Constitutional history of England

Front matter

THE LIBRARY

I american l^iflftorical ^erieflf

GENERAL EDITOR

Preface

I have endeavored in writing this book to keep constantly in view the needs of the general reader and of the college student. I have to join in the recurring lament of those who attempt to write a small book on a large subject that they are obliged to omit so many details and that the task of selection is so difficult. In this book I have especially regretted the fact when I have thought it necessary to omit details which one teacher of English history or another has urged me to include. It seemed to me certain, however, that the chief thing to keep always in mind was to make the continuous growth of the constitution from generation to generation as clear as possible. Details in this line, or which help to make it clear, must be included. Details which are not in the direct line may be omitted, if space demands, and must be if their inclusion would tend to confuse the larger view. I am sure that some teachers will not agree with my selection, but they will not find it a disadvantage that considerable opportunity is given for the expansion of the narrative by the teacher. I believe the book will be found to include those matters which all teachers agree are essential.

It will be especially useful, I think, to expand the Introduction into a more full description of the present English government, in order that the student may know from the beginning " how the play is going to end," and what the important differences are between the American and English constitutions. It is desirable also that the student should be well grounded in English political history, which is here taken for granted, or that he should follow the account closely in some manual of the political history.

I wish to acknowledge my especial indebtedness to the

PREFACE

kindness of the Yale University Press, the publishers of my Outline Sketch of English Constitutional Historic, for permission to use parts of that book in the present one. The important steps in the development and the results are indicated there, and that book will be found valuable for review and for a summary statement. I am also greatly indebted to many scholars who have made me valuable suggestions and especially to Professors A. L. Cross of Michigan, Wallace Notestein of Cornell, and R. L. Schuyler of Columbia Universities, as well as to Professor C. H. Haskins of Harvard University, the general editor of the American Historical Series. I am sorry that I have not had the advantage of Professor A. F. Pollard's Evolution of Parliament^ which is not yet available here,

G. B. A.

New Haven,

Contents

CIIAPTEB PAGE

General Bibliography ix

Introduction i

Introduction

When William, duke of the Normans, set up his tent on the battlefield of Hastings from which the Saxons had been driven beyond power to rally, one of the great transformations of history had begun. For what was decided in that one day's fight was not so much who should be king of that little island realm, then scarcely larger than the state of New York and much below the world's standard of advancement. Nor was the chief question at stake whether England should remain cut off from the ancient sources of civilization, and live out her history touching and touched by the larger currents of world affairs as little as her close relatives the Scandinavian states. The really great decision of that day was that a union should take place between two peoples that should awaken a new constitutional life of which neither alone seemed capable. Within a generation, quite as early as we can detect signs of the uniting of the two peoples, we find the beginnings of that new growth under a government which was an almost ideally complete absolutism, and from that day to this without a break that growi:h has gone on to ever larger results and to ever broadening influence upon the world. In the seventeenth century the line of progress divided into two branches, each developing a distinct type of government, but each drawing its special characteristics and all its life and power of growth from the main trunk.

One retained the office of king: the other in the simpler conditions of colonial life established republican government, and thus was created the most striking difference between

2 INTRODUCTION

them. But if we compare their constitutions in detail, we find other marked differences in the working out of what are now in both branches democratic governments. To state in brief the side with which we are less familiar: In England the executive is not elected by the people but is in form appointed by the king: in reality he is selected from the leaders of the party which has the majority in the lower house of the national legislature. He is not chosen for a definite term but retains office so long as he can retain his majority in the house. The result is a very close union between the executive and legislative departments of govern-ment, so that the prime minister and his cabinet are really, as they have been called, a third house of the legislature.

In England the people exercise their power in government through their elected representatives in the legislature to a greater extent than in the United States, and the representatives assembled in the house of commons are the supreme authority in the state. The upper house, the house of lords, has a very limited power and must give way in the end on any measure which the house of commons is determined to carry. The same thing is even more completely true of the king, who is supposed even to have no opinion on any political question except that of the cabinet in office, and who never expresses an opinion except through his ministers. The house of commons also, as the supreme authority in the state, is the constitution making body, and every other authority is bound by an act of parliament, even though it changes fundamentally the powers or functions of any part of the state machinery. There is no written constitution, adopted by direct act of the people, and no document of any kind which lays out the different departments of government and defines their functions, powers, and limitations. The constitution is an unwritten body of custom and precedent, the result of unpremeditated growth; but certain statutes, constitutional in character, do exist which for the most part give sanction to

INTRODUCTION 8

limitations which experience at some time proved it necessary to place upon the exercise of one power or another.

Though the house of commons appears from these facts to possess a power in the government of England far greater than is lodged in any one part of the American government, it is in practice more directly and immediately under popular control than any American legislature. The dependence of the cabinet on a majority in the house of commons makes the issue in an election general policy or specific measures rather than men and gives to it the character of a referendum. The fact also that the new parliament goes into session at once after an election makes the popular decision immediately effective. The progress of democracy during the last fifty years has also evolved very efficient methods of bringing public opinion to bear directly upon the members of the house, so efficient indeed that one may begin to question if the representative character of the member is not in danger of disappearing in the character of a mere delegate.

We may have before us then in very simple terms the problem of English constitutional history. It is to show how the absolute government of the eleventh century, which centred all power in the king and provided no way in which any will but his could be expressed, was gradually transformed into the democracy of today, in which the king has no will and the expressed opinion of the people controls all. It has to show also how more than two hundred years ago the way had been prepared for republican government af the people and by the people, and how the line of growth was then divided into two branches each leading to a result fundamentally similar to the other but differing from it in many superficial aspects. It is the story of a movement slowly beginning, slowly gathering momentum, until at last it becomes irresistible. It involves also an account of the institutions in which, in successive stages of the progress, the government of the state was embodied.

CHAPTER I THE ANGLO-SAXON x\GE

The English constitution like the English nation and the English language was derived from a variety of sources. The territory which came in time to form the kingdom of England was occupied during the first thousand years of its known history by a succession of peoples who ruled it, or large portions of it, in turn and who might each be expected to leave behind a permanent legacy of law and institutions to later times. As a matter of fact they did not all do so. The first ruling race, the Celtic, made probably a large contribution to the blood of the future English nation, but to political and legal institutions practically nothing.

The same thing is true of the Romans, so far as their occupation of the province of Britain is concerned. English constitutional history has been at one time or another strongly affected by Roman influences, but these influences were not felt at any one moment nor from a single source, and none of them began to act until centuries after the Roman occupation had ceased. From that occupation itself no influence is traceable upon institutions that are primarily political or legal. The highest authority upon the history of early English law has said : " The written dooms of our kings have been searched over and over again by men skilled in detecting the least shred of Roman law under the most barbaric disguise, and they have found nothing worthy of mention. That these dooms are the purest specimens of pure Germanic law has been the verdict of one scholar after another."

From the Romans their Teutonic successors in England did learn, either as a result of the occupation or from the church, the use of the formal written document, the charter, whether intended to record a judicial decision or a conveyance, and the will, but they learned no substantive law with the document. They adopted the written will but they did not know the Roman law of wills. In later ages much more was learned and our present indebtedness to Roman law is great. At the Norman Conquest a Roman institutional influence was introduced and some unrecognized influence of law at least. Later still, when the scientific study of law began in the twelfth century, a much stronger influence made itself felt. Writers of text books and judges on the bench, trained by the new study in more scientific conceptions, were influenced, often perhaps unconsciously, in their formulation and systematizing of native law by the training they had received, but direct borrowing also began more extensively than before until large fields of our law were deeply aff*ected by Roman ideas : the law of marriage and inheritance, equity law, and admiralty and international law for example. These Roman elements in our present law, however, like the Latin elements in our language, were not derived from the Roman conquest and occupation of Britain but from some later influence.

It was from the third race of conquerors and colonizers of England that later law and institutions took their rise. But in this case also it was not at any one time that the foundation was completed. Three successive waves of Teutonic conquerors made contributions to the common result. The Angle and Saxon conquest, we may count together as the first. The second was the Scandinavian or Danish occupation of the north-east, of something more than half the coun=- try. Their contribution was so nearly like the first that, though we may still trace its eff'ects in language, it may be neglected in a general history of ins-titutions. The Norman conquest in the eleventh century was the third, and it brought in a new and vigorous Teutonic influence but from a source widely separate from the others, from the Franks who had k

DEFINITION OF TERMS 9

in using it, for there were certainly recognized ways of doing things in government, though perhaps less stereotyped than ours. But it is almost impossible for us to use the word in that sense alone. It means to us a consciously recognized fixed procedure, which is known to all men, departure from which is either by law or by convention made impossible, instantly detected and denounced by watchful guardians of the constitution. In the Anglo-Saxon state we find such fixity of forms, such conscious exercise of rights and enforcement of obligations, in a field where we are not tempted to use the word constitutional, in judicial procedure, but not in the field of government. In reference to government the word must be used, and interpreted when used, with the greatest caution, or we shall suppose a degree of regularity about government and political procedure, and of conscious thinking about them, which did not exist. Men did things but they did not reason about their doing, nor did the boundary lines between one function of government and another, nor the distinction between one way of doing a thin^ and another, seem to them important, and we shall be deceiving ourselves if we fall into the way of thinking otherwise.

On the eve of the Conquest England was a single kingdom. Its union had been brought about, however, by a long and slow process in which various independent colonies and kingdoms had been amalgamated into one, and this process had left visible traces not merely in the geography of the state but also in its government. The shires into which the kingdom was divided represented in many cases earlier colonies or tribal kingdoms, as in the case of Surrey, Sussex, Essex, Kent, Norfolk and Suffolk for example. Details of local law differed quite distinctly in different parts of the kingdom. West and North still retained something of their ancient independence which had to be recognized in the arrangements made for the local representation of the central government.

The Teutonic tribes which began to take possession of

Britain soon after the withdrawal of the Roman troops in tlie tiftli century were from the lowland districts of nortiiern Germany and the Danish peninsula along the shores of the North Sea, In their original homes they seem to have been in their political development among the more backward of the German tribes. They had no tribal unity, no kings or common government, but appear to have been divided into small related groups more or less closely allied with one another. Indeed when they were forced to submit to Charlemagne at the beginning of the ninth century, they were still in this px)litical condition and had not yet developed a king nor any settled government of the tribe as a whole. In one respect this political condition was reflected in the organized settlements established in Britain, whatever may have been the way in which the Saxons conducted their conquest. No common government was created. Apparently each war band, or perhaps each of the older tribal groups, set up an independent colony of its own, and no effort was made to unite them into one state, nor does any idea seem to have been entertained that such a result would be desirable. Almost from the start, however, the process of union must actually have begun, really a process of conquest among themselves, the swallowing up of the original settlements one by another, which went on for many generations, until first each of the seven historic kingdoms, known as the Heptarchy, was formed and finally the kingdom of England itself under the West Saxon Kings.

One result of the conquest we ^may imagine was immediate. The war chief, who may have been 'originally chosen, as Tacitus intimates was the case, for his nobility of birth or for his proved abilities, became a king. In the conditions of the settlement upon conquered territory, bordering upon hostile tribes, in almost constant war, this office must have become permanent. At first in all probability it was little if anything more than a permanent war leadership. By degrees it would assume the character and functions of the

DEVELOPMENT OF OFFICE OF KING ll

kingship, of the supervision of the tribe in its more general concerns, in a more orderly and settled state. Whether this was truly the origin of definite government and constitutional development in these Saxon colonies or not, at any rate soon after the beginning of the conquest real political organization is to be found in the emerging states, and the institutional details, of which we begin to get traces, link themselves naturally with those described by Tacitus as possessed by the Germans with whom Rome had come in contact in his time.

While the origin of the Saxon kingship sketched in the last paragraph is conjectural, there is no doubt but that the continued warfare which existed through almost the whole of Anglo-Saxon history, in the slow process of conquest which formed a single kingdom and in the long and fierce struggle with the new Teutonic colonization of the Danes, led to a steady development in the office of king after it had once come into existence. The state also grew more definite as it increased in size, its problems multiplied, its machinery was improved and more carefully operated, and the body of law became larger and more complex. The kingship, which seems to havie been the most natural form of early political organization in times of recorded history, considered as the center of the machinery of government and as the directing head responsible for the going on of all processes, inevitably grew in power as the state grew in definiteness.

It was the kingship which became strong. Whether any given king was powerful or not depended upon himself, upon his abilities and strength of will. In the last century before the conquest, there is an alternation of weak and strong kings with no change in the possibilities of power but only in the character of the king. But the Anglo-Saxon kingship never became absolute. It never obtained the degree of power of the Carolingian Frankish monarchy nor ruled over so centralized a state as that in its best days. It never felt, or felt only slightly, the influence of Rome as a model, nor the temptation of the Roman idea of Empire, nor the necessity of borrowing governmental machinery to solve the problems of a small state suddenly become a great one. In consequence the Saxon monarchy developed in power more slowly than the Frankish. It followed very much the same road. It is possible to point out many details in which their history seems alike. But when the end of the Saxon monarchy came in the eleventh century, it was still some generations of development behind the point which had been reached by the Frankish in the ninth. Some of the ways in which the king was limited will be pointed out later, but here it may be said in general that he was limited by custom. As has been said : " His power was subordinate to the customs of his people; he could touch no freeman's heritage or life without a process at law, which gave the freeman the right of defending his cause before his fellow-freemen; he could make no law without his people's deliberate consent; he habitually acted by the advice of his counsellors and wisemen, who formed his privy council as it were." This is limitation by an interpretation of his relation to the other elements of the community which had grown customary, by habit and common understanding, not by law. A strong king might push perilously near to an overriding of such limitations, a weak king might have scarcely any initiative at all.

In a sense the monarchy was elective, but not in quite the sense which the phrase " an elective monarchy " has for modern ears. Many of the Teutonic tribes that formed states after the fall of the Western Roman Empire give evidence in their later practices that the primitive German king had been elected. Traces of the fact lingered as long in the French state as in the English, and are more decided still in the kingdom of Germany. But in no one of these states did there exist what the modern constitutional lawyer

"AN ELECTIVE MONARCHY" 13

would term an elective monarchy, as he would use the term of the eighteenth century kingdom of Poland. In the Saxon kingdom of England the crown was hereditary in a particular family, and only in the most extreme case was there any departure from this line, once as the result of conquest and once in the face of a threatened conquest. Some choice was not infrequently exercised within the limits of this family in departure from the line of strict succession. Apparently when it occurred, it was not the deliberate exercise of a recognized right always consciously felt to exist, but the determination of a more or less vague body of leading men, whose decision could not be resisted, or who had influence enough to control the community, to acknowledge one member of the family as king rather than another, not always on grounds of fitness. What seems most nearly like deliberative action occurred when a wide departure had to be made from the strict line of succession, or when a new dynasty had to be chosen. But these are contingencies which may arise in the history of any state under any form of constitution. What is significant in such cases is not the act of choice, but the ground of right upon which the actors in the given case suppose themselves to be acting. The same qualifications apply to the cases of deposition of the king which occasionally occur in Anglo-Saxon history, with the proviso that deposition is a more extreme act and therefore likely to be more deliberate.

The Anglo-Saxon church early showed an interest in the monarchy and, in so far as it could be, it was an ally in its advancement. Roman Christianity was introduced among the Teutonic conquerors but little more than a century after their real settlement began. Its beginning and spread in England owed much to the patronage of the kings, and on its side the church, as in other of the forming states of Europe, favored to the extent of its ability union and a strong central government. In its own organization it tended to regard all the Anglo-Saxon settlements as a single people, whatever political separation might exist.- The head of the cliurch took the leading part in the coronation of the king, anointing him with holy oil after the manner of the Old Testament and receiving from him his coronation oath. At the end of the tenth century this oath is recorded as follows : In the name of the Holy Trinity, three things do I promise to this Christian people my subjects: first, that God's Church and all the Christian people of my realm hold true peace ; secondly, that I forbid all rapine and injustice to men of all conditions; thirdly, that I promise and enjoin justice and mercy in all judgments, that the just and merciful God of his everlasting mercy may forgive us all. The coronation oath sworn by the English kings continued this form almost unchanged for two hundred years after the Conquest.^ Associated with the king in the general government was an assembly of the chief men of the state, lay and clerical. The Anglo-Saxons called this assembly Witenagcmot, the court of the wise men, and the name undoubtedly indicates the principle of its composition. Its membership was not official nor designated in any way that we should call constitutional in the modern sense. No officer nor individual possessed a right to attend. It was not a representative assembly, nor were its members elected. As nearly as we can tell the king determined what persons should attend any given meeting, but it seems probable that his choice was not always free. That is, there would always be holders of certain high offices, archbishops and earls, who could not well be omitted, and certain other persons, so intimately associated with the government of the moment, officers of the king's household and others, that they must be present. Besides these there would always be, it is likely, others, both lay and clerical, so prominent in the country that they could not be passed over, whose aid was needed or displeasure feared. Apart from

2 Gregory I's letter on English dioceses, a. d. 601, G. and H., 9. sStubbs, S. C, 69, 94; Cheyney, Readings, 105.

THE WITENAGEMOT 15

these the king's choice seems to have determined who should come, guided pcrliaps by the business to be done or the convenience of the place of meeting. That the witenagemot consciously represented the nation in any action which it took is higlily improbable. It spoke for itself, for the class which its members constituted, and there was no one else in the nation whose opinion was of any consequence. In this sense its voice was the voice of the nation.

In capacity and function the witenagemot was like many primitive institutions undifferentiated, that is, it was accustomed to perform, without making an apparent distinction between them in its action, a variety of functions, which we believe should be separated and assigned to different institutions. It was at once the highest legislative and the highest judicial body in the kingdom, but in saying this we must be careful not to suppose that the Anglo-Saxons attached such definite ideas to these terms as we do.// The same body could be at once legislature and court because the ideas expressed by these words were somewhat indefinite. The idea of judicial action was more clearly defined than of legislative. Practically all law was custom. Legislation consisted less in making law that was entirely new, though no doubt that was sometimes done, than in modifying or interpreting existing law. If this was legislation, it was quite natural that the highest court in the land should be also the national legislature, for a judicial decision was the interpretation and application of the same customary law. The witenagemot was also the king's council and gave him advice on questions of policy and of action in particular cases, like a modern cabinet council, though without independent power of decision unless there was no king or a powerless king. But the approval and consent of the witenagemot, as that of the ruling class in the state, gave sanction to any act of the king's whether it was the proclamation of a new code of laws, the making of a treaty with another king, or a royal grant of lands. Ecclesiastical matters were as much subject to its approval as those concerning the state, and the church did not possess in the fullest sense an independent right of legislation, or of judicial action, in Saxon times.

In his account of the tribal assembly of the primitive Germans, Tacitus speaks of the meeting of two bodies,* one a smaller council of chiefs which decided by itself matters of minor importance and prepared for submission to the larger assembly of all the freemen those of greater importance. Apparently the chiefs presented these matters to the full assembly and explained the policy which they thought ought to be followed. The account looks as if they presented 'a decision they had themselves already reached, and as if the larger assembly had only a voice to accept or reject. At any rate in the later Teutonic states this, or even less than this, was the only function remaining to such traces of a national assembly as survived in them. The assembly applauded the decision of the council of magnates, never rejected it. Faint traces of this assembly remain in the Saxon, as in the Frankish, state, when something called masses of the people together at a muster of the army or at a coronation, but there is no evidence that it possessed in either state any real influence on legislation, or any independent power of decision.

In relation to the ordinary business of the central government, there developed in the Frankish state a small councilcourt, alongside the greater assembly of all the magnates or, more accurately, one performing the functions of the larger body during the intervals between its infrequent sessions. It was composed primarily of the officers of the king's household with the count of the palace at their head and of such magnates as happened to be with the king or as had occasion to attend. In Carolingian times a very large share of the judicial business which fell to the central king's court was done by this body. Of the existence of such an institution in England before the Norman Conquest, we get only faint * Tacitus, Germaniaj c. 11; Stubbs, S. C, 61.

THE SHERIFF 17

traces, not distinct enough to warrant description. Special local king's courts formed on the basis of the ordinary local courts, and created and commissioned by royal writs, seem also to have been wanting, though there is evidence to show that there was no clear boundary of jurisdiction between the witenagemot and the shire court, that in some instances at least cases were tried before shire courts which do not seem distinguishable in character from those tried at another time before the witenagemot.*'*