But, besides that growth of the King’s power which followed naturally on the growth of the King’s dominions, another cause was busily at work which clothed him with a personal influence which was of almost greater moment than his political authority. To a large portion of his subjects, to all the men of special wealth or power, the King gradually became, not only King butlord; his subjects gradually became, not only his subjectsbut hismen. These names may need some explanation, and I will again go back to Tacitus as our starting-point. Side by side with the political community, the King, the nobles, the popular Assembly, all of them strictly political powers, he describes another institution, a relation in itself not political but purely personal, but which gradually became of the highest political moment. This was the institution of thecomitatus, the system of personal relation between a man and his lord, a relation of faithful service on one side, of faithful protection on the other. Let us again hear the words of the great Roman interpreter of our own earliest days(51).
“It is no shame among the Germans to be seen among the companions (comites) of a chief. And there are degrees of rank in the companionship (comitatus), according to the favour of him whom they follow; and great is the rivalry among the companions which shall stand highest in the favour of his chief, and also among the chiefs which shall have the most and the most valiant companions.... When they come to battle, it is shameful for the chief to be surpassed in valour; it is shameful for his companions not to equal the valour of their chief. It is even a badge of disgrace for the remainder of life if a man comes away alive fromthe field on which his chief has fallen. To guard, to defend him, to assign their own valiant deeds to his credit, is their first religious duty. The chiefs fight for victory; the companions fight for their chief.”
This is the description given by a Roman historian of the second century; let me set beside it the words of an English poet of the tenth. He is describing the battle of Maldon in 991, which was fought by the East-Saxons under their Ealdorman Brihtnoth against the invading Northmen. The Ealdorman has been killed; two of his followers have fled, one of them on the Ealdorman’s horse, and every word that is put into the mouth of his faithful companions turns upon the personal tie between them and their lord(52).
“Thereon hewed himThe heathen soldiers;And both the warriorsThat near him by-stood,Ælfnoth and Wulfmær both,Lay there on the groundBy their lord;Their lives they sold.There bowed they from the fightThat there to be would not;There were Odda’s bairnsErst in flight;Godric from battle went,And the good man forsookThat to him ofttimesHorses had given.He leapt on the horseThat his lord had owned,On the housingsThat it not right was.”
“Thereon hewed himThe heathen soldiers;And both the warriorsThat near him by-stood,Ælfnoth and Wulfmær both,Lay there on the groundBy their lord;Their lives they sold.There bowed they from the fightThat there to be would not;There were Odda’s bairnsErst in flight;Godric from battle went,And the good man forsookThat to him ofttimesHorses had given.He leapt on the horseThat his lord had owned,On the housingsThat it not right was.”
“Thereon hewed himThe heathen soldiers;And both the warriorsThat near him by-stood,Ælfnoth and Wulfmær both,Lay there on the groundBy their lord;Their lives they sold.There bowed they from the fightThat there to be would not;There were Odda’s bairnsErst in flight;Godric from battle went,And the good man forsookThat to him ofttimesHorses had given.He leapt on the horseThat his lord had owned,On the housingsThat it not right was.”
“Thereon hewed him
The heathen soldiers;
And both the warriors
That near him by-stood,
Ælfnoth and Wulfmær both,
Lay there on the ground
By their lord;
Their lives they sold.
There bowed they from the fight
That there to be would not;
There were Odda’s bairns
Erst in flight;
Godric from battle went,
And the good man forsook
That to him ofttimes
He leapt on the horse
That his lord had owned,
On the housings
That it not right was.”
Presently we read of the deeds done by his Thegns over his body;
“There was fallenThe folk’s Elder,Æthelred’s Earl;All there sawOf his hearth’s comradesThat their lord lay dead.Then there went forthThe proud Thanes,The undaunted menHastened gladly;They would there allOne of two things,Either life forsake,Or the loved one wreak.”
“There was fallenThe folk’s Elder,Æthelred’s Earl;All there sawOf his hearth’s comradesThat their lord lay dead.Then there went forthThe proud Thanes,The undaunted menHastened gladly;They would there allOne of two things,Either life forsake,Or the loved one wreak.”
“There was fallenThe folk’s Elder,Æthelred’s Earl;All there sawOf his hearth’s comradesThat their lord lay dead.Then there went forthThe proud Thanes,The undaunted menHastened gladly;They would there allOne of two things,Either life forsake,Or the loved one wreak.”
“There was fallen
The folk’s Elder,
Æthelred’s Earl;
All there saw
Of his hearth’s comrades
That their lord lay dead.
Then there went forth
The proud Thanes,
The undaunted men
Hastened gladly;
They would there all
One of two things,
Either life forsake,
Or the loved one wreak.”
Then one of the Thegns speaks;
“Neither on that folkShall the Thanes twit meThat I from this hostAway would goTo seek my home,Now mine Elder liethHewn down in battle;To me is that harm most;He was both my kinsmanAnd my lord.”
“Neither on that folkShall the Thanes twit meThat I from this hostAway would goTo seek my home,Now mine Elder liethHewn down in battle;To me is that harm most;He was both my kinsmanAnd my lord.”
“Neither on that folkShall the Thanes twit meThat I from this hostAway would goTo seek my home,Now mine Elder liethHewn down in battle;To me is that harm most;He was both my kinsmanAnd my lord.”
“Neither on that folk
Shall the Thanes twit me
That I from this host
Away would go
To seek my home,
Now mine Elder lieth
Hewn down in battle;
To me is that harm most;
He was both my kinsman
And my lord.”
Then another speaks in answer;
“How thou, Ælfwine, hastAll our ThanesIn need-time cheered.Now our lord lieth,The Earl on the earth,That of us each oneOthers should embolden,Warmen to the war,That while we weapons mayHave and hold,The hard falchion,Spear and good sword.”
“How thou, Ælfwine, hastAll our ThanesIn need-time cheered.Now our lord lieth,The Earl on the earth,That of us each oneOthers should embolden,Warmen to the war,That while we weapons mayHave and hold,The hard falchion,Spear and good sword.”
“How thou, Ælfwine, hastAll our ThanesIn need-time cheered.Now our lord lieth,The Earl on the earth,That of us each oneOthers should embolden,Warmen to the war,That while we weapons mayHave and hold,The hard falchion,Spear and good sword.”
“How thou, Ælfwine, hast
All our Thanes
In need-time cheered.
Now our lord lieth,
The Earl on the earth,
That of us each one
Others should embolden,
Warmen to the war,
That while we weapons may
Have and hold,
The hard falchion,
Spear and good sword.”
Then another speaks;
“I this promiseThat I hence nillFlee a footstep,But will further go,To wreak in the fightMy lord and comrade.Nor by StourmereAny steadfast heroWith words need twit meThat I lordlessHomeward should go,And wend from the fight.
“I this promiseThat I hence nillFlee a footstep,But will further go,To wreak in the fightMy lord and comrade.Nor by StourmereAny steadfast heroWith words need twit meThat I lordlessHomeward should go,And wend from the fight.
“I this promiseThat I hence nillFlee a footstep,But will further go,To wreak in the fightMy lord and comrade.Nor by StourmereAny steadfast heroWith words need twit meThat I lordlessHomeward should go,And wend from the fight.
“I this promise
That I hence nill
Flee a footstep,
But will further go,
To wreak in the fight
My lord and comrade.
Nor by Stourmere
Any steadfast hero
With words need twit me
That I lordless
Homeward should go,
And wend from the fight.
The story goes on a little later;
“Rath was in battleOffa hewn down,Yet had he furtheredThat his lord had pledged,As he ere agreedWith his ring-giverThat they should bothTo the borough rideHale to home,Or in the host cringeOn the slaughter place,Of their wounds die.He lay thane-likeHis lord hard by.”
“Rath was in battleOffa hewn down,Yet had he furtheredThat his lord had pledged,As he ere agreedWith his ring-giverThat they should bothTo the borough rideHale to home,Or in the host cringeOn the slaughter place,Of their wounds die.He lay thane-likeHis lord hard by.”
“Rath was in battleOffa hewn down,Yet had he furtheredThat his lord had pledged,As he ere agreedWith his ring-giverThat they should bothTo the borough rideHale to home,Or in the host cringeOn the slaughter place,Of their wounds die.He lay thane-likeHis lord hard by.”
“Rath was in battle
Offa hewn down,
Yet had he furthered
That his lord had pledged,
As he ere agreed
With his ring-giver
That they should both
To the borough ride
Hale to home,
Or in the host cringe
On the slaughter place,
Of their wounds die.
He lay thane-like
His lord hard by.”
Lastly another Thegn speaks;
“Mind shall the harder be,Heart shall the keener be,Mood shall the more be,As our main lessens.Here lies our Elder,All down hewn,A good man in the dust;Ever may he groanWho now from this war-playOf wending thinketh.I am old of life;Hence stir will I not,And I by the halfOf my lord,By such a loved manTo lie am thinking.”
“Mind shall the harder be,Heart shall the keener be,Mood shall the more be,As our main lessens.Here lies our Elder,All down hewn,A good man in the dust;Ever may he groanWho now from this war-playOf wending thinketh.I am old of life;Hence stir will I not,And I by the halfOf my lord,By such a loved manTo lie am thinking.”
“Mind shall the harder be,Heart shall the keener be,Mood shall the more be,As our main lessens.Here lies our Elder,All down hewn,A good man in the dust;Ever may he groanWho now from this war-playOf wending thinketh.I am old of life;Hence stir will I not,And I by the halfOf my lord,By such a loved manTo lie am thinking.”
“Mind shall the harder be,
Heart shall the keener be,
Mood shall the more be,
As our main lessens.
Here lies our Elder,
All down hewn,
A good man in the dust;
Ever may he groan
Who now from this war-play
Of wending thinketh.
I am old of life;
Hence stir will I not,
And I by the half
Of my lord,
By such a loved man
To lie am thinking.”
This institution of military companionship seems to have struck Tacitus with some amazement. He says that this kind of personal relation was amongthe Germans not thought shameful. This was the natural feeling of a Roman. The duty of a Roman citizen was wholly towards the state. The state might be represented either by a responsible magistrate or by an irresponsible Emperor; in either case obedience was due to the representative of the state; but there was no personal relation to the man. The old Roman institution of patron and client, which was so like the Germancomitatus, had pretty well died out by the time of Tacitus, and it had at no time been entered into by men of high rank(53). What amazed Tacitus was that among the Germans the noblest in birth and exploits were not looked on as dishonoured by entering the service of a personal lord. To Tacitus himself Trajan was the chief magistrate of the Roman commonwealth, the chief commander of the Roman army; he was a personal master to none but his slaves and freedmen(54). It was only in a much later stage of the Roman Empire that personal service in the court and household of the Emperor began to be looked on as honourable(55). But among the Teutonic nations the personal relation coloured everything; personal service towards a King or other chief was honourable from the beginning; the proudest nobles of Europe have down to this day thought themselves honoured byfilling offices about the persons of Emperors, Kings, and other princes which Tacitus would have deemed beneath the dignity of any Roman citizen. We are now accustomed to see this kind of service paid in the case of royal personages only; a few centuries back men of any rank deemed themselves honoured by paying the like service to men of the rank next above their own, or even to men of their own rank who had the start of them in age and reputation. The knight was served by his esquire and the master by his scholar; and the same principle, laid aside everywhere else, lingers on in what is undoubtedly a trace of the Teutoniccomitatus, the fagging of our public schools. Now the political effect of the existence of the principle of personal service, the institution of thecomitatus, alongside of the primitive political community, was most important in our early history. The personal relation went far to swallow up the purely political one. To enter the service of a chief became so established a practice that at last it was deemed that it was the part of every man to “seek a lord,” as the phrase was, to commend himself, to put himself under the protection of some man more powerful than himself(56). Themanowed faithful service to hislord; the lord owed faithful protection to his man. The very wordLord, in its older and fuller formHlaford, implies the rewards which the lord bestowed on his faithful man. The word is in some sort a puzzling one; but there can be no doubt that it is connected withhlaf,loaf, and that its general meaning isthe giver of bread(57). Now herein lurks something which has greatly affected all later political and social arrangements. The institution of thecomitatusin its first state had nothing whatever to do with the holding of land. But themanlooked for reward of his faithful service at the hands of hislord; he looked for the bread of which his lord’s title proclaimed him as the giver. There was of course no form of reward, no form ofbread, so convenient or so honourable as that of a grant of land to be held as the reward of past and the condition of future service. Moreover the custom of granting out lands to be held by the tenure of military service had become common in the later days of Roman power(58). Such lands were of course held, not of the Emperor as a personal lord, but of the Roman Commonwealth of which he was the head and representative. But the custom of holding lands by military service fell in well with the Teutonic institution of personal service, and the union of the two in the same person produced that feudal relation which has had such an important bearing on all political and social life through thewhole of the middle ages and down to our own time. The land granted by the lord to his man, or the land which the man agreed to hold as if it had been so granted, might be a kingdom held of the Emperor or the Pope, or it might be the smallest estate held of a more powerful neighbour. In either case, such a holding by military service was afief, and from the institution of such fiefs the so-called Feudal System, with all its manifold workings for good and for evil, had its rise. But so far as the Feudal System existed, either in England or in any other country, it existed wholly as a system which had grown up by the side of an earlier system which it wholly or partially displaced. The feudal tenant, holding his land of a lord by military service gradually supplanted, wholly or partially, in most countries of Europe, theallodialholder who held his land of no other man, and who knew no superior but God and the Law(59). In England this change took place only gradually and partially; it was through the Norman Conquest, or, more accurately, through the subtle legal theories which came in with the Norman Conquest, that it was finally established. And, after all, it was rather in theory than in fact that it was established. The Feudal System, as something spreading into every corner of the land, and affectingevery relation of life, never obtained the same complete establishment in England which it did in some continental countries.
But it is only indirectly that my subject has anything to do with the Feudal System, and especially with its social working. I have to do with thecomitatus, out of which the feudal relation grew, mainly in another aspect equally indirect, namely, the way in which it affected our earliest political institutions. It gave us a new form of nobility, a nobility of office and of personal relation to the King, instead of a nobility founded on birth only. It gave us a nobility ofThegns, which gradually supplanted the earlier nobility of theEorls. As the royal power and dignity grew, it came to be looked on as the highest honour to enter into the personal service of the King. Two results followed; service towards the King, a place, that is, in the King’scomitatus, became the badge and standard of nobility(60). And it greatly strengthened the power of the King that he stood to all the chief men of his kingdom in the relation, not only of a political ruler, but of a personal lord, a lord to whose service they were bound by a personal tie, and of whom they held their lands as the gift of his personal bounty. It marks perhaps a decline from the first idea of thecomitatusthat the old wordGesith,companion,answering exactly to the LatinComesused by Tacitus, was supplanted by the nameThegn, literallyservant(61). But when personal service was deemed honourable, the name of servant was no degradation, and the nameThegnbecame equivalent to the olderEorl. The King’s Thegn, the men who held their land of the King and who were bound to him by the tie of personal service, formed the highest class of nobility. The Thegns of inferior lords, of Bishops and Ealdormen, formed a secondary class. A nobility of this kind, there can be no doubt, was so far more liberal than the elder nobility of birth that admission to it was not forbidden to men of lower degree. TheCeorl, the ordinary freeman, could not in strictness become anEorl, for the simple reason that he could not change his forefathers; but he might, and he often did, become aThegn(62). But, on the other hand, such a nobility, while it made it easier for the common freeman to rise, tended to lower the condition of the common freemen who did not rise. For the very reason that the barrier of birth is one which cannot be passed, it is in some respects less irksome than the barrier of wealth or office. The privileges of a strictly hereditary nobility are much more likely to sink into mere honorary distinctions than the privileges of a nobility whose rank is backed by thesolid advantages of office and of a personal relation to the sovereign.
The tendency then of the first six hundred years after the settlement of the English in Britain was to increase the power of the Crown, to depress the lower class of freemen, to exchange a nobility of birth for a nobility of personal service to the King. That is to say, England had, before the Norman Conquest, already begun to walk, though with less speed than most other nations, in the path which led to the general overthrow of liberty throughout Europe. The foreign invasion which for a moment seemed to have crushed her freedom for ever did in truth only lead to its new birth, to its fresh establishment in forms better fitted to the altered state of things, forms better fitted to be handed on to later times, forms better fitted to preserve the well-being of a great nation, than those forms of the old Teutonic community which still linger on in those remote corners of the world which I spoke of at my beginning. That momentary overthrow, that lasting new birth, will be the subject of my second chapter. I will now only call you to bear in mind that England has never been left at any time without a National Assembly of some kind or other. Be it Witenagemót, Great Council, or Parliament, there has always been some bodyof men claiming, with more or less of right, to speak in the name of the nation. And bear too in mind that, down to the Norman Conquest, the body which claimed to speak in the name of the nation was, in legal theory at least, the nation itself. This is a point on which I mean again to speak more fully; I would now simply suggest the thought, new perhaps to many, that there was a time when every freeman of England, no less than every freeman of Uri, could claim a direct voice in the councils of his country. There was a time when every freeman of England could raise his voice or clash his weapon in the Assembly which chose Bishops and Ealdormen and Kings, when he could boast that the laws which he obeyed were laws of his own making, and that the men who bore rule over him were rulers of his own choosing. Those days are gone, nor need we seek to call them back. The struggles of ages on the field and in the Senate have again won back for us the selfsame rights in forms better suited to our times than the barbaric freedom of our fathers. Yet it is well that we should look back to the source whence comes all that we boast of as our own possession, all that we have handed on to our daughter commonwealths in other continents. Let us praise famous men and our fathers that begatus. Let us look to the rock whence we were hewn and to the hole of the pit whence we were digged. Freedom, the old poet says, is a noble thing(63); it is also an ancient thing. And those who love it now in its more modern garb need never shrink from tracing back its earlier forms to the first days when history has aught to tell us of the oldest life of our fathers and our brethren.
Inmy first chapter I dealt mainly with those political institutions of the earliest times—institutions common to our whole race, institutions which still live on untouched among some small primitive communities of our race—out of which the still living Constitution of England grew. It is now my business, as the second part of my subject, to trace the steps by which that Constitution grew out of a political state with which at first sight it seems to have so little in common. My chief point is that it did thus, in the strictest sense, grow out of that state. Our English Constitution was never made, in the sense in which the Constitutions of many other countries have been made. There never was any moment when Englishmen drew out their political system in the shape of a formal document, whether as the carrying out of any abstract political theories or as the imitation of the past or present system of any other nation.There are indeed certain great political documents, each of which forms a landmark in our political history. There is the Great Charter, the Petition of Right, the Bill of Rights. But not one of these gave itself out as the enactment of anything new. All claimed to set forth, with new strength, it might be, and with new clearness, those rights of Englishmen which were already old. In all our great political struggles the voice of Englishmen has never called for the assertion of new principles, for the enactment of new laws; the cry has always been for the better observance of the laws which were already in force, for the redress of grievances which had arisen from their corruption or neglect(1). Till the Great Charter was wrung from John, men called for the laws of good King Eadward. And when the tyrant had unwillingly set his seal to the groundwork of all our later Law, men called for the stricter observance of a Charter which was deemed to be itself only the laws of Eadward in a newer dress(2). We have made changes from time to time; but they have been changes which have been at once conservative and progressive—conservative because progressive, progressive because conservative. They have been the application of ancient principles to new circumstances; they have been the careful repairs of anold building, not the pulling down of an old building and the rearing up of a new. The life and soul of English law has ever been precedent; we have always held that whatever our fathers once did their sons have a right to do again. When the Estates of the Realm declared the throne of James the Second to be vacant, they did not seek to justify the act by any theories of the right of resistance, or by any doctrines of the rights of man. It was enough that, three hundred years before, the Estates of the Realm had declared the throne of Richard the Second to be vacant(3). By thus walking in the old paths, by thus hearkening to the wisdom of our forefathers, we have been able to change whenever change has been needed, and we have been kept back from changing out of the mere love of abstract theory. We have thus been able to advance, if somewhat slowly, yet the more surely; and when we have made a false step, we have been able to retrace it. On this last power, the power of undoing whatever has been done amiss, I wish specially to insist. In tracing the steps by which our Constitution has grown into its present shape, I shall try specially to show in how many cases the best acts of modern legislation have been, wittingly or unwittingly, a falling back on the principles of our earliest times.In my first chapter I tried to show how our fathers brought with them into the Isle of Britain those primæval institutions which were common to them with the whole Teutonic race. I tried to show how those institutions were modified in the course of time by the circumstances of the English Conquest of Britain, and by the events which followed that Conquest. I showed how the kingly power grew with every increase of the territorial extent of the kingdom; how the old nobility of birth gave way to a new nobility of personal relation to the sovereign; and how the effect of these changes seems to have been to make it easier for the individual freeman of the lower rank to rise, but at the same time to lower the position of the ordinary freemen as a class. This last change was still more largely brought about as an independent result of the same changes which tended to increase the kingly power. In a state of things where representation is unknown, where every freeman is an elector and a lawgiver, but where, if he exercises his elective and legislative rights, he must exercise them directly in his own person—in such a state of things as this every increase of the national territory makes those rights of less practical value, and causes the actual powers of government to be shut up in the hands of a smaller body.There is no doubt that in the earliest Teutonic assemblies every freeman had his place. There is no doubt that in England every freeman kept his place in the smaller local assemblies of themark, thehundred, and theshire(4). He still, where modern legislation has not wholly swept it away, keeps, as I hinted in my former lecture, some faint shadow of the old right when he gives a vote in the assembly, in which the assembly of the mark still lives on, that is, in the vestry of his parish. But how as to the great assembly of all, the Assembly of the Wise, the Witenagemót of the whole realm? No ancient record gives us any clear or formal account of the constitution of that body. It is commonly spoken of in a vague way as a gathering of the wise, the noble, the great men(5). But, alongside of passages like these, we find other passages which speak of it in a way which implies a far more popular constitution. King Eadward is said to be chosen King by “all folk.” Earl Godwine “makes his speech before the King and all the people of the land.” Judicial sentences and other acts of authority are voted by the army, that is by the people under arms. Sometimes we find direct mention of the presence of large and popular classes of men, as the citizens of London or Winchester(6). The inference from all this isobvious. The right of the ordinary freeman to attend, to vote—it might perhaps be nearer the truth to say to shout(7)—in the general Assembly of the whole realm was never formally taken away. But it was a right which, in its own nature, most men could hardly ever exercise. None but men of wealth would have the means, none but men of some personal importance would have any temptation, to take long journeys for such a purpose. It is not likely that any great multitude would, under ordinary circumstances, set off from Northern England to attend meetings which were habitually held at Westminster, Winchester, and Gloucester. It is plain that the habitual attendance would not go beyond a small body of chief men, Earls, Bishops, Abbots, the officers of the King’s court, the Thegns of the greatest wealth or the highest personal influence. But it is plain that, when the heart of the nation was specially stirred by some overwhelming interest, many men would find their way to the Assembly who would not find their way to it in ordinary times. And, when the Assembly was held in a town, the citizens of that town at once formed a popular element ready on the spot. Hence we can account for the seemingly contradictory way in which the Assembly is spoken of, sometimes in language which would imply anaristocratic body, sometimes in language which would imply a body highly democratic. It was in fact a body, democratic in ancient theory, aristocratic in ordinary practice, but to which any strong popular impulse could at any time restore its ancient democratic character(8). Acts done by a freely chosen representative body may, without much straining of language, be said to be done by the whole people. But acts done by a body not representative could never be called the acts of the whole people, unless the whole people had an acknowledged right to attend its meetings, though that right might, under all ordinary circumstances, be exercised only by a few of their number.
Out of this body, whose constitution, by the time of the Norman Conquest, had become not a little anomalous and not a little fluctuating, our Parliament directly grew. Of one House of that Parliament we may say more; we may say, not that it grew out of the ancient Assembly but that it is absolutely the same by personal identity. The House of Lords not only springs out of, it actually is, the ancient Witenagemót. I can see no break between the two. King William summoned his Witan as King Eadward had summoned them before him. In one memorable assembly of the Conqueror’s reign, we read that the great men of therealm were reinforced by the presence of the whole body of the landholders of England, whose number tradition handed down as sixty thousand(9). But, as a rule, the Great Councils after the Norman Conquest bear the same uncertain and fluctuating character as the Gemóts of earlier days. In the constitution of the House of Lords I can see nothing mysterious or wonderful. Its hereditary character came in, like other things, step by step, by accident rather than by design. And it should not be forgotten that, as long as the Bishops keep their seats in the House, the hereditary character of the House does not extend to all its members. To me it seems simply that two classes of men, the two highest classes, the Earls and the Bishops, never lost or disused that right of attending in the National Assembly which was at first common to them with all other freemen. Besides these two classes, the King summoned other men to our early Parliaments, pretty much, it would seem, at his own pleasure. The right of the King so to do could not be denied; when all had an abstract right to attend, we cannot blame the King for specially summoning those for whose attendance he specially wished. But it would almost naturally follow that such a special summons would gradually be held to bestow an exclusive right, and that those who werenot specially summoned would soon be looked upon as having no part or lot in the matter. But it is certain that it was long before such a summons was held to confer a hereditary, or even a lasting personal right. The King did not always summon the same men to every Parliament. Besides the Earls and the Bishops, others both of the laity and the clergy were always summoned, but the list of those who were summoned, both of the laity and of the lesser ecclesiastical dignitaries, constantly varies from Parliament to Parliament(10). That the personal summons conveyed an exclusive hereditary right was one of those devices of lawyers of which so many have crept into our constitution. When the notion of hereditary right had once established itself, the formal creation of peerages by patent was a natural stage. Looking at the matter from this historical point of view, it seems to me simply wonderful how any one can doubt the power of the Crown to create life-peerages, or to regulate the tenure or succession of a peerage in any way that it thinks good.
The House of Lords then, I do not hesitate to say, represents, or rather is, the ancient Witenagemót. An assembly in which at first every freeman had a right to appear has, by the force of circumstances, step by step, without any one moment ofsudden change, shrunk up into an Assembly wholly hereditary and official, an Assembly to which the Crown may summon any man, but to which, it is now strangely held, the Crown cannot refuse to summon the representatives of any man whom it has once summoned. As in most other things, the tendency to shrink up into a body of this kind began to show itself before the Norman Conquest, and was finally confirmed and established through the results of the Norman Conquest. But the special function of the body into which the old national Assembly has changed, the function of “another House,” an Upper House, a House of Lords as opposed to a House of Commons, could not show itself till a second House of a more popular constitution had arisen by its side. Like everything else in our English polity, both Houses in some sort came of themselves. Neither of them was the creation of any ingenious theorist, though we need not doubt that many of the several steps in the growth of each were, each in its own time, the work of practical statesmanship. Our forefathers had no theories; but men, each in his own generation, had eyes keen enough to see that such and such a change in detail would get rid of such and such an immediate evil, or would bring with it such and such an immediate advantage.Nay more, it has sometimes happened that a change which was brought in with an evil intent has in the end worked for good. Measures which were taken with a view of strengthening the power of the Crown have come in the end to widen the rights of the people. On the other hand, institutions which once answered a good and needful purpose have sometimes, through change of times, changed their nature and have become instruments of evil instead of good. But in neither case were the institutions of our fathers the work of abstract theory. They have therefore lived on, and they have borne good fruit. Our national Assembly has changed its name and its constitution, but its corporate identity has lived on unbroken. We can therefore at any moment reform without destroying. In France, on the other hand, institutions have been the work of abstract theory; they have been the creations, for good or for evil, of the minds of individual men. The English Parliament is immemorial; it grew step by step out of the older order of things. In France the older order of things utterly vanished; the ground lay open for the creation of a wholly new institution, and the States-General were called into being at the bidding of Philip the Fair(11). Englishmen in the fourteenth and fifteenth centuries had no theoriesof the rights of man or of universal humanity. But when they saw a practical grievance, they called for its redress. Frenchmen in the fourteenth and fifteenth centuries had theories as magnificent as any that have been put forth in the eighteenth or the nineteenth. And they had even then already learned to do deeds of blood in the name of freedom and philanthropy(12). Therefore French institutions have not lasted. The States-General lived but a fitful life from century to century, and they perished for ever in the Great Revolution. Since that time no French institution, no form either of the legislative or of the executive power, has been able to keep up a continuous being of twenty years. This difference has not been owing to any lack of great men or of noble purposes on the part of our continental neighbours. It has been owing, partly, we may believe, to differences in the inborn character of the two nations, partly to differences in the course taken by their several histories. In France the Kings gradually swept away all traces of older free institutions, and established a simple despotism in the Crown(13). The French therefore have been left without any traditional foundation to build on. In all their changes for good or for evil they have been driven to build afresh from the beginning. Our Kings never wholly wiped out ourfree institutions; they found means to turn them to their own purposes, and to establish a practical despotism without destroying the outward forms of freedom. The forms thus lived on, and in better times they could again be clothed with their substance. We ever had traditional principles to fall back upon, a traditional basis to build upon. It would be hard to reckon up the number of Assemblies, Conventions, Chambers of Deputies, and Legislative Bodies, which have risen and fallen in France, while the House of Lords and the House of Commons have lived on, with their powers, their duties, their relations to the Crown, to the Nation, and to one another, ever silently changing, but with their continuous being remaining throughout unbroken.
But I would again point out that, while the growth of English institutions has thus gone on almost in obedience to a natural law, the wisdom, the foresight, the patriotism, of individual statesmen is never to be put out of our reckoning. There was a given state of things, and some man had keenness of sight to see what was the right thing to do in that state of things. Our Constitution has no founder; but there is one man to whom we may give all but honours of a founder, one man to whose wisdom and self-devotion we owe that Englishhistory has taken the course which it has taken for the last six hundred years. It might no doubt have taken that course without him; things might have come about as they did without any one man coming so prominently to the front; or, if he had not arisen, some other man might have arisen to do his work. But we need not speculate as to what might have been; it is enough that one man did arise to do the work, that there is one man to whom we owe that the wonderful thirteenth century, the great creative and destructive age throughout the world(14), was to us an age of creation and not of destruction. That man, the man who finally gave to English freedom its second and more lasting shape, the hero and martyr of England in the greatest of her constitutional struggles, was Simon of Montfort, Earl of Leicester. If we may not call him the founder of the English Constitution, we may at least call him the founder of the House of Commons(15). It was in his age that the new birth of English freedom began to show itself; it was mainly by his work that that new birth was not stifled before it had brought forth lasting fruits. Strange it may at first sight seem that the founder of the later liberties of England was not an Englishman. Simon of Montfort, a native of France, did for the land ofhis adoption what even he might not have been able to do for the land of his birth. And why? The land of his birth was—shall I say flourishing or suffering?—under the baleful virtues of the most righteous of Kings. Saint Lewis reigned in France, Saint Lewis the just and holy, the man who never swerved from the path of right, the man who swared to his neighbour and disappointed him not, though it were to his own hindrance. Under his righteous rule there could be no ground for revolt or disaffection. By surrounding the Crown with the reflected glory of his own virtues, he did more than any other man to strengthen its power. He thus did more than any other man to pave the way for that foul despotism of his successors whose evil deeds would have daily vexed his righteous soul. In England, on the other hand, we had the momentary curse, the lasting blessing, of a succession of evil Kings. We had Kings who had no spark of English feeling in their breasts, but from whose follies and necessities our fathers were able to wring their freedom, all the more lastingly because it was bit by bit that it was wrung. A Latin poet once sang that freedom never flourishes more brightly than it does under a righteous King(16). And so it does while that righteous King himself tarries among men. But to win freedom as an heritagefor ever there are times when we have more need of the vices of Kings than of their virtues. The tyranny of our Angevin masters woke up English freedom from its momentary grave. Had Richard and John and Henry been Kings like Ælfred and Saint Lewis, the crosier of Stephen Langton, the sword of Robert Fitzwalter, would never have flashed at the head of the Barons and people of England; the heights of Lewes would never have seen the mightiest triumph of her freedom; the pavement of Evesham choir would never have closed over the mangled relics of her noblest champion(17).
The career of Simon of Montfort is the most glorious in our later history. Cold must be the heart of every Englishman who does not feel a thrill of reverence and gratitude as he utters that immortal name. But, fully to understand his work, we must go back somewhat before his own time, we must go back and trace how the sway of foreign invaders first made the path ready for the course of the foreign deliverer. I have shown in what state our Constitution stood at the time of the Norman Conquest. In that Constitution, be it ever remembered, the Norman Conquest made no formal change whatever. Nothing has had a more lasting effect on all later English history than the personal character and position of the NormanConqueror. But it was not in the character of a legislator that the main work of William was done. His greatest work of all was to weld together the still imperfectly united kingdoms of our ancient England into one indivisible body, a body which, since his day, no man has ever dreamed of rending asunder. But this was not the work of any formal legislative enactment; it was the silent result of the compression of foreign conquest. So it was with William’s whole policy and position. He was in truth a Conqueror, King by the edge of the sword, but it was his aim in everything to disguise the fact. He claimed the Crown by legal right; he received it by the formal election of the English people, and he was consecrated to his kingly office by the hands of an English Primate. He professed to rule, not according to his own will, not according to any laws of his own devising, but according to the laws of his predecessor and kinsman King Eadward(18). The great immediate change which was wrought under him was not any formal legislative change; it was the silent revolution implied in the transfer—the wary and gradual transfer—of all the greatest estates and highest offices in England to the hands of foreign holders. The momentary effect was to make Englishmen on their own soil the subjects of foreign conquerors. The lastingeffect was to change those foreign conquerors into Englishmen, and to call forth the spirit of English freedom in a more definite and antagonistic shape than it had ever before put on. What was the real position of a landowner of Norman descent within a generation or two after the Conquest? He held English lands according to English law; in all but the highest rank he lived on equal terms with other landowners of English birth; he was himself born on English soil, often of an English mother; he was called on in endless ways to learn, to obey, and to administer, the laws of England. Such a man soon became in feeling, and before long in speech also, as good an Englishman as if he had come of the male line of Hengest or Cerdic. There was nothing to hinder even one of the actual conquerors from thoroughly throwing in his lot with his new country and with its people. His tongue was French, but in truth he had far more in common with the Englishman than with the Frenchman. He was but a near kinsman slightly disguised. The Norman was a Dane who, in his sojourn in Gaul, had put on a slight French varnish, and who came into England to be washed clean again. The blood of the true Normans, in the real Norman districts of Bayeux and Coutances, differs hardly at all from the blood of the inhabitants of theNorth and East of England(19). See a French soldier and a Norman farmer side by side, and you feel at once that the Norman is nothing but a long-parted kinsman. The general effect of him is that of a man of Yorkshire or Lincolnshire who has somehow picked up a bad habit of talking French. Such men readily became Englishmen. We have the distinct assertions of contemporary writers, and every incidental notice bears out their assertions, that, among all classes between the highest and the lowest, among all between the great noble and the villain, the distinction of Norman and Englishman had been forgotten within little more than a hundred years after the time when King William came into England(20). And presently other causes came to make all the sons of the soil draw nearer and nearer together. A new dynasty filled the throne, a dynasty which claimed by female descent to be at once Norman and English, but which, in origin and feeling, was neither Norman nor English(21). Henry the Second, Count of Anjou through his father, Duke of Aquitaine through his wife, inherited also his mother’s claims on Normandy and England, but under him Normandy and England alike were but parts of a vast dominion which stretched from the Orkneys to the Pyrenees. Under the mighty, andon the whole the righteous, sway of the great Henry the worst side of this state of things did not show itself(22). Under his sons and his grandson England felt to the full the bitterness and the blessings of the Conquest. The land was overrun by utter strangers; the men of Old-English birth and the descendants of the first Norman settlers both saw the natives of other lands placed over the heads of both alike. Places of trust and honour and wealth were handed over to foreign favourites, and every man in the land was exposed to a yet heavier scourge, to the violence and insolence of foreign mercenaries. Under John Normandy was lost(23), and England again became the chief possession of the King of England. But neither John nor Henry learned the lesson. The personal vices of the father, the personal virtues of the son, worked to the same end as far as their kingdom was concerned. The King whose wickedness became a proverb, who surrounded himself with the kindred ruffians of every nation, and the King whose chief fault was that he could never say No to his wife or his mother, helped alike to call forth the spirit of resistance, to draw all Englishmen of whatever origin nearer together, and thereby to work out the great work of giving England a free and lasting Constitution. For such Kings we maywell be thankful, but to such Kings we owe no thanks. Our feelings of personal thankfulness towards any of our later Kings begin only when a King arose who joined the political skill of Henry the Second to the personal virtues of Henry the Third, and who added to both a feeling of English patriotism, a ruling sense of right in public affairs, of which neither Henry ever felt the slightest spark in his bosom. Edward the First, the first of our later Kings who bore an English name and an English heart, was the first round whose name can gather any feelings of personal thankfulness. In him we see the first of our Kings of foreign blood who did aught for the growth of our constitutional rights in some other way than that of calling forth the spirit of resistance to his rule.
Thus it was that the misgovernment of our Angevin Kings called forth among all the natives of the land an universal spirit of revolt against the domination of strangers within the realm. And they called forth the spirit of revolt in another way, a way hardly less important, by their base subserviency to a foreign power in ecclesiastical matters. I have here nothing to do with theological dogmas, with their truth or their falsehood, but the ecclesiastical position of the nation forms a most important aspect of its history throughoutthese times. In Old-English times there can be no doubt as to the existence of an effective supremacy in ecclesiastical matters on the part of the Crown. The King was the Supreme Governor of the Church, because he was the Supreme Governor of the Nation. The Church and the Nation were absolutely the same; the King and his Witan dealt with ecclesiastical questions and disposed of ecclesiastical offices by the same right by which they dealt with temporal questions and disposed of temporal offices(24). The Bishop and the Ealdorman, each appointed by the same authority, presided jointly in the assembly of the shire, and the assembly over which they presided dealt freely both with ecclesiastical and with temporal causes. One of the few formal changes in our Law which took place in the days of the Conqueror was the separation of the two jurisdictions of the Bishop and the Ealdorman. One of William’s extant laws ordained the establishment, according to continental models, of distinct ecclesiastical courts for the trial of ecclesiastical cause(25). But more important than this formal change was the practical result of the Conquest in bringing England into closer connexion than before with the See of Rome. The enterprise of the Conqueror was approved by Hildebrand, and it was blessed bythe Pope in whose name Hildebrand already ruled(26). While William lived, the royal supremacy remained untouched, and, allowing for his position in a conquered land, we may fairly say that it was not abused. But in meaner hands the ancient power of the Crown as the representative of the nation was often abused and often disputed. Quarrels arose as to the limits of the ecclesiastical and the civil power such as had never been heard of in the old times. And we must remember that claims which seem utterly monstrous now were far from seeming monstrous in a state of things so wholly unlike our times. Even the claim of the clergy to an exemption from temporal jurisdiction in criminal cases had a very different look then from what it has now. The privilege thus claimed was by no means confined to the priesthood; it took in a large part of those among the people who were least able to defend themselves(27). And when we think of the horrible punishments, death, and mutilations worse than death, which the courts of our Angevin Kings freely inflicted for very slight offences, we can understand that men looked favourably on the courts of the Bishops, where the heaviest penalties were stripes and imprisonment. In the disputes between the Crown and the Church, from William Rufus to Henry theSecond, we find popular feeling always enlisted on the ecclesiastical side(28). Nor need we wonder at this, when we find among the Constitutions of Clarendon, which King Henry strove to enforce and which Archbishop Thomas withstood, one which forbad the ordination of villains without the consent of their lords. That is to say, it cut off from the lowest class the only path by which they had any hope of rising to posts of honour and authority(29). But from the reign of John onwards we get a new state of things. A foreign power stepped in, a power which had as yet meddled but little in the strictly internal affairs of England, and which, so far as it had meddled at all, had on the whole taken the popular side. In the latter days of John and through the whole reign of Henry the Third, we find the Pope and the King in strict alliance against the English Church and Nation. The last good deed done by a Pope towards England was when Innocent the Third sent us Stephen Langton(30). Ever afterwards we find Pope and King leagued together to back up each other’s oppressions and exactions. The Papal power was always ready to step in on behalf of the Crown, always ready to hurl spiritual censures against the champions of English freedom. The Great Charter was denounced at Rome; sowas its author the patriot Primate(31). Earl Simon died excommunicate; but, in the belief of Englishmen, the excommunications of Rome could not hinder an English Earl from working countless signs and wonders(32)—a pretty convincing argument, one might deem, that the Bishop of Rome had no jurisdiction in this realm of England. Against King and Pope the whole nation stood united; clergy and laity, nobles and commons, men of Norman and men of Old-English birth, all stood together alike against the King’s foreign favourites and against the aggressions of Rome. The historians of the age, all of them churchmen, most of them monks, are all but unanimous on the popular side. Prelates like the Primate Stephen, like Robert Grosseteste of Lincoln and Walter of Cantelupe of Worcester, were foremost in the good cause; the two latter were among the closest friends and counsellors of the patriot Earl(33). We see how old distinctions and old enmities had been wiped out, how all the sons of the soil were banded together in one fellowship, when we read the letter denouncing the abuses of the Roman See which was sent to that See in the name of no less a body than the whole Nobility, Clergy, and Commons of the English realm. In that letter, an out-spoken and truly English document, which has been preservedby an historian who well appreciated it, the writers set forth that, as the Nobles, Clergy, and Commons in whose name it is written have no common seal, they have, for the signature of their document, borrowed the seal of the city of London(34).
This last fact brings me round to what I first spoke of long ago, what I may perhaps seem to have forgotten, but what I have in truth had constantly before my eyes, the distinctly constitutional reforms which we owe to Earl Simon of Montfort. The fact that a document which professed to speak in the name of all classes of the whole nation could not be so fittingly signed as with the seal of the city of London marks the place which that city held in the political estimation of the time. But London held that position only as the greatest member of an advancing class, as the foremost among the cities and boroughs of England. Now the great work of Earl Simon was to give those cities and boroughs their distinct place as one of the elements of the body politic. Let us trace the steps by which that great work was done. When we reach the thirteenth century, we may look on the old Teutonic constitution as having utterly passed away. Some faint traces of it indeed we may find here and there in the courseof the twelfth century, as when both sides in the wars of Stephen and Matilda acknowledged the right of the citizens of London to a voice in the disposal of the Crown(35). But the regular Great Council, the lineal representatives of the ancientMycel GemôtorWitenagemôt, was shrinking up into a body not very unlike our House of Lords. Its constitution, as I have already hinted, was far more fluctuating, far less strictly hereditary, than the modern body, but it was almost as far from being in any sense a representation of the people. The Great Charter secures the rights of the nation and of the national Assembly as against arbitrary legislation and arbitrary taxation on the part of the Crown. But it makes no change in the constitution of the Assembly itself. The greater Barons were to be summoned personally; the lesser tenants in chief, the representatives of thelandsittende mennof Domesday, were to be summoned by a general writ(36). The Great Charter in short is a Bill of Rights; it is not what, in modern phrase, we understand by a Reform Bill. But, during the reigns of John and Henry the Third, a popular element was fast making its way into the national Councils in a more practical form. The right of the ordinary freeman to attend in person had long been a shadow; that of the ordinarytenant-in-chief was becoming hardly more practical; it now begins to be exchanged for what had by this time become the more practical right of choosing representatives to act in his name. Like all other things in England, this right has grown up by degrees and as the result of what we might almost call a series of happy accidents. Both in the reign of John and in the former part of the reign of Henry, we find several instances of knights from each county being summoned(37). Here we have the beginning of our county members and of the title which they still bear, of knights of the shire. Here is the beginning of popular representation, as distinct from the gathering of the people in their own persons; but we need not think that those who first summoned them had any conscious theories of popular representation. The earliest object for which they were called together was probably a fiscal one; it was a safe and convenient way of getting money. The notion of summoning a small number of men to act on behalf of the whole was doubtless borrowed from the practice in judicial proceedings and in inquests and commissions of various kinds, in which it was usual for certain select men to swear on behalf of the whole shire or hundred. We must not forget, though it is a matter on which I haveno time to insist here, that our judicial and our parliamentary institutions are closely connected, that both sprang out of the primitive Assemblies, that things which now seem so unlike as our popular juries and the judicial powers of the House of Lords are in truth both of them fragments of the judicial powers which Tacitus speaks of as being vested in those primitive Assemblies. It was only step by step that the functions of judge, juror, witness, and legislator became the utterly distinct functions which they are now(38).
Thus we find the beginnings of the House of Commons, as we might have expected, in that class of its members which, for the most part, has most in common with the already established House of Lords. Thus far the developement of the Constitution had gone on in its usual incidental way. Each step in advance, however slight, was doubtless the work of the discernment of some particular man, even though his views may not have gone beyond the compassing of some momentary advantage. But now we come to that great change, that great measure of Parliamentary Reform, which has left to all later reformers nothing to do but to improve in detail. We come to that great act of the patriot Earl which made our popular Chamber really a popular Chamber.A House of knights, of county members, would have been comparatively an aristocratic body; it would have left out one of the most healthy and vigorous, and by far the most progressive, element in the nation. When, after the fight of Lewes, Earl Simon, then master of the kingdom with the King in his safe keeping, summoned his famous Parliament, he summoned, not only two knights from every county, but also two citizens from every city and two burgesses from every borough(39). The Earl had long known the importance and value of the growing civic element in the political society of his age. When, in an earlier stage of his career, he held the government of Gascony, he had, on his return to England, to answer charges brought against him by the Archbishop of Bourdeaux and the nobles of the province. The Earl’s answer was to bring forward a writing, giving him the best of characters, which was signed with the common seal of the city of Bourdeaux(40). As it was in Gascony, so it was in England. The Earl was always a reformer, one who set himself to redress practical grievances, to withstand the royal favourites, to put a check on the oppressions of Pope and King. But his first steps in the way of reform were made wholly on an aristocratic basis. He tried to redress the grievances of thenation by the help of his fellow nobles only. Step by step he learned that no true reform could be wrought for so narrow a platform, and step by step he took into his confidence, first the knights of the counties, and lastly the class to whose good will he had owed so much in his earlier trial, the citizens and burgesses. Through the whole struggle they stood steadily by him; London was as firm in his cause as Bourdeaux had been, and its citizens fought and suffered and triumphed with him on the glorious day of Lewes(41). By a bold and happy innovation, he called a class which had done so much for him and for the common cause to take their place in the councils of the nation. It was in Earl Simon’s Parliament of 1265 that the still abiding elements of the popular chamber, the Knights, Citizens, and Burgesses, first appeared side by side. Thus was formed that newly developed Estate of the Realm which was, step by step, to grow into the most powerful of all, the Commons’ House of Parliament.
Such was the gift which England received from her noblest champion and martyr. Nor should it sound strange in our ears that her champion and martyr was by birth a stranger. We boast ourselves that we have led captive our conquerors, and that we have made them into sons of thesoil as faithful as ourselves. What we have done with conquerors we have also done with peaceful settlers. In after days we welcomed every victim of oppression and persecution, the Fleming, the Huguenot, and the Palatine. And what we welcomed we adopted and assimilated, and strengthened our English being with all that was worthiest in foreign lands. So can we honour, along with the men of English birth, those men of other lands who have done for England as sons for their own mother. The Danish Cnut ranks alongside of the worthiest of our native Kings. Anselm of Aosta ranks alongside of the worthiest of our native Prelates. And so alongside of the worthiest of our native Earls we place the glorious name of Simon the Righteous. A stranger, but a stranger who came to our shores to claim lands and honours which were his lawful heritage, he became our leader against strangers of another mould, against the adventurers who thronged the court of a King who turned his back on his own people. The first noble of England, the brother-in-law of the King, he threw in his lot, not with princes or nobles, but with the whole people. He was the chosen leader of England in his life, and in death he was worshipped as her martyr. In those days religion coloured every feeling; the patriot whostood up for right and freedom was honoured alongside of him who suffered for his faith. We fill our streets and market-places with the statues of worthies of later days; Peel and Herbert and Lewis and Cobden yet live among us in bronze or marble. In those days honour to the statesman was not well distinguished from worship to the saint, and Waltheof and Simon and Thomas of Lancaster(42)were hailed as sainted patrons of England, and wonders were held to be wrought by their relics or at their tombs. The poets of three languages vied in singing the praises of the man who strove and suffered for right, and Simon, the guardian of England on the field and in the senate, was held to be her truer guardian still in the heavenly places from which our fathers deemed that the curse of Rome had no power to shut him out(43).
The great work of the martyred Earl had a strange destiny. His personal career was cut short, his political work was brought to perfection, by a rival and a kinsman only less to be honoured than himself. On the field of Evesham Simon died and Edward triumphed. But it was on Edward that Simon’s mantle fell; it was to his destroyer that he handed on the torch which fell from his dying grasp. For a moment his work seemed tohave died with him; for some years Parliaments were still summoned which were not after the model of the great Assembly which answered to the writs of the captive Henry. But the model still lived in men’s hearts, and presently the wisdom of the great Edward saw that his uncle’s gift could no longer be denied to his people. Parliaments after Simon’s model have been called together in unbroken succession from Edward’s day to our own(44). Next to the name of Simon we may honour the name of Edward himself and the names of the worthies who withstood him. To Roger Bigod of Norfolk and Humfrey Bohun of Hereford we owe the crowning of the work(45). The Parliament of England was now wrought into the fulness of its perfect form, and the most homely, but not the least important, of its powers was now fully acknowledged. No tax or gift could the King of England claim at the hands of Englishmen save such as the Lords and Commons of England had granted him of their free will(46).
Thus we may say that, in the time of Edward the First, the English Constitution definitely put on the same essential form which it has kept ever since. The germs of King, Lords, and Commons we had brought with us from our older home eighthundred years before. But, from King Edward’s days onwards, we have King, Lords, and Commons themselves, in nearly the same outward shape, with nearly the same strictly legal powers, which they still keep. All the great principles of English freedom were already firmly established. There is indeed a wide difference between the political condition of England under Edward the First and the political condition of England in our own day. But the difference lies far more in the practical working of the Constitution than in its outward form. The changes have been many; but a large portion of those changes have not been formal enactments, but those silent changes whose gradual working has wrought out for us a conventional Constitution existing alongside of our written Law. Other changes have been simply improvements in detail; others have been enactments made to declare more clearly, or to secure more fully in practice, those rights whose existence was not denied. But, speaking generally, and allowing for the important class of conventional understandings which have never been clothed with the form of written enactments, the main elements of the English Constitution remain now as they were fixed then. From that time English constitutional history is not merely an inquiry, however interestingand instructive, into something which has passed away. It is an inquiry into something which still lives; it is an inquiry into laws which, whenever they have not been formally repealed, are in full force at this day. Up to the reign of Edward the First English history is strictly the domain of antiquaries. From the reign of Edward the First it becomes the domain of lawyers(47).
We find then—it will be understood with what qualifications I am speaking—the English Constitution fully grown by the end of the thirteenth century, and we find it to be, in the shape which it then took, the work of Earl Simon of Montfort and of King Edward the First. Now there are several points in which the shape which our Constitution thus finally took differed from the shapes which were taken by most of the kindred Constitutions on the Continent. The usual form taken by a national or provincial assembly in the middle ages was that of an Assembly ofEstates. That is to say, it consisted of representatives of all those classes in the nation which were possessed of political rights. These in most countries were three, Nobles, Clergy, and Commons. And the name of the Three Estates, that is the Nobles, Clergy, and Commons, is equally well known in England, though the meaning of the three names differs nota little in England from what it meant elsewhere. In England we never had, unless it were in the old days of theEorlas, a Nobility such as is understood by that name in other countries. Elsewhere the nobles formed a distinct class, a class into which it was perhaps not absolutely impossible for those who were beneath it to be raised, but from which it was at least absolutely impossible for any of its members to come down. Whatever the privileges of the noble might be, they extended to all his children and their children for ever and ever. In some countries his titles descend in this way to all his descendants; all the children of a Duke, for instance, are Dukes and Duchesses. In France, and in most other countries where the system of Estates existed, the Estate of the Nobles in the National Assembly was a representation, in some shape or other, of the whole class of nobles as a distinct body. How different this is from our House of Lords I need not point out. In strictness, I repeat, we have no nobility. The seats in our Upper Chamber go by descent and not by election or nomination; but no political privilege attaches to the children of their holders. Even the eldest son of the peer, the future holder of the peerage, is a commoner as long as his father lives. Whatever titles he bears are simply titles of courtesywhich carry with them no political privileges above other commoners. Nay, we may go higher still. As the children of the peer have no special advantage, so neither have the younger children of the King himself. The King’s wife, his eldest son, his eldest daughter, his eldest son’s wife, all have special privileges by Law. His other children are simple commoners, unless their father thinks good to raise them, as he may raise any other of his subjects, to the rank of peerage(48). There is perhaps no feature in our Constitution more important and more beneficial than this, which binds all ranks together, and which has hindered us from suffering at any time under the curse of a noble caste. Yet this marked distinction between our own Constitution and that of most other countries is purely traditional. We cannot say that it was enacted by any particular man or in any particular Assembly. But it is easy to see that the fact that in England our national Assemblies always went on in some shape or other, that the right of all freemen to attend in person was never formally abolished, that the King kept the right of specially summoning whom he would, all helped to hinder the growth of an exclusive noble caste. The aristocratic sentiment, the pride of birth, has doubtless been very strong at all times. But it has beenmerely a sentiment, resting on no legal foundation. The Crown could always ennoble any one; but the nobility so granted belonged to one only of the family at the time, to the actual owner of the peerage. All ranks could at all times freely intermarry; all offices were open to all freemen; and England, unlike Germany, never saw ecclesiastical foundations whose members were bound to be of noble birth.