The cover image was created by the transcriber and is placed in the public domain.
Original title page
THE GROWTH OF THE ENGLISH CONSTITUTION FROM THE EARLIEST TIMES
THE GROWTH OF THE ENGLISH CONSTITUTION FROM THE EARLIEST TIMES.
BY EDWARD A. FREEMAN, M.A., Hon. D.C.L., LATE FELLOW OF TRINITY COLLEGE, OXFORD.
‘Concedis justas leges et consuetudines esse tenendas, et promittis eas per te esse protegendas et ad honorem Dei roborandas, quas vulgus elegerit secundum vires tuas?’—Ancient Coronation Oath.
‘Rex habet superiorem, Deum. Item Legem, per quam factus est Rex. Item curiam suam.’—Bracton.
SECOND EDITION.
London: MACMILLAN AND CO. 1873.
[The Right of Translation and Reproduction is reserved.]
LONDON: R. CLAY, SONS, AND TAYLOR, PRINTERS, BREAD STREET HILL.
PREFACE TO THE FIRST EDITION.
The proverb “qui s’excuse s’accuse” 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 be cut very short in delivery, so as to make a third Chapter, and I added such notes and references as seemed to be needed.
I say all this, in order that what 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 I can in this way send every one who wishes to 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 English History,” 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 narrative 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 the institutions of intermediate ages which at first sight seem to have much more in common with our own. As the continuity of our national life 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 that 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 Statute-Book, but it must be in a Statute-Book which begins at no point later than the Dooms of Æthelberht.
As I have often had need to take facts and doctrines for granted which I believe 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, because 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 documents 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 themselves, 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 memorable example is to be found in the assertion of 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.
PREFACE TO THE SECOND EDITION.
In this Second Edition I have made a few verbal corrections and improvements, and I have made two or three additions to the Notes. Otherwise the book is unchanged.
Somerleaze, Wells, October 30, 1872.
CONTENTS.
The Landesgemeinden of Uri and Appenzell—their bearing on English Constitutional History—political elements common to the whole Teutonic race—monarchic, aristocratic, and democratic 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—description of the German Assemblies by Tacitus—continuity of English institutions—English nationality assumed—Teutonic institutions brought into Britain by the English conquerors—effects of the settlement on the conquerors—probable increase of slavery—Earls and Churls—growth of the kingly power—nature of kingship—special sanctity of the King—immemorial 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 territory—relations between the King and the nation—power of the Witan—right of election and deposition—growth of the kingly power by the commendation of the chief men—the Comitatus as described by Tacitus—poem on the Battle of Maldon—contrast of Roman and Teutonic feeling as to personal service—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 supplant the Earls—effects of the change—change confirmed by the Norman Conquest.
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 Assemblies—constitution of the Witenagemót—the Witenagemót continued in the House of Lords—Gemóts after the Norman Conquest—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 continental legislatures—system of Estates—three Estates of the Realm—no nobility in England—no separate Estate of the Clergy practically established—effects 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 fifteenth 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 preservation in England—subserviency of Parliament—its causes—effects 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—enfranchisement of corrupt boroughs—Parliament under Elizabeth—James the First—Charles the First—nature of later changes.
Character of later constitutional developments—greater importance of silent changes—growth of the unwritten Constitution as distinguished from the written Law—Sir Robert Peel’s vote of want of confidence—its bearings—the growth of the Constitution implies the firm establishment of the Law—relations between the Crown, the Ministry, and the Parliament—indirect exercise of parliamentary power—origin of the Ministry—recent use of the word Government—causes and advantages of indirect parliamentary action—growth of professional lawyers—their influence on constitutional 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 inference from the doctrine about the King’s writ—contrast with Old-English constitutional doctrines—doubts and difficulties 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 Parliament—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 Parliament—the Convention declared to be a Parliament by its own act—question of 1688-9—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 George the Third—Act of Victoria—reasonableness of this legislation—case of the Folkland 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 that 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 succession by lawyers—twofold election of the King—his ecclesiastical coronation—the ecclesiastical election survives the civil—state of the succession in the fourteenth and fifteenth centuries—right 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 Settlement—good side of hereditary succession in modern times—conclusion.
NOTES
THE GROWTH OF THE
ENGLISH CONSTITUTION
FROM THE
EARLIEST TIMES.
