The Rise and Progress of the English Constitution

Preface

TO THIKD EDITION. I have tried to show a fit sense of the public favour which this little book has received, by correcting it carefully, and by making such useful additions as I could blend in it without running into party politics, and without turning it into that proverbial evil, Miya 8i@\lov. The account of the present distribution of political power in England will be found to be now much fuller than it was in the preceding editions ; and I have joined with it some comments on our old English principle of Local Self-government in Local matters; a subject to which I had not previously given due prominence. E. S. CKEASY. 2, Mitre Court Chambers, Temple, December \2th, 1855.

PREFACE.

. In 1848 I prepared and published a small pamphlet, called " The Text-Book of the Constitution," in which were arranged the texts of Magna Carta, the Petition of Eight, and the Bill of Bights, with historical comments, and with remarks on the People's Charter and other political topics of that year. Independently of its politics, that pamphlet has been found useful as an historical compilation; but the extent to which its latter pages were occupied with political discussions, made me un willing either to employ it myself or to see it employed by others in education. I do not wish to disavow any of the opinions which I expressed in it, but a teacher of History has no right to avail himself of the position in which he stands towards his pupils, for the purpose of training up broods of young Tories, Whigs, or Badicals, according to his own party predilections.

I therefore intended to prepare an edition of that little treatise, which should deal only with the Past, and in which the spirit of party pamphlet should be entirely got rid of. But

PREFACE.

. VIII the work has grown under the pen ; and I have been led to make additions, omissions, and re-arrangements, which have rendered it a distinct book, and one to which the name it now bears is much more applicable than the title of its predecessor would have been. Except in the earlier part of the volume, I have en tirely avoided ecclesiastical topics. I have found it im possible to deal with them, without mingling in some of the hottest controversies of the present day My obligations to Guizot, Palgrave, Kemble, Latham, Worsaae, Bowyer, Warren, Macculloch, Forsyth, Pashley, and, above all, to Hallam, are self-apparent in these pages. Wherever I have found truths well stated by others, I have preferred useful compilation to worthless novelty. E. S. CREASY. University College. London, October 13, 18S3. PAG§ 1 12 3:; CONTENTS.

Chapter I

Meaning of the term " English Constitution." — Is there an English Constitution ? — Primary Principles of the Constitution. — Magna Carta, the Petition of Right, and the Bill of Rights form its Code. — General Ignorance of these Statutes. — Scope of the present Work. — Constitutional Law of Progress. — How to learn the Constitution. — Classification of Constitutional Functions. — Importance of studying leading Scenes in History. — History of the Elements of our Nation, why material. — Exclusion of Party Politics .

Chapter II

Our Constitution coeval with our Nationality. — Thirteenth Century the date when each commences. — The Four Elements of our Nation. — The Saxon, i. e. the Germanic, the chief Element. — Parts of the Continent whence our Germanic Ancestors came. — Their Institutions, Political, Social, and Domestic. — Date of the Saxon Immigrations into this Island. — What Population did they find here 1 — The British Element of our Nation, Romanized Celtic. — Primary Character and Institutions of the British Celts. — Effect of Roman Conquests. — How far did the Saxons exterminate or blend with the Britons 1 — Evidence of Language

Chapter III

Conversion of the Anglo-Saxons. — Its civilizing Effects. — They occupy the Roman Towns. — England attacked by the Danes. — The third, i.e. the Danish, Element of our Nation. — Danish Institutions and Customs. — Ferocity of their Attack on England. — Extent of their chief Settlements here. — Evidence of Danish Names of Places and Persons. — Alfred rescues Saxon England from them. — The Danish blends with the Saxon Element. — Fusion of the first three Elements of our Nation CONTENTS. X

Chapter IV. Pase

Anglo-Saxon Institutions. — Classes of the Population. — Thralls, Ceorls, Thanes.— Townships. — Hundreds. — Tythings.— Frankpledge.— Lords.— The Were. — The Socmen — TheTowns.— The Witenagemote — The King. — The Bishops. —The Clergy.— The Poor.— Deterioration of the Saxon Polity before the Conquest 40

Chapter V

The Norman Element. — Different from the Danish. — Rolf the Ganger's Conquest of Neustria. — State of Civilization in France. — Characteristics of the Normans. — Their brilliant Qualities. — Their Oppression of the Peasantry . 56

Chapter VI

The Norman Conquest. — Extent of the Changes which it caused. — Numerical Account of the Norman and Anglo- Saxon Populations. — Amount of Loss of Life caused by the Conquest. — Probable Number of the Normans and other New-comers from Continental Europe. — Did the Population increase in the Century and a half preceding the signing of Magna Carta? — The Miseries of Stephen's Reign. — Period of Tranquillity under Henry II. — Probable amount of Population in 1215 €3

Chapter VII

General View of the Feudal System. — Meaning of the terms " Feudal " and "Allodial." — General Sketch of the Progress of a Germanic Settlement in a Roman Province. — Causes of Feudalism. — Progress of " Subinfeudation." — Aristocratic Character of Feudalism. — Its Oppressiveness to the Commonalty. — Its brighter Features 73

Chapter VIII

Distinction between Feudalism as developed in England, and Feudalism as generally developed on the Continent. — How far did it exist among the Saxons before the Conquest; how far among the Normans? — Character of William the Conqueror. — Feudalism which he introduced. — His Checks on the Baronial Power. — Great Authority of the first Anglo-Norman Kings g4 CONTENTS. XI

Chapter IX. Paoe

State of the Mass of the English Nation at the Commencement of the Thirteenth Century. — The Peasantry. — Villeinage: its Incidents: its probable Origin and Extent; and the Modes of becoming emancipated from it. — State of the Lower Classes in Towns. — State of the Middle and Upper Classes. — The various Tenures of Land. — State of the Boroughs after the Conquest. — Their partial Recovery of their Liberties 92

Chapter X

Evil Character of King John. — Its Importance to our History. — Fortunate Loss of Normandy. — John's Quarrels with his Clergy and with the Pope. — The Interdict. — The Excommunication. — John's abject Submission to the Pope. — Return of Archbishop Langton to Ed "land. — His patriotic Character. — He checks the King. — King's Oath to redress Wrongs. — His repeated Acts of Tyranny. — Council of the Barons. — Archbishop Langton produces the Charter of Henry I.— Nature of this Charter, and its Value. — Demands of the Barons on the King. — Vain Intervention of the Pope. — Firmness of Archbishop Langton. — Strength of the National Party. — Runnymede. — Articuli Cartæ. — The Grant of the Great Charter 106

Chapter XI

Magna Carta. — General Distribution of its Clauses. — Text of the Great Charter, and Comments 128

Chapter XII

Renewals of the Great Charter in Henry the Third's Reign. —The Charter as confirmed by Edward I. and subsequent Kings. — The statute Confirmatio Cartarum. — All Taxation without consent of Parliament made illegal . . .165

Chapter XIII

The Principles of the Constitution traced in the Charter. — Kingship in England. — Its Powers and Limitations. — Parliament. — Origin of the House of Commons. — Of the two Branches of the House of Commons. — Trial by Jury. — Writ of Habeas Corpus. — Origin and Value of these Constitutional Rights CONTENTS.

Chapter XIV. Paob

Progress of the Constitution during the Reigns of the ten last Plantagenet Kings. — Growing Importance of the House of Commons. — Qualifications of Members and Electors. — Prerogatives of the Crown. — State of the Population. — Jurors. — Boroughs. — Number of Electors 235

Chapter XV

State of the Constitution under the Tudors. — Revival of Spirit in the House of Commons. — Weak but arbitrary Character of the first two Stuart Kings. — Charles I. sincere, but an aggressor on the Constitution. — The Petition of Right . 274

Chapter XVI

The Restoration. — Affection of the English Nation for their old Institutions. — Effects of the Period of Revolution. — Military Tenures abolished. — Habeas Corpus Act. — Custom of fining Jurors for their Verdicts pronounced Illegal. — Revolution of 1688.— The Bill of Rights.— The Act of Settlement. — Kingship in England since the Revolution. — Its Limitations. — Its enduring Value. — House of Lords. — - Attempt to check Creation of Peers. — Benefits of the House of Peers to the Country. — House of Commons. — Borough Members. — Rotten Boroughs. — Reform Bill . . . 299

Chapter XVII

Number of Population. — Distribution of Political Power. The Crown. — Number of Parliamentary Electors. — Education. — Property. — Exercise of Political Powers in matters not Parliamentary. — Local Self-Government. — Property Qualification. — Influence of Public Opinion. — Right of Free Discussion, and Liberty of the Press . . . THE EISE AND PEOGEESS OP THE ENGLISH CONSTITUTION.

Chapter I

Meaning of the term " English Constitution." — Is there an English Constitution ? — Primary Principles of the Constitution. — Magna Carta, the Petition of Right, and the Bill of Rights form its Code. — General Ignorance of these Statutes. — Scope of the present Work. — Constitutional Law of Progress. — How to learn the Con stitution. — Classification of Constitutional Functions. — Importance of studying Leading Scenes in History. — History of the Elements of our Nation, why material. — Exclusion of Party Politics. Whatever may be thought of the execution of this work, I have little fear of being censured, so far as regards the design. An attempt to arrange in a simple form, and to place before the public, in a few easily accessible pages, the great principles of our Constitution, — to prove their antiquity, to illustrate their development, and to point out their enduring value, will surely, in times like the present, not be discouraged as blamable ; and, in the strange dearth of really useful treatises on this important topic, it will hardly be slighted as superfluous.

It is, in the first place, necessary to have a clear under- B EISE AND PROGRESS 2 standing of what we menn when we talk about " the English Constitution." Few terms in our language have been more laxly employed : and so uncertain is the know ledge, so very vague are the ideas, which many have of the constitution of their country, that, when the opponent of a particular measure or a particular system of policy cries out that it is unconstitutional, the complaint generally means little more than that the matter so denounced is something which the speaker dislikes. Still, the term, " the English Constitution," is suscep tible of full and accurate explanation : though it may not be easy to set it lucidly forth, without first investigating the archæology of our history, rather more deeply than may suit hasty talkers and superficial thinkers, but with no larger expenditure of time and labour, than every member of a great and free State ought gladly to bestow, in order that he may rightly comprehend and appreciate the polity and the laws, in which, and by which he lives, and acts, and has his civic being.

Some furious Jacobins, at the close of the last century, used to clamour that there was no such thing as the Eng lish Constitution, because it could not be produced in full written form, like that of the United States, or like those with which Sieves stocked the pigeon-holes of his bureau, to suit the varying phases of the first years of the French Revolution. The same cavil is occasionally repeated in our own times. In order to meet it, there is no occasion to resort to the strange dogma of Burke, that our ancestors, at the Revolution of 1688, bound, and had a right to bind, both themselves and their posterity to perpetual adherence to the exact order of things then established : nor need we rely solely on the eulogies, which foreign as well as native writers, a hundred years ago, used to heap OF THE CONSTITUTION. 3 upon the British constitution.

Those panegyrics, whether exaggerated or not, were to a great extent supported by reasonings and comparisons, which are now wholly inap plicable. But, without basing his political creed on them, an impartial and earnest investigator may still satisfy himself that England has a constitution, and that there is ample cause why she should cherish it. And by this it is meant, that he will recognise and admire, in the history, the laws, and the institutions of England, certain great leading principles, which have existed from the earliest periods of our nationality down to the pre sent time ; expanding and adapting themselves to the progress of society and civilization; advancing and varying in development, but still essentially the same in sub stance and in spirit. These great primeval and enduring principles are the principles of the English Constitution.

And we are not obliged to learn them from imperfect evidences or pre carious speculations ; for they are imperishably recorded in the Great Charter, and in the Charters and Statutes con nected with and confirmatory of Magna Carta. In Magna Carta itself, that is to say, in a solemn instrument deliberately agreed on by the king, the prelates, the great barons, the gentry, the burghers, the yeomanry, and all the freemen of the realm, at an epoch which we have a right to consider the commencement of our nationality, and in the statute entitled Confirmatio Cartarum, which is to be read as a supplement to Magna Carta, we can trace these great principles, some in the germ, some more fully revealed. And thus, at the very dawn of the history of the present English nation, we behold the foundations of our great political institutions imperishably laid.

B These great primeval and enduring principles of our Constitution are as follows : — The government of the country by an hereditary sove reign, ruling with limited powers, and bound to summon and consult a parliament of the whole realm, comprising hereditary peers and elective representatives of the commons. That without the sanction of parliament no tax of any kind can be imposed ; and no law can be made, repealed, or altered. That no man be arbitrarily fined or imprisoned, that no man's property or liberties be impaired, and that no man be in any way punished, except after a lawful trial. Trial by jury. That justice shall not be sold or delayed. These great constitutional principles can all be proved, either by express terms, or by fair implication, from Magna Carta, and its above-mentioned supplement.

Their vigorous development was aided and attested in many subsequent statutes, especially in the Petition of Right and the Bill of Rights ; in each of which the English nation, at a solemn crisis, solemnly declared its rights, and solemnly acknowledged its obligations : — two enactments which deserve to be cited, not as ordinary laws, but as constitutional compacts, and to be classed as such with the Great Charter, of which they are the confirmers and the exponents. Lord Chatham called these three " The Bible of the English Constitution," to which appeal is to be made on every grave political question. The great statesman's advice is still sound. It deserves to be considered by subjects as well as by princes; by popular leaders OK THE CONSTITUTION. 5 without the walls of parliament, as well as by ministers within them.

And, indeed, it is not only to those who are prominently engaged in political struggles, but to all who would qualify themselves for doing their duty to their country, — to all who are conscious of what Arnold has called " the highest earthly desire of the ripened mind, the desire of taking an active share in the great work of government," — that these texts of our Constitution ought to be the objects of peculiar study; in order that, first, we may learn from them what our Constitution really is, and whether it deserves to be earnestly upheld by us as a national bless ing, or ought to be looked on as an effete incumbrance, whose euthanasia we should strive to accelerate ; and, secondly, that when we have convinced ourselves of its merit, we may be able to test proposed measures by their conformity with or their hostility to its principles.

It is painfully strange to observe how few even of well educated Englishmen possess, or have so much as ever read these three Great Statutes. Magna Carta, in par ticular, is on everybody's lips but in nobody's hands ; and, though perpetually talked of, is generally talked of in utter ignorance of its contents, beyond a vague impression that it prohibits arbitrary taxation and arbitrary imprison ment, and that it is in favour of Trial by Jury. The original charter of King John is not even printed in the common editions of the statutes. With respect to the two other great laws which Lord Chatham ranks with Magna Carta, namely, the Petition of Right, and the Bill of Rights, it may safely be asserted that hundreds have never read a line of them, who would be justly indignant if we were to doubt their familiarity with the Attic legislation of Cleisthenes, or with the Roman reform bills of Terentillus and Licinius Stolo.

The texts of Magna Carta, the Petition of Right, and the Bill of Rights will here be laid before the reader ; and I have endeavoured to make the perusal of them more interesting and more useful, by not only giving explanations of the legal and archæological terms which they contain, but by also adding historical introductions and comments. Unless this is done, the spirit of the Consti tution cannot be perceived; and, if the letter of the Constitution deserves admiration, still more does its spirit. It is only thus that some of its essential characteristics can be discerned; and, by studying it thus, the more we convince ourselves of its reality and its antiquity, the more confident shall we become of its future durability. For, the same earnest and long-con tinued studies, which teach the historical inquirer to believe in and to venerate the great principles of the English Constitution, also display to him the workings of its normal law of progress, its plastic power of self amelioration and expansion, through which we may hope to see all growing exigencies of modern times supplied, not only without danger, but with aid and corroboration to the fundamental institutions of ages past.

The student of the English Constitution ought not only to be familiar with the chief portions of Magna Carta, the Petition of Right, and the Bill of Rights; but he ought also to have a clear knowledge and an appre ciative feeling of the circumstances under which each of these three primary laws came into existence; of the immediate purposes for which each was framed ; and of the enduring general benefits to the nation which each was also designed to secure. He ought to trace aud examine the development of the great principles which these statutes embody ; and his especial attention should be directed to such other statutes as confirm, extend, or explain the leading enactments. He ought also to watch how far the constitutional rights, which these laws sanc tion and provide, have been extended to all members of the community.

This is to be carefully noted, not only in respect of the protections from positive wrong, which the Constitution affords, but also in respect of the other benefits which it offers. We must observe what classes and what numbers of the population have from time to time taken part in the active functions of the government of the State. And it is always to be remem bered that the active functions of political government not merely include such rights as the right of sitting in parliament, the right of voting for members of parlia ment, and the like, but they include such rights as the right of eligibility to any magistracy or executive office, and the right of electing others thereto ; they include, also, the right of taking any part in criminal or civil trials, as, for example, the right of acting as jurymen.

I follow here the greatest of all writers on the subject of human political institutions. Aristotle classifies the con stitutional functions of a member of a State under these three heads: 1st, the Deliberative; 2ndly,. the Admi nistrative ; 3rdly, the Judicial.* We shall, necessarily, in thus studying the history of our nation and its institutions, be led to observe, in con nexion with the great primary principles that have been * "Ectti 8rj rpla popiarav ttoXi retwv naacov. 7repi eav Set oecopeiv tov (T7rov8aiov vopoBerrjV eKaorn rb ovptbepov. civ e'^oVrcoi' KaXcor, dvayKTj ttjv noXiTfiav i'xetv KaXas, <a\ ras troXirelas dWvXav 8m (pepftv, iv tcu Siatpepetv ckoo-tov tovtcov. "Eon be tov rpiav tovtu>v ev piv ti to fiovkevopevoi 7T€p\ Tœv koivwv. Aevrepov de rb 7T€pl Tas dp%ds' tovto Se eariv as Set kul tlucov eivai Kvpias' kch Tvoiav Ttvd Set yiyvecrdai tt]v at pttTLV avTQiv.

Tplrov de tl to c5i/tafo!/. — Aristot. Polit., lib. iv. c. 14. PEOGRESS enumerated, many supplemental constitutional rules that have been successively introduced, and gradually established, during the six centuries of our national existence. The amount of authority, to which each of these rules is entitled, may perhaps vary, according to the weight of the reasons which may be found for the origin and main tenance of each, according to the extent to which each seems to carry out the true spirit of the primary principles, and also according to the length of time by which the existence of each has been hallowed. But they ought all to be carefully noted ; and they all deserve the respectful attention even of those who would modify their influence, or would except particular cases from their operation.

The study of their causes is indispensable for a right judgment of their effects. I have endeavoured to compile and arrange in these pages information respecting the origin, the character, and the progress of our Constitution, with regard to all the points of view, the importance of which I have been indicating. I am far from venturing, on this account, to call this little volume a complete history of the English Constitution, but it may aid the student as an introduction to other more learned and elaborate treatises ; and, perhaps, even the well-informed politician may some times find it useful as a manual for immediate reference. I believe, indeed, that with regard to Constitutional history, as well as with regard to general history, much has been done to secure a present knowledge and a permanent recollection, when the intellect has once thoroughly comprehended and the imagination has once vividly reproduced a small but well-chosen number of leading scenes in the long and complicated drama.

Such scenes abide clearly in the memory when the general mass of the story becomes dim : and, when they so abide in the memory, they are valuable, not only by reason of the intrinsic importance of their own immediate topics, but because they serve us as landmarks for an improved survey of the whole subject. They are also most bene ficial in enabling us to realize the utility of the incidental information as to particular passages of history, which our other studies, and even our desultory reading for mere amusement's sake, continually throw in our way. He who has the knowledge of certain great leading historical events firmly implanted in his mind, has in his mind a set of bases, between and round which he naturally fixes and groups all the historical facts that he reads or hears of. His memory is thus continually refreshed.

Each piece of new information awakens in him intelligible and connected ideas : and he addresses himself to the acquisition of fresh facts, or to the consideration of rival theories, with far higher powers and advantages, than can be possessed by the man, who may, indeed, have read much more, but who has read without selection and system ; and whose mind, as to history, must (to borrow a phrase of Dryden) be only full of " a confused mass of thoughts, tumbling over one another in the dark." Attention is, therefore, here drawn to the acquisition of the Great Charter, the passing of the Petition of Right, and that of the Bill of Rights, as leading scenes in our Constitutional history. The first of these has been treated at far greater length than either of the other two ; both because there is not the same opportunity of re ferring my readers to other writers on the subject, and because, as it occurs at the very opening of our national history, a right comprehension of it forms the very foun dation of our Constitutional knowledge.

This is premised, lest it should be thought that the investigations of the PROGRESS Constitutional history of each element of our nation, which are introduced before discussing the Great Charter itself, have been foisted in here merely for the sake of inopportunely parading ethnological theories, or of swellinsr the size of this volume. The tenets there O brought forward are essential for the fixing of the corner stone of my position respecting the English Constitution. I maintain that the principles of our Constitution have been in existence ever since we, this English nation, have been in existence. This is to be proved not merely by quoting the Great Charter, but by making good the asser tion that the epoch when the Great Charter was granted ia the epoch when our nationality commenced. For this pur pose it is absolutely necessary to analyze our nation, to trace the separate current of each of its primary sources, and to watch the processes of their intermingling.

Per haps I may venture to hope that one effect of studying our history in this manner, will be to give it an additional in terest, from its evident connection with our classical stu dies. The main stream of our nation is Germanic : and he, who devotes himself to the histories of Greece and Rome, will find Greek history blending in Roman, and Roman blending in Germanic. The institutions of our Germanic ancestors commanded the anxious interest of the master minds of ancient Rome. Those same institutions are the first subjects to which the inquirer into our laws and our political organization must bend his thoughts. They have, indeed, been greatly modified by the other elements with which they have been mingled here, but they have exer cised more influence than any others. The Germania of Tacitus is equally a hand-book for the student of modern and for the student of ancient history.

It thus demon strates the unity of all history. I hope that my work, in its present form, may be useful to young readers, in aiding to educate them for the future discharge of political duties : but I have earnestly sought to keep these pages free from party politics. I know, from my experience as a lecturer for thirteen years, how difficult it is to discuss English history without tbe line of instruction being affected by the instructor's own political bias. But I hope that the same experience has enabled me to surmount fehat difficulty. I have throughout this work kept its main object steadily in view, and have rigidly rejected every topic and every sentence that seemed calculated to serve other purposes. I advocate here neither Conservatism nor Liberalism in the sense in which those slogans of modern party-warfare are commonly understood; but I strive to point out those great principles of the Constitution, which both Conser vatives and Liberals ought to know, and must acknowledge, however they may differ as to the relative importance which they would fain see each principie acquire.

Chapter II

Our Constitution coeval with our Nationality. — Thirteenth Cen tury the Date when each commences. — The Four Elements of our Nation. — The Saxon, i.e. the Germanic, the chief Element. — Parts of the Continent whence our Germanic Ancestors came. — Their Institutions, Political, Social, and Domestic. — Date of the Saxon Immigrations into this Island.— What Population did they find here 1 — The British Element of our Nation, Romanized Celtic. — Primary Character and Institutions of the British Celts. — Effect of Roman Conquests. — How far did the Saxons exterminate or blend with the Britons ?— Evidence of Language. It has been stated in the last chapter that Magna Carta is coeval with the commencement of our nationality; in other words, that we have had our present Constitution, as represented in Magna Carta, throughout the whole time of our true national history, except some brief periods of revolutionary interruption.

The proof of this depends on the date at which we fix thecommencement of the history of the English nation, as a complete nation. This date is the 13 th century.* The accuracy as well as the importance of this date * I am glad to be able to cite the high authority of Mr. Macaulay in support of the position that the history of the English nation commences in the 13th century. Mr. Macaulay, in the 17th page of the first volume of his His tory, after speaking of the Great Charter as the first pledge of the reconciliation of the Nor man and Saxon races, says— OF THE CONSTITUTION. 13 will be more readily discerned, if we remember the difference that there is between the history of the Enylish and the history of England ; — between the history of our nation, and the history of the island on which we now dwell.