-.^^^s,^^..^^^^^..^L^^':::^2^ V'""- tti HISTORY THE ENGLISH PARLIAMENT. % ■^u^ %^_^ HISTORY OF THE English Parliament, ITS GROWTH AND DEVELOPMENT THROUGH A THOUSAND YEARS. 800 to 1887. BY Dr. RUDOLF von GNEIST, AUTHOR OF "the HISTORY OF THE ENGLISH CONSTITUTION,' Professor of Law at the University of Berlin. FOURTH EDITION. LONDON : WILLIAM CLOWES AND SONS, Limited, 27, FLEET STREET. 1895. ^,^ LONDON : PRINTED r>\ WILLIAM CLOWES AND SONS, LIMITED, STAMFORD STREET AND CHARING CROSS. SPRECKELS TRANSLATOR'S PREFACE TO THIRD EDITION. THIS new English edition of Professor von Gneist's celebrated work on the English Parliament will, it is hoped, thoroughly meet the requirements of the numerous class of students for whom it is specially intended. As the proofs have all passed through the author's hands, the public may also feel satisfied that they here possess Professor Gneist's own work. The translator may in fact state that, notwithstanding the acknowledged difficulties presented by Dr. von Gneist's terse and vigorous style, he has nowhere found it necessary to depart from a close adherence to the original, in order to produce what he trusts will be found a perfectly clear and fluent version. A. H. Keane. University College, London, October, 18S9. 102250 CONTENTS. INTRODUCTION. PAGES THE PARLIAMENT AS CONNECTING LINK BETWEEN STATE AND SOCIETY . , xi I. THE ANGLO-SAXON GEMOTES. . , . i -41 Military System 9 Courts of Law ......... 10 The Hundred Court 11 The Shire Court 11 Assemblies of the whole People . . . ... 15 Common Law 18 Temporal Autpiority , 20 Church Matters 24 viii Contents, II. PAGES THE ANGLO-NORMAN "COURT DAYS" AND ASSEMBLIES OF NOTABLES . . 42—121 1. A VAST Change of Ownership in Land, and a New Shaping of the Relations of Ownership . . 45 2. The County and District Administration on the same Outlines as in Anglo-Saxon Times . . 49 3. State Prerogatives Virtually Absolute . , 52 4. The Curia Regis . . . . ' . . . • 5S 5. Formation of "Estates" 60 6. The Transformation of the Ancient Witena- gem6tes into the Norman " Court-days " . .65 7. Period of Transition. Ecclesiastical Conflict WITH Thomas a Becket S5 8. Magna Charta 90 9. First Attempts at Parliamentary Government . 104^/^ IIL FURTHER DEVELOPMENT OF THE ESTATES INTO TWO HOUSES OF PARLIAMENT 122—209 1. The Three Courts of the Common Law . -133 2, The Council of State, known as the "Continual Council" 134 3. The Periodical Council — Magnum Concilium . 135 4, First Appearance of the "Commoners" in Par- liament 150 i^ - — - 5. Separation of the Combined Parliament into Two Houses, with further Delimitation of their Functions 171*^ 6. The Organization of the Church .... 184 ■ 7. The Century of Renewed Strife, and the Wars of the Roses iSS Contents. ix IV. PAGES PARLIAMENT DURING THE REFORMATION 210-242 1. The Permanent Council, now styled "Privy Council " 226 2. The Upper House of Prelates and Barons . , 230 3. The House of Commons,— " Lower House" . . 232 V. PARLIAMENT DURING THE REVOLUTION 243—310 1. Struggle between the Jure-Divino Royalty and THE Parliament 247 2. The Commonwealth 265 ^>^ 3. The Restoration of the Monarchy under Charles II 281 4. The Expulsion of the Stuarts .... 297 5. Consolidation of the Relations of the Estates . 305 VL THE PARLIAMENTS OF THE EIGHTEENTH CENTURY 311—376 1. The FoR.iiiATiON of the Lower House . . . 335 2. The Posi-tion of the Upper House .... 343 3. New Relations of the Governing Body to Parlia- ment . 346 vn. THE PARLIAMENTS OF THE NINETEENTH CENTURY To THE First Reform Bill {1S32) .... 377—397 :<. Contents. viir. PAGES THE PARLIAMENTS OF THE NINETEENTH CENTURY To THE Second Reform (1S67) . » . , 398—426 IX. THE PARLIAMENTS OF THE NINETEENTH CENTURY To THE Third Reform Bill (1SS4— 85) . . .427 — 447 INDEX 449—462 INTRODUCTION. PARLIAMENT AS CONNECTING-LINK BETWEEN STATE AND SOCIETY. '"P^HE time is past when the Constitutions of France X or England were regarded by Germans as universal models. When we attempted to imitate them in practice we arrived at the conviction that the institutions of foreign countries cannot be adopted without modification. But ever ready as we are to acknowledge what is good in other nations, we should still remember how much we owed to those prototypes during the transition to our present political status, and that some of their very fallacies, such as the doctrine of the "division of powers," have, after all, been pro- ductive of more good than evil. Nor can there be any doubt that a thorough knowledge of the French and English systems is of great importance for the further development of our own position, since the homo- geneous constitutions of those great cultured peoples reveal to us their fundamental principles far better than the Germanic State, encumbered as it has been with endless varieties of separate political fragments. The English Constitution is, by its national character, xii Introduction. more closely allied to us Germans, and hence espe- cially adapted to our purpose. But for this is needed an insight into the whole of that organism, in which the many-sided development of the English adminis- trative law, and the discipline acquired by self-govern- ment, are as essential elements as is their combined action in Parliament. Such thorough knowledge of the English Constitution is no doubt better adapted than the history of any other State to promote that "practical " view of politics which is so much in favour at the present time. For centuries the cultured European peoples have eagerly sought to grasp the true character of the State from the very " nature " of man himself. Every inquiry starting from this idea arrived at the conclusion that, as a rational being, man was free and equal to his brother-man. But all attempts to put this theory in practice soon made it equally evident that, when viewed from a different aspect, all men were neither free nor equal. Nay, all theories that based the State on a so-called " public contract " {contrat social), as well as those concerning the equality and common brother- hood of men {liber te, cgalite, fraternity), resulted in grievous disappointment. Thus it happened that for a time all arguments about " natural right " fell into discredit, and philosophy began to think of retracing its steps, instead of boldly advancing to a more searching investigation of that human nature, a single element of which — that of free will — political science had hitherto alone kept in view, while disregarding the determining influences of the surroundings. The present development of the European States Introduction. xiii has, through mighty catastrophes, advanced the grow- ing consciousness of mankind one important step towards a recognition of the truth that man is not only a rational and moral, but also an animal being. This double nature having been intended by Provi- dence, and being innate to man, asserts itself also in human society, so that the State itself can be explained only by this double nature, at least in its organic connection with Society. As an animal being, man is, in the first place, endowed with various individual racial peculiarities. But socially his existence depends, more than that of any other created being, on the satisfying of the most diverse outward wants ; there are none whose childhood is so feeble, so prolonged and helpless, whose riper years are so deficient, whose old age is so dependent and full of suffering. To satisfy these wants man depends on the bounties of the nature that surrounds him, and, in order to make use of these, on the co-operation of his fellow-men. The progress of civilization has been marked by a constant increase of those bounties, and of the human forces which man requires to maintain himself at his present high level of development Accordingly every individual is animated with an irresistible longing for those external resources, and to command those human energies which subserve his wants. For the acquisi- tion, possession, and enjoyment of these riches, inter- dependent circles are formed in human communities, representing in settled abodes a powerful organism which, in this narrowly-defined sense, we term " Society." But inseparable from this social system xiv Introduction. is the eternal principle of the dependence of the needy on the affluent. It is this dependence that curtails freedom in the State, bringing about that everlasting conflict of interests, which strive, on the one hand, to strengthen, on the other to relax or remove the shackles of thraldom. And thus arises in every social system that persistent endeavour of the wealthy classes to unduly influence the administration, in order to pre- vent the poorer classes from acquiring wealth by means of various legal restrictions, such as laws against alienation of property, and by the formation of close guilds, monopolies, and so forth. So long as there survives in the wandering tribe the consciousness of a common descent from one "common ancestor," the paternal authority of the chief suffices to uphold the hereditary constitution of the community. State and Society are as yet undivided. But when the tribe settles down in a permanent home, that organiza- tion of Society begins which gradually develops into what is generally called " State." The first settlements are effected by families which take up permanent quarters in adjoining localities. According as these settlements develop into village communities, the idea of private property becomes strengthened. Whilst the soil is still regarded as a common possession, the notion of separate property takes its rise in the house- hold utensils and furniture, the stable, the farmyard, and goes on extending in an ever-widening circle. It satisfies an urgent, continually-increasing want ; for, as population increases, as the standard of comfort rises, the necessaries of existence can no longer be pro- duced by a system of farming conducted in common. introduction. xv For the same reason, private property becomes an immutable institution. But hand in hand with the growth of personal property inequality of ownership is also developed, partly by force or tact, partly by family connection and inheritance. Henceforth those settlers, who were originally free and equal, become divided into classes, the division extending to the family groups, and continuing from generation to generation, until the descendants are permanently fixed in the social caste of their ancestors. Every kind of possession begets its special kind of dependence, although landed property, the most widespread in mediseval times, creates the most absolute servitude, while also affording the best means of strengthening and securing it from attack. Hence it was that, among the heterogeneous elements scattered over Europe by the migrations of the bar- baric peoples, this social system prevailed in its crudest form, developing class privileges of the most absolute character, and constantly intensifying the degradation of the indigent. Poetry and legend, the history of the customs and manners of the time, as well as the " Ieg:s barbarornml' afford evidence of the deep chasm that yawned between the two great sections of the community, and of the ruthless nature of that dominion of class over class. But CJiristianity, its most potent antidote, is now seen emerging from this flood of social barbarism. The consciousness of the existence of God is as deeply rooted in human nature as is the keenest sense of social interest. Man feels that he has been created by God, not only for his own good, but also for that of b XVI introduction. his fellow-men. Aristotle already declared that it was " easier to conceive a city without a house, than a State without the belief in the gods." Antiquity bequeathed to us the Ten Commandments as the foundation of our moral code. But with the higher commandment addressed to the inner man, " Love thy neighbour as thyself," Christianity opened a new epoch in the history of mankind. A sudden outburst of religious feeling in a moment of inspiration or of deep emotion, is, however, not sufficient for the needs of human life ; for the tendency of self-interest to form selfish resolutions is ever active. The check supplied by a moral sense of duty will be efficacious only when it is felt to spring from an absolute, a divine command- ment. It is this consciousness alone that enables man still to follow in his resolves the narrow border-line between interest and duty, and thus to obtain that sure impulse of the will which we term " character." But even from this point of view isolated man appears unable to attain his destiny. As in his material wants, so also in his moral development, he depends on the family, the community, and the nation, in order to translate his consciousness of God into acts. In this community of men the religious feeling, in order to assert itself aright, requires the organisa- tion of a " Church ; " it needs permanent institutions which afford religious instruction and spiritual assist- ance, and enable him to practise those human duties which silently but effectually elevate the character of Society. This inner remedy, moreover, impels the human will to assert itself in the outward forms of State and Law, introductioil. xvH As in every crisis the resolutions of man turn on the necessity of reconciling duty and interest, this direction of his will finds an outward field of action whenever his impulses are concerned with the sphere of action of his fellow-citizens, with their person, their family, or property. Hence arises the Moral Order^ standard of all outward action, self-appointed norma of social life. But passion and selfishness overstep this barrier, and compel the community itself, taught by experience, to acknowledge a conipidsory code, as well as a moral order. The patriarchal principle once abolished, the settled populations usually adopt a republican form of government under freely-chosen magistrates. At this stage arise the first forms of popular assemblies, the first institutions enforcing obedience to the commands of the authorities, and that customary law which grows out of the legal instincts of Society. But the more a people is, by character, prone to violence, the more does it need a strengthening of the authority of its magistrates, after the precedent and example of the Church. As the oppression of the weaker by the richer classes increases, the freely- chosen magistrates become less capable of maintain- ing law and order. Thus the republican constitution survives only where free communal property has remained the material foundation of the Common- wealth, But where, on the other hand, the Germanic tribes were intermingled with Romanised populations, or where the original form of occupation gave rise to a marked inequality of possession, there was developed the hereditary monarchical system. The ofiices of xviii IntrodiLCtion. chief leader of the "host," of highest judge, and of supreme liege lord, became permanently united in one family. In this hereditary principle the idea of the State found its permanent embodiment, inde- pendent of all dominating influence on the part of the wealthy classes. The kingly office became the steadfast mainstay of an organized body of executive officers, and of a legislation overriding the narrow interests of the ruling classes. On the Continent, however, the consolidation of the principal nationalities under their respective dynasties did but increase for the moment the struggle for poli- tical hegemony, which at last came to a close about the beginning of the ninth century, with the recogni- tion of a common paramount king, and a common paramount bishop. The united Empire and the united Church were the common bases, whereon the international law and the civilization of the Continent were slowly but uniformly developed. So far, the legal and political development of the Teutonic settlements in Great Britain had followed the same course as those on the Continent But in con- sequence of the Norman Conquest (1066), the royal prerogative acquired such an extraordinary increase of power, that in England the period of absolutism was already reached in the eleventh and twelfth centuries, modifying, in a very striking manner, the relation of the wealthy classes to the Crown. The connection of State and Society, of Church and Society, of Church and State, was very similar in Germany and England, but in the latter country the periods of greater or less power of these several factors followed one another in Introduction. xJx a totally different order ; hence the cause of the chief differences obtaining in the German and English Constitutions. The organic connection of State and Society has also resulted in England from the fact that the State stands constantly in need of the energies, the personal ser- vices, and the wealth of the community. But the higher services which the State demands can be efficiently rendered only by the higher classes of society, and these services weighed far more heavily on the wealthier classes in those days than in our own time, for in the Middle Ages the produce of the soil was the sole standard of wealth and the only source of revenue. The greater landed proprietors, and the lesser owners who held between three and five hides of land, having to bear the entire burden of equipping, training, and maintaining the military forces, enjoyed, as a matter of course, the position o^ " optiniates " or ^'meliores terrce." Early mention also occurs of their services in the varied capacities of legislators in the great popular assemblies, of jurymen at the regularly recurring sittings of the law courts, of officers charged with the duty of keeping the king's peace, and so forth. Thanks to these relations, the assemblies of the nobles had even in Anglo-Saxon times already acquired a highly influential position, and with this corresponded an aristocratic organization of the shires. The Norman Conquest broke through this connec- tion, and subjected the Estates of the Realm, together with the privileges they had already secured, to a well-nigh absolute monarchy. The legislative as- semblies disappeared, and the local self-government XX Introduction. became transformed to a thoroughly organized pro- vincial administration by royal prefects (bailiffs). But this despotic interference of the Crown brought about a result which was not foreseen. By subjecting all freehold property to a fairly graduated obligation of service in the army, in the administration of justice, the maintenance of order, and the levying of taxes, royalty became itself subservient to the nobles, and thus prepared the way for the development of the sturdiest aristocracy in Europe. Conscious of the justice of its claims, and borne up by the identity of interests of all the propertied classes, the nobility rose at the time of the Great Charter against the absolute power of the king, obtained a share in the constitution and administration of the State, and, in recognition of such participation, henceforth inevitable, the monarchy, from the reign of Edward I., accorded to it its fair and equitable position in the system of English self- government. While the just influence of property was thus suffi- ciently guaranteed, the English Crown was, on the other hand, strong enough to hold in check the social aspirations which aimed at the exclusion of the domi- nant class. The frequent removal of the great vassals from their possessions, and the prevention of the forma- tion of entailed territorial lordships, checked the rise of a dominant nobility, which did not appear in England till the close of the Middle Ages, and then only in very limited numbers. The alienability of fiefs held by knight-service, and the gradual abolition of manorial jurisdiction, hindered the growth of a lower nobility, which first arose under the Stuarts, and then also in Introduction. xxi modest numbers, and without political privileges. As in the boroughs also policeadministration was in thehands of royal justices of the peace, the development of close guilds was greatly impeded, so that in but few towns the local government was actually in the hands of' corporate bodies. The otherwise moderate restrictions to industrial pursuits were confined to the towns, which the free exercise of all handicrafts remained a funda- mental principle of the common law. The same royal police functions, gradually superseding the exercise of baronial jurisdiction, also upheld the right of free change of domicile, thus preventing the growth of serfdom. At the same time the strong judicial power of the Crown held together all social classes under one civil and criminal administration, under one legal code for family and property, thus again preventing the rise of separate jurisdictions for knights, burgesses, and yeomanry. But the loss of such separate class- interests was the gain of the commoner class as a whole {comvmnitas) , and the counties and boroughs thus similarly organized acquired that firm cohesion which was the cause of the ever-increasing share taken by the House of Commons in the business of Parha- ment. The energetic and independent activity of the higher and middle classes, the steadfast discharge of the obligations imposed by law and the common weal, combined with the self-control and law-abiding senti- ment fostered by the habitual fulfilment of public duties, tended to develop that power of resistance which successfully thwarted the despotism that had reappeared in the time of the Stuarts. This solid groundwork of Parliamentary life attained its greatest X K i i Introduction, strength at the end of the eighteenth century, but it became shaken and loosened by the intrusion of the new social elements of modern industry, and has thus been forced into the new developments of the nine- teenth century. Owing to this new movement, we see England at the end of this century in a position in many respects analogous to that of the Constitutional States of the Continent at the commencement of their parliamentary existence. The organic connection of Chin-ch and Society springs from the necessity of securing to the chastening influence of religion the permanent power it should exercise on the life of the people. In order to acquire any influence over an essentially selfish and stiff- necked generation, whether by religious teaching, the cure of souls, or beneficent and humanising institu- tions, the Christian priesthood needed to be endowed with a permanent revenue arising out of landed property, to be incorporated, and to enjoy an exalted position among the wealthy classes of the population. And as the increasing intercourse of the nations of Europe in the Middle Ages brought about a uniform evolution of culture, so the mediaeval Church grew into a universal divinely-appointed religious organization, superior to the secular authority itself She thus came to be habitually regarded by contemporary populations as a higher power, until at last Christianity became an inherent and vital element of the Commonwealth. At an early period the Anglo-Saxon settlers on British soil zealously embraced the fundamental prin- ciples of the Christian doctrine ; but from the outset they showed a remarkable resistance to certain pecu- Introduction, xxiii liarities of the Roman Church, especially to the "worship of images" and to the celibacy of the secular clergy. Doubtless the Norman Conquest en- forced an outward conformity, but even at the framing of the Great Charter the national tendency of the English Church made itself distinctly felt, and proved so strong that it not only absorbed the discordant Norman elements, but, in the dispute between king and pope, asserted an uncommon degree of in- dependence. But the very social influence which, so long as it continued, enabled the Church to fulfil its great mission, became a danger to the Church through the social interests of the individuals through whom the divine idea is realized. The rich endowment of the Church at the time of its foundation among the newly- converted people, the steady increase of these posses- sions through the influence exercised by the clergy on the dying, the maintenance of this wealth in mortmain, lastly, the position of the Prelates at the head of the ruling class, gradually made worldly possession and power the main object of clerical institutions. Since the thirteenth century the divine office of teaching and preaching, of guiding and comforting the people, was abandoned to poorly-paid vicars and to mendicant friars, whilst the vast estates of the Church, bringing it more and more into association with the secular nobility, served to sustain the clergy as a ruling class. But even during the fourteenth century this very wealth, aggrandizement, and dominion of the Church rendered the Papal administration so worldly and de- graded, that in England, as elsewhere, a section of the xxiv Introduction. clergy and laity became estranged from the Church of Rome. Through its greed of civil power the religion of love and charity had thus become transformed into one rather of discord and persecution. At the begin- ning of the fifteenth century (1401) the first heretics were burned in England just when the Church had well-nigh surrendered its religious character. Instead of the former coherence, we now perceive a growing dissension between clergy and laity, which was in- creased by the foundation of a separate clerical Parlia- ment (Convocation). During the terrible struggles of the fifteenth century, the Church as an institution seems stripped of all moral influence. The Reformation of the sixteenth century, forced upon the nation by the king for his own selfish purposes, was unable to restore the old sympathetic touch between Church and laity, until in the reign of Elizabeth, after severe trials, the Reformation became a living force, and struck deep roots in the heart of the people of England. The Church became once more a bond of union for the nation, intimately associating itself with the laity in the House of Lords, as Justices of the Peace in the management of parochial affairs, and through eccle- siastical patronage. Yet the English Reformation had been so superficially carried out, that the dissenting elements, kept down by main force, played once more an important part in the civil wars of the seventeenth century. Only after long and severe struggles did the Anglican Church win its way to the heart of the nation, herein aided mainly by the vain attempt of the Stuarts to bring about a violent Catholic reaction. At the beginning of the eighteenth century it Introduction. xxv comprised, with unimportant exceptions, the entire population of England and Wales, and was bound up once more with the most vital interests and the ideas of the ruling classes of Society, being admittedly at the same time exposed anew to the peril of worldly- mindedness and ambition. In the nineteenth century, the clerical side of the groundwork of the parlia- mentary constitution has been still more shaken and unsettled by the rapid increase of Dissent, by the emancipation of the Presbyterian, the Roman Catholic, and other denominations, and thus has a new problem of legislation originated, which Germany had to tackle already two centuries ago. The organic connectioti betzveen Church and State^ which appears in the England of our day as a new problem, had been a reality during the Middle Ages, having been attained through the subjection of the States of Western Christendom to the see of Rome. When the great pact was made between Pope and Emperor at the beginning of the ninth century, the English monarchy had doubtless held somewhat aloof, but after the Norman Conquest it conformed, and under John it even reluctantly submitted to a solemn recognition of the suzerainty of the Pope. An attempt to unite the Lower Chamber of the House of Convocation with the House of Commons proved an absolute failure, and only increased the estrangement which had meanwhile set in, and thanks to which the clergy had, after a weak show of resistance, accepted the Reformation at the hands of an arbitrary and selfish monarch. By the declaration of the Royal supremacy, the old conflict between " Imperiicm " and xxvi Introduction. " Sacerdotitim " was apparently settled ; yet so super- ficial was the expedient, that a strong body of Dis- senters rose up against the Royal supremacy, and even turned the scales in the political struggles of the seventeenth century. After many vicissitudes peace was at last established at the end of the seventeenth century, and the harmony between the King in Par- liament and the Church was restored in the course of the eighteenth century, A united Church in a united State henceforth became the fundamental principle of English parliamentary government. But this principle has already received a rude shock in the present century through the successive emancipation of the other denominations. In presence of a plurality of Churches, enjoying equal rights, England also has now to learn that re- ligion, while it is the strongest bond of social unioti, may become the strongest element of discord in the State ; hence that the State is bound to set certain legal limits to the autonomy of the conflicting Churches, and to establish some new and general institutions, with a view to preserve the unity of the moral and intellectual development of the nation. Out of the reciprocal relations of these elements of national life arose, "as highest Council of the Crown," the Parliament of England, which from century to century found itself placed in an essentially different attitude towards the Crown on all questions of might and right. Yet from shreds of this constitution, as it existed in the eighteenth century, attempts have been made to fashion a universally acceptable ideal of repre- sentative government. Such attempts, overlooking the Introduction. xxvli fundamental principles, could result only in an imitation of the outward uses and abuses of the English Parlia- ment, leading to those disastrous misconceptions from which European nations are still suffering. In order to avoid a barren discussion pro et contra " Parliamentarism," the author has endeavoured all his life through to convey a clearer exposition of the two hitherto neglected phases of English political life — viz., the " History of English Self-Government " [iii., ed. 1871] and the "History of English Administration" [iii., ed. 1883-84], and to combine these in a " History of the English Constitution" [1882]. The third main division of English political life — viz., the Parliamentary Constitution, might have been left to younger hands after the materials for the whole fabric had once been brought together. Such a revision by some competent authority would have been highly desirable as a test of the fairness and accuracy of the body of evidence gathered from those two sources by the author. But inasmuch as his hope has, as yet, not been fulfilled, the author has undertaken this third task also, which he has endeavoured to carry out, for the time being, in a short and popular form. The constitutional history of a great nation is in itself difficult to set forth, but even without the complicated apparatus of a strictly scientific work, it may be placed in an intelligible manner before an educated public. The narrative, thus simplified, brings before the reader in nine essays a very varied description of Parliaments which, to a superficial observer, might seem to be Parliaments of so many different nations. Yet when contemplated in connection with the public xxviii Introduction. administration and the communal life, as here intro- duced from the author's " History of the English Constitution," these assemblies are found to be pervaded by an inner unity, which is elsewhere absolutely unparalleled. When the inquiry is thus concentrated on the form and standing of the various Parliaments, fresh aspects of an orderly connection constantly present themselves, by means of which many disputed points are cleared up. In every epoch this inner unity enables us to solve problems, which even in England are still regarded as insoluble. In this biography of the representative assemblies of a great and highly-gifted nation, often revealing its true character by slight traits, an inner unity and continuity manifest themselves throughout the course of a thousand years, as if these were but nine days in the life of a man of honour, who through all the trials and errors of his mortal life remains true to his nature and to his convictions. But in order to arrive at this result we shall have to discard the traditional method of treating English Constitutional History. The English habit of thought, which connects the History of the Constitution with parties and individuals, might have sufficed so long as the fundamental conditions of the parliamentary constitution were supposed to be fully understood and were taken for granted. Such fundamental conditions, however, no longer exist, in consequence of the radical change that has supervened An Society and in the electoral bodies. We, therefore now need a connected exposition of the institutions in living connection with their reciprocal operations. And thus, by a kind of vivisection as it were, that introduction. xxix organic defect will be revealed which has developed itself in the English body politic of our own time, and which will render impossible a continuation of that government by rival parliamentary parties which has hitherto prevailed. The weather forecast of the approaching future may, for this reason, point only to " storm," — possibly violent, far-reaching, long-lasting tempests, — but it points also to a triumph over this new peril. Our hope is justified by the past history of the English nation, as well as by the experience of our own people, who have likewise had to pass through severe trials in order to arrive at their present stage of development. May this biography of the Parliament of England contribute, at a critical moment, to sustain the confidence cherished in the triumph of the good cause. r. t $\\Qh-^zm\x €n\wk^' TABLE OF KINGS. Egbert, 800-836. i^iTHELWULF, 836-857. yiiTHELBALD, S57-S60. .^thelbert, 860-s66. .(Ethelreu, 866-871. .Alfred, 871-901. Eadward the Elder, 901-924. yETHELSTAN, 924-94I. Eadmund, 941-946. Eadred, 946-955. Eadwi, 955-959- Eadgar, 959-975- Eadward the Martyr, 975- 978. .^thelred the Unready, 978- 1016. Eadmund Ironside, 1016. Cnut, 1016-1035. Harold Harefoot, 1035-1039. Harthacnut, 1039-1042. Eadward theConfessor, 1042- 1066. Harold IL, January-October, 1066. THE political history of England may be said to begin about the year 800, a date when that of the other civilized European lands also first assumes distinct outlines after the subsidence of the great floods * The most complete survey of authorities and literature of the Anglo-Saxon period is afforded by Lappenbergin his "Geschichte von England," vol. i., Introduction. (Hamburg, 1834.) The laws of the period in Reinhard Schmid's " Gesetze der Angelsachsen." Second Edition, 1858. A collection abounding in historical data is contained in W. Stubbs' " Select Charters and Illustrations of Constitutional History,"Second Edition. (Oxford, 1874.) Awell- digested history of this period is contained in Lappenberg (as above), vol. i., and a legal history in Conrad Maurer's " Miinchener Kritischen Ueberschau," vols, i., ii., iii. English researches by Kemble, " The Anglo-Saxons in England," 1489. Sir Francis Palgrave, "The English Commonwealth," 1831-32. Valuable recent information on this period is contained in Freeman's "History of the Norman Conquest," vols, i., ii., iii., and in Stubbs' " Constitutional History," vol- i.. Chapters I. — VIII. 2 The Anglo-Saxon Gemotes. of barbaric migration. All preceding events, however interesting to the student of ethnology and human culture, may for our purpose be regarded as belong- ing to the pre-historic period, in which, after long and obscure struggles, those elements of land and people were fashioned which imparted to England her characteristic physiognomy on taking her place in the comity of European nations. The inhabitants of the Isle of Britain, mainly Celtic, came first into contact with the Roman Empire through Csesar's bold campaigns. Some hundred years later, this led to a lasting subjection, and to the consequent introduction of Roman provincial administration, under which the section of the population that had been reduced remained purely passive ; while the indepen- dent tribes preserved their strongly-marked national characteristics, exhibiting stubborn resistance, amid varying fortunes, to Roman and northern invaders alike. The comparatively early introduction of Chris- tianity, and the protection afforded by the hardy Roman legions, had imparted to the conquered portion of the race certain elements of Roman civilization. But the gradual pressure exercised by the great migrations on the western portion of the Roman Empire during the reign of Honorius had severed the legions in Britain from the centre of authority. Thenceforth (406), for aboutthirtyyears, Britain, thoughbelonging, nominally, to the Roman Empire, had its own emperors and usurp- ing rulers. But after it had vainly applied to Rome for protection against the invading hordes of barbarians, there ensued a formal severance from the Empire and the consequent expulsion of all Roman functionaries. TJie Saxon Invasion. 3 "The spectacle Britain then presented," says Lappen- berg,* "is at once one of the saddest and most striking in the whole range of history. It was emancipated from the greed of the Roman procurator, and freed from the overbearing arrogance of the imperial cohorts. But this very freedom, for which the people were indebted neither to their own courage nor to their higher aspi- rations, left them wholly unprotected against foreign invasion. Never did a nation so speedily relinquish a cultivated language, which to many generations had become a mother-tongue. Never did the Christian religion so quickly and thoroughly lapse into heathen- ism and unbelief. Such was the pitiable fate of the land whose nationality, trampled under the heel of the Roman conqueror, had retained no power to withstand its savage foes." On the cessation of the Roman sway Britain had become a centre of internal feuds, and an object for plunder to invading hosts, when^ about the middle of the fifth century, two northern sea-kings, or chiefs, bearing the legendary names " Hengist " and " Horsa," found a footing, at first, as paid allies, and, subsequently, as conquerors. Soon followed smaller or larger bands of Low German stock, presumably from Holsteinand thedistricts'ofthelower Elbe, some invited by their fellow-countrymen, others in search of new settlements and tempted by the hope of plunder. Amid conflicts with the hardy British tribes and their northern neighbours, the Saxon military settlement advanced slowly into the land, founding petty states, * Compare Lappenberg, op. at. p. 63. The slight influence exercised by the Roman elements of culture is shown also by Mommsen, " Romische Geschichte," vol. v.,Chapter " Britannien." 4 The Anglo-Saxon Gemotes. such as " Essex," " Sussex," " Wessex," which retain their Saxon designation to the present day. Jointly with these Saxon intruders mention is made of the Angles, who with wives and children migrated bodily from the "land of Anglen " — that is, the territory between the Schley and Flensborg and surrounding districts, so that this part of Schleswig is described as remaining long afterwards uninhabited. In the petty states north of the Thames, such as East Anglia and West Anglia, this tribal name survived for cen- turies, and at last gave the name of Anglia to the whole land, either in contradistinction to the conti- nental Saxons, or because in their secluded settle- ments the Angles had preserved a firm coherence. But in any case, by their speech they formed part of the great Saxon stock. And the assumption that they were of Thuringian origin is certainly based on very doubtful authority. A third element in the colonization were the Jutes, who occupied the small kingdom of Kent, the Isle of Wight, and a limited portion of Wessex. Subse- quently, these tribes on British soil became scientifically grouped as " Anglo-Saxons," a designation which is as foreign to popular, as it is to legal usage. The picture presented by these military colonies during the first two centuries resembled in some degree the throng and pressure of the great Germanic tribes on the mainland. There prevailed constant strife for the possession of fertile tracts of land and for plunder, during which the weaker members became merged in the great seething mass. The smaller principalities merged gradually into larger states, which The Saxon Monarchy. 5 eagerly strove for a de facto or a de jure ascendency. Amid these conflicts a general conviction was fostered by the Christian clergy that, in such a complexity of petty states, peace, well-being, and morality could develop only out of the union of the Cliurch, of the military, civil, and judicial functions under a united monarchy. Such a monarchy was founded by Egbert in the year 800, when he united all the kingdoms south of the Trent in a single state under the name of England. In striking contrast with the Carlovingian empire, the establishment of this monarchy was followed by a series of events which have exercised a decided influence on the progressive development of England. After countless conflicts, continued for many genera- tions, and consequently all the more disastrous to the weaker side, the Britons, already enervated or lapsing into barbarism, were at last completely crushed. The urban settlements dating from Roman times fell into decay, the elements of the old Roman culture, with Christianity itself, vanished from the land, the original population was partly driven to the uplands, partly reduced to thraldom, or to the condition of an impoverished peasantry. Hence in England those peculiar relations are absent which in Western Europe were brought about by the intermingling of the Germanic intruders with a Romanized provincial population, with a Roman culture, a Roman provincial and ecclesiastical organization. On the other hand, the Conquest had the result of loosening the ties of kindred that naturally bound them to their country. Someof the single settlements were formed, apparently, 6 The Anglo-Saxon Gemotes. through the emigration of small tribes, but in the gradual progress of colonization fresh migrations took place, somewhat resembling those of the "marches" or borderlands in east Germany, thanks to which the earlier settlers became commingled and increased by the arrival of fresh immigrants. After the occupation of the country it was distributed among the new-comers, the smallest allotment to a freeman bearing arms being a plough or hide of land (Jiida, familia, inansiis) ; and as the settlers mostly found land that had already been under culture and under Roman provincial administration, they regarded not only the "roof and holding," but also the soil itself, as their personal property and inheritance, the pasturage and right of chopping wood being alone held in common. An early and well-defined development of individual right of property, as well as of the power of transfer by deed and by will, was soon established. From the time of King Alfred the name "boc-land" (book-land) occurs, as designating free ownership in land. All unallotted lands remained as "common property " of the dominant tribe, under the name of " folk-land," which, by special grant, might mature into " boc-land." Individual property in land speedily became the efficient cause of inequality of ozvncrship. Already, at the time of the settlement, larger allotments had been made to the numerous chiefs and leaders, and this inequality was intensified by later strifes and feuds. At the same time the number of those in the densely-peopled districts who, at the time of settlement, had received no allotments, or who through Growth of Landed Estates. 7 subsequent distributions and testamentary dispositions became dispossessed, went on continually increasing. To such free-men there was nothing- left but to enter into personal service in the household of some land- owner, or in quality of " settlers," to rent a piece of land (" laen-land ") in consideration of " suit and service " rendered. This arrangement entered into the normal economy of the large estates, and the depend- ence thus established became practically hereditary. The system continued to grow through public cala- mities and the voluntary surrender of the small holdings in time of war, and in time of peace through the increase of population, fresh distributions, and alienation. The indescribable misery occasioned espe- cially through subsequent Danish inroads, contributed to destroy the prosperity of the free peasantry, and to render the ascendency of the great landowners still more marked. Thus, through the development of individual owner- ship, the old family organization of peasants fitted to bear arms merges into a system of lasting seignorial- right, at an earlier period, and on a more extended scale at least than in Germany. The old inheritance of " common liberty," the considerable amount of the " wehr-gild," and the personal protection afforded by law to the " hber homo," were certainly still preserved to the lack-land class. But in all other respects the encroachment of the large estates on the small holdings, and the oppression of the dispossessed freemen below the level of the common freedom, became more and more pronounced. From this evolution in the relations of ownership, 8 The Anglo- S axon Gemotes. the conception of the "kingship" is seen to arise in England, while in the old homes of the nearest allied Continental tribes no such title anywhere occurs at that time. Hence it may be taken for granted that its appearance among the Anglo-Saxons was due to social conditions which grew out of the original settlement Nor was the kingship developed during the early period of occupation, although the conquering tribes were led by chiefs who belonged to families renowned in war {nobiles). The victorious leader also remained at the head of the intruding bands on the conquered land, and the transference of his leadership from father to son seemed as natural as the in- heritance of the distributed soil itself. Nevertheless, like relations ultimately arose also among the demo- cratic tribes on the mainland. The kingship, in fact, begins to exist, first as soon as the office of chief is regarded not merely as one of leadership, but as an all- embracing supreme authority, involving the functions of judge, the maintenance of order, and a protectorate over the Church ; secondly, when such superiority comes to be looked upon as the perpetual privilege of some family renowned in war. The new legal con- ception then becomes embodied in the equally new designation of " cyning " (king), a term, however, whose origin still remains an open question. When the broad divisions of the land were firmly settled there were constituted towards the beginning of the seventh century seven or eight kingdoms of greater or less extent : Kent, Sussex, Essex, Wessex, East Anglia, Mercia, Deira, Bernicia. The two latter, however, were at an early date merged in the ancient The Military System, g kingdom of Northumberland. To this group history- has assigned the name " Heptarchy." In course of time, however, conditions highly favourable to supre- macy were found united in the kingdom of Wessex, whose King, Egbert (800-836), established his au- thority over the smaller states up to the River Humber. The period of peaceful development immediately fol- lowing the consolidationofthis monarchy was certainly- interrupted by the savage depredations of the Norse vikings. But these were succeeded under Alfred the Great and down to the death of Edgar (871-975) by the most brilliant epoch of Anglo-Saxon history, which has left us copious materials regarding the body politic, that is, in the mediaeval sense, regarding the military, judicial, and ecclesiastical organization in their several relations to the Crown. The military system of the Anglo-Saxons was founded on the obligation of all to bear arms. By this was meant the duty of every freeman to obey, in person, the summons to arms, to equip himself, and to live throughout the campaign, at his own cost. The im- possibility of a uniform discharge of this duty by the freemen lay at the root of every transformation occur- ring in class relations throughout the Germanic world. But the Anglo-Saxon kingship, in direct contrast with the Carlovingian monarchy, never succeeded in deter- mining, under purview of the law, the apportioning of the war burden. The equipment of the army continued to be an object for deliberation at the Shire-courts and Hundred-courts, whence necessarily resulted an un- equal and withal a defective organization. Hence, during the Heptarchy, the chiefs were driven by the 10 TJie Anglo-Saxon Gemotes. constant wars to have recourse to other expedients, such as equipping armed bands from among their own free household and retainers, and keeping them ready at their personal summons. All court functionaries bore from the first a military character. The pro- spect of plunder, of honour, favours, and reward also attracted freemen to the Court. Hence around the petty kings there was constituted a first levy oi well-trained troops, thus more and more restricting levies en masse to cases of extreme emergency. After the disastrous Danish wars, a blending of the two systems seems to have been efifected under Alfred, so that the larger holders of five hides and upwards entered into a relation of personal service as thaini Regis, while the common freemen were, as a rule, employed only in building and guarding the castles, and repairing the highways {trinoda necessitas). The legal system had its mainspring in the pro- ceedings of the freemen under control of some self- established superior authority. As in the case of the military service, the participation at stated periods in the popular courts with their numerous jurymen pre- supposes an independence bound up with the posses- sion of one " plough-land." But regular attendance is an indispensable pre- liminary condition of such a judicial system, as he who appears only now and then can never become imbued with the legal spirit, or familiar with legal usage. Hence through the division of landed property the circle of law-men in the popular courts became nar- rowed down to a smaller group of peasant proprietors, who by their regular attendance and acquaintance with TJie Law Courts. II the customary law acquired the distinctive designation of " Witan," or the wise men. The great landowners also soon began to form courts of their own, in which their tenantry and retainers fulfilled their legal relations to the landlord and to their fellows, while still remain- ing outwardly members of the common courts. Against the abuses arising out of this severance of local jurisdiction the freemen found their only protec- tion in the position of the supreme authority. In the united monarchy the King, as hereditary dispenser of justice, ruled with a firm hand over lords and free- men alike ; and his representatives prevented the dissolution of the provincial courts by subjecting them to some central control, and regulating the proceedings more in accordance with the require- ments of the neighbouring districts. From the time of Alfred there appear, subordinate one to the other, two distinct local Courts : — I. The Hundred-court, " hundred-gemot," meeting monthly, in the narrower circuit of the divisional district, for the decision of civil suits amongst free- men, for judging petty criminal offences, and for transaction of formal law business. II. The Shire-court, " shir-gemot," which met twice annually, to exercise the power of inflicting criminal punishment, to settle disputes amongst the inhabitants of the various Hundreds, to determine questions of law amongst more influential parties, and for the dis- patch of other business incidental to higher Courts. This organization already bears the character of a State-system. The Shire-court is held by the "ealdor- man," appointed by the King ; in conjunction with him 12 The Anglo-Saxon Gemotes. a shir-gerefa, for the carrying out of the sentences, the enforcing of fines, the maintenance of the peace, and, already from an early period, presiding as representa- tive of the Ealdorman. In the Hundred-court appears, in like manner, the shir-gerefa, or a special " bailiff," as holder of the court, and here again the common free- men from the immediate neighbourhood exercise their powers as men of court Hence the century from 871 to 975 was also the period of consolidation, when land and people settled down in such firmly constituted groups, that the framework has continued with won- derful steadfastness down to the present day. The naming of the English "shires" and "hundreds" dates from this century, in which the Anglo-Saxon laws expressly name the districts of Shires and Hundreds as divisions of the kingdom. The "tithings " in the older histories are erroneously regarded as the lowest local divisions of the " hundred," although a grouping in decanice, or tens, might otherwise be referred to the military system of the Teutonic peoples. But among the Anglo-Saxons this division broke down under the enormous development of great landed estates,and of the royal jurisdiction overretainers and tenantry. Hence the small groups of free peasant proprietors failed to secure a uniform local constitution. It was only at a later period, from the time of Edgar, that, under the so-called " peace pledge," the still sur- viving yeomanry and the lack-land freemen, unattached to any master, became united in tithings with a respon- sible president (tithing-man, head-borough). In the manorial districts the thane possessed a like responsi- bility in regard to his retainers and peasantry. Thus The CJmrch. 13 the local jurisdiction under the later kings assumed a highly complicate character. We find (i) Large seignorial estates, on which the local bailiffs combined an administrative control with the position of Court bailiff over the tenantry. (2) Smaller groups of persons originally free, who, for the more convenient administration of justice, were united under a royal or seignorial gerefa, and exempted from the legal duties of the hundred. (3) Royal, and also partly seignorial " burhs," mostly surrounded by walls, placed under a special gerefa,who held triennial burhgemots analogous to those of the hundreds. (4) The rest of the freemen, hemmed in between these broad seignorial divisions, but often scattered in isolated groups, who had safe- guarded their old privileges. By means of the legally organized system of tithings this class was now united under a responsible functionary, constituting no longer anything more thana supplementary element, a remnant of communal government for common freemen.* In closer unity was organized the Constitution of the Church, which, having been accepted and endowed by the Anglo-Saxonkings, acquired under royal patronage * The system of local administration throughout mediieval times involves many obscure points. But on the whole it is clear that the extensive settlement of colonists on allotted lands, the attachment of free peasants to a civil protector (Hlaford, Lord), and the extension of the manorial courts to the free peasant, had formed the foundation of the territorial system in England. On the other hand, it was still the State (the King) that conveyed authority to the landowner, and which the terri- torial Court extended to the libei'i homines w'x'Csx right of criminal jurisdiction. To this two-fold relation was afterwards superadded the Norman feudal supremacy, which took over the manorial Courts, with equal readiness recognizing, restricting, or abolish- ing- them. 14 The Anglo-Saxon Gemotes. a strongly-marked national character, as seen in the bishoprics and archdeaconries which were established on the lines of the Heptarchy and of the later county divisions. The English Church also laid the ground- work of legal protection against the sale and maltreat- ment of women, children, and " theowes " or thralls. She it was who first secured to the ceori a day of rest, his own earnings, and a more effectual emancipation. She it was who first established houses of education for the higher ranks, while the lower clergy and the monks were found assisting all classes by their counsel and their teaching. She it was who first softened manners, fostered skill and industry, peaceful inter- course, and the systematic care of the poor. To her was due the regulation of marriage on a moral basis, and the further elevation of the position of women. In the administration of justice she gained influence by reason of the frequent introduction of the oath in con- nection with matters before the courts, and by con- trolling the legal ordeal by "fire and water." As leader of the Shiremot, the bishop took his stand side by side with the King's representative. The Church entered into the communal life for the discharge of duties which in the temporal constitution of the Middle Ages had hitherto been overlooked. From this framework of Army, Courts of Law, and Church, in conjunction with ownership in land and spiritual functions, were evolved the relations of all classes. The duty of bearing arms was bound up with the land acquired by force of arms. The dispossessed freemen entered into lasting dependence on the land- owners, while the peasant proprietors themselves fell General Assemblies, 15 Into a state of many-sided villenage. Throughout the whole rural population a tendency towards servitude grew apace, constantly striving for legal recognition. Fealty and obedience of lieges and retainers to their laws thus became positive duties at law. Higher military, legal, or ecclesiastical services led to the re- cognition of a higher estimation, of higher rights, and a higher standing in all matters connected with " wer- gild," penalties, and peace-pledge, thus constituting the first steps towards the formation of privileged social classes. Domestic power, exercised over the members of the household, the laen-men, and settlers on the estate, developed into a superior authority, which, for ordinary intercourse, practically constituted the only available Court of law for the dependent section of the community. With the mutual growth of these relations there sprang up a class of landowners who, through the course of ages, slowly advanced to the condition of an hereditary order. Three classes may already be clearly distinguished : the Great Thanes, the Shire Thanes, and the common freemen, the last-mentioned, thanks to a surviving remnant of old national freedom, being still distinguishable from the servile class by birth. The people thus became more and more distinctly grouped in the two great classes of eorls and ceorls ; that is, the governing and the governed, the lord and the liege. In accordance with this broad classification there were grouped round the monarchy the periodical GENERAL ASSEMBLIES OF THE WHOLE NATION ; that is, of the fully-privileged section in its actual distri- bution. This was itself analogous to that which pre- vailed among the other Teutonic tribes, and which 1 6 The Anglo-Saxon Gemotes. must here claim our attention in order to understand what has to follow. The ancient democratic popular and judicial assem- blies, as described by Tacitus, originally existed only for the smaller communities {civitates) somewhat analogous to the small Swiss cantons in later times. But this original groundwork soon became modified through the influence of the landowners after the settle- ment. The regular military service and right of arbi- tration in the Courts then became centred in the middle and higher classes of land proprietors. Thanks to their habitual engagement in military and legal duties, a still narrower group of officials was formed, who, under the distinctive name of Witan, or the wise men {boni, probi, legales homines), assumed somewhat of a professional character, to the gradual exclusion of the so-called umstand (" bystanders " or " outsiders "), that is, the general body of inferior freemen. With the fusion of the smaller communities {civitates) in larger national groups and states, the general assemblies of the people ceased altogether. Such meetings had, on geographical and economic grounds, become no longer practicable. Hence the representa- tion of the whole nation through the boni homines was further restricted to a still narrower circle of the meliores seu optimates terrce, that is, to the most distinguished members of the military, legal, and ecclesiastical services, and hand in hand with the disparity of ownership there usually arose a king- ship hereditary in some family which stood at the head of these select assemblies. To the King also lapsed not only the right of determining time and place of TJie Folhmotci. ij meeting, but also the personal summons of the meliores terrcE, one privilege following necessarily from the other. The summons was issued with due regard to recognized personal distinction, and with a view to deliberation on military, legal, and Church affairs, for which the King stood in need of their ready co-operation. Thus it came about that the national assembly became the consilium regis. The original folkmotes of the Anglo-Saxon tribes passed through precisely the same phases. The most complete survey of extant records relating to 147 Anglo-Saxon national assemblies is furnished by Kemble (" Saxons in England," ii., cap. 6). Un- fortunately, only brief notices have, as a rule, sur^ vived, which, like old mutilated inscriptions, require a hundred interpolations in order to gain an insight into the actual relations. As the majority of data afe given, by learned clerks and chroniclers, in the Latin tongue, it is necessary to bear in mind that the national designation of things andjpersons is most arbitrarily and diversely translated into Latin, and that, accordingly, not much weight can be attached to these various renderings. The national assemblies are, at the caprice of the writer, diversely styled consilia, conventus sapientum, principiuii^ optiniaticin^ magnattim, procerum. (The name " parliamentum " first appears, as will be shown later on, in the thirteenth century, and even then, and still for a long time after, is used alternately with the above expressions.) The Saxon designation of the assemblies was " gemot," frequently also with an adjunct, as " michel- gem6t " (great assembly)) at times as " Witenagem6t " 2 1 8 The Anglo-Saxon Gemotes. (assembly of the " Witan," that is, of the " sapientes "). The latter designation, frequently occurring in Anglo- Saxon chronicles, has passed into historical use under the name of " Witenagemote." All extant evidence is unanimous as to the relatively small number of persons who took part in the gemot. The significance of this fact will be fully weighed further on, after passing in review the objects of de- liberation as revealed to us by the same evidence. They were, on the whole, obviously identical with those which, during the Carlovingian epoch, were discussed in the great national assemblies of the Continent. Allowing for the altered conditions of the times, the inference seems justified that they dealt with much the same class of subjects as those mentioned by Tacitus, when these gatherings still took place in the circle of small tribal groups {civitates), the freemen of the district meeting together in order personally to discuss and decide upon matters of common interest. In modern phraseology these may be divided into the three categories of /egal, political, and ecclesiastical affairs. I. Essential objects of deliberation were at all times the changes possibly needed in the tj-aditional common laiu {ihejns terrcB, or lex terrce), that is, in modern language, the fundamental principles of the laws of property, family, and household, the customary appointment of legal experts, as well as the procedure in case of suits instituted for the safe-guarding of personal right and enforcement of legal satisfaction and penalties. This " common law," growing out of social life, held good throughout mediaeval times among the Teutonic peoples as the inborn right of the freeman, subject to business of the PotkmoteS. 19 no change, without his assent. This fundamental idea of " right," from which the conception of " law " has developed in our modern constitution, stood in mutual operation with the constitution of mediaeval judicature. This judicature being subject to no higher authority, but terminable only by a popular Court acting to the best of its free judgment, as with the Scabini of Carlovingian procedure, a popular vote was needed from the first to induce the free arbitrators to introduce new laws. Hence so long as legal courts con- tinued to be filled by men of legal standing {judicia pariinn), a barrier was opposed to the controlling power of the temporal authority. Thus no change in the fundamental principles of this judicature could have any efficacy without the decision of an assembly, which afterwards came to be regarded as a national council. During mediaeval times the " Court of justice " and the "legislative Assembly" continued to be closely con- nected. Under the expression "gericht" -(Court of Justice, Court of Law, Tribunal) was understood every kind of local, district, or shire assembly, which was concerned not only with litigation, but also with all public matters in these several jurisdictions. This constant commingling of judicial and legislative func- tions also continued in the Witenagemotes. In' the national council the King exercised a complementary judicial authority both over the powerful lords, for whom no competent tribunal {Judicium pariwn) ex- isted in the shires, and altogether in all cases of miscarriage of justice {defechis justicics). The modes of procedure in the courts and in Parlia- ment have always influenced each other by the reciprocal 20 TJie Anglo-Saxon Gemotes. imitation of their forms ; and as in mediaeval times the Court of Law was necessarily conceived as a delibe- rative body of Witan under the control of a superior authority, so the framing of new legal principles could be effected only with the concurrence and assent of some higher Witan acting under the control of the Crown. The evidence bearing out this view occurs over and over again in almost identical terms through- out Carlovingian and later mediaeval times {Lex consensu popiili fit et constitiitione regis). In like manner, the resolutions of the Anglo-Saxon popular assemblies, in every century, tend to show that the legal decisions handed down from their forefathers could not be ratified by the King alone, but also required the assent of the people, or of the Witan representing them. For instance, in the seventh century we find, touching the law of Wihtraed : " Then the great lords, with the consent of all, came to a resolution upon these ordi- nances, and added them to the customary laws of the men of Kent." In like manner King Alfred says : " Many laws that seemed not good to me have I set aside, with the consent of my Witan, and I have ordered that these same laws should be put in force, when refashioned." Again, in the ninth century we read, touching the legal enactments under ^Ethelred : " This is the Ordinance the King of the English has selected and fixed upon, with the consent of his spiritual and temporal advisers." How far this funda- mental doctrine was still in force during the Norman period will be shown later on. II. TJie most important measures and regulations hearing upon the temporal commonzvcal, that is, all Business of the Folkuioies. 21 ordinances bearing on military affairs, sessions of the courts, and the maintenance of peace, form a subject ever varying with the times and the changing relations of the administration. In this respect, also, the Anglo- Saxon national councils form a continuation of the democratic cantonal gatherings. Decisions respecting the levying of a national war, involving the duty of every freeman to equip and maintain himself during the campaign, were passed with the solemn assent of the assembly of the people. On the other hand, their concurrence was not needed for summoning persons otherwise bound by contract to personal service on the King, either in virtue of some office at Court or in any other way. The endless feuds of the petty states before the fusion of the Heptarchy were, in great measure, carried on exclu- sively by means of such personally attached retainers. This description of military service was apparently further developed in a large way under King Alfred, when the large owners of five hides and upwards entered into a relation of Thaneship with the King, receiving in return a higher rank, and an extension of their seignorial and civil authority in their own demesnes. Even in later times, a resolution of the Witan was, except in case of extreme emergency, regularly asked for, in order to secure their voluntary co-operation during the course of the war. The same holds good as regards conclusions of peace, which, in the days of petty sovereignty, constituted one of the most important objects of popular decision. Even under the monarchy in Alfred's treaty with the Danes, for instance, it runs as follows : — " This is the 22 The Anglo-Saxon Gembtes. peace, which Alfred the King, and Gythrum the King, and the Witans of the whole English people, and the people assembled in East Anglia, have all settled, and with oaths confirmed." Also when, under stress of war, a peace was concluded without such concurrence, there was needed for the enforcing the same a further resolution of the Witan ; as, for instance, in regard to the disgraceful peace with the Danes, in the year 994, we find, " That it has been frequently renewed, and by the Witan ratified." Simple regulations touching the external administra- tion of justice, thatcontained no modification of national law, the King might, indeed, prescribe of his own accord, just as such regulations are frequently to be met with in the Carlovingian Capitularies. But whenever such regulations were meant to establish a lasting ordinance, involving important consequences, it was still advisable to ask for the concurrence of the Witan, as the laws of the Anglo-Saxons contained various prescriptions, having quite as much reference to the administrative side of justice as to law-giving. In like manner, the kings could issue injunctions for peace, and for maintenance of civil order in the land. A prerogative of this kind mightbe derived as well from his position as Lord of War and Lord of Justice. For the effectual preservation of peace, however, the warrant of the Witan was, in troublous times, urgently advisable ; and in order to give to such injunctions a lasting character as national enactments, numerous and impor- tant civil regulations were adopted with the concur- rence of the Witan solemnly assembled in the National Councils. The defective legislation regarding military Business of the Folk motes. 23 matters is fully balanced by the carefully elaborated local and district civil organization, as regulated by the Anglo-Saxon legislature. This is especially the case as regards the surety of the landlords for their domestics and their Thanes, the surety of the rural authorities {prcepositi), in respect of the still free peasantry, and, further, a surety for the appearance of the accused before the judge, as well as a co-surety for penalties incurred, which subsequently became the groundwork for police arrangements which later on had still more far-reaching consequences. Lastly, if no mention occurs of legislative control over financial matters, it should be remembered that the State, as then constituted, administered only through performances in kind, and that a system of taxation was of later date. The conquered land, so far as it was not portioned out in private ownership, was looked upon as being originally " folk-land." The use of this " ager- publicus " was truly, in great measure, left at the dis- posal of the King, serving mainly for the maintenance of his household expenditure, of his officials, and armed retainers, just as in the Carlovingian Empire the *^ Ccssaris Jiscus'^ forms only a personal house revenue, while the needful expenditure for the army, the Courts of Justice, and the maintenance of peace was mainly supplied by performances iji kind, obtained from the subjects. Should, however, a portion of the "folk-land" become assigned, either by way of gift or loan to the Church, or to private persons, the assent of the people, that is, of the Witan, was required, and this assent was in innumerable cases obtained for these very concessions. A first step towards a right of levying 24 The Anglo-Saxon Gemotes. taxes in cases of emergency was made during the disastrous wars with the Danes in the form of the so-called " Danegelt." III. Lastly, legislation bearing on Church matters forms a special province of its own. The introduction of Christianity, and its recognition as the religion of the State, came about through the solemn resolutions of the King, with the concurrence of the Witan. But as soon as the ecclesiastical hierarchy was acknowledged, and the Church endowed with considerable possessions inland and rich revenues, a kind of division of authority ensued. Laws which concerned purely Church matters were in the National Council exclusively settled by the ecclesiastical Witan, while on matters of a temporal and mixed character the spiritual and temporal lords deliberated in common. Objects within scope of the general resolutions of the National Council were, the introduction of ecclesiastical tithes, and some other matters of Church revenue, as also the keeping holy of the Sabbath, and the stricter observance of fasts and feasts. The question of the introduction of monastic orders was repeatedly discussed by the Witan, but without resulting in any formal resolutions. On the other hand, the prohibition of marriage within certain degrees of kindred, as well as the personal privileges of the clergy, were unquestionably objects of general legislation. Provisions concerning the internal service of the Church and Church discipline were left entirely to the ecclesiastical authorities. Surveying the region of judicial, administrative, and Church legislation in its entirety, we may already infer, from the objects of deliberation, that such councils The National Council. 25 could not have been gatherings of the whole people, as in times when a cantonal sovereignty prevailed. A deliberation upon new rules of law, conclusions of peace, civil regulations, and Church matters of a mixed character, could not possibly have been settled in one or two days in an assembly consisting of many thousand persons. To this consideration must be added other cogent circumstances of a pregnant character. After the fusion of the smaller continental tribes in larger national groups, it may be inferred, even apart from the negative testimony derived from the silence of historians, that national assemblies, in the older sense of the word, could never have existed among the Goths, Franks, and other great Teutonic peoples. Such gatherings had become geographically impos- sible through the foundation of fixed settlements scat- tered over a wide expanse of territory. A consideration of the state of the public highways in those days, the means of transport, of conveying supplies, and so forth, shows at once that to speak of a gathering of a hundred thousand men to deliberate on laws, treaties of peace, and so on, involves something like a contradiction in terms. It is further evident, from the strongly repub- lican constitution of the Saxons, that matters of common interest were discussed only by a limited number of representative deputies. From the very nature of the case, the national councils must have been changed to some form of representative assem- blies, while necessity and custom required those arriving from remote districts to be accompanied by numerous retainers and attendants. Hence the large 26 The Anglo-Saxon Gembtes. assemblies of the Carlovingian monarchy were re- stricted to a review of the armed forces combined with a Council of the great lords. In a somewhat smaller degree, all these fundamental relations hold good also as regards England at least from the time of the fusion of the small kingdoms. In a land * covered with forests, and intersected by deep streams or extensive fenny tracts, and indifferently provided with means of communication, even attend- ance at the county assembly must have been hard to combine with the necessary pursuits of agriculture. It seems altogether impracticable to require every freeman to betake himself to distant places wholly unknown to him, to undertake a journey perhaps from Essex to Gloucestershire, in the cold Christmas season, or about Eastertide, when it was important for him to attend to the culture of his land. How could he be concerned with laws touching any other portion of the country save the one in which he lived ? Even in much later centuries it was difficult to get the far more advanced populations of the towns to interest themselves in State affairs which went beyond the range of their parochial interests or the levying of taxes. Hence throughout mediaeval times the summons to attend National Councils was mainly regarded as an irksome duty, which all would have gladly declined. As time and place of meeting was always changing, the summons had to come from the King. There being no other practical way of carrying the matter out, the same mode of constituting the national assemblies prevailed for hundreds of years in the most diverse * Compare Kemble, "Anglo-Saxons," vol. ii,, cap. 8, Business of the National Council. 27 European States. Although not expressly so stated, it is almost certain that even in those times the summons was issued by the hand of the King's secretary (Chancellor) in the form of a gracious writ of summons, just as they were subsequently drawn up in antiquated Chancery style. The summons could be addressed only to persons whose presence the King might require, and from whose council and co-operation, in matters relating to war and peace, law and order, Church and morals, a certain authority and influence might be expected. On general regulations relating to the summons to arms and warlike expeditions, the leaders had neces- sarily to be consulted. A leadership, conferred by the fact of landed possession, was now enjoyed by the great Thanes, with their numerous retainers, trained to the use of arms. The rightful leadership, how- ever, was ascribed to the Ealdormen, nominated, for the most part, from that very class, or to the warlike high court officials, or to Thanes inured to war, and entrusted with high command. General regulations and changes in common law had, necessarily, to be deliberated upon by those who had the customary control of the courts. These were, again, the Ealdormen appointed by the King, and, in conjunction with them, the more distinguished Shire- gerefas ; but, apart from these officials, the great Thanes likewise, as lords in their own courts, also the great Thanes, independently of such offices, with jurisdiction over their own vassals. Church matters had necessarily to be advised upon with those who had the conduct of education and the 28 The Anglo-Saxon Gemotes. care of souls ; that is, with the Bishops named by the King, and, in conjunction with them, certain Abbots also, by reason of the flourishing condition of the larger monasteries. The larger landed possessions of the Prelates placed them, as a matter of course, on a level with the great Thanes, conferring on them, in conjunction with their spiritual dignity, precedence even over the lords temporal. The persons best qualified were selected for the continuous conduct of business. It was of urgent interest to the Crown itself to allow persons to take part in such proceedings who were estimable alike for their counsel and energy ; and as a participation in the assembly was a very burdensome duty, there does not appear, in historical records, any trace of a contention for a claim to any such summons ; on the contrary, a considerable portion of the summoned must, at all times, have devised grounds for being excused from attendance. From these considerations the statements may be understood which bear upon the persons composing the National Councils. But it should be again re- membered, that the clerici charged with the drawing up of the records have oftentimes translated into their own Latin, and with arbitrary variations, the names of offices, and the rank of the persons con- cerned. For instance, in a full national assembly, held at Winchester in the year 934, there are de- scribed as being present the King, as well as four Chiefs from Wales, two Archbishops, seventeen Bishops, four Abbots, twelve Ealdormen, fifty-two Thanes {ministri), in all, ninety-two persons. The greater number of extant records bear a smaller Character of the National Council. 5 9 number of signatures, those especially dating from the earlier centuries, previous to the union of the monarchy, and also those of later times, when National Councils were often summoned for special parts of the kingdom. The number of the signatures would, on an average, be smaller than the number of those taking active part in the proceedings, inasmuch as after those of the greater officials further signatures were regarded as unnecessary. Characteristic in this respect is one record, dated 855, running thus : " In the presence of, and with the signatures of all the Archbishops and Bishops, of the King of Mercia, of King Edmund of East Anglia, of the Abbots and Abbesses, of the duces, coDiites, and proceres of the whole land, and of an ' innumerable throng ' of other lieges who have all acknowledged the Royal decree, but to which the holders of offices of dignity {dignitates) have appended their names." In another record it is said that all the foremost persons of the kingdom have undersigned ; and then follows : — the King, two Archbishops, the Queen, eleven Abbots, nine Ealdormen {duces), and twenty-six Thanes {tnilitcs) ; and so with numerous other records. The accounts referring to later periods have led to much error in respect to the Anglo-Saxon National Council. It is sometimes spoken of as a House of Lords, sometimes as a House of Commons, although in reality it was neither, and least of all an assembly voting the public imposts in the later sense of the term. No mention occurs of the representation of an here- ditary class, for the privileges attached to great landed estates seldom evolve this idea of an aristocracy by ^o Tlie Anglo-Saxon Gembtcs. birth before the sixth generation. The Anglo-Saxon period recognizes such a position only in the nearest members of the royal household {A thelingi,^thelingas). Nor is there any representation of a well-defined class of great landowners. The combination of high office with the possession of large estates is doubtless already an accomplished fact ; but the two functions are not yet legally connected, not yet so conditioned as to give the landowner a right to the enjoyment of any public office. Nor in the Witenagemote is there any mention of representation by election, for ecclesiastical dignities, Thaneships, and offices of Court did not rest upon popular election. Least of all is there any trace of a borough repre- sentation, for the walled towns (burhs) were still fully comprised in the Shire organization, and, at most, placed under the administration of a special burgh- reeve. From the style and manner of the Public Records, it is at once evident in what sense such assemblies were regarded as a representation of the whole nation. It is the powerful influence and recognition of personal worth that determines the temporal commonweal of the Germanic people throughout mediaeval times, and this also explains why, down to the close of that period, there is no question of counting the votes of majorities and minorities at elections and public deliberations. It was regarded as a matter of course that in the battle-field the captain should fight at the head of his men, and that the others should follow him ; and that in the judicial assemblies a recognized expert in law Constitution of the National Council. 31 should draw up the formula. Still more circumscribed was the circle of those who in the Shire Courts had the right of moving resolutions. In a still more marked degree the privilege of proposing and supporting measures in the great National Councils was left to the recognized authorities in ecclesiastical, military, and legal afitairs. All this is but a return to the old mode of procedure in the district assemblies of the civitates as described by Tacitus : — " The eldest {princeps) opens the proceeding ; then each man speaks according as distinguished by age, family, renown in war, or eloquence. No one com- mands, only the personal dignity residing in him exercises its influence. No distinction of rank exists. The assembly determines, and its determination is law. Proposals when deemed acceptable are hailed with loud acclaim and clash of arms ; a loud dis- senting shout rejects what appears unacceptable." Despite all transformations in State and Society, this old procedure of a warlike popular assembly continued in force in the councils of nobles in later centuries. The freeman never renounced his right to take part in the general deliberations. Nowhere has a decided limit been set to such participation by the formulating of any law {census). But the circle of those " distinguished by age, family, renown in war, or eloquence," had become gradually narrower and narrower, the more the import- ance of the higher offices had increased throughout the kingdom, the more the ascendency of the wealthy classes made itself felt through the increasing inequality of their holdings, the more this superiority itself became enhanced by the connection of office with property 32 Tlie Anglo-Saxon Gemotes. necessitated by the rude economic system of mediaeval times. This process ranges through every connecting link existing between State and Society. Already in the narrow circle of the Hundred-court, in which the daily interests of the smaller free com- munity were still indirectly determined, and in which they still took part, according to their powers, judg- ment was left to a still narrower circle of experienced and elderly residents (Witan), who by their habitual attendance had become the interpreters of the custom- ary law. The others stand around as " bystanders " {Umstand), and ratify the sentence by signifying their approval ; but they also at times still dissent, and by such dissent compel the introduction of other arbi- trators. In the later forms of appeal this original relation continues in force. In the wider circle of the Shire-court there appears usually only a small group of large landowners, and of local officials and freemen especially summoned to the assembly. Hence here also the casual "bystanders" from the neighbourhood retire still more into the background. This predominance was intensified in the national Witenagemot, to which were specially summoned the chief landowners, the highest function- aries of Church and State, by whose side the attendant inhabitants of the district constituted a mere group of bystanders, who could take but a passive share in the special objects of deliberation. There are thus to be distinguished two circles, the narrower being formed of notables, whom the King summons by name, and who are recognized from the signatures. On the spiritual side these signatures are Constitution of the National Council. 33 always those of the Archbishops and Bishops, a number of Abbots, occasionally a Deacon also, and other eccle- siastics of lower order {ordo\ holding important posi- tions as notaries or otherwise. On the temporal side are always comprised the Ealdormen, by the record- ing clerks capriciously designated as duces, principes, coniites, prcvsides, 3.nd so forth; then the great land- owners renowned in war, frequently invested with high ministerial functions, according to which they are wont to be diversely entitled dapifer, pincerna, discifer, procurator auJce, aulicus, palatiiius, and so on. With these are not unfrequently grouped members of the royal family, regina, regis propinquus, and the like. Then follow, as forming a subordinate division, and usually in large numbers, the Sheriffs summoned to the Council, and other Thanes filling offices of trust, and more summarily grouped as ministri, milites, etc. The wider circle is constituted by the numerous retainers of Prelates and Thanes, the parties and witnesses to some judicial inquiry, as well as the lesser Thanes and freemen coming from the neigh- bourhood, who, according to the nature of the locality, and the time of holding the assembly, often appear in considerable numbers. But, being overshadowed by the assembled dignitaries of Church and State, by the great landowners and confidential advisers of the King, and, being rather casually present than by special summons, none of these could, as a rule, raise a claim to take part in the deliberations. As free members, however, of the National Council, and remembering the former participation of all freemen at the district assemblies, the "bystanders" would scarcely have 3 34 TJie Anglo-Saxon Gemotes. brooked being deprived of their right to greet with "acclamation" popular resolves, or even, at times, to signify their dissent. With reference to this often very numerous attendance, historians loudly proclaim such assemblies as assemblies of the people, placita imiversi popiili, placita oniniuni liberonnn ct Jiominuni, assisa generalis, and so forth, and it was in the very nature of things that, at serious and perilous con- junctures, much weight should be attached to the acclaiming of such "bystanders," on an occasion of the election or the coronation of a King. Even at the election of the Roman Emperor of the German nation, upon the right of election of the seven imperial electors being legally established, and in remembrance of very ancient traditions, recourse was had to the acclamation of the assembled people, after previous question was put to them, as to whether they accepted the new lord, and were willing to render him obedience. This accla- mation thus seems intelligible enough at the so-called "election" of the King, even after the hereditary character of the kingly dignity had long been settled. At the accession of Canute and the settling of the Danish royal family on the throne, this "acclaiming" is mentioned as being of great significance, and it would doubtless have a corresponding significance especially in cases of doubtful or contested successions to the throne. If, as often happened in the petty states before their fusion in the Heptarchy, there arose any strong opposition of the warlike nobles against the King, or in case of assassination, or violent usurpation, or on the extinction of one dynasty and establishment of another, then the consciousness was quickened anew of an PredoviinaJice of the Crozvn. 35 elective right pertaining originally to all freemen, a sort of reserved right inherent in the whole people to enthrone its own supreme magistrate. From solitary- revolutionary manifestations of this kind we are not, however, to infer the erroneous notion that the Witena- gemotes had exercised a constitutional right of elect- ing and deposing the sovereign, as has been of late set forth anew in the English constitutional history by historians of a certain tendency. The strong personal influence making itself felt in all such cases, resulted at last in creating the power- ful position and initiative attaching to the kingly office under normal conditions, wherever royalty was suffi- ciently developed. Hence in the flourishing period of the West Saxon kingdom the resolutions of the popular assembly scarcely ever appear otherwise than as acknowledgments of the proposals or resolutions of the King. What great personal qualities were, in such a position, capable of effecting for land and people alike is manifest, especially from the history of Alfred, the King of popular song, to whom a later age was inclined, in pious belief, to ascribe all that is great in the institutions and customs of the people. The consciousness of the blessing of hereditary monarchy for the well-being of the people had, in those happy times, become so ingrained that, even under incapable successors, such as the so-called six "boy-kings," the right of hereditary kingship was firmly established. Owing to the decline of personal leadership, the initiative in public affairs reverted to tutelary representatives, at one time some great 36 The Anglo-Saxon Gemotes. temporal lord, at another, some high Church digni- tary. The method of procedure then depended on the internal coherence, and on the unanimity of the assemblies of the great lords, the constitution of which became by degrees thoroughly changed under the baneful influence of the later incursions of northern adventurers, the so-called Danish hordes.* After diverse but mainly unfavourable vicissitudes in the field, the Danish settlers, on adopting Christianity, usurped in ever increasing numbers the high ecclesi- astical offices, while the valorous Danish Jarls cither retained their military rank at Court, or assumed the civic functions of Ealdormen. A severance of the popular elements in the National Councils, a strongly hierarchic and monastic tendency in the higher prelacy, developed under widespread degradation of morals, led at last to the rejection of the royal house of Cerdic, and to the elevation of Cnut to the throne. After his vigorous and powerful rule, followed by the short reigns of his two Danish successors, the Anglo- Saxon period was closed with the accession of Edward the Confessor, last lawful heir of the ancient Saxon dynasty. In this last century there was witnessed an aston- * The extraordinary attempt of E. J. H. Woorsaae ("An Account of the Danes in England," 1S52) to refer the national development of the English State system to the Danish nation- ahly is already discredited in England. Those Northmen who from the eighth to the eleventh century harassed Europe, were swarms of the great Teutonic combined race, which, issuing from Norway, Denmark, and Sweden, overran the Continent. The Anglo-Saxon population called them Danes, from the nearest- lying shores, without inquiring closer about the far-off regions whence they poured forth. The highest computation of the Northmen who settled in England amounts to some 2'-^/'^^<^/z'^'^(executive), intimately connected with the Criminal Courts, acquired, through the feudal system, and from practical necessity, an extension else- where almost unheard of in the Middle Ages. The tra- ditional right, originating from the ancient prerogative of war, to issue injunctions of peace (police ordinances), was strengthened by the new feudal prerogative. The responsibility of the " tithings," through \.\\e\r prcspositt, was rendered more stringent and strictly controlled by a yearly revision of the " frank-pledge " {viszis franc- plegii). The ancient system of arrest enforced by the Hundred in case of theft was revived, with the addition of imprisonment and fine of forty-six marks for secret murder, and these penalties were continually extended, their efficacy being due to a regulated system of police. The feudal system introduced military discipline, to which the ruler gave effect, in lighter cases, by infliction of fines levied on movables (^;;/^«^rt). The value of the movables thus forfeited was subsequently " redeemed" by grace and favour of the feudal lord {inisericordia, mercy), generally for a smaller amount, and in this form was known as " amerciamentuvir But the military power of the King being applicable directly to sub- vassals, and by analogy to all smaller occupants, this disciplinary right extended from the highest feudal lord down to the humblest villain, and in an indefinite num- ber of cases to the residents of entire Shires, Hundreds, The Royal Prerogatives. 55 and Tithings. Any one questioning the charge was so easily convicted by the court presided over by the King's commissioner, that the accused party usually preferred acknowledging the offence, and accepting the miser icordia so as to escape with a sHghter penalty. This procedure was completed by the feudal system of distress {distrietio), and the sequestration of the fief. This right of "amerciament" became the special instru- ment of the royal executive. Under such conditions it became possible to substitute this regal prerogative for the older decisions of the consilia optiniatum, and thus establish a system of absolute government by means of ordinances combined with the executive functions.* In addition to the traditional rights, the royal pre- * The system of civil fines (amerciaments), owing to the Httle dependence to be placed on the decisions of the courts, became at this period a matter of unlimited arbitrary dealing on the part of the civil authorities. They serve, in innumerable instances, in the carrying out of the criminal law, under the general heading of breach of the " King's peace," of disobedience to the King's commands {contemptus brevimn regis) for the punishment of every act of disobedience, and every irregularity in judicial pro- ceedings, any infringement of the rights of the King, and over- stepping of manorial jurisdiction, etc. It is a strange contrast, when compared with the condition of the Continent, to meet in England with temporal lords, Prelates, the City of London, and entire counties under penalties for five hundred marks, a hundred pounds silver, etc., amongst the Treasury accounts, by reason of some overstepping of authority or irregularity ; and even entire counties and boroughs placed under Royal sequestration owing to some failure in duty of their bailiffs, or to the non-execution of Royal mandates, and so forth. The power of "amerciaments " be- came the special instrument of the Royal right of ordinance. Vide on this important point, Gneist, " Engl. Verfassungsgeschichte," § II. The extraordinary Norman mode of dealing, according to which disobedience against the brevia of the duke was treated as treason (Brunner, " Schwurgerichte," pp 66-77), was not prac- ticable in England, where the leges Eduardi were valid, and because of the solemn assurance of the Charta of Henry I. 56 The Anglo-Norman " Court- Days." rogative in fijiancial matters comprised, consequent on the feudal system, the heavy fines on every change of ownership ; the " aids " traditionally afforded on occa- sion of dignities granted, or in cases of pressing need ; the revenues resulting during wardship, with manifold extensions consequent on fiscal " devices ; " as well as innumerable civil penalties and fines on account of royal grants and favours,* From the fines levied on vassals who were bound to military service, to the auxilia in cases of pressing need, it was inferentially expected as a duty, on the part of vassals not so bound, to pay auxilia or tallagia, according to an estimate made, at discretion. For the administration of the finance thus enhanced, the Exchequer was established as a permanent institution, combined with a body of clerks, a strict system of control over the accounts, and a stern disciplinary power over all the King's bailiffs. The combination of the Exchequer, Courts of Law, and police administration in the persons of the County-bailiffs, brought all the King's officials * On a level with the arbitrary dealing on the part of the administration, by means of the civil penalties, was the appli- cation of the endless fines which th^; Treasury devised with veritable ingenuity. Not only were fines payable for the granting of all kinds of liberties and franchises, but also for the renewal of the same, for their confirmation in case of dispute, for instance, for permission to propose to the Crown the nomination of a Sheriff or Mayor, or for permission to refuse any particular person. The boroughs in thiswise purchased the main ground- work of their self-government. Endless were the fines in legal proceedings for every act of Royal jurisdiction, and for every abatement in the suit ; fines for a favourable sentence, wherein the parties outbid one another, fines for merciful treatment, for the softening of the punishments, and for the detention in prison, fines for the granting of offices, guilds, and right of following a trade, etc. Vide " Engl. Verf Gesch.," § 12. Tlie Royal Prerogatives. 57 into permanent dependence on this general controlling power of the Exchequer. The Crown revenues thus gained in extent and expansive power, rendering them, fromafinancial point of view, independent of all classes.* Lastly, the royal prerogative over the Church, com- prised in the first place the traditional right of assent to clerical provisions, and to an active share in the appointment of Prelates. Herewith is found combined the duty of the ecclesiastical feudal estate to equip bodies of men for war according to the capitation of the fief, as well as payments of " aids," and, later on, the so-called " scutage." On the other hand, to the Papal See important concessions were made, by the adoption of the Roman Liturgy and Ritual, The rich endow- ment of the Church was not only maintained, but ex- tended by many new offerings, and by the foundation of monasteries. Lastly, ecclesiastical jurisdiction over clerics, and in regard to matters ecclesiastical, was recognized in all its traditional extent, and was now severed from the temporal jurisdiction. It is significa- tive of the legislative power possessed by the Crown at this period that this step was taken, towards the close of the Conqueror's reign, by means of a circular rescript * The official guide to the administration of the Exchequer, " Dialogus de Scaccario," composed by a Treasury official, Ricar- dus, filius Nigellii, subsequently Bishop of London (i 178), afifords proof of the early development of the scheme of administration, and is also a noteworthy document, as regards an official's view of the functions of the State, such as we should elsewhere look for in vain during the mediisval period. The optimism dis- played by the author, who in all existing institutions sees only the wisdom and benevolence of the ruler, is very characteristic, and is here found combined with a large measure of devoted- ness, in which may be recognized the grand-nephew of Roger of Salisbury, the renowned minister of Henry I. 58 The Anglo-Norman '' Court-Days^ addressed to the vice-comites ("Charters," p. 85), but with the assurance that it had been procured : communi consilio, et consilio episcoporiun, baromim, etc. These Royal prerogatives thus developed in every branch of the administration resulted in a concentra- tion of power in — IV. -THE CURIA REGIS AS THE CENTRE OP SUPREME AUTHORITY DURING THIS PERIOD. For such centralization the Norman feudal style introduced this expression, Qwia Regis, which, corre- sponding with the attitude of the Crown, may mean according to its various connections : — The Cicria in the sense of Norman " Court-Days." The Cu-ria in the sense of King's Court. The Ctiria in the sense of the King's Government. (i) Periodical '^Court-Days" were held on the three great Christian festivals, since the time of William the Conqueror,in substitution of the Anglo-Saxon National Councils, but with an entirely altered character, when the last Anglo-Saxons were thrust from high office and from episcopal sees, down to the close of the Conqueror's reign. With the actual system of Crown-vassalship, organized on a military footing, the Norman kings ruled the land by means of ordinances and letters of grace, leaving io\hebarojiesr\o influence except through offices and commissions held by them at the royal pleasure. In fact, no laws dating from the first century of this period are extant, which were framed with the free deliberation of the " estates," The so-called laws of William I. are simply proclamations, charters, and official notifications, as sufficiently indicated by the style : " The King wills, orders, commands." Under Tlie Curia Regis. 59 William II. no such ordinances are to be met with. Henry I. no doubt begins his reign with a charter promising great things, the gist of which lies in the words : — " I restore you the laws of my father, other- wise the laws of Edward, with such alterations as my father has made, with the consent of the ' Barons.' " But in the next following generations only single ordi- nances of the King are met with. The assumption of a legislative assembly during the first century of the Norman period is based upon an erroneous antedating of documents. But a wider survey of the new relation prevailing between State and Society is required to explain this phenomenon. (2) A Cnria Regis,m the character of a constitutional State tribunal, would have necessarily been bound up with a parliament, had such existed, in the sense of the Anglo-Saxon Witenagemotes. The King was certainly obliged to guarantee to his Crown vassals a judicium pariiim. But in this sense all the six hundred Crown vassals were equal before the law, and found their ordinary legal standing before the Royal vice- comes, in the county-courL There existed only a right of reservation to bring such cases before the curia; in other words, the King could, in important cases, name from the great body of the teneiites iti capite a special commission to declare the law. We find, in fact, the royal jurisdiction exercised only under the form of commissions, but even then only in reference to matters concerning the most powerful and highly- favoured Crown vassals, while ordinary cases were tried before the vice-comes and the Shire courts. In this combination, we may understand how, in England, 6o The Anglo-Norman ^^ Court-Days!^ the King's jurisdiction was able to extend itself beyond all the limits of the mediaeval constitution ; how even a direct exercise of justice by rescript could have arisen, and further, how this very personal character of the King's Court could be constitutionally main- tained for centuries as a Court of Law, " tibicunqtie fuerimus in Angiia." (3) Lastly, a Curia Regis, in the sense of a supreme department of State, might, perhaps, have developed out of a permanent feudal court, had any such existed in England. But as the " Court-Days " of the King were mere pageants, and as the royal jurisdiction was exercised by commissions, every element was lacking for a royal State Council, which, according to the administrative system of the Middle Ages, could not easily have existence. In the first century of the Norman period mention occurs only of a number of high officials, who stood in no corporate relation to each other, either as regards time or identity of func- tions. But the important offices bear altogether so much the character of dignities subject to revocation, while on the other hand the few hereditary oflfices discharge such unimportant duties, that a depart- mental organization of a standing character could in no wise be formed from them. Out of the relations thus constituted of ownership, of State and County organization, there was further developed the — v.— FORMATION OF ESTATES, SO indispensable to the right understanding of the legislative authority of the period. As distinguished from the Continent, the State power Tlie Crown Vassals. 6 1 in England was strong enough to keep the ecclesi- astical and temporal holders of office, the personal right to title, and hereditary right of possession, within their definite limits, thereby establishing the nobility and gentry on the footing of a privileged class as distinguished from a hereditary right, in the following degrees : — The dominant class of great Crotun vassals at the original partitioningafterthe Conquest, comprised those barons, especially, who already on the Continent pos- sessed the position of counts or seigneurs, with estates that amounted to from 40 to 800 manors. Considering the relatively small proportions of English Knights' fiefs, and theprogressive diminution of combined estates through sub-tenancy, it may be inferred that thesewere, from theoutset, smaller than thedukedomsand earldoms of the Continent. Still more significant was the dis- jointed position of the ownership, arising from the fact of their estates being scattered in different and widely- distant counties. The landlords were thus unable to consolidate themselves, as regards either time or place, since through the stringent law of" lapse " (from want of a feudal heir, or through forfeiture), the same estate often reverted to the Crown more than once in the course of a century. The peculiarity of such a develop- ment is founded on a difference of principle, inasmuch as the position of owner in England was not based on the French system of seniority (the transfer of the duty to render military service from the small to the great ownership), but on the civil protection of the Hlaford ; and on the fact that the Crown permitted no extensions of the manorial, civil, and criminal jurisdictions, or any 62 TJie Anglo-Norman " Court- D ay s^ privileged position before a Court of Peers, or any exemption from military service. It was thus based on a difference in the later development. Since Henry I., the great Bishop, Roger of Salisbury, is in some measure to be regarded as the originator of a new official nobility, whose prominent members not only thrust themselves into the episcopal sees, but also, through grants of estates and family alliance, into the higher nobility. Such, for instance, were the Bassets, the Clintons, Trussebuts, and others. Owing to un- successful attempts at revolt, the great nobles of the conquering host had already at the beginning of the twelfth century been forcibly dispossessed of their original estates. Under Henry H., the official nobility of recent growth appears to have already comprised a majority of the great lords, whose descendants took the lead among the Barons at the time of Magna Charta. Hence it was that in England the striving of the ruling class for a secure position took the direction rather towards participation in the highest Council of the Crown than towards the foundation of independent lordships. Such participation could be confined only to the eldest son. In like manner the heavy burden of military service and of taxations, led to a narrowing of the right of precedence to the firstborn, and thereby laid the foundation of the hereditary peerage, which arose in later times. The second class of the population comprised the smaller Crown vassals, in their gradual fusion with the snb-vassals. The smaller Crown vassals, as thus defined, were distinguished from the great vassals not by the tenure, but by the extent of their possessions. The Stib-Tcnentes. 63 They also held their fiefs directly from the King, and were qualified, as rightful members of the Curta Regis, to sit in judgment on any Crown vassal, whenever summoned for the purpose. Many found in influential offices of dignity a position corresponding, even outwardly, with that of the great vassals. The large number o{ sub-tenentes (j,?,yi) in Domes- day-book were, on the other hand, mainly Saxon Thanes and " free " retainers, amongst whom a formal sub-infeudation appears to have been but slowly developed. Sub-infeudation being now the only admissible form of transfer for a fief, there were numerous cases where Crown vassals became at the same time sub-vassals in some newly-acquired estate. Even the holders of the largest fief and prelates themselves did not disdain becoming sub-tenants to other lords. The relations of ownership became thereby, especially after the Crusades, so involved, that the idea of a subordinate position arising out of sub-tenure necessarily lost much of its force. The formation of an exclusive class of knights had, meanwhile, rendered the knightly dignity a common bond of union for all vassals bound to military service. All priority in rank of the smaller Crown vassals over the sub-vassals even became ever more doubtful, the more fresh purchasers acquired possession of the small Crown fiefs with the consent of the King. Acomparison with the Continent shows, that the decisive point in this regard lay in the fact of the transference and partitioning of the military fiefs. In England the inalienability of the fief could not be practically upheld, because the feudal bond had been extended over the 64 TJie Anglo-Norvian " Court-Days!' entire ownership of the land. The transference was further developed by reason of the fiscal principles held by the Exchequer, to which every purchaser capable of paying was equally acceptable ; and further, by the facility of obtaining by a fee the King's consent to every possible kind of transaction. The time of the Crusades especially gave rise to manifold and comprehensive transfers, mortgages, and parcellings. At the close of the period the two classes thus became moulded into a single class of knights ; and already, at the beginning of the next epoch, the statute quia emptores enjoined that, on every alienation of a fief, the new possessor should become a direct vassal of the Crown. The majority of the remaining free occupants and predial holders seemed, from the standpoint of the Norman nobles, to be merely " taillable," a kind of adjunct to the soil. Owing to the organization of the local jurisdiction, the ceorls, or villani, became still further degraded, taking in relation to the landowner a somewhat precariousposition, without any safe-guarded right of possession. In respect of this lowest social grade the Crown abstained from interfering with the manorial rights, such as had also on the Continent created a servile peasantry. The insolence of the feudal classes bound to military service had collectively grouped together the lowest holders, the Court peasants, the lackland and bondmen, under the opprobrious designation of " villains." Those some- what better situated are, on the other hand, inscribed in Domesday-book under the ndiVaQ o[ " liberi homines,'* *' sochemanni," and " btirgenses." Many amongst these Disappearance of the Witenagemotes. 65 had been ancient allodial owners, who were now, how- ever, more and more subjected to the burdens of the feudal system, according as the deduction became more evident that even this ownership could be acquired only by redemption, that the small owner had to bear the burdens of vassalage, the Saxon the burdens of the Norman. For many generations the arrogance of the military vassals must have weighed heavily enough on this third class. But what exercised most influence on future progress, was the fact that during these centuries the royal power prevented the rise of any hereditary or permanently ruling class, so that the advancement of every class to the higher grades of Society remained open alike to all. Important for the further development was also the circumstance that, in connection with the fiscal system of the public administration, the principle of exemption from menial service and payment in kind had been intro- duced since the beginning of the thirteenth century. From all the relations as here set forth we arrive at the now sufficiently intelligible result : — VI.— THE TRANSFORMATION OF THE ANCIENT WITENAGEiiOTES INTO THE NORMAN " COURT-DAYS," as merely consultative assemblies of notables, com- bined with the disappearance of all previously existing conditions on which the power of the Anglo-Saxon Witenagemote formerly depended. The nullity of all parliamentary institutions without that coherence planted by State and Church in social life was made surprisingly evident during this period. Such coherence still doubtless pervaded the Anglo- 5 66 The Anglo-Norman " Conrt-Days.^* Saxon population from the lowest to the highest, in Shire, Hundred, and Tithing alike. But these elements lacked a rallying point and leadership after the great lords and prelates of Anglo-Saxon stock had been more and more thrust aside from the King's surround- ings. Nor was there a capable pretender to the throne at that time forthcoming from the ancient national dynasty, so that the desperate revolts of the Anglian population in the north all ended in failure. The crafty Conqueror knew well how to deal with such isolated revolts of the people, and from that time forth the ruling dynasty found a reliable support in the Anglo-Saxon element against the rebellious Norman lords, as against a common enemy. By his marriage with the heiress of the ancient Royal House, Henry I. was able to turn this support to lasting account. The Norman elements also were, from the outset, deficient in such coherence. It was not the migration of a whole people that had achieved the Conquest, but a loose throng of nobles thirsting for land, of fol- lowers and mercenaries eager for plunder, many of whom soon withdrew to their homes on the Continent. The great nobles who remained with their retainers spread rapidly over the newly-gained land, while in the general confusion armed freebooters took posses- sion of certain estates on their own account. The r\nmQYOUs"invasiones" noted in Domesday-book have reference to such forcible possession, without " breve" from the King. The sentiment of allegiance appears to have been but slowly developed, even among the medley of races that had settled in France itself, where the history of Normandy and the southern provinces Heterogeneous National Elements. ^y presents rather the spectacle of a shifting struggle constantly going on, with numerous revolts against the feudal lords, treason amongst those who were next- of-kin, and, now and again, desperate uprisings of the down-trodden peasants. Similar experiences were encountered by the new dynasty on English soil. Already in the year 1074 the great lords had forfeited their vast estates, in consequence of an unsuccessful rebellion, while, after repeated partial revolts, the general uprising of 1073-4 was followed by the result that none of the great barons found themselves in undiminished possession of their possessions, as originally acquired at the Conquest. This deficiency of coherence was most sensibly felt between the lords and their followers from the Con- tinent on the one hand, and the native population on the other ; or, to employ the language of the records, between the Francigence and Angli. According to the proclamations of William and his successors, both races were to possess equal rights, and this " equality," as a principle of government, was always adhered to. But, in social intercourse, the Francigence considered themselves, for a long period, as the conquering and ruling race, and in all the relations of ownership they had, in fact, become the dominant class after the last Saxons had been extruded from the great fiefs and the high offices of the Church. Amongst the lower vassals, the Norman troopers and the Anglo-Danish Thane remained about on a level. But the Thane on his ancient patrimony must have submitted with the greatest reluctance to the grasping Francigence ; and still more hated by the population must have been 68 TJie Anglo-Norman " Court-Days" the foreign petty nobility, which began to spring up from among the followers of the FrancigencB — a riff- raff of troopers and peasants, who had now become landowners on English soil : " uncouth upstarts, half- crazed through their sudden elevation, themselves wondering how they had reached a height of pros- perity, and thinking they might do anything they liked" (Ordericus Vit, II., cap. 8). Of any bond of mutual loyalty within such a class of vassals there could obviously be no question during the period following the Conquest. In much the same position stood the ecclesiastical section of the community after the Saxon had been ousted by the foreign prelates, who, by addressing clergy and people in an unknown tongue, contributed their share towards the general corruption of the national speech. This internal dissolution of all moral bonds deprived the great vassals of their hold on their inferiors. The nobles summoned to Court were doubtless owners of nearlythe samelanded estates asin Anglo-Saxon times. The wealthiest and most sumptuous in Christendom was also this Court itself, which was attended from time to time by numerous and brilliant cavalcades of Norman Lords and Prelates, followed by their sub- vassals and retainers. But these Lords and Prelates lacked what conferred political power on the French and German nobles — a firm hold on their sub-vassals and tenants. At first also the higher clergy lacked even that bond of sympathy with the lower clergy and people, which was not restored till later times. The policy of the first three Kings of the Norman dynasty corresponded with this state of things. They The Customary Court-Bays. 69 had to be prepared to meet attempts at resistance on the part of the new order of great vassals, a want of discipline being inherent in all feudal military systems, and even on French soil they had already had sinister experience of the fealty of their vassals. Hence for the maintenance of their authority they put their trust at all times in impregnable strongholds, numerous mercenaries, and the largest revenues they could raise, thus aiming, as during the later ancien regime in France, to make up for the lack of political power by the splendour of their surroundings. Hence from the first the Conqueror affected a marked love of outward pomp. *' Thrice in the year he wore his crown, when- ever he was in England ; he wore it at Easter-tide, in Winchester ; at Whitsuntide, in Westminster ; at Christmas, in Gloucester. And then were present all the great nobles of the whole of England, Archbishops and Bishops, Abbots and Counts, Thanes and Knights." This statement of the Saxon Chronicle, diversely re- iterated by contemporaries, forms the central point of what is known about the Curia Regis under the first reigns. At the same time it is recorded that even in Normandy the Dukes already held triennial Courts at Easter, Whitsuntide, and Christmas, combining with them fiscal and judicial business. Hence in England also such assemblies were called the "Customary Court Days," curia de more. The summons to Court was addressed to nearly the same Prelates, Counts, Court functionaries and lords, as to the Anglo-Saxon Witena- gcm6tes. What was wanting, however, to such Court Days, was a real control over affairs of State. *' The Royal order," says William of Malmesbury, "summoned 70 The Anglo-Norman " Court-Days^* to the au'ia de more all the nobles, so that the am- bassadors of foreign nations might wonder at the splendour of these assembled throngs, and the pomp of these festivals." So far as names and forms are concerned, the most recent describers of this period might no doubt be justified in regarding these court days as the substitutes and successors to the Witena- gemotes ; in fact, no express alteration of the State structure had been accomplished. Both sections of the population alike recognized from the earliest times only one ruler, surrounded by a dignified consilmm optimatitm. But the preliminary conditions which gave weight to the voice of these great nobles, and the great events which had transformed them into deliberative assemblies, with determining voice, were entirely changed in all three spheres wherein the decisions of the Anglo-Saxon National Councils had a different significance — that is, in the legislative, administrative, and ecclesiastical departments. As regards the /^ty.f bearingonjurisdiction, the Norman Kings were made aware that not by mere ordinance could they alter, or set aside, the national maxims of law. In the legislative departmejtt the Norman Kings could not certainly set themselves above the national legal maxim, that the lex te7'r<2 could not be altered by the mere fiat of the sovereign. Charlemagne himself had not ventured so far in the face of his vanquished Teutonic tribes. But even the carrying-out of that prin- ciple became practically impossible from the moment that two distinct national elements, with different laws and procedures, stood side by side in the enjoyment of equal rights. For the Norman Crown vassals, the Nominal Retention of the Old Law. 71 common law previously existing in England was not "their" law, while for the Anglo-Saxon Thane, the sur- roundings of the Norman King in no way represented "their " National Council. The two nations laid claim to a continuance of their own native law ; but from the intermingling of the two sections of the population, the position of the Crown, in the character of an umpire court, seemed as inevitable as it was indispensable. A decision by majority of votes had from the outset been wholly foreign to both assemblies, and from the nature of the case had now become inadmissible. Respecting the assurance that to the Anglo-Saxons their ancient law, the so-called leges Eduardi, would be maintained, the King might doubtless take counsel with his Norman Barons ; but the lawful successor of Edward could not make that ratification dependent on their concurrence. The same position was repeated in the numerous further conflicts in which the King doubtless took counsel now with one, now with the other section of the nation. The decision, however, had to depend on the King, and this position necessarily lastcduntil a substantial blend- ing of the two national laws was effected. Under such circumstances the legislative were silently transformed to mere consultative bodies. But in these transitions towards absolutism the old forms may often be retained for hundreds of years, as is best seen in the history ot Rome, and of the ancien regime in France. And this was precisely the case with the Anglo-Norman period. The national legal assumption, that for the changing of the common law a co-operation of the meliores terrce was needed, was set aside by no distinct constitutional measure. But it remained with the King to decide for 72 The Anglo-Norman " Court-Days'^ himself as to what body of advisers he would consult. No one had the power to determine the selection of these optimates, no one had the right to decide whether or how the lords were to be consulted, or how far their counsels should be followed. The documents bearing upon these deliberations were kept amongst the King's archives, and it was not for several generations that, under the pressure of more powerful " estates," these records were drawn up in set form and duly registered, so as to secure their authenticity. While Anglo-Saxon times have left us a large number of decisions of Witen- agem6tes,with the carefully-appended signatures of the principal parties, the only extant document recorded with like care in Norman times, is the proclamation issued at the beginning of Stephen's reign, precisely because the " estates " still lacked a constitutional right to control the legislation. Thus is explained the occa- sional occurrence at this time of the formula " consensit baromim meortim," which crops up whenever there is any question of fundamental changes in the inherited common law. The Charter 4 William I., extant only in a mutilated form, wherein the Kingconfirms and modifies the laws of Edward the Confessor, probably contained the same formula. At any rate, in the subsequent Charter of Henry I. it is distinctly stated that those additions were made by his father with the consent of the Barons, " conseiisti baronnm." An essential altera- tion in the common law was certainly also involved in the ordinance of William I., separating the spiritual and temporal jurisdiction ; hence the special introduction of the words that it was done : comimmi concilio et consilio episcoporum et omnium principiim regni. The formal Changes in the Common Law. 73 character of the clause is sufficiently evident in both of these leading events. No ordinances with such clauses are at all met with in the reign of William II., while the solemn charters issued at the accession of Henry I., Stephen, and Henry II., mention a consent of the optimates, for the obvious reason that in these cases there was question of a usurped and contested succession ; and even here the formula remains a mere spontaneous or voluntary assurance. The first approach towards a seriously intended assent occurs under Henry II, in the assembly of notables, at which the Assizes of Clarendon and of Northampton were resolved upon. But these indications also again dis- appear, and under Richard I. and John nothing occurs except revocable charters and orders. In reciprocal relation to this inner dissolution of the legislative assemblies stood the severance of that regular connection of the judicial proceedings with law-giving, which was customary in the Anglo-Saxon Witenagemotes. The right reserved to the King of appointing a jiidicmm paritim for Crown vassals now took the form of a commission nominated by the King, or which might be nominated at the King's Court, or on occasion of court days, as no doubt sometimes happened. But in the very causes cilebres mentioned by historians facts and circumstances of a complicated nature were involved, which had to be determined on the spot. Hence the King enjoins the holding of a Court in the respective Shire, nominates a Prelate, or a great vassal, as his repre- sentative {justiciar), in conjunction with a fitting number of Crown vassals, for the discharge of the 74 The Anglo-Norman " Court- Daj/s." " finding," and the co-operation of the " Men of the Shire " to decide upon the facts of the case.* From the outset the second branch was of an entirely different character. The participation of the National Council in what is now called " the admini- strative measures" and in the most important State proceedings, had been throughout of a relative kind, dependent on the times and the conditions of power. Owing to the expansion of the kingly power, the urgent motive for any such participation had now been removed. In the military department, the personal summons of the King had taken the place of the decisions of the National Councils on questions of war and peace. The feudal levy was no general call to arms, but a body of men summoned by the feudal lord. The vassals rendered service, intra et extra regnum, on personal summons from the feudal lord, under penalty of losing their vassalship, or of incurring heavy fines. Only a century and a half later, after Normandy was permanently severed from England, could the ques- tion again rise as to whether the feudal militia was bound to serve beyond seas. As regards the province of law, the Anglo-Saxon Kings had already exercised a right of issuing " ordi- nances," so far as the administration of justice was concerned, though not where there was question of * The researches of the Lords' Committee possess the rare quality of critical investigation of original records, combined with due acquaintance with just conceptions of State Law. Never- theless recent historians and essayists still harp upon the notion of a distinct class of Crown vassals vested with legislative power. Changes in the Exeaitive. 75 any fundamental change in the jus ierrce. The Norman Kings, in their character of supreme arbi- trators, could recognize no such distinction. Hence a number of most important rescripts, relating to criminal and civil jurisdiction, were issued at this time, under the shape of simple ordinances, orders to Royal councillors, and official instructions to the itinerant justices, and to the vice-comites. In the executive department connected with the maintenance of public order the Anglo-Saxon Kings had already been accustomed to issue special police regulations, for which they sought the assent of the Witan merely with a view to their more ready exe- cution. The Norman Kings kept so tight a hand over their vice-comites, gerefas, and itinerant justices, that no such ratification was needed. The system of the Anglo-Saxon "pledges" (surety of the landlord for the tenant, and of the district civil officers for the villains) was, therefore, enforced with unmitigated rigour by means of "fines." The further exaction of a murder-penalty, amounting to forty-six marks, for every murdered Norman, was an innovation against which the Normans had certainly nothing to object, while the Anglo-Saxons were unable to object at all. The periodical holding of general Police-courts by the Sheriffs (Sheriffs' tourn), and the periodical revising of the residents' list (view of Frank-pledge) were also grounded on Royal ordi- nances and official regulations. In the same way the extension of the criminal jurisdiction by means of the so-called placita coronce was derived directly from the prerogative of the King, as ^' conservator pads'* ^6 The Anglo-Norman " Court-Days^ Lastly, in the province of finance, the King no more needed the assent of the Normans in respect of the ancient revenues of the Anglo-Saxon Kings, than he did that of the Anglo-Saxons, in reference to the new feudal revenues. The " Dane-gelt," which had been introduced in the last century of Anglo-Saxon times in cases of emergency, was still occasionally levied in times of real pressure, according to the measure of plough-land, yet with numerous grounds of exemption, in consequence of which it seemed unsuitable for a normal system of assessment. But the main point was that the new revenue from the feudal organiza- tion flowed in abundantly, and that, from the prevail- ing notion of the land being held under the Crown, there was further derived the principle that even those persons otherwise exempt from scutage were bound to contribute " aids " {tallagia, anxilid). For genera- tions to come the ordinary needs of the Crown were thus amply provided for. Only a century later, when vassals liable to service in war were subjected to the so-called scutage-money {saitagid) in lieu of feudal service, the constitutional question arose as to whether the King might, by personal ordinances, change the legally established feudal relations, whereby the dawn- ing of a right of taxation first made its appearance. If in this sphere there was occasionally or incident- ally any question of a co-operation and assent on the part of the Prelates and great Lords, and sometimes even of other classes, such were purely exceptional cases, in regard to which even in Anglo-Saxon times great weight was already attached to the "acclamation " of the " bystanders," as, for instance, on a coronation Severance of Chicrck and State. yy or disputed accession to the Throne. But it so hap- pened that during the first century of the Norman period all cases of succession to the Throne were irre- gular and open to dispute. Hence it was that William Rufus, Henry I., and Stephen took care to have their more than doubtful title to the Crown in all haste solemnly confirmed by their adherents among the prelates and vassals, and acknowledged with the public acclamation of all present. They, moreover, caused these proceedings to be recorded as acts of State, transacted "with the consent of the assembled people" {consens7i omnium episcoporiun, haromim et universi popiili), as had been customary in Anglo-Saxon times, in virtue of the already mentioned popular right tacitly reserved for cases of emergency. But from all this no inference can be drawn as to the existence of an elective monarchy in Norman any more than in earlier times.* Lastly, the participation of the National Councils in ecclesiastical legislation assumed a modified character owing to the " separation of Church and State," which now began to be accomplished. The Conqueror had every inducement to meet this natural endeavour on the part of the Church to secure its own governance. For after all the sanction of the Pope still remained the only incontestable title to the Crown, while the lower clergy was the class who largely influenced the * The very vague and arbitrary designation chroniclers assign to assemblies of the most diverse character {concilia, conventiis), the statement that the King, on the occasion of such an assembly edicta proposidt (1107), or that he, on another occasion, viagi- stratus arcessivit, may just as well be understood as referring to ordinary as to extraordinary "Court-Days," or to the summoning of the Sheriffs in the Exchequer, and proves nothing whatever as to the existence of a Parliament with legislative functions. yS TJie Anglo-Norman ^^ Court- Day s^^ obedience or resistance of the masses. Hence such concessions were at once made by the Conqueror as, according to Anglo-Saxon relations, could be made without consent of the optimates. England accepted . the Roman liturgy, and conformed to the ritual observ- ances of the Roman See. The lavish endowment of the Church with estates and tithes was not only main- tained, but extended by further gifts and numerous monastic foundations. But the separate administration to which the spiritual order now aspired, necessarily involved a total withdrawal of the ecclesiastical from the temporal jurisdiction. The hitherto established co- operation of bishops and ealdormen in legal tribunals common alike to clerics and laymen, was opposed not only to the spirit of Roman Church discipline, but henceforth also to the interests of the secular order as well. Since the Conquest, the Earls had been removed from the conduct of the County Courts, so that a co- operation of the Bishop with the Shir-gerefa could no longer prove acceptable to either party. Hence the separation, which under such circumstances could not fail to be popular, was proclaimed, ostensibly consensu optiinaticniy by the above-mentioned circular rescript of William I. But a far-reaching consequence of these changes was, that in its legal decisions the spiritual order appealed, not to the common law, but directly to ecclesiastical right {leges episcopales), that is to say, to the canon law, the decrees of Councils and Papal decretals. There thus arose a comprehensive civil and criminal jurisdiction independent of the State, as well as a superior control over the whole spiritual order, which could not fail to bring about a conflict of Changed Relations to the CJinrch. 79 authority with the temporal power. Under Henry I., as later on by the Calixtine concordat in Germany, the vexed question of episcopal investiture was settled by the compromise that the Pope imparted spiritual power by ring and staff, the King temporal power by infeudation with the sceptre. Although right in theory, this compromise had very soon the effect in Germany, that the curia, with its harmonious and expeditious administrative system, took precedence of the cumbrous and disunited State authority, thus usurping a decisive influence in all nominations. If this result did not at once follow in England, the determining cause lay in the fact that the Anglo- Norman Kings enjoyed all those administrative powers which the German emperors did not possess. The Conquest had given William I. a feudal supremacy, in the fullest degree, over the greater ecclesiastical pos- sessions. No doubt the degrading fiction of a " Re- demption" could not be extended to Church property, and the Church had to be exempted from a presumed participation in "Rebellion," and from a consequent forfeiture of ownership. But the powerful position of the Conqueror in respect of his Norman chaplains, whom he, by grace and favour, had named his Pre- lates, was, with few exceptions, sufficient to carry out, in principle, the subjection of ecclesiastical property to the feudal military service. The problem of the equal apportionment of the war-burden, by which the later Anglo-Saxon military system had been hampered, seemed thereby solved, and it now became a matter of primary importance for the temporal vassals to insist on the great ecclesiastical possessions continuing to 8o The Anglo-Norman "Court-Days** take their full share of these feudal obligations. On this point the Crown found the whole body of temporal vassals always on its side. It was consequently able still to enforce the mustering of the levies in due pro- portion to the extent of the ecclesiastical estates, the fulfilment by Churchmen of their feudal services, their attendance as legal functionaries at the feudal tri- bunals, as well as the punishment of felonies by feudal penalties, and sequestration of their feudal revenues. To all this was added the unlimited power of the King over his legal representatives, the vice-comites and \ovj&r gercf as ; and as in case of need these had to lend a strong hand to the Ecclesiastical Court, there followed the contingency of such support being withdrawn in case of conflict with the Crown. But above all stood the unlimited executive power of the Norman Kings, a power which with its fines and penalties was also exercised over the spiritual order. Hence, notwithstanding his concessions to the Papal See, William I. still felt himself sovereign lord even over his ecclesiastical subjects. Even a Papal remon- strance (1079), to the effect that (i) the Peter's-pence had not been punctually paid, (2) that William had not yet acknowledged the Pope as his feudal lord, was met with the somewhat curt rejoinder of yes to the first and 110 to the second point {imiim admisi, alteruin no7i admisi). Nor would the Conqueror tolerate any pro- visions of the clergy in their synods in opposition to his pleasure. Without his sanction no officer of his should be excommunicated by the Church, no Papal legate without his permission set foot on English soil. Nevertheless, this "separation" of Church and State hivestitiire. 8i engendered an antagonistic relation, Icadingtoexcesscs now on one side, now on the other, which, although settled by compromise, still led to fresh conflicts on other points. Being compelled by his usurpation of the Throne to rely on the support of the Church, Henry I. speedily removed all real grievances, wisely and worthily keeping within the limits of the sovereign power. But under Stephen's usurpation, reckless acts of violence on the part of the Crown were followed by bold encroachments of the Church, insolence of Papal legates, arbitrary promotions of alien clergy to episcopal chairs in England, a growing practice of appeal to the Bishop of Rome, and so forth. And on the restoration of the Royal prerogative under Henry H. there ensued a still more open rupture between the two estates. Under these conditions a chief object of the com- promises was the investiture of the prelates, and especially the appointment of the Primate of Canter- bury.* The schism among the clergy, which had come about in the reign of the Conqueror, owing to the nomination of foreign bishops, had meantime gradually disappeared. The long-continued opposition to the introduction of celibacy, the ill-will manifested towards the Papal legates, and against the filling up of * The obscure and much-controverted question as to the election, or appointing, of Bishops and Abbots, is no doubt to be explained by the fact that, according to time and place, certain differences prevailed. The election, which was originally exer- cised through clergy and laity, naturally led in this respect also to an early ascendency of the ecclesiastical Wit an, who, as in- structors and guides of the community, submitted the most authoritative proposals, which, thereupon, found acceptance through a " general acclamation." With the development of the royal power, there came into play an overruling influence of the 6 82 T/ie Anglo-Norman " Coin't-Days." benefices with foreign clerics, clearly explain why the English clergy themselves were disinclined to see the bishoprics filled through the intervention of the Papal authority. Deference for the views held by the clergy had naturally the result that the King, on occasions of the "Court-Days," or at the clerical synods, gave heed to the Prelates, and occasionally also to the lords temporal. In this way mention frequently occurs of a " conciliiint" or " cojtsilinm^' on occasion of the nominations, without, however, leading to the inference that there was any right of free election. In a word, these vicissitudes make it evident that even in the sphere of ecclesiastical legislation, no scope had been left for any decisive co-operation on the part of the National Council. Hence the general inference that during the first century of the Anglo- Norman time, a " Witenagemot," possessing a deter- mining power, and having a constitutional right of signifying assent, had altogether ceased, however much this may seem in contradiction with the opinions hitherto obtaining in England. In later times the Norman "Court-Days" became, from different points of view, the subject of party con- tention. During the Stuart period, it was considered important to oppose to the exalted claims of the jure Crown as regards the large possessions and the extensive rights for which the Church was indebted to the King. The decisiv^e influence of the Crown is especially to be recognized in the ap- pointment to the Archbishoprics and Bishoprics, which had been transferred to the Royal cities. With the strengthened power and feudal predominance of the Norman Kings, such influence may be said to have been exercised by way of right of appointment. A right of confirmation was reserved even by King John's Magna Charta. Heraldry. %i divino monarchy a Parliament possessing at least as high and ancient a claim. No less an object of special interest for the art and science of heraldry were those Parliaments-in-arms, with their glittering array of shields and scutcheons, and shows and pageants ; for it was the business of the heralds' office to discover an ancestor for the newly-created lord, who had been something more than a mere holder of a Knight's fief, or of a freehold, in order to be fittingly planted at the root of the genealogical tree. The parliamentary factions of a later date were chiefly interested in possessing some such heraldic tree. A view, widely held at the time of the " Reform Bill," in 1832, aimed at showing that the Norman monarchy was altogether of a parliamentary or constitutional character. An essay by Allen {Edinburgh Review, vol. xxxv.), which at the time met with general acceptance, endeavoured to prove that " the name, and probably also the con- stitutive elements, of the Anglo-Saxon 'assemblies of the people,' were completely transformed on the advent of the Normans ; but that their powers remained distinctly the same, and have continued even to the present Parliament." * * The notion which antiquarians hold, as to the existence of a feudal representation in Parliament, has altogether over- looked the fact of the social chasm that prevailed between half a thousand inferior Crown vassals and the mighty Earls. The whole conception of the legal status of the monarchy at this time has been equally overlooked. In fact, no King, since the time of Charlemagne, was so favourably placed as the Conqueror for thoroughly reconstituting the monarchy on a uniform system. But William I. and his two sons manifest in this regard an unswerving consistency, such as seldom occurs in history under so many favourable circumstances. Once brought into use, this system of government developed and extended its principles through well-trained officials during the reigns of Henry I. and 1 1. 84 The Anglo-Norman " Court-Days!* The thorough investigation of the question, by means of a committee appointed by the House of Lords in 1 8 19 and subsequent years, the five reports of which, " On the Dignity of a Peer," much outweigh all previous researches, after carefully sifting all the documentary data, arrived at the negative conclusion that, under William I. and II., no traces could be found of the existence or organization of an assembly invested with legislative function. These Reports, however, further pointed out that the charters of Henry I., Stephen, and Henry V . implied that the assurance of the maintenance of the laws of Edward was looked upon as the ** law of the land," whence it might be inferred that there did exist a kind of con- stitution, possessing a legislative capacity, of which a branch charged at least under certain circumstances with the framing of laws, formed an integral part. The real essence of this conception will obviously be found to be at one with the view above set forth. Hence for the legislative assemblies of the notables a parliamentary body of an entirely new complexion had subsequently to be constituted, independently altogether of the old " Court-Days," which amid the wild confusion of Stephen's reign had fallen into abey- ance somewhere about the year 1139. The first at- tempts made at resistance, however, and the first blow struck for emancipation, had at that time a most un- favourable issue. In the conflict about the succession to the Throne, on the death of Henry I., Stephen 01 Blois, in order to outbid his rival, the Empress Matilda, had in truly reckless fashion made grants of Earldoms, Crown-fiefs, and State prerogatives. Thereupon the Succession of Henry 11, 85 hitherto orderly system of administration was replaced by the bewildering confusion of the continental feudal system, private feuds, fortified strongholds, violent enforcement of the power of jurisdiction, and of the right of coining, exercised by the greater and inferior Barons alike ; a wild warring of the vassals among themselves, under pretence of siding now with Stephen, now with Matilda. The withdrawal of the active inter- ference of the Treasury, and of the vice-comites, was far from leading to the emancipation of Society, which still lacked the necessary coherence for independent self-government. There ensued rather a period of wild, personal violence, which, like the subsequent in- terregnum in Germany, prevailed for fourteen years. Through the intervention of the clergy a compromise was at last effected, securing the succession to Henry II., son of the Empress, and involving the extinction of the pseudo-earldoms, the razing of three hundred and seventy-five castles, the re-establishment of the jurisdiction of the vice-comites, and full restoration of the royal prerogatives, measures which were joyfully hailed by the whole land as a means of redemption from a state of helpless confusion. VII.— PEEIOD OP TRANSITION. ECCLESIASTICAL CONFLICT WITH THOMAS A BECKET. The first lasting blow at the powerful position of the King arose out of a conflict with the Church. A century after the Conquest, Church and State had reached a turning-point in their mutual relations, in which the position of the Church had become much more popular than heretofore. 86 The Anglo- Normajt " Co7irt-Daysy What the Church had lost by her subjection to the civil and military power, she had recovered through her moral influence, for to her former spiritual mission she had now superadded that of natural mediator between the two hostile peoples. The feeling of fellowship among the clergy had already been sufficiently deve- loped to constitute the Church a rallying point amid these national rivalries, and having now nearly reached the summit of her power, she could no longer give her sanction to a number of State claims opposed to eternal right. Under these circumstances Henry II. came into inevitable collision with the Primate of England on the question of the hitherto recognized royal prerogatives. Occasion was thereby taken by the King to have his claims embodied by a skilful jurisconsult in the so- called " Constitutions of Clarendon," which seemed to express the traditional law in such conclusive form, that they received the ready acquiescence both of the Prelates and temporal Crown vassals. For the solemn confirmation of these doctrines, which had been elaborated during a fourteen days' conference, an extraordinary Council was summoned, at which both archbishops, twelve bishops, ten earls, twenty- nine barons, besides other spiritual and temporal lords, are mentioned as having been present. After some show of resistance. Archbishop Thomas a Becket himself was forced to yield assent, promising to bide by these Articles / or upwards. In boroughs, through the disintegration of the Cor- poration Charters, all previous principles had disap- peared to such an extent that, according to Statute 2 Geo. II., c. 2, that right of vote should continue to be valid, which, according to the "last decision" of the Lower House, had been accepted as existing. The Reform Bill conferred the franchise comprehensively on the middle classes — i.e., on every occupier (owner, lessee, or tenant) of a dwelling house, warehouse, counting house, or tenement, of ;^io yearly value. According to the old system, all electoral rights were based, not on payment of rates and personal duties towards the State, but on tenure. But for the main- tenance of coherence in the electoral bodies, there was required an actual tax-payment, and a prolonged abode in the electoral communal district, or acquisition of freehold by inheritance, or through marriage settle- ment. III. As regards electoral proceedings, after the example of France, the important innovation was in- troduced, that complete electoral lists were to be taken by the district authorities, with a fixed revisional pro- ceeding on the part of Revising Barristers, with power of appeal to the Courts of the Realm, The entering of the voter's name on the electoral list was made a preliminary condition to the exercise of the franchise. Whereas formerly the protracted examination of electors' claims dragged out the election for weeks, the poll became now restricted to two days, and sub- sequently to one day, and thereby the occurrence of The Reform Act of 1832. 397 electioneering riots, as hitherto prevailing, was at once considerably diminished. A severe Corrupt Practices Prevention Act, 1854, next sought still more thoroughly to prevent bribery at elections.* The number of those qualified to vote, which was computed at 400,000 at the time of the first Reform Bill, was about doubled by this Reform Act. After the thorough carrying out of the new electoral system (1832), there were reckoned at the county elections in England and Wales 322,619 freeholders, 23,097 copyholders, 21,104 leaseholders, 99,019 tenants-at- will. The number of the borough electors also was set down, on occasion of the proposal of the second Reform Bill, at only 488,920. Moderate as such extension seemed in comparison to the constitutions of the Continent, yet it sufficed, in the peculiar posi- tion of the English parliamentary constitution, to render the middle classes no longer the moderating, but rather the "determining" factor. of the parliamentary constitution. * The technical details of the Reform Bill are here purposely omitted, and especially the not very important modifications of the Reform Bill for Scotland and Ireland. These details are treated in separate English works in very characteristic technical style, and are presented most exhaustively in Leiy and Foulkes, " The Parliamentary Election Acts." London : Clowes & Sons, 1885. VIII. iiotoit to the gemtb jacform gill (1867). IN the ancient world, an aristocratic constitution, such as existed in England at the beginning of the nineteenth century, in all its exclusiveness, would have ended in reducing the lower classes to mere slavery. It is a splendid testimony to the power of Christianity and of this nationality, but especially to the ruling class in England, that from amidst such a condition of things English Society entered upon an era of social reform and of Reform Bills. Nor can the credit be refused to the old Whig party of having, consistently with their standpoint, carried through with courage, steadfastness, and discretion the great purpose of ensuring the reform of the representation of the people, without any rending asunder of the bodies empowered to vote for the House of Commons. January 1833 witnessed the first meeting of the reformed Parliament, in which only 172 Conservatives stood confronting 486 Liberals and their adherents. Already, in the first Session, a long array of Reform Social Reform Measures. 399 measures pressed to the front, which, resulting from a long-stemmed flood of public opinion, were soon destined to present great difficulties for the actual majority and ministries. The pending movement for fresh reforms henceforth branched off into the threefold direction ofSocial, Administrative, and Political Reform. I. The Social line of attack was first directed against the political privileges of the ancient ruling class. With great moderation this branch of the movement was satisfied with the abolition of the electoral quali- fication of ;^6oo and £^00 ground rent for members of counties and boroughs. This qualification had been introduced a century previous with a view to hampering the competition of capitalists as candidates against the landed gentry. It was now simply abolished (1858), Proposals for divesting Bishops of their poli- tical functions in the Upper House, and for the creation of a number of life Peers side by side with the hereditary Peers, have for the time been rejected. More decisive were the blows aimed at the economic privileges of the ancient ruling class ; first of all against the great trade monopolies which, in consideration of a slight compensation, were brought to an end ; next against the widely prevailing system of protective duties which, being acknowledged as generally detri- mental to a State engaged in Commerce and Industry on a large scale, were abolished wholesale, a few pro- ductive imports being alone retained. After fierce opposition the Corn Laws were also repealed. Although Lord Melbourne had declared (1839) that "he regarded as adventurous and mad " the scheme of leaving the great agricultural interests unprotected, yet the " Anti- 400 Tlie Parliaments of the Nineteenth Century. Corn Law League " and the power exerted by the Press in the years 1 838-1 846, availed to carry this measure also, under the lead of Sir Robert Peel. The powerful land-owning interest had also to submit to the commu- tation of tithes, to the modifying of the burdens weigh- ing on the copyholder, and to a system of enclosures of land, although certainly with many saving clauses. The principle of equality of rights in ecclesiastical matters involved the repeal of certain obsolete penal laws, and some measures of relief given to dissenting communities, necessary for the administration of their property and for the cure of souls. The admission of Jewish members to the Lower House was for a long time barred by the opposition of the Upper House, but was ultimately (1858) effected by a shabby and, in its consequences, somewhat dubious expedient, which left to each House the right to determine for itself the form of oath to be taken by its members.* As formerly, at the turning-point of Magna Charta, so now, in the nineteenth century, the propertied classes have not forgotten that solicitude for the weaker classes still remains a vital condition for every free community. The noble mission of abolishing the Slave Trade was now extended to the still more difficult task of pro- curing the abolition of slavery itself, which was effected with as much judgment as success, at a sacrifice of ;^20,ooo,ooo of the public money. Far more difficult and intricate were the problems connected with the * An Act of Parliament for the admission of Jews to equal rights as citizens had already been introduced in 1763, but in consequence of a violent manifestation of adverse public opinion had to be withdrawn in the following year. TJie Chartist Movement. 401 measures of social reform in favour of the industrial classes. However beneficial for the outward indepen- dence and earnings of these classes may have been the development of steam power and of the factory system in the first decades of this century, equally unfavour- able became the relations of capital to labour in their subsequent progressive evolution. Within one gene- ration there was unfolded in the new proletariate a picture of debased family life in its dwellings, food, clothing, sanitary arrangements, moral and physical degradation of women and children, such as for several decades revealed the very darkest sides of the new social conditions. Owing to the prevalent economic distress, the very years following the Reform Bill were calculated to awaken in these classes an overwhelming sense of their misery, and of momentous common interests radically opposed to those of capital. From the year 1839 this sentiment assumed in the Chartist movement a threatening aspect, which, however, ulti- mately spent itself in the abortive monster demonstra- tion of 1 848. Without allowing itself to be disconcerted by the menacing attitude of the working classes, the Legislature now proceeded with unflagging zeal to attempt a practical solution of these social problems. Such were the removal of the evils most injurious to family life, as, for instance, restriction of the labour of women and children, limitation of the working hours, removal of direct risks to life and health in mills and mines, and the appointment of factory inspectors, on whose reports further protective measures were intro- duced and extended from decade to decade. Further provisions were made to prevent a revival of bondage 26 402 The Parliaments of the Nineteenth Century. by vigorously repressing the truck and cottage system, to ensure the legal protection of the weaker classes by ready access to civil justice, and an effective procedure in cases of arbitration and agreement ; to guarantee the liberty of association, even for the purpose of enforcing higher wages, accompanied, however, by penalties against any abuse of this privilege, such as had from time to time occurred in the most flagrant way. Directly and permanently beneficial proved the reduction in price of all the requirements of life in consequence of the removal of protection duties on corn, meat, and subsequently on tea, coffee, etc., whereby the domestic outlay of the poorer classes was on an average diminished by about one-third, while the liberty of association and the relations of the international market brought about a slow, but, on the whole, continuous advance in wages. The far-reaching and very valuable reforms in respect of sanitary and structural measures by means of a long series of Public Health Acts resulted mainly to the advantage of the working classes. In behalf of elementary education, which had been so grievously neglected, a parliamen- tary grant of i^20,ooo was first guaranteed in 1833, which in the course of some decades was increased more than a hundredfold, and has expanded into an ever-progressing system of popular education. Em- bracing every aspect of economic and family life, this social legislation has been able to afford scope at the same time to independent self-help by means of a well- ordered regulation of the system of association through savings banks, burial societies, sick funds, friendly societies, and co-operative companies for production Administrative Refoinns. 403 and consumption, occasionally even under State security and State aid. Connected with, and supple- mentary to, all this was a progressively milder treat- ment of the poor, which at least superseded the harsh and exclusive system of the preceding generation. Doubtless from its very nature this remains an endless function of the public administration, and in the special relations of the greatest industrial and commercial centre in the world it may possibly never adequately meet all the requirements of the weaker classes. But looking back on what has been done and achieved in the course of a generation, it must be acknowledged that, with a worthy sense of its duties, the Legislature has remained faithful to the mission incumbent on the opulent classes of a free State, II. The domain of administrative reforms was at first directed against the abuses, which, under the assured predominance of a governing class, must at all times arise in the patronage and administration of public offices. But however useful as a protection against the abuses of a party re'gi^ne, the excessive legal determination of all powers of administrative agents imparted on the other hand a cumbrous and rigid character to the whole system, which greatly obstructed the execution of all these reforms. Here also the generation following the Reform Bill displayed a wise energy, contrasting advantageously with the contemporaneous condition of affairs in most Conti- nental States. In the sphere of military administration, the ex- periences of the Crimean War led to a grouping together of the entire system under a Secretary for 404 TJie Parliaments of the Nineteenth Century. War. In lieu of a universal obligation to serve in the army, which could not be enforced in England, there sprang up a comprehensive system of volunteer corps, which contains the germs of further development. Very energetic reforms were also introduced into the domain of Justice through the new County-courts, which for the first time ensured to the public easy recourse to civil justice. There were further effected very urgent reforms of civil procedure and procedure in Chancery, through the newly-organized Courts of Bankruptcy, Probate, and Divorce. Criminal pro- cedure acquired a practical organization for the Metropolis through the Central Criminal Court, as well as by an excellent system of criminal examination, and the codification and extension of summary criminal procedure. Very thorough were the reforms intro- duced into the excessively cruel Criminal Law. Whereas, in the time of the Restoration down to the accession of George IV., no less than 187 offences against law had been punishable with death, capital punishment is now practically limited to high treason and "murder, while the punishment of the pillory and forfeiture are abolished, and transportation replaced by a rational system of imprisonment. In the financial department, after the protection system had yielded to the paramount consideration of taxation for purposes of revenue, a consolidation of the Customs, Inland Revenue, and Stamp Acts was rendered possible by the repeal of many hundred parliamentary statutes. Sir Robert Peel's Income-tax has, with certain amendments, taken a good lease of life. The broken-down system of the Royal Post has Police and other Reforms. 405 been transformed into the Penny Post. For the control of the Finances, so grievously neglected by party governments, the Treasury has established, by arrangement with the Bank of England and an Accountancy Committee of Parliament, effective means of control, as well as for the management of the National Debt by means of a special Committee. In the Home Department in the domain of Police^ the parish constables having become insufficient, they were replaced in the Metropolis and throughout the country by paid bodies of police, organized on a military footing, in practical accordance with the police regulations and police jurisdiction pertaining to the Justice of the Peace. Several branches of the legisla- tion on the industries were consolidated afresh, those more especially affecting public-houses, for which, after many experiments, a return was made to the practice of requiring a magistrate's licence. With due regard to agricultural and game interests, a Game Act was introduced (1834), which swept away numerous grounds of social discontent. In respect to the regu- lation of traffic, the codified "Merchant Shipping Act " is of great importance, as well as private bill legislation bearing on the still somewhat defective Government supervision of railways. A greatly modernized sphere of administration for the Home Department has been developed out of the economic "self-government" of the Communce. The first instalment was the great Poor-Law Bill (1834) and its innumerable amendments, in the carrying out of which the Central Poor Law Board, with its hosts of inspectors and auditors, affords an example of 4o6 TJie Parliaments of the Nineteenth Century. centralisation on a scale heretofore unknown. Through the combination of the greater District Boards and the establishment of Workhouses, the gross abuses of former Administrations have been surmounted with great energy, but at the same time with much harsh- ness. Next came the regulation of Highways (1835), which, in the constituting of larger boards, follows the pattern of the Poor Law. After numerous doubtful experiments, the Public Health Act (1848 et seq.^ introduced some order into the inspection of sanitary and structural arrangements in densely peopled localities, which were placed under the searching survey of a Central Board. For Municipal Boroughs a new Municipal Corporation Act (1835) was issued, which, setting aside the ancient effete structure, established a uniform administration through Mayor, Aldermen, and Town Councillors, while retaining the police-organization through special Peace Commis- sions appointed by the Crown. After the lapse of a generation, this new communal administration has been moulded into a uniform system (1871) under a newly-created Local Government Board. In the sphere of ecclesiastical government, the State authority had to deal with problems analogous to those of the self-government system, so far as through older legal relations, and the corporate organization of the Church, heavy abuses had crept in, which this corporate body was unable to suppress. In a judicious and benevolent spirit the administration of the revenues of the State Church was now re-organized by means of mixed committees, the ecclesiastical districts and functionaries being increased according as required, Education — TJie Colonies. 407 and thousands of churches and parishes founded by Government and private means, and richly endowed to meet the requirements of teaching, and the cure of souls. With equal judgment and evasion of dogmatic points, the questions connected with the Ritual, Church discipline, and the framing of the Oath of Office, were settled according to the advice of clerical committees, and a fresh and fruitful activity thereby imparted to the National Church in respect of doctrine and the cure of souls, in striking contrast with the state of affairs by which centuries before the Anglican Church had been disfigured. In respect to educational matters, the Reform Bill still remained satisfied with exercising a gentle pres- sure on the Universities and school foundations, to ensure the framing of new statutes. More marked was the progress in elementary education, for which comprehensive measures were introduced under the control of a new Ministerial Department (1856), with a separate branch for the encouragement of schools of Art and Industry, by means of considerable grants from Government. In respect of the administration of the Colonies, the mother country decided, after hard experiences, to grant to the Colonies independent constitutions suitable to their position, population, and state of culture^ reserving a supreme legislative control to the English Parliament. Since the suppression of the great mutiny of the native army, the administration of the East Indian Empire was, by the new organic law of 1858, placed under direct State control, with suitable regulations for the Government Councils, the Courts of 4o8 The Parliaments of the Nineteenth Century. Law, and the general administration and appointments to the Indian Civil Service, based on the fundamental principle of public competitive examinations. Over a hundred far-reaching administrative laws, and an organic regulation of the whole Civil Service, gave proof also in this department of the efficacy of parliamentary rule.* III. In the sphere oi political reforms alone, that is, in the organization of the communal bodies, and the further development of the parliamentary constitution, abortive attempts at creating a new order of things first became apparent. In respect of administrative reforms, the business capacity of its ruling classes, and for social reforms, the practical sense of its men of business, had proved of avail to the country. But on the other hand, for the now ensuing group of enact- ments, the English Parliaments werealmost asdeficient in practical experience as the national assemblies on the Continent. The organic laws, whence the parlia- mentary constitution had developed, had resulted from the initiative of the Monarchy when at its height under Henry II., Edward I., Edward III., Henry VIIL, and Elizabeth. The Parliaments of the eighteenth century had merely drawn their inferences from the institutions then existing. New projects of this kind emanated just as little from the party struggles of the eighteenth as from the Civil wars of the seventeenth century, so * English administrative law, which pertains as essentially to the being of the English State as does parliamentary right, was practically unknown on the Continent at the time when consti- tutional theories in France and Germany were settled From the systematic treatment of the subject in Gneist, " Engl. Ad- ministrative Law," 3rd ed., 18S3-S4, vol. ii., only general excerpts can here be given. Claims of the Dissenting Bodies. 409 much so that the Commonwealth in particular be- queathed not a single organic law to posterity. Such new laws had now become necessary, since by reason of the transition to a new order of Society, the old links of coherence had been loosened, and had to be replaced by fresh ones, as happened in Prussia, for instance, by a conjuncture of strong impulses and favourable conditions, in the years 1808 to 18 15, and 1872 to 1876, although here not by means of "public opinion," but through the initiative of the Monarchy. But the English Parliament has been as little able to fulfil this task as the constitutive assemblies of the Continent, because such laws in no way result from any contention of the social classes on their respective share in the rights and liberties of the community and of the State. The main foundation of the English parliamentary constitution, the unity of the National Church in the State, had been lost through the repeal of the Test and Corporation Act. The religious equality now acknow- ledged was doubtless at first meant only as a position of equality for the ijidividual members of the various dissident forms of belief But as soon as those Non- conformists formed organized Church systems of their own, they were no longer content with the position of equality as concerns the individual merely ; but this was in all cases followed by a demand for equal rights for their " churches." These pretensions were urged to the extreme, especially by the Roman Catholics, who claimed their own Church rule as part of the doctrines of their faith. The Roman Curia accordingly took steps to establish a formal organization of ecclesiastical 410 TJie Parliaments of the Nineteenth Centnry. dignities and dioceses (a hierarchy) in England and Wales (1850). Thus was created a new situation calling for organic legislation on the limits of right, by which it might be possible for several rival Churches to exist side by side under the same uniform government, as in Germany. But the Ecclesiastical Titles Act of 1 85 1, which attempted by penalties to interdict the proclaiming of the Roman Catholic Hierarchy, and the assumption of episcopal titles, proved a complete failure, and had soon to be repealed (1858). By way of reaction, the demand was, on the other hand, now raised for the " disestablishment " of the Anglican Church in Ireland, and the further "separation" of Church and State, in faceof which the gratifying revival of religious feeling only rendered the position of the State all the more difficult. The Anglican Church, in spite of the firm hold it seemed to have taken in the nation, had been unable to prevent very numerous secessions in two opposite directions towards ritualistic and dissenting or rational views. In consequence of the dispute relating to Church patronage, the Pres- byterian Church of Scotland had split up into two nearly equal sections (1842). The ecclesiastical rela- tions in Ireland also continued to be severely strained, and here further entangled by racial antipathies. In all three parts of the Realm a powerful Church organi- zation, firmly rooted in the religious sentiment of the people, claimed respectively an exclusive right. Were this exclusive right once established so as to control the whole domestic life, the moral and intellectual development of the populations in the sense intended, and to the extent claimed by the several Churches, then The Rival CJmrches. 411 thisseparation would necessarily also destroy all political unity. Great Britain — after having attained to a higher degree of culture — had now arrived at the level reached by Germany at the Peace of Westphalia. She found herself now severed into a Catholic and into two rival Protestant sections, the further development of which could not fail to bring about a rupture of the imperial unity, as would have happened in Germany but for the ever-watchful energy of the territorial administration and legislation, and as has happened in this nineteenth century, when analogous relations led to the separation of Belgium from Holland. Church systems enjoying equal rights, one of which, with its claims to infalli- bility, tolerates nothing else by its side, the other, with its pretension to exclusiveness, is wont to recognize no civil equality by its side, can make no progress in separate autonomy without severing the unity of State and people. Instead of realizing what common State institutions and legal restrictions such a state of things calls for, English Society evaded a solution of the problem by the vague notion of a " separation between Church and State," as if a separation of the spiritual and political man were possible, and as if the Roman and Anglican Churches could ever surrender their respective coherence and their antagonistic tendency, even were the State (as in the Prussian Code) to bestow on them the modest style and title of" religious societies." The inevitable task of future legislation for the upholding of the State and nation has, however, in its inception at least, been indicated by the intro- duction of a general registration of births, deaths and marriages (1836), a civil marriage at option, a 412 The Parliaments of the Nineteenth Century, general Divorce Court, undenominational elementary schools, high schools, universities in common, common burial grounds, and so forth. Meanwhile, however, the negative result alone remains, that the equality of right and the intimate union of each contending Church breaks up the uniform basis of the parliamentary con- stitution, and introduces denominational sections into Parliament, side by side with the political parties. The next determining foundation of parliamentary constitution, the inner coherence of the Commnnitates, was certainly maintained, as far as possible, by the Reform Bill of 1832 ; but the progress of social and administrative reforms led only too soon to a trans- formation of the groundwork, which had been by no means intended. Doubtless the new municipal orga- nizations (1835) again assigned a share in the economic administration to the whole body of burgesses ; but this civil administration, by its lasting severance from the police jurisdiction of Justices of the Peace, from the parochial care of the poor, and other important branches, had retained so limited a field of action, that it could do but little towards awakening and fostering a communal spirit. To all this was added the contra- diction that in the municipal organization (against the urgent protest of Sir Robert Peel) a general uniform franchise for all householders was introduced, whereas the Reform Bill in favour of parliamentary franchise had summoned only £10 householders. There thus re- sulted a tendency to widen the parliamentary franchise, and a new antithesis to the County organization. In the shires was doubtless maintained the organization of the gentry in the General and Special Sessions of- Changes in the Local Administration. 413 the Justices of the Peace, but with waning influence downwards. The suspension of the militia organiza- tion, which had become normal since 1829, had already impaired that influence to no slight degree. It was affected to a far greater extent by the reforms in the Poor, Highway, and Sanitary administration, whereby Justices of the Peace were restricted to a purely administrative jurisdiction, and to special duties of revision. The further development of these already dislocated communities now depended on the develop- ment of the local organization in the Parishes. Through the offices of Constable, Churchwarden, Overseers of the Poor,and Inspectors of Highways, and throughthevigorousdevelopmentof the communal tax- ation system, this lowest substratum of the parliamen- tary constitution had become such a decided foundation of the Comniunitates, that the true nucleus of resistance on the part of the Comniunitates, in the great consti- tutional struggles, was to be found in the "cellular system " of the English parishes in its intimate asso- ciation with the office of the Justice of the Peace. But partly through the fault of the ruling classes them- selves, the local communal offices had already, in the course of the eighteenth century, lost much of their original importance. The ancient office of " Constable" had sunk to that of a despised police functionary, and was discharged on behalf of the more independent residents by deputy. The restricted areas of the several Poor Law and Highway Districts, which, in the interest of the great landowners, had been more and more reduced, degraded these branches also to a purely mechanical duty, which was little sought and little 414 TJie Parliaments of the Nineteenth Century. esteemed. Even the far-famed English jury suffered from the growing abuse, which, by special provisions and an unfair practice of the Sheriff's office, enabled all the better classes to escape this service. While the offices thus sank lower and lower, the measure of the communal taxes increased year by year, and this again inreciprocal operation with maladministrationof there- spective offices. Hence the demand foraradical reform had from the outset specially in view an economic outlay of the rates. From the very first the reform aimed at an efficient control of this often recklessly lavish expenditure through a Board of trustworthy persons. What the tax-payers claimed was partici- pation in the resolutions as to the appropriation of the taxes, and the appointment of the officials empowered to levy and expend (influence and patronage) — nothing more. The improvement in the care of the poor, inspection of highways, and sanitary arrangements — the whole range of social reforms doubtless needed not only taxes, but a wider individual activity for the multifarious duties connected with the welfare of the parish. But amid the whirl of English party strife there was henceforth no longer any thought for these increased personal duties, which, at least in German communal legislation, have not yet been forgotten. The result of this degradation of the lower parochial offices was that in England the importance of honour- able personal functions in this sphere was entirely underrated. But above all, it was in the nature of a legislation, originating from a parliamentary struggle, that conflicts were always raised about new rights, never about new duties, for which there would have Changes in the Local Administration, 415 been no possibility to ensure a majority in the actual Parliamentary elections. In constant deference to " public opinion," the legislation henceforth dropped out of view all personal duty in the case of the new boards and parochial offices, even expressly releasing the parochial representation from all personal " re- sponsibility." * In lieu of responsible functionaries for cv legal communal administration, according to the principles of self-government, there were created local committees of tax-payers, to which Stuart Mill's striking expression " Local Parliaments " began to be now also gradually applied. But the perilous step oi setting aside all personal duty and responsibility in the communal body, has destroyed the whole structure, and this change, little noticed at first, involves more far-reaching consequences for England, than would the abolition of the general duty to serve in the army, for Germany. Here becomes evident the organic defect of the actual English State * An apparent exception is met with in the Municipal Corporation Act of 1835, which, conformably with the tradition relating to municipal corporations, expresses an obligation to undertake the civic offices. But such a precept remains mere paper, if such general duty incumbent on the citizen becomes extended to every household. Nine-tenths of the small house- holders could never undertake any civic office or even serve as jurymen, are never required to do so, and still less forced. The self-imposed deception of democrats in this particular can be established statistically if, as in Prussia, by means of the three- class system of tax-payers, the actual services rendered by the small householders are brought into evidence. The author upon one occasion (i860) demonstrated from the municipal statistics of Berlin, and also from other towns, that the share taken by the third-class tax-payers in the municipal administration, falls considerably short of what they contribute in taxes, and that this class, through the claiming of universal suffrage in the Commune, pretend to from ten to twenty times more than their contributions justify. 41 6 The Parliaments of the Nineteenth Century. body, which provokes constantly fresh symptoms of acute social disease. Through the abolition of the personal duties of the citizen, the communal body is, in fact, virtually transformed into a system of share- holders, to whom the name of self-government is still, though wrongly, applied. But the administration of the communal life, owing to its peculiar nature, can no more be founded on a system of voluntaryism than can the defence of a country on volunteer corps alone. The administration of these integral sections of the body politic can be carried out only in conformity with the laws of theland, while thecommunalrevenues raised by forced taxes can be expended only on lawful purposes. But. as the new boards declined all responsibility, the law was obliged to constitute the subordinate paid officials (clerks, book-keepers, accountants, assistant-overseers, poor-house officials), intermediate State officials, re- sponsible for the administration, and had, consequently, to render them subject to dismissal, and to official dis- cipline, under control of a central board. In order to keep this law of supervision effective, all details of this administration had to be kept under strict control through Government inspectors and auditors. Thus originated the present system of home administration by " boards," which, in its centralization and tutelary administration, is essentially like the French system. But, together with the responsibility, theofficialinfluence also has mainly reverted to paid officials, leaving only suchsubordinate functions for theremaining communal boards and honorary officials, that the inclination of the higher classes to take part therein disappears more and more. Still less are the Justices of the Peace Decoy of Coininunal Life. 417 inclined to take part in the conduct of such business, even when constituted ex-officio members. The un- avoidable consequence of this system was that the degraded office of Constables made over all police functions to salaried policemen, and was eventually quite given up by the Legislature, and further that the officesof overseersof thepoor and surveyorsof highways came tobedischarged bysubordinate paid officials. The result of these reforms is outwardly visible in a police body, in uniform, comprising some 35,000 men, and nearly as large a/^rjr<9«;^^/ of bureaucratic and subaltern officials as successors of the officials of the self- government system, constituting a virtual withdrawal of the well-to-do and educated classes from local communal life, while the administration itself is kept together bya constantly spreading system of ministerial commissaries and ministerial orders. The extinction of all sentiment for local communal life ("parochial mind ") is a complaint uttered in constantly louder tones, while no one reflects how in its fierce rivalry party legislation has effected this dissolution of the moral and legal union of the Communes, and that those merely interested in the local burdens are placed in as isolated a position towards each other as are the shareholders of a private company. Therewith also vanishes the personal communal feeling in the local community, hence the further demand for secret voting (the ballot), by which those qualified to vote are perfectly isolated and decline all moral responsibility, just as the local representative holds himself excused from all legal responsibility. The bureaucracy also has met this public opinion by the 27 41 8 The Parliaments of the Nineteenth Century. invention of " nomination papers" (printed papers with the names of candidates proposed by ten electors), by which device electors are spared all trouble of meeting, thinking, consulting, and counting up, the election consisting merely in a few strokes, which the elector appends to the election list. This is the last shred of self-government, the only troublesome duty with which this present industrial society fancies it exercises and upholds the " sovereignty of the people." Thus more and more disintegrated from year to year become the Coinmnnitates,ovi whose personal coherence the parliamentary body depended both in its origin and at every stage of its progressive development* But with the inevitable reaction the changed views of the reconstituted electoral bodies are reflected in the House of Commons, in the attitude of the party leaders, in the Press, and in "public opinion." The influence of tradition has so far preserved a certain steadfast character as regards the votes in the greater part of the counties, as well as in a considerable number of the parliamentary boroughs ; but, as might be expected, to the least extent in the rapidly increasing populations of the great manufacturing centres. But in the same degree in which the process of disintegration advances, purely socialistic views of life are entertained, viewswhose complexion depends on the impression left by the last popular orator, and whose aspirations are limited to the nearest interests. To the holders of such views the Lower House has long ceased to present * The full bearing and character of this new organization of the municipal administration is described by Gneist in his " English Self-Government," 3rd ed., 1871, Caps. ix.-.xii. Social Tendencies. 419 itself as a representative of the communal unions, — an organic connecting link between State, Church, and Society, — but merely as representing the temporary interests of the inhabitants of certain districts, or classes. While in England more than elsewhere the institutions of the parish and the county, of the Parliament and the Church, have for centuries been striving to effect a counteraction and counter-organization to socialistic interests, seeking to urge and accustom the citizen to understand and fulfil his personal duties in the life of the community, even against the natural bias of his self-interest, society itself, after the extinction of the "parochial mind," has come to regard the feeling of patriotism, self-government, and sense of justice, as the mere outcome of voluntarism. In endless variety are now unfolded the socialistic theories on the improve- ment of the representation of the people by new group- ings and classifications. Female franchise has already gained a respectable minority in the Lower House, and the system of elections by minorities has attained an effective support in the Upper House. Many a mini- sterial proposal, even in relation to the second Reform Bill, savoured of mere dilettante experiments. Every inkling of a notion as to some new grouping of interests is hailed as an important discovery, till it is forgotten at the next whim of the moment. In this only is Society still at one, that the individual shall exercise his parti- cular share of the sovereignty of the people on his own special account, and without any responsibility, whence secret voting by ballot. The more perceptibly had been felt the gentle pressure exercised at the zenith of its power by the parliamentary constitution in repressing 420 TJie Parliainents of the NinctceJith Century, socialistic tendencies, the more freely the English voter fancied he could breathe under the shelter of the ballot. As soon as the communal unions had ceased to form the bond of common interest, the Press and the right of association alone remained as the mutual tie.* As the latter can only prove effective transiently and locally, the Press, which has now achieved its full freedom, remains the principal motor. After the censorship had been abolished {1695), a still very effective safeguard remained in the draconic sentences of the Courts of law, based on the old penal law against sedition, conspiracy, and libel. By the Fox Act (1792) this safeguard was considerably impaired, for the jury had now to give their verdict as to the criminal intent of the author. Since the Reform Bill of 1832, a criminal prosecution of the Press by the Crown prosecutor was already considered unadvisable and impracticable. Practically Lord Campbell's Act (1842) merely legalized an existing practice, by accepting as sufficient justifica- tion the plea that the writer's intention was to further the public welfare. A statute of 1841 withdraws from judicial control all publications issued under authority of Parliament. The year 1853 abolished the tax on advertisements; the year 1855 the last remnant of the stamp duty. The strife for the Reform Bill, and the * It would be a delusion were we to cherish the belief that this disintegration of the groundwork is improved if the land- owning interest, professional bodies, religious societies, etc., are bound together as " Corporations." The want of a common bond of social union becomes thereby only all the more perceptible, and all the more does the Press alone and the political right of association remain the only bond through which, under such cir- cumstances, a representation of the nation may be connected with the government. Altered Position of Parties. 421 pov\crful struggle on the part of all interested in the abolition of the Corn Laws, had already proved the hitherto unknown but now irresistible power of the daily Press. Free indeed it now was ; the indispensable organ necessary in all directions for the upholding of social interests, in able, and, upon the whole, honour- able activity ; but still irresponsible, less so even than the new boards, open to every error, hence insufficient to impart to social aspirations that moral and le"-al support which the State requires.* These new unstable foundations of the electoral bodies explain clearly enough the altered position of parties in this generation. After the abolition of the Test and Corporation Acts, the time was gone for the practical activity of High Tories and High Churchmen. The moderate Tories, who took part in the State government, now styled themselves " Conservatives." For the Whigs, the designation " Liberals " gradually came into use, in conjunction, however, with an extreme party of Radicals, and many other mostly embarrassing associates. The great Liberal majority (486) of the first Reform Parliament soon suffered a disruption, caused by its internal disunion. The later parliamentary elections resulted in (1835) 380 Liberals against 273 Conservatives ; (1842) 286 Liberals against 367 Conservatives; (1847) 325 Liberals against 331 Conservatives, the latter, however, split up into 216 Protectionists and 105 Free-traders; (1852) 315 * The developed significance of the Press, which first made itself felt a hundred years ago, through the celebrated and notorious letters of Junius, 1796, can only here be summarily indicated. 422 Tlie Parliaments of the Nineteenth Century. Liberals against 299 Conservatives; (1859) 348 Liberals against 315 Conservatives; (1866) 361 Liberals against 294 Conservatives. The distinction of Liberal and Conservative was, however, purely conventional. In point of fact, six parties, for instance, were already repreijented in the Parliament of 1837 • 100 Ultra-Tories, 139 Tories, 80 Conservatives, 152 Whigs, 100 Liberals, 80 Radicals. It is easily con- ceivable how, by an increased crumbling-off of small sections, it became more and more difificult to form a united Ministerial Cabinet to act in concert with the majority of the Lower House. And the difficulties of the situation coincided with the constantly increasing entanglements connected with the administration of such a world-wide empire. Scarcely a year passed, in this interval of thirty-five years, which was free from bad harvests and severe famine, from crises in trade and industry, from disorders in Ireland, from riots of Chartists and workmen, revolts in the Colonies, a general mutiny of the strong native army of India, great foreign wars, — all complicated by conflicts about protective duties and free-trade, and in connection with great social and ecclesiastical interests at home. The necessary consequence was the rapid change of the Grey, Melbourne, Peel, Russell, Derby, Aberdeen, and Palmerston Ministries — a change thirteen times re- peated in the course of thirty-five years. But the weakest point was, and remained, the organic structure of the communal system, and new reforms in the parliamentary representation. Half a generation after the Reform Bill had been passed, public opinion was, however, still too much Fuytker Parliamentary Refanii. 423 occupied with other questions to revert at once to the widening of the franchise. Meantime the manifold claims of the people to a reformed representation accumulated so rapidly, that the House (since 1839) was obliged to cease dealing with the petitions, and rest satisfied with printing the more important ones. But the almost general right of election, which the municipal organization of 1835, and the new communal boards had maintained, pressed forward from the communal union into the parliamentary constitution. As at one time with the sound foundations of the self-government, now also the faulty foundations of the boards determined the character of the body returned by them. And once more came the February Revolu- tion in Paris (1848) with its contagious influence in England, so that already in the year 185 1 the pro- posals of Locke King were favourably received, inducing the Russell Ministry to introduce a new Reform Bill on behalf of the Government. In spite of his former assurance that the Reform of 1832 was to be " a finalty," Lord John Russell had now already arrived at the opinion, that the lowering of the qualification from £10 to ^5 would even have a " conservative " effect. But a fundamental principle of electoral reform was no longer to be found, since the obligation to personal service throughout the whole range of communal institutions had been abandoned. The duty to pay rates had also in the meantime been relinquished, when, for the convenience of levying the small amounts of rates, the ground landlord, instead of the occupier, was allowed to be assessed (" compound- ing rates "), and very soon this measure was largely 424 TJic Parliaments of the Nbuteoith Century. availed of, in fact, in more than half of the cases that occurred. By a legal fiction, the occupier was still to exercise his franchise "just as if he had paid the rates himself" If payment of the taxes, as the foundation of the right of voting, was thus set aside, d^ £S qualifica- tion became just as defensible, or the reverse, as one of ;^ 10 might be. But every discussion on the point led to decisions, carried bythemajorityat numerous meetings, in favour of lowering the qualification. A like con- clusion resulted from the discussion of the matter by the organs of public opinion. There now began and continued, through half a generation, a rivalry between Liberal and Conservative party ministries in connection with Reform schemes, each trying to outbid the other for the popular favour. At the last turn of the table (1866) Gladstone offered in favour of occupiers a lowering to ;^I4 in counties, and to £,J in towns, but was outbid by Disraeli, who now (with certain amend- ments on the part of Gladstone) came down to £,\2 for counties, with a general equalization of household franchise for boroughs. In a Parliament wearied with electoral discussions, the third reading of the Reform Bill of 1867 passed in the Lower House, even without a division, with the following results : — I. In reference to electoral districts, the Second Reform Bill also proceeded cautiously. It did not withdraw the right of vote altogether from any electoral districts ; but 38 boroughs under 10,000 inhabitants were limited to one member. Liverpool, Manchester, Birmingham, and Leeds obtained a second member, and ten new boroughs were created. In electoral districts returning three members only two votes were to be TJie Refonii Act of 1867. 425 given in order that the experiment of the minority vote might be practically tested.* II. As regards the right of voting, the 40J. free- holders in counties retained theirright.butthefreeholder for life only in case of his being in actual possession ; the;^5 freeholders received it also without any such condition. In like manner the £$ copyholders and leaseholders and all other tenants, as ^12 occupiers. In the towns every householder (owner or occupier) of an inhabited house, or of an independent dwelling; also sub-tenants when the unfurnished apartments represented a i^io value.f III. The mode of election remained for the time being unchanged, although the introduction of secret * Elections by minorities, after the Reform Bill of 1867, were quietly set aside in the third Reform Bill, as mere experiments that had failed. The endeavour to exact that actual payment of taxes shall have been made as a precedent condition to the right of exercising the franchise will be treated of in the following section. Respecting the modifications in the Reform Bill for Scotland and Ireland, as well as the technical details, I would refer to the special treatises, particularly to Lely and Foulkes, " Parliamentary Elections Acts, 1885." t The most important differences between the first and second Reform Bill in regard to the right of voting are the following : — (i) In parliamentary boroughs the first Reform Bill conferred the vote on every occupier, whether landlord or leaseholder, of houses, shops, warehouses, or other buildings of an annual value of ^10. It was subsequently computed that, according to this proportion, about one-tourth of the voters in towns belonged to the class of journeymen, certainly very unequally distributed and concentrated m greater masses in the chief cities and in manu- facturing districts. The second Reform Bill dropped the ^10 qualification, and thus included the working population in the mass so far as they possessed a dwelling of their own. But the principle that each household ought to be represented did not well suit the position of the sub-tenants, whom it was not, however, the intention entirely to exclude. There was conse- quently, in their regard, a conditional right of vote adjoined, 426 The FariUiinents of the Nhicteentli Century. voting was already in prospect. Simultaneously the Lower House relinquished the decision as to contested elections, leaving it to the Judges of the Realm. The anticipated result on the passingof the Bill was an increase of about 2,ooo,ooo, and from the results of the twofold increase at the first Reform Bill the effect of the threefold increase under the second was to some extent foreseen. provided they have been for some time sub-tenants of a dwelling- place which, as unfurnished rooms, would represent a value of ;^io, as also under condition that the occupiers be personally inscribed on the voters' list. (2) In the counties the second as well as the first Reform Bill retained the right of vote for the 40J-. freeholder unchanged. On the other hand, the qualification of freeholders for life, copy- holders and leaseholders for sixty years, was lowered from ^10 to ^5. For the qualification of ^50 for tenants at twenty years and upwards, and according to the Chandos clause for tenants of every kind paying ^50 rent, there was substituted a right of vote for every occupier of a rural holding of ^12 value. (3) In like manner in both Reform Bills the fundamental principle was carried through, that the several kinds of possession, according as the property was freehold, copyhold, or leasehold, retained the right of vote unconditionally virtiite possessiottis ; the temporary occupiers of a real estate (tenants, lessees, and other occupiers) exercise the franchise only on the pre- supposed condition of a longer possession, and that they have been duly assessed and have contributed to the public taxes. But the duration of occupation was shortened in subsequent enactments, and the requirement of the prepayment of taxes was set aside by means of '* compounding rates." XI. m §:\x\mm\b of % igtlr Scutitrg um to the ^hivl) Reform gill (1884-85). THE second Reform Bill, after its full development, settled the electorate for England and Wales according to the last returns (1885) as follows:— I. In the Counties : — Freeholders, Copyholders, etc. 514,226 Occupiers and Tenants . . . 452,493 II. In Boroughs : — Householders and Leaseholders 1,592,225 Sub-tenants 21,918 Freeholders 37.589 III. Together, electors in counties, 966,719; in boroughs, 1,651,732 ; further 3I0.44I em- powered to vote in Scotland ; 224,018 in Ireland, and 30,642 for the Universities- total, 3.183,552. Compared with the electoral system of theContment, this presented no immoderateextension of the franchise. For England it sufficed to render visible and sensible, more especially in the region of political reforms, the 423 TJie Parliaments of the Nineteenth Century. organic fault committed throughdisplacing the founda- tions of the parliamentary constitution. The group of social reforms which had already two decades earlier abolished the electoral qualification for Members of Parliament now directed its efforts against the remaining bulwarks of the old ruling class. On occasion of the army reform the qualification for officers and holders of commissions in the militia, as well as the right of nomination in respect of Lord-Lieutenant were abolished ; and in the standing army the entire system of purchase was swept away. In the Upper House proposals for divesting the Bishops of their legislative functions were rejected, but a beginning was made in that direction by the exclusionof Irish Bishops. In the same way a movement in favour of completing the Upper House by adding life Peers (1869) was rejected; but on occasion of the reform of the Courts of the Realm certain life Peers were tacitly added to the House, and these appear but the forerunners of many others. More serious was the attitude of public opinion on occasion of every attempt at opposition on the part of the Upper House, the influential Press indulging in comments on the expediency of "another House" with utter disregard of the constitutional significance for England of such an institution as the House of Lords. Through the unhappy condition of things prevailing in Ireland a violent blow was levelled at the economic privileges of the landlord class, the thoroughly radical land measures seeking to repair deep wrongs of past generations by trenching on the rights of ownership of the living generation. The further attacks levelled against family settlements, and against the obstacles DiscstahlisJuneitt of the Irish Chinch. 429 in the way of transference of landed property, have so far resulted only in introducing certain limitations of the former and a few simplifications of the latter. But the agitation against the immoderate extension of large estates, and in favour of the conversion of the relations of tenancy into those of a peasant freehold, under the cry of " free land," appears to be continually on the increase, and in coming years may assume a very threatening aspect. The demand for an equality of religious rights again directed its energy against the Anglican Church in Ireland, whose status, as the solely legal State Church for a little more than one-tenth of the population, had become less and less defensible since the passing of the " Emancipation " Act. With comparatively slight oppo- sition, the disestablishment of this Church, with partial alienation of her property, was effected in 1869, and this measure may be regarded as a first step towards a further process of disestablishment, which began in England with the abolition of Church rates in 1868. Noteworthy at the same time is the steady progress of social reforms in favour of the working classes. Such are the more comprehensive extension of the Factory Acts, the thorough improvement of sanitary regulations involving heavy sacrifices for the com- munity ; the energetic enforcement of compulsory education with reduction of the charges for attendance, in view of their ultimate abolition ; the rapid and pro- gressive formation of School Board schools for children of all denominations ; the gradual establishment, by comprehensive enactments, of a Jus cBqiium and of a reciprocity of obligations as between employers and 430 TJic Parliaments of thz Nineteenth Centnry. employed ; the earnest solicitude manifested for the erection of better dwellings for the working classes and measures connected therewith, which although not pre- venting the revival of socialistic movements, may still help to keep them within due bounds. The second group o{ administrative reforms has also assumed a more decisive character. The standing armj has become a normal institution of the land by the passing of an army organization law with settled rules, the right of annual ratification being reserved in view of possible modifications being called for; by the abolition of " Purchase," involving a sacri- fice of ^8,000,000; by the incorporation of the Indian Army with the armed forces of the empire ; by the settled organization of all branches of the army ; by the formation of reserves; by the incorporation of the militia and volunteer corps with the reserve forces, and by the strictly uniform administration of the whole military system through the newly-instituted Secretary- ship for War. After long opposition the judieial reform has im- parted a completely modern structure to the Superior Courts, by combining into one great Court of the Realm, in five divisions, and one Court of Appeal, the Lord Chancellor, Vice-Chancellors, and all the superior Judges, merging the Courts of Common Law, Equity, and Ecclesiastical and other Courts into a system, as near as possible, of uniform jurisprudence, and an entirely refashioned mode of procedure. In the province of the finanees important measures have been the combination of the fragmentary taxing- department intotwo chief RevenueofficeSjtheextension. Extiiictioji of Cojiimunal Life. 431 of the government postal system by the purchase of all private telegraph lines, and the further extension of State supervision to the railways. In regard to Home matters, the municipal administra- tion has steadily advanced by means of elected boards. The charge of maintaining the poor has been trans- ferred from the Parishes to the small district Unions. The control of Highways and Boards of Health is being progressively incorporated with the same system. The new unions of combined parishes have been made to coincide as far as possible with the official district of the jurisdiction of the Justice of the Peace (the hundreds, or divisions, as they are now called). In the boroughs legislation has been directed towards a possible merging of the town councils with the special Poor, Highwaj-, and Health Boards. The bureaucratized system of the Home Department was combined in 1871 into a new Ministerial Department — " Local Government Board." A similar course, although in smaller circuits, has been adopted by the Elementary School organization. Un- fortunately with these innovations disappear the last remnants of local communal life. The parish sinks into a mere district for the levying of rates and the election of boards. As the general result of these com- binations, according to the Census of 1881 there now exist for the economic communal administration : 242 Towns possessing a municipal organization, 649 District Unions, 424 Highway Unions, 1,006 Urban Sanitary Districts, 577 Rural Sanitary Districts, 2,051 School Unions, 5,064 Parishes for administration of Highways, 14.946 Parishes for Poor administration, 13,000 Eccle- siastical Parishes and a few other less numerous 432 TJic Parliaments of the Nineteenth Century. organizations, which run great risk of being merged at the next reform into a mere mechanically uniform system of boards, under control of a central depart- ment. At the same time the boards, with their universal suffrage and ballot, are everywhere pre- paring the way for further parliamentary reform. For University reform there now followed the more sweeping University Reform Acts of i8So, and for popular instruction the comprehensive National Educa- tion Acts of 1870, 1873, and 1876, which, by the aid of considerable public grants, consistently developed the Elementary School system, with energetic applica- tion of the compulsory principle, uniform introduction of committees for school administration and inspec- tion, and equality of rights for all denominations. In Parliament itself utterance was given to the keynote that, by the vast extension of the franchise, "'our future masters " should at least be to some extent educated for their future mission. By the thorough eradication of the abuses of party patronage, the reform of the Civil Service has, on the whole, been carried out with fairly good results, although perhaps in a somewhat formal spirit.* In thisdepartmentalsoan unbiased judgment cannot withhold recognition of the practical insight and vigour of such parliamentary legislation, so far at least as con- cerns the attainment of the object immediately in view, * The outside public may also feel grateful for the improved codification of Parliamentary Statutes effected by a duly qualitied standing Commission, which has swept away as obsolete a vast body of antiquated parliamentary enactments, thus rendering possible the discovery of statutes really useful for practical purposes. The Franchise and Taxation. 433 and apart altogether from any consideration of the ultimate consequences of these measures. But the dark side is revealed in the third depart- ment of organic legislation bearing on the communal and parliamentary constitution, in which the dissolu- tion of the coherent elements advances at an accele- rated rate. During the deliberation concerning the Reform Bill of 1867, the Conservatives had made one more serious effort to insist on the " payment " of the rates as a preliminary condition, and as a standard whereby to determine the exercise of all electoral rights. The difficulty of carrying this out consisted in the fact that the rights of election were hitherto based on the quality of " tenure," as held by owner, leaseholder, or tenant. But a clause was passed to the effect that the occupier, for whom the owner has undertaken the compounding rate by payment of the taxes, was to have a vote only on " personally " undertaking to pay them. But the influence of recognized habit and of convenience, the presumed difficulty of execution, and above all the desire of social equality, contrived to remove this obstacle. The law for assessing the Poor-rate (1869) promptly reverted to the principle that the occupier is to have the right of vote, whether he pay the tax himself or "through his landlord," provided only that somebody pay. This solution may certainly be recom- mended for its simplicity and for its seemingly humane consideration, which emancipates the working classes from tax on rent and all direct communal taxes, just as the higher classes have part released themselves from all personal obligations. But when the consequences 28 434 The Parliaments of the Nineteenth Century. were seen on a large scale, it became at once evident that, by exonerating the citizen from all civil duties, the Legislature itself left nothing but his " common manhood " as the sole basis of his claim to the highest political rights. The reduction of the civil status in the State to the abstract notion of the "citizen," the dis- section of Society into minute fragments, hitherto usually charged to the account of one political party alone, was here carried out by both parties alike, in their eager competition for the favour of public opinion. Henceforth there is no longer any fundamental prin- ciple which can be opposed to any demand for the suffrage, not even to that of women and minors. There is thus opened up a veritable chaos of innovating theories connected with reform. For the inborn right thus constituted consistently claims its practical appli- cation as an act of /^ri^^wrt:/ sovereignty, independently of connection with any particular district, without any kind of responsibility, and by the ballot, which in fact soon became the all-engrossing question of the moment, and followed immediately upon the scond Reform Bill (1872). The House of Lords made a further show of opposition, but yielded assent to the bill in the following session, looking upon it as a temporary measure, while under such mental reser- vation the Ballot still, from year to year, holds its ground down to the present time. Under these circumstances proposals for ^«/<3:r^/;/^the franchisefollowed directly after thepassingof the second Reform Act, the rage for equality being now turned against the equality of representation in borough and county. Why should there be in the one case, a The Reform Acts of 1884-5. 435 uniform equality in regard to householders, and in the other a qualification ? The cry of " Equality of Fran- chise" already made itself heard in 1872 with fresh proposals for reform. Still more far-reaching was the demand for equality of electoral districts, that is, for grouping an equal number of electors in the several electoral districts. Pitt's old principle that electoral districts should be formed according to an average number of inhabitants and the amount of taxes paid, nowseemedto be an already secured platform. Against the impetuous torrent of all these demands Parliament was unable to hold out for more than half a generation, Government introducing the Third Reform Bill, the Representation of the People's Act in 1884, and the measure for the Distribution of Electoral Districts in 1885, which with some appended enactments jointly form a group of nine new constitutional laws. I. In regard to electoral districts, the equalization, in other words, the radical remodelling of electoral dis- tricts on the basis of an average equality of population, was now carried into effect. For this purpose 79 towns with less than 15,000 inhabitants were deprived of the right of returning a separate member; 36 towns, with less than 50,000, retain only i member; 14 large towns obtain an increase of members in proportion to the population ; 35 towns of about 50,000 obtain a new franchise. The counties have been throughout divided into " electoral divisions " of about equal population, each returning i member. This single-seat system has also been uniformly carried out in the boroughs, with the exception of 28 middle-sized towns, which have been left with 2 members. Thus the County of 43^ The Parlianmits of the Nineteenth Century. York forms, for instance, 26 electoral divisions ; Liver- pool, 9. In a word, the result is that the counties return 253 members (formerly 187), the towns 237 (formerly 297). The average population of the county electoral divisions is now 52,800 (formerly 70,800) ; the average number of the town electoral divisions 52,700 (formerly 41,200).* II. In respect to the franchise, the Third Reform Bill is founded on the simple principle of equalization, in such wise that the right based on payment of house duty in boroughs has now been extended to counties. The occupation of a dwelling house, or of a separate abode, or of an unfurnished lodging of ^10 yearly value, suffices also for the county franchise. In order to effect uniformity with the towns, the qualification of the occupier in counties has been reduced from £\2 to £10. All formal electoral rights have been main- tained, as in all previous Reform Bills; and in addi- tion, a few electoral privileges, for instance, in favour • The schedule of the electoral districts appended to the Bill gives the constituent elements of each. The electoral districts of the counties consist, as a rule, of one or more sessional divisions, which generally coincide with the district poor law unions ; then of one or more municipal boroughs, or former parliamentary boroughs, and, mostly', of a large number of parishes, which were detached from other unions in order to round oft" the new electoral district. The town electoral districts are at least compounded of unseparated wards, but partly also considerably extended by addition of a rural population. The electoral bodies thus newly amalgamated brought about, under the present conditions, radico-liberal majorities, at first very disunited among themselves, but soon capable of action through the decided predominance of Radical elements. So great is the confusion of political principles, owing to each fragment looking only to its immediate interests, that this most hazardous feature of the equalization system was carried by the Conservatives themselves. The Reform Acts of 1884-5. 437 of the occupiers of official residences, have been newly created.* III. In regard to the mode of elections, the hours for voting were generally fixed at from eight in the morning to eight at night, during which the voter's ticket, based on the system of nomination papers, * Omitting the less important details, the franchise is consti- tuted as follows : — (i) By means of the preliminary conditions common to all, there remain excluded : minors, women, such as have been sen- tenced to more than twelve months' hard labour, the paid police corps, and paid election agents. (2) Common to the counties and boroughs is the " House- nolder's Franchise," for every inhabitant, occupier of a dwelling house, or of a self-contained abode during twelve months, assessed to the communal rates during this period. To this is added the right of vote of "lodgers," i.e.^ of sub-tenants holding an abode of ^10 value (reckoned as unfurnished) under the preliminary condition that they are inscribed on the electors' lists. (3) Special electoral rights for counties : — a. Freeholders' qualification ; freeholders of 40^. value, if in possession for six months, or acquired by inheritance, etc. ; freeholders for life, only under prehminary condition of actual possession, or inheritance, etc., without which only freeholders of ^5. b. Copyholders of ^5 value, in possession for six months. c. Leaseholders (leases for at least sixty years) of £,^ value, if in possession for twelve months. d. £10 occupiers ; tenants-at-will or other possessors of land of £10 value, if in possession for twelve months, assessed to all communal taxes during the same period. (4) Special electoral rights for boroughs ; the ^10 occupation has, for the sake of equality, been transferred also to towns, for every occupier of lands of^^io value, etc. The election lists are yearly posted up in September and October, and the requisite periods of occupation reckoned from the previous 1 5th July. The requirement of a longer possession is considered as complied with, if the possession is dependent on inheritance, marriage settlement, or office. The requirement of assessment to the municipal taxation is similarly considered as complied with, if the occupier is assessed himself or " by his landlord." But the tax must also be paid for a stated period. 433 TJie Parliaments of the Nineteenth Century. may be deposited according to the convenience of the person empowered to vote. The further amendments of the Bribery at Elections' Bill, and the Proceedings at Elections, are of little importance. The number of the newly-enfranchised electors has been somewhat doubtfully estimated at about two millions. One thing only is certain, that the newly- added are still less qualified to keep the traditional parliamentary government alive than the previous two millions. The enthusiasm with which the first Reform Bill was carried, had already toned down at the second. The third passed with a feeling of resignation in both camps, after each had, however, by exhausting all means of agitation, endeavoured to get the better of its rival. The hope entertained by the Conservatives that the increase of members for counties, and the division of the large towns into separate electoral districts, would redound to their advantage, cannot be realized. For any such advantage is far outweighed by the fact that the gentry acting as Justices of the Peace lose their stronger cohesion in the county through the General Sessions of the peace, and find themselves henceforth divided into smaller sessional districts, confounded and set on a level with the Poor Law Boards, in their loose connection with the parishes. To this is added the fatal lack of a landed yeomanry and of a settled agricultural population. Both parties have hence- forth rather become doubly dependent on the inte- rests and fluctuating opinions of the day. As in the case of ecclesiastical Reformation, England The Yearnhig for Equality. 439 follows also in the transition to the new order of Society a precisely opposite course to that of Con- tinental nations. Although standing on a higher level of development, she reached towards the close of the nineteenth century a position analogous to that of the Continent at the beginning of the formation of its con- stitutions. In name, at least, there certainly still exists a House of Commons, but there are no longer any Couuniinitates, no longer any of those old-fashioned associations bound together by a sense of duty, but only social groups which find their bond of union in the ' Press, and in the right of association. After the dis- appearance of that control, which in the old {Ti^ww/z^/Z^^^j moderated individual interests by a constant considera- tion for the requirements of the moral and legal orders, and which accustomed electoral bodies to that measure of self-restraint, political insight, and respect for the law with which parliamentary party rule might honourably exist, those social views of life alone now remain effect- ive, which concern themselves only with the struggle for rights, and which, like a piece of clockwork, are incessantly moving inone and the same direction every- where throughoutthecultured peoples of modern times. The Socialistic impulse towards equality at all times advances its claims primarily on the ground of fun- damental rights. "Equality and freedom" of the person, of property, of the right of association, of the Press, freedom of Churches, of denominational teaching, etc., are all self-justified and immutable assumptions of modern Society, but which, as abstract party cries in unequal relations, lead to contradictory claims that can never be satisfied. 440 The Parliaments of the Nineteenth Century. The Socialistic impulse towards "equality" de- mands, under the name of self-government and com- munal freedom, not corporations bound together by the ties of duty for the responsible administration of the laws and business of the State, but freely-elected boards, invested with autonomous authority to pass resolutions, and to appoint to offices. The Socialistic impulse towards equality exhausts its theories of a constitutional State in the free election of a popular House, which, as Administrative Council of the nation, frames autonomous resolutions and appoints the ministers who are to carry them into execution. But when the Socialistic impulse towards equality gravitates from the middle to the working classes, it claims further an equality of property, and a fixed standard of value for labour, thus clashing with the political impulse towards equality, and leading to flagrant and irreconcilable contradictions in the es- sential conditions of Society, Church, and State, but affording the demagogue a free field in all directions. Apart from an earnest and uniform performance of personal civic duties in the State, no means can any- where or at any time be found to stem the elementary force of these currents. If after the second Reform Bill this striving for equality asserted itself with redoubled energy, after the third Reform Bill a triple force of impact, and a more acute character will be imparted to social, administrative, and political re- forms, renderingthe Constitution still more democratic, the administration still more bureaucratic. For the " Era of Radical Parties " has now arrived, and with it the sway of the Caucus and of political wirepullers. The Coining Radicalism. 441 whatever little natural inclination the English people may have for aping these American institutions. Street riots now no longer, as in former days, con- stitute the danger of the living generation, thanks to the general improvement in public instruction. But the peril now lies rather in the puritanical fanaticism displayed in favour of equality, a fanaticism which follows the track of Bentham rather than of the French Revolutionists, but which will on that account penetrate all the more deeply.* Against all this the ever-recurring objection might still be raised, that after all the present structure of the electoral bodies is only such as, without any great risk, has more than once been already tried on the Continent, under strong monarchical initiative and guidance. But it must be borne in mind that the tenfold increase of votes in the lapse of half a century has a very different import for England, since the existence of Ministries and the course of State government have become almost exclusively dependent on the House of Commons. After the disappearance of all means for moderating the con- flicts of social interests, this kind of party rule falls into a helpless dependence on unforeseen combina- tions of social interest, on relatively violent prejudices, on political agitation, and the tactical skill of party • It is again a self-delusion, if any one believes that the thoroughly-ingrained aristocratic bias of the nation will prevent England from passing through these crises. The only result of this sentiment will be that famous old historic names will be found at the head of the Radical movement just as in the struggles of the seventeenth century, to which the near future will in all likelihood offer some parallels. /^ i^ 442 The Parliaments of the NineteentJi Centiuy. movement, to which, even under the Second Reform Bill, both Disraeli and Gladstone owed their respective positions. The twofold division into a Conservative and Liberal parliamentary party, hitherto needed for the parlia- mentary rule, in reality now no longer exists. For a length of time, side by side with the two parties, there have existed (as in Germany) radical, denominational, national sections, having each their special interests, with " independent " members and others, whose number is slowly, but steadily, on the increase. The bearing of the English Parliament has already become so changed under the influence of these factors, that it has been found expedient to impose certain restrictions on the liberty of speech, once even (in 1881) by the exclusion of thirty-two fractious members. (A special measure for controlling freedom of debate was also passed by the Salisbury Government in 1887.) Already since the Reform Bill of 1867 the dis- memberment of parliamentary parties has substituted for a party government on traditional lines the quasi- dictatorial position of a single statesman, as personal interpreter of the actual average of " public opinion." Hence till the advent ofRadical Governments Coalition Ministries alone will be possible. In this state of things, a comparison with the older experiences of the Continent is again forced upon the student. Here we again see the same amazing short- sightedness of the propertied classes for the crises pending in the near future, due to the fact that in limited social circles the displacement or disturbance of the main relationsis not readily perteived. The inactive. TJie Political Forecast. 443 Peer, who in previousgenerations formed the exception, has become an every-day phenomenon at a time when the very existence of the House of Lords is at stake. An irresistible desire to wander abroad has taken possession of the landed gentry, at a time when their presence on their estates has become more necessary than ever, in order not utterly to lose their waning local influence. The daily Press and current literature are engaged with unwearied zeal in every department of natural and moral science, as if the great vessel of the English State had already been safely piloted into a harbour of refuge. The daily Press dwells in a fool's paradise of self-oblivion and self-deception as to the vital conditions of the State, as if the question of " to be or not to be " of the parliamentary constitution were still to be decided with a sort of papal infallibility by mere force of public opinion. All moves as formerly in France and Germany when on the very brink of the precipice. But at the same time our earlier experience points to the solution of the problem. Little as the public opinion of the day seems inclined to open its eyes to the down- ward tendency of the State, all the more wonderful and irresistible will be the reaction when the political and social catastrophes have occurred, whether they proceed from within or from without, or, as is wont, from both simultaneously. The outside observer may perhaps venture to prophesy that it will be hard to recognize the present public opinion at the close of the century, and that the leading periodical Press of the day would be struck dumb were it allowed to read itself at that date, and to see how disastrous for the destinies of the 444 TJie Parliaineiits of the Nineteenth Century. nation had been its blind worship of public oj^inion. Assuredly the propertied classes will not display their finest qualities while engaged in the defence of their property, although it may be otherwise with the nation as a body. The blows of fate and hard trials still evoke the real spirit of heroic and noble races ; for then only is aroused in its full force the slumbering sense of duty towards the State. In such times of trial France and Germany alike were found capable of submitting to the heaviest sacrifice, which it is at all in the power of society to endure, in the universal obligation to personal military service. Surely the courage, the strength of character, and the practical insight possessed by the English people, as unfolded in the thousand years' evolution of its life history, afford no less assurance that here also the sense of public duty will be reawakened, and will succeed in reconstructing the shattered frame- work of its free political constitution. For the organism of the State shares with the human frame itself the faculty of restoring or reconstructing the impaired or mutilated functions of the system.* * The foregoing estimate of pending events was deduced by the author from the elements of the present Constitution in October 1885. He naturally avoided, however, entering into the several questions of the day, because to anticipate the sequence of events seems as difficult as weather forecasting. At the same time, the reader may perhaps be glad to have the author's view on the Irish question, as recently expressed by him in the Deutsche R^vue (Dresden, March 1887) : — " The thorn in the side of the parliamentary constitution is Ireland, whose relations of dependency have reached a strained point, partly through former wholesale confiscations, partly through subsequent centuries of neglect and administration to the profit of England. The dispossessed native population is agitating for an agrarian legislation intended to create a national middle class with hereditary rights to the possession of the land. The Political Forecast 445 The next task for organic legislation is the now necessary remodelling of the county administration, in which the revival of personal civil duties in the " self- government" has for England almost the same signifi- But the Stein-Hardenberg agrarian enactments, which may seem to be the most obvious model, and which have, in fact, been frequently appealed to for such legislation, are in no way applic- able to Ireland. Those Prussian measures conferred free posses- sion on a peasantry, which in lieu of knightly tenure had for ages paid the land taxes, and discharged the duty of personal military service. The legal right to a share in a ' distributed estate ' was here the same as in mediaeval times, when the feudal lords claimed and obtained the hereditary possession of their fiefs. The new Irish land measures, on the contrary, involve partial confiscation of a private income, exclusively on the ground of political and economical expediency, for which no legal title can be found, and consequently to which no limit can be assigned. The thirst for plunder thereby awakened will next spread to Wales, Scotland, and old England itself, and, combined with the assaults on the English State Church, must drive the large landowners and the ruling class from the Conservative ranks, and constitute them a reactionary party. But the social tendency thus introduced can only have the further consequence of separating Ireland from its parliamentary connection with Great Britain. The already suf- ficiently loose cohesion of both countries must completely lose the preliminaiy conditions of a common popular representation through the hostile attitude of the two powerful Churches, and the intensified animosity of the two races. This severance of the Irish pohtical State will even become necessary in order to restore to the British Parliament that homogeneous basis on which depends the active efficiency of the parliamentary body and its parties. On the other hand, such a system of ' Home Rule ' will have to be conferred on Ireland as may be possible for a predominant Celtic nationality, and for a population broken into factions by religious and racial antagonism. This form of the future ' imperial pro- vince ' may possibly approximate to the ' Napoleonic Constitution' with a Parliament whose members are mostly nominated by the Crown, and an administration through provincial Prefects aided by a Council, who have in some districts already acquired a greater degree of independence, giving hope of the introduction of a genuine system of self-government in the next generation. That the highly-gifted Irish people, through their lack of self-con- trol, are unsuited for the direct adoption of English institutions, is evident even from the experiences of the United States of 44^ The Parliavients of the Nineteenth Century. cance as the universal duty of military service for the continental states. In the very performance of this task the opulent classes will at last more clearly per- ceive the process of disintegration at work in the body politic, and it is conceivable that under the guiding influence of the monarchy the process itself may be ar- rested and a change for the better introduced. At all events, the Crown will ward off the extreme dangers of a democratic control of the foreign affairs of such a widespread empire, having already with wise fore- thought resolutely upheld its prerogative in this depart- ment (1850). In the life of nations as of the individual, the true friends are those who, instead of flattering, forecast the pending storm. But, however uniform the direction of the social movement in the Central America. That such organic transformations, according to the plans of Gladstone, could be simultaneously carried out, might seem possible from the example of Germany under a strong monarchy. But under the system of party rule they can run their course only by fits and starts amid the fierce convulsions of the whole social body itself. For the present party programmes they must diverge too far in both directions, thus conjuring up the approaching 'era of radical parties,' which will alone be capable of carrying Irish Land Bills, sweeping reforms of land- ownership and of the Upper House, together with a certain ' Dis- establishment of the English Church.' The ensuing reactionary movement will probably be the first capable of conferring a suitable constitution on the ' Imperial province of Ireland.' Then under a more moderate party movement some prospect may be entertained that in due course a fresh beginning may be made with the inner reconstruction of the Constitution on the basis of the new and again coherent CoDimunitates^ together with a renewed strength- ening of the influence of the propertied classes and a return to normal parliamentary action. During its long and glorious history the British people has happily passed through many dangerous crises. But the long cherished hope that therefore the great social conflicts of the Continent may be avoided through the re-constitution of modern Society, will in the near future prove to be a self-deception of public opinion." The Political Forecast. 447 European world also, all the more divergent has been the outcome, according to the varied character and previous political history of the several nationalities. But while it may be inevitable that for their well- being the life of nations as of individuals should undergo such trials, the whole past history of England contemplated as the creation of the moral and legal consciousness of the nation in its thousand years' development, justifies the confidence, that she will weather the pending storms, discovering in her own past the materials for the reconstruction of her free political constitution, as did the German nation, whose latent power has at all times resided in the Communal system. INDEX. Abbots, Anglo-Saxon, 28. "Abhorrers," 298. Act of Settlement, The, 314. Acts of Supremacy and Uni- formity, Elizabeth, 223, 224. " Addressers," 298. Administrative Jurisdiction, 324- Reforms inthe Nineteenth Century, 403. Advertisements, Abolition of Tax on, 420. ^thelingas, 30, Aids, 56, 97. Alfred the Great, 9, 21. Algernon Sidney, 292. AUen Act, The, 380. Allodial Owners, 65. Allotments of Land to the Saxon Invaders, 6. Amerciamentum, 54, 55. American War, 370. Angles, Origin of the, 4. their Occupation of Britain, 4. Angli, 67, 94. Anglo-Danish Thane, 67. Anglo-Saxon Period, Bibho- graphy of, I. Legislature, 23. Anglo-Saxon Monarchy, 9. Anglo-Saxons, 4. Churcti System, 13. General Assemblies, 15. Legal System of the, 10. Military System of the, 9. National Council, 26, 30. Anne, Queen, Party Rule under, 365. Anti-Corn Law League, 400. Appeal Courts, 329. Appellate Court, Norman, 71- Appropriation Clauses, The, 286. Army Organization under Ed- ward III., 192. Under the Georges, 315. ■ Standing, how far legal- ized, 315. Organization of, in the Nineteenth Century, 430. Assisa Generalis, 34. Assize-at-Arms held by Henry II., 52, 89. Assizes of Clarendon and Northampton, "]■},• Athelingi, 30. Athelred the Unready, 37. Auditors, 163. 29 450 Index. Aulicus, 33. Auxilia, 56, 76, 97. Balance of Power, 363. Ballivi Civitatum, 180. Hundredi, 180. Ballot, The, 417, 419. Bancum, 88. Bankruptcy, Court of, 404. Bannerets, Creation of, 201, 202. Bare-bone Parliament, The, 276. Barnadistone, Trial of, 292. Baron, The Title of, 149. Baronet, Title of purchasable, 306. Barons, Norman, 62, 67. Conflict with John, 90. Bill of Attainder, 167, 199. Bishops, Anglo-Saxon, 28. Blackstone, his Commentaries, 359- Blake, 261. Boc-land, 6, 48. Boni homines, 16. Bordarii, 46. Borough Administration, 132. Representation, Growth of, 178, 180. Boroughs deprived of their Charters by Charles II., 296. Increase of, 132, 285. The Rotten, 387, 391, 395. Bradshaw, 261. Brand, his Proposals, 388. Britain, Inhabitants of, 92. Condition of, in Fifth Century, 3. Native Rulers of, 2. Britain, Severance from Rome, 2. Burgh-reeve, 30. Burh-gemots, 13. Burhs, 13. Burke, his " Reflections on the French Revolution," 387. Bystanders, 16, 32, 33. Cabal, The, 289. Cabinet of Charles II., 289. Canons of Convocation, 245 Capital and Labour, 389. Cardinal Pole, 223. Carucagia, 153. Catholic Restoration under Mary, 221. ■ Emancipation, 371. Cato Street Conspiracy, 388. " Cavaliers," 260. Celts, 2. Census for the Franchise, 176. Central Criminal Court, 404. Ceorls, 15, 64. Cerdic, 36. Dynasty, 39, 41. Certiorari, Writ of, 329. Challenge, Process of, 53. Chancery, 134, Charles I., Character of, 252. his Execution, 264. Proceedings against, 263. Charles II., his Administra- tion, 286. • his Intrigues with France, 290. Charta de Foresta, 99. Charter of Ghent, 159. Charters of Incorporation, 342. Chartist Movement, The, 401. Index. 451 Chivalry, Courts of, 202. Christianity, Early Introduc- tion of, 2. Results of, 41. Church Action against Here- tics under Henry IV. and v., 186, 187. Church and State, Party Cry, 357- Rupture between, under the Normans, 81, 85. Church, Anglo-Saxon, 24. Church Government under the Normans, TT, 79. Church Legislation under the Tudors, 236. Church Organization under the First Edwards, 185. Church Organization under the Georges, 318, 319. Church Organization under the Tudors, 216, 224. Church of Scotland, Schism in the, 410. Church, The Universal, 244. The National, 245. Rate, 322. Churchwardens, 225. Cinque Ports, Representation of, 182. Civil Law Courts, 324. List, The, 317. Act, 370. Marriage Optional, 411, Prerogative of the Nor- man Kings, 54. Service Reforms, 432, War, The, 260. Civitates, Assemblies of the, 31' Clarendon, Constitutions of, 86, 89. Clarendon, Lord, 256. Cnut, 36, 37, 39- Coalition Ministries, 354, 442. Coats-of-Arms, Use of, 202. Coke, Chief Justice, Dismissal of, 255. Colonial Administration, 407. Comites, 33. Committee of Resistance, loi, 106. Commoners. See House of Commons. Common Law, 18. The Three Courts of, 133. Common Pleas, Court of, 133. Commons. See House of Commons. Commonwealth, The, 265. its Administration, 269, 270. Communal Courts, 40. Conflict between Stephen and Matilda, 84, 85. Conservatives, 340, 421. Consilium Regis, 17. Optimatum, 89. Constable, Title of, 201, 413. Constitution of the Anglo- Saxon Church, 13. Anglo-Saxon National Council, 30. Continual Council, The, 133, 134. Merged in the Great Council, 146. " Convention " Parliament, 281. Convocation, 237. 452 Index. Convocation, Canons of, 245. Suspension of, 319. Copyholders, 309. Corn Laws, Repeal of the, 399. Corporation Act, 381, 386. Corrupt Practice Prevention Act, 397. Court Baron, 51. Days, Norman, 58, 69, 82. Leets, 51, 132. Court of Chancery, 386, 404. Courts of Law, Reforms of in the Nineteenth Century, 404. Courts of Law under the First Edwards, 127, 128. County-rates, 131, 328. Cowel's Interpreter, 251. Crewe, Chief Justice, Dis- missal of, 255. Criminal Courts, Norman, 54. Criminal Law Courts, 324. Reform of in the Nine- teenth Century, 464. under the First Edwards, 130. Cromwell, Lord Thomas, 219. Oliver, 262. his Administration, 266. Character of, 273. his Death, 279. Cromwell, Richard, 279. Crown Commissioners, Itiner- ant, 88. Vassals, 59, 61, 62. — Great Wealth of the, under Edward II., 189. Crusades, Results of, 63, 64. Curia Regis, 53, 58, 59, 60, 69. Curia, Various Meanings of, 58. Customary Courts, 51, 69. Customs Tariff, 386. Cyning, Title and Functions of the, 8. Dane-gelt, 24, 76. Danes, Alfred's Treaty with the, 21. Danish Inroads, Effects of, 7. larls, 36. Settlers, 36. Dapifer, 33. Declaration of Rights, 304. Defectus Justicias, 19. Delegates, Court of, 330. Desbury and Danby Adminis- tration, 289. Digges Vane, 261. Discifer, 33. Disestablishment of the Irish Church, 429. Disraeli, his Reform Act, 421. Dissent, Growth of, in the Nineteenth Century, 381. Distress, Feudal System of, 55- Divine Right, Theory of, 245. Divorce Court, 404, 412. Domesday, 46. Duces, 33. Duke, The Title of, 149. Duke of Gloucester, his Mur- der, 196. Duke of Monmouth, his Re- bellion, 299. Duke of Northumberland, Re- gent under Edward VI., 221. Duke of Suffolk, his Murder, 196. Duke of York, Founder of the House of York, 197, 198., Index. 453 Earldom, ii, 33, 150. Earls, 50, 149. East India Company, 386. East Indian Empire, 407. Ecclesiastical Jurisdiction un- der the Normans, 57. ■ Titles Act, The, 410. Education, Grants in aid of, 402. Edward, the Confessor, 36. Edward I., Growth of Parlia- mentary Institutions under, 123, 125. Edward IV., High-handed Measures of, 199. Edward VI., his Dogmatic Reformation, 219. Egbert, 5, 9. Electorate, Parliamentary Ex- tent of before 1832, 392. Eliot, Sir John, 287. Elizabeth restores the Royal Supremacy, 223. . her Attitude towards Par- liament, 242. Emancipation, Catholic, 385. Emenda, Fines on Movables, 54- England, Unique Position at the Close of the French War, 375- Entails, Family, 332, 333. Eorls, 15. Equity, Court of, 207. Esquires, 208, 307. Estates, Formation of the, 60. of the Realm, 133. Evesham, Battle of, 117. Exchequer, Constitution of the, 56, 88, 99- Exchequer, Court of, 133. Exclusion Bill, The, 298. Executive, Norman, 75. Factory Acts, 386. Familia, 6. Female Franchise, 419. Feudal System, 46, 47. Fidei Commissa, 333. Filmer's "Patriarcha," 282. Finance, Norman System of, 56, 76. Finance of the Commonwealth, 270. Finance under the First Ed- wards, 131. FinanceundertheGeorges,3i7. Financial Reforms in the Nine- teenth Century, 404. Finch, Sir John, 254. Fisher, Bishop, his Execution, 218. Folk-land, 6, 23, 48. Folk-motes, 17. Business of the, 21. Procedure of the, 20. Fox Act, The, 420. Franchise under Henry VI., 176. Boroughs, 177, 181. County, 174-177. Extent of before i S32, 392. Extent of under the Re- form Act of 1832, 397. Reforms of the, 391. Francigenee, 67, 68, 94. Frank-pledge, 54, 75. Freedom of Debate in the Lower House, Acts of 1881 and 1887, to control, 442. 454 Index. Freeholds, Small, ruined by the Danish Wars, 38. Freeholders under the Nor- mans, 50. Freemen, 7. Free Traders, 421. French Revolution, 370, 371. Game Laws, 405. Gaveston, his Death, 207. Gemot, Meaning of, 17. General Assemblies of the Anglo-Saxons, 15. George III., his Policy, 369- 371. Gladstone, his Reform Bill, 42 1 . Godwin, Earl, 37. Gordon Riots, 371, 385. Grand Jury, 173. Grattan Bills, The, 385. Great Council, The, 135. as Court of Appeal, 138. as Court of Peers, 138. Its Legislative and other Functions, 139-142. Why styled a Council, and not a Parliament, 140. Its Constitution of Tem- poral and Spiritual Lords, I43> 144- absorbs the Continual Council, 146. Its Members summoned by Patent or Charter and by Writ, 150. Great Thanes, 15. Habeas Corpus, 256, 297, 329- Hampden, 254. Harold, Last of the Saxon Kings, 40, 43. Hastings, Battle of, 40, 44. Hengist, 3. Henry I,, 66. Henry II., Succession of, 85. Conflict with the Church, 85. Henry III., Accession of, 105. his Minority, 109. his Feeble Administra- tion, no. Henry IV., Accession of, 124. Henry V., Reign of, 195, 196. Henry VI., Regency of, 196. Henry VII., his Policy, 211. Henry VIII., his Rupture with Rome, 215. Heptarchy, 8, 9, 21. its absorption in the Mon- archy, 9. Heraldry, 83. Hereditary Peers, Growth of, 148. Heresy, Laws Against, 186, 187. Hida (hide of land), 6. Hierarchy, Roman Catholic, The, 410. High Church and Low Church Conflicts, 318. High Commission Court, The, 225, 229, 301. High Constable and Marshal, 202. Highways, Surveyors of, 215. • Regulation of, 406. Hlaford (Lord), 13, 61. Honorius, Emperor, 2. Horsa, 3. Index. 455 House of Commons, First Germs of, 121, 123. Basis of Right of Election to, 128. - Becomes an Estate of the Realm, 169. its Constituent Elements in 1882, 398. its Constitution under the Tudors, 232, 234. Electionof Members, 175. Growth of under the First Edwards, 133, 151. its Formation in the Eighteenth Century, 335. its Privileges, 240. its Separation from the /^ Upper House, 171. its Various Functions as a Taxing, Administrative, and Legislative Body, 153, 167. Limitation of its Func- tions down to the End of the Middle Ages, 183. Number of Members in the Fourteenth Century, 182. Salaries of Members, 179. House of Lords, its Legal and other Functions, 137. its Constitution in the Eighteenth Century, 343. its Constitution under the Tudors, 230-232. Hubert de Burgh, 109. Hundred Court, 11. Gemote, 11. Rate, 131. Huscarls, 39. Hydagium, 47. Iarls, 36. Impeachments under Richard IL, 166. Inbreviare, 45. Income Tax, 156, 162, Indemnity Bill, The, 382, Indian Civil Service, 40S. Inequality of Ownership in Land, Cause of, 6. Inhabitants of Britain, 2. Innocent III., Claims of, 91. condemns Magna Charta, 104. Inns of Court, 134. " Invasiones" of Land, 66. Investiture, Episcopal, 79. Ireland, Retrospective View of, 382, 383. Union of, 384, 391. Irish Bishops excluded from the Upper House, 421. Irish Church, Disestablish- ment of the, 429. Irish Peers, 384. Ironsides, The, 262. Isle of Wight, Occupation of by the Jutes, 4. Jacobite Rebellion, 366. James I. and his Parliaments, 249. James II., Accession of, 290. his Deposition, how legalized, 313. his Expulsion, 303. his Intrigues, 301, Jane Grey, Lady, 221. Jeffreys, Lord, 296, 300. Jews, Admission of to Parlia- ment, 400. 456 Index. John, Tyranny of, 93. Conflict with Innocent 111,91. Conflict with the Barons, 95- Death of, 105. signs Magna Charta, 96. Judicial Prerogative of the Norman Kings, 52. Reforms, Recent, 430. Judicia parium, 19, 41, 59, 73- Jure-divino Royalty, 257. Jury, Qualification, 308. Jus Terrse, 18. Justiciar, 73. Justice of the Peace, Jurisdic- tion of, 325, 413. Jutes, 4. Kenilworth Dictum de, 117. "King in Council," 347, 351. " King in Parliament," 346, 347, 349- King's Court, or Bench, 60, 89, 125, 133, 326. Council, 227. Kingship, Origin of, 8. Hereditary, 35. Knights of the Shires, when first summoned to Parlia- ment, 121. Labourer's Act of Edward III., 129. Laen-land, 7, 48. Lancaster, House of, 194, 196. Land Allotment to the Saxons, 6. — Distribution of, in Domes- day, 47. Individual Property in, 6. Norman Usurpation of, 45- Land Tax, 155, 162. Laud, Archbishop, his Re- forms, 257. his Execution, 260. Laws of Edward nominally retained by the Normans, 71, 72. Legales Homines, 16. Legal System of the Anglo- Saxons, 10. Leges Edwardi, 55. Legislation, Anglo-Saxon, 24. " Levellers,'' The, 276, 302. Lewes, Battle of, 116. Lex Terrse, 18. Liberals, 340, 421. Liberi Homines, 47. Liveried Bands during the Baronial Wars, 205. Liveries, 203. Local Government Board, The, 406, 431. London, Councils of, under Henry III., in, 112. deprived of its Privi- leges by Charles II., 293. Parliament of, under Henry III., 116. Representation of, 182. Long Parliament, 258. Lord Campbell's Act, 420. Low Church, its Conflicts with the High Church, 318. Index. 457 Mad Parliament, 114, 120. Magna Charta, 90, 95, 96. Confirmation of, 104, 107. Terms of, 97, 103. Magnum Concilium, 133. See also Great Council. Mandamus, Writ of, 329, 330- Manorial Courts, 51. Mansus, 6. Margaret of Anjou, 196. Marlborough, Parliament of, 118. Statutum de, 118. Mary, Queen, her Catholic Restoration, 221. Matilda, Conflict with Stephen, 84, 85. Meliores Terras, 16. Mercenary Armies, 190. Merchant Shipping Act, 405. Merton, Council of, 1 10. Methodism, 381. Michel Gemot, 17. Military Administration in the Nineteenth Century, 403, 404. Fiefs under the Normans, 48, 63. System of the Anglo- Saxons, 9. of the First Edwards, 126, 127. of the Normans, 74. Militia, County, 126. Organization under the Tudors, 212. under Charles II., 283. under the Georges, 315, 332. Ministerial Council, 348. Minorities, Representation ofj 419. Misericordia, 54. "Mongrel" Parliament, The, 260. More, Sir Thomas, his Execu- tion, 218. Mortmain Laws, 186. Municipal Charters, 132. Corporation Act of, 1835, 406. National Assemblies of THE Anglo-Saxons, 17. Council, Anglo-Saxon, 24. Business of the, 26. National Debt, 351. Administration of, 405. Rapid Growth of, 352. National Education, Acts of 1870, 1873, 1876, 432. Navigation Act, The, 386. Nomination Papers, 418. Non-Resistance Party, 302. Norman Dynasty, 42. ■ Councils not Legislative, 73,84. Court Days, 58. Court most Sumptuous in Christendom, 68. Crown Prerogatives, 52. Crown Revenues, 57. Period, Bibliography of, 42. Monarchy not Constitu- tional, 83. Monarchy not Elective, 77. 458 Index. Oath of Allegiance, The, 225,318. Oath of Supremacy, 386. O'Connell, his Illegal Election, 385. Odin-worship, 41. Officials, Non - professional, 339- Old Sarum, 395. Optimates Terrce, 16. Ordeal, 53. Orders in Council, 348. Police, 328. Ordinances, Royal, 74. See also Statute. Outsiders, 16. Overseers of the Poor, under the Tudors, 214. Ownership of Land, Changes in under the Normans, 45. Oxford, Council of, 109, 1 14. Colloquium of, 1 10. Parliaments of, 116. Palatinus, 33. Parish Vestries, 322. Parliamentary Government, First Attempts at, 104. Legislation under the Tudors, 234, 236. Organization under Henry III., 118. Parties, 354. Parhament of London in 1255, 113- in 1258, 114. Reformation, i\\. The Barebone, 276. The Convention, 281, 303. The Long, 258, 266, 280. Parliament, The Mad, 114. The Mongrel, 260. The Pensionary, 293. The Rump, 274, 280. of Winchester in 125 1, 115. underthe Revolution, 243. Parliaments of the Eighteenth Century, 311. Nineteenth Century, 377. Parliamentum, First Use of the Word, in. Parliamentum Runemede, 112. Party Government under Charles II., 295. in the Eighteenth Cen- tury, 361. Pay of Officers and Men during the French Wars, 204. Peace Commission, The, 214. Pledge, 12, 15. Peel, Sir Robert, 400. his Income Tax, 404. Peers of the Realm gradually become Hereditary, 147. Irish and Scotch, 346. largely increased by the Stuarts, 306. and by the Georges, 334. Pembroke, Earl of. Protector, 106. Penal Code, Reform of, in the Nineteenth Century, 404. Penny Postage, 405. Performances in Kind, 23. Periodical Council, The, 135. Court Days, 58. Permanent Council, The, 134. Peter des Roches, Bishop, no. Index. 459 Petition of Rights, 252. Petitions to Parliament, 163, 164. Pickering, Lord Privy-Seal, 241. Pincerna, 33. Pitt, his Reform Measures, 391- Pitt Ministry, 353. Place Bill, The, 367. Placita Coronce, 75, 97. Placita Universi Populi, 34. Plough Land, 6. Police Administration under the First Edwards, 129. under the Georges, 316. under the Tudors, 213. • under Victoria, 417. Police Reforms in the Nine- teenth Century, 405. Poll Tax under Richard IL, 162. Poor-Law Board, 405. Act of 1834, 405. Poor Rate under the Tudors, 215. Poundage, 163. Praemunire, 185, 318. Praesides, 33. Prerogatives of the Norman Kings, 52. Legal Limitations of, by ]\Iagna Charta, 97. Presbyterian Party, The, 282, 284. Presentments, 166. Press, The Persecution of, by Charles IL, 293. its political Influence, 418, 420. Prince Regent, George, 388. Principles, 33, Private Leets, 51. Privileges of the Commons, 240. Privy Council, 125, 146, 226, 326, 347- Probi Homines, 16. Procedure in the Anglo-Saxon Courts, 20, 36. in the Norman Courts, 53. Procurator Aulae, 33. Protectionists, 421. Public Health Acts, 402, 406. Instruction, 402. Opinion as a political Factor, 418. Purchase in the Army, Aboli- tion of, 430. Puritan Army, The, 282. Puritan Police Control, 272. Qualification for the Franchise, 391, 395. Qualification for the Lower House, 399. Qualification for Public Offices under the Georges, 331. Quarter Sessions, 213, 328. Quo Warranto, Writ of, 296. Radical Movement, The, 441. Radical Reformers, 388. Rainsford, Chief Justice, 292. Receivers, 163. Recognitiones Juratae, 54. Reconciliation Parhament, 223. Redemption of Land under the Normans, 45. 460 Index. Reform Act of 1832, 394, 397. of 1867, 424, 426. of 1884-5, 427, 435, 436, 437. Reformation, The, Origin and Motives of, 215. Reliefs on Change of Land- ownership, 49, 97. Resistance, Right of, 356. Restoration, The, 281. Retaining Fees, 367. Revising Barristers, 396. Revolution, The, of 1688, 303- The French, 370, 371. Richard II., Death of, 193. Richard III., Career of, 200. Right of Association, 420. Riots, Political, in 1831, 394. Roman Culture, its Disappear- ance from Britain, 5. Roman Provincial Adminis- tration, 2. Roundheads, 260. Royal Council, The, 253, Royalist Reaction in Favour of Charles II., 285. Rump Parliament, The, 274. Russell, Lord John, his Re- form Bills, 388, 393, Russell, Lord W., 292. St, Albans, Parliament of, 116. Battle of, 197. Saladin, Tenth, 131, 153. Salisbury Government Act of 1887, to Control Freedom of Debate in the Lower House, 442. Sanitary Reform, 402. Saunders, Chief Justice, 292. Saville Act, The, 385. Saxon Occupation of Britain, 3. Monarchy, 5. Scroggs, Chief Justice, 292. Scutage, 57, 76, 97. Secretary for War, First Ap- pointment of, 403. Seignorial Right, Origin of, 7. Self-government, 212. Consolidation of, 320. Economic, 322. Official, 321. Results of, 341. Septennial Act, The, 368. Servi, 46. Sheriffs, 33. Ship-Money, 253. Shire Courts, 9, 31, 32. Gemot, II. Gerdfa, 12, 50. Thanes, 15. Sidmouth, Lord, his Six Acts, 380. Simon de Montfort, 113, 116. Slavery, Abolition of, 400. Slave Trade, Suppression of the, 386. Sot hemanni, 47. Socialistic Tendencies, 419, 439> 440. Social Reforms in the Nine- teenth Century, 429. Society of the People, The, 387. Somerset, Regent, 219. Speaker, The, 241. Stamp Act, 404. Stamp Duty, Abolition of, 420. Index. 461 Standing Army, how far legal- ized, 315. Star-Chamber, 206, 229, 256. Severe Penalties imposed by, 256. State Trials, First Instances of, 166. Statute, how it differs from Ordinance, 168, 170. of Gloucester, 172. Stephen, Conflict with Ma- tilda, 84, 85. Stuart Period, Bibliography of the, 243. Stuarts, the Accession of, 246. Character of, 246, 247. Expulsion of, 297, 303. Survey of their Adminis- tration, 304. Sub-infeudation, 63. Sub-tenants, 46, 63. Supremacy, Act of, 223, 224. Sworn Commissioners, 54. Tallagia, 56, 76, 153. Taxation under the First Ed- wards, 155. of the Clergy, 156. Taxation under the Tudors, 237- Basis of in the Eighteenth Century, 337. Communal in the Eighteenth Century, 336. Tenentes in Capite, 46. Test Act, The, 297, 320, 386. Thanes, 15. Thomas k Becket, 86, 87. Thirty-Nine Articles, The, 237. Tithing Man, 12. Tithings, 12, 41, 54. Titles of Nobility, when first created, 149. Tonnage, 163. Tories, 298, 357. Towton, Battle of, 198. Trades Unions, 386. Traitorous Correspondence Act, The, 380, Treasury, First Lord of the, 354- Junior Lords of the, 354. Triennial Act, The, 260. Triers, 163. Trinoda Necessitas, 10. Tudor Dynasty, 2ir. Administration, 243. General Policy of, 242. Turnus, Vice-Comites, 51. Umstand, 16, 32. Uniformity, Act of, 223, 224. Union of Ireland, 311, 391. Scotland, 311. University Reform Acts, 422. Unqualified Classes, 309. Upper House, Beginnings of. Vestries, Establishment OF, 215. Vice-comes, 50. Villani, 46, 64. Visus Francplegii, 51, 54. Votes, Parliamentary, Purchase of under George IIL, 372. Walpole's Career, 360, 361, 366. Walpole's Ministry, 353. 462 Index. War of the Barons under Henry III., 116. War of the Roses, Causes of, 188-190. War Prerogative of the Nor- man Kings, 52. Wehr-gild, 7, 15. WeUington, his Opposition to Reform, 393. Wessex, Settlement of, 4. Westminster, Council of, in. West Saxon Kingdom, 35. Whigs, 298, 357. their Preponderance un- der the First Georges, 366. Wilkes, Alderman, 368. William the Conqueror, 38, 42. Attitude towards the Papal See, 80. William the Conqueror, Birth of, 43- Claims to the English Crown, 43. invades England, 44. William III., Accession of, 312. his Policy, 363. William IV., his Attitude to- wards Reform, 393. Winchester, Parliaments of, 115, 117. Witan, The, 11, 16. Witenagemdt, 17. Decline of, 39. transformed to Norman Court-Days, 65. Workhouses, 406. Yeomanry, Armed, 38, York, House of, 199. LONDON : PRINTED BV WILLIAM CLOWKS AND SONS, LIMITED, STAMFORD STREET AND CHARING CROSS. 14 DAY USE RETURN TO DESK FROM WHICH BORROWED LOAN DEPT. This book is due on the last date stamped below, or on the date to which renewed. Renewed books are subject to immediate recalL i^^^i^ u*j UUf 12 .362 — 9 m'^m. i )CP29 1977 "'*^ «EC. CIR.OCT 6 77 (i?R^5 Bbi *WY 17 1987 I6)an'64jfK ^^ '^AY 2 C 1907 RECD LD JANq ^64-3P W i9Ma£64Sil KEC'D LD MAR17'64-1P*| LD 2iA-50m-3,'62 fC70s!7slO)4T6I3 General Library University of California Berkeley