The Growth of the English Constitution

Kingship thus became the law of all the Teutonic tribes which settled in Britain and whose union made up the English nation. That union, we must always remember, was very gradual. Step by step, smaller Kings or independent Ealdormen admitted the supremacy of a more powerful King. Then, in a second stage, the smaller state was absolutely incorporated with the greater. Its ruler now, if he continued to rule at all, ruled no longer as an independent or even as a vassal sovereign, but as a mere magistrate, acting by the deputed authority of the sovereign of whom he held his office43. The settlement made by Cerdic and Cynric on the southern coast grew, step by step, by the incorporation of many small kingdoms and independent Ealdormanships, into the lordship of the whole Isle of Britain, into the immediate kingship of all its English inhabitants. The Ealdorman of a corner of Hampshire thus grew step by step into the King of the West-Saxons, the King of the Saxons, the King of the English, the Emperor of all Britain, the lord, in later times, of a dominion reaching into every quarter of the world44. But the point which now concerns us is that, with each step in the growth of the King’s territorial dominion, his political authority within that dominion has grown also. The change from an Ealdorman to a King, the change from a heathen King to a Christian King crowned and anointed, doubtless did much to raise the power and dignity of the ruler who thus at each change surrounded himself with new titles to reverence. But this was not all. The mere increase in the extent of territorial dominion would at each step work most powerfully to increase the direct power of the King, and still more powerfully to increase the vague reverence which everywhere attaches to kingship. In Homer we read of Kings, some of whom were “more kingly,” more of Kings, than others. So it was among ourselves. A King who reigned over all Wessex was more of a King than a King who reigned only over the Isle of Wight, and a King who reigned over all England was more of a King than a King who reigned only over Wessex45. The greater the territory over which a King reigns the less familiar he becomes to the mass of his people; he is more and more shrouded in a mysterious awe, he is more and more looked on as a being of a different nature from other men, of a different nature even from other civil magistrates and military leaders, however high their authority and however illustrious their personal character. Such a separation of the King from the mass of his people may indeed, in some states of things, lead, not to the increase, but to the lessening of his practical power. He may become in popular belief too great and awful for the effectual exercise of power, and, by dint of his very greatness, his practical authority may be transferred to his representatives who govern in his name. He may be surrounded with a worship almost more than earthly, while the reality of power passes to a Mayor of the Palace, or is split up among the satraps of distant provinces46. But, with a race of vigorous and politic Kings ruling over a nation whose tendencies are to closer unity and not to wider separation, each step in the territorial growth of the kingdom is also a step in the growth, not only of the formal dignity, but of the practical authority of the King. The King of the English, who in the eleventh century held the direct sovereignty of all England, the over-lordship of all Britain, was a very different person from his forefather, who in the sixth century deemed that another victory over the Briton, the acquisition of another strip of British territory, another hundred, it may be, of modern Hampshire, had made him great enough to change his title of Ealdorman for that of King. Such a King was every inch a King; his personal character was of the highest moment for the good or evil fortune of his kingdom. His will counted for much in the making of the laws by which his people were to be governed, and in the disposal of honours and offices among those who were to govern under him. But yet he was not a despot; men never forgot that the King was what his name implied, the representative, the impersonation, the offspring of the people. It was from the choice of the people that he received his authority to rule over them, a choice limited under all ordinary circumstances to the royal house, but which, within that house, was not tied down by a blind regard to any particular law of succession. It was a choice which at any time could fix itself on the worthiest man of the royal house, and which, when the royal house failed to supply a fitting candidate, could boldly fix itself on the worthiest man of the whole people47. And those from whom the King first drew his power ever shared with him in its exercise. The laws, the grants, the appointments to offices, which the King made, needed the assent of the people in their national Assembly, the gathering of the Wise Men of the whole land48. And those who gave him his power and who guided him in its exercise could also, when need so called, take away the power which they had given. At rare intervals – for it is only at rare intervals that so great a step is likely to be taken – has the English nation exercised its highest power by taking away the Crown from Kings who were unworthy to wear it. I speak not of acts of violence or murder, or of processes which, though clothed under legal form, were without precedent in our history. I speak not of the secret death of Henry the Sixth or of the open execution of Charles the First. I speak of the regular process of the Law. In Northumberland the right of deposition was exercised with special frequency49. But I will speak only of that direct and unbroken line of Kings who from Kings of the West-Saxons grew into the Kings of the English. Six times at least, in the space of nine hundred years, from Sigeberht of Wessex to James the Second, has the Great Council of the Nation thus put forth the last and greatest of its powers50. The last exercise of this power has made its future exercise needless. All that in old times was to be gained by the deposition of a King can now be gained by a vote of censure on a Minister, or, in the extremest case, by his impeachment.

But, besides that growth of the King’s power which followed naturally on the growth of the King’s dominions, another cause was busily at work which clothed him with a personal influence which was of almost greater moment than his political authority. To a large portion of his subjects, to all the men of special wealth or power, the King gradually became, not only King but lord; his subjects gradually became, not only his subjects but his men. These names may need some explanation, and I will again go back to Tacitus as our starting-point. Side by side with the political community, the King, the nobles, the popular Assembly, all of them strictly political powers, he describes another institution, a relation in itself not political but purely personal, but which gradually became of the highest political moment. This was the institution of the comitatus, the system of personal relation between a man and his lord, a relation of faithful service on one side, of faithful protection on the other. Let us again hear the words of the great Roman interpreter of our own earliest days51.

“It is no shame among the Germans to be seen among the companions (comites) of a chief. And there are degrees of rank in the companionship (comitatus), according to the favour of him whom they follow; and great is the rivalry among the companions which shall stand highest in the favour of his chief, and also among the chiefs which shall have the most and the most valiant companions… When they come to battle, it is shameful for the chief to be surpassed in valour; it is shameful for his companions not to equal the valour of their chief. It is even a badge of disgrace for the remainder of life if a man comes away alive from the field on which his chief has fallen. To guard, to defend him, to assign their own valiant deeds to his credit, is their first religious duty. The chiefs fight for victory; the companions fight for their chief.”

This is the description given by a Roman historian of the second century; let me set beside it the words of an English poet of the tenth. He is describing the battle of Maldon in 991, which was fought by the East-Saxons under their Ealdorman Brihtnoth against the invading Northmen. The Ealdorman has been killed; two of his followers have fled, one of them on the Ealdorman’s horse, and every word that is put into the mouth of his faithful companions turns upon the personal tie between them and their lord52.

“Thereon hewed himThe heathen soldiers;And both the warriorsThat near him by-stood,Ælfnoth and Wulfmær both,Lay there on the groundBy their lord;Their lives they sold.There bowed they from the fightThat there to be would not;There were Odda’s bairnsErst in flight;Godric from battle went,And the good man forsookThat to him ofttimesHorses had given.He leapt on the horseThat his lord had owned,On the housingsThat it not right was.”

Presently we read of the deeds done by his Thegns over his body;

“There was fallenThe folk’s Elder,Æthelred’s Earl;All there sawOf his hearth’s comradesThat their lord lay dead.Then there went forthThe proud Thanes,The undaunted menHastened gladly;They would there allOne of two things,Either life forsake,Or the loved one wreak.”

Then one of the Thegns speaks;

“Neither on that folkShall the Thanes twit meThat I from this hostAway would goTo seek my home,Now mine Elder liethHewn down in battle;To me is that harm most;He was both my kinsmanAnd my lord.”

Then another speaks in answer;

“How thou, Ælfwine, hastAll our ThanesIn need-time cheered.Now our lord lieth,The Earl on the earth,That of us each oneOthers should embolden,Warmen to the war,That while we weapons mayHave and hold,The hard falchion,Spear and good sword.”

Then another speaks;

“I this promiseThat I hence nillFlee a footstep,But will further go,To wreak in the fightMy lord and comrade.Nor by StourmereAny steadfast heroWith words need twit meThat I lordlessHomeward should go,And wend from the fight.

The story goes on a little later;

“Rath was in battleOffa hewn down,Yet had he furtheredThat his lord had pledged,As he ere agreedWith his ring-giverThat they should bothTo the borough rideHale to home,Or in the host cringeOn the slaughter place,Of their wounds die.He lay thane-likeHis lord hard by.”

Lastly another Thegn speaks;

“Mind shall the harder be,Heart shall the keener be,Mood shall the more be,As our main lessens.Here lies our Elder,All down hewn,A good man in the dust;Ever may he groanWho now from this war-playOf wending thinketh.I am old of life;Hence stir will I not,And I by the halfOf my lord,By such a loved manTo lie am thinking.”

This institution of military companionship seems to have struck Tacitus with some amazement. He says that this kind of personal relation was among the Germans not thought shameful. This was the natural feeling of a Roman. The duty of a Roman citizen was wholly towards the state. The state might be represented either by a responsible magistrate or by an irresponsible Emperor; in either case obedience was due to the representative of the state; but there was no personal relation to the man. The old Roman institution of patron and client, which was so like the German comitatus, had pretty well died out by the time of Tacitus, and it had at no time been entered into by men of high rank53. What amazed Tacitus was that among the Germans the noblest in birth and exploits were not looked on as dishonoured by entering the service of a personal lord. To Tacitus himself Trajan was the chief magistrate of the Roman commonwealth, the chief commander of the Roman army; he was a personal master to none but his slaves and freedmen54. It was only in a much later stage of the Roman Empire that personal service in the court and household of the Emperor began to be looked on as honourable55. But among the Teutonic nations the personal relation coloured everything; personal service towards a King or other chief was honourable from the beginning; the proudest nobles of Europe have down to this day thought themselves honoured by filling offices about the persons of Emperors, Kings, and other princes which Tacitus would have deemed beneath the dignity of any Roman citizen. We are now accustomed to see this kind of service paid in the case of royal personages only; a few centuries back men of any rank deemed themselves honoured by paying the like service to men of the rank next above their own, or even to men of their own rank who had the start of them in age and reputation. The knight was served by his esquire and the master by his scholar; and the same principle, laid aside everywhere else, lingers on in what is undoubtedly a trace of the Teutonic comitatus, the fagging of our public schools. Now the political effect of the existence of the principle of personal service, the institution of the comitatus, alongside of the primitive political community, was most important in our early history. The personal relation went far to swallow up the purely political one. To enter the service of a chief became so established a practice that at last it was deemed that it was the part of every man to “seek a lord,” as the phrase was, to commend himself, to put himself under the protection of some man more powerful than himself56. The man owed faithful service to his lord; the lord owed faithful protection to his man. The very word Lord, in its older and fuller form Hlaford, implies the rewards which the lord bestowed on his faithful man. The word is in some sort a puzzling one; but there can be no doubt that it is connected with hlaf, loaf, and that its general meaning is the giver of bread57. Now herein lurks something which has greatly affected all later political and social arrangements. The institution of the comitatus in its first state had nothing whatever to do with the holding of land. But the man looked for reward of his faithful service at the hands of his lord; he looked for the bread of which his lord’s title proclaimed him as the giver. There was of course no form of reward, no form of bread, so convenient or so honourable as that of a grant of land to be held as the reward of past and the condition of future service. Moreover the custom of granting out lands to be held by the tenure of military service had become common in the later days of Roman power58. Such lands were of course held, not of the Emperor as a personal lord, but of the Roman Commonwealth of which he was the head and representative. But the custom of holding lands by military service fell in well with the Teutonic institution of personal service, and the union of the two in the same person produced that feudal relation which has had such an important bearing on all political and social life through the whole of the middle ages and down to our own time. The land granted by the lord to his man, or the land which the man agreed to hold as if it had been so granted, might be a kingdom held of the Emperor or the Pope, or it might be the smallest estate held of a more powerful neighbour. In either case, such a holding by military service was a fief, and from the institution of such fiefs the so-called Feudal System, with all its manifold workings for good and for evil, had its rise. But so far as the Feudal System existed, either in England or in any other country, it existed wholly as a system which had grown up by the side of an earlier system which it wholly or partially displaced. The feudal tenant, holding his land of a lord by military service gradually supplanted, wholly or partially, in most countries of Europe, the allodial holder who held his land of no other man, and who knew no superior but God and the Law59. In England this change took place only gradually and partially; it was through the Norman Conquest, or, more accurately, through the subtle legal theories which came in with the Norman Conquest, that it was finally established. And, after all, it was rather in theory than in fact that it was established. The Feudal System, as something spreading into every corner of the land, and affecting every relation of life, never obtained the same complete establishment in England which it did in some continental countries.

But it is only indirectly that my subject has anything to do with the Feudal System, and especially with its social working. I have to do with the comitatus, out of which the feudal relation grew, mainly in another aspect equally indirect, namely, the way in which it affected our earliest political institutions. It gave us a new form of nobility, a nobility of office and of personal relation to the King, instead of a nobility founded on birth only. It gave us a nobility of Thegns, which gradually supplanted the earlier nobility of the Eorls. As the royal power and dignity grew, it came to be looked on as the highest honour to enter into the personal service of the King. Two results followed; service towards the King, a place, that is, in the King’s comitatus, became the badge and standard of nobility60. And it greatly strengthened the power of the King that he stood to all the chief men of his kingdom in the relation, not only of a political ruler, but of a personal lord, a lord to whose service they were bound by a personal tie, and of whom they held their lands as the gift of his personal bounty. It marks perhaps a decline from the first idea of the comitatus that the old word Gesith, companion, answering exactly to the Latin Comes used by Tacitus, was supplanted by the name Thegn, literally servant61. But when personal service was deemed honourable, the name of servant was no degradation, and the name Thegn became equivalent to the older Eorl. The King’s Thegn, the men who held their land of the King and who were bound to him by the tie of personal service, formed the highest class of nobility. The Thegns of inferior lords, of Bishops and Ealdormen, formed a secondary class. A nobility of this kind, there can be no doubt, was so far more liberal than the elder nobility of birth that admission to it was not forbidden to men of lower degree. The Ceorl, the ordinary freeman, could not in strictness become an Eorl, for the simple reason that he could not change his forefathers; but he might, and he often did, become a Thegn62. But, on the other hand, such a nobility, while it made it easier for the common freeman to rise, tended to lower the condition of the common freemen who did not rise. For the very reason that the barrier of birth is one which cannot be passed, it is in some respects less irksome than the barrier of wealth or office. The privileges of a strictly hereditary nobility are much more likely to sink into mere honorary distinctions than the privileges of a nobility whose rank is backed by the solid advantages of office and of a personal relation to the sovereign.

The tendency then of the first six hundred years after the settlement of the English in Britain was to increase the power of the Crown, to depress the lower class of freemen, to exchange a nobility of birth for a nobility of personal service to the King. That is to say, England had, before the Norman Conquest, already begun to walk, though with less speed than most other nations, in the path which led to the general overthrow of liberty throughout Europe. The foreign invasion which for a moment seemed to have crushed her freedom for ever did in truth only lead to its new birth, to its fresh establishment in forms better fitted to the altered state of things, forms better fitted to be handed on to later times, forms better fitted to preserve the well-being of a great nation, than those forms of the old Teutonic community which still linger on in those remote corners of the world which I spoke of at my beginning. That momentary overthrow, that lasting new birth, will be the subject of my second chapter. I will now only call you to bear in mind that England has never been left at any time without a National Assembly of some kind or other. Be it Witenagemót, Great Council, or Parliament, there has always been some body of men claiming, with more or less of right, to speak in the name of the nation. And bear too in mind that, down to the Norman Conquest, the body which claimed to speak in the name of the nation was, in legal theory at least, the nation itself. This is a point on which I mean again to speak more fully; I would now simply suggest the thought, new perhaps to many, that there was a time when every freeman of England, no less than every freeman of Uri, could claim a direct voice in the councils of his country. There was a time when every freeman of England could raise his voice or clash his weapon in the Assembly which chose Bishops and Ealdormen and Kings, when he could boast that the laws which he obeyed were laws of his own making, and that the men who bore rule over him were rulers of his own choosing. Those days are gone, nor need we seek to call them back. The struggles of ages on the field and in the Senate have again won back for us the selfsame rights in forms better suited to our times than the barbaric freedom of our fathers. Yet it is well that we should look back to the source whence comes all that we boast of as our own possession, all that we have handed on to our daughter commonwealths in other continents. Let us praise famous men and our fathers that begat us. Let us look to the rock whence we were hewn and to the hole of the pit whence we were digged. Freedom, the old poet says, is a noble thing63; it is also an ancient thing. And those who love it now in its more modern garb need never shrink from tracing back its earlier forms to the first days when history has aught to tell us of the oldest life of our fathers and our brethren.

CHAPTER II

In my first chapter I dealt mainly with those political institutions of the earliest times – institutions common to our whole race, institutions which still live on untouched among some small primitive communities of our race – out of which the still living Constitution of England grew. It is now my business, as the second part of my subject, to trace the steps by which that Constitution grew out of a political state with which at first sight it seems to have so little in common. My chief point is that it did thus, in the strictest sense, grow out of that state. Our English Constitution was never made, in the sense in which the Constitutions of many other countries have been made. There never was any moment when Englishmen drew out their political system in the shape of a formal document, whether as the carrying out of any abstract political theories or as the imitation of the past or present system of any other nation. There are indeed certain great political documents, each of which forms a landmark in our political history. There is the Great Charter, the Petition of Right, the Bill of Rights. But not one of these gave itself out as the enactment of anything new. All claimed to set forth, with new strength, it might be, and with new clearness, those rights of Englishmen which were already old. In all our great political struggles the voice of Englishmen has never called for the assertion of new principles, for the enactment of new laws; the cry has always been for the better observance of the laws which were already in force, for the redress of grievances which had arisen from their corruption or neglect64. Till the Great Charter was wrung from John, men called for the laws of good King Eadward. And when the tyrant had unwillingly set his seal to the groundwork of all our later Law, men called for the stricter observance of a Charter which was deemed to be itself only the laws of Eadward in a newer dress65. We have made changes from time to time; but they have been changes which have been at once conservative and progressive – conservative because progressive, progressive because conservative. They have been the application of ancient principles to new circumstances; they have been the careful repairs of an old building, not the pulling down of an old building and the rearing up of a new. The life and soul of English law has ever been precedent; we have always held that whatever our fathers once did their sons have a right to do again. When the Estates of the Realm declared the throne of James the Second to be vacant, they did not seek to justify the act by any theories of the right of resistance, or by any doctrines of the rights of man. It was enough that, three hundred years before, the Estates of the Realm had declared the throne of Richard the Second to be vacant66. By thus walking in the old paths, by thus hearkening to the wisdom of our forefathers, we have been able to change whenever change has been needed, and we have been kept back from changing out of the mere love of abstract theory. We have thus been able to advance, if somewhat slowly, yet the more surely; and when we have made a false step, we have been able to retrace it. On this last power, the power of undoing whatever has been done amiss, I wish specially to insist. In tracing the steps by which our Constitution has grown into its present shape, I shall try specially to show in how many cases the best acts of modern legislation have been, wittingly or unwittingly, a falling back on the principles of our earliest times. In my first chapter I tried to show how our fathers brought with them into the Isle of Britain those primæval institutions which were common to them with the whole Teutonic race. I tried to show how those institutions were modified in the course of time by the circumstances of the English Conquest of Britain, and by the events which followed that Conquest. I showed how the kingly power grew with every increase of the territorial extent of the kingdom; how the old nobility of birth gave way to a new nobility of personal relation to the sovereign; and how the effect of these changes seems to have been to make it easier for the individual freeman of the lower rank to rise, but at the same time to lower the position of the ordinary freemen as a class. This last change was still more largely brought about as an independent result of the same changes which tended to increase the kingly power. In a state of things where representation is unknown, where every freeman is an elector and a lawgiver, but where, if he exercises his elective and legislative rights, he must exercise them directly in his own person – in such a state of things as this every increase of the national territory makes those rights of less practical value, and causes the actual powers of government to be shut up in the hands of a smaller body. There is no doubt that in the earliest Teutonic assemblies every freeman had his place. There is no doubt that in England every freeman kept his place in the smaller local assemblies of the mark, the hundred, and the shire67. He still, where modern legislation has not wholly swept it away, keeps, as I hinted in my former lecture, some faint shadow of the old right when he gives a vote in the assembly, in which the assembly of the mark still lives on, that is, in the vestry of his parish. But how as to the great assembly of all, the Assembly of the Wise, the Witenagemót of the whole realm? No ancient record gives us any clear or formal account of the constitution of that body. It is commonly spoken of in a vague way as a gathering of the wise, the noble, the great men68. But, alongside of passages like these, we find other passages which speak of it in a way which implies a far more popular constitution. King Eadward is said to be chosen King by “all folk.” Earl Godwine “makes his speech before the King and all the people of the land.” Judicial sentences and other acts of authority are voted by the army, that is by the people under arms. Sometimes we find direct mention of the presence of large and popular classes of men, as the citizens of London or Winchester69. The inference from all this is obvious. The right of the ordinary freeman to attend, to vote – it might perhaps be nearer the truth to say to shout70– in the general Assembly of the whole realm was never formally taken away. But it was a right which, in its own nature, most men could hardly ever exercise. None but men of wealth would have the means, none but men of some personal importance would have any temptation, to take long journeys for such a purpose. It is not likely that any great multitude would, under ordinary circumstances, set off from Northern England to attend meetings which were habitually held at Westminster, Winchester, and Gloucester. It is plain that the habitual attendance would not go beyond a small body of chief men, Earls, Bishops, Abbots, the officers of the King’s court, the Thegns of the greatest wealth or the highest personal influence. But it is plain that, when the heart of the nation was specially stirred by some overwhelming interest, many men would find their way to the Assembly who would not find their way to it in ordinary times. And, when the Assembly was held in a town, the citizens of that town at once formed a popular element ready on the spot. Hence we can account for the seemingly contradictory way in which the Assembly is spoken of, sometimes in language which would imply an aristocratic body, sometimes in language which would imply a body highly democratic. It was in fact a body, democratic in ancient theory, aristocratic in ordinary practice, but to which any strong popular impulse could at any time restore its ancient democratic character71. Acts done by a freely chosen representative body may, without much straining of language, be said to be done by the whole people. But acts done by a body not representative could never be called the acts of the whole people, unless the whole people had an acknowledged right to attend its meetings, though that right might, under all ordinary circumstances, be exercised only by a few of their number.