioned by the Lords and gi'anted by the Crown, were 
 afterwards drawn up by the King's officers. Frequent 
 frauds were committed by those functionaries, who did 
 not faithfully reproduce in the statutes the petitions out 
 of which they had originated. The Commons continually 
 
 * 3 " Middle Ages," p. 102 ; Representative Government,' 
 see also Guizot's " History of part ii. lect. 25. 
 
 M 
 
242 RISE AND PROGRESS 
 
 complained of this trickery; but at last in Henry VI/s 
 time, they began to guard effectually against it, by pre- 
 paring bills in their own House in the form of complete 
 statutes, which they sent up to the House of Lords, that 
 they might be discussed in that assembly, and, if adopted 
 there, be presented to the king, who then had nothing 
 more to do than to give or refuse his sanction. No pre- 
 cise date*can be named when the House of Lords began 
 to originate bills in their own House, which were sent 
 thence to the Commons. But the custom soon grew up ; 
 and it became the rule of parliament that bills may com- 
 mence in either House, except money bills, which, as we _ 
 have seen, must come from the Commons. I 
 
 The essential right of freedom of debate is to some 
 extent involved in the second principle of parliamentary 
 law, which has been mentioned as solemnly recognised 
 in the ninth year of Henry IV. There is, however, no 
 point of parliamentary privilege which the Crown con- 
 ceded to the Commons more unwillingly than full liberty 
 of speech; but the Commons felt its full importance, 
 and struggled manfully and perseveringly to secure it. 
 An attack which Eichard II., in the last year of his 
 reign, made upon Thomas Haxey, a member of the 
 Lower House, for words spoken in debate, was no slight 
 cause of the popular indignation by which that mis- 
 guided prince was driven from the throne. One of the 
 first acts of Henry IV.'s first parliament was to annul 
 the proceedings against Haxey. During this reign we 
 find the Speaker of the House of Commons demanding 
 liberty of speech of the king at the opening of every 
 session. Every circumstance proves that under Henry 
 IV. the Commons used greater liberty of speech than 
 they had previously enjoyed. It was, indeed, made a 
 subject of special praise to Sir John Tibetot, Speaker in 
 
OF THE CONSTITUTION. 243 
 
 the parliament of 1406. The king soon manifested great 
 distrust of the extension given to this right, which was 
 prohably exercised with some of the rudeness which often 
 marked the manners of that time. In 1410, he told the 
 Commons that he hoped that they would no longer use 
 unbecoming language, but act with moderation. In 1411, 
 the Speaker, Sir Thomas Chaucer, having made the 
 usual demand at the opening of the session, the king 
 replied that he would allow the Commons to speak as 
 others before had done, but that "he would have no 
 novelties introduced, and would enjoy his prerogative." 
 The Speaker requested three days to give a written 
 answer to this observation, and then rephed "that he 
 desired no other protestation than what other speakers 
 had made; and that if he should speak anything to the 
 king's displeasure, it might be imputed to his own igno- 
 rance only, and not to the body of the Commons," which 
 the king granted. 
 
 We hear of no infringement upon the liberty of 
 speech enjoyed by the Commons until the parliament of 
 1455, at which time a deputy from Bristol, Thomas 
 Young, complained that he had been arrested and impri- 
 soned in the Tower, six years before, on account of a 
 motion which he had brought forward in the House. 
 The object of this motion had been, to declare, that as 
 the king then had no children, the Duke of York was 
 the legitimate heir to the throne. The Commons trans- 
 mitted this petition to the Lords, and the king com- 
 manded his Council to do whatever might be judged 
 fitting on behalf of the petitioner."* 
 
 * Guizot's " History of Re- ii. lect. 25. 
 presentative Government," part 
 
 M 2 
 
244 RISE AND PROGRESS 
 
 Other points of parliamentary privilege, such as thd 
 freedom of members from arrest, first attract attention 
 in the records of the Lancastrian reigns; but with 
 regard to one very important matter, the right to investi- 
 gate and determine contested elections, the Commons 
 were as yet unarmed. The judgment of election disputes 
 was exercised by the king and his council. And it was 
 at this epoch that it was solemnly declared that the 
 Commons had no share in the general judicial functions 
 of parliament. This declaration was made in 1399, at 
 the suggestion of the Commons themselves, and by the 
 mouth of the Archbishop of Canterbury, who said: 
 " That the Commons were only petitioners, and that all 
 judgment belonged to the king and lords; unless it was 
 in statutes, grants of subsidies, and such hke." Since 
 this period the Commons, when they desired to interfere 
 in judgments otherwise than by impeachment, were 
 obliged to employ the means of bills of attainder. They 
 adopted this plan in the case of the Duke of Suffolk in 
 1450, and very frequently afterwards.* 
 
 * See Guizot, ut supra, lect. the parties who are subjected 
 
 25. The following observations to these proceedings are admit- 
 
 of Mr. May, on bills of attainder, ted to defend themselves by 
 
 deserve attention : — "The pro- counsel and witnesses before 
 
 ceedings of parliament in pass- both houses ; and the solemnity 
 
 ing bills of attainder, and of of the proceedings would cause 
 
 pains and penalties, do not vary measures to be taken to enforce 
 
 from those adopted in regard to the attendance of members upon 
 
 other bills. They may be intro- their service in parliament. In 
 
 duced into either house ; they evil times, this summary power 
 
 pass through the same stages ; of parliament to punish crimi- 
 
 and, when agreed to by both nals by statute has been per- 
 
 houses, they receive the royal verted and abused ; and in the 
 
 assent iu the usual form ; but best of times it should be re- 
 
OF THE CONSTITUTION. 245 
 
 The Lancastrian period of our parliamentary history is 
 pecuUarly remarkable for the statutes which were then 
 passed respecting elections. Besides the immediate sub- 
 jects which they deal with, they bear strong evidence to 
 the increasing importance of the House of Commons, 
 and to the anxiety of the Crown to influence the popular 
 assembly, which it could not with safety neglect or openly 
 control. An ancient statute of Edward I. ordains that 
 elections ought to be free, and forbids the disturb- 
 ance of their freedom.* And in the fifth year of Kichard 
 II.'s reign, an Act was passed to punish sherifis who were 
 negligent in making returns of pai'liamentary writs, 
 or who left out of the returns any cities or boroughs 
 which were bound, and formerly were wont, to send mem- 
 bers to parliament. With these exceptions, and some few 
 other unimportant ones, it is in the reigns of the Fourth, 
 Fifth, and Sixth Henr}'S that we first find the important 
 subject of the election and return of members become an 
 object of earnest legislative attention. 
 
 It is to be remembered, that the great instruments of 
 the Crown, in packing a House of Commons, were the 
 
 garded with jealousy ; and, nor are their powers directed 
 
 whenever a fitting occasion against the offender ; but they 
 
 arises for its exercise, it is un- are judges of equal jurisdiction 
 
 douhtedly the highest form of and with the same responsibility 
 
 parliamentary judicature. In as the Lords ; and the accused 
 
 impeachments, the Commons can only be condemned by the 
 
 are but accusers and advocates ; unanimous judgment of the 
 
 while the Lords alone are judges Crown, the Lords, and the Com- 
 
 of the crime. On the other mons." 
 
 hand, in passing bills of at- * Statute of Westminster the 
 
 taiuder the Commons commit First, c. v. ; see Reeve, " Hist, 
 themselves by no accusations, 
 
246 RISE AND PROGRESS 
 
 sheriffs, who were nominated by the king. When a 
 parliament was convened, it was to these officers that the 
 royal precept was addressed for the election of knights, 
 citizens, and burgesses. The king's writ required that 
 two knights should be elected for the county, and that 
 the sheriff should cause to be elected two citizens for 
 each city, and two burgesses for each borough in his 
 bailiwick. As no particular cities and boroughs were 
 specified, the sheriffs assumed a discretionary power as 
 to what places they would consider fit cities and boroughs 
 to return members to parliament; and this power was 
 often grossly abused by those functionaries, who omitted 
 or included boroughs most fraudulently and irregularly. 
 This wholesale garbling of parliamentary representation ■ 
 was checked by the statute of Richard II., which has 
 been referred to ; but the sheriffs still had the power of 
 influencing the elections and falsifying the returns of in- ■ 
 dividual members, especially of knights of the shire, as 
 these were elected in the county court, at which the 
 sheriff himself presided.* This power was frequently 
 used by them at the instigation of the Crown, or of great 
 noblemen, or for private ends of their own. Richard II. 
 had largely availed himself of this dishonest engine in 
 packing the House of Commons which he brought 
 together two years before his deposition. The parlia- _ 
 ments of his successor strove vigilantly to prevent such J 
 malpractices for the future. The statute of the 7th 
 
 * A practice was attempted roughs. See Hallam, p. 116, 
 
 at one time to have the bur- and note to p. 117; and see 
 
 gesses elected at the county "Penny Cyclopsedia," Boroughs, 
 
 court by delegates from the bo- p. 188. 
 
 I 
 
 i 
 
OF THE CONSTITUTION. 247 
 
 Henry IV. was passed "on the grievous complaints of 
 the Commons against undue elections for shires." It 
 contained regulations for the time and manner of the 
 election of knights; and, among other things, ordained 
 that all those who should he present at the county court, 
 as well suitors duly summoned for that cause as others, 
 should enter upon the election of knights ; and then in 
 full court they were to proceed freely and indifferently, 
 notwithstanding any request or command to the contrary. 
 The importance of this clause, with respect to the ques- 
 tion of how far the elective francliise extended, will be 
 hereafter considered. The statute also contained several 
 clauses to secure a true return by the sheriff of the 
 result of the election ; and by an Act passed four years 
 afterwards, severe penalties were imposed for any breach 
 of its provisions. 
 
 Notwithstanding these enactments, the king's minis- 
 ters, especially during the early part of Henry VI. 's 
 reign, continued their attempts to influence elections; 
 and used for this purpose not only the agency of the 
 sheriffs, but that also of the mayors and other officers of 
 the cities and boroughs. It was during this period that 
 a change in the character of our municipal institutions 
 was commenced, which will be presently described; a 
 change that made them more open than before to the 
 influence of corruption and intimidation. The parlia- 
 ment sought to check these practices in the twenty-third 
 year of Henry VI., when it was enacted that, under 
 peril of severe penalties, every sheriff should deliver a 
 proper precept to the mayor or baihff of each city or 
 borough in the shire to elect citizens or burgesses for 
 parliament ; that the mayors and bailiffs should make true 
 return of those which be chosen by the citizens and 
 
1 
 
 248 RISE AND PROGRESS 
 
 burgesses of the cities or boroughs where such elections 
 be made. 
 
 The constitutional history of the reign of the Lancas- 
 trian kings is also very important, by reason of the at- 
 tempts then made by the legislature to determine the 
 qualifications both of electors and of persons to be 
 elected. It has been seen, that the statute 7 Hen. 
 IV. c. 15,* while guarding against the malpractices of 
 sheriffs in county elections, recognised or established the 
 right of all persons who were present at the county court 
 to vote for knights of the shire. But in the eighth year of 
 Henry VI. was passed an Act that was framed in a very 
 different spirit. This remarkable statute, the first dis- M 
 franchising one upon record, reciting the grievous up- 
 roar and disorder at elections, chiefly occasioned by the 
 " outrageous and excessive number of people of small 
 substance or no value," enacted, "that for the future 
 knights of the shire shall be chosen by people dwelling 
 and resident in the counties, whereof every one of them 
 shall have free land or tenement to the value of forty 
 shillings by the year at least, above all charges." This 
 was, indeed, a most stringent enactment, operating as a 
 sweeping disfranchisement ; for forty shillings then were . 
 equal to twenty pounds of the present day. This statute, 
 coupled with one passed two years afterwards (which 
 required the voter's freehold to be situate in the county 
 for which he votes), contains the basis of the right of 
 voting for counties ever since, regulated from time to 
 time by various statutes prescribing the requisite length 
 of possession, or receipt of rents and profits. The right 
 was "freehold, free land, or tenement" requiring both 
 
 * Suvra, p. 247. 
 
OF THE CONSTITUTION. 249 
 
 the tenure and the interest to he freehold, consequently 
 excluding copyholders and leaseholders for lives." * 
 
 It will be observed, that this statute, besides fixing a 
 property qualification for voters in county elections, had 
 also the object of limiting the right to vote to those who 
 were residents in the county. And another part of the 
 same statute required, " that they which shall be so 
 chosen, shall be dwelling and resident within the same 
 counties." It had been endeavoured, in the preceding 
 reign, to make residence a necessary qualification for 
 both electors and elected, in counties and in boroughs. 
 The first statute of Henry V. expressly ordained this. 
 Few who bear in mind the origin of the House of Com- 
 mons, will hesitate in believing with Mr. Hallam, that the 
 old custom was, '* that each county, city, or borough 
 should elect deputies out of its own body, resident 
 among themselves, and consequently acquainted with 
 their necessities and grievances." Mr. Hallam thinks it 
 likely that the practice of electing non-residents had 
 begun in the reign of Edward III. He remarks on this 
 statute of Henry V., that it " apparently indicates a point of 
 time when the deviation from the hue of law was frequent 
 enough to attract notice, and yet so established as to pass 
 for an unavoidable irregularity. There cannot be a more 
 apposite proof of the inefiicacy of human institutions to 
 struggle against the steady course of events, than this 
 unlucky statute of Henry V., which is almost a solitary 
 instance in the law of England wherein the principle of 
 
 * This account of the statute lent historical introduction to 
 8 Hen. VI. is almost entirely his " Manual of Parliamentary 
 taken from Mr. Warren's excel- Law." 
 
 M 3 
 
250 
 
 RISE AND PROGRESS 
 
 desuetude has been avowedly set up agaiilst an unre- 
 spected enactment."* 
 
 The provisions of the 1 Hen. V. c. 1, the 8 Hen. VI. 
 c. 7, 10 Hen. VI. c. 2, and 23 Hen. VI. c. 14, which re- 
 quired electors to be residents in the county or borough 
 for which they voted, were almost equally inoperative in 
 practice; and the statute of 14 George III. c. 58, which 
 at last formally repealed the restriction of residence as to 
 members, repealed the clauses also of the old Acts which 
 demanded the residence of voters. The modern statute 
 significantly recites, that certain provisions in the old 
 Acts had been found by long usage to be unnecessary and 
 had become obsolete ; and it repeals them so far as they 
 relate to the residence both of candidates and voters. It 
 is, however, probable that in early times the number of non- 
 
 * Mr. Hallam refers to a note 
 (Note D) at p. 53 of " Peck- 
 well's Reports of Contested 
 Elections." The whole subject 
 is there very learnedly and fully 
 investigated. The restrictions 
 of the statute seem to have 
 been generally evaded as early 
 as Edward IV.'s reign. An 
 unsuccessful attempt was made 
 in the thirteenth year of Eliza- 
 beth's reign formally to repeal 
 the Act, as regarded boroughs. 
 But though this failed, non-re- 
 sidents seem to have been contin- 
 ually returned both for counties 
 and boroughs ; and at last, in the 
 case of Onslow v. Ripley, 1681, 
 the Court of King's Bench re- 
 solved that "little regard was 
 
 to be had to that ancient sta- 
 tute, 1 Hen. 5, because the com- 
 TYion practice of the kingdom, had 
 heen ever since to the contrary.'*^ 
 Some legal authorities try to 
 get rid of the difficulty of treat- 
 ing the neglect of a statute as 
 equivalent to the repeal of it, 
 by drawing a distinction be- 
 tween such statutory provisions 
 as are imperative, and such as 
 are director^/ only and may be 
 disregarded. See Dwarris on 
 Statutes, 606, ei seq. Our judges 
 of late years have shown a com- 
 mendable unwillingness to ex- 
 ercise this dangerous discretion 
 in dealing with the Acts of the 
 legislature. 
 
 i 
 
OF THE CONSTITUTION. 251 
 
 resident voters, both in counties and in boroughs, could 
 not have been large. With respect to the county voters, 
 the requirement of the 10 Hen. VI. c. 2, that the land 
 which gave the vote should be situate within the county, 
 was always obeyed ; and it is not likely that any great 
 number of persons, in the time of the Plantagenets, were 
 owners of freehold property in counties in which they 
 did not reside. With respect to boroughs,* there is Httle 
 doubt but that originally a man must have been a resi- 
 dent, and must have been a member of the court leet of 
 the borough, in order to be recognised as a burgess. 
 Afterwards the practice grew up in many boroughs of 
 admitting non-residents as burgesses. This does not 
 date earlier than Henry VI.'s reign, when boroughs were 
 first incorporated.f In after times (down to the passing 
 of the Reform Bill of 1832), the question whether non- 
 residents could vote in borough elections was decided by 
 the words of the incorporating charter, or by proof of the 
 custom of each place. 
 
 Another point of considerable interest is suggested by 
 a perusal of the old Act, 23 Hen. VI. c. 14, with 
 respect to elections, independently of the question of re- 
 sidence. This is, whether any qualification of birth or 
 estate was necessary for a member of parliament in those 
 early times. With regard to boroughs, this does not 
 seem to have been the case before the celebrated statute 
 of the ninth year of Queen Anne's reign; except that 
 it may be safely assifmed that a villein would not have 
 been ehgible; and, indeed, the 1 Hen. V. c. 11, requires 
 that the chosen burgesses shall be firee. With respect to 
 
 * See Merewether and Ste- t See Ibid, 
 phens on Boroughs. 
 
252 RISE AND PROGllESS 
 
 representatives of counties, the case is different. They 
 were (as we have seen) originally the representatives of 
 the mass of the immediate military tenants of the Crown ; 
 they were always (and still are) described in the parlia- 
 mentary writs as knights ; and there can he no question 
 hut that originally knights only were chosen. By degrees 
 the practice of the voters and the sheriffs in this respect 
 became less strict ; and, at least as early as Edward III.'s 
 reign, many persons who were not knights, sat in the 
 House of Commons as knights of shires.* 
 
 The statute of Henry VI. 's reign, to which we are re- 
 ferring (23. c. 14. 3.), though it sanctioned the return of 
 representatives of counties who were not actually knights, 
 endeavoured to impose a twofold qualification of birth 
 and estate. It required that knights of the shires for 
 parliament shall be notable knights of the same coun- 
 ties for which they shall be chosen, or otherwise such 
 notable esquires, gentlemen horn, of the same coun- 
 ties, as shall be able to be knights, and no man to 
 be such knight as standeth in the degree of a yeoman 
 or under.f A knight's fee, that is to say, the amount 
 of land which made its owner eUgible for knighthood, 
 was worth, in Edward II.'s reign, i£20 a year, which is 
 equivalent to at least £300 a year of the present time. 
 The property qualification therefore, which it was thus 
 sought to estabUsh, was considerable; but the attempt 
 
 * 3 Hall. "Mid. Ag.," p. 176 ; ment tielx notablez Esquiers 
 
 1 Douglas " Election Cases," p. gentils homez del Nativite dez 
 
 451, note D; 3 Prynne "Reg. mezmez lez counteez come 
 
 Brev.," 167. soient ablez destre Chivalers : 
 
 + Issint, que lez chivalers et null home destre tiel chivaler 
 
 dez counteez pour le parlement que estoise en la degree de va- 
 
 soient notablez chivalers dez diet et desouth. — Statutes of the 
 
 mezmez lez counteez ou autre- Bealrriy vol. ii. p. 342. 
 
OF THE CONSTITUTION. 253 
 
 to found a qualification of gentle birth was more im- 
 portant still ; for, if successful, it would have gone far 
 to make a distinction of caste among the commonalty of 
 England, and to impair that equality in the eye of the law, 
 which has so beneficially prevailed in this nation.* One 
 instance is recorded in which this very aristocratic pro- 
 vision of the statute was appealed to. This was six 
 years after it was passed. Some of the electors of Hunt- 
 ingdonshire, in the twenty-ninth year of Henry VI., 
 petitioned the king against the election of one Henry 
 Gimber, because (among other reasons) he was not of 
 gentle birth.f But this part of the statute appears to have 
 been so generally disregarded, as not even to have attracted 
 notice enough in after times to obtain a repeal. 
 
 The natural influence of ancient lineage and landed 
 property must generally have caused the representatives 
 of each county to be chosen from among its principal 
 gentry, but no impassable barrier of pedigree excluded 
 others; nor, until the reign of Anne, was any property 
 qualification indispensable. 
 
 There is no surer proof of the growing importance of 
 the House of Commons during the latter half of the 
 fifteenth century, than the anxiety which was then be- 
 ginning to be shown to obtain a seat in parliament. 
 Formerly that post had been looked on as a burden, and 
 it had been found requisite to impose a fine by statute 
 on members who absented themselves from their duty. 
 The electors also looked on their franchise as a grievance, 
 inasmuch as it imposed on them the necessity of paying 
 wages to their representatives. The excuse that a borough 
 
 * See 198, mpra. Prynne's 3rd Register, p. 157. 
 
 t See the proceedings' in 
 
254 RISE AND PROGRESS 
 
 was too poor to raise the money to pay their hurgesses 
 in parliament was often set up, and often allowed by 
 the sheriffs. Both county and borough members seem 
 regularly to have received their wages to the end of 
 Henry VIII. 's reign, and a few later instances have been 
 found.* But there is good evidence that, during the 
 reigns of the last Plantagenets, country gentlemen and 
 others had begun to make eager canvas for places in 
 parliament. Mr. Hallam cites from the Paston Col- 
 lection a curious letter on this subject, which also, as he 
 states, throws light on the creation or revival of 
 boroughs. The writer tells Sir John Paston, " If ye 
 miss to be burgess of Maiden, and my lord chamberlain 
 will, ye may be in another place ; there be a dozen towns 
 in England that choose no burgess, which ought to do 
 it ; ye may be set in for one of those towns an ye be 
 friended." The date of this letter is 1472, in the reign 
 of Edward IV. It may be observed, that one effect of 
 the wars of the Roses^ which had raged between this date 
 and that of the statute of Henry VI., which we last re- 
 ferred to, had been to raise, in some respects, the im- 
 portance of the House of Commons; as each of the 
 contending parties eagerly sought the sanction of par- 
 liament to its title, and still more eagerly used the ma- 
 chinery of parliamentary attainders against its adver- 
 saries. 
 
 Notwithstanding the strong and steady growth of par- 
 liamentary authority, which may be traced during the 
 fourteenth and fifteenth centuries, a king of England 
 still possessed many and splendid attributes, that were 
 
 * See Hall. 3 "Midd. Ag.," Register, as there cited. 
 p. 171, note ; and Prjnne's 4th 
 
OF THE CONSTITUTION. 255 
 
 strictly constitutional ; and even the best of our monarclis 
 frequently committed acts of arbitrai7 power beyond the 
 limits of the constitution, under the colour of royal pre- 
 rogative. But, without trespassing on the supremacy of 
 the law, the royal power was ample for all purposes that 
 could truly benefit either prince or people. The king 
 convened, and the king dissolved the parliament. The 
 king could add at his will new members to its Upper 
 House, by creating them peers. The king could grant 
 his royal charter to any place he pleased to select, and 
 thereby constitute that place a borough, with the right of 
 sending representatives to the House of Commons. This 
 mode of influencing parliament was indeed little used 
 during these centuries, comparatively with the extent to 
 which it was put in force by the Tudors ; and the agency 
 of the sheriffs, in omitting or adding boroughs, was gene- 
 rally employed; but, as parliament succeeded in con- 
 trolUng this abuse, we find the Crown reviving or creating 
 parliamentary boroughs by its charters. The king's con- 
 currence with the Houses was essential for all legislation, 
 and his power of refusing assent to their petitions or 
 bills was then frequently exercised. Our sovereign, also, 
 during this period, used to issue ordinances, which were 
 acknowledged to be binding, and the boundaries between 
 which and regular statutes it is not easy to define ; though 
 it may be generally stated that an ordinance dealt rather 
 with an individual case than a general subject, and that 
 an ordinance was designed to declare and enforce the 
 law as it already existed, whereas the introduction of a 
 new law required a statute.* Sometimes ordinances were 
 
 * See Reeve, vol. iii. p. 358. et seq. 
 3 Hall. « Midd. Ag.," p. 138, 
 
256 RISE AND PROGRESS 
 
 issued by the sovereign, on petition from parliament; 
 but they were also frequently made by the king in coun- 
 cil, without any parliamentary authority. This was the 
 king's " Concilium Ordinarium," or Privy Council, con- 
 sisting of the chancellor, the treasurer, the lord steward, 
 lord marshal, lord admiral, of the judges, and of other 
 high officers of state, all nominated by the king, and all 
 removable at his pleasure. This Council claimed also and 
 exercised an anomalous judicial authority, which was the 
 constant subject of parliamentary remonstrance, but which 
 the frequent turbulence of the times, and the insufficiency 
 of the ordinary tribunals to deal with powerful offenders, 
 must have rendered to some extent necessary. Another 
 important power which was admitted in those days to 
 belong to the sovereign, was that of dispensing with the 
 observance of particular statutes by particular indivi 
 duals in special cases. This, probably, was regarded as 
 springing from the clear royal right of pardoning offenders. 
 For it must have seemed natural that if the king, when a 
 statute had been broken, could pardon the offence, he 
 might, by a kind of anticipatory pardon, dispense with its 
 observance in a special instance. As has been stated in 
 speaking of the Council, the king appointed and changed 
 as he thought fit, the chancellor, the judges of the 
 supreme common law courts, and the judges who tried 
 causes and prisoners on the circuit, who were not always 
 the same as the judges of Westminster Hall. He ap- 
 pointed the sheriffs, and he appointed also and dis- 
 missed as he thought fit the holders of the very im- 
 portant office of justice of the peace in the several 
 counties. There had anciently been in each shire con- 
 servators of the peace, elected by the freeholders ; but in 
 Edward III.'s reign these were superseded by justices of 
 
 I 
 
OF THE CONSTITUTION. 257 
 
 the peace, receiving their appointment and commission 
 from the Crown. 
 
 The king, as supreme head of the State, represented the 
 State; or rather the king was the State in all dealings 
 with other nations. He proclaimed war, he made trea- 
 ties; he alone sent or received ambassadors; he was 
 supreme chief of the military and naval forces of the 
 kingdom ; he had the absolute government of all foreign 
 towns or territories that were obtained by conquest ; he 
 had the government of all forts and castles within the 
 realm ; nor could any subject embattle his house or make 
 a place of strength without the royal Hcence. Many 
 other prerogatives of minor importance, such as that of 
 coining money, of conferring all titular ranks and honours, 
 of appointing ports and havens for the lawful transit of 
 merchandise, and passengers into and out of the realm ; 
 and several of a fiscal nature, such as the right to deo- 
 dands, and to waifs, and wrecks of the sea, might be 
 mentioned. But the principal powers of royalty have 
 been enumerated, and they prove abundantly the splen- 
 dour and the strength of the constitutional sceptre of 
 our Plantagenet kings. 
 
 The constitutional privileges of the peers have been 
 sufiiciently pointed out in the preceding pages. When 
 we come to consider the share of political power pos- 
 sessed by the various classes of the mass of tlie nation, 
 who collectively constitute the commonalty of the realm, 
 the point that first fixes our attention is the elective fran- 
 chise. We have already, in some degree, investigated 
 this; and there is no need to recapitulate the old sta- 
 tutary provisions that have been quoted, with reference 
 to the quahfications of electors, and also of members. 
 But it is interesting to ascertain, if possible, the relative 
 
258 RISE AND PROGRESS 
 
 proportion of the whole electoral body to the whole 
 nation, and to gain some insight into the practical work- 
 ing of the representative system in those ages. 
 
 We shall find nothing approaching to universal suf- 
 frage. The labouring part of the agricultural population 
 was, certainly, during the fourteenth and fifteenth centu- 
 ries, generally raised from a state of villeinage to a state 
 of personal freedom. The process of emancipation went 
 on rapidly during Edward III.'s reign, though the fear- 
 ful insurrection in that of his successor shows how many 
 unhappy beings were then still in a state of bondage. 
 After that period we hear, by degrees, less and less of 
 villeinage in England; and it was generally extinct when 
 the Tudor dynasty came to our throne, though a few 
 instances of it may be traced later. But the lot of the 
 freed labourers in England was long one of severe op- 
 pression. The statute book, from Edward III.'s reign 
 to the commencement of our modern poor-laws, in Eli- 
 zabeth's time, abounds in enactments to regulate the 
 wages, dress, and conduct of the inferior labourers, 
 " which seem to have been framed with the same view, 
 namely, to curb the aspiring exertions of industry and 
 independency."* Mr. Pashley,t in his excellent sketch 
 of " Pauper Legislation before the Keign of Elizabeth," 
 truly says: — 
 
 " Wearisome and painful would be the task of examin- 
 ing the oppression exercised over the whole class of la- 
 bourers from the early part of the fourteenth century till 
 the end of the fifteenth. The legislation on the subject 
 of these poor helots seems throughout to be selfish and 
 
 * Eden's "State of the Poor," t Pashley on " Pauperism an( 
 vol. i. p. 42. Poor Laws," p. 163. 
 
OF THE CONSTITUTION. 259 
 
 unjust. The labourer was never to better Ms condition. 
 Imprisonment and branding on the forehead with a hot 
 iron was the lot of the fugitive servant, although he had 
 never consented to enter into the service of his lord, and 
 had been compelled to do so for -wages less than he was 
 justly entitled to receive. Even * artificers, and people 
 of mysteries,' were liable to hQ pressed by the lord to 
 get in his harvest,* and if a poor labourer's unmarried 
 daughter of eighteen or twenty years of age, had been 
 ' required to serve ' any master, she must, under the 
 statutory provisions, either have gone into the service, or 
 have been committed to gaol for refusing. No child 
 could be apprenticed to any useful craft, unless its parents 
 were owners of land yielding a certain amount of yearly 
 rent, and the compulsory service, such as has been de- 
 scribed, paid for by a rate of wages below the just level, 
 would be a perpetual cause why servants should have 
 endeavoured to free themselves from their bondage, and 
 why the 'valiant beggars,' of whom we read, should 
 have so greatly increased throughout the country." 
 
 The agricultural population of the country was many 
 times more numerous than the town population ; and the 
 agricultural labourers, such as we have seen them de- 
 scribed, were probably a majority of the whole nation : a 
 wretched majority — among whom it would be idle to look 
 for either holders of franchise or bearers of office. When 
 we come to the rural classes above them, to the possessors 
 of some property small or great, there is reason to believe 
 that before Henry VI. *s time the right of voting for 
 knights of the shire was very generally exercised. For 
 by far the greater proportion of those who then had any 
 
 * 13 Rich. II., c. 3. 
 
260 RISE AND PROGRESS 
 
 landed property at all, held it as freeholders,* and even 
 after the 8th Hen. VI., restricted the county franchise to 
 405. freeholders, the number still qualified to vote was 
 greater than we might suppose, did we not know from For- 
 tescue t and other authorities how large was the number of 
 men worth at least 40^. a year in every EngUsh county. 
 
 The same property qualification was required for jurors 
 as for county voters in Fortescue's time. His writings, 
 especially his treatise on the laws of England, present a 
 most interesting and valuable picture of the political and 
 social state of England towards the latter half of the 
 fifteenth century. He was Lord Chancellor to Henry 
 VI., and was the companion in exile of the young 
 prince Edward of Lancaster, Henry's son and heir appa- 
 rent, during the wars of the Eoses. His treatise on the 
 laws of England was written for the instruction of that 
 prince ; and in it he described trial by jury as the pre- 
 vailing mode of trial in England, and as the peculiar 
 glory of our institutions, compared with those of other 
 nations. There is also a curious record of Edward the 
 Fourth's reign, which proves how completely trial by jury 
 was then, and long had been, regarded as an English- 
 man's constitutional privilege. " The rolls of parliament 
 for the reign of Edward the Fourth, f contains a petition 
 from two persons, Henry Bodrugan and Eichard Bone- 
 thon, praying that their conviction may be annulled.! 
 An Act had been passed in the 14th year of that reign, 
 
 * Leases for years, though, base service {i. e. of copyholders) 
 
 not unknown, were compara- fully recognised till Ed w.IVth's 
 
 tively rare to what they are reign, if so early, 
 
 at present ; nor was the stable t Fortescue de Laudibus, pp. 
 
 customary possession by free- 86, 104, Amos' edition. 
 
 men of land held of lords by t Rot. Pari., 133. 
 
OF THE CONSTITUTION. 261 
 
 wliicli authorized the justices of the King's Bench to 
 examine Bodrugan and Bonethon on a charge of felony, 
 and provided that if the said Heniy and Richard were 
 by their examination found guilty, they then should have 
 such judgment and execution as they should have had if 
 they were of the same attaint by the trial of twelve men, 
 and like forfeiture to be in that behalf. The accused 
 parties refused to appear, and were convicted by default. 
 They therefore petitioned the Crown that the judgment 
 might be annulled, on the ground that a trial by justices 
 in this mode was unknown to the laws of England, and 
 was a novel and dangerous innovation." * The very 
 words of the petition are — 'For so much as by the same 
 Acte was ordeyned that the triall of the said offences- 
 should rest and be by examination, and not by the ver- 
 dict of twelve men, after the common course of the laws 
 of the land.' The king granted their prayer, and thus 
 affirmed the principle of the indefeasible right of the 
 subjects of this realm to be tried, as they have heretofore 
 been accustomed, by a jury of their peers."* 
 
 When we direct our attention to the trading part of 
 the community, to the dwellers in towns in those ages, 
 we find reason to believe, that, at least in all the cities 
 and more considerable boroughs, by far the greater num- 
 ber of the inhabitants had, as burgessess, the right of vot- 
 ing for the parliamentary representatives of the borough, 
 the right of acting as jurors in the borough courts of jus- 
 tice, and generally the right of taking active part in 
 matters of local self-government. There are many con- 
 flicting theories respecting the early municipal constitu- 
 tions of our boroughs, and as to the class of persons by 
 
 * Forsyth, p. 426. 
 
262 RISE AND PROGRESS 
 
 whom the electoral franchise in huroughs was originally 
 exercised. The four principal conflicting theories on the 
 subject are stated at length, and their respective claims to 
 our adoption are fairly summed up by Hallam.* Sir 
 James Mackintosh thought that from the earliest times to 
 which borough voters can be traced, they were of the 
 same variety of classes as in later times before the Reform 
 Bill. " In some places the freemen ; in others, the officers 
 of a corporation; elsewhere, freeholders, burgage ten- 
 ants, inhabitants contributing to public expense, or other 
 inhabitants with scarcely sufficient qualification of pro- 
 perty to afford a presumption of fixed residency ; these, 
 and combinations of various sorts of them, were the prin- 
 cipal classes among whom the elective frauchise was in 
 the earhest times shared." 
 
 But the learned researches of Serjeant Merewether, and 
 Mr. Stephens into our municipal archaeology, seem to have 
 established that, at least before Henry VI. 's reign, every 
 freeman, who became a resident householder in a borough, 
 capable of paying scot {i. e. his share of local taxation), 
 and of bearing lot {i. e. of discharging in turn the local 
 offices), was sworn and enrolled at the borough leet, and 
 became a burgess. The boroughs were not then incorpo- 
 rated ; the earliest instance of incorporation being in the 
 eighteenth year of Henry VI. 's reign, when a charter of in- 
 corporation was given to Hull. This was followed by 
 other instances ; and our courts of law adopted the doc- 
 trine, that where no early charter of incorporation could 
 be proved, an early, but lost one would be presumed ; in 
 other words, they set up the doctrine of incorporation by 
 prescription. The mayor and leading men of the corpo- 
 
 * " Constitutional History. 
 
OF THE CONSTITUTION. 263 
 
 rations, acting by the corporate seal, and as the whole ag- 
 gregate body, soon began to monopolize authority, and to 
 exercise the power of selecting the biirgessess, frequently 
 among non-residents. The Crown also began to grant 
 charters of incorporation, with clauses which gave exclusive 
 powers to certain officers of the corporation, or to certain 
 select bodies. By these means, and by the capricious 
 growth, and establishment of an infinite variety of local 
 usages, the electoral as well as the municipal system of 
 our boroughs became widely changed from its primitive 
 character ; and that mass of abuses and anomalies grew 
 up, which was only eradicated by the Keform Bill and 
 Municipal Corporations Bill of the last reign. 
 
 But while the boroughs were untampered with, and 
 while all freeholders in counties had a right to take part 
 in elections (that is to say, during the far greater part of 
 the two centuries which we have been examining), the 
 electoral franchise must have been in the hands, or witliin 
 the reach of almost all whom we can term the middle 
 classes in England. M. Guizot's observations on this 
 deserve attention; though, while we concur with their 
 truth, it is impossible not to protest in spirit against the 
 atrocious character of the legislation against the labourers, 
 which has been previously referred to, the effect of which 
 was to keep them in the dependence and ignorance, which 
 Mr. Guizot speaks of, and whence, in a great degree, 
 originated that incapacity for political rights, on which he 
 founds his opinions. His words are : "The true, the 
 sole general principle which is manifested in the distribu- 
 tion of electoral rights as it then existed in England, is 
 this, that right is derived from, and belongs to, capacity. 
 This requires some explanation. 
 
 " It is beyond doubt, that at this period, setting aside 
 
264 RISE AND PROGUESS 
 
 tlie chief barons, whose personal importance was such 
 that it was necessary to treat with each of them indivi- 
 dually, the freeholders, the clergy, and the burgesses of 
 certain towns, could alone act as citizens. Those not 
 comprised in one or other of these classes were chiefly 
 poor husbandmen, labouring on subordinate and preca- 
 rious means. They included all men invested with real 
 independence, free to dispose of their person and wealth, 
 and in a position to rise to some ideas of social interest. 
 This it is which constitutes political capacity. This ca- 
 pacity varies according to time and place; the same degree 
 of fortune and enlightenment is not everywhere and 
 always sufficient to confer it, but its elements are con- 
 stantly the same. It exists wherever we meet with the 
 conditions, whether material or moral, of that degree 
 of independence and intellectual development which 
 enables a man freely and reasonably to accomplish the 
 political act he is required to perform. Assuredly, con- 
 sidering the masses, as they should be considered in 
 such a matter, these conditions are not met with in 
 England in the fourteenth century, elsewhere than among 
 the freeholders, the clergy, and the burgesses of the chief 
 towns. Beyond these classes, nothing is found but 
 almost servile dependence and brutal ignorance. In 
 summoning these classes, then, to join in the election, 
 the electoral system summoned every capable citizen. It 
 was derived, therefore, from the principle that capacity 
 confers right ; and among citizens whose capacity was re- 
 cognised, no inequality was established. 
 
 *' Thus neither the sovereignty of the majority nor I 
 universal suffrage were originally the basis of the British " 
 electoral system. Where capacity ceased, limitation of 
 right was estabHshed." 
 
 i 
 
CHAPTEK XV. 
 
 State of the Constitution under the Tudors. — Revival of spirit in 
 the House of Commons. — Weak but arbitrary character of the 
 first two Stuart Kings.— .Charles I. sincere, but an Aggressor on 
 the Constitution. — The Petition of Right. 
 
 The gradual progress of the free principles of our con- 
 stitution is no longer to be traced under the Tudors, with 
 the same regularity which is observable under the Planta- 
 genets, from John's reign downwards. There seems at 
 first sight to be a reaction towards despotism ; but this 
 appearance of degeneracy is only on the surface. Slavish 
 things were said and done in high places, and there was 
 a dearth of measures of improvement, not because the 
 nation had grown false-hearted to itself, or feeble-hearted, 
 but because the race of its former leaders in struggles for 
 liberty now no longer supplied it with chieftains, and the 
 orders of society whence the new reformers were to 
 spring, had not yet acquired full importance and self- 
 reliance. The dreadful civil wars of York and Lancaster 
 had hewn the barons of England down to a scanty and 
 scared remnant, which the subtle policy of Henry Vll. 
 and the resolute ferocity of Henry VIII. had tended 
 more and more to weaken. But deep thought and bold 
 inquiry were active throughout the nation, under the 
 
 N 
 
266 RISE AND PROGRESS 
 
 mighty impulses given to the mind by the general diffu- 
 sion of the art of printing, by the revival of the study of 
 the classics, by the exciting interest of the great geogra- 
 phical discoveries effected about this period, and, above all, 
 by the Keformation. Our parliaments were, indeed, dis- 
 gracefully submissive under the two last Heniys.* Such 
 was the shameful facility with which verdicts of guilty 
 were then obtained from juries in state prosecutions, 
 principally through the iniquitous system of fining and 
 imprisoning any juror who dared to return a verdict 
 against the wish of the Crown; the judges, in their 
 application and exposition of the criminal law, were such 
 servile tools of the sovereign; and human life was 
 lavished on the scaffold with such savage prodigality, 
 that we cannot be surprised that, while the peerage ceased 
 to furnish hereditary tribunes of the people, men of infe- 
 rior position shrank at first from coming forward as state 
 martyrs : — 
 
 " Nee civis erat qui libera posset 
 Verba aninii proferre et vitam impendere vero.'* 
 
 Thus it was that the Court of Star-Chamber (as the 
 old court of the king's Concilium Ordinarium was now 
 called) exercised an extensive and anomalous jurisdic- 
 
 * The following observations the Crown. He owned likewise 
 
 of Lord Bolingbroke on this in eflfect, more than any prince 
 
 reign are important. " Henry who went before him, how ab- 
 
 VIII., by applying to his par- solutely the disposition of the 
 
 liaments for the extraordinary crown of England belongs to 
 
 powers which he exercised, and the people of England, by pro- 
 
 by taking these powers for such curing so many different and 
 
 terms, and under such restric- opposite settlements of it to be 
 
 tions as the parliament imposed, made in parliament." — Bol. vol.j 
 
 owned indeed sufficiently that i. p. 375. 
 they did not belong of right to 
 
OF THE CONSTITUTION. 2G7 
 
 tion, by means of wliicli men were arbitrarily fined and 
 imprisoned, and often sentenced to cruel mutilations, for 
 any alleged misconduct, which the lords and prelates of 
 the Council, or any minister of the Crown, might think 
 fit to impute to them. Thus, too, the subject's money 
 was frequently extorted without parliamentary assent, 
 under the name of benevolences or loans. These things, 
 and other violences, were endured to an extent, which, 
 under the Plantagenets, would have met with firm 
 remonstrance, if not with armed resistance. But the 
 independent power of the gentry and of the wealthier 
 portions of the middle classes was steadily, though 
 silently, increasing ; and under the last three Tudors we 
 find the House of Commons gradually resuming the firm 
 free tone and bearing, and the resolution to maintain and 
 work out the rights of the people, which the great barons 
 foimerly displayed at Kunnymede and Lewes. Under 
 Elizabeth, the popular party in the House of Commons 
 was organized and active ; and more than once successful 
 in its efforts at state reform. Much, indeed, in her reign 
 was endured for her sake, and not for want of a know- 
 ledge of its unconstitutional character, or of spirit to 
 resist it. Many a haughty speech and many a harsh act 
 of EHzabeth's were forgiven and forgotten by those who 
 thought of the true English heart and daring of the 
 Queen, whom they had seen cheeiing her troops at Til- 
 bury; who had defied the spiritual thunders of the Vati- 
 can, and the more perilous thunders of the Armada ; who 
 had sent out Drake, Ealeigh, Cavendish, Hawkins, and 
 Frobisher, to beard England's foes and spread England's 
 fame beyond the southern and western waves. But when 
 the imbecile, though insolent, Stuarts came to our throne, 
 and made our national honour a by-word abroad, while at 
 
 N 2 
 
268 RISE AND PROGRESS 
 
 home they paraded each most oflfensive claim to arhitrary 
 power in the most offensive manner, no such patriotic 
 forbearance could be expected. Fortunate for England, ■ 
 indeed, it was that two such weak princes as the first 
 James and Charles, reigned next after Elizabeth ; that 
 we had not a succession of active and prosperous sove- 
 reigns, under whom overgrown prerogative might have 
 been allowed to take too deep root, while the national 
 liberties perished amidst the blaze of the national glory. 
 My present duty does not require me to discuss " that 
 momentous period of our history, which no Englishman 
 ever regards without interest, and few without prejudice, 
 the period from which the factions of modem times trace 
 their divergence, which after the lapse of two centuries 
 still calls forth the warm emotions of party spirit, and 
 affords a test of political principles." So Hallam has 
 correctly styled the period commencing with the struggle 
 between Charles the First and the Long Parliament 
 that met in 1640. The same remarks may apply to the 
 ten preceding years, during which "the king had in a 
 manner renounced the constitution, and instead of govern- 
 ing with the assistance and concurrence of a parliament, 
 governed by illegal acts of power."* They apply, 
 indeed, to the whole time between the dissolution of the 
 parliament that passed the Petition of Eight in 1629, I 
 and the Kestoration of Charles II. in 1660. In a work 
 which is designed to be kept as clear as possible from 
 party doctrines, I shall gladly pass over these thirty I 
 years — years of unparalleled interest in history; but 
 which are rather years of abnormal and revolutionary 
 struggles, than of Enghsh constitutional government. 
 
 * Bolingbroke. 
 
OF THE CONSTITUTION. 269 
 
 There is no occasion to appeal to writers and authori- 
 ties hostile to Charles, when we are examining the con- 
 duct of his earlier parliaments, especially of that to 
 which we owe the Petition of Right. The royalist 
 Clarendon is explicit enough on the subject. He says of 
 Charles's three first parHaments : * "I do not know 
 any formed act of either House that was not agreeable to 
 the wisdom and justice of great courts upon those extra- 
 ordinary occasions. And whoever considers the acts of 
 power and injustice of some of the ministers in the 
 intervals of parliament, will not be much scandalized at 
 the warmth and vivacity of those meetings. 
 
 " In the second parliament there was a mention, and 
 intention declared, of granting five subsidies, a propor- 
 tion (how contemptible soever in respect of the pressures 
 now every day imposed) scarce ever before heard of in 
 parliament. And that meeting being upon very unpopu- 
 lar and unplausible reasons immediately dissolved, those 
 five subsidies were exacted throughout the whole king- 
 dom with the same rigour, as if, in truth, an Act had 
 passed to that pui-pose. Divers gentlemen of prime 
 quality, in several counties of England, were, for refusing 
 to pay the same, committed to prison, with great rigour 
 and extraordinary circumstances. And could it be 
 imagined, that those men would meet again in a fi^ee 
 convention of parliament without a sharp and severe ex- 
 postulation, and inquisition into their own right, and the 
 power that had imposed upon that right ? And yet all 
 these provocations, and many other, almost of as large 
 an extent, produced no other resentment than the Peti- 
 tion of Eight (of no prejudice to the Crown), which was 
 
 * « 
 
 History of the RebelUon," vol. i. p. 8. 
 
270 RISE AND PROGRESS 
 
 likewise purchased at the price of five subsidies more, 
 and in a very short time after that supply granted, that 
 parliament was likewise, with strange circumstances of 
 passion on all sides, dissolved." 
 
 With respect to King Charles' conduct in this period 
 of his reign, it may be said, in justification of him per- 
 sonally, that he believed he was maintaining the real pre- 
 rogatives of the Crown. 
 
 Bohngbroke, in speaking of Charles' father, truly says, 
 "The doctrines which established the unbounded and 
 ineffable prerogative of the king ; which reduced the pri- 
 vileges of parliament to be no longer an antient and 
 undoubted right and inheritance, but derived them from 
 the permission and toleration of the Crown, and declared 
 them liable to be retrenched at the will of the prince ; 
 and which by necessary consequence changed at once the 
 nature of the English constitution, from that of a free to 
 that of an arbitrary government : all these doctrines, we 
 say, or the principles on which they were estabhshed, 
 had been already publicly and frequently asserted by 
 King James. They were the language of the Court ; and 
 a party had been formed in the nation, who made profes- 
 sion of them. They were maintained in conversation. 
 They were pleaded for in print ; and they became soon 
 afterwards the disgrace and profanation of the pulpit."* 
 And he afterwards, with equal truth, observes of Charles 
 himself, that " King Charles came a party man to the 
 throne, and that he continued an invasion on the people's 
 rights, whilst he imagined himself only concerned in the 
 defence of his own. We avow it as an opinion we have 
 formed on reading the relations published on all sides. 
 
 * Bol. vol. i. pp. 487-488. 
 
 i 
 
OF THE CONSTITUTION. ^71 
 
 and to which, it seems to us, that all the authentic anec- 
 dotes of those times may be reconciled. This prince 
 had sucked in with his milk those absurd principles of 
 government which his father was so industriously, and; 
 unhappily for king and people, so successful in propa- 
 gating. He found them espoused, as true principles 
 both of reUgion and policy, by a whole party in the 
 nation, whom he esteemed friends to the constitution in 
 Church and State. He found them opposed by a party, 
 whom he looked on indiscriminately as enemies to the 
 church and to monarchy. Can we wonder that he grew 
 zealous in a cause which he understood to concern him 
 so nearly, and in which he saw so many men who had 
 not the same interest, and might therefore be supposed to 
 act on a principle of conscience, equally zealous ? Let 
 any one, who hath been deeply and long engaged in the 
 contests of party, ask himself on cool reflection, whether 
 prejudices concerning men and things have not grown up 
 and strengthened with him, and obtained an uncontrol- 
 able influence over his conduct. We dare appeal to the 
 inward sentiments of every such person. With this habi- 
 tual bias upon him. King Charles came to the throne ; 
 and' to complete the misfortune, he had given all his con- 
 fidence to a madman. An honest minister might have 
 shown him how wrong his measures were; a wise one 
 how ill-timed. Buckingham was incapable of either. 
 The violence and haughtiness of his temper confirmed 
 his master in the pursuit of these measures; and the 
 character of the first minister became that of the admi- 
 nistration."* 
 
 But the circumstance that the king acted conscien- 
 
 * Bol. vol. i. pp. 516, 517. 
 
272 RISE AND PROGRESS 
 
 tiously, tliough mistakenly, in his aggressions on the con- 
 stitution, did not alter the fact of his being an aggressor,* 
 nor did it diminish the necessity of opposing his aggres- 
 sions. 
 
 The first two parliaments of Charles I. had been 
 hastily dismissed by him in petulant discontent, because 
 they adhered to the old constitutional plan of making 
 the grant of supplies depend upon the redress of 
 grievances. Those grievances were actively continued by 
 the Crown and its ministers ; some of them being the 
 arbitrary billeting of soldiers, the forcing of loans to the 
 king, under the title of benevolences, the imprisoning 
 those who refused to lend, several of whom, on suing out 
 their writ of Habeas Corpus, were, in defiance of it, re- 
 manded to prison. 
 
 Still, with whatever rigour unparliamentary methods of 
 getting money were resorted to, Charles found, as th^ 
 early Anglo-Norman kings had found, that no tyranny 
 
 * " In England the royal power good sense and wounded the 
 was the aggressor. Charles I., self-respect of the humblest ci- 
 full of haughty pretensions, tizen : the second time, by dis- 
 though devoid of elevated am- pensing with parliament alto- 
 bition, and moved rather by the gether, and ruling alone by the 
 desire of not derogating in the hand of a minister, able and 
 eyes of the kings, his peers, energetic, ambitious and impe- 
 than by that of ruling with a rious, though not without great- 
 strong hand over his people, ness of mind, devoted to his 
 twice attempted to introduce master, by whom he was imper- 
 into the country the maxims fectly understood and ill sup- 
 and the practice of absolute ported, and aware too late that 
 monarchy : the first time, in kings are not to be saved solely 
 presence of parliament, at the by incurring ruin, however no- 
 instigation of a vain and frivo- bly, in their service." — Guizot's 
 lous favourite, whose presump- English Bevolution, pp. 5, 6. 
 tuous incapacity shocked the 
 
OF THE CONSTITUTION. 273 
 
 could extort so much from the nation, as could be gained 
 from it, if its consent to the levy was first obtained. His 
 third parliament was therefore summoned, which met in 
 March, 1628, and continued with one prorogation till 
 March 1629. "The prime intellectual manhood of 
 England " now came forward to the rescue of the consti- 
 tution. Wentworth (who had not yet gone over to the 
 Court), Selden, Pym, Holies, Coke, Eliot, and Hamp- 
 den were of this parliament, and other men of energy 
 and ability, intent "on vindicating our ancient vital 
 hberties, by reinforcing our ancient laws made by our 
 ancestors ; by setting forth such a character of them as 
 no licentious spirit should dare to enter upon them."* 
 Charles endeavoured to sooth them with vague promises ; 
 but Sir Edward Coke warned them that general words 
 were no sufficient satisfaction for particular giievances. 
 " Did ever ParUament rely on messages ? The King 
 must speak by a record, and in particulars, and not 
 in generals. Let us put up a Petition of Eight ; not 
 that I distrust the King, but that we cannot take his trust 
 save in a parliamentary way." 
 
 The Petition of Right was accordingly drawn up by 
 the Commons. The Lords proposed in a conference to 
 add the following clause: — "We humbly present this 
 petition to your Majesty, not only with a care of preserv- 
 ing our own liberties, but with due regard to leave entire 
 that sovereif/n poiver with which your Majesty is en- 
 trusted for the protection, safety, and happiness of your 
 people." The leaders of the Commons saw clearly the 
 dangerous effect of this insidious stipulation in favour of 
 the royal prerogative, and premptorily refused to concur 
 
 * Speech of Wentworth. 
 
 N 3 
 
274 RISE AND PROGRESS 
 
 in the amendment. After considerable discussion the 
 peers gave way, and the bill having passed both Houses 
 as the bill, the whole bill, and nothing but the bill, 
 awaited only the royal assent to become law, and ** to 
 form a memorable era in the English Government." ^ 
 
 On the second of June the peers were assembled, the 
 Commons summoned, and the king appeared in the 
 House of Lords to give his answer in parliament to the 
 bill. But, to the surprise of all men, Charles, instead of 
 using the well-known ancient form of words by which 
 such a bill receives the royal assent, addressed the parlia- 
 ment and told them, " The King willeth that right be 
 done according to the laws and customs of the realm, and 
 that the statutes be put in due execution, that his sub- 
 jects may have no cause to complain of any wrong or 
 oppression contrary to their just rights and liberties ; to 
 the preservation whereof he holds himself in conscience 
 as well obliged, as of his prerogative." 
 
 The Commons returned highly incensed with this 
 evasive circumlocution. They forthwith began to assail 
 the favourites of the Crown, and impeached a Dr. Man- 
 waring, who had preached a sermon, which had after- 
 wards been printed by the king's command, in which 
 discourse the right divine of kings to deal as they pleased 
 with their subjects' property on emergencies, whether 
 parliament consented or not, and the duty of passive 
 obedience in the subject, were openly and unreservedly 
 maintained. The Commons procured the trial and con- 
 demnation of this satellite of arbitrary power, and were 
 proceeding to assail others higher in Charles's councils, 
 when the king's obstinacy at length gave way, and the 
 
 * Hume. 
 
 I 
 
OF THE CONSTITUTION. 275 
 
 Petition of Eight received the royal assent in the cus- 
 tomary form of Norman French, and this second great 
 solemn declaration of the liberties of Englishmen was 
 declared to be the law of the land, amidst the general re- 
 joicings of the nation. 
 
 PETITION OF RIGHT. 
 
 3 Car. I. c. 1. 
 
 The Petition exhibited to his Majesty by the Lords Spiritual 
 and Temporal, and Commons, in this present Parliament 
 assembled, concerning divers Plights and Liberties of the 
 Subjects, with the King's Majesty's royal answer thereunto 
 in full Parliament. 
 
 To the King's Most Excellent Majesty. 
 
 Humbly shew unto our Sovereign Lord the King, the Lords 
 spiritual and temporal, and Commons in Parliament assem- 
 bled, that whereas it is declared and enacted by a statute made 
 in the time of the reign of King Edward L, commonly called 
 Statutum de tallagio non concedendo* that no tallage or aid 
 shall be laid or levied by the King or his heirs in this realm, 
 without the good will, and assent of the archbishops, bishops, 
 earls, barons, knights, burgesses, and other the freemen of the 
 commonalty of this realm; and by authority of Parliament 
 holden in the five-and-twentieth year of the reign of King Ed- 
 ward HI., it is declared and enacted, that from thenceforth no 
 
 * This supposed statute found that it was originally nothing 
 a place among our records very more than an intended compen- 
 early, and its recognition by dium of the Confirmatio Charta- 
 the Petition of Right gave it rum. See too, Guizot, " Essais," 
 thenceforth the authority of a p. 311, n.; and Hallam's " Sup- 
 statute. But Blackstone, in his plemental Notes," p. 306. 
 work on the Charters, has shown 
 
276 RISE AND PROGRESS 
 
 person should be compelled to make any loans to the King 
 against his will, because such loans were against reason and 
 the franchise of the land ; and by other laws of this realm it 
 is provided, that noue should be charged by any charge or 
 imposition called a benevolence, nor by such like charge ; by 
 which statutes before mentioned, and other the good laws and 
 statutes of this realm, your subjects have inherited tliis 
 freedom, that they should not be compelled to contribute 
 to any tax, tallage, aid, or other like charge not set by com- 
 mon consent, in Parliament. 
 
 II. Yet nevertheless of late divers commissions directed to 
 sundry commissioners in several counties, with instructions, 
 have issued ; by means whereof your people have been in 
 divers places assembled, and required to lend certain sums 
 of money unto your Majesty, and many of them, upon their 
 refusal so to do, have had an oath administered unto them not 
 warrantable by the laws or statutes of this realm, and have 
 been constrained to become bound to make appearance and 
 give utterance before your Privy Council and in other places, 
 and others of them have been therefore imprisoned, confined, 
 and sundry other ways molested and disquieted ; and divers ■ 
 other charges have been laid and levied upon your people in J 
 several counties by lord lieutenants, deputy lieutenants, com- 
 missioners for musters, justic.es of peace and others, by com- 
 mand or direction from your Majesty, or your Privy Council, 
 against the laws and free customs of the realm. 
 
 III. And whereas also by the statute called ** The Great _ 
 Charter of the Liberties of England," it is declared and I 
 enacted. That no freeman may be taken or imprisoned, or be 
 disseised of his freehold or liberties, or his free customs, or be 
 outlawed or exiled, or in any manner destroyed, but by the 
 lawful judgment of his peers, or by the law of the land. 
 
 IV. And in the eight-and-twentieth year of the reign of 
 King Edward III., it was declared and enacted by authority 
 of Parliament, that no man of what estate or condition that 
 
 d 
 
OF THE CONSTITUTION. 277 
 
 he be, should be put out of his land or tenements, nor taken^ 
 nor imprisoned, nor disherited, nor put to death without being 
 brought to answer by due process of law. 
 
 V. Nevertheless, against the tenor of the said statutes, and 
 other the good laws and statutes of your realm to that end 
 provided, divers of your subjects have of late been imprisoned 
 without any cause shewed; and when for their deliverance 
 they were brought before your justices by your Majesty's writs 
 of habeas corpus, there to undergo and receive as the court 
 should order, and their keepers commanded to certify the 
 causes of their detainer, no cause was certified, but that they 
 were detained by your Majesty's special command, signified 
 by the lords of your Privy Council, and yet were returned 
 back to several prisons, without being charged with anything 
 to which they might make answer according to the law. 
 
 VI. And whereas of late great companies of soldiers and 
 mariners have been dispersed into divers counties of the realm, 
 and the inhabitants against their wills have been compelled to 
 receive them into their houses, and there to suffer them to 
 sojourn, against the laws and customs of this realm, and to 
 the great grievance and vexation of the people. 
 
 VII. And whereas also by authority of Parliament, in the 
 five-aud-twentieth year of the reign of King Edward III., it 
 is declared and enacted, that no man should be forejudged of 
 life or limb against the form of the Great Charter and the 
 law of the land ; and by the said Great Charter and other the 
 laws and statutes of this your realm, no man ought to be ad- 
 judged to death but by the laws established in this your realm, 
 either by the customs of the same realm, or by Acts of Par- 
 liament : and whereas no offender of what kind soever is 
 exempted from the proceedings to be used, and punishments 
 to be inflicted by the laws and statutes of this your realm ; 
 nevertheless of late time divers commissions under your 
 Majesty's great seal have issued forth, by which certain per- 
 sons have been assigned and appointed commissioners with 
 
278 RISE AND PROGRESS 
 
 power and authority to proceed within the land, according to 
 the justice of martial law, against such soldiers or mariners, 
 or other dissolute persons joining with them, as should com- 
 mit any murder, robbery, felony, mutiny, or other outrage or 
 misdemeanor whatsoever, and by such summary course and 
 order as is agreeable to martial law, and as is used in armies in 
 time of war, to proceed to the trial and condemnation of such 
 offenders, and them to cause to be executed and put to death 
 according to the law martial. 
 
 VIII. By pretext whereof some of your Majesty's subjects 
 have been by some of the said commissioners put to death, 
 when and where, if by the laws and statutes of the land they 
 had deserved death, by the same laws and statutes also they 
 might, and by no other ought to have been judged and 
 executed : 
 
 IX. And also sundry grievous offenders, by colour thereof 
 claiming an exemption, have escaped the punishments due to 
 them by the laws and statutes of this your realm, by reason that 
 divers of your officers and ministers of justice have unjustly 
 refused or forborne to proceed against such offenders accord- 
 ing to the same laws and statutes, upon pretence that the said 
 offenders were punishable only by martial law, and by autho- 
 rity of such commissions as aforesaid ; which commissions, and 
 all other of like nature, are wholly and directly contrary to the 
 said laws and statutes of this your realm. 
 
 X. They do therefore humbly pray your most excellent 
 Majesty, that no man hereafter be compelled to make or yield 
 any gift, loan, benevolence, tax, or such like charge, without 
 common consent by Act of Parliament; and that none be 
 called to make answer, or to take such oath, or to give attend- 
 ance, or be confined, or otherwise molested or disquieted con- 
 cerning the same or for refusal thereof; and that no freeman, 
 in any such manner as is before mentioned, be imprisoned or 
 detained ; and that your Majesty would be pleased to remove 
 the said solders and mariners, and that your people may not 
 
 I 
 
 J 
 
OF THE CONSTITUTION. 279 
 
 be so burthened in time to come ; and that the aforesaid com- 
 missions, for proceeding by martial law, may be revoked and 
 annulled ; and that hereafter no commissions of like nature 
 may issue forth to any person or persons -whatsoever to be 
 executed as aforesaid, lest by colour of them any of your 
 Majesty's subjects be destroyed or put to death contrary to 
 the laws and franchise of the land. 
 
 XI. All which they most humbly pray of your most excel- 
 lent Majesty as their rights and liberties, according to the laws 
 and statutes of this realm ; and that your Majesty would also 
 vouchsafe to declare, that the awards, doings, and proceed- 
 ings, to the prejudice of your people in any of the premises, 
 shall not be drawn hereafter into consequence or example; 
 and that your Majesty would be also graciously pleased, for 
 the further comfort and safety of your people, to declare your 
 royal will and pleasure, that in the things aforesaid all your 
 officers and ministers shall serve you according to the laws 
 and statutes of this realm, as they tender the honour of your 
 Majesty, and the prosperity of this kingdom. 
 
 Qua quidem petitione lectd et plenius intellectd per dictum 
 dominum regem taliter est responsum in pleno parliamento, 
 viz. Soit droit fait comme est desire. 
 
CHAPTEK XVI. 
 
 The Restoration. — Affection of the English Nation for their old 
 Institutions. — Effects of the Period of Revolution. — Military Te- 
 nures abolished — Habeas Corpus Act. — Custom of Fining Jurors 
 for their Verdicts pronounced Illegal. — Revolution of 1688. — 
 The Bill of Rights. — The Act of Settlement. — Kingship in Eng- 
 land since the Revolution. — Its Limitations. — Its enduring Value. 
 — House of Lords. — Attempt to check Creation of Peers. — Benefits 
 of the House of Peers to the Country. — House of Commons. — Bo- 
 rough Members. — Rotten Boroughs. — Reform Bill. 
 
 The restoration of monarchy in 1660, with the enthusi- 
 astic consent and joy of the whole nation, except a few 
 disappointed military adventurers, and a few high-minded 
 but fanatic zealots for aristocratic republicanism, is a 
 great fact in our history. It proves how deeply the affec- 
 tion for our ancient institutions is rooted in the heart of 
 the English people ; and that the genius of our nation is 
 incapable of reconciling itself either to the tumultuary 
 vehemence of a single dominant popular assembly, 
 however high may be the intellectual eminence of many 
 of its members, or to the stern regimen of a military 
 autocrat, whatever lustre it may derive from the successes 
 of his foreign administration. But still the nation had 
 not passed through these thirty eventful years between 
 1629 and 1660, without experiencing some permanent re- 
 sults on the national character. "From the time of the 
 great revolutionary crisis, the English people had the 
 good fortune to profit by experience, and the good 
 sense not to give themselves up to extreme parties. 
 
RISE AND PROGRESS OF THE CONSTITUTION. 281 
 
 It is from the reign of Charles II. that this good sense, 
 which is the pohtical intelligence of a free people, has 
 presided over the destinies of England. The revolution 
 through which the English nation had just passed had 
 terminated in three great results. 
 
 " In the first place, the king could never again separate 
 himself from the parliament. The cause of monarchy 
 was gained, but that of absolute monarchy was lost for 
 ever. Theologians and philosophers, like Filmer or 
 Hobbes, might preach the dogma or maintain the prin- 
 ciple of absolute power, and their ideas might excite the 
 indignation or the favour of speculative thinkers or vehe- 
 ment partisans. In the opinion of the nation, however, 
 the question 'was practically decided : royalists and revo- 
 lutionists regarded the close union and the mutual con- 
 trol of the Crown and parliament as the right of the 
 country, and as necessary to its interests. 
 
 "In the second place, the House of Commons was 
 in effect the preponderant branch of the parliament. Its 
 direct or formal sovereignty was a revolutionary principle 
 which was now generally decried and execrated ; and the 
 Crown and the House of Lords had recovered their rights 
 and their dignity. But their overthrow had been so vio- 
 lent and complete, that, even after the fall of their ene- 
 mies, they were unable to re-estabhsli themselves in their 
 ancient ascendancy ; and neither the faults nor the re- 
 verses of the House of Cbmmons could obliterate the 
 efiect of its terrible victories. The royalist party were 
 now masters in that assembly, and, in its relations to the 
 Crown and the administration of the country, inherited 
 the conquests of the Long Parliament. In spite of some 
 appearances of an opposite tendency, the preponderant 
 influence of the House of Commons over the affairs of 
 
282 RISE AND PROGRESS 
 
 the country was, from the reign of Charles II., daily- 
 more obvious and decisive. 
 
 " These two pohtical facts were accompanied by one 
 of still higher importance, relating to the religious con- 
 dition of the country : the complete and definitive as- 
 cendancy of Protestantism in England was the other 
 great result of the Kevolution." * 
 
 No attempt was made after the Kestoration to revive 
 some of the instruments of royal misgovemment, which 
 the Long Parliament had overthrown. The Court of Star 
 Chamber had been abolished, nor was it ever revived. 
 The vexatious profits of the mihtary tenures had been 
 laid aside, and the 12 Car. II., c. 24, abolished military 
 tenures altogether, converting them into common free- 
 holds, and thus swept away those feudal rights of the 
 Crown to wardships, primer seisins, aids, homages, &c., 
 which had long been so burdensome to the nobility and 
 gentry^, who held lands by military tenure. There are 
 some other statutes of this reign which deserve mention 
 on account of their constitutional importance. 
 
 The first regular parliament of Charles passed an im- 
 portant Act to prevent the legislature being overawed, 
 and their votes coerced in future by riotous and seditious 
 mobs under the guise of petitioners. That statute (13 
 Car. II. St. 1, c. 5) is still in force, and enacts that "no 
 person or persons whatsoever shall repair to his Majesty 
 or both or either of the Houses of Parliament, upon pre- 
 tence of presenting or dehvering any petition, complaint, 
 remonstrance, declaration, or other addresses, accom- 
 panied with excessive number of people, nor at any one 
 time with above the number of ten persons." 
 
 * Guizot on the English Revolution, 
 
OF THE CONSTITUTION. 1^83 
 
 The Habeas Corpus Act, also, which was passed in this 
 reign (31 Car. II., c. 2), is of great constitutional value, 
 though it by no means introduced any new principle into 
 our system, or formed any such epoch in the acquisition 
 of the national liberties, as some writers represent. But 
 it made the remedies against arbitrary imprisonment short, 
 certain, and obtainable at all times and in aU cases. The 
 statute itself enacts — 
 
 " 1 . That on complaint and request in writing by or on 
 behalf of any person committed and charged with any 
 crime (unless committed for treason or felony expressed 
 in the warrant; or as accessory or on suspicion of being 
 accessory before the fact to any petit treason or felony ; 
 or upon suspicion of. such petit treason or felony plainly 
 expressed in the warrant ; or unless he is convicted or 
 charged in execution by legal process), the Lord Chan- 
 cellor or any of the judges in vacation, upon viewing a 
 copy of the warrant, or affidavit that a copy is denied, 
 shall (unless the party has neglected for two terms to 
 apply to any court for his enlargement) award a habeas 
 corjms for such prisoner, returnable immediately before 
 himself or any other of the judges ; and upon the return 
 made shall discharge the party, if bailable, upon giving 
 security to appear and answer to the accusation in the 
 proper court of judicature. 2. That such writs shall be 
 indorsed as granted in pursuance of this act, and signed 
 by the person awarding them. 3. That the writ shall be 
 returned, and the prisoner brought up within a limited 
 time according to the distance, not exceeding in any case 
 twenty days. 4. That officers and keepers neglecting to 
 make due returns, or not delivering to the prisoner or his 
 agent within six hours after demand a copy of the war- 
 rant of commitment, or shifting the custody of the pri- 
 
284 EISE AND PROGRESS 
 
 soner from one to another without sufficient reason or 
 authority (specified in the Act), shall for the first ofience 
 forfeit ^100, and for the second off'ence ^200 to the party 
 grieved, and be disabled to hold his office. 5. That no 
 person once delivered by habeas corpus shall be re-com- 
 mitted for the same offence, on penalty of £500. 6. That 
 every person committed for treason or felony, shall if 
 he requires it, the first week of the next term, or the 
 first day of the next session of oyer and terminer, be in- 
 dicted in that term or session, or else admitted to bail, 
 unless the queen's witnesses cannot be produced at that 
 time ; and if acquitted, or not indicted and tried in the 
 second term or session, he shall be discharged from his 
 imprisonment for such imputed offence ; but that no per- 
 son, after the assizes shall be open for the county in 
 which he is detained, shall be removed by habeas corpus 
 till after the assizes are ended, but shall be left to the 
 justice of the judges of assize. 7. That any such pri- 
 soner may move for and obtain his habeas corpus as well 
 out of the Chancery or Exchequer, as out of the King's 
 Bench or Common Pleas, and the Lord Chancellor or 
 judges denying the same on sight of the warrant or oath 
 that the same is refused, forfeits severally to the party 
 grieved the sum of ^GSOO. 8. That this writ of habeas 
 corpus shall run into the counties palatine, cinque ports, 
 and other privileged places, and the Islands of Jersey and 
 Guernsey. 9. That no inhabitant of England (except 
 persons contracting or convicts praying to be transported, 
 or having committed some capital offence in the place to 
 which they are sent) shall be sent prisoner to Scotland, 
 Ireland, Jersey, Guernsey, or any places beyond the seas 
 within or without the queen's dominions, on pain that 
 the party committing, his advisers, aiders, and assistants. 
 
OF THE CONSTITUTION. 285 
 
 shall forfeit to the party aggrieved a sum not less than 
 dG500, to be recovered with treble costs ; shall be disabled 
 to bear any office of trust or profit ; shall incur the penal- 
 ties of prdsmunire ; and shall be incapable of the queen's 
 pardon."— 3 Black. Com. 137.* 
 
 These enactments, and especially the Habeas Corpus 
 Act, make the name of Charles II. figure creditably in 
 our statute-book, and there is one judicial decision of 
 this reign, which established a constitutional principle of 
 the highest value, or rather which put an end to a long- 
 continued abuse of the most perilous character. 
 
 Under the Tudor princes the Court of Star Chamber 
 assumed the power of punishing jurors by fine and im- 
 prisonment for returning verdicts contrary to the evi- 
 dence. Such was the pretext on which the court pre- 
 tended to act ; but the real cause of their dangerous 
 and oppressive interference generally was, that the jury 
 had acquitted the prisoner in a state trial, contrary to the 
 wishes of the Crown and its ministers. 
 
 Attempts were made to exercise, through the Courts of 
 Common Law, the same violent means of perverting 
 
 * Such is the substance of except persons imprisoned for 
 that great and important sta- debt or by process in any 
 tute. But as the Act is con- civil suit), it shall and may be 
 fined to imprisonments on cri- lawful for any judge or baron, 
 minal, or supposed criminal, upon complaint* made to him 
 charges, the 56 Geo. III., c. 100, by or on behalf of the party so 
 was passed, extending the power confined or restrained, if it shall 
 of issuing a writ of Artimscor^ws appear by aflSdavit or affirma- 
 to other cases. By this statute tion that there is probable and 
 it is enacted, that where any reasonable ground for such corn- 
 person shall be confined or re- plaint, to award in vacation 
 strained of his liberty (other- time a writ of habeas corpus ad 
 wise than for some criminal or subjiciendum returnable imme- 
 supposed criminal matter, and diately. 
 
286 RISE AND PROGRESS 
 
 justice. It is to be recollected that under all our kings, 
 prior to the Act of Settlement, the judges were not only _ 
 appointed by the king, but held their commissions only fl| 
 during his pleasure, and it will readily be understood how, 
 in state prosecutions, a trial before a jury, who knew that 
 they would be themselves ruinously fined and cruelly im- 
 prisoned, if they acquitted the prisoner, must have be- 
 come "a mockery, a delusion, and a snare." But in 
 J 070, on a trial of the celebrated Quaker Penn and Mead 
 at the Old Bailey for an unlawful assembly, a juryman 
 named Bushel (who deserves the imperishable gratitude 
 of Englishmen*) w^as firm, and encouraged his fellow 
 jurors to be firm, against all the threats of the court, and 
 acquitted the prisoners. The recorder (who tried the 
 case) set a fine of forty marks on each of the jurors for 
 perverseness and contumacy. Bushel refused to pay the 
 fine, and the recorder thereon committed him to prison. 
 He sued out a writ of Habeas Corpus from the Court of 
 Common Pleas, and on a return being made to it that he 
 had as a juror acquitted Penn and Mead " contra plenam 
 et manifestam evidentiam," the subject was elaborately 
 discussed; and Chief Justice Vaughan, "in a judgment ■ 
 replete with masculine sense, luminous argument, and 
 profound historical research," pronounced the return in- 
 sufficient, and the fine and imprisonment illegal. From 
 that time fofth the invaluable doctrine, that a jury in the 
 discharge of their duty are responsible only to God and 
 their consciences, has never been shaken or impeached.f 
 
 
 * See an excellent epitome tory of the Law of Evidence," 
 
 of this trial, and the subsequent p. 250 ; see also Mr. Hepworth 
 
 proceedings in the Common Dixon's ''Life of Penn." 
 Pleas, in Mr. Phillimore's "His- t In very early times, when 
 
OF THE CONSTITUTION. 287 
 
 Chief Justice Vaughan's conduct in Bushel's case is, 
 however, an almost solitary exception to the infamous 
 character of the State Trials and other judicial proceed- 
 ings in Charles II. 's reign. There are, indeed, few 
 periods in our history more discreditable and more un- 
 pleasing to dwell on, than the twenty-eight years between 
 the Kestoration and the Kevolution. They must cer- 
 tainly he studied in order fully to perceive the necessity 
 and rightly to appreciate the benefits of that last-men- 
 tioned great event. But the limits of the present volume 
 are unsuited for the purpose ; and, indeed, the great his- 
 torical work, with which Mr. Macaulay is enriching our 
 literature, has made the leading scenes of 1688 and the 
 immediately preceding years, familiar to every educated 
 Englishman. Differences of opinion as to many points 
 in the characters of the three first Stuart kings will be 
 found in writers of eminence, but there is no discrepancy 
 as to the last. Even Hume, the artful and unscrupulous 
 partisan of the House of Stuart, confesses of James II. 
 that " almost the whole of this short reign consists of 
 attempts always imprudent, often illegal, sometimes both, 
 against whatever was most loved and revered by the 
 
 the jurors were themselves wit- to whose decision of it the first 
 
 nesses, and gave a verdict from jury were either freed from 
 
 their own personal knowledge blame or severelji punished. As 
 
 of the transaction (see p. 206, jurors ceased to be witnesses, 
 
 supra), they were punishable and heard and acted upon the 
 
 for a wilfully-false verdict (that testimony of others, the process 
 
 is, for wilfully-false evidence) of attaint fell into disuse. Sir 
 
 by a writ of attaint. For this T. Smith, in Elizabeth's reign, 
 
 purpose twenty-fourotherjurors speaks of it as then obsolete. It 
 
 were summoned, who reinvesti- was formally abolished only in 
 
 gated the case, and according George IVth's reign. 
 
288 EISE AND PROGRESS 
 
 nation." Some of the grievances whereof the English 
 of those days complained most bitterly, those namely 
 ■which arose from the king's open encouragement of Eoman 
 Catholics, in defiance of the laws respecting members of 
 that church, and his evident zeal for making that creed 
 the established religion of the land, in lieu of the Pro- 
 testant, may not press with the proper amount of im- 
 portance on the minds of some modern readers, unless 
 they bear in mind the condition of Europe at that time, 
 and how completely the bigotry and the ambition of 
 Louis XIV. had identified the progress of Catholicism 
 with the progress of despotic principles. James was the 
 hireling of Louis, and was animated by the same feel- 
 ings. He strove to gain a simultaneous triumph over 
 Church and State in England, and to lay the national 
 faith beneath the Pope's feet, while he cast down the 
 national liberties beneath his own. 
 
 The natural consequence of this was, that a spirit of 
 ultra-Protestantism mingled with and became an ani- 
 mating principle of the opposition, which was raised 
 against his assaults upon the constitution. The poli- 
 tical struggle became necessarily for the time a religious 
 one. And in that age the successful maintenance of 
 Protestant ascendancy involved the rescue and the ad- 
 vancement of Constitutional Freedom. 
 ' The preamble of the Bill of Eights narrates clearly, 
 worthily, and fully the violation of the known laws, and 
 free institutions of the realm, which the late king had 
 committed. And as the scope of this little treatise does I 
 not permit a narrative here of the proceedings and dis- ■ 
 cussions of the Convention Parliament, I will at once 
 transcribe this most important of all modern statutes 
 
 I 
 
 I 
 
OF THE CONSTITUTION. 289 
 
 An Act foe Declaring the Rights and Liberties of 
 THE Subject, and Settling the Succession of the 
 Crown. 
 
 "Whereas the Lords spiritual and temporal, and Commons, 
 assembled at Westminster, lawfully, fully, and freely repre- 
 senting all the estates of the people of this realm, did upon 
 the thirteenth day of February, in the year of our Lord one 
 thousand six hundred eighty- eight, present unto their Ma- 
 jesties, then called and known by the names and style of Wil- 
 liam and Mary, Prince and Princess of Orange, being present 
 in their proper persons, a certain declaration in writing, made 
 by the said Lords and Commons, in the words following ; viz. — 
 
 Whereas the late King James II., by the assistance of 
 divers evil counsellors, judges, and ministers employed by 
 him, did endeavour to subvert and extirpate the Protestant 
 religion, and the laws and liberties of this kingdom : — 
 
 1. By assuming and exercising a power of dispensing* 
 with and suspending of laws, and the execution of laws, 
 without consent of Parliament. 
 
 2. By committing and prosecuting divers worthy prelates, 
 for humbly petitioning to be excused from concurring to the 
 said assumed power. 
 
 3. By issuing and causing to be executed a commission 
 
 * See supra, p. 255, as to the p. 31. Lord Coke, while ad- 
 dispensing power exercised by mitting the legality of it in 
 our early kings. James as- special cases and within par- 
 sumed the power of dispensing ticular limits, had reprobated 
 generally with the observance in the most forcible manner the 
 of a whole class of statutes by notion that the Crown had a 
 a whole class of people. See general power of abrogating or 
 authorities as to the dispensing changing laws, 
 power in Amos' "Fortescue," 
 
290 RISE AND PROGRESS 
 
 under the great seal for erecting a court called, The Court of 
 Commissioners for Ecclesiastical Causes. 
 
 4. By levying money for and to the use of the Crown, by 
 pretence of prerogative, for other time, and in other manner 
 than the same was granted by Parliament. 
 
 5. By raising and keeping a standing army within this 
 kingdom in time of peace, without consent of Parliament, and 
 quartering soldiers contrary to law. 
 
 6. By causing several good subjects, being Protestants, to 
 be disarmed, at the same time when Papists were both armed 
 and employed, contrary to law. 
 
 7. By violating the freedom of election of members to 
 serve in Parliament. 
 
 8. By prosecutions in the Court of King's Bench, for 
 matters and causes cognisable only in Parliament; and by 
 divers other arbitrary and illegal courses. 
 
 9. And whereas of late years, partial, corrupt, and unquali- 
 fied persons have been returned and served on juries in trials, 
 and particularly divers jurors in trials for high treason, which 
 were not freeholders. 
 
 10. And excessive bail hath been required of persons com- 
 mitted in criminal cases, to elude the benefit of the laws 
 made for the liberty of the subjects. 
 
 11. And excessive fines have been imposed; and illegal and 
 cruel punishments inflicted. 
 
 12. And several grants and promises made of fines and 
 forfeitures, before any conviction or judgment against the per- 
 sons, upon whom the same were to be levied. 
 
 All which are utterly and directly contrary to the known 
 laws and statutes, and freedom of this realm. 
 
 And whereas the said late King James II. having abdicated 
 the Government, and the throne being thereby vacant, his 
 Highness the Prince of Orange (whom it hath pleased 
 Almighty God to make the glorious instrument of deliver- 
 
 I 
 
OF THE CONSTITUTION. 291 
 
 ing this kingdom from popery and arbitrary power) did (by 
 the advice of the Lords spiritual and temporal, and divers 
 principal persons of the Commons) cause letters to be 
 written to the Lords spiritual and temporal, being Pro- 
 testants ; and other letters to the several counties, cities, uni- 
 versities, boroughs, and cinque-ports, for the choosing of such 
 persons to represent them, as were of right to be sent to Par- 
 liament, to meet and sit at Westminster upon the two-and- 
 twentieth day of January, in this year one thousand six hundred 
 eighty and eight, in order to such an establishment, as that 
 their religion, laws, and liberties might not again be in danger 
 of being subverted ; upon which letters, elections have been 
 accordingly made. 
 
 And thereupon the said Lords spiritual and temporal, and 
 Commons, pursuant to their respective letters and elections, 
 being now assembled in a full and free representation of this 
 nation, taking into their most serious consideration the best 
 means for attaining the ends aforesaid, do in the first place 
 (as their ancestors in like case have usually done), for the vin- 
 dicating and asserting their ancient rights and liberties, 
 declare : — 
 
 1. That the pretended power of suspending of laws, or the 
 execution of laws, by regal authority, without consent of Par- 
 liament, is illegal. 
 
 2. That the pretended power of dispensing with laws, or 
 the execution of laws by regal authority, as it hath been 
 assumed and exercised of late, is illegal. 
 
 3. That the commission for erecting the late court of com- 
 missioners for ecclesiastical causes, and all other commissions 
 and courts of like nature, are illegal and pernicious. 
 
 4. That levying money for or to the use of the Crown, by 
 pretence and prerogative, without grant of Parliament, for 
 longer time, or in other manner than the same is or shall be 
 granted, is illegal. 
 
 5. That it is the right of the subjects to petition the King, 
 
 2 
 
292 
 
 RISE AND PROGRESS 
 
 and all commitments and prosecutions for such petitioning are 
 illegal. =«« 
 
 6. That the raising or keeping a standing army within the 
 kingdom in time of peace, unless it be with consent of Par- 
 liament, is against law. 
 
 7. That the subjects which are Protestants, may have arms 
 for their defence suitable to their conditions, and as allowed 
 by law. f 
 
 8. That election of members of Parliament ought to be 
 free. 
 
 9. That the freedom of speech, and debates or proceedings 
 in Parliament, ought not to be impeached or questioned in 
 any court or place out of Parliament. 
 
 10. That excessive bail ought not to be required, nor ex- 
 cessive fines imposed; nor cruel and unusual punishments 
 inflicted. 
 
 11. That jurors ought to be duly impanelled and returned, 
 and jurors which pass upon men in trials for high treason 
 ought to be freeholders. 
 
 12. That all grants and promises of fines and forfeitures of 
 particular persons before conviction, are illegal and void. 
 
 * This does not repeal the 
 statute of Charles II. against 
 tumvltuous petitioning. — See R. 
 V. Gordon, Doug. Rep., 592. 
 
 t "In connection with the 
 rights of personal liberty and 
 security is the right of the sub- 
 ject to carry arms for his de- 
 fence, suitable to his condition 
 and degree, and such as are 
 allowed by law. There is an 
 ancient enactment, however [2 
 Edw. III. c. 3], against going 
 armed under such circumstances 
 
 I 
 
 as may tend to terrify the peo- 
 ple, or indicate an intention of 
 disturbing the public peace ; 
 and by a modern statute [60 
 Geo. III. c. 1] the training per- 
 sons without lawful authority 
 to the use of arms is prohibited, 
 and any justice is authorized to 
 disperse such assemblies of per- 
 sons as he may find engaged in 
 that occupation, and to arrest 
 any of the persons present." — 
 Stephens' New CommeirUarieSy vol. 
 i. p. 140. 
 
OF THE CONSTITUTION. S93 
 
 13. And that for redress of all grievances, and for the 
 amending, strengthening, and preserving of the laws, Parlia- 
 ment ought to be held frequently. 
 
 And they do claim, demand, and insist upon all and sin- 
 gular the premises, as their undoubted rights and liberties ; 
 and that no declarations, judgments, doings or proceedings, to 
 the prejudice of the people in any of the said premises, 
 ought in any wise to be drawn hereafter into consequence 
 or example : 
 
 To which demand of their rights they are particularly 
 encouraged by the declaration of his Highness the Prince 
 of Orange, as being the only means for obtaining a full 
 redress and remedy therein : 
 
 Having therefore an entire confidence, that his said High- 
 ness the Prince of Orange will perfect the deliverance so 
 far advanced by him, and will still preserve them from the 
 violation of their rights, which they have here asserted, 
 and from all other attempts upon their religion, rights, and 
 liberties. 
 
 II. The said Lords spiritual and temporal, and Commons 
 assembled at Westminster, do resolve, that William and 
 Mary Prince and Princess of Orange be, and be declared. 
 King and Queen of England, France and Ireland, and the 
 dominions thereunto belonging, to hold the Crown and royal 
 dignity of the said kingdoms and dominions to them the said 
 Prince and Princess during their lives, and the life of the 
 survivor of them ; and that the sole and full exercise of the 
 regal power be only in, and executed by the said Prince of 
 Orange, in the names of the said Prince and Princess, dur- 
 ing their joint lives ; and after their deceases, the said Crown 
 and royal dignity of the said kingdoms and dominions to be to 
 the heirs of the body of the said Princess ; and for default of 
 such issue to the Princess Anne of Denmark, and the heirs 
 of her body ; and for default of such issue to the heirs of the 
 
294 RISE AND PROGRESS 
 
 body of the said Prince of Orange, And the Lords spiritual 
 and temporal, and Commons, do pray the said Prince and 
 Princess to accept the same accordingly. 
 
 III. And that the oaths hereafter mentioned be taken by all 
 persons of whom the oaths of allegiance and supremacy might 
 be required by law, instead of them ; and that the said oaths 
 of allegiance and supremacy be abrogated. 
 
 I, A. B., do sincerely promise and swear, That T will be 
 faithful, and bear true allegiance, to their Majesties King 
 William and Queen Mary : So help me God. 
 
 I, A. B., do swear, That I do from my heart abhor, detest, 
 and abjure as impious and heretical, that damnable doctrine 
 and position, that Princes excommunicated or deprived by 
 the Pope, or any authority of the see of Rome, may be de- 
 posed or murdered by their subjects, or any other whatsoever. 
 And I do declare, that no foreign prince, person, prelate, 
 State, or potentate hath, or ought to have any jurisdiction, 
 power, superiority, pre-eminence, or authority ecclesiastical 
 or spiritual, within this realm : So help me God. 
 
 IV. Upon which their said Majesties did accept the crown 
 and royal dignity of the kingdoms of England, France, and 
 Ireland, and the dominions thereunto belonging, according to 
 the resolution and desire of the said Lords and Commons 
 contained in the said declaration. 
 
 V. And thereupon their Majesties were pleased, that the 
 said Lords spiritual and temporal, and Commons, being the two 
 Houses of Parliament, should continue to sit, and with their 
 Majesties' royal concurrence make effectual provision for the 
 settlement of the religion, laws and liberties, of this kingdom, 
 so that the same for the future might not be in danger again 
 of being subverted ; to which the said Lords spiritual and 
 temporal, and Commons, did agree and proceed to act accord- 
 ingly. 
 
OF THE CONSTITUTION. 295 
 
 VI. Now in pursuance of the premises, the said Lords 
 spiritual and temporal, and Commons, in Parliament assem- 
 bled, for the ratifying, confirming and establishing the said 
 declaration, and the articles, clauses, matters, and things 
 therein contained, by the force of a law made in due form by 
 authority of Parliament, do pray that it may be declared and 
 enacted, That all and singular the rights and liberties as- 
 serted and claimed in the said declaration, are the true, 
 ancient, and indubitable rights and liberties of the people of 
 this kingdom, and so shall be esteemed, allowed, adjudged, 
 deemed, and taken to be, and that all and every the particu- 
 lars aforesaid shall be firmly and strictly holden and observed, 
 as they are expressed in the said declaration ; and all officers 
 and ministers whatsoever shall serve their Majesties and their 
 successors according to the same in all times to come. 
 
 VII. And the said Lords spiritual and temporal and Com- 
 mons, seriously considering how it hath pleased Almighty God, 
 in his marvellous providence, and merciful goodness to this 
 nation, to provide and preserve their said Majesties' royal per- 
 sons most happily to reign over us upon the throne of their 
 ancestors, for which they render unto Him from the bottom of 
 their hearts their humblest thanks and praises, do truly, 
 firmly, assuredly, and in the sincerity of their hearts think, 
 and do hereby recognise, acknowledge and declare, that King 
 James II. having abdicated the Government, and their Ma- 
 jesties having accepted the Crown and royal dignity as afore- 
 said, their said Majesties did become, were, are, and of right 
 ought to be, by the laws of this realm, our sovereign liege 
 lord and lady. King and Queen of England, France, and Ire- 
 land, and the dominions thereunto belonging, in and to whose 
 princely persons the royal State, Crown, and dignity of the said 
 realms, with all honours, styles, titles, regalities, prerogatives, 
 powers, jurisdictions and authorities to the same belonging 
 and appertaining, are most fully, rightfully, and entirely 
 invested and incorporated, united and annexed. 
 
S96 RISE AND PROGRESS 
 
 YIIT. And for preventing all questions and divisions in 
 tins realm, by reason of any pretended titles to the Crown, 
 and for preserving a certainty in the succession thereof, in 
 and upon which the unity, peace, tranquillity, and safety of 
 this nation doth, under God, wholly consist and depend, the 
 said Lords spiritual and temporal, and Commons, do beseech 
 their Majesties that it may be enacted, established and de- 
 clared, that the Crown and regal government of the said 
 kingdoms and dominions, with all and singular the premises 
 thereunto belonging and appertaining, shall be and continue 
 to their said Majesties, and the survivor of them, during their 
 lives, and the life of the survivor of them. And that the 
 entire, perfect, and full exercise of the regal power and 
 government be only in, and executed by his Majesty, in the 
 names of both their Majesties during their joint lives; and 
 after their deceases the said Crown and premises shall be and 
 remain to the heirs of the body of her Majesty ; and for 
 default of such issue, to her Royal Highness the Princess 
 Anne of Denmark, and the heirs of her body ; and for default of 
 such issue, to the heirs of the body of his said Majesty : And 
 thereunto the said Lords spiritual and temporal, and Com- 
 mons do, in the name of all the people aforesaid, most humbly 
 and faithfully submit themselves, their heirs and posterities 
 for ever ; and do faithfully promise. That they will stand to, 
 maintain, and defend their said Majesties, and also the limita- 
 tion and succession of the Crown herein specified and con- 
 tained, to the utmost of their powers, with their lives and 
 estates, against all persons whatsoever, that shall attempt 
 anything to the contrary. 
 
 IX. And whereas it hath been found by experience, that it 
 is inconsistent with the safety and welfare of this Protestant 
 kingdom, to be governed by a Popish Prince, or by any King 
 or Queen marrying a Papist; the said Lords spiritual and 
 temporal, and Commons, do further pray that it may be 
 enacted. That all and every person and persons that is, are, or 
 
OF THE CONSTITUTION. 297 
 
 shall be reconciled to, or shall hold communion with, the See 
 or Church of Rome, or shall profess the Popish religion, or 
 shall marry a Papist, shall be excluded, and be for ever 
 incapable to inherit, possess, or enjoy the Crown and govern- 
 ment of this realm, and Ireland, and the dominions thereunto 
 belonging, or any part of the same, or to have, use, or exer- 
 cise any regal power, authority, or jurisdiction within the 
 same ; and in all and every such case or cases the people of 
 these realms shall be and are hereby absolved of their alle- 
 giance ; and the said Crown and government shall from time 
 to time descend to, and be enjoyed by such person or persons, 
 being Protestants, as should have inherited and enjoyed the 
 same, in case the said person or persons so reconciled, holding 
 communion, or professing, or marrying as aforesaid, were 
 naturally dead. 
 
 X. And that every King and Queen of this realm, who at 
 any time hereafter shall come to and succeed in the Imperial 
 Crown of this kingdom, shall on the first day of the meeting 
 of the first Parliament, next after his or her coming .to the 
 Crown, sitting in his or her throne in the House of Peers, in 
 the presence of the Lords and Commons therein assembled, or 
 at his or her coronation, before such person or persons who 
 shall administer the coronation oath to him or her, at the 
 time of his or her taking the said oath (which shall first 
 happen), make, subscribe, and audibly repeat the declaration 
 mentioned in the statute made in the thirteenth year of the 
 reign of King Charles II., intituled, "An Act for the more 
 effectual preserving the King's person and government, by 
 disabling Papists from sitting in either House of Parliament." 
 But if it shall happen, that such King or Queen, upon his or 
 her succession to the Crown of this realm, shall be under the 
 age of twelve years, then every such King or Queen shall 
 make, subscribe, and audibly repeat the said declaration at 
 his or her coronation, or the first day of meeting of the first 
 Parliament as aforesaid, which shall first happen after such 
 
 3 
 
298 RISE AND PROGRESS 
 
 King or Queen shall have attained the said age of twelve 
 years. 
 
 XI. All which their Majesties are contented and pleased 
 shall be declared, enacted, and established by authority of this 
 present Parliament, and shall stand, remain, and be the law of 
 this realm for ever; and the same are by their said Majesties, 
 by and with the advice and consent of the Lords spiritual 
 and temporal, and Commons, in Parliament assembled, and 
 by the authority of the same, declared, enacted, or established 
 accordingly. 
 
 XII. And be it further declared and enacted by the autho- 
 rity aforesaid, That from and after this present session of 
 Parliament, no dispensation by non obstante of or to any 
 statute, or any part thereof, shall be allowed, but that the 
 same shall be held void and of no effect, except a dispensation 
 be allowed of in such statute, and except in such cases as 
 shall be specially provided for by one or more bill or bills to 
 be passed during this present session of Parliament. 
 
 XIII. Provided that no charter, or grant, or pardon 
 granted before the three-and-twentieth day of October, in the 
 year of our Lord One thousand six hundred eighty-nine, shall 
 be any ways impeached or invalidated by this Act, but that 
 the same shall be and remain of the same force and effect 
 in law, and no other than as if this Act had never been made.* 
 
 * The ultra-radical as well even in England, that the revo- 
 as the ultra-monarchical dispa- lution of 1688 was exclusively 
 ragers of " the Glorious Revo- aristocratic ; that it was planned 
 lution" describe it as a mere and achieved by the higher 
 oligarchical movement. It is classes for their own advantage, 
 well on this subject to have the and was not accomplished by 
 judgment of that sagacious in- the impulse or for the good of 
 vestigator and dispassionate the people, 
 critic of our institutions and " This is a remarkable ex- 
 history, M. Guizot. " It has ample, among many others, of 
 often been said in France, and the confusion of ideas and the 
 
OF THE CONSTITUTION. 
 
 299 
 
 In order to obviate the confusion that was likely to 
 arise as to the right to the Crown, in the event (which 
 
 ignorance of facts which so often 
 characterize the judgments pass- 
 ed on great events. 
 
 "The two political changes 
 effected by the Revolution of 
 1688 are the most popular to 
 be found in history ; it pro- 
 claimed and guaranteed, on the 
 one hand, the essential rights 
 common to all citizens, and, on 
 the other, the active and effec- 
 tual participation of the coun- 
 try in its own government. A 
 people so ignorant of its highest 
 interests as not to know that 
 this is all which it needs, or 
 ought to demand, will never be 
 able to found a government or 
 to maintain its liberties. 
 
 "Considered from a moral 
 point of view, the Revolution of 
 1688 had a still more popular 
 character ; since it was made 
 in the name and by the force of 
 the religious convictions of the 
 nation, and was designed prin- 
 cipally to give them security 
 and ascendancy. In no coun- 
 try, and at no time, were the 
 form and destiny of the govern- 
 ment more powerfully influenced 
 by the prevalent faith of the 
 governed. 
 
 « The Revolution of 1688 was 
 popular in its principles and 
 results, and was aristocratic 
 only in the mode of its execu- 
 
 tion; the men of weight and 
 mark in the country by whom 
 it was conceived, prepared, and 
 carried through, being the faith- 
 ful representatives of the gene- 
 ral interests and sentiments. It 
 is the rare felicity of England, 
 that powerful and intimate ties 
 were early formed, and have 
 been perpetuated, among the 
 different classes of society. The 
 aristocracy and the people liv- 
 ing amicably, and deriving 
 prosperity from their union, 
 have sustained and controlled 
 each other. The natural leaders 
 of the country have not held 
 themselves aloof from the peo- 
 ple, and the people have never 
 wanted leaders. It was more 
 especially in 1688 that England 
 experienced the benefit of this 
 happy peculiarity in her social 
 order. To save her faith, her 
 laws, and her liberties, she was 
 reduced to the fearful necessity 
 of a revolution ; but she accom- 
 plished it by the hands of men 
 disciplined in habits of order 
 and experienced in government, 
 and not by those of revolution- 
 ists. The very men who were 
 the authors of the change con- 
 tained it within just limits, and 
 established and consolidated the 
 institutions to which it gave 
 birth. The cause of the English 
 
300 EISE AND PROGRESS 
 
 actually occurred) of there being no surviving issue of 
 William and Mary, of the Princess Anne, or of WiUiam, 
 it was found necessary, in 1700, to fix more definitely the 
 succession of the Crown, and it was now further limited 
 to the Princess Sophia, Electress of Hanover, and her 
 heirs, she being grand-daughter of James I., and the next 
 in succession who held the Protestant faith. In the 
 statute by which this was done, called the Act of Settle- 
 ment, several very important constitutional provisions 
 were introduced. Eight articles were inserted in the Act, 
 which were to take efi'ect from the accession of the House 
 of Hanover. 
 
 1. That whosoever shall hereafter come to the possession of 
 this Crown, shall join in communion with the Church of 
 England as by law established. 
 
 2. That in case the Crown and imperial dignity of this 
 realm shall hereafter come to any person, not being a native 
 of this kingdom of England, this nation be not obliged to 
 engage in any war for the defence of any dominions or terri- 
 tories which do not belong to the Crown of England, without 
 the consent of Parliament. 
 
 3. That no person who shall hereafter come to the posses- 
 sion of this Crown, shall go out of the dominions of England, 
 Scotland, or Ireland, without consent of Parliament. 
 
 4. That from and after the time that the further limitation 
 by this Act shall take effect, all matters and things relating to 
 the well governing of this kingdom, which are properly 
 cognisable in the Privy Council by the laws and customs of 
 this realm, shall be transacted there, and all resolutions taken 
 
 people triumphed by the hands istic of the Revolution, and 
 of the English aristocracy : this the pledge of its enduring sue- 
 indeed was the great character- cess." 
 
OF THE CONSTITUTION. 301 
 
 thereupon shall be signed by such of the Privy Council as 
 shall advise and consent to the same. 
 
 5. That, after the said limitation shall take effect as afore- 
 said, no person born out of the kingdoms of England, Scot- 
 land, or Ireland, or the dominions thereunto belonging 
 (although to be naturalized or made a denizen — except such 
 as are born of English parents), shall be capable to be of the 
 Privy Council, or a member of either House of Parliament, 
 or to enjoy any office or place of trust, either civil or military, 
 or to have any grant of lands, tenements, or hereditaments, 
 from the Crown, to himself, or to any other or others in trust 
 for him. 
 
 6. That no person who has an office or place of profit under 
 the King, or receives a pension from the Crown, shall be 
 capable of serving as a member of the House of Commons. 
 
 7. That, after the said limitation shall take effect as afore- 
 said, judges' commissions be made quamdiu se bene gesserint, 
 and their salaries ascertained and established; but upon 
 the address of both Houses of Parliament, it may be lawful 
 to remove them. 
 
 8. That no pardon under the great seal of England be 
 pleadable to an impeachment by the Commons in Parlia- 
 ment. 
 
 Some of these provisions require a little comment and 
 explanation. 
 
 The second, third, and fifth were obviously caused by 
 the jealousy that was felt of a new and foreign dynasty. 
 The third, which sought to impose so marked a restraint 
 on the personal freedom of the sovereign, was repealed 
 in the very first year after George I. became king. The 
 fourth was designed to be a far more important consti- 
 tutional regulation, and it draws our attention again to 
 the subject of the king's Consilium Ordinarium, or 
 
302 RISE AND PROGRESS 
 
 Privy Council, which has heen spoken of at an earlier 
 part of this work.* 
 
 It has there been pointed out that our sovereigns had 
 their regular Council, consisting of the chief officers of 
 State, and of such persons as the king thought fit to 
 summon. They took an oath of fidelity and secrecy, 
 and these were the king's privy councillors. The ob- 
 noxious judicial power which was practised first by the 
 Council, and afterwards by a portion of it organized as 
 the Court of Star Chamber, has also been referred to. 
 The abolition of this tribunal did not interfere with the 
 existence of the Privy Council in its natural and legiti- 
 mate capacity. 
 
 The number of the privy councillors was gradually 
 found inconvenient for practical government, and the 
 custom grew up of a few members of it, who really were 
 the active and confidential ministers of the Crown, deli- 
 berating apart. This select body acquired the name of 
 the " Cabinet Council," with which we are all practically 
 familiar, though the term " Cabinet minister" is unknown 
 in constitutional forms. For some time it appears to 
 have been usual for the Cabinet Council, when they had 
 resolved upon a measure, to lay it before the Privy Coun- 
 cil for their assent and adoption, but no further discus- 
 sion took place, and the ratification was a mere formality. 
 Out of a desire to ascertain more easily the main indi- 
 vidual promoters and advisers of state measures, it was 
 endeavoured in the Act of Settlement to revive the old 
 system, to compel the discussion of all state affairs in 
 full Privy Council, and to discriminate between those who 
 
 See p. 256, supra. 
 
OF THE CONSTITUTION. 303 
 
 promoted and those who dissuaded each resolution, by 
 making all who voted for it sign their names to it. It 
 was, however, soon perceived that this system would cause 
 infinite delay and embarrassment in governing the king- 
 dom, and the clause was repealed by a statute in Queen 
 Anne's reign, before the time when its provisions were to 
 have come into operation.* 
 
 The practice above referred to of summoning all the 
 Privy Council to adopt and ratify the previously-an-anged 
 measures of the cabinet has also long become obsolete. 
 And it is correctly stated t that " the oflBce of privy coun- 
 cillor, as distinct from cabinet minister, is now little more 
 than a titular distinction, conferring the title of right 
 honourable on the bearer of it." Koyal proclamations 
 and orders still emanate, as the law requires, from the 
 Privy Council, but by long-estabhshed usage no privy 
 councillor attends, unless specially summoned. Each, 
 however, though he be not a cabinet minister, and though 
 he be in actual opposition to the ministry of the day, has 
 the right of attending, and that right was exercised in a 
 very memorable and important crisis in our constitutional 
 history, when Queen Anne was on her deathbed, and 
 when the Dukes of Argyll and Somerset suddenly ap- 
 peared in the council- chamber at Kensington Palace, and 
 disconcerted all the measures of Bohngbroke and his 
 coadjutors, for bringing in the Pretender after the Queen's 
 decease.! 
 
 * See Hallam's " Constitu- jurisdiction in inquiring into 
 
 tional History," iii. p. 249. state offences and committing 
 
 t " Pictorial History of Eng- for trial, and the important 
 
 land," iv. p. 672. functions that several modern 
 
 X For the present practical statutes have vested in a portion 
 
 power of the Privy Council, their of the Council, called the " Ju- 
 
304 
 
 RISE AND PROGRESS 
 
 The sixth article in the Act of Settlement was designed 
 to put a stop to the rapidly-increasing influence which 
 the Crown was acquiring over the House of Commons, by 
 being able to confer places and pensions on its members. 
 This power had been made an engine of extensive and 
 grievous corruption during the last bad reigns, and had 
 excited just popular indignation. But the framers of the 
 Act of Settlement, though laudably anxious to check this 
 abuse, went into the opposite extreme, which Mr. Hallam 
 truly calls " the preposterous extremity of banishing 
 all servants of the Crown from the House of Commons." 
 
 dicial Committee of the Privy 
 Council," see Bowyer's "Com- 
 mentaries on the Constitution," 
 p. 126. It has been mentioned 
 in the text that the Queen's 
 orders and proclamations are 
 issued in Privy Council. This 
 is in several cases required and 
 authorized by statute ; but the 
 sovereign has also a general 
 constitutional prerogative of 
 issuing proclamations, which is 
 vested in the sovereign alone, 
 though exercised by the sove- 
 reign in and by the advice of 
 her Council. Mr. Bowyer ob- 
 serves as to this part of the 
 prerogative, " These proclama- 
 tions have then a binding force, 
 when (as Sir Edward Coke ob- 
 serves) they are grounded upon 
 and enforce the laws of the realm. 
 For though the making of laws 
 is entirely the work of a distinct 
 part — the legislative branch of 
 the sovereign power — yet the 
 
 manner, time, and circumstances 
 of putting those laws in execu- 
 tion must frequently be left to 
 the discretion of the executive 
 magistrate ; and therefore his 
 constitutions or edicts concern- 
 ing these points, which we call 
 proclamations, are binding upon 
 the subject, while they do not 
 either contradict the old laws 
 or tend to establish new ones, 
 but only enforce the execution 
 of such laws as are already in 
 being, in such manner as the 
 queen shall judge necessary. 
 Thus the established law is that 
 the queen may prohibit any of 
 her subjects from leaving the 
 realm ; a proclamation, there- 
 fore, forbidding this, in general 
 for three weeks, by laying an 
 embargo upon all shipping in 
 the time of war, will be equally 
 binding as an Act of Parliament, 
 being founded on a prior law.' 
 See also pp. 256. 290, supra, 
 
 i 
 
OF THE CONSTITUTION. 306 
 
 This sweeping clause of the Act of Settlement never 
 came into operation. It was repealed in the fourth year 
 of Anne's reign. Another Act on the subject was passed 
 in the same reign, by which every member of the House 
 of Commons, accepting an office under the Crown, except 
 a higher commission in the army, must vacate his seat, 
 but may be re-elected ; and by which also, persons hold- 
 ing offices created since the 25th of October, 1705, were 
 incapacitated from being elected or re-elected members of 
 parhament. The statute excluded at the same time all 
 such as held pensions during the pleasure of the Crown ; 
 and, to check the multipHcation of placemen, it was 
 enacted, that no greater number of commissioners 
 should be appointed to execute any office, than had been 
 employed in its execution at some time before that par- 
 liament." 
 
 The seventh article of the Act of Settlement, that which 
 provides for the independence of the judges, is the most 
 important of all. The Stuart kings had been in the 
 habit of systematically packing the bench, in order to 
 secure decisions favourable to the Crown, on all points of 
 law; and in order also that uncrupulous partizans of 
 the Court should preside at all state trials, and work out 
 the royal partialities and hatreds. Men who showed 
 any independence in such matters, or who were known to 
 be opposed to the views of the Court, were summarily dis- 
 missed from the bench, and more obsequious tools of the 
 Government were appointed on the eve of any important 
 judicial proceeding. While this could be done, the 
 liberties of the subject were never safe. There was not 
 one that might not be brought in some form before a 
 court of law, to be upheld or nullified ; and the sovereign 
 who can garble at his will the administration of the 
 
306 RISE AND PROGRESS 
 
 laws, need care little about who made them. Without 
 open violence, it was always in his power, " constitution- 
 ally to ruin the constitution.'"^ The Act of Settlement 
 gave the remaining necessary bulwark to our national 
 freedom, when it made the judges irremovable, except on 
 the joint requirement of both Houses of Parliament; and 
 when also, by requiring their salaries to be fixed and 
 ascertained, instead of depending on the caprice of the 
 Crown, it freed them from all influence, and from all sus- 
 picion of being under the influence of corruption or in- 
 timidation. 
 
 It is to be observed that the Act of Settlement, while 
 it gave a new dynasty the right to reign in England, 
 solemnly acknowledged on that solemn occasion the 
 existence and authority of all the subjects' rights. The 
 conclusion of the Act of Settlement is as follows : — 
 
 " IV. And whereas the laws of England are the birth- 
 right of the people thereof, and all the kings and queens, 
 who shall ascend the throne of this realm, ought to ad- 
 minister the government of the same according to the 
 said laws, and all their officers and ministers ought to 
 serve them respectively according to the same : the said 
 Lords spiritual and temporal, and Commons, do therefore 
 further humbly pray. That all the laws and statutes of 
 this realm for securing the established religion, and the 
 rights and liberties of the people thereof, and all other 
 laws and statutes of the same now in force, may be rati- 
 fied and confirmed, and the same are by his Majesty, by 
 and with the advice and consent of the said Lords 
 spiritual and temporal, and Commons, and by authority of 
 the same, ratified and confirmed accordingly." 
 
 * The phrase is Vergniaud's. 
 
OF THE CONSTITUTION. 307 
 
 It would be superfluous to point out categorically how 
 completely this Act, the Petition of Eight, and the Bill of 
 Eights, recognise and confirm the primary great constitu- 
 tional principles wliich the Great Charter first estabhshed. 
 But, before proceeding to the Eeform Bill of 1832 
 (which seems next in constitutional importance), it may 
 be useful to consider shortly the actual state of the 
 Enghsh Government and nation soon after the Eevo- 
 lution of 1688, and during the early part of the last 
 century. 
 
 With the expulsion of the Stuarts, the long struggle 
 between the king and the people ended : and the substi- 
 tution on the Enghsh throne of a line of princes, who 
 derived their title confessedly through the nation's will, 
 extinguished all those absurd dogmas as to the right 
 divine of kings, the patriarchal principle of government, 
 the duty of the subject to submit to all royal orders, and 
 the like, which had previously been never-failing pretexts 
 for sanctioning or excusing violations of constitutional 
 right, and graspings after absolute power. Indeed, since 
 the reign of WilHam, the royal heads of our limited 
 monarchy have exercised comparatively httle personal 
 interference in state affairs. Our kings and queens 
 have carried on the government of tlie country 
 through ministers, who have been, and necessarily 
 must be, dependent on parliament for their tenure of 
 office. Not that the personal opinions or character of 
 the sovereign of this country ever can be unimportant. 
 " His habits and tastes are always matters of notoriety, 
 and often of imitation. Access to his society is always 
 coveted. He may give that access in a manner useful, or 
 mischievous, or absolutely indifferent. He may call to 
 his court those who are most distinguished by genius or by 
 
808 RISE AND PROGRESS 
 
 knowledge; or those whose only merit is their birth or 
 their station ; or parasites, buffoons, or profligates. Even 
 in the appointment of ministers, he may sometimes exer- 
 cise a sort of selection. He is sometimes able to delay, 
 for a short period, the fall of those whom he likes, and 
 the accession of those whom he dislikes; and he can 
 sometimes permanently exclude an individual." * 
 
 He can, indeed, do more than this, provided parties are 
 nearly balanced in the country. In such a state of things 
 the personal adherents of the sovereign (and a band 
 more or less numerous of such there will always be) can 
 turn the scale, and determine the adoption or rejection of 
 measures of the greatest moment both in foreign and 
 domestic pohcy. The influence exercised by George III., 
 in very critical times, by means of "the king's friends" 
 is notorious. The power of dissolving parliament is 
 also a strong engine in the sovereign's hands, whereby he 
 may protect himself from ministers personally distasteful 
 to him, and gain at least the chance of seeing a House of 
 Commons returned, whose feelings may harmonize with 
 his own. But if the national will, as expressed by the 
 two legislative assemblies, is decided and strong on one 
 side of a question, and if a dissolution of parliament 
 only causes a solemn popular ratification of the expres- 
 sion of that will in the House of Commons, the sove- 
 reign is powerless to oppose it. Unless parliament passes 
 the customary annual Mutiny Bill, and unless it gives 
 the customary annual votes for pecuniary supphes, the 
 armed forces of the State must be disbanded, and the 
 whole machinery of government must be stopped. 
 
 * Edinburgh Review of Lord Brougham's "Political Philo- 
 sophy." 
 
OF THE CONSTITUTION. 309 
 
 The principle that our monarchy is hereditary, has heen 
 maintained in practice ever since the accession of the 
 House of Hanover, and there is every cause to hope and 
 believe that it long will be so. We all feel (as Crom- 
 well was warned that our ancestors felt) that our old 
 limited hereditary monarchy is a blessing to the country, 
 if it be only on account of the quiet and good order 
 which its principle of succession insures, compared with 
 the mischief which would follow, if the post of chief 
 magistrate among us were to be intrigued for by the 
 ringleaders of clubs, or fought for by ambitious soldiers. 
 It is, of course, impossible to secure a succession of good 
 and wise princes ; nor can human foresight calculate 
 when an Antoninus will be followed by a Commodus. 
 Hence, our constitution is rightly cautious and restric- 
 tive. It is framed not for a single generation, or with 
 reference to the personal qualities of a particular ruler, 
 but it is the fruit of the experience of many ages, and 
 is designed for duration and permanence. It therefore 
 provides checks and securities against the ambition, and 
 passions, and weaknesses of human nature ; and it fixes 
 limitations sufficient to secure a large amount of good 
 government, and to protect liberty, even under a bad 
 prince.* But it leaves open a large field for the exer- 
 cise of the virtues of a good one. The constitutional sove- 
 reigns of England who understand and act up to their 
 true political duties, without seeking to overstep them ; 
 
 * See Bolingbroke, vol. i. p. 60, in Lieber, on " Civil Liberty and 
 and some very beautiful re- Self-Government," p. 124. Pro- 
 marks of the American states- fessor Lieber's own comments 
 man Webster, on the jealous well deserve perusal, 
 spirit of Constitutional Liberty 
 
310 RISE AND PROGRESS 
 
 who also employ the high influence of their station and 
 example for the encouragement of social and domestic 
 virtue, for the advancement of learning and the well- 
 judged patronage of art, earn nohly the gratitude of the 
 people, and honestly that debt would be paid, if requi- 
 site, in act as well as in feehng. No one who did duty 
 on the ever-memorable 10th of April, 1848, will forget 
 how far personal enthusiasm for our thoroughly English- 
 hearted Queen combined on that day with zeal for con- 
 stitutional order, in producing the majestic manifestation 
 of true pubhc opinion, which put down the mischievous 
 schemes to imitate foreign revolution, which some mis- 
 guided men then attempted. 
 
 Our House of Peers, at the Eevolution of 1688, con- 
 sisted of about 150 temporal, and 26 bishops. I have 
 before indicated the causes that originally made the 
 Enghsh an hereditary peerage : and gradually it became 
 a fixed maxim that the individual whom the sovereign 
 summoned by his royal writ to the House of Lords, ac- 
 quired thereby not only the right to sit in the particular 
 parliament during which the writ issued, but a right for 
 himself and heirs to become and be thenceforth a peer of 
 the realm. Thenceforth every peer of full age has been 
 held entitled to his writ of summons at the commence- 
 ment of every parhament. But although it is not in the 
 power of the Crown to sway the deliberations of the 
 House of Lords by excluding old peers, the prerogative 
 of creating new temporal peers at discretion has been 
 retained by the Crown, both before and after the Revolu- 
 tion, though a strong effort was made in George I.'s 
 reign to cut down this important constitutional preroga- 
 tive. A bill Hmiting the House of Lords after a very 
 small increase should have been made to its then actual 
 
OF THE CONSTITUTION. 8J1 
 
 members, was brought in by Lord Sunderland's ministry, 
 and carried easily through the Upper House, but lost in 
 the Commons, fortunately for the interests of all orders 
 in the State, but especially for the permanent interest and 
 existence of that very body, which the bill was designed 
 with short-sighted poHcy to strengthen. 
 
 The House of Lords would then have been free from 
 all constitutional check ; whereas, now the prerogative of 
 the Crown in making new peers is an effective controlhng 
 power. When this is borne in mind, and when it is re- 
 membered also to how large an extent the Upper House 
 is continually recruited from the commonalty; how a 
 peerage is the stimulus for energy and the valued prize 
 of eminence ; there are few or none but will rejoice in 
 the permanence and desire the stability of our House of 
 Lords. Men of Conservative principles will naturally 
 cling to " the peers of England, pillai's of the state." 
 And even the most vehement Reformer must, on reflec- 
 tion, feel their value. The necessity of a second legisla- 
 tive chamber is almost universally admitted;* nor could 
 a speculator frame one that would work better than our 
 present peerage. Such a second chamber, in order to be 
 of the least use, must not be a mere duplicate of the 
 House of Commons ; but must, if elective, be, hke the 
 American Senate, chosen by a more limited and opulent 
 body of voters than that which elects the House of Com- 
 
 * There are very valuable the common law, and every- 
 
 observations of Professor Lieber where it succeeds ; while no 
 
 on this necessity for a second one attempt at introducing the 
 
 chamber. He terms the prin- unicameral chamber in large 
 
 cipal of it essentially Anglican, countries has succeeded." — See 
 
 " The bicameral system accom- Lieber on " Civil Liberty and 
 
 panics the Anglican race like Self-Government," chap. xvii. 
 
312 RISE AND PROGRESS 
 
 mons. But it is self-evident that in this country an 
 Upper House, elected solely by the wealthy class of the 
 community, would be infinitely more oligarchical and ob- 
 structive to reform, than the House of Lords has ever 
 been. 
 
 The House of Commons continued to consist of knights 
 of the shires, and representatives of the cities and boroughs. 
 The introduction of members for the Universities of Ox- 
 ford and Cambridge can hardly be considered material in 
 point of number, though it may furnish an important pre- 
 cedent for the application of the principle of educational 
 representation. The mode in which particular boroughs 
 acquired, lost, or regained the right of sending repre- 
 sentatives, has become a topic of comparatively little 
 practical interest since the Reform Bill. It seems pro- 
 bable that under the Plantagenets every town of any 
 consequence received a writ directing it to return bur- 
 gesses to parhament ; but it is clear that, from the com- 
 mencement of our representative system, some very 
 inconsiderable places returned members. Sometimes the 
 negligence or partiaHty of the sheriffs omitted towns that 
 had formerly received writs ; and frequently new boroughs, 
 as they grew into importance, or from some private 
 motive, acquired the right of representation. Gradually 
 it became a recognised principle that the right of a 
 borough to return members having once existed can 
 never be lost: and none of the 111 cities and towns 
 which returned members at the accession of Henry VIII. 
 intermitted their privilege down to 1832. 
 
 We have, in a previous chapter, examined the subject 
 of who were the electors in the boroughs in early times ; 
 and it has been pointed out that, as the power of the 
 House of Commons increased, the composition of tt 
 
OF THE CONSTITUTION. 313 
 
 electoral bodies became an object of growing attention to 
 the Crown ; and especially under the last Tudors and the 
 Stuarts, sedulous efforts were made to mould and influ- 
 ence the municipal composition of those parliamentary- 
 boroughs which were also corporate cities and towns. 
 By machinations of this kind, by the silent effect of " the 
 great innovator, Time," in reducing many places which 
 had once been populous into wretched hamlets, and by 
 many boroughs having (as has before been mentioned) 
 been originally selected by the Crown to return members 
 on account of their liability to Crown influence,* a large 
 number of the parliamentary boroughs became the mere 
 instruments of powerful individuals, who owned the few 
 houses in them which gave a right of voting, or who pur- 
 chased the suffrages of a Httle chque of self-elected electors. 
 These close or rotten boroughs, as they were familiarly 
 termed, gave great facilities for the increase of the indirect 
 influence of the Crown, but they also favoured the am- 
 bition of wealthy subjects ; and it is to be borne in mind 
 that they peculiarly aided the efforts of the commercial 
 classes to raise themselves into an equality with the terri- 
 torial aristocracy. t This last, the lauded interest, made, 
 in the ninth year of Queen Anne, a great struggle to se- 
 cure its ascendancy, by excluding the rest of the commu- 
 
 * The latest instance of the ther exercise of this power, " on 
 Crown creating a borough with the broad maxim of having ex- 
 a right to send members, was elusive privilege in matters re- 
 in Charles II.'s reign. This lating to their own body, which 
 caused some little debate in the the House was become powerful 
 Commons, but was ratified by enough to assert against the 
 them. The Commons, in sub- Crown." — See Hallam. 
 sequent reigns, would, unques- f See Hallam's " Constitu- 
 tionably, have resisted any fur- tional History," vol. iii. p. 402. 
 
 P 
 
314 RISE AND PROGRESS 
 
 nity from parliament. With this view the landed gentry- 
 obtained the passing of an Act by which every member ol 
 the Commons, except those for the universities, was re- 
 quired to possess, if a knight of the shire, a freehold or 
 copyhold estate of clear 600/. per annum, and, if repre- 
 sentative of a borough, a like landed qualification to 
 the amount of 300/. per annum. It has been shown that 
 the old statute of Henry VI., requiring county represen- 
 tatives to be chosen from '* notable knights or such as 
 shall be able to be knights," had fallen into desuetude ; 
 and the new law went far beyond it, and would, if effectu- 
 ally carried out, have converted our House of Commons 
 into an odious deputation of landed oligarchs. This law, 
 however, has been systematically evaded, nor are the pro- 
 visions of the modern statute,"^ which has made personal 
 as well as real property qualify its owner for parliament, 
 much more efficacious in attaining the only proper object 
 of such restrictions, that, namely, of preventing needy ad- 
 venturers from obtaining seats in the House. Neither of 
 these Acts having required a member to possess the sti- 
 pulated qualification during all the time that he continues 
 to be member, it always has been and is enough to pro- 
 cure for the occasion a colourable transfer from some 
 person who really holds the requisite property, which 
 transfer is cancelled or reversed, directly the member has 
 taken his seat. This practice may be almost said to have 
 received the sanction of the legislature by what took place 
 when the 33 Geo. II. c. 30, was passed. That statute, 
 which first made it necessary for the newly-elected mem- 
 ber to swear to his qualification on taking his seat, 
 contained, when it was first brought forward, a clause re- 
 
 * 1 & 2 Vict. c. 48. 
 
OF THE COxNSTITUTION. 315 
 
 quiring every member who should at any time during the 
 continuance of the parhament to which he was elected, 
 sell, dispose of, alien, or in any wise encumber the estate 
 which made his qualification, to deliver in on oath a state- 
 ment for a new or further qualification before he should 
 again presume to sit or vote as a member of the House of 
 Commons. But the legislature rejected this clause ; and 
 thus deliberately sanctioned the system by which men of 
 no property, but who can find wealthy friends with confi- 
 dence in their honour, obtain seats as Enghsh mem- 
 bers.* 
 
 The laws which regulate the duration of parliament, 
 belong also to the period between the Revolution and the 
 accession of George III. ; and are not only of great con- 
 stitutional importance, but have given rise to one of the 
 practical political questions of the present time. There is 
 an ancient statute of Edward II.'s reign (5Edw.ILc. 29t), 
 which is principally a confiimation of Magna Carta, but 
 which contains at its close the following additional pro- 
 visions : — " Forasmuch as many people be aggrieved by 
 the king's ministers against right, in respect to which 
 grievances no one' can recover without a common parlia- 
 ment ; we do ordain that the king shall hold a parlia- 
 ment once in the year, or twice if need be." And a sta- 
 tute of the next reign (4 Edw. III. c. 14) ordains that 
 '* a parliament shall be holden every year once, and more 
 often if need be." These Acts are generally supposed to 
 have only provided that there should be an annual meet- 
 ing of parhament, and not that there should be a new 
 parliament every year. Certainly these statutes had been 
 
 * See Smollett, book ill. c. 13, t Statutes of the Realm, 
 sect. 56. i. 165. 
 
 P 2 
 
316 RISE AND PROGRESS 
 
 in either sense little heeded in practice, and there was no 
 explicit enactment as to how often there should be a new 
 parhament until the Triennial Bill of 1642 was passed 
 by the Long Parliament. After the Restoration this salu- 
 tary statute was repealed at the king's special request ; 
 and one of Charles II.'s parliaments, which was found 
 eminently loyal and corruptible, was prolonged in mis- 
 chievous existence for the enormous period of seventeen 
 years. In the year after the Great Revolution a bill was 
 brought in and passed both Houses to limit the duration 
 of parhament to three years. King Wilham refused his 
 assent to it ; but the Commons renewed their exertions ; 
 the repeated exercise of the royal veto would have been 
 perilous to its possessor, and a Triennial Bill became law 
 in 1694. But in 1717 it was deemed unsafe by the 
 ministers of the newly- arrived Hanoverian king to risk 
 a general election, and the celebrated Septennial Act was 
 passed, which has hitherto stood firm against the repeated 
 attempts that have been made to obtain a return to tri- 
 ennial parliaments. 
 
 Not wishing to complicate this work by the discussion 
 of Scotch or Irish topics, I purposely pass over the Act 
 of Union with Scotland, as I shall presently pass over 
 the similar Act with regard to Ireland. 
 
 The influence of the middle classes, which had been 
 gi-eatly developed and augmented during the period 
 between the Great Revolution and the accession of 
 George III., increased in a rapidly- accelerated ratio 
 during the long and eventful reign of the last- mentioned 
 sovereign. 
 
 " The extension of commerce and manufactures, after 
 the treaty of Paris, in 1763, was rapid and unprecedented. 
 Large manufacturing and commercial towns arose in all 
 
OF THE CONSTITUTION. 317 
 
 " parts of the country, the inhahitants of which were hut 
 Uttle influenced hy tliose powerful ties which generally 
 connect an agricultural population with the superior land- 
 owners. With the increase of opulence and population 
 coDsequent upon the increase of manufactures and trade, 
 education and the desire of political information became 
 more generally diffused. The press acquired great in- 
 fluence. Pohtical journals were established in every con- 
 siderable town, in which the conduct of public men and 
 the policy of all the measures of Government were freely 
 canvassed. The improved facilities of internal commu- 
 nication afforded the means of conveying intelligence 
 with astonishing rapidity from one part of the country 
 to another; so that most persons began to take an 
 interest, not only in what was going on around them, 
 but in public affairs, and in the concerns of the remotest 
 part of the empire. Prejudices and established opinions 
 of all sorts were openly attacked. The structure of the 
 pohtical fabric, and the rights and privileges of the dif- 
 ferent ranks and orders of society, were subjected to a 
 searching investigation, and their claim to respect began 
 to be tried by reference to their usefulness rather than 
 their antiquity. PubUc opinion, expressed through the 
 medium of a thousand different channels, became a check 
 on the executive scarcely inferior in efficacy to the exist- 
 ence of a popular assembly. Under such circumstances 
 we need not wonder that the enterprising citizens of great 
 manufacturing and commercial towns, as Manchester, 
 Birmingham, Sheffield, &c., felt daily more dissatisfied 
 at being denied the privilege possessed by so many in- 
 ferior boroughs, of sending representatives to the House 
 of Commons. They began, during the American war, 
 publicly to manifest their impatience at such exclusion ; 
 
818 RISE AND PROGRESS 
 
 *' and, deriving confidence from their numbers, their wealth, 
 and their intelligence, they prosecuted their claims to 
 participate directly in the privileges of the constitution 
 with a boldness which would probably have been long 
 ago successful, if the progress of peaceful reformation 
 had not been arrested by the violence of the French 
 Eevolution. The alarms occasioned by that event, and 
 the war that grew out of it, suspended for a while the 
 demand for a remodelling of the representative system. 
 But after the peace of 1815, these solicitations were re- 
 newed ; and the reasonableness of the claim, united with 
 the great accession of popular influence and the excite- 
 ment occasioned by the movements on the Continent in 
 1880, made it imprudent any longer to disregard it." 
 
 I have been quoting the words of a well-known liberal 
 statesman, Macculloch ; but the opinions which they ex- 
 press are now universally admitted. And Mr. Warren, 
 an eminent champion of Conservatism, fairly says, at the 
 commencement of his able description* of the great 
 changes of 1832, — "It may be stated at the outset, and 
 no intelligent, candid, and considerate person can avoid 
 the conclusion, that important changes were called for in 
 order to adapt our ancient and free institutions to the 
 altered circumstances of the times." 
 
 The passing of the Eefonn Bill is an event too recent 
 to make any detailed narrative of it necessary or proper 
 here. By that statute, the number of county members 
 for England and Wales, was increased from 95 to 159 ; 
 the number of members for the metropolis and its ad- 
 jacent districts was augmented to 18 ; 50 parliamentary 
 boroughs were wholly, and 31 partially disfranchised; 
 
 * Warren's " Parliamentary Law," p. 5. 
 
 1 
 
OF THE CONSTITUTION. 319 
 
 and 43 new boroughs were created, 22 of which return 
 two members, and 21 one member each. With respect to 
 the county franchise, the old forty- shilling freeholders were 
 retained ; except freeholders for life in certain cases, where 
 the amount of yearly value required is 1 0/. But three 
 other great classes of voters were introduced. Thesewere: — ■ 
 First, copyholders of 10/. a year. Secondly, leaseholders, 
 if lessees, or assignees, of a term of sixty years of 10/. 
 yearly value ; if of a term of twenty years, of 50/. yearly 
 value ; and the sub-lessees or assignees of underleases, re- 
 spectively, of the yearly value of 10/. and 50/., subject to 
 conditions as to length of possession. Thirdly, occu- 
 pying tenants, without reference to the length of time for 
 which the tenancy was created, but at a yearly rent of 50/., 
 and subject to a condition as to the length of time during 
 which the occupation has continued.* No condition of 
 residence was imposed on county voters. In cities and 
 boroughs some ancient rights were reserved, but subject 
 to important restrictions as to residence. But the great 
 feature of the Reform Act was the new household fran- 
 chise which it introduced, and gave to 10/. householders, 
 subject, however, to conditions as to residence and pay- 
 ment of rates, and liable to be temporarily lost by the re- 
 ceipt of parish relief. 
 
 Such are substantially the provisions of the celebrated 
 Eeform Bill of 1832 ; the results of which have in many 
 respects differed from those hoped and feared by its friends 
 and its enemies; but the general effect of which has un- 
 doubtedly been to increase the proportion of political power 
 in the hands of the middle classes of this country. And 
 under the term " Middle Classes," it is here meant to in- 
 
 * See Warren, p. 10. 
 
320 RISE AND PROGRESS OF THE CONSTITUTION. 
 
 elude all those who are below the landed aristocracy, and 
 above such artizans and labourers as depend solely on 
 manual labour for subsistence. Without entering into the 
 existing political questions which spring out of the present 
 distribution of political power in this country, we may 
 usefully close these discussions with some examination 
 into the details of how it is actually distributed ; bearing 
 in mind our original description of political and constitu- 
 tional functions, as embracing magisterial and judicial 
 duties, as well as relating to the great deliberative as- 
 sembly of the nation. 
 
CHAPTER XVII. 
 
 Present Population of England, and number of Parliamentary 
 Electors. — Property and Education considered as elements of Re- 
 presentative System. — Qualification of Jurors. — Magistrates and 
 Officers of various kinds, how appointed.— Local Self-government. 
 — Municipal Reform. — Influence of Public Opinion. — Rights of 
 Free Discussion and Liberty of Press. 
 
 The total number of the human beings living in Eng- 
 land and Wales at the time of the last census (March 31, 
 1851) was seventeen millions nine hundred and twenty- 
 seven thousand six hundred and nine. The total number 
 of parliamentary electors who polled at the last general 
 election (in 1852) was three hundi*ed and forty-one thou- 
 sand eight hmidred and thirty.* The disparity seems to 
 
 ■* See for these and the fol- sions, trades, and occupations, 
 
 lowing numbers the two valu- These statistics will be most 
 
 able volumes lately published useful for the political ob- 
 
 by the Census Commissioners, server. There are some further 
 
 and a parliamentary return or- details as to the number of elec- 
 
 dered by the House of Com- tors, &c., given in the parlia- 
 
 mons, No. 106, 1853. mentary return of this session 
 
 One very valuable part of the that may be interesting to some 
 
 results of the last census has of the readers of these pages, 
 
 not yet been made public. The The number of county electors 
 
 Commissioners are to classify for England and Wales who 
 
 the population according to age, polled at the last election was 
 
 and according to their profes- 116,153; the number on the 
 
 P 3 
 
3S2 RISE AND PROGRESS 
 
 be enormous ; but there are some other calculations to be 
 attended to, which will diminish the surprise which it 
 excites. In the first place, we must, according to the 
 usual statistical rule, divide by four, in order to obtain the 
 number of males of full age in the entire population. This 
 would give, in round numbers, about four millions and a 
 half Englishmen and Welshmen of full age. On the 
 other hand, though only the small number that has been 
 mentioned, actually polled, we must ascertain how many 
 were entitled to vote at the last election,* and we shall 
 find that the number of registered electors then was nine 
 hundi-ed and eighteen thousand six hundred and eighty- 
 three. As many of these had votes in more than one 
 capacity or for more than one place, and consequently 
 were counted over more than once in the aggregate of the 
 registers, we must make some deduction from this number. 
 Altogether we may perhaps safely estimate that rather 
 more than one man in every five in England and Wales 
 has a right to vote in the election of the representatives 
 of the Commons Estate in the Lower House of Parlia- 
 ment, f 
 
 But the mere element of numbers (though of primary 
 importance) can never be the sole one to be taken into 
 
 register was 507,754. These re- not even give a test of those 
 
 turn 159 members. The number who both possessed and valued 
 
 of borough electors who polled the franchise, 
 
 was 225,677 ; the number on f The proportion was calcu- 
 
 the register was 410,929. These lated to be one in five in 1839, 
 
 return 339 members. according to the returns then 
 
 * In a great number of coun- furnished. See Macculloch's 
 
 ties and many boroughs there "Stat. Account of Brit. Empire," 
 
 >ftas no contest in 1852 ; so that vol. ii. p. 105. 
 the number of actual voters does 
 
OF THE CONSTITUTION. 323 
 
 account when the distribution of the electoral franchise is 
 considered. Intelligence and property must have their 
 weight. The extension of education and the extension of 
 the sufirage are topics inseparably united for consideration 
 in a statesman's mind ; and with respect to the claims of 
 property there may be great difference of opinion as to the 
 authority that should be given to it; but few deny 
 that it should have some degree of influence in the electoral 
 system. 
 
 With respect to education there are no complete statis- 
 tics at present available to show the extent to which it is 
 diffused or deficient among the various classes that make 
 up the great bulk of the population. But there can be no 
 doubt as to there being a fearful amount of ignorance and 
 consequent debasement among very large numbers of our 
 popidation. Much information on this subject is collected 
 in Mr. Pashley's valuable work on Pauperism. That 
 careful and accurate inquirer and sound and fair thinker 
 describes the three millions of our population who (accord- 
 ing to his calculations) require and actually receive parish 
 relief in the course of every year, as " ignorant, degraded, 
 and miserable ;" and he truly states that they " indicate 
 the existence of a still larger class to which they belong, 
 which is but little, if at all, less ignorant, degraded, and 
 miserable than themselves." Some of the instances which 
 he cites of the depth of the ignorance that prevails among 
 them, show it to be, as he terms it, "appalling."* 
 
 * No one can read without population, belonging to an ig- 
 
 decp interest and sympathy the norant, degraded, and miserable 
 
 following passages, which con- pauper class, actually receive 
 
 eludes Mr. Pashley's first chap- parish relief in the course of 
 
 ter : — every year, and indicate the ex- 
 
 " Now that 3,000,000 of our istence of a still larger class to 
 
524 
 
 RISE AND PROGRESS 
 
 The melanclioly extent of pauperism that still exists in 
 the country is also a subject to be deeply considered by all 
 who in any degree recognise property as part of the basis 
 of a sound electoral system. The number has been already 
 cited from Mr. Pashley of the recipients of parish relief 
 at some time or another during the year. The figures are 
 fearfully emphatic — 3_,000^000! The number constantly 
 
 which they belong, and which 
 is but little, if at all, less igno- 
 rant, degraded, and miserable 
 than themselves, it becomes 
 high time not merely for Chris- 
 tian philanthropists, but for 
 practical statesmen, to turn 
 their attention to effecting some 
 elevation and improvement in 
 the condition and instruction of 
 the great masses of the people. 
 The ignorance in which those 
 masses are left may be seen in 
 some of Mr. Clay's valuable re- 
 ports on the Preston House of 
 Correction. The appalling ig- 
 norance of criminals is a proof, 
 if proof be needed, of the total 
 want of education of the whole 
 class from which the bulk of 
 criminals is supplied. In 1850, 
 Mr. Clay says, ' With reference 
 to 1636 male prisoners, it is a 
 fact that 674 were unable to 
 read in the slightest degree ; 
 046 were ignorant of the Sa- 
 viour's name, and unable to 
 repeat a word of intelligible 
 prayer; and 1111 were unable 
 to name the months of the year 
 in their proper order ; while 713 
 
 were well acquainted with the 
 exciting adventures and vil- 
 lanies of Turpin and Jack 
 Sheppard, and admired them as 
 friends and favourers of the 
 poor, inasmuch as, if they did 
 rob, they robbed the rich for the 
 poor.^ 
 
 " Sadly does the State neglect 
 its duty when such is the intel- 
 lectual, moral, and religious 
 condition of a numerous class 
 of its children. The Pagans of 
 the ancient world admitted the 
 existence of this duty; and it 
 has been justly observed that 
 'the philosophers of antiquity 
 well knew what an important 
 part of man's work it was to 
 educate the young to become 
 worthy active members of their 
 civil commonwealths. Hence 
 education was ever a main ele- 
 ment in their scheme of polity, 
 whether practical or ideal.' But 
 this duty we, who call ourselves 
 Christians, and profess to follow 
 the divine precept, ' Love one 
 another,' entirely neglect to 
 fulfil." 
 
or THE CONSTITUTION. 325 
 
 chargeable and entirely supported out of the poor rates is 
 reckoned to be not less than a million. 
 
 I abstain here from entering into a discussion as to the 
 practical inferences to be di*awn from these facts. But 
 they are facts which must modify the strong conclusions 
 to which the mind might be hurried by a bare comparison 
 of the number of voters with the number of the popula- 
 tion. Nor, on the other hand, will I do more than advert 
 to the fact that very many of the most intelligent mem- 
 bers of the middle class are at present without votes. There 
 is also the important fact of the change that has taken place 
 in the lower classes of our town population as to their 
 desire for and their capacity for poUtical power. It is to 
 be remembered that the aggregate town population is now 
 one-half of the entire population of England ; formerly the 
 proportion was much smaller. 
 
 But the artizans and mechanics of the present day are 
 not only different in number, but are wholly different in 
 spirit from their apathetic predecessors. The packing of 
 the population in large manufacturing towns, the progress 
 of education (lamentably imperfect as it has been, espe- 
 cially for the best objects of education), the springing up 
 of a cheap press and a cheap literature, the ferment caused 
 in men's minds by the American War of Independence 
 and by the French Revolutions, the growing habit of 
 combining and acting in organized bodies, — these, and 
 other causes, have worked the great alteration.* There 
 
 * There is in the second vo- the important contrasts which 
 
 lume of Mr. Bancroft's "Ameri- it shows between that England 
 
 can War," a graphic account of and the England of the present 
 
 England as it was in 1763, which day. 
 deserves an attentive perusal for 
 
326 RISE AND PROGRESS 
 
 may be much vice^ mucli violence, much ignorance among 
 these masses ; but no one who has watched them will deny- 
 that they contain hundreds alid thousands of honest hard- 
 working men, who read, study, and discuss the political 
 events of the day with growing interest and intelligence, 
 who support materially, though indirectly, the weight of 
 taxation, and whose manual toil heaps up our national 
 wealth. 
 
 There yet remains a point of view in which the present 
 state of the franchise is to be regarded, in order to judge 
 it correctly ; that is, not merely to see in how many hands 
 the franchise is, but to examine also within whose reach it 
 is. And we shall find that though the borough franchise 
 is not to be obtained unless a man takes a 10/. house and 
 resides in it, the county franchise of 405. freehold is easily 
 attainable by any man who possesses or can save a very 
 moderate sum. Since the Reform Bill, societies have been 
 formed for the purchase of estates and multiplication of 
 small freeholds in the counties, for the express purpose of 
 giving votes. An attempt was made to stop this system, 
 and to treat such acquisitions of freeholds as void, under 
 certain statutes of the reigns of William and Anne. But 
 the Court of Common Pleas, before which the decisions of 
 the revising barrister were brought by appeal, confirmed the 
 votes; and established the important principle that the sale 
 of land, when the property is really intended to pass to , 
 the purchaser, is legal, notwithstanding it is made with 
 the view of multiplying votes, and that the votes so created 
 are good.* 
 
 The great constitutional function of acting as jurors has 
 always been restricted to those who possess some property 
 
 * See the cases collected in Mr, Warren's book, p. 367. 
 
or THE CONSTITUTION. 327 
 
 qualification, which in early times was required to be free- 
 hold. Now (with certain personal and professional excep- 
 tions) the following persons are qualified to serve on juries 
 for the trial of all issues, civil and criminal, in her Ma- 
 jesty^s courts at Westminster, and at the assizes, and on 
 grand and petty juries in the courts and sessions of the 
 peace in the county, riding, or division where they respec- 
 tively reside. 
 
 1. Every man between the age of twenty-one and sixty 
 years residing in England, having, in his own name or in 
 trust 10/. per annum, of clear yearly income, arising from 
 lands and tenements, whether freehold, copyhold, cus- 
 tomary tenure, or ancient demesne, or rents issuing there- 
 out in fee-simple, fee-tail, for his own or other person's 
 life, or such income or rents jointly issuing, amounting 
 together to the clear yearly value of 10/. 
 
 2. Eveiy man having 20/. a year clear from lands or 
 tenements held by lease for twenty-one years or upwards, 
 or for any term determinable on any life or lives. 
 
 3. Householders assessed to the poor-rate, or to the 
 inhabited house duty, in the county of Middlesex, on a 
 value of 30/.; in any other county, 20/. 
 
 When we examine by whom the right of appointment 
 of magistrates and officers now is exercised, we shall find 
 that, in the great majority of cases, the nomination pro- 
 ceeds either directly or indirectly from the Crown. This 
 is the case not only with regard to the ministers of State, 
 to the officers of the anuy and navy, the judges of the 
 various courts of law and equity, the numerous commis- 
 sions of various boards, and the like; but, through the 
 medium of the justices of the peace, it is the case with 
 regard to many local officers, as, for instance, the overseers 
 
328 RISE AND PROGRESS 
 
 of the poor,* and even tlie parisli constables. Almost the 
 only old county common law officer, who is elected accord- 
 ing to the old system, is the coroner. But the greater 
 number of local officials are required by statute to be 
 chosen out of the inhabitants of each parish ; and all in 
 practice are so selected. Several local officers, also, as 
 the surveyors of highways, are elected by the parishioners 
 in their vestries : where also the churchwardens are ap- 
 pointed, sometimes by the parishioners, sometimes by the 
 ministers, and sometimes by both, according to custom. 
 As a general rule, each district is governed by local au- 
 thorities, though the superintending control of central 
 powers, such as the Poor Law Board, and the General 
 Board of Health, has been of late years extensively intro- 
 duced. In our town populations local self-government is 
 much more complete than it is among the rural classes. 
 The state of the municipal coi-porations throughout Eng- 
 land and Wales was thoroughly reformed by a statute 
 passed in 1835 ; and a very full system of local self- 
 government created, in which all ratepaying inhabitant 
 householders form the local constituencies who choose the 
 governing bodies of the councillors and aldermen. A 
 higher property qualification is required for these function- 
 aries, and also for the mayors. Many towns and popu- 
 lous parishes, which are not incoi-porated, have their own 
 
 * I had intended to include complete their knowledge of the 
 in this work a sketch of the history of the nation, and gain 
 progress of legislation on the much instruction on many so- 
 subject of the poor laws and cial and political topics of the 
 on many other topics, which I deepest interest, to study care- 
 omit, lest I should far exceed fully Mr. Pashley's work on 
 my pre-appointed limits. I "Pauperism and Poor Laws." 
 .strongly urge all who would 
 
OF THE CONSTITUTION. 329 
 
 systems of self-government under special acts of parlia- 
 ment. 
 
 Besides the great power now vested in the CrowTi 
 by reason of the large number of magistracies and 
 offices of every kind in the internal administration of the 
 kingdom, which are filled by royal appointment, the great 
 increase of our transmarine empire, of our colonies, and 
 our Indian possessions, has placed an almost infinite mass 
 of militaiy, and naval, and also of judicial and other civil 
 appointments in the gift of the Crown; and thereby 
 created an amount of influence, which an active sovereign 
 of ambitious views and arbitrary temperament, if unwatched 
 even for a short time by parliamentary control, might 
 employ in a manner fatal to the national liberties. But 
 the constant dependence of the Crown upon parliament 
 vests this ample amount of patronage in reahty in the 
 hands of responsible ministers, who are always subject to 
 parliamentary inquiry and animadversion as to their use or 
 abuse of it, and who can only retain their position as 
 ministers by a parliamentary majority. Public opinion is 
 now the great lever of political action in England ; but with 
 many very valuable checks and regulators. It might at 
 first sight seem that the Upper House of Parliament was 
 inaccessible to its agency, or only accessible to it, by the 
 extreme and perilous mode of the popular minister of the 
 day causing the royal prerogative of creating peers to be 
 put suddenly and largely in force. But our House of 
 Lords has, with dignified wisdom, at all recent great 
 political crises, rendered such dangerous measures unne- 
 cessary. The House of Lords, at present, though theore- 
 tically co-equal with the House of Commons, is notoriously 
 and avowedly the weakest of the two, and gives way when 
 any serious and deliberate difierence of opinion takes place. 
 
830 RISE AND PROGRESS 
 
 All that it now does, and all that it claims to do, is to 
 check hasty legislation, and to give an opportunity for an 
 appeal to the people by a dissolution of parliament. If 
 parties are equally, or nearly equally balanced in the 
 country, the House of Lords can peremptorily determine 
 the fate of any measure. They are not a mere second 
 chamber to register the edicts of the Commons ; and ac- 
 cording to the nature of each case they may well and 
 wisely either at once forego or repeat their refusal to ac- 
 quiesce in the measures sent up to him. But on great 
 national questions, the Lords themselves own that they are 
 bound ultimately to give way to the clear and deliberate 
 expression of the national feeling. The debates in the 
 House of Peers on the recent free-trade measures have 
 been of great constitutional interest in this point of view. 
 The champions in the Upper House of the landed aristo- 
 cracy, though they asserted with truth that they had a 
 majority of the peers, who in their hearts were in favour 
 of the Corn Laws, never held out the idea or the hope that 
 the House of Lords could permanently stop the free-trade 
 movement, supposing the nation to be steadily resolved on 
 forwarding it. All that they claimed, was an opportunity 
 of taking the sense of the people on the subject by reject- 
 ing the proposal once, and compelling the ministers to 
 try a general election of the House of Commons. Lord 
 Derby's words on this subject are so explicit that I will 
 quote a short passage from the speech of that eminent 
 Conservative statesman in opposition to the second reading 
 of the Corn Importation Bill, May 25th, 1846. 
 
 " My Lords, if I know anything of the constitutional 
 value of this House, it is to intei-pose a salutary obstacle 
 to rash and inconsiderate legislation ; it is to protect the 
 people from the consequences of their own imprudence 
 
 J 
 
OF THE CONSTITUTION. 331 
 
 never has been the course of this House to resist a con- 
 tinued and dehberately- expressed pubhc opinion. Your 
 Lordships always have bo\Yed_, and always will bow, to the 
 expression of such an opinion ; but it is yours to check 
 hasty legislation leading to irreparable evils."* 
 
 Looking, then, to the paramount influence which the 
 House of Commons now influences on the government of 
 England, and on the unparalleled extent to w^hich Eng- 
 land's policy influences the fortunes of the world, we may 
 safely assert that the position of a member of the English 
 House of Commons, if honourably acquired, and well 
 and wisely used, is the noblest that ever was opened to 
 civilized man. Even that of a senator of Old Rome, in 
 the proudest days of her Commonwealth, appears poor in 
 comparison. And surely the privilege of a voice in the 
 selection of the members of that house is one to be 
 earnestly sought, and conscientiously and firmly used. 
 
 Yet, even though a man be without either seat in our 
 legislature or vote in its selection, he may, under om* free 
 constitution, largely influence public opinion, and as a 
 speaker, or as a writer, acquire a degree of moral and 
 political power that may be felt far beyond his own island, 
 and long after his own lifetime. Freedom of discussion 
 and the freedom of the press, are constantly claimed as pe- 
 culiar glories of our constitution ; and a treatise such as the 
 present would be palpably deficient were it to end without 
 some notice of the laws on these subjects. Attempts to 
 overawe the legislature by riotous mobs, under the pre- 
 tence of coming as petitioners, caused a statute against 
 tumultuous petitions to be passed in Charles IL's time, 
 which has been already referred to.f And when, under 
 
 * Hansard, vol. Ixxxvi. p. 1175. t P. 283, swpra. 
 
332 RISE AND PROGRESS 
 
 the guise of meeting together to discuss public matters, 
 attempts have been made to assemble immense masses of 
 people (sometimes armed with offensive weapons, and 
 sometimes with partial military organization), and by vio- 
 lent language to excite them to acts of treason and 
 breaches of the peace ; whenever this, or anything similar, 
 has been done or attempted, the common law has justly 
 held all implicated in such proceedings to be liable to pu- 
 nishment for the obvious peril that they cause to society, and 
 the iniquitous intimidation which such proceedings, if un- 
 checked, must exercise on the freedom of opinion in others. 
 But the right of men to meet peaceably and discuss public 
 matters openly and fearlessly, is ''^as undoubted as it is 
 invaluable/^,* It is for a jury to determine, if necessary, 
 whether this right has been fairly exercised, " making full 
 allowance for the zeal of speakers, though they may 
 sometimes exceed the just bounds of moderation," f or 
 whether, in the opinion of rational and firm men, it has 
 been abused so as to endanger the public peace, and make 
 the commission of crime and outrage a natural and pro- 
 bable consequence. 
 
 The freedom of the press in this country cannot be said 
 to have commenced before the reign of William III. It 
 was then that the last licensing Act expired. And even 
 after the withdrawal of that restriction, and when men 
 were able to print and publish their thoughts without 
 obtaining the ^' imprimatur" of a Government official, the 
 
 * See the excellent chapter address to the grand jury at 
 
 on the subject in Mr. Wise's the Stafford special commission 
 
 little book on " Riots and Un- in 1842, cited in Mr. Wise's 
 
 lawful Assemblies." book. 
 
 t See Chief Justice Tindal's 
 
 I 
 
OF THE CONSTITUTION. 333 
 
 law of libel pressed heavily on writers, and still more on 
 newspaper proprietors. The growing importance of the 
 press as an organ both for expressing and for exciting 
 public opinion was felt and used by all parties ; but men 
 in power, who were most exposed to the wounds of news- 
 paper warfare, often sought eagerly to crush their assail- 
 ants by putting in force the criminal law against libels. 
 The judges felt naturally little predilection for a press that 
 generally seemed presumptuous to men in authority, and 
 which often was most licentious and calumnious. They 
 established the doctrine, that to possess the people mth 
 an ill opinion of the Government was a libel; and they 
 further established, that in a criminal proceeding for libel 
 the truth of the matters stated was no defence. Jurors 
 were naturally, under such circumstances, unwilling to 
 convict j and a controversy grew up as to the province of 
 a jury in a trial for libel. The courts sought to establish 
 the rule that the province of the juiy was simply to 
 determine whether the defendant published the libel, and 
 whether the libel had the meaning assigned to it in the 
 indictment. But it was contended by many that the juiy 
 were also at liberty to consider whether that meaning was 
 criminal or innocent, and whether the thing which was said 
 to be a libel was a libel or not. This controversy was deter- 
 mined in favour of the more extended power of the jury by 
 Mr. Fox's Act, in the 32nd year of George III. A 
 great protection was thereby given to writers and pub- 
 lishers, against arbitrary and harsh prosecutions; and the 
 benefit of it to the public has been amply proved by the 
 increased respectability and high intellectual merit of the 
 English press. But still the monstrous restriction re- 
 mained by which a man who was indicted for a libel was 
 forbidden to show that what he had published was true. 
 
334 RISE AND PROGRESS 
 
 even though no unfair malice had made him pubhsh a 
 cruel truth, as sometimes might be the case. The maxim 
 of " the greater the truth the greater the libel" continued 
 long to be the stigma of the English law. This has been 
 finally removed in the present reign by an Act which was 
 framed and introduced by Lord Campbell, now chief 
 justice of England. By that statute (6 & 7 Vic. c. 96)_, 
 on the trial of any indictment or information for a de- 
 famatory libel, the accused party, having notified by his 
 plea the defence that he is about to set up, may defend 
 himself by showing the truth of the matters charged, and 
 also that it was for the public benefit that the said matters 
 charged should be published. If he can satisfy a jury of 
 these points, he is to be acquitted; if not, he is justly 
 punishable. It would be impossible to provide better for 
 the objects which are stated in the commencement of the 
 Act : — " For more effectually securing the liberty of the 
 press, and for better preventing abuses in exercising the 
 said liberty." Lord CampbelPs Act, though last in date, 
 deserves to be classed as not least in merit among the con- 
 stitutional treasures of the statute-book. 
 
 We have now traced the origin of the English Consti- 
 tution, and the first development of its principles, at a 
 time when the newly-formed English nation consisted 
 of not more than two millions of human beings; one- 
 half at least of whom were in an abject state of serfdom, 
 while the other half, the freemen of the land, the " liberi 
 homines" of Magna Carta, were divided into proud and 
 powerful barons, each girt with his band of armed re- 
 tainers and personal dependants ; into smaller landowners, 
 equal in birth but inferior in possession to the gi-eat 
 peers ; into a class of still smaller owners of land, our free 
 yeomanry, and into citizens and biirgesses, who were be- 
 
 I 
 
OF THE CONSTITUTION. 335 
 
 ginning to revive tlie old Roman system of municipal 
 self-government, and to reawaken the spii'it of commercial 
 energy and enterprise. First framed in those troubled 
 times, and for that scanty and ill-assorted population, our 
 Constitution has expanded with the expanse of civilization, 
 numbers, and power; and while it has preserved all its 
 integral parts and all its primary attributes, it has become 
 the government of and for us, the eighteen millions of 
 this mighty English nation, whose language, laws, arts, 
 arms, and institutions are overspreading every region of 
 the world. On the blessings of that government, on the 
 security and order which it guarantees, and on the inde- 
 pendent energy and freedom which it sanctions and in- 
 spires, it is surely needless to dwell further in addi-essing 
 the men of 1848, who have witnessed the misery and de- 
 gradation which anarchical violence and despotic coercion 
 have caused in other lands. Our Constitution must from 
 time to time require remedial changes ; and at present the 
 anomalies of the distribution of the suffrage, and the 
 shameful coiTuption with which its exercise is too often 
 accompanied, are pressing on our statesmen's anxious 
 attention. He who has studied our Constitution the most 
 deeply will venerate it the most ; and, while he vigorously 
 extirpates abuses, and steadily works out its vital law of 
 growth and development, he will religiously guard its 
 primary institutions from the experiments of the con- 
 ceited theorist and the assaults of the disloyal de- 
 stroyer. 
 
INDEX. 
 
 Act of Settlement, 300. 
 
 Aids, 102. 134. 
 
 Anglo-Saxon, chief element of Eng- 
 lish, 15; meaning of word, 17; 
 original homes of Anglo-Saxons, 
 ih. ; their primitive institutions 
 and character, 18 ; land in Bri- 
 tain, 21 ; how far were their con- 
 quests wars of extermination, 
 28-31 ; their conversion, its civi- 
 lizing effects, 33 ; Anglo-Saxon in- 
 stitutions as matured in England, 
 42-62. 
 
 Appeal of felony, what, 158. 
 
 Aristotle's classification of political 
 functions, 7. 
 
 Arms, right of the subject to, 293, 
 and note. 
 
 Army, standing, in time of peace, 
 without consent of parliament, 
 illegal, 292. 
 
 Attainder, 144, note; bills of, 244; 
 writ of, 286, note. 
 
 Bail, 147, note ; excessive not to be 
 required, 292. 
 
 Barons of England — force King John 
 to grant the Great Charter, 120 ; 
 headed a national movement and 
 sought national objects, 124 ; Lord 
 Chatham's eulogium on, 150 ; 
 meaning of term " Baron," 185. 
 
 Bill of Rights— its constitutional im- 
 portance, 4 ; text of, and notes, 
 289-298. 
 
 Boroughs, Saxon, 50 ; oppressions of 
 after Norman conquest, 105. 193 ; 
 
 first represented in Henry III.'s 
 reign, 194; electors, who, 261. 
 262 ; early borough system, 262 ; 
 changes and abuses, 263; rotten 
 boroughs, 313; present state of 
 municipal self-government, 328. 
 Britons, ancient. See " Celts." 
 
 Campbell's (Lord) Libel Act, its con- 
 stitutional value, 334. 
 
 Celts — British Celts, their character, 
 &c., 24 ; how far Romanized, 25 ; 
 how far did the Saxons extirpate 
 or blend with them, 28-31. 
 
 Ceorls, their social and political posi- 
 tion in Saxon England, 43. 46. 49. 
 
 Charles I., disputes between, and 
 his three first parliaments, 269 ; 
 sincere in unconstitutional opi- 
 nions respecting his prerogative, 
 270 ; grants the Petition of Right, 
 275. 
 
 CharlesH. — ImportantConstitutional 
 statutes during his reign, 283-287. 
 
 Charters of early Anglo - Norman 
 kings, 107; of Henry L, 117. 
 See " Magna Carta," 
 
 Chatham, Lord, his Bible of the 
 English Constitution, 5 ; his eu- 
 logium on the barons who gained 
 the Great Charter, 160. 
 
 Church, civilizing influence of, in 
 early times, 33, 34. 53. 
 
 Commons, House of, origin, 187; 
 knights of the shire, 187-192; 
 how elected, 192. 267. 248; 
 qualification for, 248, 249. 251 ; 
 
 Q 
 
338 
 
 TNDKX. 
 
 boroug}i membere, whpn first intro- 
 duced, 194 ; coalesce with knights 
 of the shire in one House, 197; 
 gradual increase of power of House 
 of Commons in fourteenth and 
 fifteenth centuries, 230-244. 2o4 ; 
 House of Commons the preponde- 
 rant branch of the legislature after 
 Charles II.'s restoration, 281 ; 
 effect of Reform Bill, 318. 
 
 Confirraatio Cartarum, its constitu-. 
 tional value, 176. 
 
 Constitution, English, meaning of 
 the term, 3 ; its leading princi- 
 ples, 4 ; its law of progress, 6 ; 
 coeval with < ur nationality, 10. 
 12 ; its princl|>les traced in Magna 
 Carta, and the Confirmatio Carta- 
 mm, 178-220; its progress dur- 
 ing the fourteenth and fifteenth 
 centuries, 230-264; its state 
 under the Tudors, 265-268 ; res- 
 cued by the Petition of Right, 
 273 ; further secured by Bill of 
 Rights, 289 ; its adaptation to our 
 present state, 335. 
 
 Copyholds, 103. 260, note. 
 
 Coroner, 140, note. 328. 
 
 Council, the King's, 195. 256. 302 ; 
 Privy Council, their present 
 power, 303, note. 
 
 County Court, in Saxon times, 47 ; 
 after the Conquest, 139, note. 
 171. 192. 217. 
 
 Crown, see " King." 
 
 Danish element of our nation, 35 ; 
 Danes first attack England, ib. ; 
 Danish priraitiv.e institutions and 
 character, 36-38 ; extent of their 
 conquests and influence here, 39- 
 41. 
 
 Dispensing power, 255. 289. 291. 
 
 Discussion, free, right of, 331. 
 
 Elections, provisions for freedom of, 
 215. 292; attempts of Crown in 
 early times to influence, 215, 216 ; 
 of James II., 291 ; how often 
 held, 315, 
 
 Elfectors of knights of the shire, 192. 
 248. 269 ; under Reform Bill, 321. 
 
 Electors of boroughs, 251 ; under 
 Reform Bill, 319. 
 
 probable numbers in four- 
 teenth century, 259. 263, 264 ; at 
 present, 321. 
 
 Electoral Franchise, property and in- 
 telligence to be regarded in its 
 distribution, 325; how far now 
 accessible, 326. 
 
 English nation, its four elements, 13; 
 population at time of Conquest, 
 67 ; in John's reign, 72 ; at pre- 
 sent, 321. 
 
 Escuage, 102. 134. 
 
 Feudal system, its general character, 
 73. 83; peculiarities of, in Eng- 
 land, 84. 91 ; feudal tenures, 100- 
 104. 282. 
 
 Freedom of the press, 332 ; of pub- 
 lic discussion, 331. 
 
 Freehold tenure, 283. 
 
 Frankpledge, 48. 99. 171. 206. 
 
 Grerman, mainstream of the English 
 nations, 17 ; German character, 
 19, 20 ; their habits and institu- 
 tions as described by Caisar and 
 Tacitus, 18-21. See also " Anglo- 
 Saxons." 
 
 "Gemiania" of Tacitus, its value for 
 both ancient and modern history, 
 10; quoted, 18, 19. 
 
 Habeas Corpus, 149, note, 200-203. 
 
 272. 277; Habeas Corpus Acts, 
 
 284-286, note. 
 Hundreds, a primitive institution of 
 
 ancient Germans, 19 ; of ancient 
 
 Danes, 37. 
 Hundred Court, 46. 100.171. 
 
 Impeachment, 234. 
 
 John — King John, his evil character, 
 its importance to our history, 
 106-110 ; his losses and quarrels, 
 110-113; the national rising 
 against him, 120; grants the Great 
 Charter, 126; his death, 165. 
 
 Judges of assize, 137, note. 
 
 Judges, how appointed and removed 
 
INDEX. 
 
 339 
 
 before the Act of Will. III., 286; 
 made irremovable quamdiu se 
 bene gesserint, by Act of Settle- 
 ment, 302. 305. 
 
 Jury, trial by, a principle of the 
 Constitution, 4; recognised in the 
 Great Charter, 204-220; defini- 
 tion of, 205 ; jurors at first wit- 
 nesses^ 206 ; gradual change in 
 this respect, 207. 216; probable 
 origin of trial by jury, 213. 216; 
 its value at the present time, 221. 
 225; earl)'' property qualification 
 req\iired for jurors, 260 ; the 
 present, 329 ; trial by jury, how 
 viewed in fourteenth century, 261 ; 
 practice of fining jurors for their 
 verdicts, 285; declared illegal, 
 287 ; present jury qualification, 
 329. 
 
 Justice not to be sold, denied, or 
 delayed, 148. 153, note. 
 
 Justices, who ought to be made, 155 
 and note. 
 
 Kings, early German ones, 18; 
 Danish, 36 ; Anglo-Saxon, 52 ; 
 Anglo-Norman, 90 ; kingly power 
 recognised in the Great Charter, 
 179 ; hereditary kingships, 179, 
 180; kingly power in England a 
 limited power, 181, 182; kingly 
 prerogatives in the times of the 
 later Plantagenets, 255 ; uncon- 
 stitutional pretensions of the 
 Stuarts, 270-272 ; general joy of 
 the nation when the king was re- 
 stored in 1660, 280; limitation of 
 kingly power at revolution of 1688, 
 291 ; end of struggle between 
 and people, 307 ; constitutional 
 position of our kings since then, ib. 
 
 Labouring classes, their former state 
 in England, 92 ; their present, 
 258 ; change in the character of in 
 towns, 327. 
 
 Liberty of the press, 332. 
 
 Magna Carta. — Primary record of the 
 Constitution, 3 ; how gained, 120- 
 126 ; text of John's Charter, with 
 
 explanatory notes, 130-164 ; re- 
 newed in Henrj' III.'s reijjn, 165 ; 
 text of, as confirmed by subsequent 
 kings, 166-175; principles of the 
 Constitution traced in, 178-220; 
 reverence paid to, 225 ; Mackin- 
 tosh's eulogium on, 228. 
 
 Nationality, English, dates from thir- 
 teenth century, 12-14 ; meaning 
 of the w^ord, 14. 
 
 Nobility, English, difference betweefi 
 and continental noblesse, 198. 
 
 Norman element of our nation, 56 ; 
 the Northmen, i. e. Normans, con- 
 quer Neustria, 57 ; characteristics 
 of the Normans, 58, 59 ; Norman 
 institutions before the conquest of 
 England, 59. 86 ; wretched state 
 of the peasantry of Normandy, 61 ; 
 Norman conquest of England, 62 ; 
 extent of changes caused here by 
 it, 65 ; beneficial to England, 55. 
 
 Parliament, 4. 182. 192 ; division 
 into two Houses, 197 ; growing 
 power of after thirteenth century, 
 230, ei seq. ; convened and dis- 
 solved by king, 265; time for 
 holding, 313. See "Commons," 
 " Electors," " Peers." 
 
 Pauperism, amount of in England, 
 324. 
 
 Peers, 182 ; origin of House of, 185- 
 187; how summoned to parlia- 
 ment, 187 ; peerage in England 
 hereditary, 186 ; peers, how cre- 
 ated by king, 187 ; attempt to 
 limit this, 310 ; advantages of 
 House of Peers, 311 ; present con- 
 stitutional position, 330. 
 
 Petition of Right, its constitutional 
 importance, 4 ; when and how ob- 
 tained, 273-275 ; its text, 275- 
 279. 
 
 Pleas of the Crown, 139. 
 
 Press, liberty of, 332. 
 
 Proclamations, royal, 303. 
 
 Protestantism, its ascendancy in 
 England, 282. 288. 
 
 Public opinion, present political power 
 of, 329. 
 
340 
 
 INDEX. 
 
 Purveyance, 143, note. 
 
 Reform Bill, 318. 
 
 Representative government, 183. 
 188; in England, 188, 189. 197. 
 See *' Commons." 
 
 Revolution of 1688, 289-299, note; 
 not exclusively aristocratic, 298, 
 note. 
 
 Romans, characteristics of their con- 
 quests, 25 ; Roman civilization in 
 Britain, ih. ; municipal self-go- 
 vernment, ib. 
 
 Runnymede described, 125. 
 
 Scandinavian. See " Danish." 
 
 Sheriff's office described, 140, note. 
 245. 
 
 Slavery among ancient Germans, 19; 
 Danes, 36 ; Anglo-Saxons, 43 ; 
 its extent in England in Anglo- 
 Norman times. See " Villeinage." 
 
 Star Chamber, 266. 285 ; abolished, 
 282. 
 
 Sub-infeudation, 78. 
 
 Taxation without consent unconsti- 
 tutional, 4. 134. 175. 177. 239. 
 practised by Charles I,, 269 ; pro- 
 hibited by Petition of Right, 275. 
 293 
 
 Tallages, 105. 175. 193. 
 
 Thanes, Anglo-Saxon, 44. 
 
 Tenant in capite, 88. 
 
 Tenure in chivalry, 101 ; its hard- 
 ships, 102 ; abolished, 281. 
 
 Tenure in free socage, 101. 281. 
 
 Tenure in villeinage, 103. 260, note. 
 
 Toum, 171. 
 
 Towns, Roman, in Britain ; occu- 
 pied by the Saxons, 34 ; oppressed 
 by early Norman kings, 104. 175. 
 193. 
 
 Town population formerly much 
 smaller than rural ; now equal, 325. 
 
 Townships, Anglo-Saxon, 45. 
 
 Villeinage, its extent in England 
 in early times, 92 ; its incidents, 
 94; modes of becoming emanci- 
 pated from, 96 ; dies out in Eng- 
 land, 258. 
 
 William the Conqueror, 63, 64 ; his 
 severities, 69 ; his high abilities, 
 85 ; extent to which he modified 
 feudalism in England, and per- 
 manently influenced our history, 
 86-91. 
 
 William III. See " Revolution of 
 1688." 
 
 Witenagemote, how constituted, 61 ; 
 its powers, ib. 
 
 Woodfall and Kinder, Printers, Angel Court, Skinner Street, London. 
 
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