Chapter III

In my two former chapters I have carried my brief sketch of the history of the English Constitution down to the great events of the seventeenth century. I chose that point as the end of my consecutive narrative, because the peculiar characteristic of the times which have followed has been that so many and such important practical changes have been made without any change in the written Law, without any re-enactment of the Law, without any fresh declaration of its meaning. The movements and revolutions of former times, as I have before said, seldom sought any acknowledged change in the Law, but rather its more distinct enactment, its more careful and honest administration. This was the general character of all the great steps in our political history, from the day when William of Normandy renewed the Laws of Eadward to the day when William of Orange gave his royal assent to the Bill of Rights. But, though each step in our progress took the shape, not of the creation of a new right, but of the firmer establishment of an old one, yet each step was marked by some formal and public act which stands enrolled among the landmarks of our progress. Some Charter was granted by the Sovereign, some Act of Parliament was passed by the Estates of the Realm, setting forth in legal form the nature and measure of the rights which it was sought to place on a firmer ground. Since the seventeenth century things have in this respect greatly altered. The work of legislation, of strictly constitutional legislation, has never ceased; a long succession of legislative enactments stand out as landmarks of political progress no less in more recent than in earlier times. But alongside of them there has also been a series of political changes, changes of no less moment than those which are recorded in the statute-book, which have been made without any legislative enactment whatever. A whole code of political maxims, universally acknowledged in theory, universally carried out in practice, has grown up, without leaving among the formal acts of our legislature any trace of the steps by which it grew. Up to the end of the seventeenth century, we may fairly say that no distinction could be drawn between the Constitution and the Law. The prerogative of the Crown, the privilege of Parliament, the liberty of the subject, might not always be clearly defined on every point. It has indeed been said that those three things were all of them things to which in their own nature no limit could be set. But all three were supposed to rest, if not on the direct words of the Statute Law, yet at least on that somewhat shadowy yet very practical creation, that mixture of genuine ancient traditions and of recent devices of lawyers, which is known to Englishmen as the Common Law. Any breach either of the rights of the Sovereign or of the rights of the subject was a legal offence, capable of legal definition and subjecting the offender to legal penalties. An act which could not be brought within the letter either of the Statute or of the Common Law would not then have been looked upon as an offence at all. If lower courts were too weak to do justice, the High Court of Parliament stood ready to do justice even against the mightiest offenders. It was armed with weapons fearful and rarely used, but none the less regular and legal. It could smite by impeachment, by attainder, by the exercise of the greatest power of all, the deposition of the reigning King. But men had not yet reached the more subtle doctrine that there may be offences against the Constitution which are no offences against the Law. They had not learned that men in high office may have a responsibility practically felt and acted on, but which no legal enactment has defined, and which no legal tribunal can enforce. It had not been found out that Parliament itself has a power, now practically the highest of its powers, in which it acts neither as a legislature nor as a court of justice, but in which it pronounces sentences which have none the less practical force because they carry with them none of the legal consequences of death, bonds, banishment, or confiscation. We now have a whole system of political morality, a whole code of precepts for the guidance of public men, which will not be found in any page of either the Statute or the Common Law, but which are in practice held hardly less sacred than any principle embodied in the Great Charter or in the Petition of Right. In short, by the side of our written Law there has grown up an unwritten or conventional Constitution. When an Englishman speaks of the conduct of a public man being constitutional or unconstitutional, he means something wholly different from what he means by his conduct being legal or illegal. A famous vote of the House of Commons, passed on the motion of a great statesman, once declared that the then Ministers of the Crown did not possess the confidence of the House of Commons, and that their continuance in office was therefore at variance with the spirit of the Constitution 1. The truth of such a position, according to the traditional principles on which public men have acted for some generations, cannot be disputed; but it would be in vain to seek for any trace of such doctrines in any page of our written Law. The proposer of that motion did not mean to charge the existing Ministry with any illegal act, with any act which could be made the subject either of a prosecution in a lower court or of impeachment in the High Court of Parliament itself. He did not mean that they, Ministers of the Crown, appointed during the pleasure of the Crown, committed any breach of the Law of which the Law could take cognizance, merely by keeping possession of their offices till such time as the Crown should think good to dismiss them from those offices. What he meant was that the general course of their policy was one which to a majority of the House of Commons did not seem to be wise or beneficial to the nation, and that therefore, according to a conventional code as well understood and as effectual as the written Law itself, they were bound to resign offices of which the House of Commons no longer held them to be worthy. The House made no claim to dismiss those Ministers from their offices by any act of its own; it did not even petition the Crown to remove them from their offices. It simply spoke its mind on their general conduct, and it was held that, when the House had so spoken, it was their duty to give way without any formal petition, without any formal command, on the part either of the House or of the Sovereign 2. The passing by the House of Commons of such a resolution as this may perhaps be set down as the formal declaration of a constitutional principle. But though a formal declaration, it was not a legal declaration. It created a precedent for the practical guidance of future Ministers and future Parliaments, but it neither changed the Law nor declared it. It asserted a principle which might be appealed to in future debates in the House of Commons, but it asserted no principle which could be taken any notice of by a Judge in any Court of Law. It stands therefore on a wholly different ground from those enactments which, whether they changed the Law or simply declared the Law, had a real legal force, capable of being enforced by a legal tribunal. If any officer of the Crown should levy a tax without the authority of Parliament, if he should enforce martial law without the authority of Parliament, he would be guilty of a legal crime. But, if he merely continues to hold an office conferred by the Crown and from which the Crown has not removed him, though he hold it in the teeth of any number of votes of censure passed by both Houses of Parliament, he is in no way a breaker of the written Law. But the man who should so act would be universally held to have trampled under foot one of the most undoubted principles of the unwritten but universally accepted Constitution.

The remarkable thing is that, of these two kinds of hypothetical offences, the latter, the guilt of which is purely conventional, is almost as unlikely to happen as the former, whose guilt is a matter established by Law. The power of the Law is so firmly established among us that the possibility of breaches of the Law on the part of the Crown or its Ministers hardly ever comes into our heads. And conduct sinning against the broad lines of the unwritten Constitution is looked on as hardly less unlikely. Political men may debate whether such and such a course is or is not constitutional, just as lawyers may debate whether such a course is or is not legal. But the very form of the debate implies that there is a Constitution to be observed, just as in the other case it implies that there is a Law to be observed. Now this firm establishment of a purely unwritten and conventional code is one of the most remarkable facts in history. It is plain that it implies the firmest possible establishment of the power of the written Law as its groundwork. If there were the least fear of breaches of the written Law on the part of the Crown or its officers, we should be engaged in finding means for getting rid of that more serious danger, not in disputing over points arising out of a code which has no legal existence. But it is well sometimes to stop and remember how thoroughly conventional the whole of our received system is. The received doctrine as to the relations of the two Houses of Parliament to one another, the whole theory of the position of the body known as the Cabinet and of its chief the Prime Minister, every detail in short of the practical working of government among us, is a matter belonging wholly to the unwritten Constitution and not at all to the written Law. The limits of the royal authority are indeed clearly defined by the written Law. But I suspect that many people would be amazed at the amount of power which the Crown still possesses by Law, and at the many things, which in our eyes would seem utterly monstrous, but which might yet be done by royal authority without any law being broken. The Law indeed secures us against arbitrary legislation, against the repeal of any old laws, or the enactment of any new ones, without the consent of both Houses of Parliament 3. But it is the unwritten Constitution alone which makes it practically impossible for the Crown to refuse its assent to measures which have passed both Houses of Parliament, and which in many cases makes it almost equally impossible to refuse the prayer of an address sent up by one of those Houses only. The written Law leaves to the Crown the choice of all its ministers and agents, great and small; their appointment to office and their removal from office, as long as they commit no crime which the Law can punish, is a matter left to the personal discretion of the Sovereign. The unwritten Constitution makes it practically impossible for the Sovereign to keep a Minister in office of whom the House of Commons does not approve, and it makes it almost equally impossible to remove from office a Minister of whom the House of Commons does approve 4. The written Law and the unwritten Constitution alike exempt the Sovereign from all ordinary personal responsibility 5. They both transfer the responsibility from the Sovereign himself to his agents and advisers. But the nature and extent of their responsibility is widely different in the eyes of the written Law and in the eyes of the unwritten Constitution. The written Law is satisfied with holding that the command of the Sovereign is no excuse for an illegal act, and that he who advises the commission of an illegal act by royal authority must bear the responsibility from which the Sovereign himself is free. The written Law knows nothing of any responsibility but such as may be enforced either by prosecution in the ordinary Courts or by impeachment in the High Court of Parliament. The unwritten Constitution lays the agents and advisers of the Crown under a responsibility of quite another kind. What we understand by the responsibility of Ministers is that they are liable to have all their public acts discussed in Parliament, not only on the ground of their legal or illegal character, but on the vaguest grounds of their general tendency. They may be in no danger of prosecution or impeachment; but they are no less bound to bow to other signs of the will of the House of Commons; the unwritten Constitution makes a vote of censure as effectual as an impeachment, and in many cases it makes a mere refusal to pass a ministerial measure as effectual as a vote of censure. The written Law knows nothing of the Cabinet or the Prime Minister; it knows them as members of one or the other House of Parliament, as Privy Councillors, as holders, each man in his own person, of certain offices; but, as a collective body bound together by a common responsibility, the Law never heard of them 6. But in the eye of the unwritten Constitution the Prime Minister and the Cabinet of which he is the head form the main feature of our system of government. It is plain at a moment’s glance that the practical power of the Crown is not now what it was in the reign of William the Third or even in that of George the Third. But the change is due, far less to changes in the written Law than to changes in the unwritten Constitution. The Law leaves the powers of the Crown untouched, but the Constitution requires that those powers should be exercised by such persons, and in such a manner, as may be acceptable to a majority of the House of Commons. In all these ways, in a manner silent and indirect, the Lower House of Parliament, as it is still deemed in formal rank, has become the really ruling power in the nation. There is no greater contrast than that which exists between the humility of its formal dealings with the Crown and even with the Upper House 7, and the reality of the irresistible power which it exercises over both. It is so conscious of the mighty force of its indirect powers that it no longer cares to claim the direct powers which it exercised in former times. There was a time when Parliament was directly consulted on questions of War and Peace. There was a time when Parliament claimed directly to appoint several of the chief officers of state 8. There were much later times when it was no unusual thing to declare a man in power to be a public enemy, or directly to address the Crown for his removal from office and from the royal presence. No such direct exercises of parliamentary power are needed now, because the whole machinery of government may be changed by the simple process of the House refusing to pass a measure on which the Minister has made up his mind to stake his official being.

Into the history of the stages by which this most remarkable state of things has been brought about I do not intend here to enter. The code of our unwritten Constitution has, like all other English things, grown up bit by bit, and, for the most part, silently and without any acknowledged author. Yet some stages of the developement are easily pointed out, and they make important landmarks. The beginning may be placed in the reign of William the Third, when we first find anything at all like a Ministry in the modern sense. Up to that time the servants of the Crown had been servants of the Crown, each man in the personal discharge of his own office. The holder of each office owed faithful service to the Crown, and he was withal responsible to the Law; but he stood in no special fellowship towards the holder of any other office. Provided he discharged his own duties, nothing hindered him from being the personal or political enemy of any of his fellow-servants. It was William who first saw that, if the King’s government was to be carried on, there must be at least a general agreement of opinions and aims among the King’s chief agents in his government 9. From this beginning a system has gradually grown up which binds the chief officers of the Crown to work together in at least outward harmony, to undertake the defence of one another, and on vital points to stand and fall together. Another important stage happened in much later times, when the King ceased to take a share in person in the deliberations of his Cabinet. And I may mark a change in language which has happened within my own memory, and which, like other changes of language, is certainly not without its meaning. We now familiarly speak, in Parliament and out of Parliament, of the body of Ministers actually in power, the body known to the Constitution but wholly unknown to the Law, by the name of “the Government.” We speak of “Mr. Gladstone’s Government” or “Mr. Disraeli’s Government.” I can myself remember the time when such a form of words was unknown, when “Government” still meant “Government by King, Lords, and Commons,” and when the body of men who acted as the King’s immediate advisers were spoken of as “Ministers” or “the Ministry”10.

This kind of silent, I might say stealthy, growth, has, without the help of any legislative enactment, produced that unwritten and conventional code of political rules which we speak of as the Constitution. This process I have spoken of as being characteristic of the days since the Revolution of 1688, as distinguished from earlier times. And so it undoubtedly is. At no earlier time have so many important changes in constitutional doctrine and practice won universal acceptance without being recorded in any written enactment. Yet this tendency of later times is, after all, only a further developement of a tendency which was at work from the beginning. It is simply another application of the Englishman’s love of precedent. The growth of the unwritten Constitution has much in common with the earlier growth of the unwritten Common Law. I have shown in earlier chapters that some of the most important principles of our earlier Constitution were established silently and by the power of precedent, without resting on any known written enactment. If we cannot show any Act of Parliament determining the relations in which the members of the Cabinet stand to the Crown, to the House of Commons, and to one another, neither can we show the Act of Parliament which decreed, in opposition to the practice of all other nations, that the children of the hereditary Peer should be simple Commoners. The real difference is that, in more settled times, when Law was fully supreme, it was found that many important practical changes might be made without formal changes in the Law. It was also found that there is a large class of political subjects which can be better dealt with in this way of tacit understandings than they can be in the shape of a formal enactment by Law. We practically understand what is meant by Ministers having or not having the confidence of the House of Commons; we practically recognise the cases in which, as not having the confidence of the House, they ought to resign office and the cases in which they may fairly appeal to the country by a dissolution of Parliament. But it would be utterly impossible to define such cases beforehand in the terms of an Act of Parliament. Or again, the Speaker of the House of Commons is an officer known to the Law. The Leader of the House of Commons is a person as well known to the House and the country, his functions are as well understood, as those of the Speaker himself. But of the Leader of the House of Commons the Law knows nothing. It would be hopeless to seek to define his duties in any legal form, and the House itself has, before now, shrunk from recognising the existence of such a person in any shape of which a Court of Law could take notice 11.

During a time then which is now not very far short of two hundred years, the silent and extra-legal growth of our conventional Constitution has been at least as important as the actual changes in our written Law. With regard to these last, the point on which I wish chiefly to dwell is the way in which not a few pieces of modern legislation have been—whether wittingly or unwittingly I do not profess to know—a return to the simpler principles of our oldest constitution. I trust to show that, in many important points, we have cast aside the legal subtleties which grew up from the thirteenth century to the seventeenth, and that we have gone back to the plain common sense of the eleventh or tenth, and of times far earlier still. In those ancient times we had already laws, but we had as yet no lawyers. We hear in early times of men who were versed above others in the laws of the land; but such special knowledge is spoken of as the attribute of age or of experience in public business, not as the private possession of a professional class 12. The class of professional lawyers grew up along with the growth of a more complicated and technical jurisprudence under our Norman and Angevin Kings. Now I mean no disrespect to a profession which in our present artificial state of society we certainly cannot do without, but there can be no kind of doubt that lawyers’ interpretations and lawyers’ ways of looking at things have done no small mischief, not only to the true understanding of our history but to the actual course of our history itself. The lawyer’s tendency is to carry to an unreasonable extent that English love of precedent which, within reasonable bounds, is one of our most precious safeguards. His virtue is that of acute and logical inference from given premisses; the premisses themselves he is commonly satisfied to take without examination from those who have gone before him. It is often wonderful to see the amazing ingenuity with which lawyers have piled together inference upon inference, starting from some purely arbitrary assumption of their own. Each stage of the argument, taken by itself, is absolutely unanswerable; the objection must be taken earlier, before the argument begins. The argument is perfect, if we only admit the premisses; the only unlucky thing is that the premisses will constantly be found to be historically worthless. Add to this that the natural tendency of the legal mind is to conservatism and deference to authority. This will always be the case, even with thoroughly honest men in an age when honesty is no longer dangerous. But this tendency will have tenfold force in times when an honest setting forth of the Law might expose its author to the disfavour of an arbitrary government. We shall therefore find that the premisses from which lawyers’ arguments have started, but which historical study shows to be unsound, are commonly premisses devised in favour of the prerogative of the Crown, not in favour of the rights of the people. Indeed the whole ideal conception of the Sovereign, as one, personally at least, above the Law, as one personally irresponsible and incapable of doing wrong, the whole conception of the Sovereign as the sole fountain of all honour, as the original grantor of all property, as the source from which all authority of every kind issues in the first instance, is purely a lawyer’s conception, and rests upon no ground whatever in the records of our early history 13. In later times indeed the evil has largely corrected itself; the growth of our unwritten Constitution under the hands of statesmen has done much practically to get rid of these slavish devices of lawyers. The personal irresponsibility of the Sovereign becomes practically harmless when the powers of the Crown are really exercised by Ministers who act under a twofold responsibility, both to the written Law and to the unwritten Constitution. Yet even now small cases of hardship sometimes happen in which some traditional maxim of lawyers, some device devised in favour of the prerogative of the Crown, stands in the way of the perfectly equal administration of justice. But in several important cases the lawgiver has directly stepped in to wipe out the inventions of the lawyer, and modern Acts of Parliament have brought things back to the simpler principles of our earliest forefathers. I will wind up my sketch of our constitutional history by pointing out several cases in which this happy result has taken place.

For many ages it was a legal doctrine universally received that Parliament at once expired at the death of the reigning King. The argument by which the lawyers reached this conclusion is, like most of their arguments, altogether unanswerable, provided only we admit their premisses. According to the lawyers’ conception, whatever might be the powers of Parliament when it actually came together, however much the King might be bound to act by its advice, consent, and authority, the Parliament itself did nevertheless derive its being from the authority of the King. Parliament was summoned by the King’s writ. The King might indeed be bound to issue the writs for its summons; still it was from the King’s writ that the Parliament actually derived its being and its powers. By another legal assumption, the force of the King’s writ was held to last only during the lifetime of the King who issued it. It followed therefore that Parliament, summoned by the King’s writ and deriving its authority from the King’s writ, was dissolved ipso facto by the death of the King who summoned it. Once admit the assumptions from which this reasoning starts, and the reasoning itself is perfect. But what is the worth of the assumptions? Let us see how this mass of legal subtlety would have looked in the eyes of a man of the eleventh century, in the eyes of a man who had borne his part in the elections of Eadward and of Harold, and who had raised his voice and clashed his arms in the great Assembly which restored Godwine to his lands and honours 14. To such an one the doctrine that a national Assembly could be gathered together only by the King’s writ, and the consequent doctrine that the national Assembly ceased to exist when the breath went out of the King’s body, would have seemed like the babble of a madman. When was the gathering together of the national Assembly more needed, when was it called upon to exercise higher and more inherent powers, than when the throne was actually vacant, and when the Assembly of the nation came together to determine who should fill it? And how could the Assembly be gathered together by the King’s writ when there was no King in the land to issue a writ? The King’s writ would be, in his eyes, a convenient way in ordinary times for fixing a time and place for the meetings of the Assembly, but it would be nothing more. It would be in no sense the source of the powers of the Assembly, powers which he would look upon as derived from the simple fact that the Assembly was itself the nation. In his eyes it was not the King who created the Assembly, but the Assembly which created the King. The doctrine that the King never dies, that the throne never can be vacant, would have seemed gibberish to one who had seen the throne vacant and had borne his part in filling it. The doctrine that the King can do no wrong would have seemed no less gibberish to one who knew that he might possibly be called on to bear his part in deposing a King. Three of the most famous Assemblies in English history have ever been puzzles in the eyes of mere legal interpreters; to the man of the eleventh century they would have seemed to be perfectly legal and regular, alike in their constitution and in their acts. The Assembly which in 1399 deposed Richard the Second and elected Henry the Fourth, though summoned by the King’s writ, was not opened by his commission, and it seems to have shrunk from taking the name of Parliament, and to have acted only by the name of the Estates of the Realm. As an Assembly which was in some sort irregular, it seems to have shrunk from going through the usual forms of a regular Parliament, and, though it did in the end exercise the greatest of parliamentary powers, it seems to have been afraid to look its own act in the face. Richard was deposed, but his deposition was mixed up with a resignation of the Crown on his own part, and with a challenge of the Crown on the part of Henry. Then, as a demise of the Crown had taken place, it was held that the same legal consequences followed as if that demise had been caused by the death of the King. It was held that the Parliament which had been summoned by the writ of King Richard ceased to exist when Richard ceased to be King, and, as it was not thought good to summon a new Parliament, the same Parliament was, by a legal fiction, summoned again under the writ of King Henry 15. All these doubts and difficulties, all these subtleties of lawyers, would have been wholly unintelligible to a man of the eleventh century. In his eyes the Witan would have come together, whether by King Richard’s writ or not it mattered little; having come together, they had done the two greatest of national acts by deposing one King and choosing another; having done this, if there was any other national business to be done, there was no reason on earth why they should not go on and do it. Take again another Assembly of equal importance in our history, the Convention which voted the recall—that is, in truth, the election—of Charles the Second. That Assembly succeeded a Parliament which had ventured on a still stronger step than deposing a King, that of sending a reigning King to trial and execution 16. It was not held in 1649 that the Long Parliament came to an end when the axe fell on the neck of Charles the First, but the doctrine that it ought to have done so was not forgotten eleven years later 17. And the Convention which was elected, as freely as any Parliament ever was elected 18, in answer to the vote of the expiring Long Parliament, was, because it was so elected and not in answer to the King’s writ, looked on as an Assembly of doubtful validity. It acted as a Parliament; it restored the King; it granted him a revenue; and it did a more wonderful work than all, for it created itself, and passed an Act declaring itself to be a lawful Parliament 19. Yet, after all, it was deemed safer that all the Acts of the Convention Parliament should be confirmed by its successor which was summoned in due form by the King’s writ. These fantastic subtleties, subtleties worthy of the kindred device by which the first year of Charles’s reign was called the twelfth, would again have been wholly unintelligible to our man of the eleventh century. He might have remembered that the Assembly which restored Æthelred—which restored him on conditions, while Charles was restored without conditions—did not scruple to go on and pass a series of the most important decrees that were passed in any of our early Assemblies 20. Once more again, the Convention which deposed James and elected William, seemed, like that which deposed Richard and elected Henry, to doubt its own existence and to shrink from its own act. James was deposed; but the Assembly which deposed him ventured not to use the word, and, as an extorted abdication was deemed expedient in the case of Richard, so a constructive abdication was imagined in the case of James 21. And the Assembly which elected William, like the Assembly which elected Henry and that which elected Charles, prolonged its own existence by the same transparent fiction of voting itself to be a lawful Parliament. Wise men held at the time that, at least in times of revolution, a Parliament might be called into being by some other means than that of the writ of a King. Yet it was deemed that some additional security was given to the existence of the Assembly and to the validity of its acts by this second exercise of the mysterious power of self-creation 22. Once more in the same reign the question was brought forward whether a Parliament summoned by the joint writ of William and Mary did not expire when Mary died and William reigned alone. This subtlety was suggested only to be contemptuously cast aside; yet it may be fairly doubted whether it was not worth at least as much as any of the kindred subtleties which on the three earlier occasions were deemed of such vast importance 23. The untutored wisdom of Englishmen, in the days when we had laws but when those laws had not yet been made the sport of the subtleties of lawyers, would have seen as little force in the difficulties which it was deemed necessary to get over by solemn parliamentary enactments as in the difficulty which neither House of Parliament thought worthy of any serious discussion.

And now what has modern legislation done towards getting rid of all these pettifogging devices, and towards bringing us back to the simpler doctrines of our forefathers? Parliament is still summoned by the writ of the Sovereign; in settled times no other way of bringing it together can be so convenient. But, if times of revolution should ever come again, we, who do even our revolutions according to precedent, shall probably have learned something from the revolutionary precedents of 1399, of 1660, and of 1688. In each later case the subtlety is one degree less subtle than in the former. The Estates of the Realm which deposed Richard were changed into a Parliament of Henry by the transparent fiction of sending out writs which were not, and could not be, followed by any real elections. The Convention which recalled or elected Charles the Second did indeed turn itself into a Parliament, but it was deemed needful that its acts should be confirmed by another Parliament. The acts of the Convention of 1688 were not deemed to need any such confirmation. Each of these differences marks a stage in the return to the doctrine of common sense, that, convenient as it is in all ordinary times that Parliament should be summoned by the writ of the Sovereign, yet it is not from that summons, but from the choice of the people, that Parliament derives its real being and its inherent powers. As for the other end of the lawyers’ doctrine, the inference that Parliament is ipso facto dissolved by a demise of the Crown, from that a more rational legislation has set us free altogether. Though modern Parliaments are no longer called on to elect Kings, yet experience and common sense have taught us that the time when the Sovereign is changed is exactly the time when the Great Council of the Nation ought to be in full life and activity. By a statute only a few years later than the raising of the question whether a Parliament of William and Mary did or did not expire by the death of Mary, all such subtleties were swept away. It was now deemed so needful that the new Sovereign should have a Parliament ready to act with him, that it became the Law that the Parliament which was in being at the time of a demise of the Crown should remain in being for six months, unless specially dissolved by the new Sovereign. A later statute went further still, and provided that, if a demise of the Crown should take place during the short interval when there is no Parliament in being, the last Parliament should ipso facto revive, and should continue in being, unless a second time dissolved, for six months more. Thus the event which, by the perverted ingenuity of lawyers, was held to have the power of destroying a Parliament, was, by the wisdom of later legislation, clothed with the power of calling a Parliament into being. Lastly, in our own days, all traces of the lawyers’ superstition have been swept away, and the demise of the Crown now in no way affects the duration of the existing Parliament 24. Truly this is a case where the letter killeth and the spirit giveth life. The doctrine which had been inferred by unanswerable logic from an utterly worthless premiss has been cast aside in favour of the dictate of common sense. We have learned that the moment when the State has lost its head is the last moment which we ought to choose for depriving it of its body also.

Here then is a notable instance of the way in which the latest legislation of England has fallen back upon the principles of the earliest. Here is a point on which the eleventh century and the nineteenth are of one mind, and on which the fanciful scruples of the fourteenth and the seventeenth centuries are no longer listened to. Let us take another instance. In the old Teutonic Constitution, just as in the old Roman Constitution, large tracts of land were the property of the State, the ager publicus of Rome, the folkland of England. As the royal power grew, as the King came to be more and more looked on as the impersonation of the nation, the land of the people came to be more and more looked on as the land of the King, and the folkland of our Old-English charters gradually changed into the Terra Regis of Domesday 25. Like other changes of the kind, the Norman Conquest only strengthened and brought to its full effect a tendency which was already at work; but there can be no doubt that, down to the Norman Conquest, the King at least went through the form of consulting his Witan, before he alienated the land of the people to become the possession of an individual—in Old-English phrase, before he turned folkland into bookland26. After the Norman Conquest we hear no more of the land of the people; it has become the land of the King, to be dealt with according to the King’s personal pleasure. From the days of the first William to those of the Third, the land which had once been the land of the people was dealt with without any reference to the will of the people. Under a conscientious King it might be applied to the real service of the State, or bestowed as the reward of really faithful servants of the State. Under an unconscientious King it might be squandered broadcast among his minions or his mistresses 27. Now this wrong too is redressed. A custom as strong as law now requires that, at the beginning of each fresh reign, the Sovereign shall, not by an act of bounty but by an act of justice, give back to the nation the land which the nation lost so long ago. The royal demesnes are now handed over to be dealt with like the other revenues of the State, to be disposed of by Parliament for the public service 28. That is to say, the people have won back their own; the usurpation of the days of foreign rule has been swept away. We have in this case too gone back to the sound principles of our forefathers; the Terra Regis of the Norman has once more become the folkland of the days of our earliest freedom.

I will quote another case, a case in which the return from the fantasies of lawyers to the common sense of antiquity has been distinctly to the profit, if not of the abstraction called the Crown, yet certainly to that of its personal holder. As long as the folkland remained the land of the people, as long as our monarchy retained its ancient elective character, the King, like any other man, could inherit, purchase, bequeath, or otherwise dispose of, the lands which were his own private property as much as the lands of other men were theirs. We have the wills of several of our early Kings which show that a King was in this respect as free as any other man 29. But as the lawyers’ figment of hereditary right took root, as the other lawyers’ figment also took root by which the lands of the people were held to be at the personal disposal of the King, a third figment grew up, by which it was held that the person and the office of the King were so inseparably fused into one that any private estates which the King held before his accession to the throne became ipso facto part and parcel of the royal demesne. As long as the Crown remained an elective office, the injustice of such a rule would have made itself plain; it would have been at once seen to be as unreasonable as if it had been held that the private estates of a Bishop should merge in the estates of his see. As long as there was no certainty that the children or other heirs of the reigning King would ever succeed to his Crown, it would have been the height of injustice to deprive them in this way of their natural inheritance. The election of a King would have carried with it the confiscation of his private estate. But when the Crown was held to be hereditary, when the folkland was held to be Terra Regis, this hardship was no longer felt. The eldest son was provided for by his right of succession to the Crown, and the power of disposing of the Crown lands at pleasure gave the King the means of providing for his younger children. Still the doctrine was none the less unreasonable; it was a doctrine founded on no ground either of natural justice or of ancient law; it was a mere inference which had gradually grown up out of mere arbitrary theories about the King’s powers and prerogatives. And, as the old state of things gradually came back again, as men began to feel that the demesnes of the Crown were not the private possession of the reigning King, but were the true possession of the people—that is, as the Terra Regis again came back to its old state of folkland—it was felt to be unreasonable to shut out the Sovereign from a natural right which belonged to every one of his subjects. The land which, to put it in the mildest form, the King held in trust for the common service of the nation was now again employed to its proper use. It was therefore reasonable that a restriction which belonged to a past state of things should be swept away, and that Sovereigns who had given up an usurped power which they ought never to have held should be restored to the enjoyment of a natural right which ought never to have been taken from them. As our present Sovereign in so many other respects holds the place of Ælfred rather than the place of the Richards and Henries of later times, so she again holds the right which Ælfred held, of acquiring and disposing of private property like any other member of the nation 30.

These examples are, I hope, enough to make out my case. In each of them modern legislation has swept away the arbitrary inferences of lawyers, and has gone back to those simpler principles which the untutored wisdom of our forefathers never thought of calling in question. I could easily make the list much longer. Every act which has restrained the arbitrary prerogative of the Crown, every act which has secured or increased either the powers of Parliament or the liberty of the subject, has been a return, sometimes to the letter, at all times to the spirit, of our earliest Law. But I would enlarge on one point only, the most important point of all, and a point in which we may at first sight seem, not to have come nearer, but to have gone away further from the principles of early times. I mean with regard to the succession to the Crown. The Crown was of old, as I have already said, elective. No man had a right to become King till he had been called to the kingly office by the choice of the Assembly of the nation. No man actually was King till he had been admitted to the kingly office by the consecration of the Church. The doctrines that the King never dies, that the throne never can be vacant, that there can be no interregnum, that the reign of the next heir begins the moment the reign of his predecessor is ended, are all figments of later times. No signs of such doctrines can be found at any time earlier than the accession of Edward the First 31. The strong preference which in early times belonged to members of the kingly house, above all to the born son of a crowned King 32, gradually grew, under the influences which the Norman Conquest finally confirmed, into the doctrine of absolute hereditary right. That doctrine grew along with the general growth of the royal power; it grew as men gradually came to look on kingship as a possession held by a single man for his own profit, rather than as an office bestowed by the people for the common good of the realm. It might seem that, in this respect at least, we have not gone forward, but that we rather have gone back. For nothing is more certain than that the Crown is more strictly and undoubtedly hereditary now than it was in the days of Normans, Angevins, or Tudors. But a little thought will show that in this case also, we have not gone back but have gone forward. That is to say, we have gone forward by going back, by going back, in this case, not to the letter, but assuredly to the spirit of earlier times. The Crown is now more undoubtedly hereditary than it was in the fifteenth or sixteenth century; but this is because it is now hereditary by Law, because its powers are distinctly defined by Law. The will of the people, the source of all Law and of all power, has been exercised, not in the old form of personally choosing a King at every vacancy of the Crown, but by an equally lawful exercise of the national will, which has thought good to entail the Crown on a particular family.

It was in the reign of our last elective King that the Crown first became legally hereditary. The doctrine may seem a startling one, but it is one to which an unbiassed study of our history will undoubtedly lead us. Few things are more amusing than the treatment which our early history has met with at the hands of purely legal writers. There is something almost pitiable in the haltings and stumblings of such a writer as Blackstone, unable to conceive that his lawyer’s figment of hereditary right was anything short of eternal, and yet coming at every moment across events which showed that in early times all such figments were utterly unknown 33. In early times the King was not only elected, but he went through a twofold election. I have already said that the religious character with which most nations have thought good to clothe their Kings took in England, as in most other Christian lands, the form of an ecclesiastical consecration to the kingly office. That form we still retain; but in modern times it has become a mere form, a pageant impressive no doubt and instructive, but still a mere pageant, which gives the crowned King no powers which he did not equally hold while still uncrowned. The death of the former King at once puts his successor in possession of every kingly right and power; his coronation in no way adds to his legal authority, however much it may add to his personal responsibility towards God and his people. But this was not so of old time. The choice of the national Assembly gave the King so chosen the sole right to become King, but it did not make him King. The King-elect was like a Bishop-elect. The recommendation of the Crown, the election of the Chapter, and the confirmation of the Archbishop, give a certain man the sole right to a certain see, but it is only the purely religious rite of consecration which makes him actually Bishop of it 34. So it was of old with a King. The choice of the Witan made him King-elect, but it was only the ecclesiastical crowning and anointing which made him King. And this ecclesiastical ceremony involved a further election. Chosen already to the civil office by the Nation in its civil character, he was again chosen by the Church—that is, by the Nation in its religious character, by the Clergy and People assembled in the church where the crowning rite was to be done 35. This second ecclesiastical election must always have been a mere form, as the choice of the nation was already made before the ecclesiastical ceremony began. But the ecclesiastical election survived the civil one. The state of things which lawyers dream of from the beginning is a law of strict hereditary succession, broken in upon by occasional interruptions. These interruptions, which, in the eye of history, are simply exercises of an ancient right, are, in the eyes of lawyers, only revolutions or usurpations. But this state of things, a state in which a fixed rule was sometimes broken, which Blackstone dreams of in the tenth and eleventh centuries, really did exist from the thirteenth century onwards. From the accession of Edward the First, the first King who reigned before his coronation, hereditary succession became the rule in practice. The son, or even the grandson, of the late King 36 was commonly acknowledged as a matter of course, without anything which could fairly be called an election. But the right of Parliament to settle the succession was constantly exercised, and ever and anon we come across signs which show that the ancient notion of an election of a still more popular kind had not wholly passed away out of men’s minds. Two Kings were formally deposed, and on the deposition of the second the Crown passed, as it might have done in ancient times, to a branch of the royal house which was not the next in lineal succession. Three Kings of the House of Lancaster reigned by a good parliamentary title, and the doctrine of indefeasible hereditary right, the doctrine that there was some virtue in a particular line of succession which the power of Parliament itself could not set aside, was first brought forward as the formal justification of the claims of the House of York 37. Those claims in truth could not be formally justified on any showing but that of the most slavish doctrine of divine right, but it was not on any such doctrine as that that the cause of the House of York really rested. The elaborate list of grandmothers and great-grandmothers which was brought forward to show that Henry the Fifth was an usurper would never have been heard of if the government of Henry the Sixth had not become utterly unpopular, while Richard Duke of York was the best beloved man of his time. Richard accepted a parliamentary compromise, which of course implied the right of Parliament to decide the question. Henry was to keep the Crown for life, and Richard was to displace Henry’s son as heir-apparent. That is to say, according to a custom common in Germany, though rare in England, Richard was chosen to fill a vacancy in the throne which had not yet taken place 38. Duke Richard fell at Wakefield; in the Yorkist reading of the Law the Crown was presently forfeited by Henry, and Edward, the heir of York, had his claim acknowledged by a show of popular election which carries us back to far earlier times. The claim of Richard the Third, whatever we make of it on other grounds, was acknowledged in the like sort by what had at least the semblance of a popular Assembly 39. In short, though the hereditary principle had now taken firm root, though the disputes between the pretenders to the Crown were mainly disputes as to the right of succession, yet the remembrance of the days when the Crown had been truly the gift of the people had not wholly passed away.

The last King who could bring even the shadow of a claim to have been chosen by the voice of the people beneath the canopy of heaven was no other than Richard the Third. The last King who could bring a better claim to have been chosen by the same voice beneath the vault of the West Minster was no other than Henry the Eighth. Down to his time the old ecclesiastical form of choosing the King remained in the coronation-service, and it was not wholly out of character that Henry should issue a congé d’élire for his own election. The device for Henry’s coronation survives in his own handwriting, and, while it contains a strong assertion of his hereditary right, it also contains a distinct provision for his election by the people in ancient form 40. The claim of Henry was perfectly good, for a Parliament of his father’s reign had declared that the Crown should abide in Henry the Seventh and the heirs of his body 41. But it was in his case that the hereditary and parliamentary claim was confirmed by the ancient rite of ecclesiastical election for the last time in our history. His successor was not thus distinctly chosen. This was perhaps, among other reasons, because in his case the form was specially needless. For the right of Edward the Sixth to succeed his father was beyond all dispute. By an exercise of parliamentary power, which we may well deem strange, but which was none the less lawful, Henry had been entrusted with the power of bequeathing and entailing the Crown as he thought good. That power he exercised on behalf of his own children in order, and, failing them and their issue, on the issue of his younger sister 42. Edward, Mary, Elizabeth, therefore all reigned lawfully by virtue of their father’s will. A moment’s thought will show that Mary and Elizabeth could not both reign lawfully according to any doctrine of hereditary succession. On no theory, Catholic or Protestant, could both be the legitimate daughters of Henry. Parliament indeed had declared both to be illegitimate; on any theory one or the other must have been so 43. But each reigned by a perfectly lawful title, under the provisions of the Act which empowered their father to settle the succession according to his pleasure. While Elizabeth reigned, almost divine as she might be deemed to be in her own person, it was at least not held that there was any divine right in any other person to succeed her. The doctrine which came into vogue under her successors was in her day looked upon as treasonable 44. Elizabeth knew where her strength lay, and the Stewarts knew where their strength, such as it was, lay also. In the eye of the Law the first Stewart was an usurper; he occupied the Crown in the teeth of an Act of Parliament still in force, though he presently procured a fresh Act to salve over his usurpation 45. There can be no doubt that, on the death of Elizabeth, the lawful right to the Crown lay in the house of Suffolk, the descendants of Henry’s younger sister Mary. But the circumstances of the time were unfavourable to their claims; by a tacit agreement, politically convenient, but quite in the teeth of the existing Law, the Crown silently passed to the King of Scots, the descendant of Henry’s elder sister Margaret. She had not been named in Henry’s entail; her descendants therefore, lineal heirs of William and Cerdic as they were, had no legal claim to the Crown beyond what was given them by the Act of Parliament which was passed after James was already in possession. They were therefore driven, like the Yorkists at an earlier time, to patch up the theory of the divine right of hereditary succession, in order to justify an occupation of the throne which had nothing to justify it in English Law 46.

On one memorable day a Stewart King was reminded that an English King received his right to reign from the will of the English people. Whatever else we may say of the nature or the acts of the tribunal before which Charles the First was arraigned, it did but assert the ancient Law of England when it told how “Charles Stewart was admitted King of England, and therein trusted with a limited power, to govern by and according to the laws of the land and not otherwise.” It did but assert a principle which had been acted on on fitting occasions for nine hundred years, when it told its prisoner that “all his predecessors and he were responsible to the Commons of England.” Forgetful of the fate of Sigeberht and Æthelred, of Edward and of Richard, Charles ventured to ask for precedents, and told his judges that “the Kingdom of England was hereditary and not successive” 47. After a season, the intruding dynasty passed away, on that great day when the English people exercised for the last time its ancient right of deposing and electing Kings. The Convention of which we have so often spoken, that great Assembly, irregular in the eyes of lawyers, but in truth all the more lawful because no King’s writ had summoned it, cast all fantasies and subtleties to the winds by declaring that the throne was vacant. A true Assembly of the nation once more put forth its greatest power, and chose William of Orange, as, six hundred years before, another Assembly of the nation had chosen Harold the son of Godwine. The cycle had come round, and the English people had won back again the rights which their fathers had brought with them from their old home beyond the sea. Nor was it without fitness that their choice went back to those kindred lands, and that a new William crossed the sea to undo, after so many ages, the wrongs which England had suffered from his namesake. And now, under the rule of an elective King, England could at last afford to make her Crown strictly and permanently hereditary. The Act of Settlement, as we all know, entailed the Crown on the Electress Sophia and her heirs 48. Therefore no Kings have ever reigned by a better right than those who, by virtue of that Act, have been called to reign by the direct operation of the Law. They are in truth Kings—Cyningas in the most ancient sense—whose power flows directly from the will of the nation. In the existing state of our institutions, the hereditary character of our modern kingship is no falling away from ancient principles; it in truth allows us to make a fuller application of them in another shape. In an early state of things no form of government is so natural as that which we find established among our forefathers. A feeling which was not wholly sentimental demanded that the King should, under all ordinary circumstances, be the descendant of former Kings. But a sense that some personal qualification was needed in a ruler required that the electors should have the right of freely choosing within the royal house. In days when Kings governed as well as reigned, such a choice, made with some regard to the personal qualities of the King chosen, was the best means for securing freedom and good government. Under the rule of a conventional constitution, when Kings reign but do not govern, when it is openly professed in the House of Commons that it is to that House that the powers of government have passed 49, the objects which were once best secured by making kingship elective are now best secured by making kingship hereditary. It is as the Spartan King said: by lessening the powers of the Crown, its possession has become more lasting 50. A political system like ours would be inconsistent with an elective kingship. An elective King could not be trusted simply to reign; he would assuredly govern, or try to govern. We need not suppose that he would attempt any breaches of the written Law. But those powers which the written Law attaches to the Crown he would assuredly try to exercise according to his own personal views of what was right and expedient. And he would assuredly be justified in so doing. For the personal choice of a certain man to be King would in all reason be held to imply that he was personally fit for the work of government. He would be a President or Prime Minister chosen for life, one whom there would be no means of removing from office except by the most extreme and most unusual exercise of the powers of Parliament. There are states of society in which an elective Monarchy is a better kind of government than either a Commonwealth or an hereditary Monarchy. But, under the present circumstances of the civilized states of Europe and America, the choice lies between the hereditary Monarchy and the Commonwealth. The circumstances of our history have made us an hereditary Monarchy, just as the circumstances of the history of Switzerland have made that country a Federal Commonwealth. And no reasonable person will seek to disturb an institution which, like other English institutions, has grown up because it was wanted 51. Our unwritten Constitution, which gives us an hereditary Sovereign, but which requires his government to be carried on by Ministers who are practically chosen by the House of Commons, does in effect attain the same objects which were sought to be attained by the elective kingship of our forefathers. Our system gives the State a personal chief, a personal embodiment of the national being, which draws to itself those feelings of personal homage and personal duty which a large class of mankind find it hard to look upon as due to the more abstract ideas of Law and Commonwealth. And, when the duties of constitutional royalty are discharged as our own experience tells us that they may be discharged, the feeling awakened is more than a mere sentiment; it is a rational feeling of genuine personal respect. But widely as the hereditary kingship of our latest times differs in outward form from the hereditary kingship of our earliest times, the two have points of likeness which are not shared by kingship in the form which it took in the ages between the two. In our earliest and in our latest system, the King exists for the sake of the people; in the intermediate times it sometimes seemed that the people existed for the sake of the King. In our earliest and in our latest system, the King is clothed with an office, the duties of which are to be discharged for the common good of all. In the intermediate times it sometimes seemed as if the King had been made master of a possession which was to be enjoyed for his personal pleasure and profit. In the intermediate times we constantly hear of the rights and powers of the Crown as something distinct from, and almost hostile to, the common rights of the people. In our earliest and in our latest times, the rights of the Crown and the rights of the people are the same, for it is allowed that the powers of the Crown are to be exercised for the welfare of the people by the advice and consent of the people or their representatives. Without indulging in any Utopian dreams, without picturing to ourselves the England of a thousand years back as an earthly paradise, the voice of sober history does assuredly teach us that those distant times have really much in common with our own, much in which we are really nearer to them than to times which, in a mere reckoning of years, are far less distant from us. Thus it is that the cycle has come round, that the days of foreign rule have been wiped out, and that England is England once again. Our present Sovereign reigns by as good a right as Ælfred or Harold, for she reigns by the same right by which they reigned, by the will of the people, embodied in the Act of Parliament which made the crown of Ælfred and Harold hereditary in her ancestress. And, reigning by the same right by which they reigned, she reigns also for the same ends, for the common good of the nation of which the Law has made her the head. And we can wish nothing better for her kingdom than that the Crown which she so lawfully holds, which she has so worthily worn among two generations of her people, she may, like Nestor of old, continue to wear amid the well-deserved affection of a third 52.

Chapter I

Ζεὺς δὲ Θέμιστα κέλευσε θεοὺς ἀγορήνδε καλέσσαι
Κρατὸς ἄπ’ Οὐλύμπω πολυπτύχου· ἡ δ’ ἄρα πάντη
Φοιτήσασα κέλευσε Διὸς πρὸς δῶμα νέεσθαι.
Οὔτε τις οὖν Ποταμῶν ἀπέην, νόσφ’ Ὠκεανοῖο,
Οὔτ’ ἄρα Νυμφάων ταί τ’ ἄλσεα καλὰ νέμονται,
Καὶ πηγὰς ποταμῶν, καὶ πίσεα ποιήεντα.

Besides the presence of the Nymphs in the divine Mycel Gemót, something might also be said about the important position of Hêrê, Athênê, and other female members of the inner council.

We find the mortal Assembly described at length in the second book of the Iliad, and indeed by implication at the very beginning of the first book.

“Fife lagon	sweordum aswefede,
on ðæm campstede	swilce seofone eac
ciningas geonge,	eorlas Anlafes.”

We may mark that the Kings were young, as if they had been chosen “ex nobilitate;” nothing is said of the age of the Jarls, who were doubtless chosen “ex virtute.”

καὶ μοὶ ὑποστήτω, ὅσσον βασιλεύτερός εἰμι.

So said Herodotus (v. 78) long before:

ἡ ἰσηγορίη ὡς ἔστι χρῆμα σπουδαῖον.

Notes

1 What I say of Uri and the other democratic Cantons must not be misunderstood, as if I all accepted the now exploded dreams which made out the Waldstädte or Forest Cantons to have had some special origin, and some special independence, apart from the rest of Germany. The researches of modern scholars have shown, not only that the Forest Cantons were members of the Empire like their neighbours, but that various lesser lords, spiritual and temporal, held different rights within them. Their acquisition of perfect independence, even their deliverance from other lords and promotion to the state of Reichsunmittelbarkeit or immediate dependence on the Empire, was a work of time. Thus Uri itself, or part of it, was granted in 853 by Lewis the German to the Abbey of Nuns (Fraumünster) in Zürich, and it was not till 1231 that its independence of any lord but the Emperor was formally acknowledged. But the universal supremacy of the Empire in no way interfered with the internal constitution of any district, city, or principality; nor was such interference necessarily implied even in subjection to some intermediate lord. The rule of a female monastery especially would be very light. And from the earliest times we find both the men of Uri in general and the men of particular parts of the district (Gemeinden, Communes, or parishes) spoken of as communities capable of acting together, and even of treating with those who claimed to be their masters. (“Nos inhabitantes Uroniam” appear in a deed of 955 as capable of making an agreement with the officer of the Abbey at Zürich.) All this is in no way peculiar to the Forest Cantons; it is no more than what we find everywhere; what is peculiar is that, whereas elsewhere the old local communities gradually died out, in the Forest Cantons they lived and flourished, and gained new rights and powers till they grew into absolutely independent commonwealths. I think therefore that I have a right to speak of the democracy of Uri as immemorial. It is not immemorial in its fully developed shape, but that fully developed shape grew step by step out of earlier forms which are strictly immemorial and common to the whole Teutonic race.
On the early history of the democratic Cantons, a subject than which none has been more thoroughly misunderstood, I am not able to point to any one trustworthy work in English. Among the writings of Swiss scholars—shut up for the most part from readers of other nations in the inaccessible Transactions of local Societies—there is a vast literature on the subject, of the whole of which I am far from pretending to be master. But I may refer to the Essai sur l’Etat des Personnes et la Condition des Terres dans le Pays d’Ury au XIII^e Siècle, by the Baron Frederick de Gingins-la-Sarraz, in the Archiv für schweizerische Geschichte, i. 17; to Dr. J. R. Burckhardt’s Untersuchungen über die erste Bevölkerung des Alpengebirgs in the same collection, iv. 3; to the early chapters of the great work of Bluntschli, Geschichte des schweizerischen Bundesrechtes (Zürich, 1849), and of Blumer’s Staats-und Rechtsgeschichte der schweizerischen Demokratien (St. Gallen, 1850); to Dr. Alfons Huber, Die Waldstaette (Innsbruck, 1861), and Dr. Wilhelm Vischer, Die Sage von der Befreiung der Waldstädte (Leipzig, 1867). Dr. H. von Liebenau, in Die Tell-Sage zu dem Jahre 1230, takes a line of his own. The results of the whole inquiry will be found in the most accessible form in M. Albert Rilliet’s Les Origines de la Confédération Suisse (Genève et Bâle, 1868).

2 Individual Swiss mercenaries may doubtless still be found in foreign armies, as Italy some years back knew to her cost. But the Federal Constitution of 1848 altogether swept away the system of military capitulations which used to be publicly entered into by the Cantons.

3 See Johannes von Müller, Geschichte der schweizerische Eidgenossenschaft, Book v., c. 1 (vol. xvi. p. 25, of his sämmtliche Werke, Stuttgart und Tübingen, 1832, and the note in vol. xxii. p. 14; or the French translation, vol. viii. p. 35: Paris and Geneva, 1840). The description in Peterman Etterlin’s Chronicle, p. 204 (Basel, 1752), is worth quoting in the original. “Dann do der Hertzog von Burgunn gesach den züg den berg ab züchen, schein die sunn gerad in sy, und glitzet als wie ein spiegel, des gelichen lüyet das horn von Ury, auch die harschorne von Lutzern, und was ein sölich toffen, das des Hertzogen von Burgunn lüt ein grusen darab entpfiengent, und trattent hinder sich.”

4 The magistrates rode when I was present at the Landesgemeinden of 1863 and 1864. I trust that so good a custom has not passed away.

5 On the character and position of Phôkiôn, see Grote, xi. 382, xii. 481; and on the general question of the alleged fickleness of the Athenian people, see iv. 496.

6 Some years ago I went through all the elections to the Bundesrath or Executive Council in Switzerland, and found that in eighteen years it had only twice happened that a member of the Council seeking reelection had failed to obtain it. I therefore think that I was right in congratulating a member of the Federal Council, whom I had the pleasure of meeting last year, on being a member of the most permanent government in Europe.

7 Under the so-called Helvetic Republic of 1798, the Cantons ceased to be sovereign States, and became mere divisions, like counties or departments. One of the earliest provisions of this constitution abolishes the ancient democracies of the Forest Cantons. “Die Regierungsform, wenn sie auch sollte verändert werden, soll allezeit eine repräsentative Demokratie sein.” (See the text in Bluntschli, ii. 305.) The “repräsentative Demokratie” thus forced on these ancient commonwealths by the sham democrats of Paris was meant to exclude the pure democracy of Athens and Uri.
The Federal system was in some sort restored by the Act of Mediation (Vermittlungsakte) of Napoleon Buonaparte, when First Consul in 1803. See the text in Bluntschli, ii. 322.

8 Appenzell, though its history had long been connected with that of the Confederates, was not actually admitted as a Canton till December 1513, being the youngest of the thirteen Cantons which formed the Confederation down to 1798. See Zellweger, Geschichte des Appenzellischen Volkes, ii. 366, and the text in his Urkunden, ii. part 2, p. 481, or in the older Appenzeller Chronick of Walser (Saint Gallen, 1740), 410, and the Act in his Anhang, p. 18. The frontispiece of this volume contains a lively picture of a Landesgemeinde. In 1597 the Canton was divided into the two Half-cantons of Ausser-Rhoden, Protestant, and Inner-Rhoden, Catholic. See Zellweger, iii. part 2, p. 160; Walser, 553.

9 On armed assemblies see Norman Conquest, ii. 331.

10 I perhaps need hardly insist on this point after the references given in my first note; but I find it constantly needful to explain that there is no such thing as a Swiss nation in any but a political sense. The Cantons were simply members of the Empire which gradually won a greater independence than their fellows. And the Forest Cantons, and the German-speaking Swiss generally, do not even form a distinct part of the German nation; they are simply three settlements of the Alemanni, just as the three divisions of Lincolnshire are three settlements of the Angles.

11 The earliest instance that I know of the use of the word Englaland is in the Treaty with Olaf and Justin in 991. Its earliest use in the English Chronicles is in 1014. See Norman Conquest, i. 78, 276, 605, 629. The oldest use that I know of the name Yorkshire (Eoforwicscír) is in the Chronicles under 1065. See Norman Conquest, ii. 478. Deira is, of course, as old as Gregory the Great’s pun.

12 The real history of English parishes has yet to be worked out. I feel sure that they will be found to have much more in common with the continental Gemeinden than would seem at first sight. Some hints may be found in a little pamphlet which I lately came across, called “The Parish in History.”

13 The nature of democracy is set forth by Periklês in the Funeral Oration, Thucydides, ii. 37: ὄνομα μὲν διὰ τὸ μὴ ἐς ὀλίγους ἀλλ’ ἐς πλείονας οἰκεῖν δημοκρατία κέκληται· μέτεστι δὲ κατὰ μὲν τοὺς νόμους πρὸς τὰ ἴδια διάφορα πᾶσι τὸ ἴσον, κατὰ δὲ τὴν ἀξίωσιν ὡς ἕκαστος ἐν τῷ εὐδοκιμεῖ. It is set forth still more clearly by Athênagoras of Syracuse, vi. 39, where the functions of different classes in a democracy are clearly distinguished: ἐγὼ δέ φημι πρῶτα μὲν δῆμον ξύμπαν ὠνομάσθαι, ὀλιγαρχίαν δὲ μέρος, ἔπειτα φύλακας μὲν ἀρίστους εἶναι χρημάτων τοὺς πλουσίους, βουλεῦσαι δ’ ἂν βέλτιστα τοὺς ξυνετοὺς, κρῖναι δ’ ἂν ἀκούσαντας ἄριστα τοὺς πολλοὺς, καὶ ταῦτα ὁμοίως καὶ κατὰ μέρη καὶ ξύμπαντα ἐν δημοκρατίᾳ ἰσομοιρεῖν. Here a distinct sphere is assigned both to wealth and to special intelligence. Nearly the same division is drawn by a writer who might by comparison be called aristocratic. Isokratês (Areop. 29) holds that the management of public affairs should be immediately in the hands of the men of wealth and leisure, who should act as servants of the People, the People itself being their master—or, as he does not scruple to say, Tyrant—with full power of reward and punishment: ἐκεῖνοι διεγνωκότες ἦσαν ὅτι δεῖ τὸν μὲν δῆμον ὥσπερ τύραννον καθιστάναι τὰς ἀρχὰς καὶ κολάζειν τοὺς ἐξαμαρτάνοντας καὶ κρίνειν περὶ τῶν ἀμφισβητουμένων, τοὺς δὲ σχολὴν ἄγειν δυναμένους καὶ βίον ἱκανὸν κεκτημένους ἐπιμελεῖσθαι τῶν κοινῶν ὥσπερ οἰκέτας, καὶ δικαίους μὲν γενομένους ἐπαινεῖσθαι καὶ στέργειν ταύτῃ τῇ τιμῇ, κακῶς δὲ διοικήσαντας μηδεμιᾶς συγγνώμης τυγχάνειν, ἀλλὰ ταῖς μεγίσταις ζημίαις περιπίπτειν. This he elsewhere (Panath 166) calls democracy with a mixture of aristocracy—not oligarchy (τὴν δημοκρατίαν τὴν ἀριστοκρατίᾳ μεμιγμένην).
The unfavourable meaning which is often attached to the word democracy, when it does not arise from simple ignorance, probably arises from the use of the word by Aristotle. He makes (Politics, iii. 7) three lawful forms of government, kingship (βασιλεία), aristocracy (ἀριστοκρατία),and what he calls specially πολιτεία or commonwealth. Of these he makes three corruptions, tyranny, oligarchy, and democracy (τυραννίς, ὀλιγαρχία, δημοκρατία), defining democracy to be a government carried on for the special benefit of the poor (πρὸς τὸ συμφέρον τὸ τῶν ἀπόρων). In this there is something of a philosopher’s contempt for all popular government, and it is certain that Aristotle’s way of speaking is not that which is usual in the Greek historians. Polybios, like Herodotus and Thucydides, uses the word democracy in the old honourable sense, and he takes (ii. 38) as his special type of democracy the constitution of the Achaian League, which certainly had in it a strong element of practical aristocracy (see History of Federal Government, cap. v.): ἰσηγορίας καὶ παρρησίας καὶ καθόλου δημοκρατίας ἀληθινῆς σύστημα καὶ προαίρεσιν εἰλικρινεστέραν οὐκ ἂν εὕροι τις τῆς παρὰ τοῖς Ἀχαιοῖς ὑπαρχούσης. In short, what Aristotle calls πολιτεία Polybios calls δημοκρατία; what Aristotle calls δημοκρατία Polybios calls ὀχλοκρατία.

14 It follows that, when the commonwealth of Florence disfranchised the whole of the noble families, it lost its right to be called a democracy. See the passing of the Ordinance of Justice in Sismondi, Républiques Italiennes, iv. 65; Chroniche di Giovanni Villani, viii. 1.

15 On Slavery in England, see Norman Conquest, i. 81, 333, 368, 432, iv. 385. For fuller accounts, see Kemble’s Saxons in England, i. 185; Zöpfl, Geschichte der deutschen Rechtsinstitute, 62. The three classes of nobles, common freemen, and slaves cannot be better set forth than in the Life of Saint Lebuin (Pertz, ii. 361): “Sunt denique ibi, qui illorum lingua edlingi, sunt qui frilingi, sunt qui lassi dicuntur, quod in Latina sonat lingua, nobiles, ingenuiles, atque serviles.”

16 On the Wite-þeow, the slave reduced to slavery for his crimes, see Kemble, Saxons in England, i. 200. He is mentioned several times in the laws of Ine, 24, 48, 54, where, as usual in the West-Saxon laws, a distinction is drawn between the English and the Welsh wite-þeow. The second reference contains a provision for the case of a newly enslaved þeow who should be charged with a crime committed before he was condemned to slavery.

17 I wish to leave the details of Eastern matters to Eastern scholars. But there are several places in the Old Testament where we see something very much like a general assembly, combined with distinctions of rank among its members, and with the supremacy of a single chief over all.

18 Iliad, xx. 4.

19 We hear the applause of the assembly in i. 23 and ii. 333, and in the Trojan Assembly, xviii. 313.

20 On the whole nature of the Homeric ἀγορή see Gladstone’s Homer and the Homeric Age, iii. 14. Mr. Gladstone has to my thinking understood the spirit of the old Greek polity much better than Mr. Grote.

21 There is no need to go into any speculations as to the early Roman Constitution, as to the origin of the distinction of patres and plebs, or any of the other points about which controversies have raged among scholars. The three elements stand out in every version, legendary and historical. In Livy, i. 8, Romulus first holds his general Assembly and then chooses his Senate. And in c. 26 we get the distinct appeal from the King, or rather from the magistrates acting by his authority, to an Assembly which, whatever might be its constitution, is more popular than the Senate.

22 It is hardly needful to show how the Roman Consuls simply stepped into the place of the Kings. It is possible, as some have thought, that the revolution threw more power into patrician hands than before, but at all events the Senate and the Assembly go on just as before.

23 Tacitus, de Moribus Germaniæ, c. 7-13:
“Reges ex nobilitate; Duces ex virtute sumunt. Nec Regibus infinita aut libera potestas; et Duces exemplo potius quam imperio: si prompti, si conspicui, si ante aciem agant, admiratione præsunt.... De minoribus rebus Principes consultant; de majoribus omnes; ita tamen ut ea quoque quorum penes plebem arbitrium est apud Principes pertractentur.... Ut turbæ placuit, considunt armati. Silentium per Sacerdotes, quibus tum et coercendi jus est, imperatur. Mox Rex, vel Princeps, prout ætas cuique, prout nobilitas, prout decus bellorum, prout facundia est audiuntur, auctoritate suadendi magis quam jubendi potestate. Si displicuit sententia, fremitu adspernantur; sin placuit, frameas concutiunt. Honoratissimum adsensûs genus est, armis laudare. Licet apud concilium adcusare quoque et discrimen capitis intendere.... Eliguntur in iisdem conciliis et Principes, qui jura per pagos vicosque reddant. Centeni singulis ex plebe comites, consilium simul et auctoritas, adsunt. Nihil autem neque publicæ neque privatæ rei nisi armati agunt.”
For a commentary, see Zöpfl, Geschichte der deutschen Rechtsinstitute, p. 94. See also Allen, Royal Prerogative, 12, 162.

24 See Norman Conquest, i. 95. The primitive Constitution lasted longest at the other end of the Empire, in Friesland. See Eichhorn, Deutsche Staats-und Rechtsgeschichte, ii. 265, iii. 158. Zöpfl, Geschichte der deutschen Rechtsquellen, p. 154.

25 Τὰ ἀρχαῖα ἤθη κρατείτω is an ecclesiastical maxim; rightly understood, it is just as true in politics.

26 See my papers on “the Origin of the English Nation” and “the Alleged Permanence of Roman Civilization in England” in Macmillan’s Magazine, 1870.

27 See Schmid, Gesetze der Angel-Sachsen, on the words “wealh” and “wylne.” Earle, Philology of the English Tongue, 318. On the fact that the English settlers brought their women with them, see Historical Essays, p. 36.

28 On Eorlas and Ceorlas I have said something in the History of the Norman Conquest, i. 80. See the two words in Schmid, and the references there given.

29 On the Barons of Attinghausen, see Blumer, Staats-und Rechtsgeschichte der schweizerischen Demokratien, i. 122, 214, 272.

30 I cannot at this moment lay my hand on my authority for this curious, and probably mythical, custom, but it is equally good as an illustration any way.

31 This custom is described by Diodôros, i. 70. The priest first recounted the good deeds of the King and attributed to him all possible virtues; then he invoked a curse for whatever has been done wrongfully, absolving the King from all blame and praying that the vengeance might fall on his ministers who had suggested evil things (τὸ τελευταῖον ὑπὲρ τῶν ἀγνοουμένων ἀρὰν ἐποιεῖτο, τὸν μὲν βασιλέα τῶν ἐγκλημάτων ἐξαιρούμενος, εἰς δὲ τοὺς ὑπηρετοῦντας καὶ διδάξαντας τὰ φαῦλα καὶ τὴν βλαβὴν καὶ τὴν τιμωρίαν ἀξιῶν ἀποσκῆψαι). He wound up with some moral and religious advice.

32 Tacitus (Germ. 25) distinguishes “eæ gentes quæ regnantur” from others. And in 43 he speaks of “erga Reges obsequium” as characteristic of some particular tribes: see Norman Conquest, i. 579.

33 On the use of the words Ealdorman and Heretoga, see Norman Conquest, i. 581, and the references there given.

34 See Norman Conquest, i. 583, and the passages in Kemble and Allen there referred to.

35 See Kemble’s Saxons in England, i. 152, and Massmann’s Ulfilas, 744.

36 See the words driht, drihten in Bosworth’s Anglo-Saxon Dictionary.

37 To say nothing of other objections to this derivation, its author must have fancied that ing and not end was the ending of the Old-English participle. The mistake is as old as Sir Thomas Smith. See his Commonwealth of England, p. 12.

38 See Norman Conquest, i. 583, and the passages there quoted. I am afraid of meddling with Sanscrit, but it strikes me that the views of Allen and Kemble are not inconsistent with a connexion with the Sanscrit Ganaka. As one of the curiosities of etymology, it is worth noticing that Mr. Wedgwood makes the word “probably identical with Tartar chan.”

39 We read in the Chronicles, 449, how, on the first Jutish landing in Kent, “heora heretogan wæron twegen gebroðra Hengest and Horsa.” It is only in 455, on the death of Horsa, that “æfter Þam Hengest feng to rice and Æsc his sunu”; and in 488, seemingly on the death of Hengest, “Æsc feng to rice and was xxiiii wintra Cantwara cyning.” So among the West-Saxons, in 495, “coman twegen ealdormen on Brytene, Cerdic and Cynric his sunu.” It is only in 519 that we read “her Cerdic and Cynric West-Sexena rice onfengun.”

40 The distinction between Kings and Jarls comes out very strongly in the account of the battle of Ashdown (Æscesdune) in the Chronicles in 871. The Danes “wæron on twam gefylcum, on oþrum wæs Bagsecg and Healfdene, þa hæðenan cingas and on oðrum wæron þa eorlas.” It may be marked that in the English army King Æthelred is set against the Danish Kings, and his brother the Ætheling Ælfred against the Jarls. So in the Song of Brunanburh we read of the five Kings and seven Jarls who were slain.

41 I have quoted the passage from Bæda about the satraps in Norman Conquest, i. 579. The passage in the Life of Saint Lebuin, quoted in note 15, also speaks of “principes” as presiding over the several pagi or gauen, but he speaks of no King or other common chief over the whole country. And this is the more to be marked, as there was a “generale concilium” of the whole Old-Saxon nation, formed, as we are told, of twelve chosen men from each gau. This looks like an early instance of representation, but it should be remembered that we are here dealing with a constitution strictly Federal.
In the like sort we find the rulers of the West-Goths at the time of their crossing the Danube spoken of as Judices. See Ammianus, xxvii. 5, and the notes of Lindenbrog and Valesius. So also Gibbon, c. xxv. (iv. 305, ed. Milman). So Jornandes26 speaks of “primates eorum, et duces, qui regum vice illis præerant.” Presently he calls Fredigern “Gothorum regulus,” like the subreguli or under-cyningas of our own History. Presently in c. 28 Athanaric, the successor of Fredigern, is pointedly called Rex.
On all this, see Allen, Royal Prerogative, 163.

42 See Norman Conquest, i. 75, 580.

43 The best instance in English History of the process by which a kingdom changed into a province, by going through the intermediate stage of a half-independent Ealdormanship, is to be found in the history of South-Western Mercia under its Ealdorman Æthelred and the Lady Æthelflæd, in the reigns of Ælfred and Eadward the Elder. See Norman Conquest, i. 563.

44 See Norman Conquest, i. 39, 78.

45 Iliad, ix. 160:—

46 The instances in which a great kingdom has been broken up into a number of small states practically independent, but owning a nominal superiority in the successor of the original Sovereign, are not few. In the case of the Empire I have found something to say about it in my Historical Essays, 151, and in the case of the Caliphate in my History and Conquest of the Saracens, 137. How the same process took place with the Mogul Empire in India is set forth by Lord Macaulay in his Essays on Lord Clive and Warren Hastings. But he should not have compared the great Mogul, with his nominal sovereignty, to “the most helpless driveller among the later Carlovingians,” a class whom Sir Francis Palgrave has rescued from undeserved contempt. But the breaking up of the Western Kingdom is none the less an example of the same law. The most remarkable thing is the way, or rather the three different ways, in which the scattered members have been brought together again in Germany, Italy, and France.
This process of dismemberment, where a nominal supremacy is still kept by the original Sovereign, must be distinguished from that of falling back upon Dukes or Ealdormen after a period of kingly rule. In this latter case it would seem that no central sovereignty went on.

47 At this time of day I suppose it is hardly necessary to prove the elective character of Old-English kingship. I have said what I have to say about it in Norman Conquest, i. 106, 596. But I may quote one most remarkable passage from the report made in 787 to Pope Hadrian the First by George and Theophylact, his Legates in England (Haddan and Stubbs, Councils and Ecclesiastical Documents, iii. 453). “Sanximus ut in ordinatione Regum nullus permittat pravorum prævalere assensum: sed legitime Reges a sacerdotibus et senioribus populi eligantur.” One would like to know who the “pravi” here denounced were. The passage sounds very like a narrowing of the franchise or some other interference with freedom of election, but in any case it bears witness to the elective character of our ancient kingship, and to the general popular character of the constitution.

48 I have described the powers of the Witan, as I understand them and as they were understood by Mr. Kemble, at vol. i. p. 108 of the History of the Norman Conquest and in some of the Appendices to that volume. With regard to the powers of the Witan, I find no difference between my own views and those of Professor Stubbs in the Introductory Sketch to his Select Charters (p. 11), where the relations between the King and the Witan, and the general character of our ancient constitution, are set forth with wonderful power and clearness. But I find Mr. Stubbs and myself differing altogether as to the constitution of the Witenagemót. I look upon it as an Assembly of the whole kingdom, after the type of the smaller assemblies of the shire and other lesser divisions. Mr. Stubbs fully admits the popular character of the smaller assemblies, but denies any such character to the national gathering. It is dangerous to set oneself up against the greatest master of English constitutional history, but I must ask the reader to weigh what I say in note Q in the Appendix to my first volume.

49 I have collected some of the instances of deposition in Northumberland in the note following that on the constitution of the Witenagemót. (Norman Conquest, i. 593.) It is not at all unlikely that the report of George and Theophylact quoted above may have a special reference to the frequent changes among the Northumbrian Kings.

50 I have mentioned all the instances at vol. i. p. 105 of the Norman Conquest: Sigeberht, Æthelred, Harthacnut, Edward the Second, Richard the Second, James the Second. It is remarkable that nearly all are the second of their respective names; for, besides Æthelred, Edward, Richard, and James, Harthacnut might fairly be called Cnut the Second.

51 Tacitus, De Moribus Germaniæ, 13, 14:—“Nec rubor inter comites adspici. Gradus quinetiam et ipse comitatus habet, judicio ejus quem sectantur; magnaque et comitum æmulatio quibus primus apud Principem suum locus; et Principum cui plurimi et acerrimi comites.... Quum ventum in aciem, turpe Principi virtute vinci, turpe comitatui virtutem Principis non adæquare. Jam vero infame in omnem vitam ac probrosum, superstitem Principi suo ex acie recessisse. Illum defendere, tueri, sua quoque fortia facta gloriæ ejus adsignare, præcipuum sacramentum est. Principes pro victoria pugnant; comites pro Principe.” See Allen, Royal Prerogative, 142.

52 The original text of the Song of Maldon will be found in Thorpe’s Analecta Anglo-Saxonica. My extracts are made from the modern English version which I attempted in my Old-English History, p. 192. I went on the principle of altering the Old-English text no more than was actually necessary to make it intelligible. When a word has altogether dropped out of our modern language, I have of course changed it; when a word is still in use, in however different a sense, I have kept it. Many words which were anciently used in a physical sense are now used only metaphorically; thus “cringe” is used in one of the extracts in its primary meaning of bowing or falling down, and therefore of dying.

53 The history of the Roman clientship is another of those points on which legend and history and ingenious modern speculation all come to much the same, as far as our present purpose is concerned. Whether the clients were the same as the plebs or not, at any rate no patricians entered into the client relation, and this at once supplies the contrast with Teutonic institutions.

54 The title of dominus, implying a master of slaves, was always refused by the early Emperors. This is recorded of Augustus by Suetonius (Aug. 53) and Dion (lv. 12), and still more distinctly of Tiberius (Suetonius, Tib. 27; Dion, lvii. 8). Tiberius also refused the title of Imperator, except in its strictly military sense: οὔτε γὰρ δεσπότην ἑαυτὸν τοῖς ἐλευθέροις οὔτε αὐτοκράτορα πλὴν τοῖς στρατιώταις καλεῖν ἐφίει. Caius is said (Aurelius Victor, Cæs. xxxix. 4) to have been called dominus, and there is no doubt about Domitian (Suetonius, Dom. 13; Dion, lxvii. 13, where see Reimar’s Note). Pliny in his letters constantly addresses Trajan as dominus; yet in his Panegyric45 he draws the marked distinction: “Scis, ut sunt diversa natura dominatio et principatus, ita non aliis esse principem gratiorem quam qui maxime dominum graventur.” This marks the return to older feelings and customs under Trajan. The final and formal establishment of the title seems to have come in with the introduction of Eastern ceremonies under Diocletian (see the passage already referred to in Aurelius Victor). It is freely used by the later Panegyrists, as for instance Eumenius, iv. 21, v. 13: “Domine Constanti,” “Domine Maximiane, Imperator æterne,” and so forth.

55 Vitellius (Tac. Hist. i. 58) was the first to employ Roman knights in offices hitherto always filled by freedmen; but the system was not fully established till the time of Hadrian (Spartianus, Hadrian, 22).

56 See Norman Conquest, i. 89, 587, and the passages here quoted.

57 Both hlàford and hlæfdige (Lord and Lady) are very puzzling words as to the origin of their later syllables. It is enough for my purpose if the connexion of the first syllable with hlàf be allowed. Different as is the origin of the two words, hlàford always translates dominus. The French seigneur, and the corresponding forms in Italian and Spanish, come from the Latin senior, used as equivalent to dominus. This is one of the large class of words which are analogous to our Ealdorman.

58 This is fully treated by Palgrave, English Commonwealth, i. 350, 495, 505.

59 On the change from the alod, odal, or eðel, a man’s very own property, to the land held of a lord, see Hallam, Middle Ages, i. 113.

60 See Norman Conquest, i. 85-88. I have there chiefly followed Mr. Kemble in his chapter on the Noble by Service, Saxons in England, i. 162.

61 See the whole history and meaning of the word in the article þegen in Schmid’s Glossary.

62 See Norman Conquest, i. 89.

63 Barbour, Bruce, i. 224:
“A! fredome is A noble thing.”

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