The Origin and Growth of the English Constitution. An historical treatise

Part I. The Making Of The Constitution

"Turn Lælius, nunc fit illud Catonis certius, nee temporis unius, nee hominis ease constitutioi.em Reipublicæ." — Cicero. " The new building has been raised upon the old groundwork; the institutions of one age have always been modelled and formed from those of the preceding, and their lineal descent has never been interrupted or disturbed." — Palgkave. " And thus it comes to pass that Magna Carta, the Acts of the Long Parliament, the Declaration of Right, the Declaration of Independence, and the Constitution of. 17S7 constitute the record of an evolution." — Brantlv. " The Government of the United States is not the result of special creation, but of evolution. " — Fiske. LONDON SAMPSON LOW, MARSTON, SEARLE & RIVINGTON, Limited .•Sit. ©unstan'9 (fou^e Fetter Lane, Fleet Street, E. C. m DCCC The Riverside Press, Cambridge, Massachusetts, U. S. A. Printed by H. 0. Houghton and Company. TO THE MEMORY OF HIS MOTHER, QVf-e author DEDICATES THIS BOOK.

Preface

. The task essayed in this work involves an attempt to draw out, within the limits of two octavo volumes, the entire historic develop ment of the English constitutional system, and the growth out of that system of the federal republic of the United States. In the Intro duction an effort has been made to emphasize the fact that the constitutional histories of England and of the United States constitute a continuous and natural evolution which can only be fully mastered when viewed as one unbroken story. That story the author has attempted to unfold in the light of the latest researches, — English, German, French, and American, — and in such a manner as to impart to it something of a human interest. The double effort has been made to satisfy the critical student of the " Science of Politics " as to fulness and accuracy of detail, and at the same time to interest every American citizen who desires to read within reasonable limits the en tire history of the wonderful constitution under which he lives.

In this Preface are set forth the reasons which have impelled the author to attempt to make more accessible to his own countrymen that part of the constitutional history of the United States which is embedded in the annals of the mother country. Such an explanation must necessarily begin with a brief statement of the manner in which the history of the English people has been written. The English language had grown old, and English literature had passed what has been called its Augustan age, before any serious effort was ever made to open up the vast domain of English history. With the richest accumulation of historical records in all Europe — " whether we con sider them in relation to antiquity, to continuity, to variety, to extent, or to amplitude of facts and details"1 — mouldering beneath their feet, : The words of Sir Francis Palgrave, under under the roof of the present Record Repos whose auspices as deputy keeper the public itory. records were, in 1858, finally brought together VI

PREFACE.

. English scholars, until very recent times, were content to shed light upon every theme save that involved in the history of their own country. Not until near the close of the last century was any de liberate effort ever made to write the history of the English people. And when the investigation was at last begun, it was prosecuted according to the method which has prevailed in the exploration of the Nile, whose course has been mapped out by explorers who have slowly ascended from its mouths to its source. Beginning with modern times, the English historians have gradually worked back ward until at last the sources have been reached. This assertion can easily be maintained by a few familiar illustrations. Hume began his "History of England" with the accession of the house of Stuart, — the volumes which treat of the preceding period were pinned on as an after-thought.

How innocent Hume was of any real knowledge of the early and mediæval history of England he puts beyond all question when he tells us in his autobiography that, prior to the accession of the house of Stuart, "it is ridiculous to consider the English constitution ... as a regular plan of liberty." Hallam be gan his "Constitutional History " with the accession of the house of Tudor, — three meagre chapters in the Middle Ages sufficed to con tain all he desired to say of the preceding period. The magnificent ruin known as Macaulay's " History of England " really begins with the accession of the house of Stuart, — a single chapter sufficed to con tain all that the most brilliant and the most inquisitive of Englishmen cared to say of the ten eventful centuries which precede that event. Some deep and serious reason must certainly have impelled three minds at once so acute and comprehensive to pass so lightly over the early and mediæval history of their country in order to begin their narrations in comparatively modern times.

That reason is not hard to find. The truth is, until recently, the real history of early and mediæval England has remained a sealed book. Only within the last fifty years have the charters, chronicles, and memorials in which was entombed the early history of the English people been made acces sible ; and only within the last twenty years have they been subjected to the final analysis which has at last extracted from them their full and true significance. These facts become more comprehensible when we remember that only within the period last named has the study of history, as a distinct and substantive branch of knowledge,

PREFACE.

. VII been raised to an independent position at the two great English universities. Not until 1870 was the study of modern history put upon an independent footing at Oxford ; and not until 1875 was a separate tripos for universal history instituted at Cambridge.1 But when the emancipation of history was thus finally brought about, the work was done with genuine English thoroughness. Under the influence of Professors Stubbs and Freeman at Oxford, and Professor Seeley at Cambridge, the scientific study of history has at last been carried to as high a point in England as it has ever reached upon the Con tinent. Sharon Turner tells us, in the preface to his "History of the Anglo- Saxons," published between 1799 and 1805, that when his first volume appeared, "the subject of the Anglo-Saxon antiquities had been nearly forgotten by the British public. . . .

The Anglo-Saxon MSS. lay still unexamined, and neither their contents nor the important facts which the ancient writers and records of other nations had preserved of the transactions and fortunes of our ancestors had been ever made a part of our general history." The honest effort made by Turner to arouse his countrymen to a sense of interest in the beginnings of their national life was followed in 1800 by an inquiry in parliament into the state of the public records, which resulted in an able report upon the condition of the archives, and in the appointment of a commission "to methodize, regulate, and digest the records." The conduct of the work of preservation and publication proving unsatisfactory in the hands of the Record Commission, its direction was finally intrusted to the Master of the Rolls, who in January, 1857, "submitted to the Treasury a proposal for the publication of materials for the history of this country from the invasion of the Romans to the reign of Henry VIII."

Invaluable as are the official publication's, which have been prefaced and edited by the most competent critics and scholars that the Master of the Rolls could draw to his aid, they can never overshadow or supersede the works of one who was the real path-breaker into the jungle of early English history. To Kemble belongs the imperishable honor of being the first to bring to light the most valuable of the early records, and to apply to their interpretation the rich results of German research into the childhood of the whole Teutonic 1 See " The Study of History in England at the University of Ghent, Johns Hopkins and Scotland," by Paul Fredericq, professor Studies, fifth series, x. pp. 17, 32.

PREFACE.

. race. No matter whether the Germans drove the English into historical scholarship or not, the fact remains that Kemble, who studied under the brothers Grimm at Gottingen, was the first to reject every suggestion of Roman influence, and to clearly perceive the all-important fact, now generally admitted, that the national life of the English people, both natural and political, began with the coming of the Teutonic invaders who, during the fifth and sixth centuries, transferred from the Continent into Britain their entire scheme of barbaric life. In 1839 Kemble began the publication of his " Codex Diplomaticus Ævi Saxonici," whereby " upwards of fourteen hundred documents, containing the grants of kings and bishops, the settlements of private persons, the conventions of landlords and tenants, the technical forms of judicial proceedings, have been placed in our hands."

In 1840 Thorpe published his "Ancient Laws and Institutes of England;" and in 1848 Kemble published his "Saxons in England," in which was embodied the first effort ever made to state in a systematic form the results of the new sources of knowledge which he had done so much to bring to light. A co-worker with Kemble was Sir Francis Palgrave, who in 1832 published "The Rise and Progress of the English Commonwealth," and in 1851-64 the "History of Normandy and England." Kemble may have been guilty of exaggeration ; he may at times have been misty in his conclusions. Sir Francis was no doubt often fanciful ; at times he was certainly garrulous. And yet the fact remains that these pioneer scholars were the path-breakers who opened the way for the coming of the two English historians who have raised the science of history to as high a pitch, perhaps, as it has ever reached in ancient or modern times.

Not until Mr. Freeman had completed his "History of the Norman Conquest," not until Bishop Stubbs had completed the " Constitutional History," the "Select Charters," and " the wonderful prefaces," did the grand inquest into the early and mediæval history of England, which Kemble and Palgrave had inaugurated, reach a definite and final result. Not until the head waters of the mighty river had thus been reached, not until the direction of the stream during its earlier course had been clearly mapped out by competent hands, did it become possible either for the general student of the history of the English people, or for the special student of the English constitution, to begin with the sources, and trace them without interruption to their ultimate conclusion.

PREFACE.

. IX Until the analysis had ended, it was impossible for the synthesis to begin. The advent of the new learning touching the early and mediæval history of England — which has rendered obsolete and worthless nearly all of the older disquisitions made before the fresh sources of knowledge had become available — has rendered necessary a reconsid eration of nearly every branch of English history from a new point of view. Not until the early periods, which contain the starting-points of everything, had been fully mastered, was it possible to firmly estab lish the premises upon which every far-reaching argument touching the social or political life of the English nation must necessarily pro ceed. One of the first to perceive the necessity for a recasting of English history as a whole, from the new point of view, was the late John Richard Green, the gentle scholar, whose master hand was the first to trace the entire course of the history of the English people from its long-hidden sources in the "village-moots of Friesland or Sleswick," across the Northern Ocean into Britain, and across the Atlantic into North America.

Several years before the publication of the " History of the English People," the author of this work undertook the humbler and narrower task of drawing out, in the light of the new learning, the entire historic development of the English constitution, — a task which, up to that time, no one had ever at tempted. Since then has appeared the " History of the English Constitution," by Dr. Rudolph Gneist, Professor of Law at the Uni versity of Berlin ; and also a work entitled " English Constitutional History," by the late Thomas Pitt Taswell-Langmead, sometime Pro fessor of Constitutional Law and History at University College, Lon don. It is to the author rather a source of pleasure than of regret that the publication of these meritorious works should have preceded his own. All attempts so far made to write a complete history of the English constitution are merely tentative, — the historian who is to cast the entire theme in its final form is yet to come.

His coming will finally be made possible through a series of imperfect efforts to execute his task by a succession of historical students, each one of whom will make some advance toward the common goal by utilizing all that is strongest, and by discarding all that is weakest, in the works of his predecessors. The history of the growth of the English constitution, extending as

PREFACE.

. X it does through the annals of fourteen centuries, is by far too vast a theme for any one mind to assail in the way of original research. The best of the modern historical schools recognize the fact that the study of the history even of a single country can only proceed in a truly scientific manner through a system of cooperation based upon a division of labor. Each epoch must first be made the subject of thorough investigation by specialists who work upon the sources (what the Germans call Quellenstudien), and extract from them, through a kind of laboratory process, their full and true significance. Not until the original documents and other sources have been taken from the mine and purged of their dross by these special workers do the facts which they contain become available to those who desire to build upon them broad and comprehensive generalizations.

In the collection of the materials which have entered into the structure of this work the author has striven to select out of the mass with which the subject is encumbered only such as have passed through the crucible of the latest and most enlightened criticism. In the attempt which has been made to work the materials thus collected into such a combination as will reveal a natural and unbroken sequence of constitutional growth, the method of the historical school has been followed, — a school which dogmatizes but little, which has little or nothing to do with a priori theories, and which teaches, with Sir James Macintosh, that "constitutions are not made, they grow." Only by the aid of this method, which recognizes the law of growth as the law of constitutional life, is it possible to trace the mighty stream of Teutonic democracy from its sources in the village-moots and state assembles of Friesland and Sleswick across the Northern Ocean into Britain, and across the Atlantic into North America.

Only by the aid of this method is it possible to demonstrate the fact that the federal republic of the United States is the lineal descendant of those ancient German tribal federations of which we catch our first glimpses in the pages of Cæsar and Tacitus. When, in the light of this method, we contemplate this vast and unbroken development, which has affected so profoundly the destiny of mankind, we " Doubt not through the ages one increasing purpose runs, And the thoughts of men are widen'd with the process of the suns." Although the historical method, which teaches the unity of all his tory, necessarily ignores such arbitrary divisions as sever the history

PREFACE.

. XI of ancient from that of modern times, it nevertheless recognizes the fact that in the history of peoples, and of their institutions, there are epochs of growth so marked that they may be made the subject of separate and distinct treatment. The history of the growth of the English constitution may be broken into two broad and well-defined periods. The first, which extends from the Teutonic conquest to the end of the Middle Ages, may be termed the formative period, — the period of "the making of the constitution." Although it may be true in a vague and general sense that the struggle of the constitution for existence came to an end in the reign of Edward I., it can hardly be maintained that its structure was complete in any full and perfect sense until its vital organ, the parliament, had developed all of its powers and privileges,- — -a result which was not reached earlier than the reigns of the Lancastrian kings.

To this formative period — which has been made the subject of Bishop Stubbs's "Constitutional History," in three volumes — the author has devoted his first part or volume. To the second period, which will be termed "the after growth of the constitution," — one part of which has been treated by Hallam, in three volumes, and another, by Sir Thomas Erskinj May, in two volumes,- — the author will devote his second part or vol ume, which is now well under way. Each part of this work may, therefore, be regarded as a complete treatise upon a distinct period of constitutional growth usually considered separately. And yet each part will be so constructed that, when the two are taken together, they will embrace a consecutive and harmonious treatment of the entire theme viewed as one unbroken development.

During the years which have passed by since the preparation of this work began, the author has received so much of sympathy, encouragement, and helpful criticism from historical scholars, not only in his own but in foreign lands, that he might be justly deemed ungracious should he now fail to make fitting acknowledgments to those from whom he has received special consideration. Eight years ago it was his good fortune, during Mr. Freeman's last visit to the United States, to form a cordial acquaintance with the Nestor historian, who has made perhaps the largest and most invaluable contributions to the historical science of modern times. While this illustrious scholar has been for a long time consciously contributing very much to this under taking in the form of encouragement, suggestion, and criticism, he

PREFACE.

. XII has been unconsciously revealing to the author the fact that he is a master of that somewhat rare art of bestowing kindness without con descension. To his brother-scholar, the Rt. Rev. William Stubbs, Bishop of Oxford, the obligations of the author, although of a less personal, are not of a less serious character. To the master of the constitutional history of the Middle Ages, who sits alone at the head of his serene science, all students of the English constitution must go for the key, before they can hope to enter into its inner mysteries. While the pages of the " Constitutional History " and the " Select Charters " may not be inviting to the careless inquirer, to the earnest student they are mines of fact and of thought which may be worked without limit and without exhaustion. To Dr. Rudolph Gneist, Pro fessor of Law at the University of Berlin, and to M. Boutmy, member of the Institute, and Director of the School of Political Sciences of Paris, the author desires to make special acknowledgments.

Amongst those of his own countrymen who have generously aided him with judicious criticism and friendly encouragement, it is no less a pleasure than an honor to name Mr. John Fiske, of Cambridge ; Hon. J. Ran dolph Tucker, of Virginia ; Dr. H. B. Adams, Professor of History and Politics at the Johns Hopkins University ; the late Mr. Alexander Johnston, Professor of Jurisprudence and Political Economy at Prince ton ; Mr. S. M. Macvane, University Professor of History at Harvard ; Dr. James C. Welling, President of Columbia College, Washington, D. C. ; the late Judge John A. Campbell, of Baltimore, and his peer less daughter, Mrs. Henrietta Campbell Lay ; Mr. Richard M. Venable, Professor of Law at the University of Maryland ; Mr. Wm. Preston Johnston, President of the Tulane University of Louisiana ; Mr. Alfred Goldthwaite, of New Orleans, La. ; the Hon. John T. Morgan, United States Senator from Alabama ; and the Hon. N. H. R. Dawson, National Commissioner of Education.

In his own home the author desires to express his thanks to his friends, the Hon. John Little Smith, the Hon. Fredrick G. Bromberg, and Peter J. Hamilton, Esq., three scholars of whom any city might be proud. And, last and most of all, may he not indicate, even in this public way, to his good wife, — whose loving hands have, during a period of many years, lessened the pain incident to feeble eyesight by transcribing these pages, often again and again, — a sense of gratitude which he " can ne'er express, yet cannot all conceal." Mobile, Alabama, September 12, 1889. ANALYTICAL TABLE OF CONTENTS.

Introduction

. ENGLISH ORIGIN OF THE FEDERAL REPUBLIC OF THE UNITED STATES. 1. The typical English state the political unit in our federal system . i 2. The state as the ancient city-commonwealth i Comparative philology ; comparative politics 2 Village community the unit of organization ; the Greek city-commonwealth . 3 Only conception of the state in the Hellenic world; Aristotle the founder of political science 4 " Man is born to be a citizen ; " the Italian city-commonwealth ; extension of the Roman franchise 5 3. The state as the nation 6 The Teutonic tribe 7 Parallel between the Greek, Latin, and Teutonic tribe ; Greek and Latin tribes unite in city-commonwealths ; Teutonic tribes gather into nations .... 8 Tribal sovereignty ; territorial sovereignty the outcome of " the process of feudalization " 9 4.

Growth of the English Kingdom 10 "The Teutonic theory " 11 Teutonic settlements in Britain substantial reproductions of the older tribal life ; the mark reappears as the township ; earliest form of the representative principle ; the hundred ; the early kingdoms 12 The heptarchic kingdoms ; the consolidated kingdom ; new society purely Teutonic 13 Representative principle a Teutonic invention ; representative government dies out everywhere but in England 14 5. Growth of the English Colonies in America : physiography of North America IS Struggle for its possession between England, France, and Spain ; European nations agreed that discovery gave title 16 England based her claims upon voyages of the Cabots ; the great title-deed, — James I.'s charter of 1606 l7 The London Company and its work ; the Plymouth Company and its work . iS The soil granted to the colonies by the crown and not by the parliament . . 19 Colonies mere corporations created by the crown; the royal colonies — Virginia 20 Ordaining power of the king in council ; first American representative assembly . 21 English law the basis of colonial rights ; the charter colonies — Massachusetts . 22 Internal organization ; charter annulled in 16S4 by a scire facias ; Connecticut and Rhode Island live under their charters until long after the Revolution . .

CONTENTS. XIV The proprietary colonies — Maryland ; modelled after the Palatinate of Durham ; first state assembly an Old-English gemot 24 Carolina and Locke's Fundamental Constitutions. American theory of colonial rights 25 English theory 26 Out of the conflict grew the War of the Revolution. Internal organization of the colonies ; English kingdom the product of aggregation 27 Federal republic of the United States product of the same principle ; counties and townships everywhere the organs of local administration ..... 2S In the northern colonies the township, in the southern the county, the more active local agent ........ 29 Functions of both more evenly balanced in the middle colonies ; the township in New England ; township as the manor ; as the parish . . . . . 30 The New England town meeting 31 Manors in Maryland ; proprietor founds the system 32 A court baron at St. Gabriel's manor ; a court leet at St. Clement's. Dutch manors in New York 33 The patroon as lord of the manor ; manorial courts in New York ... 34 The manor a self-governing community.

The parish in Virginia . . . . 35 Virginia towns grow into counties which are divided into parishes "... 36 Resemblance between the English and Virginia parish ; both hardened into close corporations • • 37 The Southern county : its judicial functions ; administrative ; court-day . . 38 Difference in local organization between North and South ; incorporation of New England towns 39 Municipal history of Boston ; incorporation of Southern towns .... 40 American corporations possess no inherent power of taxation 41 Growth of colonial assemblies 43 They assume a bicameral form ........... 44 Colonies transformed into sovereign states which are substantial reproductions of the English kingdom 45 Legislative power ; constitutional limitations an American invention ... 46 The executive power; the judicial power ......... 47 The assize or circuit court the special possession of the English race ; feudal principles still linger at the base of American land law ...... 48 6.

Federalism as a System of Government 48 A perfect federal government ; the nearest approaches to such an ideal, the Achaian League, Confederation of Swiss Cantons, Seven United Provinces of the Netherlands, and the United States of America 49 Federal governments divided into two classes, — confederated governments and composite states ; Greek federalism 50 The Achaian League, whose national government acted directly upon the citizen ; makers of the Constitution of the United States had no real knowledge of that ancient League ; only acquainted with the Teutonic leagues 51 All of which rested on the requisition system. Effects of geography upon federation in America ............. ci Effects of the growth of population upon federation; New England Confederation of 1643 53 New France and the struggle for expansion r. Effects of the French and Indian war on the cause of union ; Stamp Act Congress of 1765; first Continental Congress of 1774; second, of 1775 ....

CONTENTS. XV Declaration of Independence, July 4, 1776; Congress the national government down to March 1, 1781. Articles of Confederation ...... 56 The western territory; Maryland's influence upon the land cessions to the United States 57 Character of the first federal constitution ; it represented no material advance in the history of federalism; inter-state citizenship 58 Washington; his circular letter of June 8, 1783 59 7. The Federal Convention of May 14, 1787 50 Canonization of the second constitution ; the constitution not a " creation " . 60 Proceedings of the convention ........... 61 Race-traits of the framers ; prior political training; Blackstone and Montesquieu 62 Causes which compelled the making of the second constitution ; financial impotency of the confederation -63 Root of the evil the requisition system ; four great motives for union ... 64 The new path-breaking idea (bahnbrechende Idee) ; Pelatiah Webster ; Noah Webster 65 Tocqtieville ; the new idea became the basis of the present constitution ; Davie ; Hamilton 66 The new idea forces the construction of a composite state 67 Division of the federal head into three departments; Jefferson; division made according to the maxim as then understood in England ..... 68 The executive department ; the President and George III 69 The legislative department ; the " Virginia plan," — the greater against the lesser states 70 Adoption of the English bicameral system ; the " New Jersey plan " . . . 71 The " Connecticut Compromise ; " the senate organized upon a federal, the house upon a national basis.

The judiciary department 72 The Supreme Court of the United States has no prototype in history ; the guardian of the constitution 73 Inferior federal courts a reproduction of the English itinerant system . . 74 8. National Citizenship 74 Inter-state citizenship ; constitution failed to define national citizenship ; the Dred Scott case 75 First section of the Fourteenth Amendment first defines national citizenship ; Slaughter-House Cases 76 Under Fourteenth Amendment, citizenship of the United States the primary citizenship, — a principle which completes the logical symmetry of the constitution; judgment in the Slaughter-House Cases a bulwark against the centralizing tendencies to which the civil war had imparted a fresh and menacing force . . 77 9. Summary CONTENTS. XVI

Chapter I. The Teutonic Origin Of English Institutions

1. General Character of Teutonic Conquest on the Continent . . .81 Italy, Gaul, and Spain Latinized and Christianized by the end of the fourth century; Teutonic invaders settle down in the midst of the Continental nations; conquest nowhere assumed the form of extermination 82 Conquerors adopt the language and creeds of the conquered ; the older society remained Roman and Christian, — it did not become heathen and Teutonic . . 83 2. General Character of Teutonic Conquest in Britain : Roman civilization in Britain nothing but an exotic ... ...... 84 The invaders cross the sea in small companies ; invasion became in Britain the equivalent of extermination within certain limits 85 3. Result of the Contrast: "A Germany outside of Germany" .... 86 4. English Nation Teutonic as to Race 86 All after-comers of the Low-Dutch stock ; the Normans originally of the same stock 87 5.

English Language the Result of the Fusion of all the Low-Dutch Dialects into one composite -whole 87 Max Midler's view, — " English is Teutonic and nothing but Teutonic" . . 88 6. Institutions : general character of the Teutonic political system ; the substructure of the English constitution ; in the same sense in which the English language is Teutonic, the English constitution is Teutonic . . . . .89 7. The Problem to be worked out involves an examination of the entire process of development through which the primitive Teutonic constitution has passed in Britain under the combined action of internal growth and external influence . 90