General Summary of English Const.i.tutional History[1]

[1] This Summary is inserted for the benefit of those who desire a compact, connected view of the development of the English Const.i.tution, such as may be conveniently used either for reference, for a general review of the subject, or for purposes of special study. --D.H.M.

For authorities, see Stubbs (449-1485); Hallam (1485-1760); May (1760- 1870); Amos (1870-1880); see also Hansard and Cobbett's "Parliamentary History," the works of Freeman, Taswell-Langmead (the best one-volume Const.i.tutional History), Feilden's Manual, and A. L. Lowell's "The Government of England," 2 vols., in the Cla.s.sified List of Books beginning on page x.x.xvi.

The references inserted in parentheses are to sections in the body of the history.

1. Origin and Primitive Government of the English People.

The main body of the English people did not originate in Britain, but in Northwestern Germany. The Jutes, Saxons, and Angles were independent, kindred tribes living on the banks of the Elbe and its vicinity.

They had no written laws, but obeyed time-honored customs which had all the force of laws. All matters of public importance were decided by each tribe at meetings held in the open air. There every freeman had an equal voice in the decision. There the people chose their rulers and military leaders; they discussed questions of peace and war; finally, acting as a high court of justice, they tried criminals and settled disputes about property.

In these rude methods we see the beginning of the English Const.i.tution. Its growth has been the slow work of centuries, but the great principles underlying it have never changed. At every stage of their progress the English people and their descendants throughout the globe have claimed the right of self-government; and, if we except the period of the Norman Conquest, whenever that right has been persistently withheld or denied, the people have risen in arms and regained it.

2. Conquest of Britain; Origin and Power of the King.

After the Romans abandoned Britain the English invaded the island 449(?), and in the course of a hundred and fifty years conquered it and established a number of rival settlements. The native Britons were, in great part, killed off or driven to take refuge in Wales and Cornwall.

The conquerors brought to their new home the methods of government and modes of life to which they had been accustomed in Germany. A cl.u.s.ter of towns--that is, a small number of enclosed habitations (S103)-- formed a hundred (a district having either a hundred families or able to furnish a hundred warriors); a cl.u.s.ter of hundreds formed a shire or county. Each of these divisions had its public meeting, composed of all its freemen or their representatives, for the management of its own affairs. But a state of war--for the English tribes fought each other as well as fought the Britons--made a strong central government necessary. For this reason the leader of each tribe was made king.

At first he was chosen, at large, by the entire tribe; later, unless there was some good reason for a different choice, the King's eldest son was selected as his successor. Thus the right to rule was practically fixed in the line of a certain family descent.

The ruler of each of these petty kingdoms acted as commander-in-chief in war, and as supreme judge in law.

3. The Witenagemot, or General Council.

In all other respects the King's authority was limited--except when he was strong enough to get his own way--by the Witenagemot, or General Council. This body consisted of the chief men of each kingdom acting in behalf of its people.[1] IT exercised the following powers: (1) It elected the King, and if the people confirmed the choice, he was crowned. (2) If the King proved unsatisfactory, the Council might depose him and choose a successor. (3) The King, with the consent of the Council, made the laws,--that is, he declared the customs of the tribe. (4) The King, with the Council, appointed the chief officers of the kingdom (after the introduction of Christianity this included the bishops); but the King alone appointed the sheriff, to represent him and collect the revenue in each shire. (5) The Council confirmed or denied grants of portions of the public lands made by the King to private persons. (6) The Council acted as the high court of justice, the King sitting as supreme judge. (7) The Council, with the King, discussed all questions of importance,--such as the levying of taxes, and the making of treaties; smaller matters were left to the towns, hundreds, and shires to settle for themselves. After the consolidation of the different English kingdoms into one, the Witenagemot expanded into the National Council. In it we see "the true beginning of the Parliament of England."

[1] The Witenagmot (i.e. the Meeting of the Witan, or Wise Men, S80), says Stubbs ("Select Charters"), represented the people, although it was not a collection of representatives.

4. How England became a United Kingdom; Influence of the Church and of the Danish Invasions.

For a number of centuries Britain consisted of a number of little rival kingdoms, almost constantly at war with each other. Meanwhile missionaries from Rome had introduced Christianity, 597. Through the influence of Theodore of Tarsus, Archbishop of Canterbury (668), the clergy of the different hostile kingdoms met in general Church councils.[2] This religious unity of action prepared the way for political unity. The Catholic Church--the only Christian Church (except the Greek Church) then existing--made men feel that their highest interests were one; it "created the nation" (S48).

[2] This movement began several years earlier (S48), but Theodore of Tarsus was its first great organizer.

This was the first cause of the union of the kingdoms. The second was the invasion of the Danes. These fierce marauders forced the people south of the Thames to join in common defense, under the leadership of Alfred, King of the West Saxons. By the Treaty of Wedmore, 878, the Danes were compelled to give up Southwestern England, but they retained the whole of the Northeast. About the middle of the tenth century, one of Alfred's grandsons conquered the Dnaes, and took the t.i.tle of "King of England."[1] Later, the Danes, reenforced by fresh invasions of their countrymen, made themselves masters of the land; yet Canute, the most powerful of these Danish kings, ruled according to English methods. At length the great body of the people united in choosing Edward the Confessor king (1042-1066). He was English by birth, but Norman by education. Under him the unity of the English kingdom was, in name at least, fully restored.

[1] Some authorities consider Edgar (959) as the first "King of all England." In 829 Egbert, King of the West Saxons, forced all the other Saxon Kings of Britian to acknowledge him as their "Overlord"

(S49).

5. Beginning of the Feudal System; its Results.

Meantime a great change had taken place in England with respect to holding land (SS86, 150). We shall see clearly to what that change was tending if we look at the condition of France. There a system of government and of land tenure existed known as the Feudal System.

Under it the King was regarded as the owner of the entire realm. He granted, with his royal protection, the use of portions of the land to his chief men or n.o.bles, with the privilege of building castles and of establishing courts of justice on these estates. Such grants were made on two conditions: (1) that the tenants should take part in the King's Council; (2) that they should do military service in the King's behalf, and furnish besides a certain number of fully armed hors.e.m.e.n in proportion to the amount of land they had received. So long as they fulfilled these conditionms--made under oath--they could retain their estates, and hand them down to their children; but if they failed to keep their oath, they forfeited the land to the King.

These great military barons or lords let out parts of their immense manors,[2] or estates, on similar conditions,--namely (1) that their va.s.sals or tenants should pay rent to them by doing military or other service; and (2) that they should agree that all questions concerning their rights and duties should be tried in the lord's private court.[3] On the other hand, the lord of the manor pledged himself to protect his va.s.sals.

[2] Manor (man'or): see plan of a manor (Old French manoir, "a mansion") on page 75, the estate of a feudal lord. Every manor had two courts. The most important of these was the "court baron." It was composed of all the free tenants of the manor, with the lord (or his representative) presiding. It dealt with civil cases only. The second court was the "court customary," which dealt with cases connected with villeinage. The manors held by the greater barons had a third court, the "court leet," which dealt with criminal cases, and could inflict the death penalty. In all cases the decisions of the manorial courts would be pretty sure to be in the lord's favor. In England, however, these courts never acquired the degree of power which they did on the Continent.

[3] See note above, on the manor.

On every manor there were usually three cla.s.ses of these tenants: (1) those who discharged their rent by doing military duty; (2) those who paid by a certain fixed amount of labor--or, if they preferred, in produce or in money; (3) the villeins, or common laborers, who were bound to remain on the estate and work for the lord, and whose condition, although they were not wholly dest.i.tute of legal rights, was practically not very much above that of slaves (S113).

But there was another way by which men might enter the Feudal System; for while it was growing up there were many small free landholders, who owned their farms and owed no man any service whatever. In those times of constant civil war such men would be almost in daily peril of losing, not only their property, but their lives. To escape this danger, they would hasten to "commend" themselves to some powerful neighboring lord. To do this, they pledged themselves to become "his men," surrendering their farms to him, and received them again as feudal va.s.sals. That is, the lord bound himself to protect them against their enemies , and they bound themselves to do "suit and service"[1] like the other tenants of the manor; for "suit and service" on the one side, and "protection" on the other, made up the threefold foundation of the Feudal system.

[1] That is, they pledged themselves to do suit in the lord's private court, and to do service in his army.

Thus in time all cla.s.ses of society became bound together. At the top stood the King, who was no man's tenant, but, in name at least, every man's master; at the bottom crouched the villein, who was no man's master, but was, in fact, the most servile and helpless of tenants.

Such was the condition of things in France. In England, however, this system of land tenure was not completely established until after the Norman Conquest, 1066; for in England the tie which bound men to the King and to each other was originally one of pure choice, and had nothing directly to do with land. Gradually, however, this changed; and by the time of Edward the Confessor land in England had come to be held on conditions so closely resembling those of France that one step more--and that a very short one--would have made England a kingdom exhibiting all the most dangerous features of French feudalism.

For, notwithstanding certain advantages,[2] feudalism had this great evil: that the chief n.o.bles often became in time more powerful than the King. This danger now menaced England. For convenience Canute the Dane had divided the realm into four earldoms. The holders of these vast estates had grown so mighty that they scorned royal authority. Edward the Confessor did not dare resist them. The ambition of each earl was to get the supreme mastery. This threatened to bring on civil war, and to split the kingdom into fragments.

Fortunately for the welfare of the nation, William, Duke of Normandy, by his invasion and conquest of England, 1066, put an effectual stop to the selfish schemes of these four rival n.o.bles.

[2] On the Advantages of Feudalism, see S87.

6. William the Conqueror and his Work.

After William's victory at Hastings and march on London (SS74, 107), the National Council chose him sovereign,--they would not have dared to refuse,--and he was crowned by the Archbishop of York in Westminster Abbey. This coronation made him the legal successor of the line of English kings. In form, therefore, there was no break in the order of government; for though William had forced himself upon the throne, he had done so according to law and custom, and not directly by the sword.

Great changed followed the conquest, but they were not violent. The King abolished the four great earldoms (S64), and restored national unity. He gradually dispossessed the chief English landholders of their lands, and bestowed them, under strict feudal laws, on his Norman followers. He likewise gave all the highest positions in the Church to Norman bishops and abbots. The National Council now changed its character. It became simply a body of Norman barons, who were bound by feudal custom to meet with the King. But they did not restrain his authority; for William would brook no interference with his will from any one, not even from the Pope himself (S118).

But though the Conqueror had a tyrant's power, he rarely used it like a tyrant. We have seen[1] that the great excellence of the early English government lay in the fact that the towns, hundreds, and shires were self-governing in all local matters; the drawback to this system was its lack of unity and of a strong central power that could make itself respected and obeyed. William supplied this power,-- without which there could be no true national strength,--yet at the same time he was careful to encourage the local system of self- government. He gave London a liberal charter to protect its rights and liberties (S107). He began the organization of a royal court of justice; he checked the rapacious Norman barons in their efforts to get control of the people's courts.

[1] See SS2, 3 of this Summary.

Furthermore, side by side with the feudal cavalry army, he maintained the old English county militia of foot soldiers, in which every freeman was bound to serve. He used this militia, when necessary, to prevent the barons from getting the upper hand, and so destroying those liberties which were protected by the Crown as its own best safeguard against the plots of the n.o.bles.

Next, William had a census, survey, and valuation made of all the estates in the kingdom outside London which were worth examination.

The result of this great work was recorded in Domesday Book (S120).

By means of that book--still preserved--the King knew what no English ruler had known before him; that was, the property-holding population and resources of the kingdom. Thus a solid foundation was laid on which to establish the feudal revenue and the military power of the Crown.

Finally, just before his death, the Conqueror completed the organization of his government. Hitherto the va.s.sals of the great barons had been bound to them alone. They were sworn to fight for their masters, even if those masters rose in open rebellion against the sovereign. William changed all that. At a meeting held at Salisbury, 1086, he compelled every landholder in England, from the greatest to the smallest,--sixty thousand, it is said,--to swear to be "faithful to him against all others" (S121). By that oath he "broke the neck of the Feudal System" as a form of government, though he retained and developed the principle of feudal land tenure. Thus at one stroke he made the Crown the supreme power in England; had he not done so, the nation would soon have fallen prey to civil war.

7. William's Norman Successors.

William Rufus has a bad name in history, and he fully deserves it.

But he had this merit: he held the Norman barons in check with a stiff hand, and so, in one way, gave the country comparative peace.

His successor, Henry I, granted, 1100, a Charter of Liberties (S135, note 1) to his people, by which he recognized the sacredness of the old English laws for the protection of life and property. Somewhat more than a century later this doc.u.ment became, as we shall see, the basis of the most celebrated charter known in English history. Henry attempted important reforms in the administration of the laws, and laid the foundation of that system which his grandson, Henry II, was to develop and establish. By these measures he gained the t.i.tle of the "Lion of Justice," who "made peace for both man and beast."

Furthermore, in an important controversy with the Pope respecting the appointment of bishops (S136), Henry obtained the right (1107) to require that both bishops and abbots, after taking possession of their Church estates, should be obliged like the baron to furnish troops for the defense of the kingdom.

But in the next reign--that of Stephen--the barons got the upper hand, and the King was powerless to control them. They built castles without royal license, and from these private fortresses they sallied forth to ravage, rob, and murder in all directions. Had that period of terror continued much longer, England would have been torn to pieces by a mult.i.tude of greedy tyrants.

8. Reforms of Henry II; Scutage; a.s.size of Clarendon; Juries; Const.i.tutions of Clarendon.

With Henry II the true reign of law begins. To carry out the reforms begun by his grandfather, Henry I, the King fought both barons and clergy. Over the first he won a complete and final victory; over the second he gained a partial one.

Henry began his work by pulling down the unlicensed castles built by the "robber barons" in Stephen's reign. But, according to feudal usage, the King was dependent on these very barons for his cavalry,-- his chief armed force. He resolved to make himself independent of their reluctant aid. To do this he offered to release them from military service, provided they would pay a tax, called "scutage," or "shield money" (1159).[1] The barons gladly accepted the offer. With the money Henry was able to hire "mercenaries," or foreign troops, to fight for him abroad, and, if need be, in England as well. Thus he struck a great blow at the power of the barons, since they, through disuse of arms, grew weaker, while the King grew steadily stronger.