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THE GROWTH 
 
 OF 
 
 THE ENGLISH CONSTITUTION 
 
 FROM THE EARLIEST TIMES. 
 
THE GROWTH 
 
 ENGLISH CONSTITUTION 
 
 FROM THE EARLIEST TIMES. 
 
 EY 
 
 / 
 
 EDWARD A. FREEMAN, M.A., Hon. D.C.L., and LL.D., 
 
 LATE FF.I.I.OW OF TRINITY COLLEGE, OXFORD, 
 KNIGHT COMMANDER OF THE GREEK ORDER OF THE REDEEMER. 
 
 'Corcedis justas Isges et consuetudincs esse tencndas, et promittis eas 
 pel tc esse protcgcndas et ad honorem Dei roborandas, guns vulgiis ele^erit 
 secundum vires tuas?' — Ancient Coronation Oath. 
 
 ' Rex habet superiorem, Deum. Item Legem, per qiiam faclus est Rex. 
 Item curiam suam." — Bhacton. 
 
 * Ipitur communitas regni consiilatiir, 
 Et quid universilas sentiat sciatur.' 
 
 Political Poe.m, XIII. Cent. 
 
 FOURTH EDITION. 
 
 ^oitbon : 
 MACMILLAN AND CO. 
 1884. 
 
LONDON : 
 
 R. Clay, Sdns, and Taylos, 
 
 BREAD STREET HILL, E.G. 
 
PREFACE TO THE THIRD EDITION. 
 
 The book has been carefully revised for this 
 Third Edition, and several new illustrations and 
 references have been added. Since the Second 
 Edition appeared, the great Constitutional History 
 of Professor Stubbs has formed an epoch in the 
 treatment of the subject. I am glad to find 
 that its appearance has not obliged me to alter 
 very much. I might have brought in endless 
 references to such an unrivalled store-house of 
 knowledge ; but I thought it better to leave my 
 own book essentially as it stood, and to change, 
 alter, or refer only in a few specially important 
 cases. My book will be doing its proper duty 
 if it leads readers to the writings of a scholar 
 of wliom we may truly say that 
 
 " Non viget quidquid simile aut secundum." 
 
 SOMERI.EAZE, WeLLS, 
 j1/>n7 yd, 1876. 
 
PREFACE TO THE FIRST EDITION. 
 
 The proverb " qui scxaise s\xccnsc " is so regularly 
 turned against any author who gives any account 
 of the origin of his work that it may be well to 
 prevent its quotation by quoting it oneself. I 
 have to ask that these three Chapters and their 
 accompanying Notes may not be judged by the 
 standard of a book. If I were to write a book 
 on the English Constitution, it would be different 
 in form and, in many points, different in style. 
 What the reader has here is a somewhat extended 
 form of two Lectures given at Leeds and Bradford 
 last January. I had thought that they might be 
 worth printing in the shape of two magazine- 
 papers ; others thought that they might do good 
 in their present shape. I therefore expanded the 
 latter part of the second Lecture, which had to 
 
Vlll 
 
 PREFACE TO THE 
 
 be cut very short in delivery, so as to make a 
 third Chapter, and I added such notes and refer- 
 ences as seemed to be needed. 
 
 I say all this, in order that \\ hat I have now- 
 written may be judged by the standard of lectures, 
 not by the standard of a book. In a popular 
 lecture it is impossible to deal with everything 
 with which it is desirable to deal ; it is impossible 
 to go to the bottom of those things which one 
 picks out to deal with. It is enough — because it 
 is all that can be done— if the choice of subjects 
 is fairly well made, and if the treatment of those 
 that are chosen, though necessarily inadequate, is 
 accurate as far as it goes. Many things must be 
 left out altogether ; many things must be treated 
 very imperfectly ; the attention of the hearers 
 must be caught by putting some things in a more 
 highly wrought shape than one would choose at 
 another time. The object is gained, if the lecturer 
 awakens in his hearers a real interest in the subject 
 on which he speaks, and if he sends them to the 
 proper sources of more minute knowledge. If 1 
 can in this way send every one who wishes to 
 
FIRST EDITION. 
 
 Lx 
 
 understand the early institutions of his country 
 to the great work of Professor Stubbs — none the 
 less great because it lies in an amazingly small 
 compass — my own work will be effectually done. 
 In Mr. Stubbs' " Documents Illustrative of Eng- 
 lish Histor)-," the ordinary student will find all 
 that he can want to learn ; while he who means 
 to write a book, or to carry out his studies in a 
 more minute way, will find the best of guidance 
 towards so doing. The great documents of early 
 English history, hitherto scattered far and wide, 
 are now for the first time brought together, and 
 their bearing is expounded in a continuous narra- 
 tive worthy of the unerring learning and critical 
 power of the first of living scholars. 
 
 For my own part, my object has been to show 
 that the earliest institutions of England and of 
 other Teutonic lands are not mere matters of 
 curious speculation, but matters closely connected 
 with our present political being. I wish to show 
 that, in many things, our earliest institutions come 
 more nearly home to .us, and that they have more 
 in common with our present political state, than 
 
X 
 
 PREFACE TO THE 
 
 the institutions of intermediate ages wnich at first 
 sight seem to have much more in common with 
 our own. As the continuity of our national Hfe 
 is to many so hard a lesson to master, so the 
 continuity of our political life, and the way in 
 which we have so often fallen back on the very 
 earliest principles of our race, is a lesson which 
 many find specially hard. But the holders of 
 Liberal principles in modern politics need never 
 shrink from tracing up our political history to its 
 earliest beginnings. As far at least as our race 
 is concerned, freedom is everywhere older than 
 bondage ; we may add tliat toleration is older 
 than intolerance. Our ancient history is the 
 possession of the Liberal, who, as being ever 
 ready to reform, is the true Conservative, not of 
 the self-styled Conservative who, by refusing to 
 reform, does all he can to bring on destruction. 
 One special point on which I have dwelt is the 
 way in which our constitutional history has been 
 perverted at the hands of lawyers. It is perfectly 
 true that the history of England must be studied 
 in the Statutc-Book, but it must be in a Statute- 
 
FIRST EDITION. 
 
 Book which begins at no point later than the 
 Dooms of ^thelberht. 
 
 As I have often had need to take facts and 
 doctrines for granted which I beheve myself to 
 have proved in my larger works, I have in the 
 Notes given frequent references to those works, 
 instead of bringing in the evidence for the same 
 things over again. And in the more modern part 
 of the subject, I have given several extracts at 
 full length, even from very familiar authors, be- 
 cause I know that a reader is often well pleased 
 to have a striking passage set before him at once, 
 without having to seek for it in the original. 
 On the other hand, I have given at full length 
 several extracts from statutes and other docu- 
 ments which most readers are not likely to have 
 at hand. The historical portions of any Act of 
 Parliament can be studied only in the Acts them- 
 selves, and not in the summaries of lawyers. 
 Legal writers and speakers seem constantly to 
 repeat what has been said before them, without 
 any reference to the original sources. A memo- 
 rable example is to be found in the assertion of 
 
xii PREFACE TO THE FIRST EDITION. 
 
 Blackstone and of a crowd of lawyers after him, 
 in Parliament and out of Parliament, that the 
 King or Queen is by Law Head of the Church. 
 I need hardly say that that title was used by 
 Henry, Edward, and Mary, but that it was given 
 up by Mary, and was not taken up again by any 
 later Sovereign. 
 
 SOMERLEAZE, WeLLS, 
 
 March 25, 1872. 
 
CONTENTS. 
 
 CHAPTER I. 
 
 The Landesgemeinden of Uri and Appenzell — their bearing on 
 English Constitutional History — political elements common to 
 the whole Teutonic race — monarchic, aristocratic, and demo- 
 cratic elements to be found from the beginning — the three 
 classes of men, the noble, the common freeman, and the slave 
 — universal prevalence of slavery — the Teutonic institutions 
 common to the whole Aryan family — witness of Homer — de- 
 scription of the German Asseml)lics by Tacitus — continuity of 
 English institutions — I'^nglish nationality assumed — Teutonic 
 institutions brought into Britain by the English conquerors — 
 effects of the settlement on the conquerors — ))rob.-ibIe increase 
 of slavery — Earls and Churls — growth of tlie kingly power — 
 nature of kingship — special sanctity of the King — immemo- 
 rial distinction between Kings and Ealdormen — kingship not 
 universal — names expressing kingship — beginning of kingship 
 in England — fluctuation between Kings and Ealdormen— the 
 kingly power strengthened by the increase of the King's terri- 
 tory — relations between the King and the nation — power of the 
 Witan — right of election and deposition — growth of the kingly 
 power by the comtnaidalion of the chief men — the Coinitatiis 
 as described by Tacitus — poem on the I5attlc of Maldon — 
 contrast of Roman and Teutonic feeling as to personal service — 
 
C0NTEN7\';. 
 
 instances of personal service in later times — personal service 
 and the holding of land not originally connected — their union 
 produces the feudal relation — growth of the Thegns — they sup- 
 plant the Earls — effects of the change — change confirmed by 
 the Norman Conquest Pp. i — 55 
 
 CIIArTER II. 
 
 Gradual growth of the English Constitution — new laws seldom called 
 for — importance of precedent — return to early principles in 
 modern legislation— shrinking up of the ancient national Assem- 
 blies — constitution of the Witenagemot — the Witenagemot con- 
 tinued in the House of Lords — Gemots after the Norman Con- 
 quest — the King's right of summons — Life Peerages — origin of 
 the House of Commons — comparison of English and French 
 national Assemblies — of English and French history generally 
 — course of events influenced by particular men — Simon of 
 Montfort — France under Saint Lewis — bad effect of his virtues 
 — good effect of the vices of the Angevin Kings in England — 
 effect of the personal character of William the Conqueror — the 
 Normans in England gradually become English — the Angevins 
 neither Norman nor English — their love of foreigners — 
 struggle against the King and the Pope — national character of 
 the English Church — separation of ecclesiastical and temporal 
 jurisdiction under William — supremacy of the Crown — its 
 abuse — good side of ecclesiastical claims— interference of the 
 Popes in English affairs — the Pope and the King in league 
 against the English Church and nation — importance of London 
 — general growth of the towns —beginning of representation — 
 Knights of the shire — judicial powers of Parliament — citizens 
 and burgesses first summoned by Earl Simon — his connexion 
 with Bourdeaux and London — Simon a foreigner — religious 
 reverence shown to him and to other political worthies — 
 Edward the First — the Constitution finally completed under 
 him — nature of later changes — difference between English and 
 
COA'TENTS. 
 
 XV 
 
 continental legislatures— system of Estates — three Estates of 
 the Realm — no nobility in England — no separate Estate of the 
 Clergy practically established — eflfects of the union of knights 
 and citizens in one House — incidental origin of the system of 
 two Houses — misuse of the phrase "three Estates" — growth 
 of the House of Commons — general harmony of the two Houses 
 — great powers of the early Parliaments — character of the fif- 
 teenth century — Parliaments less independent — narrowing of 
 the county franchise — popular elections of Kings — signs of the 
 importance of Parliament — character of the sixteenth century 
 — general decay of free institutions in Europe — their preserva- 
 tion in England — subserviency of Parliament — its causes — 
 eflfects of the personal character of Henry the Eighth — his 
 respect for the outward forms of Law — indirect witnesses to the 
 importance of Parliament — tampering with elections — enfran- 
 chisement of corrupt boroughs— Parliament under Elizabeth — 
 James the First— Charles the First — nature of later changes. 
 
 r/>. 56—110 
 
 CHAPTER HI. 
 
 Character of later constitutional developements — greater importance 
 of silent changes — growth of the unwritten Conslitution as dis- 
 tinguished from the written Law — Sir Robert Peel's vote of 
 want of confidence — its bearings — the growth of the Constitu- 
 tion implies the firm establishment of the Law — relations be- 
 tween the Crown, the Ministry, and the Parliament— indirect 
 exercise of parliamentary power — origin of the Ministry — 
 recent use of the word Goz'cninuitt — causes and advantages of 
 indirect iiarliamentary action— growth of professional lawyers 
 — ihcir influence on consiitulional doctrines — their reasoning 
 mainly sound, but their premisses commonly worthless— return 
 of modern legislation to the earliest state of things — doctrine 
 that Parliament expires by- a demise of the Crown — an infer- 
 ence from the doctrine about the Kmg's writ — contrast with 
 Old-English constitutional doctrines— doubts and dillicultics 
 
XVI 
 
 CONTENTS. 
 
 which Old-English principles would have answered — case of 
 1399— deposition of Richard and election of Henry — legal 
 subtleties about the character and continuance of the Parlia- 
 ment — case of 1660— question as to the continuance of the 
 Long Parliament after the execution of Charles the First — 
 question as to the nature and powers of the Convention Parlia- 
 ment — the Convention declared to be a Parliament by its own 
 act — question of 16S8-9 — history of the second Convention 
 Parliament — question as to the effects of Mary's death — each of 
 these acts a return to earlier doctrines— their value as possible 
 precedents — modern legislation as to the demise of the Crown 
 — Parliament no longer dissolved by it — Act of William the 
 Third — Act of Geoige the Third — Act of Victoria — reason- 
 ableness of this legislation — case of the Falkland or public land 
 — its gradual change into Terra Regis or demesne land — the 
 national revenue disposed of at the King's pleasure — return to 
 earlier doctrines in modern practice — case of the private estates 
 of the King — dealt with in earlier times like any other estates 
 — doctrine tliat the private estates of the King merged in the 
 demesne of the Crown — return to ancient practice by modern 
 legislation — other cases of return to ancient principles -history 
 of the succession to the Crown— the Crown anciently elective — 
 preference for members of the royal family — growth of the 
 doctrine of hereditary right — treatment of the law of succes- 
 sion by lawyers — twofold election of the King — his ecclesias- 
 tical coronation — the ecclesiastical election survives the civil 
 — state of the succession in the fourteenth and fifteenth cen- 
 turies — righi of Parliament to dispose of the Crown — election 
 of Henry the Eighth — settlement of the Crown by his will — 
 usurpation of the Stewarts— their doctrine of divine right — the 
 ancient right asserted by the election of William and Mary — 
 the Crown made hereditary by the Act of Scti lenient — good 
 side of hereditary succession in modern limes — conclusion. 
 
 Pp. Ill— 159 
 
 NOTES 
 
 rp. 161—234 
 
THE GROWTH OF THE 
 
 ENGLISH CONSTITUTION 
 
 FROM THE 
 
 EARLIEST TIMES. 
 
 CHAPTER I. 
 
 Year by year, on certain spots among the dales 
 and the mountain-sides of Switzerland, the traveller 
 who is daring enough to wander out of beaten 
 tracks and to make his journey at unusual seasons 
 may look on a sight such as no other corner of the 
 earth can any longer set before him. He may 
 there gaze and feel, what none can feci but those 
 who have seen with their own eyes, what none can 
 feel in its fulness more than once in a lifetime, the 
 thrill of looking for the first time face to f.icc on 
 freedom in its purest and most ancient form. He 
 is there in a land where the oldest institutions of 
 our race, institutions which may be traced up to 
 the earliest times of which history or legend gives 
 us any glimmering, still live on in their primseval 
 £ B 
 
2 
 
 GROWTH OF EXGLTSII CONSTITUTION, [chap. 
 
 freshness. He is in a land where an immemorial 
 freedom, a freedom only less eternal than the rocks 
 that guard it, puts to shame the boasted antiquity 
 of kingly dynasties, which, by its side, seem but 
 as innovations of yesterday. There, year by year, 
 on some bright morning of the spring-tide, the 
 Sovereign People, not entrusting its rights to a few 
 of its own number, but discharging them itself in 
 the majesty of its corporate person, meets in the 
 open market-place or in the green meadow at 
 the mountain's foot, to frame the laws to which it 
 yields obedience as to its own work, to choose the 
 rulers whom it can afford to greet with reverence 
 as drawing their commission from itself. Such a 
 .sight but few Englishmen have seen ; to be among 
 those few I reckon among the highest privileges of 
 my life. Let me ask you to follow me in spirit 
 to the very home and birth-place of freedom, to 
 the land where we need not myth and fable to add 
 aught to the fresh and gladdening feeling with 
 which we for the first time tread the soil and 
 drink in the air of the immemorial democracy of 
 Uri ('). It is one of the opening days of May; it is 
 the morning of Sunday; for there men deem that 
 the better the day the better the deed ; they deem 
 that the Creator cannot be more truly honoured 
 than in using, in His fear and in His presence, the 
 
I.] 
 
 THE LANDRSGEMEINDE OF URT. 
 
 3 
 
 highest of the gifts which He has bestowed on 
 man. But deem not that, because the day of 
 Christian worship is chosen for the great yearly- 
 assembly of a Christian commonwealth, the more 
 directly sacred duties of the day are forgotten. 
 Before we, in our luxurious island, have lifted our- 
 selves from our beds, the men of the mountains, 
 Catholic and Protestant alike, have already paid 
 their morning's worship in God's temple. They 
 have heard the mass of the priest or they have 
 listened to the sermon of the pastor, before some 
 of us have awakened to the fact that the morn of 
 the holy day has come. And when I saw men 
 thronging the crowded church, or kneeling, for want 
 of space within, on the bare ground beside the open 
 door, when I saw them marching thence to do the 
 highest duties of men and citizens, I could hardly 
 forbear thinking of the saying of Holy Writ, that 
 " where the Spirit of the Lord is, there is liberty." 
 P^rom the market-place of Altdorf, the little capi- 
 tal of the Canton, the procession makes its way to 
 the place of meeting at Bozlingen. First marches the 
 little army of the Canton, an army whose weapons 
 never can be used save to drive back an invader 
 from their land if). Over their heads floats the 
 banner, the bull's head of Uri, the ensign v/hich 
 led men to victory on the fields of Scmpach and 
 
 B 2 
 
4 GROWTH OF ENGLISH COySTITVTIOX. [chap. 
 
 Morgarten. And before them all, on the shoulders 
 of men clad in a garb of ages past, are borne the 
 famous horns, the spoils of the wild bull of ancient 
 days, the ver\' horns whose blast struck such dread 
 into the fearless heart of Charles of Burgundy (3). 
 Then, with their lictors before them, come the ma- 
 gistrates of the commonwealth on horseback (♦), 
 the chief magistrate, the Landammann, with his 
 sword by his side. The people follow the chiefs 
 whom they have chosen to the place of meeting, a 
 circle in a green meadow, with a pine-forest rising 
 above their heads and a mightj' spur of the moun- 
 tain ran^e facingr them on the other side of the 
 valley. The multitude of freemen take their seats 
 around the chief ruler of the commonwealth, whose 
 term of office comes that day to an end. The As- 
 sembly opens ; a short space is first given to prayer, 
 silent prayer offered up by each man in the temple 
 of God's own rearing. Then comes the business of 
 the day. If changes in the law are demanded, they 
 are then laid before the vote of the Assembly, in 
 v.hich each citizen of full age has a.i equal vote 
 and an equal right of s|>eech. The yearly magis- 
 trates have now discharged all their duties ; their 
 term of office is at an end ; the trust which has 
 been placed in their hands falls back into the hands 
 of those by whom it was given, into the hands of the 
 
L] WORKING OF THE PRIMARY ASSEMBLY. j 
 
 sovereign people. The chief of the commonwealth, 
 now such no longer, leaves his seat of office and 
 takes his place as a simple citizen in tlie ranks of 
 his fellows. It rests with the free-will of the Assembly 
 to call him back to his place, or to set another 
 there in his stead. Men who have neither looked into 
 the history of the past, nor yet troubled themselves 
 to learn what happens }-ear by year in their own 
 age, are fond of declaiming against the caprice and 
 ingratitude of the people, and of telling us that 
 under a democratic government neither men nor 
 measures can remain for an hour unchanged. The 
 witness alike of the present and of the past is 
 an answer to baseless theories like these. The 
 spirit which made democratic Athens year by year 
 bestow her highest offices on the patrician Perikles 
 and the reactionary Phokion (s) still lives in the de- 
 mocracies of Switzerland, alike in the Landesge- 
 meinde of Uri and in the Federal Assembly at Bern. 
 The ministers of Kings, whether despotic or con- 
 stitutional, may vainly envy the sure tenure of 
 ofhce which falls to the lot of those who are chosen 
 to rule by the voice of the people. Alike in the 
 whole Confederation and in the single Canton re- 
 election is the rule ; Uie rejection of the out-going 
 magistrate is the rare exception («). The Landam- 
 mann of Uri, whom his countrymen have raised to 
 
6 
 
 GROWTH OF ENGLISH CONSTITUTION, [chap. 
 
 the seat of honour, and who has done nothing to 
 lose their confidence, need not fear that, when he 
 has gone to the place of meeting in the pomp of 
 office, his place in the march homeward will be 
 transferred to another against his will. 
 
 Such is the scene, which, save for a moment, when 
 the world was turned upside down by the inroads of 
 revolutionary France {^), has gone on year by year 
 as far as history goes back in the most unchanged 
 of European states. Let me ask you to follow me 
 yet again to the place of assembly of a younger 
 member of the same noble band of common- 
 wealths (^), to pass from Uri to Appenzell, from 
 the green meadows of Bozlingen to the hill-side 
 market-place of Trogen. Somewhat of the pomp 
 and circumstance which mark the assembly of 
 Catholic and pastoral Uri is lacking in the as- 
 sembly of the Protestant and industrial popula- 
 tion of the Outer Rhodes of Appenzell, But the 
 stamp of antiquity, the stamp of immemorial free- 
 dom, is impressed alike on the assembly and on 
 the whole life of either commonwealth. Wc miss 
 in Appenzell the solemn procession, the mounted 
 magistrates, the military pomp, of Uri ; but wc 
 find in their stead an immemorial custom which 
 breathes perhaps more than any other the spirit of 
 days when freedom was not a thing of course, but 
 
I.] THE LANDESGEMEINDE OF APPENZELL. 7 
 
 a thing for which men had to give their toil and, if 
 need be, their blood. Each man who makes his 
 way to the Landesgemeinde of Trogen bears at 
 his side the sword which the law at once commands 
 him to carry and forbids him to draw (5). And in 
 the proceedings of the Assembly itself, the men of 
 Appenzell have kept one ancient rite which sur- 
 passes all that I have ever seen or heard of in its 
 heart-stirring solemnity. When the newly chosen 
 Landammann enters on his office, his first duty is 
 to bind himself by an oath to obey the laws of the 
 commonwealth over which he is called to rule. His 
 second duty is to administer to the multitude 
 before him the same oath by which he has just 
 bound himself To hear the voice of thousands of 
 freemen pledging themselves to obey the laws which 
 they themselves have made is a moment in one's 
 life which can never be forgotten, a moment for 
 whose sake it would be worth while to take a far 
 longer and harder journey than that which leads us 
 to Uri or Appenzell. 
 
 And now I may be asked why I have begun a 
 discourse on the constitution of England with a 
 picture of the doings of two small commonwealths 
 whose political and social state is so widely dif- 
 ferent from our own. I answer that I have done so 
 because my object is, not merely to speak of the 
 
8 GROWTH OF ENGLISH CONSTITUTION: [chap. 
 
 constitution of England in the shape which the 
 changes of fourteen hundred years have at last 
 given it, but to trace back those successive changes 
 to the earliest times which either history or tra- 
 dition sets before us. In the institutions of Uri 
 and Appenzell, and in others of the Swiss Cantons 
 which have never departed from the primaeval 
 model, we may see the institutions of our own 
 forefathers, the institutions which were once com- 
 mon to the whole Teutonic race, institutions whose 
 outward form has necessarily passed away from 
 greater states, but which contain the germs out 
 of which every free constitution in the world has 
 grown. Let us look back to the earliest picture 
 which history can give us of the political and 
 social being of our own forefathers. In the 
 Germany of Tacitus we have the picture of the 
 institutions of the Teutonic race beibre our branch 
 of that race sailed from the mouths of the Elbe and 
 the Weser to seek new homes by the Humber and 
 the Thames. There, in the picture of our fathers 
 and brethren seventeen hundred years back, the 
 free Teutonic Assembly, the armed Assembly of 
 the whole people, is set before us, well-nigh the 
 same, in every essential point, as it may still be 
 seen in Uri, Untcrwaldcn, (ilarus, and Appen/xll. 
 One point however must be borne in mind. In 
 
I] 
 
 PRIMITIVE TEU TOXIC ASSEMBLIES. 
 
 9 
 
 the assemblies of those small Cantons it is only the 
 most democratic side of the old Teutonic consti- 
 tution which comes prominently into sight. The 
 commonwealth of Uri, by the peculiar circum- 
 stances of its history, grew into an independent 
 and sovereign state. But in its origin it was not a 
 nation, it was not even a tribe ('°). The Landesge- 
 meinden of which I have been speaking are the 
 Assemblies, not of nations but of districts ; they 
 answer in our own land, not to the Assemblies of 
 the whole kingdom, but to the lesser Assemblies of 
 the shire or the hundred. But they are not on that 
 account any the less worthy of our notice ; they do 
 not on that account throw any the less light on 
 that common political heritage which belongs alike 
 to Swabia and to England. In every Teutonic land 
 which still keeps any footsteps of its ancient insti- 
 tutions, the local divisions are not simply adminis- 
 trative districts traced out for convenience on the 
 map. In fact, they are not divisions at all ; they 
 are not divisions of the kingdom, but the earlier 
 elements out of whose union the kingdom grew. 
 Yorkshire, by that name, is younger than England, 
 but Yorkshire, by its elder name of Deira, is older 
 than England ("). And Yorkshire or Deira itself 
 is younger than the smaller districts of which it is 
 made up. Craven, Cleveland, 1 loldcrness, and others. 
 
lo GROWTH OF ENGLISH CONSTITUTION, [chap. 
 
 The Landesg-emeinde of Uri answers, not to an 
 Assembly of all Encjland, not to an Assembly 
 of all Deira, but to an Assembly of Holderness 
 or Cleveland. But in the old Teutonic system 
 the greater aggregate was simply organized after 
 the model of the lesser elements out of whose 
 union it was formed. In fact, for the political 
 unit, for the atom which joined with its fellow 
 atoms to form the political whole, we must go to 
 areas yet smaller than those of Piolderness or Uri. 
 That unit, that atom, the true kernel of all our 
 political life, must be looked for in Switzerland in 
 the Gemeinde or Commune ; in England — smile not 
 while I say it — in the parish vestry ('-). 
 
 The primitive Teutonic constitution, the consti- 
 tution of the Germans of Tacitus, the constitution 
 which has lingered on in a few remote corners of 
 the old German realm, is democratic, but it is not 
 purely democratic. Or rather it is democratic, 
 purely democratic, in the truer, older, and more 
 honourable sense of that much maligned word ; it 
 is not purely democratic in that less honourable, 
 but purely arbitrary, sense which is often put upon 
 it in modern controversy. Democracy, according 
 to Periklcs, is a government of the whole people, 
 as opposed to oligarchy, the government of only a 
 part of the people ('^). A government which vests 
 
I.] 
 
 NATURE OF DEMOCRACY. 
 
 II 
 
 all power in any one class, a government which 
 shuts out any one class, whether that class be the 
 highest or the lowest, does not answer the defini- 
 tion of Perikles ; it is not a government of the 
 whole but only of a part ; it is not a democracy 
 but an oligarchy ('■»). Democracy, in the sense of 
 Perikles, demands that every freeman shall have a 
 voice in the affairs of the commonwealth ; it does 
 not necessarily demand that every freeman should 
 have an equal voice. It docs not forbid the exist- 
 ence of magistrates clothed with high authority 
 and held in high reverence, nor does it forbid 
 respect for ancient birth or even an attachment to 
 an hereditary line of rulers. The older school of 
 English constitutional writers delighted to show 
 that the English Constitution contained a mon- 
 archic, an aristocratic, and a democratic element, 
 and that the three were wrought together in such 
 true and harmonious proportion that we could 
 enjoy the good side of all the three great forms 
 of government without ever seeing the evil side of 
 any of them. These worthy speculators were per- 
 haps a little Utopian in their theories ; still there 
 is no doubt that, in every glimpse we get of old 
 Teutonic politics, we see what we may fairly call 
 a monarchic, an ari.stocratic, and a democratic 
 clement. Those earliest glimpses set before us 
 
12 GROWTH OF ENGLISH CONSTITUTION, [chap. 
 
 three classes of men as found in every Teutonic 
 society, the noble, the common freeman, and the 
 slave ('5). The existence of the slave, harshly as 
 the name now grates on our eais, is no special 
 shame or blame to our own forefathers. Slavery, 
 in some shape or other, has unhappily been the 
 common law of most nations in most ages; it is a 
 mere exception to the general rule that, partly 
 through the circumstances of most European 
 countries, partly through the growth of humanity 
 and civilization, the hateful institution has, during 
 a few centuries past, gradually disappeared from 
 certain parts of the earth's surface. And we must 
 not forget that, in many states of society, the 
 doom of slavery may have been thankfull)' received 
 as an alleviation of his lot by the man whose life 
 was forfeited either as a prisoner in merciless war- 
 fare or as a wrong-doer sentenced for his crimes ('^). 
 But I mention the existence of slavery only that 
 we may remember that, when we speak of freedom, 
 freeman, democracy, and the like, we are after all 
 speaking of the rights of a privileged class — that, 
 whether in Athens, in Rome, or in the early Teu- 
 tonic communities, there was always a large mass 
 of human beings who had no share in the freedom, 
 the victory, or the glory of their masters. We are 
 now more closely concerned with those distinctions 
 
1.] COMMON TEUTONIC CONSTITUTION. 13 
 
 which, from the earliest times, we find among the 
 freemen themselves. In the Germany of Tacitus, 
 as at this day in the democratic Cantons, the 
 sovereign power is vested in the whole people, 
 acting directly in their own persons. But if the 
 sovereignty of the popular Assembly is plainly set 
 before us, we have also no less plainly set before 
 us the existence of a Council smaller than the 
 popular Assembly, and also the existence of a 
 class of nobles, the nature and extent of whose 
 privileges are not very well defined, but who clearly 
 had privileges of some kind or other, and whose 
 privileges passed on by hereditary descent. Here 
 wc have an aristocratic element as distinctly 
 marked as the democratic element which is sup- 
 plied by the popular Assembly. And at the head 
 of all wc see personal chiefs of tribes and nations, 
 chiefs bearing different titles, Kings, Dukes, or 
 ICaldormen, who in most cases drew their title to 
 rule from an union of birth and election, rulers 
 whom the nation chose and whom the nation could 
 depose, but who still were the personal leaders 
 of the nation, its highest magistrates in peace, its 
 highest leaders in war. Here then, besides the 
 democratic and the aristocratic elements, wc have 
 a distinct monarchic dement standing out clearly 
 in our earliest glimpses of Teutonic i)olitical life. 
 
14 GROWTH OF ENGLISH CONST ITUTIOy. [chap. 
 
 King, Lords, and Commons, in their present shapes, 
 are something comparatively recent, but we may 
 see something which may fairly pass as the germ 
 of King, Lords, and Commons, from the very be- 
 ginning of our history. 
 
 I will even go a step further. The Constitution 
 which I have just sketched is indeed the common 
 possession of the Teutonic race, but it is something 
 more. W^e should perhaps not be wrong if we 
 were to call it a common possession of the whole 
 Aryan family of mankind. It is possible that we 
 may even find traces of it beyond the bounds of 
 the Aryan family ('7). But I will put speculations 
 like these aside. It is enough for me that the 
 Constitution which was the common heritage of the 
 Teutonic race was an heritage which the Teuton 
 shared with his kinsfolk in Greece and Italy. 
 Turn to the earliest records of European civiliza- 
 tion. In the Homeric poems we see a constitution, 
 essentially the same as that which is set before us 
 in the Germany of Tacitus, established alike in the 
 Achaian camp before Ilios, in the island realm of 
 Ithakc, and even among the Gods on Olympos. 
 Zeus is the King of all ; but he has around him 
 his Council of the greater Gods ; and there are 
 times when he summons to his court the whole 
 Assembly of the Divine nation, when Gods of all 
 
I.] COMMOX ARYAN COXSTITUTIOX. 15 
 
 ranks gather together in the court of their chief, 
 when, save old Ocean himself, even all the River- 
 gods were there, and when we are specially told — 
 a fact which might perhaps be pressed into the 
 ser\-ice of very recent controversies — that not one 
 of the Nymphs stayed away ( ). If we come down 
 to earth, we find the King of Men as the common 
 leader of all, but we find him surrounded by his 
 inner Council of lesser princes and captains. And 
 on great occasions, Agamemnon on earth, like Zeus 
 in heaven, gathers together the general Assembly 
 of freeborn warriors, an assembly in which, if 
 debate was mainly confined to a few eloquent 
 leaders, the common freeman, the undistinguished 
 citizen and soldier, had at least the right of speak- 
 ing his mind as to the proposals of his chiefs by 
 loud applause or by emphatic silence (^'9). Nor is 
 this picture confined to the host in battle array 
 beneath the walls of Ilios ; we must remember that 
 in all early societies the distinction between soldier 
 and civilian is unknown ; the army is the nation, 
 and the nation is the army. The same picture 
 which the Iliad sets before us as the constitution of 
 the Achaian army is set before us in the glimpses 
 of more peaceful life which we find in the Odys- 
 sey as being no less the constitution of every 
 Hellenic commonwealth on its own soiL Every- 
 
1 6 GROWTH OF ENGLISH COXSTJTUTIO.V. [chap. 
 
 Avhere we find the same three elements, the supreme 
 leader or King, the lesser chiefs who form his 
 Council, and the final authority of all, the general 
 Assembly of the freemen (^°). We see the same 
 in ever^' glimpse which history or legend gives us 
 of the political state of Rome and the other old 
 Italian comrgonwealths Everywhere we find 
 
 the King, the Senate, the Assembly of the people ; 
 and the distribution of powers is not essentially 
 changed when the highest personal authority is 
 transferred from the hands of a King chosen for 
 life to the hands of Consuls chosen for a year ("). 
 The likeness between the earliest political institu- 
 tions of the Greek, the Italian, and the Teuton is 
 so close, so striking in every detail, that we can 
 hardly fail to see in it possession handed on from 
 the earliest times, a possession which Greek, 
 Italian, and Teuton already had in the days 
 before the separation, in those unrecorded but 
 still authentic times when Greek, Italian, and 
 Teuton were still a single people speaking a single 
 tongue. 
 
 I have referred more than once to the picture of 
 our race in its earliest recorded times, as set before 
 us by the greatest of Roman historians in the 
 Germany of Tacitus. Let me now set before 
 you some special points of his description in his 
 
IVnWESS OF TACTTUS. 
 
 17 
 
 own words as well as I am able to clothe them 
 in an English dress (^3). 
 
 "They choose their Kings on account of their 
 nobility, their leaders on account of their valour. 
 Nor have the Kings an unbounded or arbitrar}- 
 power, and the leaders rule rather by their example 
 than by the right of command ; if they are ready, 
 if they are foreward, if they are foremost in lead- 
 ing the van, they hold the first place in honour. . . . 
 On smaller matters the chiefs debate, on greater 
 matters all men ; but so that those things whose 
 final decision rests with the whole people are first 
 
 handled by the chiefs The multitude sits 
 
 armed in such order as it thinks good ; silence 
 is proclaimed by the priests, who have also the 
 right of enforcing it. Presently the King or chief, 
 according to the age of each, according to his 
 birth, according to his glory in war or his elo- 
 quence, is listened to, speaking rather by the in- 
 fluence of persuasion than by the power of com- 
 manding. If their opinions give offence, they are 
 thrust aside with a shout ; if they are approved, 
 the hearers clash their spears. It is held to be 
 the most honourable kind of applause to use their 
 weapons to signify approval. It is lawful also in 
 the Assembly to bring matters for trial and to 
 bring charges of capital crimes. . . . In the same 
 
i8 GROWTH OF ENGLISH CONSTITUTION, [chap. 
 
 assembly chiefs are chosen to administer justice 
 through the districts and villages. Each chief in 
 so doing has a hundred companions of the com- 
 mons assigned to him, as at once his counsellors 
 and his authority. Moreover they do no matter 
 of business, public or private, except in arms." 
 
 Here we have a picture of a free common- 
 wealth of w^arriors, in which each freeman has his 
 place in the state, where the vote of the general 
 Assembly is the final authority on all matters, but 
 where both hereditary descent and elective office 
 are held in high honour. We see also in a marked 
 way the influence of personal character and of the 
 power of speech ; we see the existence of local 
 divisions, local assemblies, local magistrates ; in 
 a word, we see in this picture of our forefathers 
 in their old land, seventeen hundred years ago, the 
 germs of all the institutions which have grown 
 up step by step among ourselves in the course of 
 ages. And a Swiss of the democratic Cantons 
 would see in it, not merely the germs of his con- 
 stitution, but the living picture of the thing itself. 
 . This immemorial Teutonic constitution was 
 the constitution of our forefathers in their old 
 land of Northern Germany, before they made their 
 way into the Isle of Britain. And that constitu- 
 tion, in all its essential points, they brought with 
 
I.] COXTINUITY OF ENGLISH HISTORY. 19 
 
 them into their new homes, and there, transplanted 
 to a new soil, it grew and flourished, and brought 
 forth fruit richer and more lasting than it brought 
 forth in the land of its earlier birth. On the Teu- 
 tonic mainland, the old Teutonic freedom, with its 
 free assemblies, national and local, gradually died 
 out before the encroachments of a brood of petty 
 princes In the Teutonic island it has changed 
 its form from age to age ; it has lived through 
 many storms and it has withstood the attacks of 
 many enemies, but it has never utterly died out. 
 The continued national life of the people, notwith- 
 standing foreign conquests and internal revolutions, 
 has remained unbroken for fourteen hundred years. 
 At no moment has the tie between the present and 
 the past been wholly rent asunder ; at no moment 
 have Englishmen sat down to put together a wholly 
 new constitution in obedience to some dazzling 
 theory. Each step in our growth has been the 
 natural consequence of some earlier step ; each 
 change in our law and constitution has been, not 
 the bringing in of anything wholly new, but the 
 devclopcmcnt and improvement of something that 
 was already old. Our progress has in some ages 
 been faster, in others slower ; at some moments 
 we have seemed to stand still, or even to go back ; 
 but the great march of political developement has 
 
 C 2 
 
20 GROWTH OF ENGLISH CONSTITUTION, [chap. 
 
 never wholly stopped ; it has never been perma- 
 nently checked since the day when the coming of 
 the Teutonic conquerors first began to change 
 Britain into England. Xew and foreign elements 
 have from time to time thrust themselves into 
 our law ; but the same spirit which could develope 
 and improve whatever was old and native has com- 
 monly found means sooner or later to cast forth 
 again whatever vcas new and foreign. The lover of 
 freedom, the lover of progress, the man who has 
 eyes keen enough to discover real identitj' under a 
 garb of outward unlikeness, need never shrink from 
 tracing up the pohtical institutions of England 
 to their earliest shape. The fourteen hundred 
 years of English history are the possession of 
 those who would ever advance, not the possession 
 of those who would stand still or go backwards. 
 The wisdom of our forefathers was ever shown, 
 not in a dull and senseless clinging to things as 
 they were at any given moment, but in that spirit, 
 the spirit alike of the true reformer and the true 
 conservative, which keeps the whole fabric stand- 
 ing, by repairing and improving from time to time 
 whatever parts of it stand in need of repair or 
 improvement. Let ancient customs prevail ; let 
 us ever stand fast in the old paths. But the old 
 paths have in England ever been the paths of 
 
I.] THE WISDOM OF OUR FOREFATHERS. 21 
 
 progress ; the ancient custom has ever been to 
 shrink from mere change for the sake of change, 
 but fearlessly to change whenever change was 
 really needed. And many of the best changes of 
 later times, many of the most wholesome improve- 
 ments in our Law and Constitution, have been 
 only the casting aside of innovations which have 
 crept in in modern and evil times. They have 
 been the calling up again, in an altered garb, of 
 principles as old as the days when we get our first 
 sight of our forefathers in their German forests. 
 Changed as it is in all outv/ard form and circum- 
 stance, the England in which we live, has, in its 
 true life and spirit, far more in common with the 
 England of the earliest times than it has with the 
 England of days far nearer to our own. In many 
 a wholesome act of modern legislation we have 
 gone back, wittingly or unwittingly, to the earliest 
 principles of our race. We have advanced by 
 falling back on a more ancient state of things ; we 
 have reformed by calling to life again the institu- 
 tions of earlier and ruder times, by setting ourselves 
 free from the slavish subtleties of Norman lawyers, 
 by casting aside as an accursed thing the innova- 
 tions of Tudor tyranny and Stewart usurpation. 
 
 I have said that the primaeval Teutonic consti- 
 tution was brought with them by our Teutonic 
 
GROWTH OF ENGLISH COKSTITUTIOy. [chap. 
 
 forefathers when thej' came as conquerors into the 
 Isle of Britain. I will not again go into the details 
 of the English Conquest, the settlement which gave 
 us a new home in a new land, nor into all the 
 questions and controversies to which the details 
 of the English Conquest have given rise. I have 
 spoken of them over and over again with my voice 
 and with my pen, and I hope I may take for granted 
 here what I have fully argued out elsewhere {^^). 
 I hope that I may be allowed to assume the plain 
 facts of the case, without going through the details 
 of ever>^ point. I will assume then — for it is that to 
 \\ hich the question really comes — that England is 
 England and that Englishmen are Englishmen. I 
 will assume that we are not Romans or Welshmen, 
 but that we are the descendants of the Angles, 
 Saxons, and Jutes who came hither in the fifth and 
 sixth centuries, of the Danes and Northmen who 
 came hither in the ninth. I will assume that we 
 are a people, not indeed of unmixed Teutonic 
 blood — for no people in the world is of absolutely 
 unmixed blood — but a people whose blood is not 
 more mixed than that of any other nation ; that 
 Englishmen are as truly Englishmen as Britons 
 are Britons or as High-Germans are High-Germans. 
 I will assume that what is Teutonic in us is not 
 merely one element among others, but that it is the 
 
THE EXGLTSII XATIOX. 
 
 verj- life and essence of our national being ; that 
 whatever else we may have in us, whatever we 
 have drawn from those whom we conquered or 
 from those who conquered us, is no co-ordinate 
 element, but a mere infusion into our Teutonic 
 essence ; in a word, I will assume that Englishmen 
 are Englishmen, that we are ourselves and not 
 some other people. I assume all this ; if any 
 man disputes it, if any man chooses not to be 
 an Englishman but to be a Welshman or a 
 Roman, I cannot argue with him now ; I can 
 only ask him to turn to the arguments which I have 
 urged on all those points in other times and places. 
 I assume that, as we have had one national name, 
 one national speech, from the beginning, we may 
 be fairh' held to have an unbroken national being. 
 And when we find a Teutonic-speaking people in 
 Britain living under the same political and social 
 forms as the Teutonic-speaking people of the 
 mainland, it is surely no very rash or far-fetched 
 inference that the tongue and the laws which they 
 have in common are a common jxjssession drawn 
 from a common source ; that the island colony in 
 short came itself, and brought its laws and language 
 with it, from the elder mother-land bej'ond the sea. 
 
 Our fathers then came into Britain, and they 
 brought with them the same primaeval political 
 
24 GROWTH OF ENGLISH CONSTITUTIOX. [chap. 
 
 system, the same distinctions of rank, the same 
 division of pohtical power, which they had been 
 used to in their elder Anglian and Saxon homes. 
 The circumstances of the Conquest would no doubt 
 bring about some changes. It would probably tend 
 to increase the numbers of the class of slaves. 
 Such of the natives as were neither slain nor driven 
 out would of course pass into that class. Especi- 
 ally, though there is no doubt that our forefathers 
 brought their women \vith them from their own 
 homes, there is no doubt that many British women 
 passed into bondage, so much so that one of the 
 common Old-English names for a female slave is 
 Wylne or Welshwoman (^7), And we may infer 
 that this increased familiarity with slavery would 
 tend to strengthen the custom by which freemen 
 guilty of crimes were reduced to slavery by 
 sentence of law. Again, I suspect that the circum- 
 stances of the Conquest did something to raise 
 the position both of the common freeman and of 
 the King or leader, as compared with the inter- 
 mediate class of nobles. No two things are more 
 levelling than colonization and successful warfare. 
 The levelling effect of colonization is obvious ; the 
 levelling effect of warfare is not so obvious in 
 modern times. In modern armies, where there is a 
 strictly defined system of military ranks, where the 
 
I.] 
 
 THE ENGLISH CONQUEST. 
 
 25 
 
 distinction of officer and private is broadly drawn, 
 where the private soldier is little more than a 
 machine in the hands of his commander, the effect 
 may even be the other way. But in an earlier 
 state of things, where victory depends on the 
 individual prowess of each man, nothing can be 
 more levelling than warfare. Honour and profit 
 fall to the lot of the stoutest heart and the strong- 
 est arm, whether their owner be noble or peasant 
 in his own land. And this would be still more the 
 case when war and colonization went hand in hand, 
 when success brought not only victory but con- 
 quest, when men fought, not to go back loaded 
 with glory and plunder to their old homes, but to 
 win for themselves new homes as the reward of 
 their valour. On the other hand, in an early state 
 of things personal influence is almost everything ; 
 a vigorous and popular ruler is practically absolute, 
 because no one has any wish to withstand his will ; 
 but a weak or unpopular ruler can exercise no 
 authority whatever. In such a state of things as 
 this no one can so easily gain the authority of 
 unbounded influence as the military chief who leads 
 his tribe to victory. And again, that influence would 
 be increased tenfold when the successful chief led 
 them not only to victory but to conquest, when he 
 was not only a ruler but a founder, the man who 
 
26 GROWTH OF ENGLISH constitution: [chap. 
 
 had led his people to win for themselves a new land, 
 to create a new state, the prize of his sword and 
 of theirs. ]\Iere nobility of birth, however highly 
 honoured, would be but a feeble influence compared 
 with either of these influences above and below it. 
 I think that we may trace something of the results 
 of these influences in the position of the oldest 
 English nobility. That there was a difference 
 between the noble and the common freeman, in 
 Old-English phrase between the Eorl and the 
 Ceorl if"), is shown by countless allusions to the 
 distinction in our earliest records. But it is by no 
 means easy to say what the distinction really was. 
 And, as we shall presently see that this primitive 
 nobility gradually gave way to a nobility of quite 
 another kind and founded on quite another prin- 
 ciple, we may perhaps be inclined to think that, at 
 least after the settlement of the English in Britain, 
 the privileges of the Eorlas were little more than 
 honorary. I need hardly say that a traditional 
 deference for high birth, a traditional preference for 
 men of certain families in the disposal of elective 
 offices, may go on when birth carries with it no 
 legal privilege whatever. Nowhere has this been 
 more strikingly shown than in those democratic 
 Cantons of Switzerland of which I have already 
 spoken. In a commonwealth where magistrates 
 
1] 
 
 EORLAS AXD CEORLAS. 
 
 27 
 
 were chosen yearly, where every freeman had an 
 equal vote in their choice, it still happened that, 
 year after year, the representatives of certain famous 
 houses were chosen as if by hereditary right. Such 
 were the Barons of Attinghausen in Uri and the 
 house of Tschudi in Glarus (^9). And, whatever we 
 say of such a custom in other ways, it was surely 
 well suited to have a good effect on the members 
 of those particular families ; it was well suited to 
 raise up in them a succession of men fitted to 
 hold the high offices of the commonwealth. A 
 man of the favoured house knew that, if he were at 
 all worthy of a certain post of honour, he would 
 be chosen to it before any other man ; but he also 
 knew that, if he showed himself unworthy of it, he 
 might cither fail to attain it at all or might be 
 peacefully removed from it at the end of any 
 twelvemonth. Such an one was surely under 
 stronger motives to make himself worthy of the 
 place which he hoped to fill than cither the man 
 who has to run the risk of an unlimited compe- 
 tition or the man who succeeds to honour and 
 authority by the mere right of his birth. 
 
 Our fathers then came into Britain, bringing with 
 them the three elements of the primitive consti- 
 tution which we find described by Tacitus ; but 
 as I am inclined to think, the circumstances of the 
 
28 GROWTH OF ENGLISH CONSTITUTION, [chap. 
 
 Conquest did something, for a while at least, to 
 strengthen the powers both of the supreme chief 
 and of the general body of the people at the ex- 
 pense of the intermediate class of Eorlas or nobles. 
 Let us first trace the origin and growth of the 
 power of the supreme leader, in other words, the 
 monarchic element, the kingly power. What then 
 is a King The question is much more easily 
 asked than answered. The name of King has 
 meant very different things in different times and 
 places ; the amount of authority attached to the 
 title has varied greatly in different times and places. 
 Still a kind of common idea seems to run through 
 all its different uses ; if we cannot always define 
 a King, we at least commonly know a King when 
 we see him. The King has, in popular sentiment 
 at least, a vague greatness and sanctity attaching 
 to him which does not attach to any mere magis- 
 trate, however high in rank and authority. I am 
 not talking of the reason of the thing, but of what, 
 as a matter of fact, has at all times been the 
 popular feeling. Among the heathen Swedes, it is 
 said that, when public affairs went wrong, — that is, 
 in the state of things when we should now turn a 
 Minister out of office and when our forefathers some 
 generations back would have cut off" his head, — they 
 despised any such secondary victims, and offered 
 
I.] 
 
 KINGSHIP. 
 
 29 
 
 the King himself in sacrifice to the Gods (3°). Such 
 a practice certainly implies that our Scandinavian 
 kinsfolk had not reached that constitutional sub- 
 tlety according to which the responsibility of all 
 the acts of the Sovereign is transferred to some 
 one else. They clearly did not, like modern con- 
 stitution-makers, look on the person of the King 
 as inviolable and sacred. But I suspect that the 
 very practice which shows that they did not look 
 on him as inviolable shows that they did look on 
 him as sacred. Surely the reason why the King 
 was sacrificed rather than any one else was because 
 there was something about him which there was 
 not about any one else, because no meaner victim 
 would have been equally acceptable to the Gods. 
 On the other hand — to stray for a moment beyond 
 the range of Teutonic and even of Aryan pre- 
 cedent — we read that the ancient Egyptians fore- 
 stalled the great device of constitutional monarchy, 
 that their priests, in a yearly discourse, dutifully 
 attributed all the good that was done in the land 
 to the King personally and all the evil to his 
 bad counsellors (3'). These may seem two exactly 
 opposite ways of treating a King; but the practice 
 of sacrificing the King, and the practice of treating 
 the King as one who can do no wrong, both start 
 from the same principle, the principle that the King 
 
30 GROWTH OF ENGLISH CONSTITUTION, [chap. 
 
 is, somehow or other, inherently different from every- 
 body else. Our own Old-English Kings,like all other 
 Teutonic Kings, were anything but absolute rulers ; 
 the nation chose them and the nation could depose 
 them ; they could do no important act in peace 
 or war without the national assent ; yet still the 
 King, as the King, was felt to hold a rank differing 
 in kind from the rank held by the highest of his 
 subjects. Perhaps the distinction mainly consisted 
 in a certain religious sentiment which attached 
 to the person of the King, and did not attach to 
 the person of any inferior chief. In heathen times 
 the Kings traced up their descent to the Gods whom 
 the nation worshipped ; in Christian times they 
 were distinguished from lesser rulers by being 
 admitted to their office with ecclesiastical cere- 
 monies ; the chosen of the people became also the 
 Anointed of the Lord. The distinction between 
 Kings and rulers of any other kind is strictly im- 
 memorial ; it is as old as anything that we know 
 of the political institutions of our race. The dis- 
 tinction is clearly marked in the description which 
 I read to you from Tacitus. He distinguishes 
 in a marked way Rcgcs and Duces, Kings and 
 Leaders ; Kings whose claim to rule rested on 
 their birth, and Leaders whose claim to rule rested 
 on their personal merit. But from the same writer 
 
I.] 
 
 ORIGIN OF KINGSHIP. 
 
 31 
 
 we learn that, though the distinction was so early 
 established and so well understood, it still was not 
 universal among all the branches of the Teutonic 
 race. Of the German nations described by Tacitus, 
 some, he expressly tells us, were governed by Kings, 
 while others were not (3^). That is to say, each 
 tribe or district had its own chief, its magistrate 
 in peace and its leader in war ; but the whole nation 
 was not united under any one chief who had any 
 claim to the special and mysterious privileges of 
 kingship. That is to say, though we hear of king- 
 ship as far back as our accounts will carry us, yet 
 kingship was not the oldest, form of government 
 among the Teutonic tribes. The King and his 
 Kingdom came into being by the union of several 
 distinct tribes or districts which already existed 
 under distinct leaders of their own, and in our own 
 early history we can mark witli great clearness 
 the date and circumstances of the introduction of 
 kingship. We .should be well pleased to know 
 what were the exact Teutonic words which Tacitus 
 expressed by the Latin equivalents Rex and Dux. 
 As for the latter at least, we can make a fair 
 guess. The Teutonic chief who was not a King 
 bore the title of Ealdorinan in peace and of Hcrc- 
 toga in u ar. The former title needs no explanation. 
 It still lives on among us, though with somewhat 
 
32 GROWTH OF EXGLISH COXSTITUTION. [chap. 
 
 less than its ancient dignity. The other title of 
 Heretoga, army-leader, exactly answering to the 
 Latin Dux, has dropped out of our own language, 
 but it survives in High-German under the form of 
 Hcrzog, which is familiarly and correctly translated 
 by Duke (33). The Duces of Tacitus, there can be no 
 doubt, were Ealdormen or Heretogan. It is less clear 
 what the title v/as which he intended by Rex. Our 
 word Cynhig, King, is common to all the existing 
 Teutonic tongues, and we find it as far back as we 
 can trace the English language But it is not the 
 only, nor seemingly the oldest, word to express the 
 idea. In the oldest monument of Teutonic speech, 
 the Gothic translation of the Scriptures, the word 
 King, in any of its forms, is not found. The word 
 there used is Thiudans (35). And there is a third 
 word, Drilitcn, which in English is most commonly 
 used in a religious sense (3^). I would ask you to 
 bear with me while I plunge for a moment into 
 some obsolete Teutonic etymologies, as I think that 
 the analogies of these three words are not a little 
 interesting. All three names come from, or are 
 closely connected with, words meaning the race or 
 people. One of those words, Cyn or Kin, we still 
 keep in modern English with no change of sound 
 and with very little change of meaning. Now 
 whether the word Cyning, which in its shortened 
 
I.] THE WORD CVXLVG. 
 
 form has become King, comes straight from the 
 English word Cjn, is a matter of dispute among 
 comparative philologers ; but in any case the two 
 words come from the same root. Let no one delude 
 you into thinking that A'zV/^has anything to do with 
 the canning or cwming man. The man who first said 
 that it had had simply ncH: learned his Old-English 
 grammar (37). I will not say positively whether 
 Cyning comes straight from the substantive Cyn or 
 from the adjective Cyne — whether it is to be taken 
 as " the noble one," or whether, as ing is the 
 Teutonic patronymic, Cyning from Cyn is to be 
 taken as the offspring of the people — or whether 
 our Cyning is to be held as cognate with the 
 Sanscrit Ganaka, which means father. In all of 
 these cases alike the word Cyning comes from the 
 same original root as Cyn, the Latin Genus, and 
 the Greek 761/0? (3^). Now the other two names, 
 Thindans or Tlicodcn, and Drihten, have dropped 
 out of our language, and so have the two words 
 with which they are connected, just as Cyning is 
 connected with Cyn. Thindans or Tlicodcn comes 
 from Thiitda or T/icod, also meaning people, a word 
 which you will recognise in many of the old Teu- 
 tonic names, Theodric, Theodbcrht, Tlicodbald, and 
 the like. So Drihten cither comes straight from 
 Driht, a family or company, or else, just like Cyn 
 
 D 
 
34 GROWTH OF ENGLISH CONSTITUTION, [chap. 
 
 and Cyne, from an adjective d7-iJit meaning noble 
 or lordly. All these three names expressing king- 
 ship have thus to do with words meaning the race 
 or people. They imply the chief of a people, 
 something more than the chief of a mere tribe 
 or district. Now in our Old- English Chronicles, 
 when they tell how the first English conquerors, 
 Hengest and Horsa, settled in Kent, they do not 
 call them Cytiingas but Hcrctogan, Leaders or 
 Dukes. It is not till after some victories over the 
 Britons that we hear that Hengest took the rice or 
 kingdom, and that his son ^sc is called King. So 
 in Wessex, the first conquerors Cerdic and Cynric 
 are called Ealdormen when they land ; but, when 
 they had established a settled dominion at the 
 expense of the Welsh, we read that they too took 
 the rice, and the leaders of the West-Saxons are 
 henceforth spoken of as Kings (39). It is plain then 
 that the first leaders of the English settlements 
 in Britain, when they came over, bore only the 
 lowlier title of Herctoga or Ealdornian ; it was 
 only when they had fought battles and found them- 
 selves at the head of a powerful and victorious 
 settlement on the conquered soil that they were 
 thought worthy of the higher title of Kings. 
 And we may further believe that, after all 
 their exploits, they would not have been thought 
 
I] 
 
 BEGINNING OF ENGIISII KINGSHIP. 
 
 35 
 
 worthy of it, if they had not been held to come of the 
 blood of the Gods, of the divine stock of Woden. 
 
 We thus see that kingship in the strict sense of 
 the word, as distinguished from the government of 
 Dukes or Ealdormen, had its beginning among the 
 EngHsh in Britain, not in the very first moment 
 of the Conquest, but in the years which imme- 
 diately followed it, within the lifetime of the first 
 generation of conquerors. The same distinction 
 which we find among the Angles and Saxons we 
 find also among the kindred nations of Scandinavia. 
 When the Danes and Northmen began those inva- 
 sions which led to such important settlements in 
 Northern and Eastern England, we always find two 
 marked classes of leaders, the Kings and the Juris, 
 the same word as Eorl. Of these the Jarh answer 
 to the English Ealdormen ('»°). The distinction 
 is again clearly marked when we read that the 
 Old-Saxons, the Saxons of the mainland, were 
 ruled, not by Kings, but by what our Latin writer 
 is pleased to call Sairaps — that is, of course, Dnkcs 
 or Ealdormen (f). But it is yet more strongly 
 marked in several accounts where wc read of na- 
 tions which had been united under Kincrs fallincr 
 back again upon the earlier dominion of these 
 smaller local chiefs. Thus the Lombards in Italy, 
 who had been led by Kings to their great conquest 
 
 D 2 
 
36 GROWTH OF EI^GLISH CONSTITUTIOlSf. [chap. 
 
 are said for a while to have given up kingly govern- 
 ment, and to have again set up a rule of inde- 
 pendent Dukes. So the West-Saxons in our own 
 island are said at one time to have cast away 
 kingly government, and to have in the like sort 
 fallen back on the rule of independent Ealdor- 
 men In all these cases, we should be glad to 
 know more clearly than we do what was the exact 
 distinction between the King and the Duke or 
 Ealdorman. But it is plain that the King 
 was the representative of a closer national unity, 
 while the Ealdorman represented the tendency 
 of each tribe or district to claim independence for 
 itself. The government of the Ealdorman may not 
 have been less effective than that of the King. If 
 we remember the distinction draAvn by Tacitus as 
 to the respective qualifications for the two offices, 
 we may even believe that the rule of the Ealdor- 
 man may have been the more effective. But we 
 may be sure that the Ealdorman was felt to be, in 
 some way or other, less distant from the mass of 
 his people than the King was ; the place of King 
 could be held only by one of the stock of Woden ; 
 the place of Ealdorman, it would seem, was open 
 to any man who showed that he possessed the gifts 
 which were needed in a leader of men. 
 
 Kingship thus became the law of all the Teuto- 
 
I.] KINGS AND EALDORMEN. 37 
 
 nic tribes which settled in Britain and whose union 
 made up the Enghsh nation. That union, we must 
 always remember, was very gradual. Step by step, 
 smaller Kings or independent Ealdormen admitted 
 the supremacy of a more powerful King. Then, 
 in a second stage, the smaller state was absolutely 
 incorporated with the greater. Its ruler now, if he 
 continued to rule at all, ruled no longer as an inde- 
 pendent or even as a vassal sovereign, but as a 
 mere magistrate, acting by the deputed authority 
 of the sovereign of whom he held his office («). 
 The settlement made by Cerdic and Cynric on the 
 southern coast grew, step by step, by the incor- 
 poration of many small kingdoms and independent 
 Ealdormanships, into the lordship of the whole 
 Isle of Britain, into the immediate kingship of all its 
 English inhabitants. The Ealdorman of a corner 
 of Hampshire thus grew step by step into the King 
 of the West-Saxons, the King of the Saxons, the 
 King of the English, the Emperor of all Britain, 
 the lord, in later times, of a dominion reaching 
 into every quarter of the world {^). But the point 
 which now concerns us is that, with each step in 
 the growth of the King's territorial dominion, his 
 political authority within that dominion has grown 
 also. The change from an Ealdorman to a King, 
 the change from a heathen King to a Christian 
 
38 GROWTH OF ENGLISH CONSTITUTION, [chap. 
 
 King crowned and anointed, doubtless did much to 
 raise the power and dignity of the ruler who thus 
 at each change surrounded himself with new 
 titles to reverence. But this was not all. The 
 mere increase in the extent of territorial dominion 
 would at each step work most powerfully to in- 
 crease the direct power of the King, and still more 
 powerfully to increase the vague reverence which 
 everywhere attaches to kingship. In Homer we 
 read of Kings, some of whom were " more kingly," 
 more of Kings, than others. So it was among 
 ourselves. A King who reigned over all Wessex 
 was more of a King than a King who reigned only 
 over the Isle of Wight, and a King who reigned 
 over all England was more of a King than a King 
 who reigned only over Wessex The greater 
 the territory over which a King reigns the less 
 familiar he becomes to the mass of his people ; he 
 is more and more shrouded in a mysterious awe ; 
 he is more and more looked on as a being of a 
 different nature from other men, of a different 
 nature even from other civil magistrates and mili- 
 tary leaders, however high their authority and 
 however illustrious their personal character. Such 
 a separation of the King from the mass of his 
 people may indeed, in some states of things, lead, 
 not to the increase, but to the lessening of his 
 
I.] 
 
 GROWTH OF KINGSHIP. 
 
 39 
 
 practical power. He may become in popular 
 belief too great and awful for the effectual exercise 
 of power, and, by dint of his very greatness, his 
 practical authority may be transferred to his repre- 
 sentatives who govern in his name. He may be 
 surrounded with a worship almost more than 
 earthly, while the reality of power passes to a 
 Mayor of the Palace, or is split up among the 
 satraps of distant provinces if"). But, with a race 
 of vigorous and politic Kings ruling over a nation 
 whose tendencies are to closer unity and not to 
 wider separation, each step in the territorial growth 
 of the kingdom is also a step in the growth, not only 
 of the formal dignity, but of the practical autho- 
 rity of the King. The King of the English, who in 
 the eleventh century held the direct sovereignty of 
 all England, the ovcr-lordship of all Britain, was 
 a very different person from his forefather who 
 in the sixth century deemed that another victory 
 over the Briton, the acquisition of another strip 
 of British territory, another hundred, it may be, of 
 modern Hampshire, had made him great enough 
 to change his title of Ealdorman for that of 
 King. Such a King was every inch a King; his 
 personal character was of the highest moment for 
 the good or evil fortune of his kingdom. His wil'. 
 counted for much in the making of the laws by 
 
40 GROWTH OF ENGLISH CONSTITUTION, [chap. 
 
 which his people were to be governed, and in the 
 disposal of honours and offices among those who 
 were to govern under him. But yet he was not a 
 despot ; men never forgot thcxt the King was what 
 his name implied, the representative, the impersona- 
 tion, the offspring, of the people. It was from the 
 choice of the people that he received his authority 
 to rule over them, a choice limited under all 
 ordinary circumstances to the royal house, but 
 which, within that house, was not tied down by a 
 blind regard to any particular law of succession. 
 It was a choice which at any time could fix itself 
 on the Avorthiest man of the royal house, and 
 which, when the royal house failed to supply a 
 fitting candidate, could boldly fix itself on the 
 worthiest man of the whole people And 
 those from whom the King first drew his power 
 ever shared with him in its exercise. The laws, 
 the grants, the appointments to offices, which the 
 King made, needed the assent of the people in 
 their national Assembly, the gathering of the Wise 
 Men of the whole land (''^). And those who gave 
 him liis power and who guided him in its exercise 
 could also, when need so called, take away the 
 power which they had given. At rare intervals — 
 for it is only at rare intervals that so great a step is 
 likely to be taken — has the English nation exercised 
 
I.] 
 
 RIGHT OF DEPOSITION. 
 
 41 
 
 its highest power by taking away the Crown from 
 Kings who were unworthy to wear it. I speak not 
 of acts of violence or murder, or of processes which, 
 though clothed under legal form, were without 
 precedent in our history. I speak not of the secret 
 death of Henry the Sixth or of the open execution 
 of Charles the First. I speak of the regular pro- 
 cess of the Law. In Northumberland the right of 
 deposition was exercised with special frequency i^^). 
 But I will speak only of that direct and unbroken 
 line of Kings who from Kings of the West-Saxons 
 grew into the Kings of the English. Six times at 
 least, in the space of nine hundred years, from 
 Sigeberht of Wessex to James the Second, has 
 the Great Council of the Nation thus put forth 
 the last and greatest of its powers (5°). The last 
 exercise of this power has made its future exercise 
 needless. All that in old times was to be gained 
 by the deposition of a King can now be gained 
 by a vote of censure on a Minister, or, in the 
 extremcst case, by his impeachment. 
 
 But, besides that growth of the King's power 
 which followed naturally on the growth of the 
 King's dominions, another cause was busily at 
 work which clothed him with a personal influence 
 which was of almost greater moment than his 
 political authority. To a large portion of his sub- 
 
42 GROWTH OF EXCLISH CONSTITUTION, [chap. 
 
 jects, to all the men of special wealth or power, the 
 King gradually became, not only King but lord ; 
 his subjects gradually became, not only his subjects 
 but his men. These names may need some ex- 
 planation, and I will again go back to Tacitus as 
 our starting-point. Side by side with the political 
 community, the King, the Nobles, the popular As- 
 sembly, all of them strictly political powers, he 
 describes another institution, a relation in itself not 
 political but purely personal, but which gradually 
 became of the highest political moment. This 
 was the institution of the coinitatus, the system of 
 personal relation between a man and his lord, a 
 relation of faithful service on one side, of faithful 
 protection on the other. Let us again hear the 
 words of the great Roman interpreter of our own 
 earliest days (s'). 
 
 " It is no shame among the Germans to be seen 
 among the companions {coviitcs) of a chief. And 
 there are degrees of rank in the companionship 
 {coinitatus), according to the favour of him whom 
 they follow ; and great is the rivalry among the 
 companions which shall stand highest in the favour 
 of his chief, and also among the chiefs which shall 
 have the most and the most valiant companions. 
 , . . . When they come to battle, it is shameful for 
 the chief to be surpassed in valour ; it is shame- 
 
THE COMITATUS. 
 
 43 
 
 ful for his companions not to equal the valour of 
 their chief. It is even a badge of disgrace for the 
 remainder of life if a man comes away alive from 
 the field on which his chief has fallen. To guard, 
 to defend him, to assign their own valiant deeds to 
 his credit, is their first religious duty. The chiefs 
 fight for victory ; the companions fight for their 
 chief." 
 
 This is the description given by a Roman his- 
 torian of the second century ; let me set beside it 
 the words of an English poet of the tenth. He is 
 describing the battle of Maldon in 991, which was 
 fought by the East-Saxons under their Ealdorman 
 Brihtnoth against the invading Northmen. The 
 Ealdorman has been killed ; two of his followers 
 have fled, one of them on the Ealdorman's horse ; 
 and every word that is put into the mouth of his 
 faithful companions turns upon the personal tie 
 between them and their lord (5^). 
 
 " Thereon hewed him 
 The heathen soldiers ; 
 And both the warriors 
 That near him by-stood 
 yElfnoth and Wulfma-r both, 
 Lay there on the ground 
 15y their lord ; 
 Their lives they sold. 
 There bowed they from the fight 
 That there to be would not ; 
 
44 GROWTH OF ES'GLISH CONSTITUTION, [chap. 
 
 There were Odda's bairns 
 Erst in flight ; 
 Godric from battle went, 
 And the good man forsook 
 That to him ofttimes 
 Horses had given. 
 He leapt on the horse 
 That his lord had owned, 
 On the housings 
 That it not right was." 
 
 Presently we read of the deeds done by his 
 Thegns over his body ; 
 
 " There was fallen 
 The folk's Elder, 
 ^thelred's Earl; 
 All there saw 
 Of his hearth's comrades 
 That their lord lay dead. 
 Then there went forth 
 The proud Thanes, 
 The undaunted men 
 Hastened gladly ; 
 They would there all 
 One of two things, 
 Either life forsake, 
 Or the loved one wreak." 
 
 Then one of the Thegns speaks ; 
 
 " Neither on that folk 
 Shall the Thanes twit me 
 That I from this host 
 Away would go 
 To seek my home, 
 
I.l BATTLE OF MALDOh'. 45 
 
 Now mine Elder lieth 
 Hewn down in battle ; 
 To me is that harm most ; 
 He was both my kinsman 
 And my lord." 
 
 Then another speaks in answer ; 
 
 " How thou, yElfwine, hast 
 All our Thanes 
 In need-time cheered. 
 Now our lord lieth, 
 The Earl on tlie earth, 
 That of us each one 
 Others should embolden, 
 Warmen to the war. 
 That while we weapons may 
 Have and hold. 
 The hard falchion, 
 Spear and good sword." 
 
 Then another speaks ; 
 
 " I this promise 
 That I hence nill 
 Flee a footstep, 
 But will further f^o. 
 To wreak in the fi^ht 
 My lord and comrada 
 Nor by Stourmcre 
 Any steadfast hero 
 With words need twit me 
 That I lordless 
 Homeward should go, 
 And wend frtjm the fight." 
 
46 GROWTH OF ENGLISH CONSTITUTION, [chap. 
 
 The story goes on a little later ; 
 
 " Rath was in battle 
 Offa hewn down, 
 Yet had he furthered 
 That his lord had pledged, 
 As he ere agreed 
 With his ring-giver 
 That they should both 
 To the borough ride 
 Hale to home, 
 Or in the host cringe 
 On the slaughter place, 
 Of their wounds die. 
 He lay thane-like 
 His lord hard by." 
 
 Lastly another Thegn speaks ; 
 
 " Mind shall the harder be, 
 Heart shall the keener be, 
 Mood shall the more be, 
 As our main lessens. 
 Here lies our Elder, 
 All down hewn, 
 A good man in the dust ; 
 Ever may he groan 
 Who now from this war-play 
 Of wending thinketh. 
 I am old of life ; 
 Hence stir will I not, 
 And I by the half 
 Of my lord, 
 By such a loved man 
 To lie am thinking," 
 
ROMAN AND TEUTONIC FEELING. 
 
 47 
 
 This institution of military companionship seems 
 to have struck Tacitus with some amazement. He 
 says that this kind of personal relation was among 
 the Germans not thought shameful. This was 
 the natural feeling of a Roman. The duty of a 
 Roman citizen was wholly towards the state. The 
 state might be represented either by a responsible 
 magistrate or by an irresponsible Emperor ; in 
 either case obedience was due to the representative 
 of the state ; but there was no personal relation to 
 the man. The old Roman institution of patron 
 and client, which was so like the German conii- 
 tatiis, had pretty well died out by the time of 
 Tacitus, and it had at no time been entered into 
 by men of high rank (s^). What amazed Tacitus 
 was that among the Germans the noblest in birth 
 and exploits were not looked on as dishonoured 
 by entering the service of a personal lord. To 
 Tacitus himself Trajan was the chief magistrate 
 of the Roman commonwealth, the chief com- 
 mander of the Roman army ; he was a personal 
 master to none but his slaves and frccdmcn It 
 was only in a much later stage of the Roman 
 Empire that personal service in the court and 
 household of the Emperor began to be looked on 
 as honourable (ss). But among the Teutonic na- 
 tions the personal relation coloured everything; 
 
48 GROWTH OF EiVGL/SH CONSTITUTION, [chap. 
 
 personal service towards a King or other chief was 
 honourable from the beginning ; the proudest 
 nobles of Europe have down to this day thought 
 themselves honoured by filling offices about the 
 persons of Emperors, Kings, and other princes 
 which Tacitus would have deemed beneath the 
 dignity of any Roman citizen. We are now ac- 
 customed to see this kind of service paid in the 
 case of royal personages ; but only a few centuries 
 back men of any rank deemed themselves 
 honoured by paying the like service to men of 
 the rank next above their own, or even to men of 
 their own rank who had the start of them in age 
 and reputation. The knight was served by his 
 esquire and the master by his scholar ; and the 
 same principle, laid aside everywhere else, lingers 
 on in what is undoubtedly a trace of the Teutonic 
 comitatus, the fagging of our public schools. Now 
 the political effect of the existence of the principle 
 of personal service, the institution of the coinitattis, 
 alongside of the primitive political community, 
 was most important in our early history. The per- 
 sonal relation went far to swallow up the purely 
 political one. To enter the service of a chief 
 became so established a practice that at last it was 
 deemed that it was the part of every man to "seek 
 a lord," as the phrase was, to commend himself, to 
 
I.] 
 
 THE LORD AND HIS MAN. 
 
 49 
 
 put himself under the protection of some man 
 more powerful than himself (s""'). The man owed 
 faithful service to his lord ; the lord owed faithful 
 protection to his man. The very word Lord, in 
 its older and fuller form Hlaford, implies the re- 
 wards which the lord bestowed on his faithful man. 
 The word is in some sort a puzzlin^r one ; but there 
 can be no doubt that it is connected with kldf, loaf, 
 and that its general meaning is the giver of 
 bread {^''). Now herein lurks something which has 
 greatly affected all later political and social ar- 
 rangements. The institution of the comitatiis in 
 its first state had nothing whatever to do with the 
 holding of land. But the man looked for reward 
 of his faithful .service at the hands of his lord ; he 
 looked for the bread of which his lord's title pro- 
 claimed him as the giver. There was of course no 
 form of reward, no form of bread, so convenient or 
 .so honourable as that of a grant of land to be held 
 as the reward of past and the condition of future 
 service. Moreover, the custom of granting out 
 lands to be held by the tenure of military service 
 had become common in the later days of Roman 
 power (58). Such lands were of course held, not of 
 the Emperor as a personal lord, but of the Roman 
 Corumonvvealth of which he was the head and re- 
 presentative. But the custom of holding lands by 
 
 E 
 
50 
 
 GROWTH OF ENGLISH CONSTITUTION. 
 
 [CHAI'. 
 
 military service easily fell in with the Teutonic in- 
 stitution of personal service, and the union of the 
 two in the same person produced that feudal 
 relation which has had such an important bearing 
 on all political and social life through the whole of 
 the middle ages and down to our own time. The 
 land granted by the lord to his man, or the land 
 which the man agreed to hold as if it had been 
 so granted, might be a kingdom held of the 
 Emperor or the Pope, or it might be the smallest 
 estate held of a more powerful neighbour. In 
 either case, such a holding by military service was 
 a fief, and from the institution of such fiefs the 
 so-called Feudal System, with all its manifold 
 workings for good and for evil, had its rise. But 
 so far as the Feudal System existed, either in Eng- 
 land or in any other country, it existed wholly as 
 a system which had grown up by the side of an 
 earlier system which it wholly or partially displaced. 
 The feudal tenant, holding his land of a lord by 
 military service gradually supplanted, wholly or 
 partially, in most countries of Europe, the allodial 
 holder who held his land of no other man, and who 
 knew no superior but God and the Law (59). In 
 England this change took place only gradually and 
 partially; the Norman Conquest and the events 
 which followed it, and the subtle legal theories which 
 
I.] 
 
 FEUDALISM. 
 
 51 
 
 then came into vog^ue, greatly strengthened one 
 side of the feudal idea as regarded the mere tenure 
 of land. But, on the other hand, the vigorous rule 
 of the Norman and Angevin kings, and especially 
 the legislation of the two great Henries saved 
 England from those political developements of 
 feudalism which grew up in other lands. The 
 Feudal System, as something spreading into every 
 corner of the land, and affecting every relation of 
 life, never obtained the same complete estab- 
 lishment in England which it did in some con- 
 tinental countries. 
 
 But it is only indirectly that my subject has any- 
 thing to do with the Feudal System, and especially 
 with its .social working. I have to do with the 
 comitatiis, out of which the feudal relation grew, 
 mainly in another aspect equally indirect, namely 
 the way in which it affected our earliest political 
 institutions. It gave us a new form of nobility, a 
 nobility of office and of personal relation to the 
 King, instead of a nobility founded on birth only. It 
 gave us a nobility of Thcgns, which gradually sup- 
 planted the earlier nobility of the Eorls. As the 
 royal power and dignity grew, it came to be looked 
 on as the' highest honour to enter into the personal 
 service of the King. Two results followed ; service 
 towards the King, a place, that is, in the King's coini- 
 
 E 2 
 
52 GROWTH OF ENGLISH CONSTITUTIOI^. [chap. 
 
 tattis, became the badge and standard of nobility ('^■'). 
 And it greatly strengthened the power of the King 
 that he stood to all the chief men of his kingdom 
 in the relation, not only of a political ruler, but 
 of a personal lord, a lord to whose service they 
 were bound by a personal tie, and of whom they 
 held their lands as the gift of his personal bounty. 
 It marks perhaps a decline from the first idea of 
 the coviitatiis that the old word GesitJi, companion, 
 answering exactly to the Latin Comes wicA by Taci- 
 tus, was supplanted by the name Thcgn, literally 
 servant (^'^). But when personal service was deemed 
 honourable, the name of servant was no degrada- 
 tion, and the name Thcgn became equivalent to the 
 older Eorl. The King's Thegn, the men who held 
 their land of the King and who were bound to him 
 by the tie of personal service, formed the highest 
 class of nobility. The Thcgns of inferior lords, of 
 Bishops and Ealdormen, formed a secondary class. 
 A nobility of this kind, there can be no doubt, was 
 so far more liberal than the elder nobility of birth 
 that admission to it was not forbidden to men of 
 lower degree. The Ccorl, the ordinary freeman, 
 could not in strictness become an Eorl, for the 
 simple reason that he could not change his fore- 
 fathers ; but he might, and he often did, become 
 a TJiegn (^'). But, on the other hand, such a 
 
1.] THEGNS AND EORLS. S3 
 
 nobility, while it made it easier for the common 
 freemen to rise, tended to lower the condition of 
 those among common freemen who did not rise. 
 For the very reason that the barrier of birth is one 
 which cannot be passed, it is in some respects less 
 irksome than the barrier of wealth or office. The 
 privileges of a strictly hereditary nobility are much 
 more likely to sink into mere honorary distinctions 
 than the privileges of a nobility whose rank is 
 backed b)' the solid advantages of office and of a 
 personal relation to the sovereign. 
 
 The tendency then of the first six hundred years 
 after the settlement of the English in Britain was 
 to increase the power of the Crown, to depress 
 the lower class of freemen, to exchange a nobility 
 of birth for a nobility of personal service to the 
 King. That is to say, England had, before the 
 Norman Concjuest, already begun to walk, though 
 with less speed than most other nations, in the 
 path which led to the general overthrow of liberty 
 throughout Europe. The foreign invasion which 
 for a moment seemed to have crushed her freedom 
 for ever did in truth only lead to its new birth, to 
 its fresh establishment in forms better fiLted to the 
 altered state of things, forms better fitted to bo 
 handed on to later times, forms belter fitted to 
 preserve the well-being of a great nation, than those 
 
54 GROWTH OF ENGLISH CONSTITUTION, [ciiaf. 
 
 forms of the old Teutonic community which still 
 linger on in those remote corners of the world which 
 I spoke of at my beginning. That momentary over- 
 throw, that lasting new birth, will be the subject 
 of my second chapter. I will now only call you 
 to bear in mind that England has never been left 
 at any time without a National Assembly of some 
 kind or other. Be it Witenagemot, Great Council, 
 or Parliament, there has always been some body 
 of men claiming, with more or less of right, to 
 speak in the name of the nation. And bear too in 
 mind that, down at least to the Norman Conquest, 
 the body which claimed to speak in the name 
 of the nation was, at all events in legal theory, 
 the nation itself. This is a point on which I 
 mean again to speak more fully ; I would now 
 simply suggest the thought, new perhaps to many, 
 that there was a time when every freeman of 
 England, no less than every freeman of Uri, could 
 claim a direct voice in the councils of his country. 
 There was a time when every freeman of England 
 could raise his voice or clash his weapon in the 
 Assembly which chose Bishops and Ealdormen 
 and Kings, when he could boast that the laws which 
 he obeyed were laws of his own m.aking, and that 
 the men who bore rule over him were rulers of his 
 own choosing. Those days are gone, nor need we 
 
I.] CONTIXUITY OF ENGLISH ASSEMBLIES. 55 
 
 seek to call them back. The struggles of ages on 
 the field and in the Senate have again won back 
 for us the selfsame rights in forms better suited to 
 our times than the barbaric freedom of our fathers. 
 Yet it is well that we should look back to the 
 source whence comes all that we boast of as our 
 own possession, all that we have handed on to our 
 daughter commonwealths in other continents. Let 
 us praise famous men and our fathers that begat 
 us. Let us look to the rock whence we were 
 hewn and to the hole of the pit whence we were 
 digged. Freedom, the old poet says, is a noble 
 thing (^3) ; it is also an ancient thing. And those 
 who love it now in its more modern garb need 
 never shrink from tracing back its earlier forms 
 to the first days when history has aught to tell us 
 of the oldest life of our fathers and our brethren. 
 
56 GROWTH OF ENGLISH CONSTITUTION, [chap. 
 
 CHAPTER II. 
 
 In my first chapter I dealt mainly with those 
 poHtical institutions of the earliest times — institu- 
 tions common to our whole race, institutions which 
 still live on untouched among some small primitive 
 communities of our race — out of which the still 
 living Constitution of England grew. It is now my 
 business, as the second part of my subject, to trace 
 the steps by which that Constitution grew out of 
 a political state with which at first sight it seems 
 to have so little in common. My chief point is 
 that it did thus, in the strictest sen.se, grow out 
 of that state. Our English Constitution was never 
 made, in the sense in which the Constitutions of 
 many other countries have been made. There 
 never was any moment when Englishmen drew 
 out their political .system in the shape ot a formal 
 document, whether as the carrying out of any 
 abstract political theories or as the imitation of 
 the past or present system of any other nation. 
 
II.] 
 
 NEIV LAWS NEVER ASKED FOR. 
 
 57 
 
 There are indeed certain great political documents, 
 each of which forms a landmark in our political 
 history. There is the Great Charter, the Petition 
 of Right, the Rill of Rights. But not one of these 
 gave itself out as the enactment of anything new. 
 All claimed to set forth, with new strength, it 
 might be, and with new clearness, those rights 
 of Englishmen which were already old. In all our 
 great political struggles the voice of Englishmen 
 has never called for the assertion of new principles, 
 for the enactment of new laws ; the cry has always 
 been for the better observance of the laws which 
 were already in force, for the redress of grievances 
 which had arisen from their corruption or neglect ('). 
 Till the Great Charter was wrung from John, men 
 called for the laws of good King Eadward. And 
 when the tyrant had unwillingly set his seal to 
 the ground-work of all our later Law, men called 
 for the stricter observance of a Charter which was 
 deemed to be itself only the laws of Eadward in 
 a newer dress We have made changes from 
 time to time ; but they have been changes 
 which have been at once conservative and pro- 
 gressive — conservative because progressive, pro- 
 gressive because conservative. They have been the 
 application of ancient principles to new circum- 
 stances ; they liavc been the careful repairs of an 
 
S8 GROWTH OF ENGLISH CONSTITUTION, [chaf. 
 
 old building, not the pulling down of an old build- 
 ing and the rearing up of a new. The life and soul 
 of English law has ever been precedent ; we have 
 always held that whatever our fathers once did 
 their sons have a right to do again, When the 
 Estates of the Realm declared the throne of James 
 the Second to be vacant, they did not seek to 
 justify the act by any theories of the right of re- 
 sistance, or by any doctrines of the rights of man. 
 It was enough that, three hundred years before, the 
 Estates of the Realm had declared the throne of 
 Richard the Second to be vacant (3). By thus 
 walking in the old paths, by thus hearkening to 
 the wisdom of our forefathers, we have been able 
 to change whenever change has been needed, and 
 we have been kept back from changing out of 
 the mere love of abstract theory. We have thus 
 been able to advance, if somewhat slowly, yet the 
 more surely ; and, when we have made a false 
 step, we have been able to retrace it. On this last 
 power, the power of undoing whatever has been 
 done amiss, I wish specially to insist. In tracing 
 the steps by which our Constitution has grown 
 into its present shape, I shall try specially to show 
 in how many cases the best acts of modern legis- 
 lation have been, wittingly or unwittingly, a falling 
 back on the principles of our earliest times. 
 
II.] 
 
 IMPORTANCE OF PRECEDENT. 
 
 59 
 
 In my first chapter I tried to show how our 
 fathers brought with them into the Isle of Britain 
 those priniEcval institutions which were common to 
 them with the whole Teutonic race. I tried to 
 show how those institutions were modified in the 
 course of time by the circumstances of the English 
 Conquest of Britain, and by the events which fol- 
 lowed that Conquest. I showed how the kingly 
 power grew with every increase of the territorial 
 extent of the kingdom ; how the old nobility of 
 birth gave way to a new nobility of personal rela- 
 tion to the sovereign : and how the effect of these 
 changes seems to have been to make it easier for 
 the individual freeman of the lower rank to rise, 
 but at the same time to lower the position of the 
 ordinary freemen as a class. This last change was 
 still more largely brought about as an independent 
 result of the same changes which tended to increase 
 the kingly power. In a state of things where 
 representation is unknown, where every freeman 
 is an elector and a lawgiver, but where, if he exer- 
 cises his elective and legislative rights, he must 
 exercise thcrn directly in his own person — in such 
 a state of things as this every increase of the 
 national territory makes those rights of less prac- 
 tical value, and causes the actual powers of govern- 
 ment to be shut up in the hands of a smaller body. 
 
6o GROWTH OF EXGLJSff C0XST:7V7::.V. [chap. 
 
 There is no doubt that in the earliest Teutonic 
 assemblies every freeman had his place. There is 
 no doubt that in England every freeman kept his 
 place in the smaller local assemblies of the mark, 
 the hundred, and the shire {*). He still, where 
 modem legislation has not wholly swept it away, 
 keeps, as I hinted in my former lecture, some faint 
 shadow of the old right when he gives a vote in the 
 assembly, in which the assembly of the mark stfll 
 li\'es on, that is, in the vestr>' of his parish. But 
 how as to the great assembly of all, the Assembly 
 of the Wise, the Witenagemot of the whole realm ? 
 No ancient record gives us any clear or formal 
 account of the constitution of that body. It is 
 commonly spoken of in a vague way as a gather- 
 ing cf the wise, the noble, the great men (5>. But, 
 alongside of passages like these, we find other 
 passages which speak of it in a way which implies 
 a far more popular constitution. King E^dward 
 is said to be chosen King by " all folk." Earl 
 Godwine " makes his speech before the King and 
 all the people of the land." Judicial sentences 
 and other acts of authoritj- are voted by tiie army, 
 that is by the people under arms. Sometimes we 
 find direct mention of the presence of large and 
 popular classes of men, as the citizens of London 
 or Winchester (f). The inference from all this is 
 
II.] 
 
 THE WITENAGEMOT. 
 
 6i 
 
 obvious. The right of the ordinary freeman to 
 attend, to vote — it might perhaps be nearer the 
 truth to say to shout (") — in the general Assembly 
 of the whole realm was never formally taken away. 
 But it was a right which, in its own nature, most 
 men could hardly ever exercise. None but men of 
 wealth would have the means, none but men of 
 some personal importance would have any temp- 
 tation, to take long journeys for such a purpose. 
 It is not likely that any great multitude would, 
 under ordinary circumstances, set off from Northern 
 England to attend meetings which were habitually 
 held at Westminster, Winchester, and Gloucester. 
 It is plain that the habitual attendance would not 
 go beyond a small body of chief men, Earls, 
 Bishops, Abbots, the officers of the King's court, 
 the Thegns of the greatest wealth or the highest 
 personal influence. But it is plain that, when the 
 heart of the nation was specially stirred by some 
 ovenvhelming interest, many men would find their 
 way to the Assembly who would not find their way 
 to it in ordinary times. And, when the Assembly 
 was held in a town, the citizens of that town 
 at once formed a popular element ready on the 
 spot. Hence we can account for the seemingly 
 contradictory way in which the Assembly is spoken 
 of, sometimes in language which would imply an 
 
GROWTH OF EXGLISH COXSTITUTION. (chap. 
 
 aristocratic boiy, i."".e::rnes in language which 
 would imply a body highly democratic It was in 
 fact a body, democratic in ancient theorj-, aristo- 
 cratic in ordinary practice, but to which any strong 
 popular impulse could at any time restore its 
 ancient democratic character Acts done by a 
 freely chosen representative body may, without 
 much straining of language, be said to be done by 
 the whole people. But acts done by a body not 
 representative could never be called the acts of 
 the whole people, unless the whole people had an 
 acknowledged right to attend its meetingrs, though 
 that right might, under all ordinary circumstances, 
 be exercised only by a few of their number. 
 
 Out of this body, whose constitution, by the time 
 of the Norman Conquest, had become not a little 
 anomalous and not a little fluctuating, our Parlia- 
 ment directly grew. Of one House of that Parha- 
 ment we may say more ; we may say, not that it 
 grew out of the ancient Assembly but that it is 
 absolutely the same by personal identity. The 
 House of Lords not only springs out of, it actually 
 is, the ancient W itenagemoL I can see no break 
 between the two. King William summoned his 
 Witan as King Eadward had summoned them be- 
 fore him. In one memorable assembly of the Con- 
 queror's reign, we read that the great men of the 
 
rr ] EFFECTS OF THE NORMA .V CONQUEST. 63 
 
 realm were reinforced by the presence of the whole 
 body of the landholders of England, whose number 
 tradition handed down as sixty thousand (5). But, 
 as a rule, the Great Councils for a century or more 
 after the Norman Conquest bear the same uncertain 
 and fluctuating character as the Gemots of earlier 
 days. In the constitution of the House of Lords I 
 can see nothing mysterious or wonderful. Its here- 
 ditary character came in, like other things, step by 
 step, by accident rather than by design. And it 
 should not be forgotten that, as long as the Bishops 
 keep their seats in the House, the hereditary cha- 
 racter of the House does not extend to all its 
 members. To me it seems simply that two classes 
 of men, the two highest classes, the Earls and the 
 Bishops, never lost or disused that right of attending 
 in the National Assembly which was at first com- 
 mon to them with all other freemen. Besides these 
 two classes, the King summoned other men to our 
 early Parliaments, pretty much, it would seem, at 
 his own pleasure. The right of the King so to do 
 could not be denied; when all had an abstract right 
 to attend, we cannot blame the King for specially 
 summoning those for whose attendance he specially 
 wished. But it would almost naturally follow that 
 such a special summons would gradually be held to 
 bestow an exclusive right, and that those who were 
 
64 
 
 GROWTH OF ENGLISH CONSTITUTION. 
 
 [chap. 
 
 not specially summoned would soon be looked upon 
 as having no part or lot in the matter. But it is 
 certain that it was long before such a summons 
 was held to confer a hereditary, or even a lasting 
 personal right. The King did not always summon 
 the same men to every Parliament. Besides the 
 Earls and the Bi-shops, others both of the laity 
 and the clergy were always summoned, but the list 
 of those who were summoned, both of the laity and 
 of the lesser ecclesiastical dignitaries, constantly 
 varies from Parliament to Parliament ('°). That 
 the personal summons conveyed an exclusive here- 
 ditary right was one of those devices of lawyers of 
 which so many have crept into our constitution. 
 When the notion of hereditary right had once 
 established itself, the formal creation of peerages 
 by patent was a natural stage. Looking at the 
 matter from this historical point of view, it seems 
 to me simply wonderful how any one can doubt 
 the power of the Crown to create life-peerages, or 
 to regulate the tenure or succession of a peerage 
 in any way that it thinks good. 
 
 The House of Lords then, I do not hesitate to 
 say, represents, or rather is, the ancient Witenage- 
 mot. An assembly in which at first every freeman 
 had a right to appear has, by the force of circum- 
 stances, step by step, without any one moment of 
 
n.] 
 
 THE HOUSE OF LORDS. 
 
 65 
 
 sudden change, shrunk up into an Assembly whoUy 
 hereditar)'- and official, an Assembly to which the 
 Crown may summon any man, but to which, it 
 is now strangely held, the Crown cannot refuse 
 to summon the direct heirs of any man whom it 
 has once summoned. As in most other things, 
 the tendency to shrink up into a body of this 
 kind began to show itself before the Norman Con- 
 quest, and was finally confirmed and established 
 ' through the results of the Norman Conquest. But 
 the special function of the body into which the old 
 national Assembly has changed, the function of the 
 " other House," the Upper House, the House of 
 Lords as opposed to the House of Commons, could 
 not show itself till a second House of a more 
 popular constitution had arisen by its side. Like 
 everything else in our English polity, both Houses 
 in some sort came of themselves. Neither of them 
 was the creation of any ingenious theorist, though 
 we need not doubt that many of the several steps 
 in the growth of each were, each in its own time, 
 the work of practical statesmanship. Our fore- 
 fathers had no theories ; but men, each in his own 
 generation, had eyes keen enough to see that 
 such and such a change in detail would get rid of 
 such and such an immediate evil, or would brinjr 
 with it such and such an immediate advantage. 
 
 F 
 
66 GROWTH OF ENGLISH COXSTITUTION. [chav. 
 
 Nay more, it has sometimes happened that a 
 change which was brought in with an evil intent 
 has in the end worked for good. Measures which 
 were taken with a view of strengthening the power 
 of the Crown have come in the end to widen the 
 rights of the people. On the other hand, insti- 
 tutions which once answered a good and needful 
 purpose have sometimes, through change of times, 
 changed their nature, and have become instruments 
 of evil instead of good. But in neither case were 
 the institutions of our fathers the work of abstract 
 theory. They have therefore lived on, and they 
 have borne good fruit. Our national Assembly 
 has changed its name and its constitution, but its 
 corporate identity has lived on unbroken. We can 
 therefore at any moment reform without destroy- 
 ing. In France, on the other hand, institutions 
 have been the work of abstract theory ; they have 
 been the creations, for good or for evil, of the 
 minds of individual men. The English Parliament 
 is immemorial ; it grew step by step out of the 
 older order of things. In France the older order 
 of things utterly vanished ; the ground lay open-' 
 for the creation of a wholly new institution, and 
 the States-General were called into being at the 
 bidding of Philip the Fair ("). Englishman in the 
 fourteenth and fifteenth centuries had no theories 
 
n ] COMPARISON OF ENGLAND AND FRANCE. C7 
 
 of the rights of man or of universal humanity. 
 But when they saw a practical grievance, they 
 called for its redress. Frenchmen in the fourteenth 
 and fifteenth centuries had theories as magnificent 
 as any that have been put forth in the eighteenth 
 or the nineteenth. A nd they had even then already 
 learned to do deeds of blood in the name of freedom 
 and philanthropy Therefore French institu- 
 
 tions have not lasted. The States-General lived 
 but a fitful life from century to century, and they 
 perished for ever in the Great Revolution. Since 
 that time no French institution, no form either of 
 the legislative or of the executive power, has been 
 able to keep up a continuous being of twenty years. 
 This difference has not been owing to any lack of 
 great men or of noble purposes on the part of our 
 continental neighbours. It has been owing, partly, 
 we may believe, to differences in the inborn cha- 
 racter of the two nations, partly to differences 
 in the course taken by their several histories. In 
 France the Kings gradually swept away all traces 
 of older free institutions, and established a simple 
 despotism in the Crown ('3). The French therefore 
 have been left without any traditional foundation 
 to build on. In all their changes for good or for 
 evil they have been driven to build afresh from the 
 beginning. Our Kings never wholly wiped out our 
 
 F 2 
 
6S GROWTH OF ENGLISH COXSTITUTION. [chap. 
 
 free institutions ; they found means to turn them 
 to their own purposes, and to establish a practical 
 despotism without destroying the outward forms of 
 freedom. The forms thus lived on, and in better 
 times they could again be clothed with their sub- 
 stance. We ever had traditional principles to fall 
 back upon, a traditional basis to build upon. It 
 would be hard to reckon up the number of 
 Assemblies, Conventions, Chambers of Deputies, 
 and Legislative Bodies, which have risen and fallen 
 in France, while the House of Lords and the House 
 of Commons have lived on, with their powers, their 
 duties, their relations to the Crown, to the Nation, 
 and to one another, ever silently changing, but with 
 their continuous being remaining throughout un- 
 broken. 
 
 But I would again point out that, while the 
 growth of English institutions has thus gone on 
 almost in obedience to a natural law, the v.isdom, 
 the foresight, the patriotism, of individual statesmen 
 is never to be put out of our reckoning. There 
 was a given state of things, and some man had 
 keenness of sight to see what was the right thing 
 to do in that state of things. Our Constitution has 
 no founder ; but there is one man to whom we may 
 give all but the honours of a founder, one man to 
 whose wisdom and self-devotion we owe that Eng- 
 
n.] 
 
 Sl.VOy OF MOXTFORT. 
 
 69 
 
 lish history has taken the course which it has taken 
 for the last six hundred years. It might no doubt 
 have taken that course without him ; things might 
 have come about as they did without any one man 
 coming so prominently to the front ; or, if he him- 
 self had not arisen, some other man might have 
 arisen to do his work. But we need not speculate 
 as to what might have been ; it is enough that one 
 man did arise to do the work, that there is one man 
 to whom we owe that the wonderful thirteenth 
 century, the great creative and destructive age 
 throughout the world (''♦), was to us an age of 
 creation and not of destruction. That man, the man 
 who finally gave to English freedom its second and 
 more lasting shape, the hero and martyr of Eng- 
 land in the greatest of her constitutional struggles, 
 was Simon of Montfort, Earl of Leicester. We 
 may not call him the founder of the English 
 Constitution. But a great scholar has called him 
 the founder of the House of Commons, and the 
 founder of the House of Commons, in the form 
 which it has kept down to our own time, he truly 
 was ('5). It was in his age that the new birth of 
 English freedom began to show itself; it was 
 mainly through his work that that new birth was 
 not stifled before it had brought forth lasting fruits. 
 Strange it may at first sight seem that the founder 
 
70 
 
 GROWTH OF ENGLISH CONSTITUTION, [chap. 
 
 of the later liberties of England was not an Eng- 
 lishman. Simon of Montfort, a native of France, 
 did for the land of his adoption what even he 
 might not have been able to do for the land of 
 his birth. And why The land of his birth was 
 — shall I say flourishing or suffering i* — under the 
 baleful virtues of the most righteous of Kings. 
 Saint Lewis reigned in France, Saint Lewis the 
 just and holy, the man who never swerved from the 
 path of right, the man who sware to his neighbour 
 and disappointed him not, though it were to his 
 own hindrance. Under his righteous rule there 
 could be no ground for revolt or disaffection. By 
 surrounding the Crown with the reflected glory of 
 his own virtues, he did more than any other man 
 to strengthen its power. He thus did more than 
 any other man to pave the way for that foul 
 despotism of his successors whose evil deeds would 
 have daily vexed his righteous soul. \\\ England, 
 on tlie other hand, we had the momentary curse, 
 the lasting blessing, of a succession of evil Kings. 
 We had Kings who had no spark of English 
 feeling in their breasts, but from whose follies 
 and necessities our fathers were able to wring their 
 freedom, all the more lastingly because it was 
 bit by bit that it was wrung. A Latin poet once 
 sang that freedom never flourishes more brightly 
 
II.] 
 
 GOOD AND EVIL KINGS. 
 
 7' 
 
 than it does under a righteous King And so 
 it does while that righteous King himself tarries 
 among men. But, to win freedom as an heritage 
 for ever, there are times when we have more need 
 of the vices of Kings than of their virtues. The 
 tyranny of our Angevin masters woke up English 
 freedom from its momentary grave. Had Richard 
 and John and Henry been Kings like /Elfrcd and 
 Saint Lewis, the crosier of Stephen Langton, the 
 sword of Robert Fitzwalter, would never have 
 flashed at the head of the Barons and people of 
 England ; the heights of Lewes would never have 
 seen the mightiest triumph of her freedom ; the 
 pavement of Evesham choir would never have 
 closed over the mangled relics of her noblest cham- 
 pion ("7). 
 
 The career of Simon of Montfort is the most 
 glorious in our later history. Cold must be the 
 heart of every Englishman who does not feel a 
 thrill of reverence and gratitude as he utters that 
 immortal name. But, fully to understand his 
 work, wc must go back somewhat before his own 
 time, wc must go back and trace how the sway of 
 foreign invaders first made the path ready for the 
 course of the foreign deliverer. I have shown in 
 what state our Constitution stood at the time of 
 the Norman Conquest. In that Constitution, be it 
 
72 
 
 GROWTH OF ENGLISH CONSTITUTION. 
 
 [chap. 
 
 ever remembered, the Norman Conquest made no 
 formal change whatever. Nothing has had a more 
 lasting effect on all later English history than the 
 personal character and position of the Norman 
 Conqueror. But it was not in the character of a legis- 
 lator that the main work of William was done. His 
 greatest work of all was to weld together the still 
 imperfectly united kingdoms of our ancient England 
 into one indivisible body, a body which, since his 
 day, no man has ever dreamed of rending asunder. 
 But this was not the work of any foimal legis- 
 lative enactment ; it was the silent result of the 
 compression of foreign conquest. So it was with 
 William's whole policy and position. He was in 
 truth a Conqueror, King by the edge of the sword, 
 but it was his aim in everything to disguise the 
 fact. He claimed the Crown by legal right ; he 
 received it by the formal election of the English 
 people, and he was consecrated to his kingly office 
 by the hands of an English Primate. He professed 
 to rule, not according to his own will, not according 
 to any laws of his own devising, but according to 
 the laws of his predecessor and kinsman King 
 Eadward ('^). The great immediate change which 
 was wrought under him was not any formal legisla- 
 tive change ; it was the silent revolution implied in 
 the transfer — the wary and gradual transfer — of all 
 
THE N-0R3rA.y COXQUEST. 
 
 the greatest estates and highest offices in England 
 to the hands of foreign holders. The momentary 
 effect was to make Englishmen on their own soil 
 the subjects of foreign conquerors. The lasting 
 effect was to change those foreign conquerors into 
 Englishmen, and to call forth the spirit of English 
 freedom in a more definite and antagonistic shape 
 than it had ever before put on. What was the 
 real position of a landowner of Norman descent 
 within a generation or two after the Conquest ? 
 He held English lands according to English law; 
 in all but the highest rank, he lived on equal terms 
 with other landowners of English birth ; he was 
 himself born on English soil, often of an English 
 mother ; he was called on in endless ways to learn, 
 to obey, and to administer, the laws of England 
 Such a man soon became in feeling, and before 
 long in speech also, as good an Englishman as if 
 he had come of the male line of Hengestor Cerdic. 
 There was nothing to hinder even one of the actual 
 conquerors from thoroughly throwing in his lot with 
 his new country and with its people. His tongue 
 was French, but in truth he had far more in common 
 with the Englishman than with the Frenchman. 
 He was but a near kinsman slightly di.sguiscd. 
 The Norman was a Dane who, in his sojourn in 
 Gaul, had put on a slight French varnish, and who 
 
74 GROWTH OF ENGLrSH COXSTTTDTION. [chap. 
 
 came into England to be washed clean again. The 
 blood of the true Normans, in the true Norman 
 districts of Bayeux and Coutances, differs hardly 
 at all from the blood of the inhabitants of the 
 North and East of England See a French 
 soldier and a Norman farmer side by side, and you 
 feel at once that the Norman is nothing but a 
 long-parted kinsman. The general effect of him 
 is that of a man of Yorkshire or Lincolnshire who 
 has somehow picked up a bad habit of talking 
 French. Such men readily became Englishmen. 
 We have the distinct assertions of contemporary 
 writers, and every incidental notice bears out their 
 assertions, that, among all classes between the 
 highest and the lowest, among all between the 
 great noble and the xallain, the distinction of Nor- 
 man and Englishman had been forgotten within 
 little more than a hundred years after the time 
 when King William came into England And 
 presently other causes came to make all the sons 
 of the soil draw nearer and nearer together. A 
 new dj-nastj'^ filled the throne, a djTiasty which 
 claimed by female descent to be at once Norman 
 and English, but which, in origin and fte!ing, was 
 neither Norman nor English ("). Henrj' the Second, 
 Count of Anjou through his father, Duke of 
 Aquitaine through his wife, inherited also his 
 
u.] THE ANGEVIN REIGNS. 
 
 mother's claims on Normandy and England, but 
 under him Normandy and England alike were but 
 parts of a vast dominion which stretched from the 
 Orkneys to the Pyrenees. Under the mighty, and 
 on the whole the righteous, sway of the great 
 Henry the worst side of this state of things did 
 not show itself ("). His lion-hearted son did Eng- 
 land the great service of passing his days away 
 from her shores, and leaving her to the care of 
 ministers better able to rule her than himself (=3). 
 Under John and Henry the Third England felt 
 to the full the bitterness and the blessings of the 
 Conquest. The land was overrun by utter stran- 
 gers ; the men of Old-English birth and the de- 
 scendants of the first Norman settlers both saw 
 the natives of other lands placed over the heads 
 of both alike. I'laces of trust and honour and wealth 
 were handed over to foreign favourites, and every 
 man in the land was exposed to a yet heavier 
 scourge, to the violence and insolence of foreign 
 mercenaries. Under John Normandy was lost 
 and England again became the chief possession of 
 the King of England. But neither John nor Henry 
 learned the lesson. The personal vices of the 
 father, the personal virtues of the son, worked to 
 the .same end as fir as their kingdom was con- 
 cerned. The King whose wickedness became a 
 
76 GROIVTIT OF ENGLISH CONSTITUTION, [chap. 
 
 proverb, who surrounded himself with the kindred 
 ruffians of every nation, and the King whose chief 
 fault was that he could never say No to his wife 
 or his mother, helped alike to call forth the spirit 
 of resistance, to draw all Englishmen of whatever 
 origin nearer together, and thereby to work out 
 the great work of giving England a free and 
 lasting Constitution. For such Kings we may 
 well be thankful ; but to such Kings we owe no 
 thanks. Our feelings of personal thankfulness 
 towards any of our later Kings begin only when 
 a King arose who joined the political skill of Henry 
 the Second to the personal virtues of Henry the 
 Third, and who added to both a feeling of English 
 patriotism, a ruling sense of right in public affairs, 
 such as had not been felt by any King of England 
 since strangers had come to be her King.s. Edward 
 the First, the first of our later Kings who bore an 
 English name and an English heart, was the first 
 round whose name can gather any feelings of 
 personal thankfulness. In him we see the first 
 of our Kings of foreign blood who did aught for 
 the growth of our constitutional rights in some 
 other way than that of calling forth the spirit of 
 resistance to his rule. 
 
 Thus it was that the misgovernment of our 
 Angevin Kings called forth among all the natives 
 
II.] THE CHURCH AND THE NATION. 77 
 
 of the land an universal spirit of revolt against the 
 domination of strangers within the realm. And 
 they called forth the spirit of revolt in another 
 way, a way hardly less important, by their base 
 subserviency to a foreign power in ecclesiastical 
 matters. I have here nothing to do with theolo- 
 gical dogmas, with their truth or their falsehood, 
 but the ecclesiastical position of the nation forms 
 a most important aspect of its history throughout 
 these times. In Old-English times there can be 
 no doubt as to the existence of an effective supre- 
 macy in ecclesiastical matters on the part of the 
 Crown. The King was the Supreme Governor of 
 the Church, because he was the Supreme Governor 
 of the Nation. The Church and the Nation were 
 absolutely the same ; the King and his Witari dealt 
 with ecclesiastical questions and disposed of eccle- 
 siastical offices by the same right by which they 
 dealt with temporal questions and disposed of 
 temporal offices (''s). The Bishop and the Ealdor- 
 man, each appointed by the same authority, pro- 
 sided jointly in the assembly of the shire, and the 
 assembly over which they presided dealt freely 
 both with ecclesiastical and with temporal causes. 
 One of the few formal changes in our Law which 
 took place in the days of the Conqueror was the 
 separation of the two jurisdictions of the Bishop 
 
78 
 
 GROWTH OF ENGLISH CONSTITUTION. 
 
 [chap. 
 
 and the Ealdorman. One of William's extant laws 
 ordained the establishment, according to conti- 
 nental models, of distinct ecclesiastical courts for 
 the trial of ecclesiastical causes But more im- 
 portant than this formal change was the practical 
 result of the Conquest in bringing England into 
 closer connexion than before with the See of 
 Rome The enterprise of the Conqueror was 
 approved by Hildebrand, and it was blessed by 
 the Pope in whose name Hildebrand already 
 ruled i^T). While William lived, the royal supre- 
 macy remained untouched, and, allowing for his 
 position in a conquered land, we may fairly say 
 that it was not abused. But in meaner hands the 
 ancient power of the Crown as the representative 
 of the nation was often abused and often disputed. 
 Quarrels arose as to the limits of the ecclesiastical 
 and the civil power such as had never been heard 
 of in the old times. And we must remember that 
 claims which seem utterly monstrous now were far 
 from seeming monstrous in a state of things so 
 wholly unlike our times. Even the claim of the 
 clergy to an exemption from temporal jurisdiction 
 in criminal cases had a very different look then 
 from what it has now. The privilege thus claimed 
 was by no means confined to the priesthood ; it 
 took in a large part of those among the people 
 
II.] 
 
 ECCLESIASTICAL DISPUTES. 
 
 79 
 
 who were least able to defend themselves (^^). And 
 when we think of the horrible punishments, death 
 and mutilations worse than death, which the courts 
 of our Angevin Kings freely inflicted for very- 
 slight offences, we can understand that men looked 
 favourably on the courts of the Bishops, where 
 the heaviest penalties were stripes and imprison- 
 ment. In the disputes between the Crown and 
 the Church, from William Rufus to Henry the 
 Second, we find popular feeling always enlisted 
 on the ecclesiastical side (^). Nor need we wonder 
 at this, when we find among the Constitutions of 
 Clarendon, which King Henry strove to enforce 
 and which Archbishop Thomas withstood, one 
 which forbad the ordination of villains without 
 the consent of their lords. That is to say, it cut 
 off from the lowest class the only path by which 
 they had any hope of rising to posts of honour 
 and authority (3°). But from the reign of John 
 onwards we get a new state of things. A foreign 
 power stepped in, a power which had as yet med- 
 dled but little in the strictly internal affairs of 
 England, and which, so far as it had meddled at 
 all, had on the whole taken the popular side. In 
 the latter days of John and through the whole 
 reign of Henry the Third, we find the Pope and 
 the King in strict alliance against the English 
 
8o GROWTH OF ENGLISH CONSTITUTION, [chap. 
 
 Church and Nation. The last good deed done by 
 a Pope towards England was when Innocent the 
 Third sent us Stephen Langton (3'). Ever after- 
 wards we find Pope and King leagued together to 
 back up each other's oppressions and exactions. 
 The Papal power was always ready to step in on 
 behalf of the Crown, always ready to hurl spiritual 
 censures against the champions of English freedom. 
 The Great Charter was denounced at Rome ; so 
 was its author the patriot Primate (3^). Earl Simon 
 died excommunicate ; but, in the belief of English- 
 men, the excommunications of Rome could not 
 hinder an English Earl from working countless 
 signs and wonders (^^) — a pretty convincing argu- 
 ment, one might deem, that the Bishop of Rome had 
 no jurisdiction in this realm of England. Against 
 King and Pope the whole nation stood united ; 
 clergy and laity, nobles and commons, men of 
 Norman and men of Old-Englisli birth, all stood 
 together alike against the King's foreign favourites 
 and against the aggressions of Rome. The historians 
 of the age, all of them churchmen, most of them 
 monks, are all but unanimous on the popular side. 
 Prelates like the Primate Stephen, like Robert 
 Grosseteste of Lincoln and Walter of Cantelupe 
 of Worcester, were foremost in the good cause ; 
 the two latter were among the closest friends and 
 
n.] STRUGGLE WITH THE POPES. 
 
 St 
 
 counsellors of the patriot Earl (si). We see how 
 old distinctions and old enmities had been wiped 
 out, how all the sons of the soil were banded 
 together in one fellowship, when we read the letter 
 denouncing the abuses of the Roman See which 
 was sent to that See in the name of no less a body 
 than the whole Nobility, Clergy, and Commons of 
 the English realm. In that letter, an out-spoken 
 and truly English document, which has been pre- 
 served by an historian who well appreciated it, the 
 writers set forth that, as the Nobles, Clergy, and 
 Commons in whose name it is written have no 
 common seal, they have, for the signature of 
 their document, borrowed the seal of the city of 
 London (35). 
 
 This last fact brings me round to what I first 
 spoke of long ago, what I may perhaps seem to 
 have forgotten, but what I have in truth had con- 
 stantly before my eyes, the distinctly constitutional 
 reforms which we owe to Earl Simon of Montfort. 
 The fact that a document which professed to speak 
 in the name of all classes of the whole nation 
 could not be so fittingly signed as with the seal 
 of the city of London marks the place which that 
 city held in the political estimation of the time. 
 But London held that position only as the greatest 
 member of an advancing class, as the foremost 
 
82 GROWTH OF ENGLISH CONSTITUTION: [chap. 
 
 among the cities and boroughs of England. Now 
 the great work of Earl Simon was to give those 
 cities and boroughs their distinct place as one of 
 the elements of the body politic. Let us trace 
 the steps by which that great work was done. 
 When we reach the thirteenth century, we may 
 look on the old Teutonic constitution as having 
 utterly passed away. Some faint traces of it in- 
 deed we may find here and there in the course 
 of the twelfth century, as when both sides in the 
 wars of Stephen and Matilda acknowledged the 
 right of the citizens of London to a voice in the 
 disposal of the Crown (s*^). But the regular Great 
 Council, the lineal representatives of the ancient 
 Mycel Gemot or Witcnagemot, was shrinking up 
 into a body not very unlike our House of Lords. 
 Its constitution, as I have already hinted, was far 
 more fluctuating, far less strictly hereditary, than 
 the modern body, but it was almost as far from 
 being in any sense a representation of the people. 
 The Great Charter secures the rights of the nation 
 and of the national Assembly as against arbitrary 
 legislation and arbitrary taxation on the part 
 of the Crown. But it makes no change in the 
 constitution of the Assembly itself The greater 
 Barons were to be summoned personally ; the 
 lesser tenants in chief, the representatives of the 
 
ir.] 
 
 THE GREA T CHARTER. 
 
 83 
 
 landsittcnde menn of Domesday, were to be sum- 
 moned by a general writ (37). The Great Charter 
 in short is a Bill of Rights ; it is not what, in 
 modern phrase, we understand by a Reform Bill. 
 But, during the reigns of John and Henry the Third, 
 a popular element was fast making its way into 
 the national Councils in a more practical form. 
 The right of the ordinary freeman to attend in 
 person had long been a shadow ; that of the 
 ordinary tenant-in-chief was becoming hardly more 
 practical ; it now begins to be exchanged for what 
 had by this time become the more practical 
 right .of choosing representatives to act in his name. 
 Like all other things in England, this right has 
 grov/n up by degrees, and as the result of what 
 we might almost call a series of happy accidents. 
 Both in the reign of John and in the former part 
 of the reign of Henry, we find several instances 
 of knights from each county being summoned (3^). 
 Here we have the beginning of our county mem- 
 bers and of the title which they still bear, of 
 knights of the shire. Here is the beginning of 
 popular representation, as distinct from the gather- 
 ing of the people in their own persons ; but we 
 need not think that those who first summoned 
 them had any conscious theories of popular repre- 
 sentation. The earliest object for v. hich they were 
 
 G 2 
 
84 
 
 GROWTH OF EXGLISH COISTSTITUTIOX. 
 
 [chap. 
 
 called together was probably a fiscal one ; it was 
 a safe and convenient way of getting money. The 
 notion of summoning a small number of men to 
 act on behalf of the whole was doubtless borrowed 
 from the practice in judicial proceedings and in 
 inquests and commissions of various kinds, in which 
 it was usual for certain select men to swear on 
 behalf of the whole shire or hundred. We must 
 not forget, though it is a matter on which I have 
 no time to insist here, that our judicial and our 
 parliamentary institutions are closely connected, 
 that both sprang out of the primitive Assemblies, 
 that things which now seem so unlike as our 
 popular juries and the judicial powers of the 
 House of Lords are in truth both of them frag- 
 ments of the judicial powers which Tacitus speaks 
 of as being vested in those primitive Assemblies. 
 It was only step by step that the functions of 
 judge, juror, witness, and legislator became the 
 utterly distinct functions which they are now (39). 
 
 Thus we find the beginnings of the House of 
 Commons, as we might have expected, in that 
 class of its members which, for the most part, 
 has most in common with the already established 
 House of Lords. Thus far the developement of 
 the Constitution had gone on in its usual inci- 
 dental way. Each step in advance, however slight, 
 
II.] BEGIXiVIXG OF THE HOUSE OF CO.VJrOXS. S5 
 
 was doubtless the work of the discernment of 
 some particular man, ev^en though his views may 
 not have gone beyond the compassing of some 
 momentary advantage. But now we come to that 
 great change, that great measure of Parliamen- 
 tary Reform, which has left to all later reformers 
 nothing to do but to improve in detail. We come 
 to that great act of the patriot Earl which made 
 our popular Chamber really a popular Chamber. 
 A House of knights, of county members, would 
 have been comparatively an aristocratic body ; it 
 would have left out one of the most healthy and 
 vigorous, and by far the most progressive, element 
 in the nation. When, after the fight of Lewes, 
 Earl Simon, then master of the kingdom with the 
 King in his safe keeping, summoned his famous 
 Parliament, he summoned, not only two knights 
 from every county, but also two citizens from every 
 city and two burgesses from every borough (■♦°). 
 The Earl had long known the importance and 
 value of the growing civic element in the political 
 society of his age. When, in an earlier stage of 
 his career, he held the government of Gascony, 
 he had, on his return to England, to answer 
 charges brought against him by the Archbishoj) 
 of Bourdeaux and the nobles of the province. The 
 Earl's answer was to bring forward a writing, giving 
 
S6 GROTVTH OF ENGLISH COKSTITUTION. [chaf. 
 
 him the best of characters, which was signed with 
 the common seal of the cit>' of Bourdeaux (■•'), As 
 it was in Gascony, so it was in England. The 
 Earl was always a reformer, one who set himself 
 to redress practical grievances, to withstand the 
 royal favourites, to put a check on the oppressions 
 of Pope and King. But his first steps in the 
 waj- of reform were made wholly on an aristocratic 
 basis. He tried to redress the grie\^ces of the 
 nation by the help of his feUow nobles only. Step 
 by step he learned that no true reform could be 
 wrought for so narrow a platform ; and step by 
 step he took into his confidence, first the knights 
 of the counties, and lastly the class to whose good 
 ft-ill he had owed so much in his earlier trial, 
 the citizens and burgesses. Through the whole 
 struggle they stood steadily by him ; London was 
 as firm in his cause as Bourdeaux had been, and 
 its citizens fought and sufiered and triumphed with 
 him on the glorious day of Lewes By a bold 
 and happy innovation, he called a class which had 
 done so much for him and for the common cause 
 to take their place in the councils of the nation. 
 It was in Earl Simon's Parliament of 1265 that 
 the still abiding elements of the jxjpular chamber, 
 the Knights, Citizens, and Burgesses, first apj>eared 
 side by side. Thus was formed that newly deve- 
 
II.] REPRESENTATION OF BOROUGHS. 87 
 
 loped Estate of the Realm which was, step by 
 step, to grow into the most powerful of all, the 
 Commons' House of Parliament. 
 
 Such was the gift which England received from 
 her noblest champion and martyr. Xor should it 
 sound strange in our ears that her champion and 
 martyr was by birth a stranger. We boast our- 
 selves that we have led captive our conquerors, 
 and that we have made them into sons of the 
 soil as faithful as ourselves. What we have done 
 with conquerors we have also done with peaceful 
 settlers. In after days we welcomed every victim 
 of oppression and persecution, the Fleming, the 
 Huguenot, and the Palatine. And what we wel- 
 comed we adopted and assimilated, and strength- 
 ened our English being with all that was worthiest 
 in foreign lands. So can we honour, along with 
 the men of English birth, those men of other lands 
 who have done for England as sons for their own 
 mother. The Danish Cnut ranks alongside of the 
 worthiest of our native Kings. Anselm of Aosta 
 ranks alongside of the worthiest of our native 
 Prelates. And so alongside of the worthiest of 
 our native Earls we place the glorious name of 
 Simon the Righteous. A stranger, but a stranger 
 who came to our shores to claim lands and lionours 
 which were his lawful heritage, he became our 
 
ss 
 
 GROWTH OF ENGLISH CONSTITUTION. 
 
 [chap. 
 
 leader against strangers of another mould, against 
 the adventurers who thronged the court of a King 
 who turned his back on his own people. The 
 first noble of England, the brother-in-law of the 
 King, he threw in his lot, not with princes or 
 nobles, but with the whole people. He was the 
 chosen leader of England in his life, and in death 
 he was worshipped as her martyr. In those days 
 religion coloured every feeling ; the patriot who 
 stood up for right and freedom was honoured 
 alongside of him who suffered for his faith. We 
 fill our streets and market-places with the statues 
 of worthies of later days ; Peel and Herbert and 
 Lewis and Cobden yet live among us in bronze 
 or marble. In those days honour to the states- 
 man was not well distinguished from worship to 
 the saint, and Waltheof and Simon and Thomas 
 of Lancaster (I') were hailed as sainted patrons of 
 England, and wonders were held to be wrought 
 by their relics or at their tombs. The poets of 
 three languages vied in singing the praises of the 
 man who strove and suffered for right, and Simon, 
 the guardian of England on the field and jn the 
 senate, was held to be her truer guardian still in 
 the heavenly places from which our fathers deemed 
 that the curse of Rome had no power to shut him 
 out 
 
II.] 
 
 SIMOX AXD EDWARD. 
 
 89 
 
 The great work of the martyred Earl had a 
 strange destiny. His personal career was cut short, 
 his political work was brought to perfection, by 
 a rival and a kinsman only less to be honoured 
 than himself. On the field of Evesham Simon died 
 and Edward triumphed. But it was on Edward 
 that Simon's mantle fell ; it was to his destroyer 
 that he handed on the torch which fell from his 
 dying grasp. For a moment his work seemed to 
 have died with him ; for some years Parliaments 
 were still summoned which were not always after 
 the model of the great Assembly which answered 
 to the writs of the captive Henry. But the model 
 still lived in men's hearts, and presently the wisdom 
 of the great Edward saw that his uncle's gift 
 could no longer be denied to his people. Parlia- 
 ments after Simon's model have been called to- 
 gether in unbroken succession from Edward's day 
 to our own (^5). Next to the name of Simon we 
 may honour the name of Edward himself and the 
 names of the worthies who withstood him. To 
 Roger Bigod of Norfolk and Humfrey Bohun of 
 Hereford we owe the crowning of the work (*^}. 
 The Parliament of England was now wroucrht 
 into the fulness of its perfect form, and the most 
 homely, but not the least important, of its powers 
 was now fully acknowledged. No ta.x or gift 
 
90 
 
 GROWTH OF ENGLISH CONSTITUTION. 
 
 [chap. 
 
 could the King of England claim at the hands of 
 Englishmen save such as the Lords and Commons 
 of England had granted him of their free will {^t). 
 
 Thus we may say that, in the time of Edward 
 the First, the English Constitution definitely put 
 on the same essential form which it has kept ever 
 since. The germs of King, Lords, and Commons 
 we had brought with us from our older home eight 
 hundred years before. But, from King Edward's 
 days onwards, we have King, Lords, and Commons 
 themselves, in nearly the same outward shape, 
 with nearly the same strictly legal powers, which 
 they still keep. All the great princij^les of English 
 freedom were already firmly established. There 
 is indeed a wide difference between the political 
 condition of England under Edward the First and 
 the political condition of England in our own daj'. 
 But the difference lies far more in the practical 
 working of the Constitution than in its outward 
 form. The changes have been many ; but a large 
 portion of those changes have not been formal 
 enactments, but those silent changes whose gradual 
 working has wrought out for us a conventional 
 Constitution existing alongside of our written Law. 
 Other changes hav^e been simply improvements 
 in detail ; others have been enactments made to 
 declare more clearly, or to secure more fully in 
 
II.] COMPLETION OF THE CONSTITUTION. 91 
 
 practice, those rights whose existence was not 
 denied. But, speaking generally, and allowing for 
 the important class of conventional understandings 
 which have never beeri clothed with the form of 
 written enactments, the main elements of the 
 English Constitution remain now as they were 
 fixed then. From that time English constitutional 
 history is not merely an inquiry, however inter- 
 esting and instructive, into something which has 
 passed away. It is an inquiry into something 
 which still lives ; it is an inquiry into laws which, 
 whenever they have not been formally repealed, 
 are in full force at this day. Up to the reign of 
 Edward the First English history is strictly the 
 domain of antiquaries. From the reign of Edward 
 the First it becomes the domain of lawyers if). 
 
 We find then — it will be understood with what 
 qualifications I am speaking — the English Consti- 
 tution fully grown by the end of the thirteenth 
 century, and we find it to be, in the shape which 
 it then took, the work of Earl Simon of Montfort 
 and of King Edward the First. Now there are 
 several points in which the .shape which our Con- 
 stitution thus finally took differed from the shapes 
 which were taken by most of the kindred Consti- 
 tutions on the Continent. The usual form taken 
 by a national or provincial assembly in the middle 
 
92 
 
 GROWTH OF ENGLISH COXSTITUTIOX. 
 
 [chap. 
 
 ages was that of an Assembly of Estates. That 
 is to say, it consisted of representatives of all 
 those classes in the nation which were possessed of 
 political rights. These in most countries were three, 
 Nobles, Clergy, and Commons. And the name 
 of the Three Estates, that is the Nobles, Clergy, 
 and Commons, is equally well known in England, 
 though the meaning of the three names differs not 
 a little in England from what it meant elsewhere. 
 In England we never had, unless it were in the 
 old days of the Eorlas, a Nobility such as is under- 
 stood by that name in other countries. Elsewhere 
 the nobles formed a distinct class, a class into 
 which it was perhaps not absolutely impossible for 
 those who were beneath it to be raised, but from 
 which it was at least absolutely impossible for any 
 of its members to come down. Whatever the 
 privileges of the noble might be, they extended 
 to all his children and their children for ever and 
 ever. In some countries his titles descend in this 
 way to all his descendants ; all the children of a 
 Duke, for instance, are Dukes and Duchesses. In 
 France, and in most other countries where the sys- 
 tem of Estates existed, the Estate of the Nobles 
 in the National Assembly was a representation, in 
 some shape or other, of the whole class of nobles 
 as a distinct body. How different this is from our 
 
I'] 
 
 THE PEERAGE. 
 
 93 
 
 House of Lords I need not point out. In strict- 
 ness, I repeat, we have no nobility. The seats in 
 our Upper Chamber go by descent and not by 
 election or nomination ; but no political privilege 
 attaches to the children of their holders. Even the 
 eldest son of the peer, the future holder of the 
 peerage, is a commoner as long as his father lives. 
 Whatever titles he bears are simply titles of cour- 
 tesy which carry with them no political privileges 
 above other commoners. Nay, we may go higher 
 still. As the children of the peer have no special 
 advantage, so neither have the younger children 
 of the King himself. The King's wife, his eldest 
 son, his eldest daughter, his eldest son's wife, all 
 have special privileges by Law. His other children 
 ar6 simple commoners, unless their father thinks 
 good to raise them, as he may raise any other of 
 his subjects, to the rank of peerage ('"). There is 
 perhaps no feature in our Constitution more im- 
 portant and more beneficial than this, which binds 
 all ranks together, and which has hindered us from 
 suffering at any time under the curse of a noble 
 caste. Yet this marked distinction between our 
 own Constitution and that of most other countries 
 is purely traditional. We cannot say that it was 
 enacted by any particular man or in any particular 
 Assembly. But it is easy to sec that the fact 
 
94 GROWTH OF ENGLISH CONSTITUTION^, [chap. 
 
 that in England our national Assemblies always 
 went on in some shape or other, that the right of 
 all freemen to attend in person was never formally- 
 abolished, that the King kept the right of specially 
 summoning whom he would, all helped to hinder 
 the growth of an exclusive noble caste. The aristo- 
 cratic sentiment, the pride of birth, has doubtless 
 been very strong at all times. But it has been 
 merely a sentiment, resting on no legal foundation. 
 The Crown could always ennoble any one ; but the 
 nobility so granted belonged to one only of the 
 family at the time, to the actual owner of the 
 peerage. All ranks could at all times freely inter- 
 marry ; all offices were open to all freemen ; and 
 England, unlike Germany, never saw ecclesiastical 
 foundations whose members were bound to be of 
 noble birth. 
 
 The position of the Estate of the Clergy was 
 also widely different in England from what it was 
 in other countries. In fact the political position of 
 the Clergy has, ever since Edward the First, been 
 something utterly anomalous and inconsistent. 
 Elsewhere the representatives of the Clergy, just 
 like those of the Nobles, formed one distinct Estate 
 in the Assembly. In England the great Prelates 
 had seats in the House of Lords, where the Bishops 
 keep them still. But there also existed the anoma- 
 
II.] 
 
 THE CLERGY. 
 
 95 
 
 lous body called Convocation, whose character has 
 always fluctuated between that of an ecclesiastical 
 Synod and that of a parliamentary Estate of the 
 realm (5°). The Clergy are still summoned along 
 with every Parliament ; and one distinctly parlia- 
 mentary function they held down to the reign of 
 Charles the Second, which was then taken away 
 without any formal enactment. It was one of our 
 great constitutional principles established in King 
 Edward's days that no tax could be granted to 
 the King except by those who had to pay it. But 
 for a long time the Lords and the Commons taxed 
 themselves separately, and the Clergy in their Con- 
 vocation taxed themselves separately also. And, 
 till this power was given up, an ecclesiastical bene- 
 fice gave no right to vote in the election of mem- 
 bers of the House of Commons (s'). 
 
 The Commons too themselves bear a name which 
 had a far different meaning in England from what it 
 bore elsewhere. The usage by which the Knights 
 of the shire and the Citizens and Burgesses were 
 brought together in a single House, whatever was 
 its origin, whether it were at first the result of 
 design or of happy accident, has been an usage no 
 less wholesome, no less needful to our full con- 
 stitutional developement, than that which decreed 
 that the children of peers should be commoners. 
 
95 GROWTH OF ENGLISH CONSTITUTION, [chap. 
 
 In most other countries the class of men who were 
 returned as representatives of the counties, the 
 Knights of the Shire, would have been members 
 of the Estate of the Nobles. In France the words 
 nobleman and gentleman had the same meaning, 
 that of the members of an exclusive aristocratic 
 caste. The Commons, the Third Estate, consisted 
 of the citizens of the privileged towns only (5^). 
 But in England the middle class was not confined 
 to the towns ; it spread itself, in the form of a 
 lesser gentry and a wealthy yeomanry, over the 
 whole face of the land. That class, the smaller 
 landowners, was for a long time the strength of the 
 country, and the happiest results came from the 
 union of its representatives in a single chamber 
 with those of the cities and boroughs. Each class 
 gained strength from its fellowship with the other, 
 and the citizen class gained, from their union on 
 equal terms with the landed gentry, a consideration 
 which otherwise they might never have reached. 
 In short, the union of the two, the union of all 
 classes of freemen except the clergy and the actual 
 members of the peerage, of all classes from the 
 peer's eldest son to the smallest freeholder or 
 burgess, made the House of Commons a real re- 
 presentation of the whole nation, and not of any 
 single order in the nation. 
 
II.] 
 
 THE TWO HOUSES. 
 
 97 
 
 Mark again that the form of government which 
 political writers call bi-cameral, that is to say, 
 where the Legislative Assembly consists of two 
 Chambers or Houses, arose out of one of the 
 accidents of English History. The merits of 
 that form of government have often been discussed 
 in our own times, but it is assumed on both sides 
 that the only choice lies between one chamber and 
 two ; no one proposes to have three or four 
 But most of the continental bodies of Estates 
 consisted, as we have seen, of three Houses; in 
 Sweden, where the peasants, the small free- 
 holders, were important enough to be separately 
 represented alongside of the Nobles, Clergy, and 
 Citizens, there were till lately four (st). The 
 number two became the number of our Houses 
 of Parliament, not out of any conviction of the 
 advantages of that number, but because it was 
 found impossible to get the Clergy in England 
 habitually to act, as they did elsewhere, as a 
 regular member of the parliamentary body. They 
 shrank from the burthen, or they deemed secular 
 legislation inconsistent with their profession. Thus, 
 instead of the Clergy forming, as they did in 
 France, a distinct Estate of the Legislature, we 
 got a Parliament of two Houses, Lords and 
 Commons, attended by a kind of ecclesiastical 
 
 II 
 
cS GROIVTH OF EN^GLISH CONSTITUTION, [chap. 
 
 shadow of the Parliament in the shape of the two 
 Houses of the ecclesiastical Convocation. Thus, 
 for all practical purposes, there were only two 
 Estates in the English Parliament, Lords and 
 Commons. Thus the phrase of the Three Estates, 
 which had a meaning in France, became meaning- 
 less in England. For centuries back there has 
 been no separate Estate of the Clergy ; some ot 
 their highest members have belonged to the 
 Estate of the Lords, and the rest to the Estate 
 of the Commons. Hence has arisen a common 
 but not unnatural misconception, a misconception 
 as old as the days of the Long Parliament, as to 
 the meaning of the phrase of the Three Estates. 
 Men constantly use those words as if they meant 
 the three elements among which the legislative 
 power is divided. King, Lords, and Commons. 
 But an Estate means a rank or order or class of 
 men, like the Lords, the Clergy, or the Commons. 
 The King is not an Estate, because there is no 
 class or order of Kings, the King being one person 
 alone by himself. The proper phrase is the King 
 and the three Estates of the Realm. But in 
 England, as I have already shown, the phrase is 
 meaningless, as we have in truth two Estates 
 only 
 
 We thus had in England, not an Estate of 
 
II.] 
 
 THE THREE ESTATES. 
 
 99 
 
 Nobles, forming a distinct class from the people, 
 but an Upper House of hereditary and official 
 Lords, whose privileges were purely personal, and 
 whose children had no political privilege above 
 other men. Our Bishops and some other of our 
 ecclesiastical dignitaries had seats in the Upper 
 House, but there was no distinct Estate of the 
 Clerg\', having its distinct voice in legislation. Our 
 Lower House, lower in name, but gradually to 
 become upper in real power, came to represent, 
 not merely the inhabitants of privileged towns, 
 but the whole nation, with the single exception 
 of the personal holders of hereditary' or official 
 seats in the Upper House. That such an As- 
 sembly should gradually draw to itself all the 
 real powers of the state was in the nature of 
 things ; but it was only gradually that it did so. 
 Few things in our parliamentary histor}? are more 
 remarkable than the way in which the two Houses 
 have for the most part worked together. I am not 
 talking of very modern times, but of times when 
 the two Houses were really coordinate powers in 
 the state. During the six hundred years that the 
 two Houses have lived side by side, serious dis- 
 putes between them have been very rare, and those 
 disputes which have happened have generally had 
 to do with matters of form and privilege which 
 
 II 2 
 
100 GROWTH OF ENGLISH CONSTITUTION, [chap. 
 
 were chiefly interesting to members of the two 
 Houses themselves, not with questions which had 
 any great importance for the nation at large (s^). 
 For a while the Commons followed the lead of the 
 Lords ; then the Lords came gradually to follow 
 the lead of the Commons ; but open and violent 
 breaches between the Houses have been rare in- 
 deed. From the days of Earl Simon onwards, 
 both the power of Parliament as a whole, and the 
 special power of the House of Commons, was 
 constantly growing. The Parliaments of the four- 
 teenth century exercised all the powers which our 
 Parliament exercises now, together with some 
 which modern Parliaments shrink from exercising. 
 That is to say, the Parliaments of those days 
 were obliged either to do directly or to leave 
 undone many things which the develop ement of 
 political conventionality enables a modern Parlia- 
 ment to do indirectly. The ancient Parliaments 
 demanded the dismissal of the King's ministers; 
 they regulated his personal household ; they put 
 his authority into commission ; if need called for 
 such a step, they put forth their last and greatest 
 power and deposed him from his kingly office. 
 In those days a change of government, a change 
 of policy, the getting rid of a bad minister and 
 the putting a better in his place, were things which 
 
n.] 
 
 POWERS OF PARLIAMENT. 
 
 lOI 
 
 could not be done without an open struggle 
 between King and Parliament ; often they could 
 not be done without the bondage, the imprison- 
 ment, or the death, perhaps only of the minister, 
 perhaps even of the King himself The same ends 
 can now be gained by a vote of censure in the 
 House of Commons ; in many cases they can 
 be gained even without a vote of censure, by the 
 simple throwing out of a measure by which a 
 Ministry has given out that it will stand or fall (s'). 
 
 The fifteenth century, as compared with the 
 thirteenth and fourteenth ; was in some respects a 
 time in which things went back. It is plain that 
 the Parliaments of that day were bodies which 
 were much less independent than the Parliaments 
 of earlier times. During the Wars of the Roses 
 each successive military victor found a Parliament 
 ready to confirm his claim to the Crown and to 
 decree the condemnation of his enemies if'). And 
 it was a Parliament of Henry the Sixth which 
 passed the most reactionary measure which any 
 Parliament ever did pass, that by which the quali- 
 fication for a county elector was narrowed to those 
 freeholders whose estates were of the yearly value 
 of forty shillings (59). In this case tin)e and the 
 change in the value of money have redressed the 
 wrong ; there may be freeholders whose estates 
 
102 
 
 GROWTH OF ENGLISH CONSTITUTION. 
 
 [chap. 
 
 are under the value of forty shillings, but I can- 
 not think that they are now a very large or im- 
 portant class. But, to understand the meaning of 
 the restriction in the fifteenth century, for forty 
 shillings we may fairly read forty pounds ; and 
 certainly, if we struck off the register all those 
 electors whose qualification is a freehold — much 
 more those whose qualification is an estate less 
 than a freehold — under the value of forty pounds, 
 the constituencies of our counties would be lessened 
 in no small degree. On the other hand, during 
 the revolutionary times which followed, we more 
 than once hear of direct appeals to the people 
 which remind us of days far earlier. Edward 
 the Fourth and Richard the Third were chosen 
 Kings, or at least had their claims to the Crown 
 acknowledged, by gatherings of the citizens of 
 London which remind us of the wars of Stephen 
 and Matilda (^). Still, even in this age, the power 
 of Parliament was advancing (^') ; the anxiety of 
 every pretender to get a parliamentary sanction for 
 his claims was a sign of the growing importance 
 of Parliament, and we get incidental notices which 
 show that a seat in the House of Commons, and 
 that not as a knight of a shire, but as a burgess of 
 a borough, was now an object of ambition for men 
 of the class from which knights of the shire were 
 
II.] NARROWING OF THE COUNTY FRANCHISE. 103 
 
 chosen, and even for the sons of members of the 
 Upper House (^^). 
 
 At last came the sixteenth century, the time 
 of trial for parliamentary institutions in so many 
 countries of Europe. Not a few assemblies which 
 had once been as free as our own Parliament were, 
 during that age, cither utterly swept away or 
 reduced to empty formalities. Then it was that 
 Charles the Fifth and Philip the Second overthrew 
 the free constitutions of Castile and Aragon ; 
 before long the States-General of France met for 
 the last time before their last meeting of all on the 
 eve of the great Revolution i^^). In England parlia- 
 mentary institutions were not swept away, nor did 
 Parliament sink into an empty form. But, for a 
 while, Parliaments, like all our other institutions, 
 became perverted into instruments of tyranny. 
 Under Henry the Eighth, Parliaments, like Judges, 
 Juries, and ecclesiastical Synod.s, decreed whatever 
 seemed good to the caprice of the despot. Why 
 had they so fallen away from what they had been 
 in a past age, from what they were to be again 
 The reason is plain ; the Commons had not yet 
 gained strength enough to act without the Lords, 
 and the Lords had ceased to be an independent 
 body. The old nobility had been cut oflf at Tow- 
 ton and Barnet, and the new nobility were the 
 
I04 GROWTH OF ENGLISH CONSTITUTION, [chap. 
 
 abject slaves of the King to whom they owed their 
 honours. A century later, the new nobility had 
 inherited the spirit of the old, and the Commons 
 had grown to the fulness of their power. Thus it 
 came that we find in the Parliaments of the six- 
 teenth century an abject submission to a tyrant's 
 will, of which we find no sign in the Parliaments 
 either of the fourteenth or of the seventeenth. 
 Very different indeed from the Parliaments which 
 overthrew Richard the Second and Charles the 
 P"irst were the Parliaments which, almost without 
 a question, passed bills of attainder against any 
 man against whom Henry's caprice had turned, 
 the Parliaments which, in the great age of religious 
 controversy, were ever ready to enforce by every 
 penalty that particular shade of doctrine which for 
 the moment commended itself to the Defender of 
 the Faith, to his son or to his daughters. Why, 
 it may be asked, in such a state of things, did not 
 parliamentary institutions perish in England as 
 they perished in so many other lands It might 
 be enough to say that no ruler had an interest in 
 destroying institutions which he found that he could 
 so conveniently turn to his own purposes. But why 
 did not those institutions sink into mere forms, 
 which they certainly did not do, even in the worst 
 times ? One reason undoubtedly is that special 
 
II.] 
 
 REIGN OF HENRY THE EIGHTH 
 
 insular position of our country which has in so 
 many other ways given a pecuhar turn to our 
 history. The great foe of parliamentary institu- 
 tions was the introduction of standing armies. 
 But the sovereign of England, shut up within his 
 island, had far less need of a standing army than 
 the sovereigns of the Continent, engaged as they 
 were in their ceaseless wars with neighbours on 
 their frontiers. But I believe that the personal 
 character of Henry the Eighth had a great deal 
 to do with the final preservation of our liberties. 
 Do not for a moment fancy that I belong to that 
 school of paradox which sets up Henry the Eighth 
 as a virtuous and beneficent ruler. Do not think 
 that I claim for him any feelings of direct thank- 
 fulness such as I do claim for Earl Simon and 
 King Edward. The position of Henry is more 
 like the position of William the Conqueror, though 
 I certainly hold that the Conqueror was in every- 
 thing the better man of the two. Both served the 
 cause of freedom indirectly, and both served it 
 by means of features in the personal character of 
 each. In one respect indeed William and Henry 
 stood in utterly different positions towards England. 
 W^illiam was a stranger, and it was largely becau.sc 
 he was a stranger that he was able to do us indi- 
 rect good. Henry, with all liis crimes, was a 
 
io6 GROWTH OF ENGLISH CONSTITUTION, [chap. 
 
 thorough EngHshman ; throughout his reign there 
 was a sympathy between him and the mass of his 
 subjects, who, after all, did not greatly suffer by 
 the occasional beheading of a Queen or a Duke. 
 But the despotism of William and the despotism of 
 Henry agreed in this, that each, even in his worst 
 deeds, retained a scrupulous regard for the letter of 
 the Law. In the case of William this is not hard 
 to see for any one who carefully studies the records 
 of his age ; in the case of Henry it stands 
 boldly proclaimed in the broadest facts of English 
 history. While his fellow-tyrants abroad were 
 everywhere overthrowing free institutions, Henry 
 was in all things showing them the deepest out- 
 Avard respect. Throughout his reign he took care 
 to do nothing except in outward and regular legal 
 form, nothing for which he could not shelter him- 
 self under the sanction either of precedent or of 
 written Law. In itself, this perversion of Law, 
 this clothing of wrong with the garb of right, is 
 really worse — at all events it is more corrupting — 
 than deeds of open violence against which men are 
 tempted openly to revolt. But such a tyranny as 
 Henry's is one form of the homage which vice 
 pays to virtue ; the careful preservation of the 
 outward forms of freedom makes it easier for 
 another and happier generation again to kindle 
 
II.] 
 
 CREATION OF ROTTEN BOROUGHS. 
 
 107 
 
 the form into its ancient spirit and life. Every 
 deed of wrong done by Henry with the assent of 
 Parhamcnt was in truth a witness to the abiding 
 importance of Parliament ; the very degradation 
 of our ancient Constitution was a step to its re- 
 vival with new strength and in a more perfect 
 form 
 
 A like witness to the importance of Parliament 
 in this age was shown in two other very remark- 
 able ways, whereby the power and importance of 
 the House of Commons was acknowledged in the 
 very act of corrupting it. One was the active 
 interference of the Government in parliamentary 
 elections ; the other was the creation of boroughs in 
 ofder to be corrupt. One needs no stronger proofs 
 than these of the importance of the body which it 
 was found needful thus to pack and to manage. 
 The Cfown still kept the power of summoning 
 members from any boroughs which it thought fit, 
 and throughout the Tudor reigns that power was 
 freely abused by sending writs to places which 
 were likely to return members who would be sub- 
 servient to the Court f*). Thus arose many of the 
 wretched little boroughs in Cornwall and elsewhere 
 which were disfranchised by our successive Reform 
 Bills. These boroughs, which always were corrupt, 
 and which were created in order to be corrupt. 
 
loS GROWTH OF ES'GLISH CONSTITUTION, [chap. 
 
 must be carefully distinguished from another class 
 which perished with them, ilany towns to which 
 Earl Simon and King Edward sent writs decayed 
 in process of time ; sometimes they decayed posi- 
 tively ; more commonly they decayed relatively, by 
 being utterly outstripped by younger towns, and so 
 losing the importance which they had once had. 
 The disfranchisement of both classes was equally 
 just; but the dififerent history of the two classes 
 should be carefully borne in mind. It was right 
 to take away its members from Old Sarum, but 
 there had been a time when it was right to give 
 Old Sarum members. In the case of a crowd of 
 Cornish boroughs, it not only was right to take 
 away their members, but they never ought to have 
 had members at all (^). 
 
 It was in the days of Elizabeth that something 
 of the ancient spirit again breathed forth. It is 
 then that we come to the beginning of that long 
 line of parliamentar)' worthies which stretches on 
 in unbroken order from her days to our own. A 
 few daring spirits in the Commons' House now 
 began once more to speak in tones worthy of those 
 great Assemblies which had taught the Edwards 
 and the Richards that there was a power in Eng- 
 land mightier than their own (^). Under the puny 
 successor of the great Queen the voice of freedom 
 
ir.] REVIVAL OF FREEDOM. log 
 
 was heard more loudly (^5). In the next reign the 
 great strife of all came, and a King of England 
 once more, as in the days of Henry and Simon, 
 stood forth in arms against his people to learn 
 that the power of his people was a greater power 
 than his. But in the seventeenth century, just as 
 in the thirteenth, men did not ask for any rights 
 and powers which were admitted to be new ; they 
 asked only for the better security of those rights 
 and powers which had been handed on from days 
 of old. Into the details of that great struggle and 
 of the times which followed it is not my purpose 
 to enter. I have traced at some length the origin 
 and growth of our Constitution from the earliest 
 times to its days of special trial in the days of 
 Tudor and Stewart despotism. Our later consti- 
 tutional history rather belongs to an inquiry of 
 another kind. It is mainly a record of silent 
 changes in the practical working of institutions 
 whose outward and legal form remained untouched. 
 I will therefore end my consecutive historical 
 sketch — if consecutive it can claim to be — at the 
 point which we have now reached. Instead of 
 carrying on any regular constitutional narrative 
 into times nearer to our own, I will rather choose, 
 as the third part of my subject, the illustration of 
 one of the special points with which I set out, 
 
1 10 
 
 GROWTH OF ENGLISH CONSTITUTION. 
 
 [chap. 
 
 namely the power which our gradual developement 
 has given us of retracing our steps, of falling back, 
 whenever need calls for falling back, on the prin- 
 ciples of earlier, often of the earliest, times. Wit- 
 tingly or unwittingly, much of our best modern 
 legislation has, as I have already said, been a 
 case of advancing by the process of going back. 
 As the last division of the work which I have 
 taken in hand, I shall try to show in how many 
 cases we have, as a matter of fact, gone back 
 from the cumbrous and oppressive devices of 
 feudal and royalist lawyers to the sounder, freer, 
 and simpler principles of the days of our earliest 
 freedom. 
 
III.] MODE OF EFFECTING CHANGES. 1 1 1 
 
 CHAPTER III. 
 
 In my two former chapters I have carried my 
 brief sketch of the history of the English Constitu- 
 tion down to the great events of the seventeenth 
 century. I chose that point as the end of my conse- 
 cutive narrative, because the peculiar characteristic 
 of the times which have followed has been that so 
 many and such important practical changes have 
 been made without any change in the written 
 Law, without any re-enactment of the Law, with- 
 out any fresh declaration of its meaning. The 
 movements and revolutions of former times, as I 
 have before said, seldom professed to seek in the 
 acknowledged Law, they rather sought its more 
 distinct enactment, its more careful and honest 
 administration. This was the general character 
 of all the great steps in our political history, from 
 the day when William of Normandy renewed the 
 Laws of Eadward to the day when William of 
 Orange gave his royal assent to the l?ill of Rights. 
 But, though each step in our progress took the 
 
112 GROWTH OF ENGLISH COXSTITUTIOy. [chap. 
 
 shape, not of the creation of a new right, but 
 of the firmer estabUshment of an old one, yet 
 each step was marked by some formal and pubhc 
 act which stands enrolled among the landmarks 
 of our progress. Some Charter was granted by 
 the Sovereign, some Act of Parliament was passed 
 by the Estates of the Realm, which set forth in 
 legal form the nature and measure of the rights 
 which were to be placed on a firmer ground. 
 Since the seventeenth century things have in this 
 respect greatly altered. The work of legislation, 
 of strictly constitutional legislation, has never 
 ceased ; a long succession of legislative enactments 
 stand out as landmarks of political progress no less 
 in more recent than in earlier times. But along- 
 side of them there has also been a series of political 
 changes, changes of no less moment than those 
 which are recorded in the statute-book, which have 
 been made without any legislative enactment what- 
 ever. A whole code of political maxims, universally 
 acknowledged in theory, universally carried out in 
 practice, has grown up, without leaving among the 
 formal acts of our legislature any trace of the steps 
 by which it grew. Up to the end of the se\ en- 
 teenth centur}', we may fairly say that no distinction 
 could be drawn between the Constitution and the 
 Law. The prerogative of the Crown, the privilege 
 
III.] STATUTE AND COnilJON LAW. 113 
 
 of Parliament, the liberty of the subject, might not 
 always be clearly defined on every point. It has 
 indeed been said that those three things were all of 
 them things to which, in their own nature, no limit 
 could be set. But all three were supposed to rest, 
 if not on the direct words of the Statute Law, yet 
 at least on that somewhat shadowy yet very prac- 
 tical creation, that mixture of genuine ancient tra- 
 ditions and of recent devices of lawyers, which is 
 known to Englishmen as the Common Law. Any 
 breach either of the rights of the Sovereign or 
 of the rights of the subject was a legal offence, 
 capable of legal definition and subjecting the of- 
 fender to legal penalties. An act which could not 
 be brought within the letter either of the Statute 
 or of the Common Law would not then have been 
 looked upon as an offence at all. If lower courts 
 were too weak to do justice, the High Court of 
 Parliament stood ready to do justice even against the 
 mightiest offenders. It was armed with weapons 
 feaiful and rarely used, but none the less regular 
 and legal. It could smite by impeachment, by 
 attainder, by the exercise of the greatest power of 
 all, the deposition of the reigning King. But men 
 had not yet reached the more subtle doctrine that 
 there may be offences against tlie Constitution 
 which are no offences against the Law. They had 
 
 1 
 
114 GROWTH OF ENGLlSir COXSTITUTIOX. [ciiAr. 
 
 not learned that men in high office may have a 
 responsibility practically felt and acted on, but 
 which no legal enactment has defined, and which 
 no legal tribunal can enforce. It had not been 
 found out that Parliament itself has a power, now 
 practically the highest of its powers, in which it acts 
 neither as a legislature nor as a court of justice, but 
 in which it pronounces sentences which have none 
 the less practical force because they carry with 
 them none of the legal consequences of death, 
 bonds, banishment, or confiscation. We now have 
 a whole system of political morality, a whole code 
 of precepts for the guidance of public men, which 
 will not be found in any page of either the Statute 
 or the Common Law, but which are in practice 
 held hardly less sacred than any principle em- 
 bodied in the Great Charter or in the Petition of 
 Right. In short, by the side of our written Law 
 there has grown up an unwritten or conventional 
 Constitution. When an Englishman speaks of the 
 conduct of a public man being constitutional or 
 unconstitutional, he means something wholly dif- 
 ferent from what he means by his conduct being 
 legal or illegal. A famous vote of the House of 
 Commons, passed on the motion of a great states- 
 man, once declared that the then Ministers of the 
 Crown did not possess the confidence of the House 
 
III.] 
 
 LAW AND COiVSTITUTIOX. 
 
 "5 
 
 of Commons, and that their continuance in office 
 was therefore at variance with the spirit of the 
 Constitution ('). The truth of such a position, ac- 
 cording to the traditional principles on which public 
 men have acted for some generations, cannot be 
 disputed ; but it would be in vain to , seek for any 
 trace of such a doctrine in any page of our written 
 Law. The proposer of that motion did not mean 
 to charge the existing Ministry with any illegal 
 act, with any act which could be made the subject 
 either of a prosecution in a lower court or of im- 
 peachment in the High Court of Parliament itself. 
 He did not mean that they. Ministers of the 
 Crown, appointed during the pleasure of the 
 Crown, had committed any breach of the Law of 
 which the Law could take cognizance, merely 
 because they kept possession of their offices till 
 such time as the Crown might think good to 
 dismiss them from those offices. What he meant 
 was that the general course of their policy was 
 one which to a majority of the House of Com- 
 mons did not seem to be wise or beneficial to 
 the nation, and that therefore, according to a 
 conventional code as well understood and as 
 effectual as the written Law itself, they were 
 bound to resign offices of which the House of 
 Commons no longer held them to be wortliy. The 
 
 I 2 
 
n6 GROWTH OF EXGLISH COXSTITUTIO.y. ^ci!ap. 
 
 House made no claim to dismiss those Ministers 
 from their offices by any act of its own ; it did 
 not even petition the Crown to remove them from 
 their offices. It simply spoke its mind on their 
 general conduct, and it was held that, when the 
 House had so spoken, it was their duty to give way, 
 without any formal petition, without any formal 
 command, on the part either of the House or of the 
 Sovereign (^). The passing by the House of Com- 
 mons of such a resolution as this may perhaps be 
 set down as the formal declaration of a constitu- 
 tional principle. But though a formal declaration, 
 it was not a legal declaration. It created a prece- 
 dent for the practical guidance of future Ministers 
 and future Parliaments ; but it neither changed 
 the Law nor declared it. It asserted a principle 
 which might be appealed to in future debates in the 
 House of Commons ; but it asserted no principle 
 which could be taken any notice of by a Judge in 
 any Court of Law. It stands therefore on a wholly 
 different ground from those enactments which, 
 whether they changed the Law or simply declared 
 the Law, had a real legal force, capable of being 
 enforced by a legal tribunal. If any officer of the 
 Crown should le\y a tax without the authority of 
 Parliament, if he should enforce martial law without 
 the authority of Parliament, he would be guilty of 
 
in.] 
 
 LAiV AND COXSTITUTION. 
 
 "7 
 
 a legal crime. But, if he merely continues to hold 
 an office conferred by the Crown and from which 
 the Crown has not removed him, though he hold 
 it in the teeth of any number of votes of censure 
 passed by both Houses of Parliament, he is in 
 no way a breaker of the written Law. But the 
 man who should so act would be universally held 
 to have trampled under foot one of the most 
 undoubted principles of the umvritten but uni- 
 versally accepted Constitution. 
 
 The remarkable thing is that, of these two kind 
 of hypothetical offences, the latter, the guilt os 
 which is purely con\ entional, is almost as unlikely 
 to happen as the former, whose guilt is a matter 
 established by Law. The power of the Law is 
 so firmly established among us that the possibility 
 of breaches of the Law on the part of the Crown 
 or its Ministers hardly ever comes into our heads. 
 And conduct sinning against the broad lines of the 
 unwritten Constitution is looked on as hardly less 
 unlikely. Political men may debate whether such 
 and such a course is or is not constitutional, just 
 as lawyers may debate whether such a course si 
 or is not legal. But the very form of the debate 
 implies that there is a Constitution to be observed, 
 just as in the other case it implies that there is 
 a Law to be observed. Now this firm establish- 
 
iiS GROWTH OF Eh'CLISH CONSTITUTION, [chap. 
 
 ment of a purely unwritten and conventional code 
 is one of the most remarkable facts in history. 
 It is plain that it implies the firmest possible 
 establishment of the power of the written Law as 
 ts groundwork. If there were the least fear of 
 breaches of the written Law on the part of the 
 Crown or its officers, we should be engaged in 
 finding means for getting rid of that more serious 
 danger, not in disputing over points arising out of 
 a code which has no legal existence. But it is well 
 sometimes to stop and remember how thoroughly 
 conventional the whole of our received system is. 
 The received doctrine as to the relations of the 
 two Houses of Parliament to one another, the whole 
 theory of the position of the body known as the 
 Cabinet and of its chief the Prime Minister, every 
 detail in short of the practical working of govern- 
 ment among us, is a matter belonging wholly to 
 the unwritten Constitution and not at all to the 
 written Law. The limits of the royal authority 
 are indeed clearly defined by the written Law. But 
 I suspect that most people have but little idea of 
 the amount of power which the Crown still pos- 
 sesses by Law, and that they would be amazed to 
 find how many things, which in our eyes would 
 .seem utterly monstrous, might still be done by 
 royal authority without breaking the letter of the 
 
m.] 
 
 POSITION OF MINISTERS. 
 
 119 
 
 Law. The Law indeed secures us against arbi- 
 trary legislation, against the repeal of any old 
 laws, or the enactment of any new ones, with- 
 out the consent of both Houses of Parliament (3). 
 But it is the unwritten Constitution alone which 
 makes it practically impossible for the Crown 
 to refuse its assent to measures which have passed 
 both Houses of Parliament, and which in many 
 cases makes it almost equally impossible to refuse 
 the prayer of an address sent up by one of those 
 Houses only. The written Law leaves to the 
 Crown the choice of all its ministers and agents, 
 great and small ; their appointment to office and 
 their removal from office, as long as they commit 
 no crime which the Law can punish, is a matter 
 left to the personal discretion of the Sovereign. 
 The unwritten Constitution makes it practically 
 impossible for the Sovereign to keep a Minister in 
 office of whom the House of Commons does not 
 approve, and it makes it almost equally impossible 
 to remove from office a Minister of whom the 
 House of Commons does approve (*). The written 
 Law and the unwritten Constitution alike exempt 
 the Sovereign from all ordinary personal responsi- 
 bility (5;. They both transfer the responsibility from 
 the Sovereign himself to his agents and advisers. 
 But the nature and extent of their responsibility 
 
120 GROWTH OF E.VGLISH COXSTITUTION: [chap. 
 
 is widely different in the eyes of the written Law 
 and in the eyes of the unwritten Constitution. 
 The written Law is satisfied with holding that the 
 command of the Sovereign is no excuse for an 
 illegal act, and that he who advises the commission 
 of an illegal act by royal authority must bear the 
 responsibility from which the Sovereign himself is 
 free. The written Law knows nothing of any re- 
 sponsibility but such as may be enforced either by 
 prosecution in the ordinary' Courts or by impeach- 
 ment in the High Court of Parliament. The un- 
 written Constitution lays the agents and advisers of 
 the Crown under a responsibility of quite another 
 kind. What we understand by the responsibility 
 of Ministers is that they are liable to have all 
 their public acts discussed in Parliament, not only 
 on the ground of their legal or illegal character, 
 but on the vaguest grounds of their general ten- 
 dency. They may be in no danger of prosecution 
 or impeachment ; but they are no less bound to 
 bow to other signs of the will of the House of 
 Commons ; the unwritten Constitution makes a 
 vote of censure as effectual as an impeachment, 
 and in many cases it makes a mere refusal to pass 
 a ministerial measure as effectual as a vote of 
 censure. The written Law knows nothing of the 
 Cabinet or the Prime Minister ; it knows them as 
 
III.] RESPONSIBILITY OF MINISTERS. 121 
 
 members of one or the other House of Parliament, 
 as Privy Councillors, as holders, each man in his 
 own person, of certain offices ; but, as a collective 
 body bound together by a common responsibility, 
 the Law never heard of them i^). But in the eye 
 of the unwritten Constitution the Prime Minister 
 and the Cabinet of which he is the head form the 
 main feature of our system of government. It is 
 jjlain at a moment's glance that the practical power 
 of the Crown is not now what it was in the reign 
 of William the Third or even in that of George 
 the Third. But the change is due, far less to 
 changes in the written Law than to changes in 
 the unwritten Constitution. The Law leaves the 
 powers of the Crown untouched, but the Constitu- 
 tion requires that those powers should be exercised 
 by such persons, and in such a manner, as may be 
 acceptable to a majority of the House of Com- 
 mons. In all these ways, in a manner silent and 
 indirect, the Lower House of Parliament, as it is 
 still deemed in formal rank, has become the really 
 ruling power in the nation. Tliere is no greater 
 contrast than that which exists between the 
 humility of its formal dealings with the Crown 
 and even with the Upper House ('), and the realit)' 
 of the irresistible power which it excrci.ses over 
 both. It is so conscious of the mighty force of 
 
1 2 2 CK 0 WTH OF ENGL ISH COXS TITUTJOX. [chap. 
 
 its indirect powers that it no longer cares to claim 
 the direct powers w^liich it exercised in former 
 times. There was a time when Parhament was 
 directly consulted on questions of war and peace. 
 There was a time when Parliament claimed directly 
 to appoint several of the chief officers of state (^). 
 There were much later times when it was no un- 
 usual thing to declare a man in power to be a 
 public enemy, or directly to address the Crown 
 for his removal from office and from the roj'al 
 presence. No such direct exercises of parliamen- 
 tary power are needed now, because the whole 
 machinery of government may be changed by the 
 simple process of the House refusing to pass a 
 measure on which the Minister has made up his 
 mind to stake his official being. 
 
 Into the history of the stages by which this most 
 remarkable state of things has been brought about 
 I do not intend here to enter. The code of our 
 unwritten Constitution has, like all other English 
 things, grown up bit by bit, and, for the most 
 part, silently and without any acknowledged author. 
 Yet some stages of the developcment are easily 
 pointed out, and they make important landmarks. 
 The beginning may be placed in the reign of William 
 the Third, the first time when we find anything at 
 all like a Ministry in the modern sense. Up to 
 
.II.] 
 
 THE CABINET. 
 
 123 
 
 that time the servants of the Crown had been 
 servants of the Crown, each man in the personal 
 discharge of his own office. The holder of each 
 office owed faithful service to the Crown, and he 
 was withal responsible to the Law ; but he stood in 
 no special fellowship towards the holder of any other 
 office. Provided he discharged his own duties, 
 nothing hindered him from being the personal or 
 political enemy of any of his fellow-servants. It 
 was William who first saw that, if the King's 
 government was to be carried on, there must be 
 at least a general agreement of opinions and aims 
 among the King's chief agents in his government (^j. 
 From this beginning a system has gradually 
 grown up which binds the chief officers of the 
 Crown to work together in at least outward har- 
 mony, to undertake the defence of one another, 
 and on vital points to stand and fall together. 
 Another important stage happened in much later 
 times, when the King ceased to take a share in 
 person in the deliberations of his Cabinet. And 
 I may mark a change in language which has hap- 
 pened within my own memory, and which, like 
 other changes of language, is certainly not without 
 its meaning. We now familiarly speak, in Par- 
 iament and out of Parliament, of the body of 
 Ministers actually in i)owcr, the body known to 
 
124 
 
 GROWTH OF EXGLTSH COMSTITUTIOX. 
 
 [chap. 
 
 the Constitution but wholly unknown to the Law, 
 by the name of " the Government." We speak of 
 " Mr. Gladstone's Government " or " Mr. Disraeli's 
 Government." I can myself remember the time 
 when such a form of words was unknown, when 
 "Government" still meant " Government by King, 
 Lords, and Commons," and when the body of men 
 who acted as the King's immediate advisers were 
 spoken of as " Ministers " or " the Ministry" ('"). 
 
 This kind of silent, I might say stealthy, growth, 
 has, without the help of any legislative enactment, 
 produced that unwritten and conventional code of 
 political rules which we speak of as the Consti- 
 tution. This process I have spoken of as being 
 characteristic of the days since the Revolution of 
 1688, as distinguished from earlier times. And so it 
 undoubtedly is. At no earlier time have so many 
 important changes in constitutional doctrine and 
 practice won universal acceptance without being 
 recorded in any written enactment. Yet this ten- 
 dency of later times is, after all, only a further 
 developement of a tendency which was at work 
 from the beginning. It is simply another applica- 
 tion of the Englishman's love of precedent. The 
 growth of the unwritten Constitution has much in 
 common with the earlier growth of the unwritten 
 Common Law. I have shown in earlier chapters 
 
m.] GROWTH OF THE CONVENTIOXAL CODE. 125 
 
 that some of the most important principles of our 
 earlier Constitution were established silently and 
 by the power of precedent, without resting on any 
 known written enactment. If we cannot show any 
 Act of Parliament determining the relations in 
 which the members of the Cabinet stand to the 
 Crown, to the House of Commons, and to one 
 another, neither can we show any Act of Parlia- 
 ment which decreed, in opposition to the practice 
 of all other nations, that the children of the here- 
 ditary Peer should be simple Commoners. The 
 real difference is that, in more settled times, when 
 Law was fully supreme, it was found that many 
 important practical changes might be made without 
 formal changes in the Law. It was also found 
 that there is a large class of political subjects 
 which can be best dealt with in this way by tacit 
 understandings, and which can hardly be made the 
 subjects of formal enactments by Law. We prac- 
 tically understand what is meant by I^Iinisters 
 having or not having the confidence of the House 
 of Commons ; we practically recognize the cases in 
 which, as not having the confidence of the House, 
 they ought to resign office, and the cases in which 
 they may fairly appeal to the country by a dissolu- 
 tion of Parliament. But it would be utterly impos- 
 sible to define such cases beforehand in the terms of 
 
126 GROWTH OF ENGLISH COXSTITVTIOX. [chap. 
 
 an Act of Parliament. Or again, the Speaker of 
 the House of Commons is an officer known to the 
 Law. The Leader of the House of Commons is 
 a person as well known to the House and to the 
 country as the Speaker himself, and his functions 
 are quite as well understood. But of the Leader 
 of the House of Commons the Law knows nothing. 
 It would be hopeless to seek to define his duties in 
 any legal form ; and the House itself has, before 
 now, shrunk from recognizing the existence of 
 such a person in any shape of which a Court of 
 Law could take notice ("). 
 
 During a time then which is now not very far 
 short of two hundred years, the silent and extra- 
 legal growth of our conventional Constitution has 
 been at least as important as the actual changes 
 in our written Law. With regard to these last, 
 the point on which I wish chiefly to dwell is the 
 way in which not a few pieces of modern legisla- 
 tion have been — whether wittingly or unwittingly 
 I do not profess to know — a return to the simpler 
 principles of our oldest constitution. I trust to 
 show that, in many important points, wc have cast 
 aside the legal subtleties which grew up from the 
 twelfth century to the seventeenth, and that we 
 have gone back to the plain common sense of the 
 eleventh or tenth, and of times far earlier still. 
 
in.] 
 
 TEACHLVG OF LA WYEI^S. 
 
 127 
 
 In those ancient times we had already laws, but 
 we had as yet no lawyers. We hear in early times 
 of men who were versed above others in the laws 
 of the land ; but such special knowledge is spoken 
 of as the attribute of age or of experience in 
 public business, not as the private possession of a 
 professional class ("). The class of professional 
 lawyers grew up along with the growth of a more 
 complicated and technical jurisprudence under our 
 Norman and Angevin Kings. Now I mean no 
 disrespect to a profession which in our present 
 artificial state of society we certainly cannot do 
 without ; but there can be no kind of doubt that 
 lawyers' interpretations and lawyers' ways of look- 
 ing at things have done no small mischief, not only 
 to the true understanding of our history, but to the 
 actual course of our history itself The lawyer's 
 tendency is to carry to an unreasonable extent that 
 English love of precedent which, within reasonable 
 bounds, is one of our most precious safeguards. 
 His virtue is that of acute and logical inference 
 from given premi.sses ; the premisses themselves 
 he is commonly satisfied to take without examina- 
 tion from those who have gone before him. It 
 is often wonderful to sec the amazing ingenuity 
 with which lawyers have piled together inference 
 upon inference, starting from some purely arbitrary 
 
128 CR01V77I OF EXGLrSFI COXSTITUTIOy. [chap. 
 
 assumption of their own. Each stage of the argu- 
 ment, taken by itself, is absolutely unanswerable ; 
 the objection must be taken earlier, before the 
 argument begins. The reasoning is perfect, if we 
 only admit the premisses ; the unlucky thing is 
 that the premisses will commonly be found to be 
 historically worthless. Add to this that the natural 
 tendency of the legal mind is to conservatism 
 and deference to authority. This will always be 
 the case, even with thoroughly honest men, in an 
 age when honesty is no longer dangerous. But 
 this tendency will have tenfold force in times when 
 an honest setting forth of the Law might expose 
 its author to the disfavour of an arbitrary govern- 
 ment. We shall therefore find that the premisses 
 from which lawyers' arguments have started, but 
 which historical study shows to be unsound, are 
 commonly premisses devised in favour of the pre- 
 rogative of the Crown, not in favour of the rights 
 of the people. Indeed the whole ideal conception 
 of the Sovereign, as one, personally at least, above 
 the Law, as one personally irresponsible and in- 
 capable of doing wrong, the whole conception of 
 the Sovereign as the sole fountain of all honour, 
 as the original grantor of all property, as the source 
 from which all authority of every kind issues in 
 the first instance, is purely a law) cr's conception, 
 
in.] 
 
 LAIVYERS' THEORY OF KINGSHIP. 
 
 129 
 
 and rests upon no ground whatever in the records 
 of our early history ("3). In later times indeed 
 the evil has largely corrected itself; the growth 
 of our unwritten Constitution under the hands of 
 statesmen has done much practically to get rid 
 of these slavish devices of lawyers. The personal 
 irresponsibility of the Sovereign becomes prac- 
 tically harmless when the powers of the Crown 
 are really exercised by Ministers who act under 
 a twofold responsibility, both to the written Law 
 and to the unwritten Constitution. Yet, even now, 
 small cases of hardship sometimes happen in which 
 seme traditional maxim of lawyers, some device 
 devised in favour of the prerogative of the Crown, 
 stands in the way of the perfectly equal admi- 
 nistration of justice. But in several important 
 cases the lawgiver has directly stepped in to wipe 
 out the inventions of the lawyer, and modern Acts 
 of Parliament have brought things back to the 
 simpler principles of our earliest forefathers. I 
 will wind up my sketch of our constitutional history 
 by pointing out several cases in which this happy 
 result has taken place. 
 
 For many ages it was a legal doctrine univer- 
 sally received that Parliament at once expired at 
 the death of the reigning King. The argument by 
 which the lawyers reached this conclusion is, like 
 
 K 
 
I30 GROWTH OF EXGTJSH CONSTITUTIOh^. [chap. 
 
 most of their arguments, altogether unanswerable, 
 provided only we admit their premisses. Accord- 
 ing to the lawyers' conception, whatever might be 
 the powers of Parliament when it actually came 
 together, howev^er much the King might be bound 
 to act by its advice, consent, and authority, the 
 Parliament itself did nevertheless derive its being 
 from the authority of the King. Parliament was 
 summoned by the King's writ. The King might 
 indeed be bound to issue the writs for its summons ; 
 still it was from the King's writ that the Parliament 
 actually derived its being and its powers. By 
 another legal assumption, the force of the King's 
 writ was held to last only during the lifetime of 
 the King who issued it. It followed therefore that 
 Parliament, summoned by the King's writ and 
 deriving its authority from the King's writ, was 
 dissolved ipso facto by the death of the King who 
 summoned it. Once admit the assumptions from 
 which this reasoning starts, and the reasoning itself 
 is perfect. But what is the worth of the assump- 
 tions Let us see how this mass of legal subtlety 
 would have looked in the eyes of a man of the 
 eleventh century, in the eyes of a man who had 
 borne his part in the elections of Eadward and 
 of Harold, and who had raised his voice and 
 clashed his arms in the great Assembly which 
 
III.] A'!XG AXD PARLIAMENT. 131 
 
 restored Godwine to his lands and honours ('■•). To 
 such an one the doctrine that a national Assembly- 
 could be gathered together only by the King's 
 writ, and the consequent doctrine that the national 
 Assembly ceased to exist when the breath went 
 out of the King's body, would have seemed like 
 the babble of a madman. When was the gathering 
 together of the national Assembly more needed, 
 when was it called upon to exercise higher and 
 more inherent powers, than when the throne was 
 actually vacant, and when the Assembly of the 
 nation came together to determine who should fill 
 it ? And how could the Assembly be gathered to- 
 gether by the King's writ when there was no King 
 in the land to issue a writ ? The King's writ would 
 be, in the eyes of such a man, a convenient way in 
 ordinary times for fi.xing a time and place for the 
 meetings of the Assembly ; but it would be nothing 
 more. It would be in no sense the source of the 
 powers of the Assenibly, powers which he would 
 look upon as derived from the simple fact that the 
 Assembly was itself the nation. In his eyes it 
 was not the King who created the Assembly, but 
 the Assembly which created the King. The doc- 
 trine that the King never dies, that the throne 
 never can be vacant, would have seemed gibberish 
 to one who had seen the throne vacant and Iiad 
 
132 GROWTH OF EXGLISH COXSTITUTIOX. [chap. 
 
 borne his part in filling- it. The doctrine that the 
 King can do no wrong would have seemed no 
 less gibberish to one who knew that he might 
 possibly be called on to bear his part in deposing 
 a King. Three of the most famous Assemblies 
 in English history have ever been puzzles in the 
 eyes of mere legal interpreters ; to the man of 
 the eleventh century they would have seemed to 
 be perfectly legal and regular, alike in their con- 
 stitution and in their acts. The Assembly which 
 in 1399 deposed Richard the Second and elected 
 Henry the Fourth, though summoned by the King's 
 writ, was not opened by his commission ; it seems 
 also to have shrunk from taking the name of 
 Parliament, and to have acted only by the name 
 of the Estates of the Realm. As an Assembly 
 which was in some sort irregular, it seems to have 
 shrunk from going through the usual forms of a 
 regular Parliament, and, though it did in the end 
 exercise the greatest of parliamentary powers, it 
 seems to have been afraid to look its own act in 
 the face. Richard was deposed ; but his deposition 
 was mixed up with a resignation of the Crown on 
 his own part, and with a challenge of the Crown 
 on the part of Henry. Then, as a demise of the 
 Crown had taken place, it was held that the same 
 legal consequences followed as if that demise had 
 
HI.] 
 
 PARLIAMENT OF 1399. 
 
 133 
 
 been caused by the death of the King. It was 
 held that the ParHament which had been sum- 
 moned by the writ of King Richard ceased to exist 
 when Richard ceased to be King, and, as it was 
 not thought good to summon a new ParHament, 
 the same Parliament was, by a legal fiction, sum- 
 moned again under the writ of King Henry ("s). 
 All these doubts and difficulties, all these subtleties 
 of lawyers, would have been wholly unintelligible 
 to a man of the eleventh century. In his eyes 
 the Witan would have come together, whether 
 by King Richard's writ or not it mattered little ; 
 having come together, they had done the two 
 greatest of national acts by deposing one King 
 and choosing another ; having done this, if there 
 was any other national business to be done, there 
 was no reason on earth why they should not go on 
 and do it. Take again another Assembly of equal 
 importance in our history, the Convention which 
 voted the recall — that is, in truth, the election 
 — of Charles the Second. That Assembly suc- 
 ceeded a Parliament which had ventured on a still 
 stronger step than deposing a King, that of send- 
 ing a reigning King to trial and execution ('*). It 
 was not held in 1649 that the Long Parliament 
 came to an end when the axe fell on the neck 
 of Charles the First ; but the doctrine that it ouL;ht 
 
134 GROWTH OF F.XGLTSH constitution: [chap. 
 
 to have done so was not forgotten eleven years 
 later {^^\ And the Convention which was elected, 
 as freely as any Parliament ever was elected ('^), 
 in answer to the vote of the expiring Long Parlia- 
 ment, was, because it was so elected and not in 
 answer to the King's writ, looked on as an Assem- 
 bly of doubtful validity. It acted as a Parliament ; 
 it restored the King ; it granted him a revenue ; 
 and it did a more wonderful work than all, for it 
 created itself, and passed an act declaring itself 
 to be a lawful Parliament ('s). Yet, after all this, 
 it was deemed safer that the Acts of the Con- 
 vention Parliament should be confirmed by its 
 successor which was summoned in due form by 
 the King's writ. These fantastic subtleties, sub- 
 tleties worthy of the kindred device by which the 
 first year of Charles's reign was called the twelfth, 
 would again have been wholly unintelligible to 
 our man of the eleventh century. He might have 
 remembered that the Assembly which restored 
 ^thelred — which restored him on conditions, while 
 Charles was restored without conditions — did not 
 scruple to go on and pass a series of the most 
 important decrees that were passed in any of 
 our early Assemblies (^°). Once more again, the 
 Convention which deposed James and elected 
 William, seemed, like that which deposed Richard 
 
III.] THE CONVENTION PARLIAMENTS. 135 
 
 and elected Henry, to doubt its own existence and 
 to shrink from its own act. James was deposed ; 
 but the Assembly which deposed him ventured not 
 to use the word, and, as an extorted abdication 
 was deemed expedient in the case of Richard, so 
 a constructive abdication was imagined in the case 
 of James (^'). And the Assembly which elected 
 William, like the Assembly which elected Henry 
 and that which elected Charles, prolonged its own 
 existence by the same transparent fiction of voting 
 itself to be a lawful Parliament. Wise men held 
 at the time that, at least in times of revolu- 
 tion, a Parliament might be called into being by 
 some other means tlian that of the writ of a 
 King. Yet it was deemed that some additional 
 security was given to the existence of the Assem- 
 bly and to the validity of its acts by this second 
 exercise of the mysterious power of self-crea- 
 tion ("). Once more in the same reign the ques- 
 tion was brought forward whether a Parliament 
 summoned by the joint writ of William and 
 Mary did not expire when Mary died and William 
 reigned alone. This subtlety was suggested only 
 to be contemptuously cast aside ; yet it may be 
 fairly doubted whether it was not worth at least 
 as much as any of the kindred subtleties which 
 on the three earlier occasions were deemed of such 
 
136 CROIVTH OF ENGLISH CONSTITUTION, [chap. 
 
 vast importance (^3). The untutored wisdom of 
 Englishmen, in the days when we had laws but 
 when those laws had not yet been made the 
 sport of the subtleties of lawyers, would have 
 seen as little force in the difficulties which it was 
 deemed necessary to get ever by solemn parlia- 
 mentary enactments as in the difficulty which 
 neither House of Parliament thought worthy of 
 any serious discussion. 
 
 And now what has modern legislation done to- 
 wards getting rid of all these pettifogging devices, 
 and towards bringing us back to the simpler doc- 
 trines of our forefathers ? Parliament is still sum- 
 moned by the writ of the Sovereign ; in settled 
 times no other way of bringing it together can be 
 so convenient. But, if times of revolution should 
 ever come again, we, who do even our revolutions 
 according to precedent, shall probably have learned 
 something from the revolutionary precedents of 
 1399. of 1660, and of 1688. In each later case 
 the subtlety is one degree less subtle than in the 
 former. The Estates of the Realm which deposed 
 Richard were changed into a Parliament of Henry 
 by the transparent fiction of sending out writs 
 which were not, and could not be, followed by any 
 real elections. The Convention which recalled or 
 elected Charles the Second did indeed turn itself 
 
ni.] 
 
 MODERN LEGISLA TlOy. 
 
 into a Parliament, but it was deemed needful that 
 its acts should be confirmed by another Parliament. 
 The acts of the Convention of 1688 were not 
 deemed to need any such confirmation. Each of 
 these differences marines a stage in the return to the 
 doctrine of common sense, that, convenient as it 
 is in all ordinary times that Parliament should be 
 summoned by the writ of the Sovereign, yet it is 
 not from that summons, but from the choice of the 
 people, that Parliament derives its real being and 
 its inherent powers. As for the other end of the 
 lawyers' doctrine, the inference that Parliament is 
 ipso facto dissolved by a demise of the Crown, from 
 that a more rational legislation has set us free 
 altogether. Though modern Parliaments are no 
 longer called on to elect Kings, yet experience and 
 common sense have taught us that the time when 
 the Sovereign is changed is exactly the time when 
 the Great Council of the Nation ought to be in 
 full life and activity. By a statute only a few 
 years later than the raising of the question whether 
 a Parliament of William and Mary did or did not 
 expire by the death of Mary, all such subtleties 
 were swept away. It was now deenied so needful 
 that the new Sovereign should have a Parliament 
 ready to act with him, that it became the Law 
 that the Parliament w hich was in being at the time 
 
13? GROWTH OF E.VGLISH COXSTITUTION. [chap. 
 
 of a demise of the Crown should remain in being 
 for six months, unless it was sooner dissolved by the 
 new Sovereign. A later statute went further still, 
 and provided that, if a demise of the Crown should 
 take place during the short inter\'al when there is 
 no Parliament in being, the last Parliament sliould 
 ipso facto revive, and should continue in being, un- 
 less a second time dissolved, for six months more. 
 Thus the event which, by the perverted ingenuity 
 of lawyers, was held to have the power of destroy- 
 ing a Parliament, was, by the wisdom of later 
 legislation, clothed with the power of calling a 
 Parliament into being. Lastly, in our own days, 
 all traces of the lawj-ers' superstition have been 
 swept away, and the demise of tlie Crown now in 
 no way affects the duration of the existing Par- 
 liament Truly this is a case where the letter 
 killeth and the spirit giveth life. The doctrine 
 which had been inferred by unanswerable logic 
 from an utterly worthless premiss has been cast 
 aside in favour of the dictate of common sense. 
 We have learned that the moment when the State 
 has lost its head is the last moment which we 
 ought to choose for depriving it of its body also. 
 
 Here then is a notable instance of the way in 
 which the latest legislation of England has fallen 
 back upon the principles of the earliest Here is 
 
ni.l rOLKLAND. 1.59 
 
 a point on which the eleventh century and the 
 nineteenth are of one mind, and on which the 
 fanciful scruples of the fourteenth and the seven- 
 teenth centuries are no longer listened to. Let us 
 take another instance. In the old Teutonic Con- 
 stitution, just as in the old Roman Constitution, 
 large tracts of land were the property of the State, 
 the af^er piiblictis of Rome, the folkland of England. 
 As the royal power grevv% as the King came to 
 be looked on more and more as the impersonation 
 of the nation, the land of the people came to be 
 more and more looked on as the land of the 
 King ; the folkland of our Old-English charters 
 gradually changed into the Terra Regis of Domes- 
 day Like other changes of the kind, the 
 Norman Conquest only strengthened and brought 
 to its full effect a tendency which was already at 
 work ; but there can be no doubt that, down to 
 the. Norman Conquest, the King at least went 
 through the form of consulting his VVitan, before 
 he alienated the land of the people to become 
 the possession of an individual— in Old-English 
 phrase, before he turned folkland into book-land {^^). 
 After the Norman Conquest we hear no more of 
 the land of the people ; it has become the land of 
 the King, to be dealt with according to the King's 
 personal pleasure. From the days of the first 
 
I40 GROWTH OF EXGLISH COXSTITUTIOX. [chap. 
 
 William to those of the Third, the land which had 
 once been the land of the people was dealt with 
 without any reference to the will of the people. 
 Under a conscientious King it might be applied 
 to the real service of the State, or bestowed as the 
 reward of really faithful service done to the State. 
 Under an unconscientious King it might be 
 squandered broadcast among his minions or his 
 mistresses (^'). Xow this wrong too is redressed. 
 A custom as strong as law now requires that, at the 
 beginning of each fresh reign, the Sovereign shall, 
 not by an act of bounty but by an act of justice, 
 give back to the nation the land which the nation 
 lost so long ago. The royal demesnes are now 
 handed over to be dealt with like the other revenues 
 of the State, to be disposed of by Parliament 
 for the public service That is to say, the people 
 have won back their own ; the usurpation of the 
 days of foreign rule has been swept away. We have 
 in this case too gone back to the sound principles 
 of our forefathers ; the Tej-7-a Regis of the Norman 
 has once more become the folkland of the days of 
 our earliest freedom. 
 
 I will quote another case, a case m which the 
 return from the fantasies of lawyers to the common 
 sense of antiquity has been distinctly to the profit, 
 if not of the abstraction called the Crown, yet 
 
III.] 
 
 CROIVX LAXDS. 
 
 141 
 
 certainly to that of its personal holder. As long 
 as the folkland remained the land of the people, as 
 long as our monarchy retained its ancient elective 
 character, the King, like any other man, could 
 inherit, purchase, bequeath, or otherwise dispose 
 of, such lands as were his own private property 
 as much as the lands of other men were their.s. 
 We have the wills of several of our early Kings 
 which show that a King was in this respect as free 
 as any other man i^''). But as the lawyers' figment 
 of hereditary right took root, as the other lawyers' 
 figment also took root by which the lands of the 
 people were held to be at the personal disposal 
 of the King, a third figment grew up, by which 
 it was held that the person and the office of the 
 King were so inseparably fused into one that any 
 private estates which the King held before his 
 accession to the throne became ipso facto part and 
 parcel of the royal demesne. As long as the 
 Crown remained an elective office, the injustice of 
 such a rule would have made itself plain ; it would 
 have been at once seen to be as unreasonable as 
 if it had been held that the private estates of a 
 Bishop should merge in the estates of his sec. 
 As long as there was no certainty that the children 
 or other heirs of the reigning King would ever 
 succeed to his Crown, it woulu have been the 
 
142 GROWTH OF EXGLTSn CO NSTITUTIOX. [chap. 
 
 height of injustice to deprive them in this way of 
 their natural inheritance. The election of a King 
 would have carried with it the confiscation of his 
 private estate. But when the Crown was held to 
 be hereditary, when the folkland was held to be 
 Terra Regis, this hardship was no longer felt. The 
 eldest son was provided for by his right of suc- 
 cession to the Crown, and the power of disposing 
 of the Crown lands at pleasure gave the King 
 the means of providing for his younger children. 
 Still the doctrine was none the less unreasonable ; 
 it was a doctrine founded on no ground either of 
 natural justice or of ancient law ; it was a mere 
 inference which had gradually grown up out of 
 mere arbitrary theories about the King's powers 
 and prerogatives. And, as the old state of things 
 gradually came back again, as men began to feel 
 that the demesnes of the Crown were not the 
 private possession of the regining King, but were 
 the true possession of the people — that is, as the 
 Terra Regis again came back to its old state of 
 folkland — it was felt to be unreasonable to shut out 
 the Sovereign from a natural right which belonged 
 to every one of his subjects. The land which, to 
 put it in the mildest form, the King held in trust 
 for the common service of the nation was now 
 again employed to its proper use. It was therg- 
 
RETUR.V TO OLDER LAJVS. 
 
 143 
 
 fore reasonable that a restriction which belonged 
 to a past state of things should be swept away, and 
 that Sovereigns who had given up an usurped power 
 which they ought never to have held should be re- 
 stored to the enjoyment of a natural right which 
 ought never to have been taken from them. As our 
 present Sovereign in so many other respects holds 
 the place of yElfred rather than the place of the 
 Richards and Henries of later times, so she again 
 holds the right which ^^Ifred held, of acquiring 
 and disposing of private property like any other 
 member of the nation (3°). 
 
 These examples are, I hope, enough to make 
 out my case. In each of them modern legislation 
 has swept away the arbitrary inferences of lawyers, 
 and has gone back to those simpler principles 
 which the untutored wisdom of our forefathers 
 never thought of calling in question. I could 
 easily make the list much longer. Every act 
 which has restrained the arbitrary prerogative of 
 the Crown, every act which has secured or in- 
 creased either the powers of Parliament or the 
 liberty of the subject, has been a return, some- 
 times to the letter, always to the spirit, of our 
 earliest Law. But I would enlarge on one point 
 only, the most important point of all, and a point 
 in which \\c may at first sight seem, not to have 
 
14+ GROWTH OF ENGLISH C0XSTITUTI0}7. [chap. 
 
 come nearer, but to liave gone away further from 
 the principles of early times. I mean with regard 
 to the succession to the Crown. The Crown was of 
 old, as I have already said, elective. No man had 
 a right to become King till he had been called to 
 the kingly office by the choice of the Assembly of 
 the nation. No man actually was King till he had 
 been admitted to the kingly office by the conse- 
 cration of the Church. The doctrines that the King 
 never dies, that the throne never can be vacant, that 
 there can be no interregnum, that the reign of the 
 next heir begins the moment the reign of his pre- 
 decessor is ended, are all figments of later times. 
 No signs of such doctrines can be found at any 
 time earlier than the accession of Edward the 
 First (3'). The strong preference which in early 
 times belonged to members of the kingly house, 
 above all to the born son of a crowned King (3^), 
 gradually grew, under the influences which the 
 Norman Conquest finally confirmed, into the doc- 
 trine of absolute hereditary right. That doctrine 
 grew along with the general growth of the royal 
 power ; it grew as men gradually came to look 
 on king.ship as a possession held by a single man 
 for his own profit, rather than as an office bestowed 
 by the people for the common good of the realm. 
 It might seem that, in this respect at least, we 
 
III.] 
 
 SUCCESSIOy TO THE CROW.V. 
 
 145 
 
 have not gone forward, but that we rather have 
 gone back. For nothing is more certain than that 
 the Crown is more strictly and undoubtedly here- 
 ditary now than it was in the days of Normans, 
 Angevins, or Tudors. But a little thought will show 
 that in this case also, we have not gone back but 
 have gone forward. That is to say, we have gone 
 forward by going back, by going back, in this case, 
 not to the letter, but assuredly to the spirit of 
 earlier times. The Crown is now more undoubtedly 
 hereditary than it was in the fifteenth or sixteenth 
 century ; but this is because it is now hereditary 
 by Law, because its powers are distinctly defined 
 by Law. The will of the people, the source of all 
 Law and of all power, has been exercised, not in 
 the old form of personally choosing a King at 
 every vacancy of the Crown, but by an equally 
 lawful exercise of the national will which has 
 thought good to entail the Crown on a particular 
 family. 
 
 It was in the reign of our last elective King 
 that the Crown first became legally hereditary. 
 The doctrine may seem a startling one, but it is 
 one to which an unbiassed study of our history 
 will undoubtedly lead us. Few things are more 
 amusing than the treatment which our early his- 
 tory has met with at the hands of purely legal 
 
 L 
 
146 GROWTH OF ENGLISH CONSTITUTION, [chap. 
 
 writers. There is something almost pitiable in the 
 haltings and stumblings of such a writer as Black- 
 stone, unable to conceive that his lawyer's figment 
 of hereditary right was anything short of eternal, 
 and yet coming at every moment across events 
 which showed that in early times all such figments 
 were utterly unknown (33). In early times the King 
 was not only elected, but he went through a two- 
 fold election. I have already said that the religious 
 character with which most nations have thought 
 good to clothe their Kings took in England, as in 
 most other Christian lands, the form of an ecclesi- 
 astical consecration to the kingly office. That form 
 we still retain ; but in modern times it has become 
 a mere form, a pageant impressive no doubt and in- 
 structive, but still a mere pageant, which gives the 
 crowned King no powers which he did not equally 
 hold while still uncrowned. The death of the for- 
 mer King at once puts his successor in possession 
 of every kingly right and power; his coronation in 
 no way adds to his legal authority, however much 
 it may add to his personal responsibility towards 
 God and his people. But this was not so of old 
 time. The choice of the National Assembly gave 
 the King so chosen the sole right to become King, 
 but it did not make him King. The King-elect 
 was like a Bishop-elect. The recommendation of 
 
III.] ELECTION AXD CONSECRATIOX. 
 
 147 
 
 the Crown, the election of the Chapter, and the 
 confirmation of the Archbishop, give a certain man 
 the sole right to a certain see, but it is only the 
 purely religious rite of consecration which makes 
 him actually Bishop of it (3t). So it was of old 
 with a King. The choice of the Witan made him 
 King-elect, but it was only the ecclesiastical crown- 
 ing and anointing which made him King. And 
 this ecclesiastical ceremony involved a further 
 election. Chosen already to the civil office by the 
 Nation in its civil character, he was again chosen 
 by the Church — that is, by the Nation in its 
 religious character, by the Clergy and People as- 
 sembled in the church where the crowning rite was 
 to be done (^s). This second ecclesiastical election 
 must always have been a mere form, as the choice 
 of the nation was already made before the ecclesi- 
 astical ceremony began. But the ecclesiastical elec- 
 tion survived the civil one. The state of things 
 which lawyers dream of from the beginning is a 
 law of strict hereditary succession, broken in upon 
 by occasional interruptions. These interruptions, 
 which, in the eye of history, are simply excrcLses 
 of an ancient right, arc, in the eyes of lawyers, 
 revolutions or usurpations. ]5ut this state of 
 things, a state in which a fixed rule was sometimes 
 broken, which Blackstone dreams of in the tenth 
 
 L 3 
 
I4S GROWTH OF ENGLISH CO^rSTITUTIOy. [chap. 
 
 and eleventh centuries, really did exist from the 
 thirteenth century onwards. From the accession 
 of Edward the First, the first King who reigned 
 before his coronation, hereditary succession became 
 the rule in practice. The son, or even the grand- 
 son, of the late King (36) was commonly acknow- 
 ledged as a matter of course, without anything 
 which could fairly be called an election. But the 
 right of Parliament to settle the succession was 
 constantly exercised, and ever and anon we come 
 across signs which show that the ancient notion 
 of an election of a still more popular kind had not 
 wholly passed away out of men's minds. Two Kings 
 were formally deposed ; and, on the deposition of 
 the second, the Crown passed, as it might have 
 passed in ancient times, to a branch of the royal 
 house which was not the next in lineal succession. 
 Three Kings of the House of Lancaster reigned 
 by a good parliamentary title, and the doctrine 
 of indefeasible hereditary right, the doctrine that 
 there was some virtue in a particular line of suc- 
 cession which the power of Parliament itself could 
 not set aside, was first brought forward as the 
 formal justification of the claims of the House of 
 York (37). Those claims could not be formally 
 justified on any showing but that of the most 
 slavish doctrine of divine right, but it was not 
 
m.] 
 
 LATER TRACES OE ELECTION. 
 
 149 
 
 on any such doctrine as that that the cause of 
 the House of York really rested. The elaborate list 
 of grandmothers and great-grandmothers which 
 was brought forward to show that Henry the Fifth 
 was an usurper would never have been heard of 
 if the government of Henry the Sixth had not 
 become utterly unpopular, while Richard Duke 
 of York was the best beloved man of his time. 
 Richard accepted a parliamentary compromise, 
 which of course implied the right of Parliament to 
 settle the question. Henry was to keep the Crown 
 for life, and Richard was to displace Henry's son 
 as heir-apparent. That is to say, according to a 
 custom common in Germany, though rare in Eng- 
 land, Richard was chosen to fill a vacancy in the 
 throne which had not yet taken place (f). Duke 
 Richard fell at Wakefield ; in the Yorkist reading 
 of the Law the Crown was presently forfeited by 
 Henry, and Edward, the heir of York, had his 
 claim acknowledged by a show of popular election 
 which carries us back to far earlier times. The 
 claim of Richard the Third, whatever wc make of 
 it on other grounds, was acknowledged in the like 
 sort by what had at least the .semblance of a 
 popular Assembly (39). In .short, though the here- 
 ditary principle had now taken firm root, though 
 the disputes between the pretenders to the Crown 
 
150 GROWTH OF EXGLISn CONSTITUTION, [chap. 
 
 were mainly disputes as to the right of succession, 
 yet the remembrance of the days when the Crown 
 had been truly the gift of the people had not 
 wholly passed away. 
 
 The last King who could bring even the shadow 
 of a claim to have been chosen by the voice of the 
 people beneath the canopy of heaven was no other 
 than Richard the Third. The last King who could 
 bring a better claim to have been chosen by the 
 same voice beneath the vault of the West Minster 
 was no other than Henry the Eighth. Down to 
 his time the old ecclesiastical form of choosing the 
 King remained in the coronation-service, and it 
 was not wholly out of character that Henry should 
 issue a conge d'cUre for his own election. The 
 device for Henry's coronation survives in his own 
 handwriting, and, while it contains a strong asser- 
 tion of his hereditary right, it also contains a dis- 
 tinct provision for his election by the people in 
 ancient form {^°). The claim of Henry was perfectly 
 good, for a Parliament of his father's reign had 
 declared that the Crown should abide in Henry 
 the Seventh and the heirs of his body (+'). But 
 it was in his case that the hereditary and parlia- 
 mentary claim was confirmed by the ancient rite of 
 ecclesiastical election for the last time in our history. 
 His successor was not chosen in this formal way 
 
III.] 
 
 WILL OF HENR Y THE EIGHTH. 
 
 One reason, perhaps, for the omission of the formal 
 election was that, in this particular case, the 
 form was specially needless. For the right of 
 Edward the Sixth to succeed his father was beyond 
 all dispute. By an exercise of parliamentary 
 power, which we may well deem strange, but which 
 was none the less lawful, Henry had been entrusted 
 with the power of bequeathing and entailing the 
 Crown as he thought good. That power he exer- 
 cised on behalf of his own children in order, and, 
 failing them and their issue, on the issue of his 
 younger sister (''^). Edward, Mary, Elizabeth, there- 
 fore all reigned lawfully by virtue of their father's 
 will. A moment's thought will show that Mary 
 and Elizabeth could not both reign lawfully ac- 
 cording to any doctrine of hereditary succession. 
 On no theory, Catholic or Protestant, could both 
 i)e the legitimate daughters of Henry. Parliament 
 indeed had declared both to be illegitimate ; on 
 any theory one or the other must have been 
 so (■•3). But each reigned by a perfectly lawful 
 title, under the provisions of the Act which em- 
 powered their father to settle the succession ac- 
 cording to his pleasure. While Elizabeth reigned, 
 almo.st divine as she might be deemed to be in her 
 own person, it was at least not held that there was 
 any divine right in any other person to succeed her. 
 The doctrine which came into vogue under licr 
 
152 GROWTH OF ENGLISH CONSTITUTION!, [chap. 
 
 successors was in her day looked upon as treason- 
 able (^). Elizabeth knew where her strength lay ; 
 and the Stewarts knew where their strength, such 
 as it was, lay also. In the eye of the Law the 
 first Stewart was an usurper ; he occupied the 
 Crown in the teeth of an Act of Parliament still 
 in force, though he presently procured a fresh Act 
 to salve over his usurpation (■♦s). There can be no 
 doubt that, on the death of Elizabeth, the lawful 
 right to the Crown lay in the house of Suffolk, the 
 descendants of Henry's younger sister Mary. But 
 the circumstances of the time were unfavoui'ablc 
 to their claims ; by a tacit agreement, politically 
 convenient but quite in the teeth of the existing 
 Law, the Crown silently passed to the King 
 of Scots, the descendant of Henry's elder sister 
 Margaret. She had not been named in Henry's 
 entail ; her descendants therefore, lineal heirs of 
 William and Cerdic as they were, had no legal 
 claim to the Crown beyond what was given them 
 by the Act of Parliament which was passed after 
 James was already in possession. They were 
 therefore driven, like the Yorkists at an earlier 
 time, to patch up the theory of the divine right of 
 hereditary succession, in order to justify an occu- 
 pation of the throne wliich had nothing to justify 
 it in English Law 
 
 On one memorable day a Stewart King was 
 
III.] 
 
 TRIAL OF CHARLES THE FIRST. 
 
 153 
 
 reminded that an English King received his right 
 to reign from the will of the English people. What- 
 ever else we may say of the nature or the acts of 
 the tribunal before which Charles the First was 
 arraigned, it did but assert the ancient Law of 
 England when it told how " Charles Stewart was 
 admitted King of England, and therein trusted 
 with a limited power, to govern by and according 
 to the laws of the land and not otherwise." It did 
 but assert a principle which had been acted on on 
 fitting occasions for nine hundred years, when it 
 told its prisoner that " all his predecessors and he 
 were responsible to the Commons of England." 
 Even the vote by authority of which that tribunal 
 acted, the vote which seems so strange and daring, 
 the vote which declared that it was high treason 
 for a King of England to levy war against his 
 Parliament, was little more than a translation of 
 an earlier vote which had declared John to be a 
 "perjured King in rebellion against his Barons"(''7j. 
 Eorgetful of the fate of Sigeberht and /E'lhelred, 
 of John, of Edward, and of Richard, Charles ven- 
 tured to ask for precedents, and told his judges 
 that " the Kingdom of England was hereditary 
 and not successive "(4^). After a season, the in- 
 truding dynasty passed away, on that great day 
 when the English people exercised for the last 
 
154 
 
 GROWTH OF EXGLISH CONSTITUTION. 
 
 [chap. 
 
 time its ancient right of deposing and electing 
 Kings. The Convention of which we have so 
 often spoken, that great Assembly, irregular in 
 the eyes of lawyers, but in truth all the more 
 lawful because no King's writ had summoned it, 
 cast all fantasies and subtleties to the winds by 
 declaring that the throne was vacant. A true 
 Assembly of the nation once more put forth 
 its greatest power, and chose William of Orange, 
 as, six hundred years before, another Assembly 
 of the nation had chosen Harold the son of 
 Godwine. The cycle had come round ; the 
 English people had won back again the rights 
 which their fathers had brought with them from 
 their old home beyond the sea. Nor was it with- 
 out fitness that their choice went back to those 
 kindred lands, and that a new William crossed the 
 sea to undo, after so many ages, the wrongs which 
 England had suffered from his namesake. And 
 now, under the rule of an elective King, England 
 could at last afford to make her Crown strictly and 
 permanently hereditary. The Act of Settlement, 
 as we all know, entailed the Crown on the Elec- 
 tress Sophia and her heirs (-t'). Therefore no Kings 
 have ever reigned by a better right than those who, 
 by virtue of that Act, have been called to reign 
 by the direct operation of the Law. They are in 
 
III.] 
 
 THE ACT OF SETTLEMENT. 
 
 155 
 
 truth Kings — Cyniiigas in the most ancient sense 
 — whose power flows directly from the will of the 
 nation. In the existing state of our institutions, 
 the hereditary character of our modern kingship is 
 no falling away from ancient principles; it in truth 
 allows us to make a fuller application of them in 
 another shape. In an early state of things no form 
 of government is so natural as that which we find 
 established among our forefathers. A feeling 
 which was not wholly sentimental demanded that 
 the King should, under all ordinary circumstances, 
 be the descendant of former Kings. But a sense 
 that some personal qualification was needed in a 
 ruler required that the electors should have the 
 right of freely choosing within the royal house. In 
 days when Kings governed as well as reigned, such 
 a choice, made with some regard to the personal 
 qualities of the King chosen, was the best means 
 for securing freedom and good government. Under 
 the rule of a conventional constitution, when Kings 
 reign but do not govern, when it is openly pro- 
 fessed in the Mouse of Commons that it is to 
 that House that the powers of government have 
 passed (5°), the objects which were once best se- 
 cured by making kingship elective are now best 
 secured by making king.ship hereditary. It is as 
 the Spartan King said ; by lessening the powers 
 
156 GROWTH OF EXGLTSII COXSTITUTIOX. [chap. 
 
 of the Crown, its possession has become more 
 lasting (5'). A pohtical system like ours would be 
 inconsistent with an elective kingship. An elective 
 King could not be trusted simply to reign ; he 
 would assuredly govern, or try to govern. We 
 need not suppose that he would attempt any 
 breaches of the written Law. But those powers 
 which the written Law attaches to the Crown he 
 would assuredly try to exercise according to his 
 own personal views of what was right and ex- 
 pedient. And he would assuredly be justified in so 
 doing. For the personal choice of a certain man 
 to be King would in all reason be held to imply 
 that he was personally fit for the work of govern- 
 ment. He would be a President or Prime Minister 
 chosen for life, one whom there would be no means 
 of removing from ofiice except by the most ex- 
 treme and most unusual exercise of the powers of 
 Parliament. There are states of society in which 
 an elective ^Monarchy is a better kind of govern- 
 ment than either a Commonwealth or an hereditary 
 j\lonarchy. But, under the present circumstances 
 of the civilized states of Europe and America, the 
 choice lies between the hereditarj- Monarchy and 
 the Commonwealth. The circumstances of our 
 history have made Kngland an hereditary Monarchy, 
 just as the circumstances of the history of Switzcr- 
 
HI.] 
 
 MODERN KINGSHIP. 
 
 157 
 
 land have made that country a Federal Common- 
 wealth. And no reasonable person will seek to 
 disturb an institution which, like other English in- 
 stitutions, has grown up because it was wanted (s-). 
 Our unwritten Constitution, which gives us an 
 hereditary Sovereign, but which requires his go- 
 vernment to be carried on by Ministers who are 
 practically chosen by the House of Commons, does 
 in effect attain the same objects which were sought 
 to be attained by the elective kingship of our fore- 
 fathers. Our system gives the State a personal 
 chief, a personal embodiment of the national being, 
 which draws to itself those feelings of personal 
 homage and personal duty which a large class of 
 mankind find it hard to look upon as due to the 
 more abstract ideas of Law and Commonwealth. 
 And, when the duties of constitutional royalty are 
 discharged as our own experience tells us that they 
 may be discharged, the feeling awakened is more 
 than a mere sentiment; it is a rational feeling of 
 genuine personal respect. But widely as the here- 
 ditary kingship of our latest times differs in out- 
 ward form from the hereditary kingship of our ear- 
 liest times, the two have points of likeness which are 
 not shared by kingship in the form which it took 
 in the ages between the two. In our earliest and 
 in our latest system, the King exists for the sake 
 
ijS GROWTH OF ENGLISH CONSTITUTIOy. [chap. 
 
 of the people ; in the intermediate times it some- 
 times seemed that the people existed for the sake 
 of the King. In our earhest and in our latest sys- 
 tem, the King is clothed with an office, the duties 
 of which are to be discharged for the common 
 eood of all. In the intermediate times it sometimes 
 seemed as if the King had been made master of a 
 possession which was to be enjoyed for his personal 
 pleasure and profit. In the intermediate times we 
 constantly hear of the rights and powers of the 
 Crown as something distinct from, and almost 
 hostile to, the common rights of the people. In 
 our earliest and in our latest times, the rights of 
 the Crown and the rights of the people are the 
 same ; for it is allowed that the powers of the 
 Crown arc to be exercised for the welfare of the 
 people by the advice and consent of the people or 
 their representatives. Without indulging in any 
 Utopian dreams, without picturing to ourselves the 
 England of a thousand years back as an earthly 
 paradise, the voice of sober history does assuredly 
 teach us that those distant times have really much 
 in common with our own, much in which we are 
 really nearer to them than to times which, in a 
 mere reckoning of years, are far less distant from 
 us. Thus it is that the cycle has come round, that 
 the days of foreign rule have been wiped out, and 
 
nr.] 
 
 RETURN TO ANCIENT IDEAS. 
 
 139 
 
 that England is England once again. Our present 
 Sovereign reigns by as good a right as Alfred or 
 Harold, for she reigns by the same right by which 
 they reigned, by the will of the people, embodied 
 in the Act of Parliament which made the crown of 
 Alfred and Harold hereditary in her ancestress. 
 And, reigning by the same right by which they 
 reigned, she reigns also for the same ends, for the 
 common good of the nation of which the Law has 
 made her the head. And we can wish nothing 
 better for her kingdom than that the Crown which 
 she so lawfully holds, which she has so worthily 
 worn among two generations of her people, she 
 may, like Nestor of old, continue to wear amid the 
 wcll-dcscrved affection of a third (53), 
 
NOTES. 
 
 CHAPTER T. 
 
 (i, p. 2.) What I say of Uri and the otlicr democratic 
 Cantons must not be misunderstood, as if I accepted all the 
 now exploded dreams which made out the IValdstiidte or 
 Forest Cantons to have had some special origin, and some 
 special independence, apart from the rest of Germany. The 
 researches of modern scholars have shown, not only that the 
 Forest Cantons were members of the Empire like their 
 neighbours, but that various lesser lords, spiritual and 
 temporal, held various rights within them. Their acquisi- 
 tion of perfect independence, even their deliverance from 
 other lords and promotion to the state of Reic]isiinmittclbar- 
 keit or immediate dependence on the Empire, was a work of 
 time. Thus Uri itself, or part of it, was granted in 853 by 
 Lewis the German to the Abbey of Nuns {F^raumiinster) in 
 Zurich, and it was not till 1231 that its independence of any 
 lord but the Emperor was formally acknowledged. But the 
 universal Supremacy of the Empire in no way interfered with 
 the internal constitution of any district, city, or principality ; 
 nor was such interference necessarily implied even in subjec- 
 tion to some intermediate lord. The rule of a female monas- 
 tery especially would be very light. And from the earliest 
 times we find both the men of Uri in general and the men 
 of particular parts of the district {fienieimkit, comiiiiiiics, or 
 
 M 
 
NOTES. 
 
 [chap. 
 
 parishes) spoken of as communities capable of acting together, 
 and even of treating with those who claimed to be their 
 masters. (" Nos inhabitantes Uroniam " appear in a deed of 
 955 as capable of making an agreement with the officer of 
 the Abbey at Zlirich.) All tliis is in no way peculiar to the 
 Forest Cantons ; it is no more than what we find everywhere ; 
 what is peculiar is that, whereas elsewhere the old local 
 communities gradually died out, in the Forest Cantons they 
 lived and flourished, and gained new rights and powers till 
 they grew into absolutely independent commonwealths. I 
 think therefore that I have a right to speak of the democracy 
 of Uri as immemorial. It is not immemorial in its fully 
 developed shape, but that fully developed shape grew step 
 by step out of earlier forms which are strictly immemorial 
 and common to the whole Teutonic race. 
 
 On the early history of the democratic Cantons, a subject 
 than which none has been more thoroughly misunderstood, I 
 am not able to point to any one trustworthy work in English. 
 Among the writings of Swiss scholars — shut up for the most 
 part from readers of other nations in the inaccessible 
 Transactions of local Societies — there is a vast literature on 
 the subject, of the whole of which I am far from pretending 
 to be master. But I may refer to the Essai sur I'Etat 
 des Personncs et la Condition des Terres datis le Pays d' Ury 
 au XIII' Siede, by the Baron Frederick de Gingins-la- 
 Sarraz, in the Ayrhiv fiir schiveizerisdu GeschicJite, i. 17 ; 
 to Dr. J. R. Burckhardt's Untersuchnnjj^en iiber die erste 
 Bev'dlkeriitig des Alpengebirgs in the same collection, iv. 3 ; to 
 the early chapters of the great work of Bluntschli, GeschicJite 
 des schweizcrischen Bundisreclites (Zurich, 1849), and of 
 Blumer's Staats- und RechtsgcscJiichte der schweizcriscJien 
 Deviokraticn (St. Gallen, 1850) ; to Dr. Alfons Huber, Die 
 Waldstaette (Innsbruck, 1861), and Dr. Wilhelm Vischer, 
 Die Sage von der Bc/reiung der WaUsiadte (Leipzig, 1S67). 
 
I] 
 
 NOTES. 
 
 Dr. H. von Liebenau, in Die Teil-Sa^e zu dem Jahre 1230, 
 takes a line of his own. The results of the whole inquiry 
 will be found in the most accessible form in M. Albert 
 Rillict's Les Origines de la Confederation Suisse (Geneve 
 et Bale, 1868). 
 
 (2, p. 3.) Individual Swiss mercenaries may doubtless still 
 be found in foreign armies, as Italy some years back knew to 
 her cost. But the Federal Constitution of 1848 altogether 
 swept away the system of military capitulations which used 
 to be publicly entered into by the Cantons. 
 
 (3, p. 4.) See Johannes von Miiller, Geschichte der schwei- 
 zerische Eidgenossenscha/t, Book v., c. I (vol. xvi. p. 25, of his 
 sdmmtliche Werke, Stuttgart und Tubingen, 1832, and the 
 note in vol. xxii. p. 14 ; or the French translation, vol. 
 viii. p. 35 : Paris and Geneva, 1840). The description in 
 Petcrman Etterlin's Chronicle, p. 204 (Basel, 1752,) is worth 
 quoting in the original. " Dann do der Hertzog von Burgunn 
 gesach den ziig den berg ab ziichcn, schein die sunn gerad in 
 sy, und glitzet als wie ein spiegel, des gclichen liiyet das horn 
 von Ury, ouch die harschorne von Lutzern, und was ein 
 solich toffcn, das des Hertzogen von Burgunn liit ein grusen 
 darab entpfiengent, und trattent hinder sich." 
 
 (4, p. 4.) The magistrates rode when I was present at the 
 Landesgemeinden of 1863 and 1864. I trust that so good 
 a custom has not passed away. 
 
 (5, p. 5.)' On the character and position of Phukion, see 
 Grote, xi. 382, xii. 481 ; and on the general question of the 
 alleged fickleness of the Athenian people, see iv. 496. 
 
 (6, p. 6.) Some years ago I went through all the elections 
 to the Bundesrath or Executive Council in Switzerland, and 
 found that in eighteen years it had only twice happened that 
 a member of the Council seeking re-election had failed to 
 
 M 2 
 
164 
 
 NO TES. 
 
 [chap. 
 
 obtain it. I therefore think that I was right in congratulating 
 a member of the Federal Council, whom I had the pleasure 
 of meeting last year, on being a member of the most per- 
 manent government in Europe. 
 
 [This w-as in 1871. The great question of the revision of 
 the Federal Constitution has since led to more than one case 
 of resignation of office, and of failure to obtain re-election, on 
 the part of members of the Federal Council. Such changes 
 must take place under every system when great constitutional 
 changes are at stake. But my general proposition remains 
 the same ; the position of a Swiss Federal Councillor is cer- 
 tainly more stable than the position even of an English 
 Minister, much more then than the position of a Minister in 
 some other European kingdoms and in some British colonies.] 
 
 (7, p. 6.) Under the so-called Helvetic Republic of 1798, 
 the Cantons ceased to be sovereign States, and became mere 
 divisions, like counties or departments. One of the earliest 
 provisions of this constitution abolishes the ancient demo- 
 cracies of the Forest Cantons. " Die Regierungsform, wenn 
 sie auch sollte verandert werden, soil allezeit einc repriisen- 
 tative Demokratie sein." (See the text in Bluntschli, ii. 305.) 
 The " reprasentative Demokratie " thus forced on these 
 ancient commonwealths by the sham democrats of Paris was 
 meant to exclude the pure democracy of Athens and Uri. 
 
 The Federal system was in some sort restored by the Act 
 of Mediation {Vcriiiiltliingsakie) of Napoleon Buonaparte, 
 when First Consul in 1803. See the text in Bluntschli, 
 ii. 322. 
 
 (8, p. 6.) Appenzcll, though its history had long been con- 
 nected with that of the Confederates, was not actually ad- 
 mitted as a Canton till December 15 13, being the youngest of 
 the thirteen Cantons which formed the Confederation down to 
 1 798. See Zellweger, CcscliicJite des appcnzcllisclicn Volkes, 
 
I.] 
 
 jVOT£S. 
 
 165 
 
 ii. 366, and the text in his Urkunden, ii. part 2, p. 481, or 
 in the older Appenzeller Chronick of Walser (Saint Gallen, 
 1740), 410, and the Act in his Anhan^, p. 18. The frontis- 
 piece of this volume contains a lively picture of a Landesge- 
 tneinde. In 1597 the Canton was divided into the two Half- 
 cantons of Aiisser-Rhoden, Protestant, and Iiiner-RJiodcn, 
 Catholic. See Zellweger, iii. part 2, p. 160 ; Walser, 553. 
 
 (9, p. 7.) On armed assemblies see Norman Conquest, 
 ii- 331- 
 
 (10, p. 9.) I perhaps need hardly insist on this point after 
 the references given in my first note ; but I find it constantly 
 needful to explain that there is no such thing as a Swiss 
 nation in any but a political sense. The Cantons were simply 
 members of the Empire which gradually won a greater 
 independence than their fellows. And the Forest Cantons, 
 and the German-speaking Swiss generally, do not even form 
 a distinct part of the German nation ; they are simply three 
 settlements of the Alemanni, just as the three divisions of 
 Lincolnshire are three settlements of the Angles. 
 
 (11, p. 9.) The earliest instance that T know of the use of 
 the word Englalandis in the Treaty with Olaf and Justin in 
 991. Its earliest use in the English Chronicles is in 1014. 
 See Norman Conquest, i. 78, 276, 605, 629. The oldest use 
 that I know of the name Yorkshire {Eofonvicsdr) is in 
 the Chronicles under 1065. See Norman Conquest, ii. 478, 
 Deira is, 6f course, as old as Gregory the Great's pun. 
 
 (12, p. 10.) The real history of English parishes has yet to 
 be worked out. In England the civil division, call it the mark 
 or anything else, which answers to the continental Gcmeiiide 
 or commune, has got thoroughly confounded with the ecclesi- 
 astical parish. Everywhere out of our island ihc parish is a 
 purely ecclesiastical division, and foreigners have some 
 
i66 
 
 NOTES. 
 
 [chap. 
 
 difficulty in understanding the civil action of an English par- 
 ish. That is to say, the Gemeinde has taken the ecclesiastical 
 name of parish, it has accepted an ecclesiastical chairman 
 in the person of the parish priest, and its assembly has taken 
 the name of an ecclesiastical building. Then, alongside both 
 of the civil Gemeinde and of the ecclesiastical parish which 
 has got hopelessly mixed up with it, the system of exemptions 
 (the EviHinitdtcn of the Germans) has given rise to the manor 
 or lordship, which has grown up alongside of the original 
 free community, and which has transferred to itself such 
 traces as remain of its ancient judicial powers. See Norman 
 Conquest, vol. v. 461. 
 
 (13, p. 10.) The nature of democracy is set forth by Perikles 
 in the Funeral Oration, Thucydides, ii. 37 : oVo^a ^ilv hia to 
 )iT) fs oXlyovs aXK' is ifXflovas oIksip drifioKparla KiKXrjTaL- fitr- 
 ecm fie Kara jj-ev tovs vofwvs Trpos to. tfita dia(f>opa Ttacri to Laov 
 Kara fie ttjv d^iwaiv cos enaaros ev evSoKifiei. It is Set 
 forth still more clearly by Athenagoras of Syracuse, vi. 39, 
 where the functions of different classes in a democracy are 
 clearly distinguished : eyoj fie ^ij/ii npara fiev dtjfj.ov ^ipirav 
 MvofidaOai, oXiyapx^lav fie p-^pos, CTreira (pvXaKas ptv dp'uTTOvs 
 eivai -xpr^pLaTiav rovf liKovalovs, ^ovkevcrai S uv ^ekTiina tovs 
 ^vveroi's, Kplvai S' tiv aKoiaavTas upiarra rois noWovs. Kai tuvto 
 ofioi'cijf Koi Kara pepr] Koi ^vpiravra iv drjpoKpaTia Icropoipfiv. 
 Here a distinct sphere is assigned both to wealth and to 
 special intelligence. Nearly the same division is drawn by 
 a writer who might by comparison be called aristocratic. 
 Isokrates (Areop. 29) holds that the management of public 
 affairs should be immediately in the hands of the men of 
 wealth and leisure, who should act as servants of the People, 
 the People itself being their master — or, as he does not 
 scruple to say, Tyrant — with full power of reward and punish- 
 ment : €K(lvoi difyvuKoTes >]aav cTt fei tov p.(v 8^pov wa-Ktp 
 
I] 
 
 A'OTES. 
 
 167 
 
 Thpawov KaBioTcivai ras apxas koi KoXd^eiv tovs e ^afiapn'wovras 
 Kai Kpivfiu TTfpl Twv ap.(j)L(rl3r]TOVfj.ev(ov, TovS Se <TXo\r]v I'lyeip 
 dvvaiitvovf KOI fflov iKavliv KeKTr]p.€vovs inifxeKeldOai Ta>v Kotvoiv 
 Sxrnep oiKfTas, koi h'lKaiovs fiiv ytvofxivovs liraivficrBai Koi arepyciv 
 TdvTTj Tij Tijxfi, KaKO)S 8e BioiKrjcravTas fir^defxias (rvyyvu)p.rfs Tvy)(d- 
 veiv, aXXu ratj fxeylarais (r^filais nepmnmiv. This he elsewhere 
 (Panath 166) calls democracy with a mixture of aristocracy — 
 not oligarchy (T171' hrffioKparlav ti)v apiaTOKpariq p.€fjLi.yp.evr]v). 
 
 The unfavourable meaning which is often attached to the 
 word democracy, when it does not arise from simple igno- 
 rance, probably arises from the use of the word by Aristotle. 
 He makes (Politics, iii. 7) three lawful forms of government, 
 kingship {^acriXda), aristocracy {dpiaroKpaTla), and what he 
 calls specially nokireia or cotiDiioniuealth. Of these he makes 
 three corruptions, tyranny, oligarchy, and democracy {jvpav 
 vU, oXiyapxta, SrjuoKpaTia), defining democracy to be a govern- 
 ment carried on for the special benefit of the poor (7rp6y to 
 avfi(f)(pov TO Twv arropcoti). In this there is something of a 
 philosopher's contempt for all popular go\ crnmcnt, and it is 
 certain that Aristotle's way of speaking is not that which is 
 usual in the Greek historians. Polybios, like Herodotus 
 and Thucydides, uses the word democracy in the eld honour- 
 able sense, and he takes (ii. 38) as his special type of demo- 
 cracy the constitution of the Achaian League, which certainly 
 had in it a strong clement of practical aristocracy (see History 
 of Federal Government, cap. v.) : la-rjyopias /cat napprjaias kqi 
 Kod "Xov drjuoKpaTias (WrjdtPrjs (rixTTTjjia Kai irpoalptcnv fl\iKpiV€cr- 
 repav ovk av tvpoi rtj t^s irapa rois 'Ax"iois VTrap\ov(rr}s. In 
 short, what Aristotle calls iToKiTtla Polybios calls drj/xoKpaTia ; 
 what Aristotle calls drjpoKparia Polybios calls oxKoKpaTia. 
 
 (14, p. II.) It follows that, when the commonwealth of 
 Florence disfranchised the whole of the noble families, it lost 
 its right to be called a democracy. Sec the passing of the 
 
i6S 
 
 N-QTES. 
 
 [chap. 
 
 Ordinance of Justice in Sismondi, Rdpubliques Italiennes, iv. 
 65 ; Chroniche di Giovanni, viii. i. 
 
 (15, p. 12.) On Slavery in England, see Norman Conquest, 
 i. 81, 333, 368, 432, iv. 385. For fuller accounts, see Kemble's 
 Saxons in England, i. 185 ; Zopfl, Geschichte de?- deutschcn 
 Rechtsinstitutc, 62. The three classes of nobles, common 
 freemen, and slaves cannot be better set forth than in the 
 Life of Saint Lebuin (Pertz, ii. 361): "Sunt denique ibi, 
 qui illorum lingua edlingi, sunt qui frilingi, sunt qui lassi 
 dicuntur, quod in Latina sonat lingua, nobiles, ingenuilcs, 
 atque serviles." 
 
 (16, p. 12.) On the Wite-\eoiu, the slave reduced to slaverj' 
 for his crimes, see Kemble, Saxons in England, i. 200. He 
 is mentioned several times in the laws of Ine, 24, 4C, 54, 
 where, as usual in the West-Saxon law-s, a distinction is 
 drawn between the English and the Welsh ivite-^coiv. The 
 second reference contains a provision for the case of a newly 
 enslaved \>eo'UJ who should be charged with a crime committed 
 before he was condemned to slavery. 
 
 (17, p. 14.) I wish to leave the details of Eastern matters 
 to Eastern scholars. But there are several places in the Old 
 Testament where we see something very much like a general 
 assembly, combined with distinctions of rank among its 
 members, and with the supremacy of a single chief over all. 
 
 (18, p. 15.) Iliad, XX. 4. 
 
 Zevy Se &c fxiara K(K€va( $(ovs ayoprjvSe KaXetrani 
 Kparbs c'/tt' OvXvixttoio TtoKvrrTv^nv' t] 6' I'lpa vraVrij 
 ^oirrjcranu KfXtvaf Aws npos bwfia vtfaOai. 
 Oi'Tf Tis o<jv IloTaixMV anf'tjv, vo(T(ji QKfavoio, 
 OvT Spa ^vix<f)d(i>v Tal t a\(Tfa KoXa Vfjxovrai, 
 Kai Trqyas iroTap-Qv, (cat TriVfo T:oii)evTa. 
 
NOTES. 
 
 169 
 
 Besides the presence of the Nymphs in the divine Mycel 
 Gemot, something might also be said about the important 
 position of Here, Athene, and other female members of the 
 inner council. 
 
 We find the mortal Assembly described at length in the 
 second book of the Iliad, and indeed by implication at the 
 very beginning of the first book. 
 
 C19, p. 15.) We hear the applause of the Assembly in i. 23 
 and ii. 333, and in the Trojan Assembly, xviii. 313. 
 
 (20, p. 16.) On the whole nature of the Homeric ayopi] see 
 Gladstone's Homer and the Homeric Age, iii. 14. Mr. 
 (Gladstone has, to my thinking, understood the spirit of the 
 old Greek polity much better than Mr. Grote. 
 
 (21, p. 16.) There is no need to go into any speculations as 
 to the early Roman Constitution, as to the origin of the dis- 
 tinction of palres undplcOs, or any of the other points about 
 which controversies have raged among scholars. The three 
 elements stand out in every version, legendary and historical. 
 In Livy, i. 8, Romulus first holds his general Assembly and 
 then chooses his .Senate. And in c. 26 we get the distinct 
 appeal from the King, or rather from the magistrates acting 
 by his authority, to an Assembly which, whatever might be 
 its constitution, is more popular than the Senate. 
 
 (22, p. 16.) It is hardly needful to sliow how the Roni.in 
 Consuls simply stepped into the place of the Kings. It is 
 possible, as some have thought, that the revolution threw 
 more power into patrician hands than before ; but at all events 
 the Senate and the Assembly go on just as before. 
 
 (23, p. 17.) Tacitus, de Moribus Germaniie, c. 7 — 13 : 
 •"Regcs ex nobilitate ; Duces ex virtute sumunt. Nec 
 Kcgibus infinita aut libera potestas ; et Duces cxcmplo 
 
170 
 
 XOTES. 
 
 [chap. 
 
 potius quam imperio : si prompti, si conspicui, si ante aciem 
 
 agant, admiratione prassunt De minoribus rebus 
 
 Principes consultant ; de majoribus omnes ; ita tamen ut ea 
 quoque quorum penes plebem arbitrium est apud Principes 
 
 pertractentur Ut turbse placuit, considunt armati. 
 
 Silentium per Sacerdotes, quibus turn et coercendi jus est, 
 imperatur. Mox Rex, vel Princeps, prout aetas cuique, prout 
 nobilitas, prout decus bellorum, prout facundia est audiuntur, 
 auctoritate suadendi magis quam jubendi potestate. Si 
 displicuit sententia, fremitu adspernantur ; sin placuit, fra- 
 meas concutiunt. Honoratissimum adsensus genus est, armis 
 laudare. Licet apud concilium adcusare quoque et discrimen 
 
 capitis intendere Eliguntur in iisdem conciliis et 
 
 Principes, qui jura per pagos vicosque reddant. Centeni 
 singulis ex plebe comites, consilium simul et auctoritas, 
 adsunt. Nihil autem neque publicas neque privata; rei 
 nisi armati agunt." 
 
 For a commentary, see Zopfl, Geschichte der deutschen 
 Rechtsinstitute, p. 94. See also Allen, Royal Prerogative, 
 12, 162. 
 
 (24, p. 19.) See Norman Conquest, i. 95. Tlie primitive 
 Constitution lasted longest at the other end of the Empire, 
 in Friesland. See Eichhorn, Deutsche Staats- und Rechtsge- 
 schichte, ii. 265, iii. 158. Zopfl, Geschichte der deutschen 
 Rechtsquellen, p. 154. 
 
 (25, p. 20.) Tot apxala ^6r\ Kpartiro} is an ecclesiastical 
 maxim : rightly understood, it is just as true in politics. 
 
 (26, p. 22.) See my papers on "the Origin of the English 
 Nation" and "the Alleged Permanence of Roman Civiliza- 
 tion in England" in Macmillan's Magazine, 1870. 
 
 (27, p. 24.) Sec Schmid, Gesetzc der Auffelsachsoi, on 
 tlie words n'calh and wybie. Enjle, Philology of the 
 
••] 
 
 NOTES. 
 
 171 
 
 English Tongue, 318. On the fact that the English settlers 
 brought their women with them, see Historical Essays, 
 p. 36. 
 
 (28, p. 26.) On Eorlas and Ceorlas I have said something 
 in the History of the Norman Conquest, i. 80. See the two 
 words in Schmid, and the references there given. 
 
 (29, p. 27.) On the Barons of Attinghausen, see Blumer, 
 Staats- unci Rechlsgeschichte dcr schweizerischen Demokra- 
 ticn, i. 122, 214, 272. 
 
 (30, p. 28.) I cannot at this moment lay my hand on my 
 authority for this curious, and probably m>thical, custom, 
 but it is equally good as an ilkistration any way. 
 
 (31, p. 29.) This custom is described by Diodoros, i. 70. 
 The priest first recounted the good deeds of the King, and 
 attributed to him all possible virtues ; then he invoked a curse 
 for whatever has been done wrongfully, absolving the King 
 from all blame and praying that the vengeance might fall on 
 his ministers who had suggested evil things (to Tf\fVTa'uiv 
 imep TOiV iiyvoovyavoiv apiiv eTToie'iTo, Tuv fxtv fiaviXea Tu>v tyKKrj 
 fiarcov ]^aipovjx(vos, (Is be Toiis {iTrr/peTovvras kol diSd^avrus ra 
 <f>av\a KoX rrjv ^\aj3rjv Koi rrfv Ttfioiplav d^icov a3ro(r(c^i//'at). He 
 wound up with some moral and religious advice. 
 
 (3-jP-3'-) Tacitus (Germ. 25) distinguishes "eiiegentes 
 quic regnantur" from others. And in 43 he speaks of "erga 
 Regcs obscquium" as characteristic of some particular tribes : 
 see Norman Conquest, i. 579. 
 
 (33i P- 32.) On the use of the words lialdoriiian and Ilcrc- 
 toga, see Norman Conquest, i. 581, and the references there 
 given. 
 
172 
 
 NOTES. 
 
 [chap. 
 
 (34, p. 32.) See Norman Conquest, i. 583, and the passages 
 in Kemble and Allen there referred to. 
 
 (35; P- 3--) See Kemble's Saxons in England, i. 152, and 
 Massmann's Ulfilas, 744. 
 
 (36, p. 32.) See the words driht, drihten in Bos\vorth"s 
 Anglo-Saxon Dictionary. 
 
 (37) P- 33-) To say nothing of other objections to this 
 derivation, its author must have fancied that ing and not end 
 was the ending of the Old-English participle. The mistake 
 is as old as Sir Thomas Smith. See his Commonwealth of 
 England, p. 12. 
 
 (38, p. 33.) See Norman Conquest, i. 583, and the passages 
 there quoted. I have altered the text somewhat from both 
 the earlier editions because of the remarks of Professor Max 
 Miiller in the later editions of the Science of Language, ii. 
 285. I am afraid of meddling with Sanscrit ; but certainly 
 an Englishman, looking only to his own language, could 
 hardly have doubted the derivation of cyning from cyn. But 
 it must be remembered that in any case the root is the same, 
 and the general idea the same. As one of the curiosities of 
 etymology, it is worth noticing that Mr. Wedgwood makes 
 the word " probably identical with Tartar chan." 
 
 (39) P- 34-) We read in the Chronicles, 449, how, on the 
 first Jutish landing in Kent, " heora heretogan wseron twegen 
 gebroSra Hengest and Horsa." It is only in 455, on the 
 death of Horsa, that "asfter pam Hengest feng to rice and 
 yEsc his sunu"; and in 488, seemingly on the death of 
 Hengest, " .i^^sc feng to rice and was xxiiii wir.tra Cantwara 
 cyning." So among the West-Saxons, in 495, " coman 
 twegen ealdormcn on Brytcne, Cerdic and Cynric his sunu.'' 
 It is only in 519 that we read "her Cerdic and Cynric West- 
 Saxena rice onfengun." 
 
I] 
 
 NOTES. 
 
 173 
 
 (40, p. 35.) The distinction between Kings and Jarls comes 
 out very strongly in the account of the battle of Ashdown 
 (/Escesdune) in the Chronicles in 871. The Danes "wasron 
 on twam gefylcum, on oprum waes Bagsecg and Healfdene, 
 }>a ha;"5cnan chit^as and on oSrum wasron l>a eorlas.^' It may 
 be marked that in the English army King ^thelred is set 
 against the Danish Kings, and his brother the ^theling 
 yElfred against the Jarls. So in the Song of Brunanburli 
 we read of the five Kings and seven Jarls who were slain. 
 
 We may mark that the Kings were young, as if they had 
 been chosen "ex nobilitate nothing is said of the age of 
 the Jarls, who were doubtless chosen " e.\ virtutc." 
 
 (41, p. 35.) I have quoted the passage from Becda about 
 the satraps in Norman Conquest, i. 579. The passage in the 
 Life of Saint Lebuin, quoted in note 1 5, also speaks of 
 "principes" as presiding over the several /iz;'-/ or Gmten, but 
 he speaks of no King or other common chief over the whole 
 country. And this is the more to be marked, as there was 
 a " generalc concilium " of the whole Old-Saxon nation, 
 formed, as wc arc told, of twelve chosen men from each Gau. 
 This looks like an early instance of representation, but it 
 should be remembered that we are here dealing with a 
 constitution strictly Federal. 
 
 In the like sort we find the rulers of the West-Cotlis at 
 the time of tlicir crossing the Danube spoken of as Judiccs. 
 Sec Ammianus, xxvii. 5, and the notes of Lindcnbrog and 
 Valcsius. So also Gibbon, c. xxv. (iv. 305, cd. Milman). So 
 Jordancs (26) speaks of "primates eorum, et duces, qui 
 rcgum vice illis praierant." Presently he calls Fredigcrn 
 " Golhorum regulus," like the stibnffult or umicr-cyningas 
 
 " Fife lagon 
 on tSaem campstede 
 ciningas geonge. 
 
 sweordum aswefede, 
 swilce seofonc eac 
 eorlas Anlafes." 
 
174 
 
 KOTES. 
 
 [chap. 
 
 of our own History. Presently in c. 28 Athanaric, the 
 successor of Fredigern, is pointedly called Rex. 
 On all this, see Allen, Royal Prerogative, 163, 
 
 (42, p. 36.) See Norman Conquest, i. 75, 580. 
 
 (43) P- 37-) The best instance in English history of the 
 process by which a kingdom changed into a province, by 
 going through the intermediate stage of a half-independent 
 Ealdormanship, is to be found in the history of South- 
 western Mercia under its Ealdorman yEthelred and the Lady 
 .(Ethelflaed, in the reigns of .<Elfred and Eadward the Elder. 
 See Norman Conquest, i. 563. 
 
 (44, p. 37.) See Norman Conquest, i. 39, 78. 
 
 (45, p. 38.) Iliad, ix. 160 : — 
 
 Koi fXo\ i7ro(Trr;rGj, Saaov (Baai'Kevrepos (ifit. 
 
 (46, p. 39.) The instances in which a great kingdom has 
 been broken up into a number of small states practically 
 independent, but owning a nominal superiority in the suc- 
 cessor of the original Sovereign, are not few. Jn the case of 
 the Empire I have found something to say about it in my 
 Historical Essays, 151, and in the case of the Caliphate in 
 my History and Conquests of the Saracens, 137. How the 
 same process took place with the Mogul Empire in India is 
 set forth by Lord Macaulay in his Essays on Lord Clive and 
 Warren Hastings. But he should not have compared the 
 great Mogul, with his nominal sovereignty, to "the most 
 helpless driveller among the later Carlovingians," a class 
 whom Sir Francis Palgrave has rescued from undeserved 
 contempt. Put the breaking up of the WestcTi Kingdom is 
 none the less an example of the same law. The most 
 remarkable thing is the way, or rather the three different 
 ways, in which the scattered members have been brought 
 together again in Germany, Italy, and France. 
 
1-1 
 
 XOTES. 
 
 175 
 
 This process of dismemberment, where a nominal supre- 
 macy is still kept by the original Sovereign, must be distin- 
 guished from that of falling back upon Dukes or Ealdormen 
 after a period of kingly rule. In this latter case it would 
 seem that no central sovereignty went on. 
 
 (47, p. 40.) At this time of day I suppose it is hardly 
 necessary to prove the elective character of Old-English 
 kingship. I have said what I have to say about it in Norman 
 Conquest, i. 106, 596. But I may quote one most remarkable 
 passage from the report made in 787 to Pope Hadrian the 
 First by George and Theophylact, his Legates in England 
 (Haddan and Stubbs, Councils and Ecclesiastical Docu- 
 ments, iii. 453). " Sanximus ut in ordinatione Regum nullus 
 pcrmittat pravorum praDvalere assensum : sed legitime Reges 
 a sacerdotibus et senioribus populi cligantur." One would 
 like to know who the " pravi " here denounced were. The 
 passage sounds very like a narrowing of the franchise, or 
 some other interference with freedom of election ; but in any 
 case it bears witness to the elective character of our ancient 
 kingship, and to the general popular character of the con- 
 stitution. 
 
 (48, p. 40.) I have described the powers of the Witan, as I 
 understand them and as they were understood by Mr. 
 Kemble, at vol. i. p. 108 of the History of the Norman Con- 
 quest and in some of the Appendices to that volume. With 
 regard to the powers of the Witan, I find no difference 
 between my own views and those of Professor Stubbs in the 
 Introductory Sketch to his Select Charters (p. 11), where the 
 relations between the King and the Witan, and the general 
 character of our ancient constitution, arc set forth with 
 wonderful power and clearness. But I find Mr. Stubbs and 
 myself differing altogether as to the constitution of the 
 Witcnagcmot. I look upon it as an Assembly of the whole 
 
176 
 
 NOTES. 
 
 [chap. 
 
 kingdom, after the type of the smaller assemblies of the shire 
 and other lesser divisions. Mr. Stubbs fully admits the popu- 
 lar character of the smaller assemblies, but denies any such 
 character to the national gathering. It is dangerous to set 
 oneself up against the greatest master of English consti- 
 tutional history, but I must ask the reader to weigh what I 
 say in note Q in the Appendix to my first volume. 
 
 [I can now refer the reader to the further discussion of 
 these points in the first volume of Mr. Stubbs' Constitutional 
 History, and in the chapter on the Political Results of the 
 Norman Conquest in my own fifth volume. I thinlv that I 
 may say that the difference between the Professor and myself 
 is wholly a difference in our way of looking at the theoretical 
 constitution of the Assembly. I can see no difference between 
 us as to its practical constitution and practical working.] 
 
 (49, p. 41.) I have collected some of the instances of 
 deposition in Northumberland in the note following that on 
 the constitution of the Witenagemdt. (Norman Conquest, i. 
 593.) It is not at all unlikely that the report of George and 
 Theophylact quoted above may have a special reference to 
 the frequent changes among the Northumbrian Kings. 
 
 (50, p. 41.) I have mentioned all the instances at vol. i. p. 
 ICS of the Norman Conquest : Sigeberht, .(Ethelred, Hartha- 
 cnut, Edward the Second, Richard the Second, James the 
 Second. It is remarkable that nearly all are the second of 
 their respective names ; for, besides yEthelrcd, Edward, 
 Richard, and James, Harthacnut might fairly be called Cnut 
 the Second. 
 
 (51, p. 42.) Tacitus, De Moribus Germanijc, 13, 14: — "Ncc 
 rubor inter comites adspici. Gradus quinetiam et ipse comi- 
 tatus habet, judicio ejus quem sectantur ; magnaque et 
 comitum .-emulatio quibus primus apud Principcm suum 
 
NOTES. 
 
 «77 
 
 locus ; et Principum cui plurimi et acerrimi comites 
 
 Quum ventum in aciem, turpe Principi virtute vinci, turpe 
 comitatui virtutem Principis non adasquare. Jam vero in- 
 fame in omnem vitam ac probrosum, superstitem Principi 
 suo ex acie recessisse. Ilium defendere, tueri, sua quoque 
 fortia facta glorije ejus adsignare, pra;cipuum sacramentum 
 est. Principes pro victoria pugnant ; comites pro Principe." 
 See Allen, Royal Prerogative, 142. 
 
 (52, p. 43.) The original text of the Song of Maidon will 
 be found in Thorpe's Analecta Anglo-Saxonica. My extracts 
 are made from the modern English version which I attempted 
 in my Old-English History, p. 192. I went on the principle 
 of altering the Old-English text no more than was actually 
 necessary to make it intelligible. When a word has alto- 
 gether dropped out of our modern language, I have of course 
 changed it ; when a word is still in use, in however different 
 a sense, I have kept it. Many words which were anciently 
 used in a physical sense are now used only metaphori- 
 cally; thus "cringe" is used in one of the extracts in its 
 primary meaning of bowing or falling down, and therefore 
 of dying. 
 
 (53, p. 47.) The history of the Roman clicntship is another 
 of those points on which legend and history and ingenious 
 modern speculation all come to much the same, as far as 
 our present purpose is concerned. Whether the clients were 
 the same as the ph'bs or not, at any rate no patricians entered 
 into the client relation, and this at once supplies the contrast 
 with Teutonic institutions. 
 
 (54, p. 47.) The title of (/(3w/;/.vj, implying a masterof slaves, 
 was always refused by the early Emperors. This is recorded of 
 Augustus by Suetonius (Aug. 53) and Dion (Iv. 12), and still 
 more distinctly of Tiberius (Suetonius, Tib. 27 ; Dion, Ivii. 8). 
 
 N 
 
178 
 
 NOTES. 
 
 [chap. 
 
 Tiberius also refused the title of Iiiiperator, except in its 
 strictly military sense : ovre yap h«rna-n]v kavrov rois tXev- 
 6tpoii ovre avTOKpoTopa irKrjv rots (TTpaTia)Tais KoXtiv t(j)L(i. 
 Caius is said (Aurelius Victor, Cjes. xxxix. 4) to have been 
 called doiniims, and there is no doubt about Domitian 
 CSuetonius, Dom. 13; Dion, Ixvii. 13, where see Reimar's 
 Note). Pliny in his letters constantly addresses Trajan as 
 doinimts ; yet in his Panegj-ric (45) he draws the marked 
 distinction : " Scis, ut sunt diversa natura dominatio et 
 principatus, ita non aliis esse principem gratiorcm quam 
 qui maxime dominum graventur." This marks the return 
 to older feelings and customs under Trajan. The final and 
 formal establishment of the title seems to have come in with 
 the introduction of Eastern ceremonies under Diocletian (see 
 the passage in Aurelius Victor already referred to). It is 
 freely used by the later Panegyrists, as for instance Eumenius, 
 iv. 21, V. 13: " Domine Constanti," " Domine Maximiane, 
 Imperator asterne," and so forth. 
 
 (55, p. 47.) Vitellius (Tac. Hist. i. 58) was the first to 
 employ Roman knights in offices hitherto always filled by 
 freedmen ; but the system was not fully established till the 
 time of Hadrian (Spartianus, Hadrian, 22). 
 
 (56, p. 49). See Norman Conquest, i. 89, 5S7, and the pass- 
 ages here quoted. 
 
 (57, p. 49.) Both hlaford and hia-fdige {Lord and Lady) 
 are very puzzling words as to the origin of their later syllables. 
 It is enough for my purpose if the connexion of the first 
 syllable with hldf be allowed. Different as is the origin 
 of the two words. Idaford always transla'cs dcviinus. The 
 French seigneur., and the corresponding forms in Italian and 
 Spanish, come from the Latin senior, used as equivalent to 
 dominus. This is one of the large class of words which are 
 analogous to our EaUionnan. 
 
I] 
 
 NOTES. 
 
 179 
 
 (58, p. 49.) This is fully treated by Palgrave, English Com- 
 monwealth, i. 350, 495, 505. 
 
 (59, p. 50.) On the change from the alod, odal, or eSel, a 
 man's very own property, to the land held of a lord, see 
 Hallam, Middle Ages, i. 113. 
 
 (60, p. 52.) See Norman Conquest, i. 85 — 88. I have there 
 chiefly followed Mr. Kemble in his chapter on the Noble 
 by Service, Saxons in England, i. 162. 
 
 (61, p. 52.) See the whole history and meaning of the word 
 in the article ^egen in Schmid's Glossary. 
 
 (62, p. 52.) See Norman Conquest, i. 89. 
 
 (63, p. 55.) Barbour, Bruce, i. 224 : 
 
 "A! fredome is A noble thing." 
 
 So said Herodotus (v. 78) long before : 
 
 ij Icrqyopir} ojs t<m XPW" (tttovSoiop. 
 
 N 2 
 
NOTES. 
 
 [chap. 
 
 CHAPTER II. 
 
 (i, p. 57.) In the great poetical manifesto of the patriotic 
 party in Henry the Third's reign, printed in Wright's 
 Political Songs of England (Camden Society, 1839,) there 
 seems to be no demand whatever for new laws, but only for 
 the declaration and observance of the old. Thus the 
 passage which I have chosen for one of my mottoes runs on 
 thus : — 
 
 ** Igitur communitas regni consulatur ; 
 Et quid universitas sentiat sciatur, 
 Cui leges proprlae maxime sunt notse. 
 Nec ciincti provincise sic sunt idiotae, 
 Quin sciant plus casteris regni sui mores, 
 Quos relinquant posteris hii qui sunt priores. 
 Qui reguntur legibus magis ipsas sciunt ; 
 Quorum sunt in usibus plus periti fiinit ; 
 Et quia res agitur sua, plus curabunt, 
 Et quo pax adquiritur sibi procurabunt." 
 
 (2, p. 57.) On the renewal of the Laws of Eadward by 
 William, see Norman Conquest, iv. 324. Stubbs, Documents, 
 25. It should be marked that the Laws of Eadward were 
 again confirmed by Henry the First (see Stubbs, 90—99), 
 and, as the Great Charter grew out of the Charter of Henry 
 the First produced by Archbishop Stephen Langton in 12 13, 
 the descent of the Charter from the Laws of Eadward is very 
 simple. In the whole discussion the names of Eadward and 
 Henry are constantly joined together, and the Primate (see 
 Roger of Wendover, iii. 263,) distinctly says that he had 
 made John swear to renew the Laws of Eadward. " Audistis 
 quomodo, tempore quo apud Wintoniam Regem absolvi, 
 
II.] 
 
 NOTES. 
 
 i8i 
 
 ipsum jurare compulerim, quod leges iniquas destrueret et 
 leges bonas, videlicet leges Eadwardi, revocaret et in regno 
 faceret ab omnibus observari." It must be remembered that 
 the phrase of the Laws of Eadward or of any other King 
 does not really mean a code of laws of that King's drawing 
 up, but simply the way of- administering the Law, and the 
 general political condition, which existed in that King's 
 reign. This is all that would be meant by the renewal of the 
 Laws of Eadward in William's time. It simply meant that 
 William was to rule as his English predecessors had ruled 
 before him. But, by the time of John, men had no doubt 
 begun to look on the now canonized Eadward as a lawgiver, 
 and to fancy that there was an actual code of laws of his to 
 be put in force. 
 
 On the various confirmations of the Great Charter, see 
 Hallam, Middle Ages, ii. iii. 
 
 (3, p. 58.) Macaulay, ii. 660. " When they were told that 
 there was no precedent for declaring the throne vacant, they 
 produced from among the records of the Tower a roll of 
 parchment, near three hundred years old, on which, in quaint 
 characters and barbarous Latin, it was recorded that the 
 Estates of the Realm had declared vacant the throne of a 
 perfidious and tyrannical Plantagenet." See more at large 
 in the debate of the Conference between the Houses, ii. 645. 
 
 (4, p. 60.) See Kemble, Saxons in England, ii. 186 — 194. 
 This, it will be remembered, is admitted by Professor Stubbs. 
 See above, note 48 to Chapter I. 
 
 (5, p. 60.) See Kemble, ii. 199, 200, and compare page 194. 
 (6, p. 60.) I have collected these passages in my History of 
 the Norman Conquest, i. 591. 
 
 (7, p. 61.) On the acclamations of the Assembly, see note 
 19 to Chapter I. I suspect that in all early assemblies, and 
 
l82 
 
 NOTES. 
 
 [chap. 
 
 not in that of Sparta only, Kpivovai ^oij kcu ov ■^r'jcfxo (Thuc. 
 i. 87). We still retain the custom in the cry of " Aye " and 
 " No," from which the actual vote is a mere appeal, just like 
 the division ordered by Sthenelaidas when he professed not 
 to know on which side the shout was. 
 
 (8, p. 62.) See Norman Conquest, i. 100, and History of 
 Federal Government, i. 263. 
 
 (9, p. 63.) See Norman Conquest, iv. 694. In this case the 
 Chronicler, under the year 1086, distinguishes two classes in 
 the Assembly, " his witan and ealle >a landsittende men pe 
 ahtes waeron ofer call Engleland." These " landsittende men" 
 were evidently the forerunners of the " libere tenentes," 
 who, whether their holdings were great or small, kept their 
 place in the early Parliaments. See Hallam, ii. 140 — 146, 
 where will be found many passages showing the still abiding 
 traces of the popular constitution of the Assembly. 
 
 (10, p. 64.) The practice of summoning particular persons 
 can be traced up to very early times. See Kemble, ii. 202, for 
 instances in the reign of yEthelstan. On its use in later 
 times, see Hallam. ii. 254 — 260 ; and on the irregularity in 
 the way of summoning the spiritual peers, ii. 253. 
 
 The bearing of these precedents on the question of life 
 peerages will be seen by any one who goes through Sir T. E. 
 May's summary, Constitutional History, i. 291 — 298. 
 
 (11, p. 66 ) Sismondi, Histoire des Frangais, v. 289 : " Ce 
 roi, le plus absolu entre ceux qui ont porte la couronne de 
 France, le moins occupd du bien de scs peuples, le moins 
 consciencicux dans son observation des droits ctablis avant 
 lui, est cependant le restaurateur des assemblies populaircs 
 de la France, at I'auteur de la representation des communes 
 dans les (5tats gdnifraux." See Historical Essays, 45. 
 
II.] 
 
 NO TES. 
 
 «83 
 
 (i2, p. 67.) See the history of Stephen Martel in Sismondi, 
 Historie des Francais, vol. vi. capp. viii. ix., and the account 
 of the dominion of the Butchers, vii. 259, and more at iargc 
 in Thierry's History of the Tiers-Etat, cnpp. i. ni. 
 
 (13, p. 67.) The Parliament of P.-iris, though it had its use 
 as some small check on the mere despotism of the Crown, 
 can hardly come under the head of free institutions. France, 
 as France, under the old state of things, cannot be said to 
 have kept any free institutions at all ; the only traces of 
 freedom were to be found in the local Estates which still met 
 in several of the provinces. See De Tocquevillc, Ancien 
 Regime, 347. 
 
 (14, p. 6g.) The thirteenth century was the time when most 
 of the existing states and nations of Europe took something 
 like their present form and constitution. The great powers 
 which had hitherto, in name at least, divided the Christian 
 and Mahometan world, the Eastern and Western Empires 
 and the Eastern and Western Caliphates,, may now be looked 
 on as practically coming to an end. England, France, and 
 Spain began to take something like their present shape, and 
 to show the beginnings of the characteristic position and 
 policy of each. The chief languages of Western Europe 
 grew into something like their modern form. In short, the 
 'character of this age as a time of beginnings and endings 
 might be traced out in detail through the most part of 
 Europe arid Asia. 
 
 (15, p. 69.) Dr. Pauli does not scruple to give him this title 
 in his admirable monograph, ''^ Simon von Moii/fort Gnt/ 
 von Leicester, dcr Schbpfer des Hanses der Centeinen." Vtt 
 one element of the House of Commons, the Knights of the 
 Shire, had been growing up during the whole of the thirteenth 
 century, and the final and settled form of the House of 
 
NOTES. 
 
 [chap. 
 
 Commons was the work of Edward rather than of Simon. 
 It is therefore perhaps going too far to call Simon the 
 founder of the House of Commons, though he is undoubt- 
 edly the founder of one most important element in it, of the 
 element to which its modern character has been mainly 
 owing. The career of the Earl should be studied in Dr. 
 Pauli's work, and in Mr. Blaauw's "Barons' War." 
 
 (i6, p. 71.) 
 
 " Numquani libertas gratior exstat 
 Quam sub rege pio." — Claudian, ii. Cons. Stil. 114. 
 
 (17, p. 71.) Macaulay, i. 15. "England owes her escape 
 from such calamities to an event which her historians have 
 generally represented as disastrous. Her interest was so 
 directly opposed to the interest of her rulers that she had no 
 hope but in their errors and misfortunes. The talents and 
 even the virtues of her six first French Kings were a curse to 
 her. The follies and vices of the seventh were her salvation. 
 . . . England, which, since the battle of Hastings, had 
 been ruled generally by wise statesmen, always by brave 
 soldiers, fell under the dominion of a trifler and a coward. 
 From that moment her prospects brightened. John was 
 driven from Normandy. The Norman nobles were com- 
 pelled to make their election between the island and the 
 continent. Shut up by the sea with the people whom they 
 had hitherto oppressed and despised, they gradually came to 
 regard England as their country, and the English as their 
 countrymen. The two races so long hostile, soon found that 
 they had common interests and common enemies. Both 
 were alike aggrieved by the tyranny of a bad King. Both 
 were alike indignant at the favour shown by the court to the 
 natives of Poitou and Aquitainc. The great grandsons of 
 those who had fought under William and the great grandsons 
 of those who had fought under Harold began to draw neai 
 to eacli other in friendship ; and the first pledge of their 
 
II.] 
 
 NOTES. 
 
 185 
 
 reconciliation was the Great Charter, won by their united 
 exertions, and framed for their common benefit." 
 
 [After a more minute study of John's reign, I may say 
 that this account holds perfectly good, except in the charac- 
 ter which Lord Macaulay gives of John himself, and in the 
 words which seem to imply that the fusion of Norman and 
 English only began under John. John himself certainly was 
 very often a triller, but he was not a coward. No man 
 could act with greater courage and energy when he chose to 
 do so, and it is of some importance that as our liberties were 
 not won from an usurper, but from a lawful King, so they 
 were won from a King of no small natural powers, if his 
 moral degradation allowed him to make any good use of 
 them. John has, 1 think, been better judged by Mr. Green, 
 Short History of the English People, p. 118.] 
 
 (18, p. 72.) I have tried to work out the gradual character 
 of the transfer of lands and offices under William in various 
 parts of the fourth volume of my History of the Norman 
 Conquest ; see especially p. 22, et seqq. The popular notion 
 of a general scramble for everything gives a most false view 
 of William's whole character and position. 
 
 (19, p. 74.) See Norman Conquest, i. 176. 
 
 (20, p. 74.) This is distinctly asserted in the Dialogus de 
 Scaccario (i. 10), under Henry the Second : " Jam cohabi- 
 tantibus Anglicis et Normannis, et alterutrum uxores 
 ducentibus vel nubentibus, sic permixt:c sunt nationes, ut vix 
 discerni possit hodie, de libcris loquor, quis Anglicus quis 
 Normannus sit genere ; exccptis duntaxat ascriptiliis C|ui 
 villani dicuntur, quibus non est liberum obstantibus dominis 
 suis a sui staus conditione discedere." 
 
 (21, p. 74.) The Angevin family are commonly known as the 
 Plantagencts : but that name was never used as a surname 
 till tlie fifteenth century. The name is sometimes convenient, 
 
iS5 
 
 NOTES. 
 
 [chap. 
 
 but it is not a really correct description, like Tudor and 
 Stewart, both of which were real surnames, borne by the two 
 families before they came to the Crown. In the almanacks 
 the Angevins are called " The Saxon line restored," a name 
 which gives a false idea, though there can be no doubt that 
 Henry the Second was fully aware of the advantages to be 
 drawn from his remote female descent from the Old-English 
 Kings. The point to be borne in mind is that the acces- 
 sion of Henry is the beginning of a distinct dynasty which 
 could not be called either Norman or English in any but 
 the most indirect way. 
 
 (22, p. 75.) There is nothing in any of the writers of Henry 
 the Second's time to justify the popular notions about 
 "Normans and Saxons" as two distinct and hostile bodies. 
 The only writer of that day who seems to have thought ?it 
 all of such distinctions was Giraldus Cambrcnsis, who, as an 
 antiquary and philologer, and one who had taken upon him- 
 self to be the champion of an " oppressed nationality " in 
 another part of the island, was specially bound to be careful 
 about such matters. His speech makes the silence of every- 
 body else more emphatic. But even he does not talk about 
 " Normans and Saxons," a formula which begins with Robert 
 of Gloucester. Nor do we in Henry's reign hear any com- 
 plaints of favour being shown to absolute foreigners in 
 preference to either, though it is certain that many high 
 preferments, especially in the Church, were held by men who 
 were not English in either sense. The peculiar position of 
 Henry the Second was something like that of the Emperor 
 Charles the Fifth, that of a prince ruling over a great 
 number of distinct states, without being nationally identified 
 with any of them. Henry ruled over England, Normandy, 
 and Aquitaine, but he was neither English, Norman, nor 
 Gascon. 
 
II.] 
 
 NOTES. 
 
 (23, p. 75.) In the administration of Archbishop Hubert in 
 the later days of Richard, see Stubbs, Constitutional History, 
 i. 505. 
 
 (24, p. 75.) That is the greater, the continental, part of 
 the Duchy. The insular part of Normandy, the Channel 
 Islands, was not lost, and it still remains attached to the 
 English Crown, not as part of the United Kingdom, but as 
 a separate dependency. See Norman Conquest, i. 187. 
 
 (25, p. 77.) See Norman Conquest, i. 310, 367 ; and on the 
 appointment of Bishops and Abbots, i. 503, ii. 66, 571. 
 
 (26, p. 78.) See the Ordinance in Norman Conquest, iv. 
 392. Stubbs, Select Charters, 81. 
 
 (27, p. 78.) See Norman Conquest, iii. 317. 
 
 (28, p. 79.) It should be remembered that the clerical 
 immunities which were claimed in this age were by no means 
 confined to those whom we should now call clergymen, but 
 that they also took in that large class of persons who held 
 smaller ecclesiastical offices without being what we should 
 call in holy orders. The Church also claimed jurisdiction in 
 the causes of widows and orphans, and in various cases 
 where questions of perjury, breach of faith, and the like, were 
 concerned. Thus John Bishop of Poitiers writes to Arch- 
 bishop Thomas (Giles, Sanctus Thomas, vi. 238), complaining 
 that the King's officers had forbidden him to hear the causes 
 of widows and orphans, and also to hear causes in matters of 
 usury : " prohibentcs ne ad ciucrelas viduarum vcl orphan- 
 orum vel clcricorum aliquem parochianorum meorum in 
 causam trahcre pncsumerem super quacumque possessionc 
 immol)ili, donee ministerialcs regis, vel dominorum ad 
 quorum fcudum res controversiae pertineret, in facienda 
 justitia cis dcfccissent. Deindc nc super accusationc fccnoris 
 
iS8 
 
 NOTES. 
 
 [chap. 
 
 quemquam audirem." This gives a special force to the 
 acclamations with which Thomas was greeted on his return 
 as "the father of the orphans and the judge of the widows:" 
 "Videres mox pauperum turbam quae convenerat in occursum, 
 hos succinctos ut pra;venirent et patrem suum applicantem 
 exciperent, et bencdictionem praeriperent, alios vero humi se 
 humiliter prosternentes, ejulantes hos, plorantes illos pr£e 
 gaudio, et omnes conclamantes, Benedictus qui venit in 
 nomine Domini, pater orphanorum et judex viduarum ! et 
 pauperes quidem sic." Herbert of Bosham, Giles, Sanctus 
 Thomas, vii. 315, cf 148. See more in Historical Essays, 99. 
 
 (29, p. 79.) On the cruel punishments inflicted in the King's 
 courts Herbert of Bosham is very emphatic in more than one 
 passage. He pleads (vii. loi) as a merit of the Bishops' 
 courts that in them no mutilations were inflicted. Men were 
 punished there " absque omni mutiiatione vel deformatione 
 membrorum." But he by no means claims freedom from 
 mutilation as a mere clerical privilege ; he distinctly condemns 
 mutilation in any case, though on grounds rather of theology 
 than of humanity. " Adeo etiam cjuod ordinis privilegium 
 excludat cauterium : quam tamen pcenam communiter inter 
 homines etiam jus forense damnat : ne videlicet in homine 
 Dei imago deformetur" (vii. 105). In earlier times there 
 seems to have been no feeling against mutilation when the 
 sufferer was believed to be really guilty. A most curious 
 story illustrative of the barbarous jurisprudence of the time 
 will be found in Benedict's Miracula Sancti Thomas, 184. 
 
 (30, p. 79.) One of the Constitutions of Clarendon forbade 
 villains to be ordained without the consent of their lords. 
 " Filii rusticorum non debent ordinari absque assensu domini 
 de cujus terra nati dignoscuntur " (Stubbs, Select Charters, 
 134). On the principles of feudal law nothing can be said 
 against this, as the lord had a property in his villain which 
 
NOTES. 
 
 189 
 
 he would lose by the villain's ordination. The prohibition is 
 noticed in some remarkable lines of the earliest biographer 
 of Thomas, Garnier of Pont-Sainte-Maxence (La Vie de 
 Saint Thomas le Martyr, Paris, 1859, p. 89), where he 
 strongly asserts the equality of gentleman and villain before 
 God :— 
 
 " Fils i vilains ne fust en nul liu ordenez 
 Sanz I'otrei sun seigneur de cui terre il fu nez. 
 Et deus a sun sunise nus a tuz apelez ! 
 Rlielz valt fils a vilain qui est preux e senez. 
 Que ne feit gentilz hum failliz et debutez." 
 
 Thomas himself was not the son of a villain, but his birth 
 was such that the King could sneer at him as " plebeius 
 quidam clericus." 
 
 (31, p. 80.) We arc not inclined to find fault with such an 
 appointment as that of Stephen Langton ; still his forced 
 election at the bidding of Innocent was a distinct breach 
 of the rights of the King, of the Convent of Christ Church, 
 and of the English nation generally. See the account of 
 his election in Roger of Wendover, iii. 212 ; Lingard, ii. 
 314 ; Hook's Archbishops, ii. 668. 
 
 (32, p. 80.) See the Bulls and Letters by which Innocent 
 professed to annul the Great Charter, in Roger of Wendover, 
 iii. 323, 327 ; the excommunication of the Barons, in iii. 336; 
 and the suspension of the Archbishop, in iii. 340. 
 
 No Englishman need trouble himself with the frivolous 
 question whether Innocent condemned the Charter because 
 he disliked its contents, or only because he disliked the way 
 in which it had been won from the King. The one thing that 
 matters is that a Bishop of Rome should take on himself to 
 condemn the Charter of English freedom on any ground. 
 
 (33, p. 80.) There is a separate treatise on the Miracles of 
 Simon of Montfort, printed along with Rishangcr's Chronicle 
 by the Camden Society, i S40. 
 
NOTES. 
 
 [chap. 
 
 (34, p. 81.) I think I may safely say that the only royalist 
 chronicler of the reign of Henry the Third is Thomas 
 Wykes, the Austin Canon of Osney. There is also one 
 poem on the royalist side, to balance many on the side of 
 the Barons, among the Political Songs published by the 
 Camden Society, 1839, p. 128. 
 
 Letters to Earl Simon and his Countess Eleanor form 
 a considerable part of the letters of Robert Grosseteste, 
 published by Mr. Luard for the Master of the Rolls. 
 Matthew Paris also (879, Wats) speaks of him as "episcopus 
 Lincolniensis Robertas, cui comes tamquam patri confessori 
 exstitit familiarissimus." This however was in the earlier 
 part of Simon's career, before the war had broken out. The 
 share of Bishop Walter of Cantilupe, who was present at 
 Evesham and absolved the Earl and his followers, will 
 be found in most of the Chronicles of the time. It comes 
 out well in the riming Chronicle of Robert of Gloucester 
 (ii. 55S) :- 
 
 " \e bissop Water of Wurcetre asoiled horn alle pere 
 And prechedt horn, )>at hii adde of dej? Jic lasse fere." 
 
 This writer says of the battle of Evesham : — 
 
 " Suich was ]^e morJ>re of Eivcsham (vor bataile non it was)." 
 
 (35, p. Si.) This letter, addressed in 1247 to Pope Innocent 
 the Eourth, will be found in Matthew Paris (721, Wats). It 
 is written in the name of "universitas cleri et populi per pro- 
 vinciam Cantuariensem constituti," and it ends, " quia 
 communitas nostra sigillum non habet, prsesentes literas 
 signo communitatis civitatis LonJinensis vestrae sanctitati 
 mittimus consignatas." Another letter in the same form 
 follows to the Cardinals. There are two earlier letters in 
 1245 and 1246 (Matthew Paris, 666, 700), the former from 
 the " magnates et universitas regni Anglia:," the other in the 
 name of Richard Earl of Cornwall (afterwards King of the 
 
II.] 
 
 N'OTES. 
 
 191 
 
 Romans), Simon Earl of Leicester, and other Earls, " et alii 
 totius regiii Anglic Barones, proceres, et magnates, etnobiles 
 portuum maris habitatores, necnon et clerus et populus 
 universus." The distinct mention of the Cinque Ports, whose 
 representatives in Parliament are still called Barons — the 
 "nobiles" of the letter— should be noticed. 
 
 (36, p. 82.) The writer of the Gesta Stephani (3) distinctly 
 attributes the election of Stephen to the citizens of London: 
 " Majores igitur natu, consultuque quique provectiores, con- 
 cilium coegere, deque regni statu, pro arbitrio suo, utilia in 
 commune providcntes, ad regem eligendum unanimiter con- 
 spiravere." He then goes on with the details of the election. 
 He is borne out by the Chronicle 1135 : " Stephne de Blais 
 com to Lundene and te Lundenisce folc him underfeng;" 
 and by William of ALalmesbury, Historia Novella, i. n : "A 
 Londoniensibus et Wintoniensibus in Regem exceptus est." 
 So again when the Legate, Henry Bishop of Winchester, 
 holds a council for the election of the Empress Matilda, the 
 citizens of London were summoned, and it is distinctly said 
 that they held the rank of nobles or barons : " Londonienses 
 (qui sunt quasi optimates, pro magnitudine civitatis, in 
 Anglia)." " Londonienses, qui praecipui habebantur in 
 Anglia, sicut proceres " (Historia Novella, iii. 45, 46). All 
 this is exactly like the earlier elections of Kings before the 
 Conquest. The rights of the city also come out in Richard's 
 time, when the citizens join with Earl John and the Barons 
 in 1 191 in deposing the Chancellor, William Longchamp, 
 Bishop of Ely. See Benedict, Gesta Ricardi, ii. 213. 
 
 (37) P- ^3-) The words of the Charter, 12 — 14 (Stubbs, 290) 
 are : " Nullum scutagium vel auxilium ponatur in regno 
 nostro, nisi per commune consilium regni nostri, nisi ad 
 
 corpus nostrum redimcndum, etc Et ad habendum 
 
 commune consilium regni, dc auxilio assidendo alitcr quam 
 
192 
 
 NOTES. 
 
 [chap. 
 
 in tribus casibus praedictis, vel de scutagio assidendo, sum- 
 moneri faciemus archiepiscopos, episcopos, abbates, comites, 
 et majores barones, sigillatim perlitteras nostras ; et praeterea 
 faciemus summoneii in generali, per vicecomites et ballivos 
 nostros, omnes illos qui de nobis tenent in capite." This is 
 exactly lil<e tlie entry in the Chronicle (1123), describing the 
 summoning of a Witenagemdt by Henry the First : " Da 
 sone ))asraefter sende se kyng hise write ofer eal Englalande, 
 and bed hise biscopes and hise abbates and hise l)eignes 
 calle Jet hi scolden cumen to his gewitenemot on Candel- 
 messe deig to Gleawceastre him togeanes ; and hi swa 
 diden." 
 
 (38, p. 83.) These first ghmmerings of parliamentary re- 
 presentation were carefully traced out by Hallam (Middle 
 Ages, ii. 146 — 152). They can now be more fully studied in 
 the work of Professor Stubbs. [Yet more fully in the 
 fifteenth chapter of his Constitutional History, in the newly- 
 published second volume.] On the summons in 1213 of four 
 men for each shire besides " miUtes et barones" ("quatuor 
 discretos homines de comitatu tuo illuc venire facias "), the 
 Professor remarks (278 : " It is the first writ in which the 
 * four discreet men ' of the county appear as representatives ; 
 the first instance of the summoning of the folkmoot to a 
 general assembly by the machinery already used for judicial 
 purposes." 
 
 39, p. 84.) On this subject the eighth chapter of Sir Francis 
 Palgrave's English Commonwealth should be studied. 
 
 (40, p. 85.) For the whole career of Simon I must again 
 refer generally to Pauli and Blaauw. The great writ itself, 
 dated at Worcester, December 14th, 1264, will be found in 
 Rymer's Fcedera, i. 449. It has often been noticed how small 
 is the number of Ear's and other lay Barons, and how 
 
NOTES. 
 
 193 
 
 unusually large the number of churchmen, who are summoned 
 to this Parliament. The whole list will be found in Rymer. 
 The parts of the writ which concern us stand thus : 
 
 " Item mandatum est singulis vicecomitibus per Angliam ; 
 quod venire faciant duos milites de legalioribus, probioribus, 
 et discretioribus militibus singulorum comitatuum, ad Regem 
 London' in octab' pra;dictis, in forma supradicta. 
 
 " Item in forma praedicta scribitur civibus Ebor", civibus 
 Lincoln', et ca;teris burgis Anglias ; quod mittant in forma 
 praedicta duos de discretioribus, legalioribus, ct probioribus, 
 tam civibus, quam burgensibus suis. 
 
 " Item in forma pra:dicta mandatum est baronibus et 
 probis hominibus Quinque Portuum." 
 
 " This is often regarded as the origin of popular repre- 
 sentation : but it is not in any sense entitled to that praise. 
 The novelty was simply the assembling the representatives 
 of the towns in conjunction with those of the counties ; this 
 was now done for the first time for the purpose of thjL' 
 national council." Stubbs, 401. 
 
 (41, p. 86.) The account of this most remarkable trial, held 
 on June i ith, 1252, is given in a letter from Simon's intimate 
 friend the famous Franciscan Adam Marsh (dc Marisco) to 
 Bishop Robert Grossetcste. The Latin text is printed in 
 Mr. Brewer's Monumcnta Franciscana, p. 122, and there is 
 an English translation in the Appendix to Mrs. Green's Life 
 of Counters Eleanor, English Princesses, ii. 447. .Simon's 
 witnesses, knights and citizens, come " nnuiiti littcris 
 patentibus communitatis Burdegalcnsis, in qua quasi to- 
 tum robur Vasconi.'e ad distringendum hostilcs et fideles 
 protcgendum consistere dignoscitur," setting forth how good 
 Simon's government was in every way, and how those 
 who brought charges against him did so only because his 
 strict justice had put a check on their misdoings. We may 
 
 O 
 
194 
 
 NOTES. 
 
 [chap. 
 
 compare the words of the great poetical manifesto (Political 
 Songs, 76) : 
 
 ** Peductorem nominant S. atque fallacem. 
 Facta sed exaniinant probantque veracem.** 
 
 (42, p. 86.) For the Londoners at Lewes let us lake the 
 account of an enemy. Thomas Wykes (148) tells us how 
 the Earl set out, " glorians in virtute sua congregata baronum 
 multitudine copiosa, Londoniensium innumerabili agmine 
 circumcinctus, quia legitur stultorum infinitus est numerus." 
 Presently we read how the " Londoniensium innumera mul- 
 titudo, bellorum ignara " were put to flight by the Lord 
 Edward verj- much after the manner of Prince Rupert. 
 
 (43, p. 83.) On the religious reverence paid to Earl 
 Waltheof, see Norman Conquest, ii. 602. I have there 
 referred to the office of Thomas of Lancaster, which will be 
 found in Political Songs, 268. Some of the pieces are what 
 we should think most daring parodies of parts of the Church 
 Service, but we may be sure that what was intended was 
 reverence and not irreverence. There is another parody of 
 the same kind in honour of Earl Thomas, a little earlier back 
 in the volume, p. 258. It was a matter of course that 
 Thomas of Lancaster should be likened to Thomas of Can- 
 terbury. 
 
 " Gaude, Thoma, ducum decus, lucema Lancastriae, 
 Qui per necem imitaris Thomam Cantuariae ; 
 Ciijus caput conculcatur pacem ob ecclesiee, 
 Atque tuum detruncatur causa pacis Anglix." 
 
 (44, p. 88.) Let us take a Latin, a French, and an English 
 specimen of the poems in which Simon's death was lamented 
 and his intercession implored. 
 
 " Salve, Symon Montis Fortis, 
 Totius flos militia;, 
 Duras pccnas passus mortis. 
 
 Protector gentis Anglix. 
 Sunt de Sanctis inaudita 
 Cunctis passis in hac vita. 
 
XOTES. 
 
 Quemquam passum talia; 
 Manus, pedes, amputari. 
 Caput, corpus, \-ulnerari, 
 
 Abscidi virilia. 
 Sis pro nobis intercessor 
 Apud Deum, qui defensor 
 
 In terris exstiteras." — (Political Song"!, 124.) 
 
 The French poem which follows directly in the collection 
 is too long to copy in full. This is perhaps the most remark- 
 ahle stanza, in which we again find the comparison witii 
 Thomas of Canterbury : — 
 
 " Mes par sa mort, le cuens Mountfort conquist la victorie. 
 Come ly martyr de Caunterbyr, finist sa vie ; 
 Ne voleit pas li bon Thomas qe perist seinte Eglise, 
 Le cuens auxi se combati, e morust sauntz feyntise. 
 Ore est ocys la flur de pris, qe taunt savoit de guerre, 
 Ly qucns Moutfort, sa dure mort molt emplorra la terre." 
 
 In this poem there is not, as in the Latin one, any direct 
 prayer to the martyred Earl, but in the last stanza we read : — 
 
 " Sire Simoun ly prodhom, e sa compagnie, 
 En joie vont en ciel amount, en pardurable vie." 
 
 The only English piece on these wars belongs to an 
 earlier date, namely, the satirical poem against King Richard, 
 how the one English Augustus 
 
 " Makede him a castel of a mulne post : " 
 
 but we get verses on Simon's death in the Chronicle of 
 Robert of Gloucester (ii. 559) : — 
 
 " t, sir Simond wasaslawe. & is folk al to grounde, 
 More mur}>re are nas in so lute stounde. 
 Vor \m was wcrst Simond de Mountfort aslawe, alas I 
 & sir Henri is sone, ]>at so gentil knijt was. 
 
 & among alle ojjcre mcst rcu)'e it was ido, 
 
 |>at sir Simon )>e clde man dtmtmbred was .so "* 
 
 He then goes on with the details of the dismemberment, 
 of which a picture may be seen opposite p. 254 of Mr. 
 
 O 2 
 
196 
 
 NOTES. 
 
 [CHAr. 
 
 Blaauw's book, and then goes on with the lines which I have 
 before quoted : — 
 
 " Suich was )>e mor)>re of Eivesham fvor bataile non it was), 
 And ]?er wi)J Jesu Crist wel vuele ipaied was. 
 As he ssewede bitokninge grisiiche and gode. 
 As it vel of him sulue, }>o he deide on JJe rode, 
 )>oru al ]Je middelerd derk hede JJer was inou." 
 
 (45, p. 89.) On the occasional and irregular summoning of 
 the borough members between 1265 and 1295 see Hallam, 
 Middle Ages, ii. 160, 165, and more fully in Stubbs, Select 
 Charters, 420, 427, where the gradual developement of parlia- 
 mentary representation is treated as it has never been treated 
 before, with a full citation of the authorities. [Yet more 
 fully in the fifteenth chapter of the Constitutional History.] 
 The language in which the chroniclers speak of the consti- 
 tution of the early Parliaments of Edward is as vague as 
 that in which our ancient Gemots are described. Sometimes 
 they speak only of "proceres" and the like ; sometimes they 
 distinctly mention the popular element. Curiously enough, 
 the official language is sometimes more popular than that of 
 the annalists. Thus the Winchester Annals, recording the 
 Statute of Westminster in 1273, call the Assembly which 
 passed it a " communis convocatio omnium magnatuni 
 regni," though it incidentally implies the presence of other 
 persons, " quamplures de regno qui aliqua feoda de corona 
 regia tenuerunt." But the preamble of the Statute itself 
 records the " assentement des erceveskes, eveskes, abbes, 
 priurs, contes, barons, et la commu7imtte de la tere ileokes 
 somons." So in the later Parliament of the same year the 
 Annals speak only of the " communis consensus archiepisco- 
 porum, comitum, et baronum," while the official description is 
 " praelati, comites, barones, et alii de regno nostro." But in 
 an earlier Assembly, that held in 1273, before Edward had 
 come back to England, the same Winchester Annals tell us 
 
11.] 
 
 NOTES. 
 
 197 
 
 how " convenerunt archiepiscopi et episcopi, comites et 
 barones, et de quolibet cornifaiu quatuor milites et de qiialibet 
 civitate quatuor." This and the summons to the Parhament 
 of 1285, which sat in judgement on David of Wales (Stubbs, 
 453' 457)j seem the most distinct cases of borough re- 
 presentation earlier than 1295, since which time the sum- 
 moning of the borough members has gone on regularly. See 
 Stubbs, 473. Mr. Stubbs' remarks on the Assemblies of 
 " the transitionary period" in pp. 465, 469 should be speci- 
 ally studied. 
 
 (46, p. 89.) The history of the resistance of these two Earls 
 to King Edward, which led to the great Confirmation of the 
 Charters in 1297, will be found in all the histories of the 
 time, old and new. See also Stubbs, 431, 479. I feel no 
 difficulty in reconciling respect for Edward with respect for 
 the men who withstood him. The case is well put by Stubbs, 
 34> 35- [But in the Constitutional History, ii. 132, 133 
 the Professor does seem to me a little hard on the two 
 Earls.] 
 
 (47, p. 90.) The exact value of the document commonly 
 known as the statute " De Tallagio non concedendo " is 
 discussed by Professor Stubbs, p. 487. It is perhaps safest 
 to look on it, like many of the earlier collections of laws, not 
 indeed as an actual statute, but as good evidence of a princi- 
 ple which, from the time of the Confirmation of the Charters, 
 has been universally received. The words are — 
 
 " Nullum tallagium vcl auxilium [)er nos vcl h;credcs nostros 
 de cctcro in regno nostro imponatur seu Icvctur, sine voluntate 
 ct assensu communi archicpiscoporum, episcoporum et alio- 
 rum pra^latorum, comitum, baronum, militum, burgensium, et 
 aliorum liberorum hominum in regno nostro." This, it will 
 be seen, is the same provision which I have already quoted 
 (see above, Note 37) from the Great Chartcrof John, but which 
 
NOTES. 
 
 [chap. 
 
 was left out in the Charter in the form in which it was con- 
 firmed by Henry the Third. See Stubbs, 330, 332, 336. 
 
 (48, p. 91.) I have said this before in Historical Essays, 
 p. 41. On the strongly marked legal character of Edward's 
 age, and especially of Edward's own mind, see Stubbs, 417 
 [and, above all. Constitutional History, ii. 105, 157, 291]. 
 
 (49, p. 93.) The great statute of treason of 25 Edward the 
 Third (see the Revised Edition of the Statutes, i. 185) secures 
 the life of the King, his wife, and his eldest son, and the chastity 
 of his wife, his eldest daughter, and his eldest son's wife. But 
 the personal privilege goes no further. As the Law of England 
 knows no classes of men except peers and commoners, it follows 
 that the younger children of the King — the eldest is born Duke 
 of Cornwall — are, in strictness of speech, commoners, unless 
 they are personally raised to the peerage. I am not aware 
 that either case has ever arisen, but I conceive that there is 
 nothing to hinder a King's son, not being a peer, from voting 
 at an election or from being chosen to the House of Com- 
 mons, and I conceive that, if he committed a crime, he would 
 be tried by a jury. Mere precedence and titles have nothing 
 to do with the matter, though probably a good deal of con- 
 fusion arises from the very modern fashion — one might almost 
 say the modern vulgarism — of calling all the children of the 
 King or Queen " Princes " and " Princesses." As late as 
 the time of George the Second uncourtly Englishmen were 
 still found who eschewed the foreign innovation, and who 
 spoke of the Lady Caroline and the Lady Emily, as their 
 fathers had done before them. Another modern vulgarism 
 is that of using the word " royal"— " royal visit" "royal 
 marriage," and so forth — when there is no royalty in the case, 
 the person spoken of being a subject, perhaps a commoner. 
 
 (50, p. 95.) On the parliamentary position of the clergy see 
 Hallam, Middle Ages, ii. 263. And as far as the reign of 
 
II.] 
 
 NOTES. 
 
 199 
 
 Edward the First is concerned, see the series of summonses 
 in Stubbs, 442. 
 
 (51, p. 95.) On this important constitutional change, which 
 was made in 1664, without any Act of Parliament, but by 
 a mere verbal agreement between Archbishop Sheldon 
 and Lord Chancellor Clarendon, sec Kallam, Constitutional 
 History, ii. 405. 
 
 (52, p. 96.) This is true on the whole, especially at the 
 beginning of the institution of the States-General, though 
 there were also rolnriers who were the immediate burgesses 
 of the King. See Thierry, History of the Tiers Etat, i. 56 
 (Eng. trans.). It is in that work that the history of that 
 branch of the States-General should be studied. 
 
 (53, p. 97.) The question of one or two Chambers in an 
 ordinary monarchy or commonwealth is altogether different 
 from the same question under a Federal system. In England 
 or France the question between one or two Chambers in the 
 Legislature is simply a question in which of the two ways 
 the Legislature is likely to do its work best. But in a Federal 
 constitution, like that of Switzerland or the United States, 
 the two Chambers are absolutely necessary. The double 
 sovereignty, that of the whole nation and that of the inde- 
 pendent and equal States which have joined together to form 
 it, can be rightly represented only by having two Chambers, 
 one of them, the Nationalrath or House of Representatives, 
 directly representing the nation as such, and the other, the 
 Stdnderath or Senate, representing the separate sovereignty 
 of the Cantons. In the debates early in 1872 as to tl^e 
 revision of the .Swiss Federal Constitution, a proposal made 
 in the Nationalrath for the abolition of the Stdnderath was 
 thrown out by a large majority. 
 
 (54, p. 97.) On the old Constitution of Sweden, see Laing's 
 Tour in Sweden. 
 
20O 
 
 NOTES. 
 
 (55, p. 98.) This common mistake and its cause are fully- 
 explained by Hallam, Middle Ages, ii. 237 [and most fully 
 of all in Stubbs' Constitutional History, 163 — 194, where we 
 may see how near we were to having a fourth estate of 
 lawyers]. There is a curious reference to the number of the 
 estates in Roger North's Examen, 222, where it is said 
 that Titus Gates, "busy in saving the King's life, could dis- 
 pute learnedly against his authority, upon the foolish repub- 
 lican conceit that he was one of the three estates co-ordinate 
 with the rest." But those who have traced English Law to 
 its fountain-head, do not need any 'republican conceits' to 
 lead them to the great doctrine set forth in the second motto 
 in my title-page. 
 
 (56, p. 100.) " The two Houses had contended violently in 
 1675, concerning the appellate jurisdiction of the Lords ; 
 they had contended, with not less violence, in 1704, upon the 
 jurisdiction of the Commons in matters of election ; they 
 had quarrelled rudely, in 1770, while insisting upon the 
 exclusion of strangers. But upon general measures of public 
 policy their differences had been rare and unimportant." 
 May's Constitutional History, i. 307. The writer goes on to 
 show why differences between the two Houses on important 
 points have become more common in ver>- recent times. 
 
 (57, p. loi.) The share of the W'itan in early times in the 
 appointment of Bishops, Ealdormen, and other great officers, 
 need hardly be dwelled upon. For a debate in a Witenagemdt 
 of Eadward the Confessor on a question of peace or war, sec 
 Norman Conquest, ii. 90. f or the like under Henry the 
 Third, see the account in Matthew Paris, m the year 1242, 
 which will be found in Stubbs, 359. The state of the case 
 under Edward the Third is discussed by Hallam, Middle 
 Ages, ii. 184. See also May, ii. 86. But the most remark- 
 able passage of all is one in the great poetical manifesto 
 
n.] 
 
 NOTES. 
 
 201 
 
 which I have several times quoted : it is there (PoHtical 
 Songs, 96) made one of the charges against Henry the 
 Third that he wished to keep the appointment of the great 
 officers of state in his own hands. The passage is long, but 
 it is well worth quoting at length. 
 
 " Rex cum suis voluit ita liber esse ; 
 Et sic esse debuit, fuitque necesse 
 Aut esse desineret rex, privatus jure 
 Regis, nisi faceret quidquid vellet ; curae 
 Non esse magnatibus regni quos prarferret 
 Suis comitatibus, vel quibus conferret 
 Castrorum custodiam, vel quern exhiberc 
 Popvilo justitiam vellet, et habere 
 Regni canceilarium thesaurariumque. 
 Suum ad arbitrium voluit quemcumquef 
 Et consiliarios de quacumque gente, 
 Et ministros varios se pra;cipiente, 
 Non intromittentibus se de factis regis 
 Angliae baronibus, vim habente legis 
 Principis imperio, et quod imperaret 
 Suomet arbitrio singulos ligaret." 
 
 (58, p. loi.) Take for example the Act passed after Edward 
 the Fourth's success at Towton. Rot. Pari. v. 466. Among 
 other things, poor Henry the Sixth is not only branded as an 
 usurper, but is charged with personally stirring up the move- 
 ment in the North which led to the battle of Wakefield and 
 the death of Richard Duke of York. " The seid Henry 
 Usurpour, late called Kyng Henry the Sixt, contynuyng in 
 his olde rancour & malice, usyng the fraude & malicious 
 (lisceit & dissimulacion ayenst trouth & conscience, that 
 accorde not with the honoure of eny Cristcn Prynce, .... 
 with all subtill ymaginacions & disceitfuil wcyes & meanes 
 to hym possible, intended & covertely laboured, excited & 
 procured the fynal destruction, murdre & deth of the seid 
 Richard Due, and of his Sonnes, that is to sey, of cure seid 
 nowc Soverayne Lord Kyng Edward the fourth, then Erie of 
 Marche, & of the noble Lord Edmund Erie of Ruthlande ; 
 & for til' execution of his dampnal)lc it malicious purpose, 
 
202 
 
 NOTES. 
 
 [CIIAP. 
 
 by writing & other messages, mowed, excited, & stured 
 therunto the Duks of Excestr' & Somerset, & other lordes 
 beyng then in the North parties of this Reame." 
 
 (59, p. loi.) This statute was passed in 8 Henrj' VI. A.D. 
 1429. The complaint which it makes is well worth notice, 
 and shows the reactionary tendencies of the time. The 
 county elections had been made by " very great, outrageous, 
 and excessive number of people dwelling within the same 
 counties, of which most part was people of small substance, 
 and of no value, whereof every of them pretended a voice 
 equivalent, as to such elections to be made, with the most 
 worthy knights and esquires dwelling within the same 
 counties." To hinder "the manslaughters, riots, batteries, 
 and divisions," which were likely to take place — it is not said 
 that they had taken place — no one is to be allowed to vote 
 who has not " free land or tenement to the value of forty 
 shillings by the year at the least above all charges." It is 
 also provided that both the electors and the elected are to be 
 actually resident in the county. The original French is 
 worth quoting : — 
 
 " Item come lez eleccions dez Chivalers des Countecs 
 esluz a venir as parlements du Roi en plusours Countees 
 Dcngleterre, orde tarde ount este faitz par trop graunde & 
 excessive nombre dez gents demurrantz deinz mesmes les 
 Countes, dount la greindre partie estoit par gentz sinon de 
 petit avoir ou de null valu, dount chescun pretende davoir 
 voice equivalent quant a ticlx eleccions faire ove les plius 
 valantz chivalers ou esquiers demurrantz deins mesmes les 
 Countes ; dount homicides riotes bateries &; devisions entrc 
 les gentiles & autres gentz de mesmes les Countees verisem- 
 blablemcnt sourdront & seront, si covenable remedie ne soit 
 purveu en celle partie ; Notre seigneur le Roy considerant les 
 premisses ad pourveu «S: ordene par auctorite de cest 
 
II.] 
 
 NOTES. 
 
 203 
 
 parlement que les Chivalers des Countes deins le Roialme 
 Dengleterre, a esliers a venir a les parlementz en apres 
 atenirs, soient esluz en chescun Counte par gentz demur- 
 rantz & receantz en icelles dount chescun ait frank tene- 
 ment a le valu de xl s. par an al meins outre les reprises ; 
 & que ceux qui seront ensy esluz soient demurrantz & 
 receantz deins mesmes les Countes." Revised Statutes, i. 306. 
 
 The necessity of residence in the case of either electors or 
 representatives was repealed by 14 Geo. III. c. 58. 
 
 The statute goes on to give the Sheriff power to examine 
 the electors on oath as to the amount of their property. It 
 also gives the Judges of Assize a power foreshadowing that 
 of our present Election Judges, that of inquiring into false 
 returns made by the Sheriff. 
 
 Another statute of the same kind was passed later in 
 the same reign, 23 Henry VI. A.D. 1444-5, from which it 
 appears that the knights of the shire were ceasing to be in 
 all cases knights in the strict sense, and that it was beginning 
 to be found needful to fence them about with oligarchic 
 restrictions. 
 
 " Issint que lez Chivalers dez Counteez pour le parlement 
 en apr^s a esliers soient notablez Chivalers dez mesmez lez 
 Counteez pour lez queux ils serront issint esluz, ou autrement 
 tieix notablez Esquicrs gentils homez del Nativite dez mes- 
 mez lez Counteez comme soient ablez destre Chivalers ; et 
 null home destre tiel Chivaler que estoise en la degree de 
 vadlet et desouth." Revised Statutes, i. 346. 
 
 Every enactment of this kind bears witness to the growth 
 of the power of the Commons, and to the endeavours of the 
 people to make their representation really popular. 
 
 (60, p. 102.) Take for instance the account given by the 
 chronicler Hall (p. 253) of the election of Edward the 
 Fourth. 
 
204 
 
 NOTES. 
 
 [CHAr. 
 
 "After the lordes had considered and weyghed his title 
 and declaracion, they determined by authoritie of the sayd 
 counsaill, for as much as kyng Henry, contrary to his 
 othe, honor and agreement, had violated and infringed 
 the order taken and enacted in the last Parliament, and 
 also, because he was insufficient to rule the Realme, & 
 inutile to the common wealth, & publique profite of the 
 pore people, he was therefore by the aforesayed authoritie, 
 depriued & delected of all kyngly honor, & regall 
 souereigntie. And incontinent, Edward erle of Marche, 
 Sonne and heyre to Richard duke of Yorke, was by the 
 lordes in the sayd counsaill assembled, named, elected, & 
 admitted, for kyng & gouernour of the realme ; on which 
 day, the people of the erles parte, beyng in their muster 
 in sainct Ihons felde, & a great number of the substanciall 
 citezens there assembled, to behold their order : sodaynly the 
 lord Fawconbridge, which toke the musters, wisely declared to 
 the multitude, the offences & breaches of the late agremente 
 done & perpetrated by kyng Henry the vi. & demaunded 
 of the people, whether they woulde haue the sayd kyng 
 Henry to rule & reigne any lenger oucr them : To whome 
 they with a whole voyce, aunswered, nay, nay. Then he 
 asked them, if they would serue, loue, & obey the erle of 
 March as their earthly prince & soucrcign lord. To which 
 question they aunswered, yea, yea, crieng, king Edward, 
 
 with many great showtes and clappyng of handes 
 
 The erle, ... as kyng, rode to the church of sainct Paule, 
 and there offered. And after Te deum song, with great 
 solempnitie, he was conueyed to Wcstmynster, and there set 
 in the hawlc, with the scepter royall in his hand, where to 
 all the people which there in a great number were assembled, 
 his title and clayme to the croune of England, was declared 
 by, ii. maner of ways : the firste, as sonne and heyre to 
 duke Rich^.rd his father, right cnheritor to the same : the 
 
NOTES. 
 
 205 
 
 second, by aucthoritie ot Parliament and forfeiture committed 
 by, kyng Henry. Whereupon it was agayne demaunded of the 
 commons, if they would admitte, and take the sayd erle as 
 their prince and souereigne lord, which al with one voice 
 
 cried, yea, yea On the morrow he was proclaymed 
 
 kyng by the name of kyng Edward the. iiij. throughout 
 the citie." 
 
 This was in Lent 1461, before the battle of Towton. 
 Edward was crowned June 29th in the same year. The 
 same chronicler describes the election or acknowledgement 
 of Richard the Third, p. 372. 
 
 (61, p. 102.) One special sign of the advance of the power 
 of Parliament in the fifteent.h century was the practice of 
 bringing in bills in the form of Statutes ready made. 
 Hitherto the Acts of the Commons had taken the form of 
 petitions, and it was sometimes found that, after the Parlia- 
 ment had broken up, the petitions had been fraudulently 
 modified. They now brought in bills, which the King 
 accepted or rejected as they stood. See Hallam, Middle 
 Ages, ii. 222. 
 
 (62, p. 103.) Macaulay, i. 38. " The knight of the shire 
 was the connecting link between the baron and the shop- 
 keeper. On the same benches on which sate the goldsmiths, 
 drapers, and grocers who had been returned to Parliament by 
 the commercial towns, sate also members who, in any other 
 country, would have been called noblemen, hereditary lords 
 of manors, entitled to hold courts and to bear coat armour, 
 and able to trace back an honourable descent through many 
 generations. Some of them were younger sons and brothers 
 of great lords. Others could boast even of royal blood. At 
 length the eldest son of an Earl of Bedford, called in courtesy 
 by the second title of his father, offered himself as a 
 candidate for a seat in the House of Commons, and his 
 
206 
 
 NOTES. 
 
 [chat. 
 
 example was followed by others. Seated in that house, the 
 heirs of the grandees of the realm naturally became as 
 zealous for its privileges as any of the humble burgesses 
 with whom they were mingled." 
 
 Hallam remarks (ii. 250) that it is in the reign of Edward 
 the Fourth that we first find borough members bearing the 
 title of Esquire, and he goes on to refer to the Paston 
 Letters as showing how important a seat in Parliament was 
 then held, and as showing also the undue influences which 
 were already brought to bear upon the electors. Since 
 Hallam's time, the authenticity of the Paston Letters has 
 been called in question but it has, I think, been fully 
 established. Some of the entries are very curious indeed. 
 In one (i. 96), without any date of the year, the Duchess of 
 Norfolk writes to John Paston, Esquire, to use his influence 
 at a county election on behalf of some creatures of the 
 Duke's : " It is thought right necessarie for divers causes J)' 
 my Lord have at this tyme in the p'lement suche p'sones as 
 longe unto him and be of his menyall S'vaunts wherein we 
 conceyve yC good will and diligence shal be right expedient." 
 The persons to be thus chosen for the convenience of the 
 Duke are described as " our right wel-belovid Cossin and 
 S'vaunts John Howard and Syr Roger Chambirlayn." This 
 is followed by a letter from the Earl of Oxford in 1455, much 
 to the same effect. In ii. 98, we have a letter addressed to 
 the Bailiff of Maldon, recommending the election of Sir 
 John Paston on behalf of a certain great lady not named. 
 The letter is worth giving in full. 
 
 " Ryght trusty frend I comand me to yow preyig yow to 
 call to yo' mynd that lyek as ye and I comonyd of it were 
 necessary for my Lady and you all hyr Scrunts and teiints to 
 have thys p'lement as for on of the Burgeys of the towne of 
 Maldon syche a man of worthep and of wytt as vver to- 
 wardys my seyd Lady and also syche on as is in favor of the 
 
u.] 
 
 NOTES. 
 
 207 
 
 Kyng and of the Lords of hys consayll nyghe abought hys 
 p'sone. Sertyfyig yow that my seid Lady for her parte and 
 syche as be of hyr consayll be most agreeabyll that bothe ye 
 and all syche as be hyr fermors and teiintys and wellwyllers 
 shold gave your voyse to a worchepfull knyght and on' of my 
 Ladys consayll S' John Paston whychc standys gretly in 
 favore w' my Lord Chamberleyn and what my seyd Lord 
 Chamberleyn may do w' the Kyng and w' all the Lordys of 
 Inglond I trowe it be not unknowyn to you most of eny on 
 man alyvc. Wherefor by the mecnys of the seyd John 
 Paston to my seyd Lord Chamberleyn bothe my Lady and ye 
 of the towne kowd not have a meeter man to be for yow in 
 the perlement to have yo'' needys sped at all seasons. Where- 
 for I prey yow labor all syche as be my Ladys seruntts tennts 
 and wellwyllers to geve ther voyseys to the seyd John 
 Paston and that ye fayle not to sped my Ladys intent in 
 thys mater as ye entend to do hyr as gret a plesur as if ye 
 gave hyr an C" f 100/.]. And God have yow in hys kepig. 
 VVrctyn at Fysheley the xx day of Septebyr. — J. Ar- 
 
 BLASTER." 
 
 (63, p. 103.) On the effects of the reign of Charles the Fifth 
 in Spain and his overthrow of the liberties of Castile, see the 
 general view in Robertson, iii. 434, though in his narrative 
 (ii. 186) he glorifies the King's clemency. See also the first 
 chapter of the sixth book of Prcscott's Philip the Second, 
 and on the suppression of the constitution of Aragon by 
 Philip, Watson, Philip the Second, iii. 223. 
 
 The last meeting of the French States-General before the 
 final meeting in 1789 was that in 1614, during the minority 
 of Lewis the Thirteenth. See Sismondi, xiii. 342. 
 
 (64, p. 106.) The legal character of William's despotism I 
 have tried to set forth almost throughout the whole of my 
 fourth volume. See especially pp. 8, 617; but it is plain to 
 
208 
 
 NOTES. 
 
 [chap. 
 
 everyone who has the slightest knowledge of Domesday. 
 Nothing can show more utter ignorance of the real character 
 of the man and his times than the idea of William being a 
 mere "rude man of war," as 1 have seen him called. 
 
 (65, p. 107.) On the true aspect of the reign of Henry the 
 Eighth I have said something in the Fortnightly Review, 
 September, 1871. 
 
 (66, p. 107.) Both these forms of undue influence on the 
 part of the Crown are set forth by Hallam, Constitutional 
 History, i. 45, ii. 203. " It will not be pretended," he says, 
 " that the wretched villages, which corruption and perjury 
 still hardly keep from famine [this was written before the 
 Reform Bill, in 1827], were seats of commerce and industry 
 in the sixteenth century. But the county of Cornwall was 
 more immediately subject to a coercive influence, througii 
 the indefinite and oppressive jurisdiction of the stannary 
 court. Similar motives, if we could discover the secrets 
 of those governments, doubtless operated in most other 
 cases." 
 
 In the same page the historian, speaking of the different 
 boroughs and counties which received the franchise in the 
 si.xteenth century, says, " It might be possible to trace the 
 reason why the county of Durham was passed over." And 
 he suggests, " The attachment of those northern parts to 
 popery seems as likely as any other." The reason for the 
 omission of Durham was doubtless that the Bishoprick 
 had not wholly lost the character of a separate principality. 
 It was under Charles the Second that Durham city and 
 county, as well as Newark, first sent members to Parlia- 
 ment. Durham was enfranchised by Act of Parliament, as 
 Chester city and county — hitherto kept distinct as being a 
 Palatinate— -were by 34 & 35 Hen. VIII. c. 13. (Revised 
 Statutes, i. 522.) Newark was enfranchised by a Royal 
 
11.] 
 
 NOTES. 
 
 209 
 
 Charter, the List case of that kind of exercise of the pre- 
 rogative. HuUam, ii. 204. 
 
 (67, p. 108.) I do not know what was the exact state of Old 
 Sarum in 1265 or in 1295 ; but earlier in the thirteenth century 
 it was still the chief dwelling-place both of the Earl and of 
 the Bishop. But in the reign of Edward the Third it had so 
 greatly decayed that the stones of the Cathedral were used 
 for the completion of the new one which had arisen in 
 the plain. 
 
 (68, p, 108.) On the relations between Queen Elizabeth 
 and her Parliaments, and especially for the bold bearing of 
 the two Wentworths, Peter and Paul, see the fifth chapter 
 of Hallam's Constitutional History, largely grounded on 
 the Journals of Sir Simonds U'Ewes. The frontispiece to 
 D'Ewes' book (London, 1682) gives a lively picture of a 
 Parliament of those days. 
 
 (69, p. 109.) On the relations between the Crown and the 
 House of Commons under James the First, see the sixth 
 chapter of Hallam's Constitutional History, and tho fifth 
 chapter of Gardner's History of England from 1603 to i6i6. 
 
 P 
 
2IO 
 
 NOTES. 
 
 [chap. 
 
 CHAPTER III. 
 
 (t, p. 115.) This was the famous motion made by Sir 
 Robert Peel against the Ministry of Lord Melbourne, and 
 carried by a majority of one, June 4, i84r. See May's 
 Constitutional History, i. 158. Irving's Annals of our Times, 
 86. 
 
 (2, p. 116.) This of course leaves to the Ministry the power 
 of appealing to the country by a dissolution of Parliament ; 
 but, if the new Parliament also declares against them, it is 
 plain that they have nothing to do but to resign office. In 
 the case of 1841 Lord Melbourne dissolved Parliament, and, 
 on the meeting of the new Parliament, an amendment to the 
 address was carried by a majority of ninety-one, August 28, 
 1841. The Ministry therefore resigned. 
 
 p. 1 19.) This is well set forth by Sir John Fortescuc, 
 De Laudibus Legum Anglias, cap. 36 : " Neque Rex ibidem, 
 per se aut ministros suos, tallegia, subsidia, aut quajvis onera 
 alia, imponit legiis suis, aut leges eorum mutat, vel novas 
 condit, sine concessionc vcl assensu totius regni sui in parlia- 
 mento suo expresso." 
 
 (4, p. 119.) How very recent the establishment of these 
 principles is will be seen by anyone who studies the history 
 of the reign of George the Third in the work of Sir T. E. 
 May. Mr. Pitt, as is well known, kept office in defiance of 
 repeated votes of the House of Commons, and at last, by a 
 
HI.] 
 
 NO TES. 
 
 211 
 
 dissolution at a well-chosen moment, showed that the country 
 was on his side. Such conduct would not be deemed consti- 
 tutional now, but the wide difference between the constitution 
 of the House of Commons then and now should be borne in 
 mind. 
 
 (5, p. 119.) Though the command of the Sovereign would 
 be no excuse for any illegal act, and though the advisers of 
 any illegal act are themselves responsible for it, yet there 
 would seem to be no way provided for punishing an illegal 
 act done by the Sovereign in his own person. The Sovereign 
 may therefore be said to be personally irresponsible. 
 
 (6, p. 121.) See Macaulay, iv. 435. It should not be for- 
 gotten that writers like Blackstonc and De Lolme say nothing 
 about the Cabinet. Serjeant Stephen supplies the omission, 
 ii. 447. 
 
 (7, p. 121.) The lowly outward position of the really ruling 
 assembly comes out in some degree at the opening of every 
 session of Parliament. But it is far more marked in the 
 grotesque, and probably antiquated, ceremonies of a Con- 
 fercace of the two Houses. This comes out most curiously 
 of all in the Conference between the two Houses of the 
 Convention in 1688. Sec Macaulay, ii. 660. 
 
 f8, p. 122.) See Note 56, Chapter ii. 
 
 (9, p. 123.) See Macaulay, iv. 437. 
 
 (10, p. 124.) "Ministers" or "Ministry" v.-cre the words 
 always used at the time of the Reform Bill in 1831-1832. It 
 would be curious to trace at what time the present mode of 
 speech came into vogue, either in parliamentary debates or in 
 common speech. 
 
 Another still later change marks a step toward the 
 
 P 2 
 
212 
 
 JVOTES. 
 
 [chap. 
 
 recognition of the Cabinet. It has long been held that a Secre- 
 tary of State must always accompany the Sovereign even- 
 where. It is now beginning to be held that any member of the 
 Cabinet will do as well as a Secretary of State. But if any 
 member of the Cabinet, why not any Privy Councillor? 
 
 (II, p. 126.) In Febniary 1854 Mr. Cayley moved f.T a 
 " Select Committee to consider the duties of the Member 
 leading the Government business in this House, and the 
 expediency of attaching office and salary thereto." The 
 motion was withdrawn, after being opposed by Sir Charles 
 Wood (now Viscount Halifax), Mr. Walpole, and Lord John 
 Russell (now Earl Russell). Sir Charles Wood described 
 the post of Leader of the House as " an office that does not 
 exist, and the duties of which cannot be defined." Mr. 
 Walpole spoke of it as a " position totally unknown to the 
 constitution of the country." Yet I presume that everybody 
 practically knew that Lord John Russell was Leader of the 
 House, tho'igh assuredly no one could have given a legal 
 definition of his position. A discussion then followed between 
 Mr. Walpole and Lord John Russell on the nature of minis- 
 terial responsibility. Mr. Walpole said that " members were 
 apt to talk gravely of ministerial responsibility ; but responsi- 
 bility there is none, except by virtue of the office that a 
 Minister holds, or possibly by the fact of his being a Privy 
 Councillor. A IMinister is responsible for the acts done by 
 him ; a Privy Covmcillor for advice given by him in that 
 capacity. Until the reign of Charles the Second, Privy 
 Councillors always signed the advice they gave ; and to this 
 day the Cabinet is not a body recognized by law. As a Privy 
 Councillor, a person is under little or no responsibility for the 
 acts advised by him, on account of the difficulty of proof." 
 Lord John Russell "asked the House to pause before it gave 
 assent to the constitutional doctrines laid down by Mr. 
 
III.] 
 
 NOTES. 
 
 213 
 
 Walpolc. He unduly restricted the responsibility of Mini- 
 sters." . ..." I hold," continued Lord John, " that it is not 
 really for the business the Minister transacts in performing 
 the particular duties of his office, but it is for any advice 
 which he has given, and which he may be proved, before a 
 Committee of this House, or at the bar of the House of Lords, 
 to have given, that he is responsible, and for which he suffers 
 the penalties that may ensue from impeachment." 
 
 It is plain that both Mr. Walpole and Lord Russell were 
 here speaking of real legal responsibility, such responsibility 
 as may be enforced by impeachment or other legal process, 
 not of the vaguer kind of responsibility which is commonly 
 meant when we speak of Ministers being "responsible to the 
 House of Commons." This last is enforced, not by legal 
 process, but by such motions as that of Sir Robert Peel 
 in 1841, or that of the Marquess of Hartington in June 
 1859. 
 
 I have made my extracts from the Spectator newspaper 
 of February 11, 1854. 
 
 (12, p. 127.) We read (Anglia Sacra, i. 335) of yEthelric, 
 Hishop of the South-Saxons at the time of the Conquest, as 
 virantiquissimus et Icgum terra; sapicntissimus.'' So Adelelm, 
 the first Norman Abbot of Abingdon, found much benefit 
 from the legal knowledge of certain of his EngUsh monks 
 (Ciironicon Monasterii de Abingdon, ii. 2), "quibus tanta 
 seculariuin facundia et proeteritorum memoria eventorum 
 incrat, ut ca:teri circumquaquc facile corum sentcntiani ratam 
 fuisse, quam edicercnt, approbarent.'" The writer adds, "Sed 
 ct alii plurcs de Anglis causidici per id tempus in abbatia ist.i 
 habebantur quorum coliationi nemo sapiens refragabatur." 
 But knowledge of the law was not an exclusively clerical 
 accomplishment ; for among the grounds for the election of 
 King Harold himself, we find (de In\cntiune Sanctis Crucis 
 
214 
 
 IVOTES. 
 
 [CHAl'. 
 
 Walthamensis, p. 25, Stubbs) that one was " quia non erat 
 eo prudentior in terra, armis strenuus magis, legum terrae 
 sagacior." See Norman Conquest, ii. 538, iv. 366, 478. Tlie 
 professional lawyers seem first to show themselves in the 
 days of Randolf Flambard, and they were then largely, if 
 not wholly, clerks. " Nullus clcricus nisi causidicus," s;iys 
 William of Mahnesbury, iv. 314. 
 
 (13, p. 129.) On the growth of the lawyers' theory of the 
 royal prerogative, and its utter lack of historical standing- 
 ground, I must refer once for all to Allen's Inquiry into the 
 Rise and Growth of the Royal Prerogative in England. 
 
 (14, p. 131.) See Norman Conquest, ii. 330. 
 
 (15, p. 133.) The history of this memorable revolution will 
 be found in Lingard, iii. 392 — 405, and the legal points are 
 brought out by Hallam, Middle Ages, ii. 214. He remarks 
 that "In this revolution of 1399 there was as remarkable 
 an attention shown to the formalities of the constitution, allow- 
 ance made for the men and the times, as in that of 1688" ; 
 and, speaking of the device by which the same Parliament 
 was brought together again, he adds, " In this contrivance, 
 more than in all the rest, we may trace the hand of lawyers." 
 The official version entered on tlie rolls of Parliament bv 
 command of Henry will be found in Walsingham, ii. 234 — 
 238. Some care seems to be used to avoid using the name 
 of Parliament in the account of the actual proceedings. It 
 is said just before, " Rex pcrductus est Londonias, conscr- 
 vandus in Turri usque ad Parliamentum proximo cclcbran- 
 dum." And the writs are said to have been sent " ad personas 
 regni qui de jure debeant interesse Parliamento." But when 
 they have come together("quibus convenientibus"),care seems 
 to be taken to give the Assembly no particular name, till, 
 in the Act of Richard's deposition, tlic actors are described 
 
in.] 
 
 NOTES. 
 
 2'5 
 
 as " pares et proceres regni Angliae spirituales et temporales, 
 et ejus regni communitates, omnes status ejusdem regni 
 repraesentantes ; " and in the Act of Henry's election they 
 are described as " domini tarn spirituales quam temporales, 
 et omnes regni status." In the Act of deposition Richard's 
 resignation of the Crown is recorded, as well as his par- 
 ticular crimes and his general unfitness to wear it, all which 
 are classed together as reasons for his deposition. The 
 actual formula of deposition runs thus : — " propter praemissa, 
 et eorum praetextu, ab omni dignitate et honore regiis, si 
 quid dignitatis et honoris hujusmodi in eo remanserit, merito 
 deponendum pronunciamus, deccrnimus, et declaramus ; et 
 ctiam simili cautcla deponimus." They then declare the 
 throne to be vacant (" ut constabat de praemissis, et eorum 
 occasione, regnum Anglice, cum pertinentiis suis, vacare"). 
 Henry then makes his challenge, setting forth that strange 
 mixture of titles which is commented on in most narratives 
 of the event, pnd the Estates, without saying which of 
 Henry's arguments they accept, grant the kingdom to him 
 ("concesserunt unanimiter ut Dux pra:fatus super eos rcg- 
 naret"). A more distinct case of deposition and election can 
 hardly be found ; only in the words which I have put in italics 
 there seems a sort of anxiety to complete, by the act of depo- 
 sition, any possible defect in Richard's doubtless unwiUing 
 abdication. 
 
 The French narrative by a partisan of Richard (Lystoirc 
 dc la Traison et Mort du Roy Richart Dengleterre, p. 68) 
 gives, in some respects, a different account. The Assembly 
 is called a Parliament, and the Duke of Lancaster is made to 
 seat himself on the llirone at once. Then Sir Thomas Percy 
 "cria ' Vecz Henry de Lcnclastre Roy Dengleterre.' Adonc 
 cricrent tous les seigneurs prelaz et ic commun de Londres^ 
 Ouy Ouy nous voulons c|ue Henry due de Lencastre soit 
 nostre Roy et nul autre." For " Ic commun de Londrcs " 
 
2l6 
 
 NOTES. 
 
 [chap. 
 
 there are other readings, " le commun," "le commun 
 Dangleterre et de Londres," and '' tout le commun et coii- 
 seil de Londres." 
 
 (i6, p. 133.) It should be remembered that Charles the 
 First was not deposed, but was executed being King. He- 
 was called King both in the indictment at his trial and in the 
 warrant for his beheading. 
 
 (17, p. 134.) Monk raised this point in 1660. See Lingard, 
 viii. 607. 
 
 (18, p. 134.) Lingard (viii. 612) remarks that at this par 
 ticular moment " there was no court to influence, no interfer- 
 ence of the military to control the elections." Tlie Convention 
 may therefore be supposed to have been more freely elected 
 than most Parliaments, 
 
 1^19, p. 134.) The Long Parliament had dissolved itself, and 
 had decreed the election of its successor. By the Act 13 
 Charles II. (Revised Statutes, i. 733) the Long Parliament 
 is "declared and adjudged to be fully dissolved and deter- 
 mined ;" but it is not said when it was dissolved and deter- 
 mined. See also Lingard, ix. 5 ; Hallam's Constitutional 
 History, ii. 21, where the whole matter is discussed, and it 
 is remarked that "the next Parliament never gave their 
 jjredecessors any other name in the Journals than * the late 
 assembly.' " 
 
 (20, p. 134.) See Norman Conquest, i. 365, 366. 
 
 (21, p. 135.) See the discussion on the famous vote of the 
 Convention Parliament in Hallam, Constitutional History, 
 ii. 260 — 263; Macaulay, ii. 623. Hallam remarks that "the 
 word 'forfeiture' might better have answered this purpose 
 than 'abdication' or 'desertion,'" and he adds, "they pro- 
 ceeded not by the stated rules of the English government, but 
 
nr.] 
 
 NOTES. 
 
 217 
 
 by the general rights of mankind. They looked not so much 
 to Magna Charta as the original compact of society, and 
 rejected Coke and Hale for Hooker and Harrington." My 
 position is that there is no need to go to what Hallam calls 
 " higher constitutional laws" for the justification of the doings 
 of the Convention, but that they were fully justified by the 
 precedents of English history- from the eighth century to 
 the fourteenth. 
 
 The Scottish Estates, it should be remembered, did not 
 shrink from using the word " forfeited." Macaulay, iii. 2S5. 
 
 (22, p. 135.) See the Act i William and Mary "for remov- 
 ing and preventing all Questions and Disputes concerning 
 the Assembling and Sitting of this Present Parliament" 
 (Revised Statutes, ii. i). It decrees "That the Lords Spirit- 
 ual and Temporal, and Commons convened at Westminster 
 the two and twentieth day of Januar}-, in the year of our Lord 
 one thousand six hundred eighty-eight, and there sitting on 
 the thirteenth day of February following, are the two Houses 
 of Parliament, and so shall be and are hereby declared 
 enacted and adjudged to be to all intents, constructions, and 
 purposes whatsoever, notwithstanding any fnult of writ or 
 writs of summons, or any defect of form or default whatso- 
 ever, as if they had been summoned according to the usual 
 form." The whole history of the question is given in Mac- 
 aulay, iii. 27—31. The whole matter is summed up in the 
 words (iii. 27), " It was answered that the royal writ was 
 mere matter of form, and that to expose the substance of our 
 laws and liberties to serious hazard for the sake of a form 
 would be the most senseless superstition. Wherever the 
 Sovereign, the Peers spiritual and temporal, and the Repre- 
 sentatives freely chosen by the constituent bodies of the realm 
 were met together, there was the essence of a Parliament." 
 In earlier times it might perhaps have been held that there 
 
2lS 
 
 XOTES. 
 
 [chap. 
 
 might be the essence of a Parliament even without the 
 Sovereign. 
 
 (23, p. 136.) Macaulay, iv. 535. "A paper had been cir- 
 culated, in which the logic of a small sharp pettifogger was 
 employed to prove that writs, issued in the joint names of 
 William and Mary, ceased to be of force as soon as William 
 reigned alone. But this paltry cavil had completely failed. 
 It had not even been mentioned in the Lower House, and 
 had been mentioned in the Upper only to be contemptuously 
 overruled." From my point of view the cavil is certainly paltry, 
 but it is hard to see that it is more paltry than the others. 
 
 (24, p. 138.) This is by the Acts 7 and 8 Will. III. c. 15 ; 
 6 Anne, c. 7 ; and 39 Geo. III. c. 127. See Stephen's Com- 
 mentaries, ii. 380. Blackstone's reasoning runs thus : "This 
 dissolution formerly happened immediately upon the death of 
 tne reigning sovereign ; for he being considered in law as 
 the head of the parliament (caput principium, et finis), that 
 failing, the whole body was held to be extinct. But the 
 calling a new parliament immediately on the inauguration 
 of the successor being found inconvenient, and dangers being 
 apprehended from having no parliament in being, in case of 
 a disputed succession it was enacted," etc. By the Eefoim 
 Act of 1S67 the whole tradition of the lawyers was swept 
 away. 
 
 (25, p. 139.) I have said something on this head in Norman 
 Conquest, i. 94, but the whole thing should be studied in 
 Allen's great section on the Tenure of Landed Property ; 
 Royal Prerogative, 125 — 155. It is to All'^n that the honour 
 belongs of showing what bookland and folkland really were. 
 
 (26, p. 139.) I have given a few examples in Norman Con- 
 quest, i. 589. Endless examples will be found in Kcmble's 
 Codex Diplomaticus. 
 
III.] 
 
 XOTES. 
 
 (27, p. 140.) See the complaints on this head as late as the 
 time of William the Third, in Macaulay, iv. 646. On the 
 Acts by which the power of the Crown in this matter is 
 restrained, see Stephen's Commentaries, ii. 520. See also 
 May's Constitutional History, i. 229. 
 
 (28, p. 140.) Sec ^lay, i. 234 — 248. 
 
 (29, p. 141.) This is discussed in full by Allen, Royal Pre- 
 rogative, 143 — 145. The great example is the will of King 
 .'Elfred. See Codex Diplomaticus, ii. 112, v. 127. 
 
 (30, p. 143.) See May, i. 249 ; Allen, 154—155, who 
 remarks : " By a singular revolution of policy there was a 
 recurrence in the late reign to the ancient policy of the 
 Anglo-Saxons. The crown lands were virtually restored to 
 the public, while the King obtained the right of acquiring 
 landed property by purchase, and of bequeathing it by will 
 like a private person." 
 
 (31, p. 144.) Edward the First was the earliest King whose 
 reign is dated from a time earlier than his coronation. He 
 was out of the kingdom at his father's death, and his right 
 was acknowledged without opposition. But even in this case 
 there was an interregnum. The regnal years of Edward tlie 
 First are not reckoned from the day of his father's death, but 
 from the day of his funeral, when Edward was acknowledged 
 King, and when the prelates and nobles swore allegiance to 
 him. See the account in the Worcester Annals, Annalcs 
 Monastic!, iv. 462, and the documents in Rymer, i. part ii. 
 497. See also the remarks of Allen, 46, 47. The doctrine 
 tliat there can be no interregnum seems to have been put 
 into shape to please James the First, and it was of course 
 altogether upset by tiie great vote of 1688. Now of course 
 there is no interregnum ; not indeed from any mysterious 
 
220 
 
 NOTES. 
 
 [CIIAT. 
 
 prerogative of the Crown, but simply because the Act of 
 Settlement has entailed the Crown in a particular way. 
 
 (32, p. 144.) On this see Norman Conquest, i. 107, 263, 625. 
 See the same question discussed in quite another part of the 
 world in Herodotus, vii. 3. 
 
 (33, p. 146.) The helpless way in which Blackstone himself 
 wrote was perhaps pardonable in the dark times in which he 
 lived. But it is really too bad when lawyer after lawyer, in 
 successive editions, gives again to the world the astounding 
 rubbish which in Blackstone's day passed for early consti- 
 tutional history. In Kerr's edition of Blackstone, published 
 in 1857, vol. i. p. 180, I find repeated, without alteration or 
 comment, the monstrous assertion of Blackstone : " I believe 
 there is no instance wherein the Crown of England has ever 
 been asserted to be elective, except by the regicides at the in- 
 famous and unparalleled trial of King Charles I." And in 
 Serjeant Stephen's Commentaries (1853), which are not a 
 mere edition of Blackstone, but " New Commentaries partly 
 founded on Blackstone," the same words are found in vol. ii. 
 p. 403, only leaving out the epithet " unparalleled," which 
 might with truth have been allowed to stay. In another 
 jilace (iv. 481-2) we read how "after the Saxon govern- 
 ment was firmly established in this island" came "the 
 subdivision of the kingdom into a heptarchy, consisting of 
 seven independent kingdoms, peopled and governed by 
 different clans and colonies." It seems then that in 1857 
 there were learned gentlemen who believed in a kingdom 
 subdivided into a heptarchy. But when, in the next page, 
 Blackstone tells us how yKlfrcd set about " to new-model the 
 constitution, to rebuild it on a plan that should endure for 
 ages," and goes on in the usual style to attribute every- 
 thing whatever to ./Elfred personally, this seems to have been 
 too much, and the editor gives an extract from Kemble by 
 
in.] 
 
 NOTES. 
 
 221 
 
 way of correction. One wonders that, if he had read Kemble 
 at all, he had not learned a little more from him. It is 
 amusing again when Blackstone tells us (i. iS6, Kerr), 
 " From Egbert to the death of Edmund Ironside, a period 
 of above two hundred years, the Crown descended regularly 
 through a succession of fifteen princes, without any deviation 
 or interruption : save only" — all the cases where it did not 
 descend regularly according to Blackstone's notions of 
 regularity. But it is almost more amusing when Serjeant 
 Stephen (ii. 410) throws Blackstone's exceptions, which are 
 at least historical facts, into a note, and gives us instead as 
 his own exceptions, the statement, very doubtful and, if true, 
 utterly irrelevant, that yEthelstan and Eadmund Ironside 
 were illegitimate (see Norman Conquest, i. 66g — 673). We 
 of course get the usual talk about the usurpations of Harold, 
 Stephen, John, and Henry the Fourth, and about the rights 
 of Eadgar and Arthur of Britanny. For the former we get 
 a quotation from Matthew Paris, to whom it would have been 
 more to the purpose to go for the great speech of Archbishop 
 Hubert. The comments on the succession of John (i. 1S9, 
 Kerr) are singularly amusing, but too long to quote. 
 
 One point however must be mentioned. To prove the 
 strictly hereditary nature of the succession, Blackstone 
 (i. 189, Kerr) quotes the Statute of 25 Edward III. " that the 
 law of the Crown of England is, and always hath been, that 
 the children of the King of England, whether born in Eng- 
 land or elsewhere, ought to bear the inheritance after the 
 death of their ancestors." We are bound to suppose that 
 these learned lawyers had read through the statute which they 
 quoted ; but it is wonderful that they did not see that it had 
 nothing whatever to do with fixing the hereditary succession 
 of the Crown. The original text (Revised Statutes, i. 176; 
 runs thus : — 
 
 " La lei de la Corone Dcnglcterrc est, et ad cste touz jours 
 
22^ 
 
 XO TES. 
 
 [C'.IAP. 
 
 tide, que les enfantz des Rois Dengleterre, qiteu part qils 
 soient neez en Etiglckrre on aillors, sont ables et dcivcnt 
 porter heritage, apres la mort lour auncestors." 
 
 The object of the statute is something quite difierent from 
 what any one would think from Blackstone's way of quoting 
 it. The emphatic words are those -which are put in italics. 
 The object of the statute is to make the King's children and 
 others born of English parents beyond sea capable of in- 
 heriting in England. As far as the succession to the Crown 
 is concerned, its effect is simply to put a child of the King 
 born out of the realm on a level with his brother born in the 
 realm ; that is, in the view of our older Law, to give both 
 alike the preference due to an yEtheling. 
 
 (34, p. 147.) It is as well to explain this, because most 
 people seem to think that a man becomes a Bishop by virtue 
 of receiving a private letter from the First Lord of the Trea- 
 sury. We constantly see a man spoken of as Bishop of such 
 a see, and his works advertised as such, before a single 
 ecclesiastical or legal step has been taken to make him so. 
 
 (35, p. 147.) See Norman Conquest, iii. 44, 623. 
 
 (36, p. 148.) The succession of a grandson, which first took 
 place in England in the case of Richard the Second, marks 
 a distinct stage in the growth of the doctrine of hereditary 
 right. It involves the doctrine of representation, which is a 
 very subtle and technical one, and is not nearly so obvious or 
 so likely to occur in an early state of society as the doctrine 
 of nearness of kin. No opposition was made to tl-ve acces- 
 sion of Richard the Second, but there seems to have been a 
 strong notion in men's minds that John of Gaunt sought to 
 displace his nephew. In earlier times, as the eldest and 
 most eminent of the surviving sons of Edward the Third, 
 
in.] 
 
 NOTES. 
 
 223 
 
 John would probably have been elected without any thought 
 
 of the claims of young Richard. 
 
 (37, p. 148.) In Yorkist official language the three Lancas- 
 trian Kings were usurpers, and Duke Richard was de jure, 
 though not de facto, King. Henry the Sixth is, in the Act of 
 1461, " Henry Usurpour, late called King Henry the sixt." 
 The claim of the House of York was through an intricate 
 female descent from Lionel Duke of Clarence, a son of 
 Edward the Third older than John of Gaunt. A claim so 
 purely technical had never been set forth before in England, 
 though the crown of England had once been claimed on yet 
 more subtle grounds by Lewis the son of Philip Augustus, in 
 his character of husband of Blanche of Castile. See the 
 pleading of his ambassadors before Innocent HI. in Roger 
 of Wendover, iii. 371. But we may be quite sure that such 
 a claim would not have been thought to have much weight, 
 if Duke Richard had not been, by another branch, descended 
 from Edward the Third in the male line, and if he had not 
 moreover been the ablest and most popular nobleman in the 
 countiy. 
 
 (38, p. 149.) A prospective election before the vacancy of 
 course hindered any interregnum. In this case the formula 
 " Le Roi est mort ; vive Ic Roi," was perfectly true. The new 
 King was already chosen and crowned, and he had nothing 
 to do but to go on reigning singly instead of in partnership 
 with his father, just as William went on reigning alone after 
 the death of Mary. In Germany this took place whenever 
 a King of the Romans was chosen in the lifetime of the 
 reigning Emperor. In France, under the early Kings of 
 the Parisian dynasty, the practice was specially common, and 
 the fact that there seldom or never was an interregnum 
 doubtless helped much to make the French Crown become, 
 as it did, the most strictly hereditary crown in Christendom, 
 
224 
 
 XOTES. 
 
 [chap 
 
 In England, the only distinct case of a coronation of a son 
 during the lifetime of his father was that of Henry the son 
 of Henry the Second, known as the younger King, and some- 
 times as Henry the Third. In earlier times we get some- 
 thing like it in the settlement of the Crown by ^Ethelwulf, 
 with the consent of his Witan (see Old-English Histor)-, 
 105, io6\ but it does not seem clear whether there was in 
 this case any actual coronation during the father's lifetime. 
 If there was not, this would be the case most like that of 
 Duke Richard. The compromise placed the Duke in the 
 same position as if he had been Prince of Wales, or rather in 
 a better position, for it might be held to shut out the need of 
 even a formal election on the King's death. 
 
 (39, p. 149.) See note 59 on Chapter II. 
 
 (40, p. 150.) See Norman Conquest, iii. 623. 
 
 (41, p. 150.) See Hallam's Constitutional History, i. 8. It 
 IS to be noticed that the settlement enacts that the inherit- 
 ance of the Crown, &c., should remain in Henry the Seventh 
 and the heirs of his body for ever, and in none other." This 
 would seem to bar a great number of contingent claims in 
 various descendants of earlier Kings. As it happens, this 
 Act has been literally carried out, for every later Sovereign 
 of England has been a descendant of the body of Henry the 
 Seventh. 
 
 (42, p. 151.) The will of Henry the Eighth is fully discussed 
 by Hallam, i. 34, 288, 294 ; Lingard, vi. 213. There are two 
 Acts of Henry's reign bearing on the matter. In the earlier 
 one, 28 Henry VIII. c. 7, the Crown is entailed on the King's 
 sons by Jane Seymour or any other wife ; then on the King's 
 legitimate daughters, no names being mentioned ; the Act 
 then goes on to say, "your Highnes shall have full and 
 plenar power and auctorite to geve despose appoynte assigne 
 
HI.] 
 
 NOTES. 
 
 225 
 
 declare and lymytt by your letters patentes under your great 
 seale or ells by your laste Will made in wrytynge and signed 
 with your moste gracious hande, at your onely pleasure from 
 tyme to tyme hcrafter, the impcriall Crowne of this Realme 
 and all other the premisses thereunto bclongyng, to be re- 
 mayne succede and come after your decease and for lack of 
 lawfull heires of your body to be procreated and begoten as 
 is afore lymytted by this Acte, to such person or persones in 
 possession and remaynder as shall please your Highnes and 
 according to such estate and after such maner forme facion 
 ordre and condicion as shalbe expressed declared named and 
 lymitted in your said letters patentes or by your said laste 
 will." The later Act, 35 Henry VIII. c. i, puts Henry's two 
 daughters, Mary and Elizabeth, into the entail, but in a very 
 remarkable way. The Acts declaring their illegitimacy are 
 not repealed, nor is the legitimacy of either of them in any 
 way asserted ; in fact it is rather denied when the preamble 
 rehearses that " The king's Majesty hath only issue of his 
 body lawfully begotten betwixt his Highness and his said late 
 wife (2ueen Jane the noble and excellent Prince Edward." 
 The Act then goes on to enact that, although the King had 
 been enabled to "dispose" the Crown "to any person or 
 persons of such estate therein as should please his Highness 
 to limit and appoint," yet that, in failure of heirs of the body 
 of either the King or his son, " the said imperial Crown and 
 all other the premises shall be to the Lady Mary the King's 
 Highness daughter, and to the heirs of the body of the same 
 Lady Mary lawfully begotten, with such conditions as by his 
 Highness shall be limited by his letters patents under his 
 great seal, or by his Majesty's last will in writing signed with 
 his gracious hand." Failing Mary and her issue, the same 
 conditional entail is extended to Elizabeth and her issue. 
 The power of creating a remainder after the issue of Eliza- 
 beth of course remained with Henry, and he exercised it in 
 
 Q 
 
226 
 
 NOTES. 
 
 [chap. 
 
 favour of the issue of his younger sister Mary. Mary and 
 Elizabeth therefore really reigned, not by virtue of any royal 
 descent, but by virtue of a particular entail by which the 
 Crown was settled on the King's illegitimate daughters, as 
 it might have been settled on a perfect stranger. It was 
 an attempt on the part of Edward the Sixth to do without 
 parliamentary authority what his father had done by parlia- 
 mentary authority which led to the momentary occupation of 
 the throne by Lady Jane Grey. Mary, on her accession, 
 raked up the whole story of her mother's marriage and 
 divorce, and the Act of the first year of her reign recognized 
 her as inheriting by legitimate succession. The Act passed 
 on the accession of Elizabeth, i Eliz. c. 3, is much vaguer. 
 It enacts " that your majestic our sayd Sovereigne Ladye ys 
 and in verye dede and of most meere right ought to bee by 
 the Lawes of God and the Lawes and Statutes of this Realme 
 our most rightfuU and lawful! Sovereigne liege Ladie and 
 Ouene ; and that your Highness ys rightlye lynyallye and 
 lawfully discended and come of the bloodd royall of this 
 Realme of Erjglande in and to whose princely person and 
 theires of your bodye lawfully to bee begotten after youe 
 without all doubte ambiguitee scruple or question the imperial! 
 and Royall estate place crowne and dignitie of this Reallme 
 withe all honnours stiles titles dignities Regalities J urisdiccons 
 and preheminences to the same nowe belonging & apperteyn- 
 ing arre & shalbee most fully rightfully really & entierly 
 invested & incorporated united & annexed as rightfully 
 & lawfully to all intentes constinccons & purposes as the 
 same were in the said late Henrye theight or in the late 
 King Edwarde the Sy.xte your Highness Brother, or in the 
 late Ouen Maryc your Highnes S)Stcr at anyc tyme since 
 thactc of parliament made in the xx.wth yerc of the reigne 
 of your said most noble father king Henrye theight." 
 
 It .should be remembered that Sir Thomas More, though 
 
nr.] 
 
 NOTES. 
 
 227 
 
 be refused to swear to the preamble of the oath prescribed 
 by the Act of Supremacy, was ready to swear to the order of 
 succession which entailed the Crown on the issue of Anne 
 Bolejm. On his principles the issue of Anne Boleyn would 
 be illegitimate ; but he rightly held that Parliament could 
 settle the Crown upon anybody, on an illegitimate child of 
 the King or on an utter stranger ; to the succession therefore 
 he had no objection to swear. 
 
 For a parallel to the extraordinary power thus granted to 
 Henry we have to go back to the days of /Ethelwulf. 
 
 (43, p. 151.) The position of the daughters of Henry the 
 Eighth was of course practically aftected by the fact that 
 each was the child of a mother who was acknowledged as a 
 lawful wife at the time of her daughter's birth. There was 
 manifest harshness in ranking children so born with or/iinar\' 
 illegitimate children ; but in strictness of law, as Henry 
 married Anne Boleyn while Katharine of Aragon was alive, 
 the daughter of Katharine and the daughter of Anne could 
 not both be legitimate. The question was, which marriage 
 was lawful It should also be remembered that the marriage of 
 Anne Boleyn was declared void, and her daughter declared 
 illegitimate, on grounds — whatever they were — which had 
 nothing to do with the earlier question of the marriage and 
 divorce of Katharine. 
 
 (44, p. 152.) See Ilallam, i. 129; Lingard, vl. 239, 243. 
 The Act 13 Elizabeth, c. i, declares it to be treason " yf any 
 jjcrson shall in any wyse holde and aftyrme or mayntayne 
 that the Common Lawes of this Kealme not altred by 
 Parlyamcnt, ought not to dyrecte the Ryght of the crowne of 
 England, or that our said sovrayne Ladye Elizabeth the 
 Qucnes Majestic that nowe is, with and by the aucthoritye of 
 the I'arlyament of Englandc is not able to make Lawes and 
 
 Q 2 . 
 
228 
 
 NOTES. 
 
 [chap. 
 
 Statutes of suffycyent force and valyditie to lymit and bynd 
 the Crowne of this Reahne, and the Descent Lymitacion In- 
 heritaunce and Government thereof.'' The like is the crime 
 of " whosoever shall hereafter duryng the Lyef of our said 
 Soveraigne Ladye, by any Booke or Worke prynted or 
 written, dyrectly and expresly declare and affyrme at any 
 tyme before the same be by Acte of Parlyament of this 
 Realme established and affyrmed, that any one particular 
 person whosover it be, is or ought to be the ryght Heire and 
 Successor to the Queenes Majestic that nowe is (whome God 
 longe preserve) except the same be the naturall yssue of her 
 Majesties bodye." 
 
 This statute may possibly be taken as setting aside the 
 claims of the House of Suffolk : but, if so, it sets aside the 
 claims of the House of Stewart along with them. 
 
 (45, p. 152.) James's right was acknowledged by his own 
 first Parliament, just as the claims of other Kings who entered 
 in an irregular way had been. It should be marked however 
 that he was crowned before he was acknowledged. The Act 
 I Jac. I. c. I, declares that " immediatelie upon the Disso- 
 lution and Decease of Elizabeth late Quecne of England, the 
 Imperiall Crowne of the Rcalme of England, and of all the 
 Kingdomes Dominions and Rights belonging to the same, 
 did by inherent Birthright and lawfull undoubted Succession) 
 descend and come to your moste excellent Majestic, as beinge 
 lineallie justly and lawfullie next and sole Heire of the Blood 
 Royall of this Realme as is aforesaid." It is worth noticing 
 that in this Act we get the following definition of Parliament; 
 " this high Court of Parliament, where all the whole body of 
 the Realm and every particular member thereof, either in 
 Person or by Representation (upon their own free elections), 
 arc by the Laws of this Realm deemed to be personally 
 present." 
 
III.] 
 
 lYOTES. 
 
 229 
 
 (46, p. 152.) The fact that James the First, a King who 
 came in by no title whatever but what was given him by an 
 Act of ParHament passed after his coronation, was acknow- 
 ledged without the faintest opposition, is one of the most 
 remarkable things in our history. Hallam (i. 294) remarks 
 that " there is much reason to believe that the consciousness 
 of this defect in his parliamentary title put James on magni- 
 fying, still more than from his natural temper he was prone 
 to do, the inherent rights of primogenitory succession, as 
 something indefeasible by the legislature ; a doctrine which, 
 however it might suit the schools of divinity, was in diamet- 
 rical opposition to our statutes." Certainly no opposition can 
 be more strongly marked than that between the language of 
 James's own Parliament and the words quoted above from 13 
 Eliz. c. I. But see the remarks of Hallam a few pages before 
 (i. 288) on the kind of tacit election by which it might be 
 said that James reigned. "What renders it absurd to call 
 him and his children usurpers.-' He had that which the 
 flatterers of his family most affected to disdain — the will of 
 the people ; not certainly expressed in regular suffrage or 
 declared election, but unanimously and voluntarily ratifying 
 that which in itself could surely give no right, the determi- 
 nation of the late Queen's Council to proclaim his accession 
 to the throne." 
 
 (47, p. 152.) See the letters sent throughout England by 
 the revolted Barons in 121 5, just before the signing of the 
 Great Charter. The King's partizans are exhorted " regem 
 pcrjurum ac baronibus rcbellcm rclinquentes simul cum cis 
 pro libertatibus ct pace regni immobilcs starcnt el cfficacitur 
 decertarent." 
 
 (48, p. 153.) Whitclocke's Memorials, 367. "The heads of 
 the charge against the King were published by leave, in this 
 
230 
 
 NOTES. 
 
 [chap. 
 
 form : That Charles Stuart, being admitted King of England, 
 & therein trusted with a limited power, to govern by, & 
 according to the Laws of the Land, & not otherwise, & 
 by his trust being obliged, as also by his Oath, & office to 
 use the power committed to him, for the good & benefit of 
 the people, & for the preservation of their Rights and 
 Privileges," etc. 
 
 At an earlier stage (365) the President had told the King 
 that the Court " sat here by the Authority of the Commons 
 of England : & all your predecessours, & you are responsible 
 to them." The King answered " I deny that, shew me one 
 Precedent." The President, instead of quoting the precedents 
 which were at least plausible, told the prisoner that he was 
 not to interrupt the Court. Earlier still the King had objected 
 to the authority of the Court that "he saw no Lords there 
 which should make a Parliament, including the King, & 
 urged that the Kingdom of England was hereditary, & not 
 successive." The strong point of Charles's argument un- 
 doubtedly was the want of concurrence on the part of the 
 Lords. Both Houses of Parliament had agreed in the 
 proceedings against Edward the Second and Richard the 
 Second. 
 
 It is a small point, but it is well to notice that the descrip- 
 tion of the King as Charles Stewart was perfectly accurate. 
 Charles, the son of James, the son of Henry Stewart Lord 
 Darnley, really had a surname, though it might not be 
 according to Court etiquette to call him by it. The helpless 
 French imitators in 1793 summoned their King by the name 
 of " Louis Capet," as if Charles had been summoned by 
 the name of " Unready," " Bastard," " Laclcland," " Long- 
 shanks," or any other nickname of an earlier King and 
 forefather. 
 
 I believe that many people fancy that Guelph or Wclf is a 
 surname of the present, or rather late, royal family. 
 
in.] 
 
 NOTES. 
 
 (49, p. 154.) The Act I William and Maty (Revised Sta- 
 tutes, ii. 11) entailed the Crown "after their deceases," " to 
 the heires of the body of the said princesse & for default of 
 such issue to the Princesse Anne of Denmarke & the heires 
 of her body & for default of such issue to the heires of the 
 body of the said Prince of Orange." It was only after the 
 death of " the most hopeful Prince William Duke of Glouces- 
 ter" that the Crown was settled (12 and 13 Will. III. c. 2 ; 
 Revised Statutes, ii. 94) on "the most excellent Princess 
 Sophia Electress and Dutchess Dowager of Hannover, 
 daughter of the most excellent Princess Elizabeth, late Queen 
 of Bohemia, daughter of our late sovereign lord King James 
 the First of happy memory," " and the heirs of her body 
 being protestants." 
 
 (50, p. 155.) We hardly need assurance of the fact, but if 
 it were needed, something like an assurance to that effect was 
 given by an official member of the House during the session 
 of 1872. At all events we read in Sir T. E. May (ii. 83): 
 " The increased power of the House of Commons, under an 
 improved representation, has been patent and indisputable. 
 Responsible to the people, it has, at the same time, wielded 
 the people's strength. No longer subservient to the crown, 
 the ministers, and the peerage, it has become the predominant 
 authority in the state." But the following strange remark 
 follows : " But it is characteristic of the British constitution, 
 and n proof 0/ its freedom from (he spirit of democracy, that 
 the more dominant the power of the House of Commons, — 
 the greater has been its respect for the law, and the more 
 carefully have its acts been restrained within the proper limits 
 cf its own jurisdiction." 
 
 Has Mr, Grote lived and written so utterly in vain tliat a 
 writer widely indeed removed from the vul^.ir herd of 
 
232 
 
 NOTES. 
 
 [chap. 
 
 oligarchic babblers looks on "the spirit of democracy" as 
 something inconsistent with " respect for the law " ? 
 
 (51, p. 154.) The story is told (Plutarch, Lycurgus, 7), that 
 King Theopompos, having submitted to the lessening of the 
 kingly power by that of the Ephors, was rebuked by his wife, 
 because the power which he handed on to those who came 
 after him would be less than what he had received from those 
 who went before him. ov kgI (jiatrtv xmb rrjs iavrov yvmiKos 
 ov(i8i^6fj.evov i)S iXoTTM Trapa^cocrovra roiy Traiai Trjv j3aai\e[av, rj 
 7rapeXa/3c, /iet'^co fjiev ovu, fiTreiv, otrco )(povit>>Tepav' Tco yap ovri 
 TO ayav cmo^aKoxKra fj.€ra rov <p6uvov 8U(f)vyf rbv kivSvvov. 
 Aristotle also (Pol. v. 11) tells the story to the same effect, 
 bringing it in with the comment, otrco yap tiv fKarrovtov Sxn 
 Kvpioi, TrXeio) "j^povov avayKoiov fiev€LV rraaav ti]V ap)(r]V avTol t( 
 yap rjTTov ylvovTai bfdTTOTLKoi /cat Toly ijdeaiv 'laai fuiKkov, Ka\ 
 vTTo rav ap^opivwv <p6ovovvTai rjnov- tia. yap tovto Kai rj TTfpi 
 MoXorrors jroXiii/ )(^p6vov ^aaikda 8i(fj.fivev, kui fj AaKeBaifioviaiv 
 8ia Tu "PXV^ '"^ ^'^ ^'^^ I^^PV Siatpef'f^i'at TTjv apxr)v, Kai ttoKiv 
 Qemuprov ixfTpidcravros roly re oXXoiy Kai rfjv twv e<p6p<j)v apx')" 
 (TtLKaraari^aavTos' tt)s yap dvvaufcos dcj)f\d)v rjv^rjae Tw XP'""^ 
 j^amXeiav, ware rpoTTov Tiva iTToirjirev ovk tXdrrova dWa pe/foi/a 
 ai/n'jv. The kingdom of the Molossians, referred to in the 
 extract from Aristotle, is one of those states of antiquity of 
 which we should be well pleased to hear more. Like the 
 Macedonian kingdom, it was an instance of the heroic king- 
 ship surviving into the historical ages of Greece. But the 
 Molossian kingship seems to have been more regular and 
 popular than that of Macedonia, and to have better descr\-ed 
 the name of a constitutional monarchy. The Molossian 
 people and the Molossian King exchanged oaths not unlike 
 those of the Landesgemeinde and the Landammann of Appen- 
 zell-ausserrhoden, the King swearing to rule according to 
 the laws, and the people swearing to maintain tlic kingdom 
 
III.] 
 
 NOTES 
 
 235 
 
 according to the laws. In the end the kingdom changed 
 into a Federal Republic. See History of Federal Govern- 
 ment, i. 151. 
 
 (52, p. 157-) It is simply frivolous in the present state of 
 England to discuss the comparative merits of commonwealths 
 and constitutional monarchies with any practical object. 
 Constitutional monarchy is not only firmly fixed in the hearts 
 of the people, but it has some distinct advantages over 
 republican forms of government, just as republican forms of 
 government have some advantages over it. It m.ay be doubted 
 whether the people have not a more real control over the 
 Executive, when the House of Commons, or, in the last resort, 
 the people itself in the polling-booths (as in 1868 and 1874), 
 can displace a Government at any moment, than they have 
 in constitutions in which an Executive, however much it may 
 have disappointed the hopes of those who chose it, cannot be 
 removed before the end of its term of office, except on the 
 legal proof of some definite crime. But in itself, there really 
 seems no reason why the form of the Executive Government 
 should not be as lawful a subject for discussion as the House 
 of Lords, the Established Church, the standing army, or 
 anything else. It shows simple ignorance, if it does not show 
 something worse, when the word " republican " is used as 
 synonymous with cut-throat or pickpocket. I do not find 
 that in republican countries this kind of language is applied 
 to the admirers of monarchy ; but the people who talk in 
 this way are just those who have no knowledge of republics, 
 either in past history or present times. They may very likely 
 have climbed a Swiss mountain, but they have taken care not 
 to ask what was the constitution of the country at its foot. 
 They may even have learned to write Greek iambics and to 
 discuss Greek particles ; but they have learned nothing from 
 the treasures of wisdom taught by Grecian history from 
 Herodotus to Polybios. 
 
234 
 
 NOTES. 
 
 [chap. III. 
 
 I have discussed the three chief forms of Executive Govern- 
 ment, the constitutional King and his Ministry, the President, 
 and the Executive Council, in the last of my first series 
 of Historical Essays. 
 
 (33- P- I59-) Ili'id, i. 250:— 
 
 TW S' ijbt) 8i'o fjikv y(veai jieptnTOiv avOpamaiv 
 i(p6laB\ OL 01 TTpvudev a.p.a rpacjyeu Tj8' iyivovro 
 iv IIi'X&) rjyaOtr], fiera §e TpiToroicnv avacraev. 
 
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