3 ^^^^J^^^ ^ Digitized by the Internet Archive in 2007 with funding from IVIicrosoft Corporation http://www.archive.org/details/englishconstitutionOOcrearich 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. '^. /bA UNIVERSITY OP CALIFORNIA LIBRARY THIS BOOK IS DUE ON THE LAST DATE STAMPED BELOW OCT 28 1916 JANS4 m 08586 *aiHKas?r^;:.- ;:- ■" ■ '-:■■ p^s^K UNIVERSITY OF CALIFORNIA LIBRARY