Text enclosed between paired asterisks is in bold face.
Original page numbers are shown at the right margin to facilitate use of the index.
THE GOVERNMENTS OF EUROPE
The MacMillan Company New York - Boston - Chicago Dallas - San Francisco
MacMillan & Co., Limited London - Bombay - Calcutta Melbourne
The MacMillan Co. of Canada, Ltd. Toronto
THE GOVERNMENTS OF EUROPE
FREDERIC AUSTIN OGG, Ph. D.
Professor of Political Science in the University of Wisconsin Author of "Social Progress in Contemporary Europe"
New York The MacMillan Company 1918 All rights reserved Copyright, 1913. by the MacMillan Company Set up and electrotyped. Published February, 1913. Reprinted July, December, 1913; June, 1914; August, 1915; July, 1916; September, 1917.
TO MY FATHER
PREFACE (p. vii)
It is a matter of common observation that during the opening years of the twentieth century there has been, in many portions of the civilized world, a substantial quickening of interest in the principles and problems of human government. The United States is happily among those countries in which the phenomenon can be observed, and we have witnessed in recent times not only the organization of societies and the establishment of journals designed to foster research within the field, but also a notable multiplication and strengthening of courses in political science open to students in our colleges and universities, as well as the development of clubs, forums, extension courses, and other facilities for the increasing of political information and the stimulation of political thinking on the part of the people at large. It is the object of this book to promote the intelligent study of government by supplying working descriptions of the governmental systems of the various countries of western and central Europe as they have taken form and as they operate at the present day. Conceived and prepared primarily as a text for use in college courses, it is hoped none the less that the volume may prove of service to persons everywhere whose interest in the subject leads them to seek the sort of information which is here presented.
The content of the book has been determined, in the main, by three considerations. In the first place, it has been deemed desirable to afford a wide opportunity for the comparative study of political institutions, especially by reason of the familiar fact that the governmental system of a minor country may, and frequently does, exhibit elements of novelty and of importance not inferior to those to be observed in the political organization of a greater state. Hence there are included descriptions of the governments of the minor as well as of the major nations of western and central Europe; and the original purpose to attempt some treatment of the governments of the eastern nations has been abandoned, somewhat reluctantly, only because of the demands of space, and because it was felt that this portion of the projected work would perhaps meet no very serious need in the usual college courses. In the second place, it is believed that the intelligent study of present-day governments must involve at all (p. viii) stages the taking into careful account of the historical origins and growth of these governments. Hence a considerable amount of space has been devoted to sketches of constitutional history, which, however, are in all instances so arranged that they may readily be omitted if their omission is deemed desirable. In the case of countries whose political system underwent a general reconstitution during the Revolutionary and Napoleonic era it has been thought not feasible to allude, even briefly, to historical developments prior to the later eighteenth century. In the third place, it has been considered desirable to include in the book some treatment of political parties and of the institutions of local administration.
Within a field so expansive it has been possible to undertake but an introduction to a majority of the subjects touched upon. In the foot-notes will be found references to books, documents, and periodical materials of widely varying types, and it is hoped that some of these may serve to guide student and reader to more intensive information.
The preparation of the book has been facilitated by the encouragement and the expert advice accorded me by a number of teachers of government in colleges and universities in various portions of the country. And I have had at all times the patient and discriminating assistance of my wife. For neither the plan nor the details of the work, however, can responsibility be attached to anyone save myself. I can only hope that amidst the multitude of facts, some elusive and many subject to constant change, which I have attempted here to set down, not many seriously vitiating errors may have escaped detection.
Frederic Austin OGG. Cambridge, Massachusetts, January 10, 1913.
TABLE OF CONTENTS (p. ix)
PART I.—GREAT BRITAIN
I. THE FOUNDATIONS OF THE CONSTITUTION 1. The Importance of Historical Background 1 2. Anglo-Saxon Beginnings 2 3. The Norman-Plantagenet Period 6 4. The Rise of Parliament 11 5. Administrative and Judicial Development 16 6. The Tudor Monarchy 18 7. Parliament under the Tudors 21 8. The Stuarts: Crown and Parliament 26 9. The Later Stuarts: the Revolution of 1688-1689 31
II. THE CONSTITUTION SINCE THE SEVENTEENTH CENTURY 1. Crown and Parliament after 1789 34 2. Rise of the Cabinet and of Political Parties 37 3. The Scottish and Irish Unions 39 4. The Nature and Sources of the Constitution 41 5. The Flexibility of the Constitution 44
III. THE CROWN AND THE MINISTRY 1. The Crown: Legal Status and Privileges 48 2. The Powers of the Crown 52 3. The Importance and Strength of the Monarchy 58 4. Privy Council, Ministry, and Cabinet 60 5. The Executive Departments 61 6. The Cabinet: Composition and Character 64 7. The Cabinet in Action 70
IV. PARLIAMENT: THE HOUSE OF COMMONS 1. The House of Commons prior to 1832 77 2. Parliamentary Reform, 1832-1885 80 3. The Franchise and the Electoral Questions of To-day 86 4. Electoral Procedure and Regulations 92
V. PARLIAMENT: THE HOUSE OF LORDS (p. x) 1. Composition 97 2. The Reform of the Lords: the Question prior to 1909 101 3. The Question of the Lords, 1909-1911 106 4. The Parliament Act of 1911 and After 112
VI. PARLIAMENT, ORGANIZATION, FUNCTIONS, PROCEDURE 1. The Assembling of the Chambers 117 2. Organization of the House of Commons 120 3. Organization of the House of Lords 125 4. Privileges of the Houses and of Members 126 5. The Functions of Parliament 128 6. General Aspects of Parliamentary Procedure 132 7. The Conduct of Business in the two Houses 138
VII. POLITICAL PARTIES 1. Parliamentarism and the Party System 143 2. Parties in the Later Eighteenth and Earlier Nineteenth Centuries 145 3. The Second Era of Whig [Liberal] Ascendancy, 1830-1874 147 4. The Second Era of Conservative Ascendancy, 1874-1905 150 5. The Liberal Revival 155 6. The Rule of the Liberals, 1906-1912 158 7. The Parties of To-day 162
VIII. JUSTICE AND LOCAL GOVERNMENT 1. English Law 167 2. The Inferior Courts 170 3. The Higher Courts 173 4. Local Government to the Municipal Corporations Act, 1835 176 5. Local Government Reform, 1835-1912 179 6. Local and Central Government 181 7. Local Government To-day: Rural 183 8. Local Government To-day: Urban 186
IX. THE EMPIRE AND ITS CONSTITUTION 1. Political Development Prior to 1848 193 2. The Creation of the Empire 198 3. The Constitution: Nature of the Empire 202 4. The Empire and the States 205
X. THE IMPERIAL GOVERNMENT: EMPEROR, CHANCELLOR, AND BUNDESRATH 1. The Emperor 210 2. The Chancellor 213 3. The Bundesrath 217
XI. THE IMPERIAL GOVERNMENT: REICHSTAG, PARTIES, JUDICIARY (p. xi) 1. Composition of the Reichstag—Electoral System 223 2. Organization and Powers of the Reichstag. 226 3. The Rise of Political Parties 229 4. Party Politics after 1878 233 5. Parties since 1907 236 6. Law and Justice 241
XII. THE CONSTITUTION OF PRUSSIA—THE CROWN AND THE MINISTRY 1. The German States and their Governments 245 2. The Rise of Constitutionalism in Prussia 246 3. The Crown and the Ministry 253
XIII. THE PRUSSIAN LANDTAG—LOCAL GOVERNMENT 1. Composition of the Landtag 257 2. The Movement for Electoral Reform 260 3. Organization and Functions of the Landtag 263 4. Local Government: Origins and Principles 265 5. Local Government: Areas and Organs 268
XIV. THE MINOR GERMAN STATES—ALSACE-LORRAINE 1. The More Important Monarchies 275 2. The Lesser Monarchies and the City Republics 279 3. Alsace-Lorraine 282
XV. CONSTITUTIONS SINCE 1789 1. A Century of Political Instability 289 2. The Revolutionary and Napoleonic Era 290 3. From the Restoration to the Revolution of 1848 295 4. The Second Republic and the Second Empire 297 5. The Establishment of the Third Republic 301 6. The Constitution of To-day 304
XVI. THE PRESIDENT, THE MINISTRY, AND PARLIAMENT 1. The President 308 2. The Ministry 311 3. Parliament: Senate and Chamber of Deputies 315 4. The Problem of Electoral Reform 319
XVII. PARLIAMENTARY PROCEDURE—POLITICAL PARTIES 1. Organization and Workings of the Chambers 325 2. Political Parties since 1871 329
XVIII. JUSTICE AND LOCAL GOVERNMENT 1. French Law 335 2. The Courts 337 3. Local Government: Development since 1789 341 4. Local Government To-day 346
PART IV.—ITALY (p. xii)
XIX. CONSTITUTIONAL DEVELOPMENT IN THE NINETEENTH CENTURY 1. The Era of Napoleon 353 2. The Restoration and the Revolution of 1848 358 3. The Achievement of Unification 362 4. The Constitution 365
XX. THE ITALIAN GOVERNMENT SYSTEM 1. The Crown and the Ministry 368 2. Parliament: the Senate 372 3. The Chamber of Deputies—Parliamentary Procedure 375 4. The Judiciary 381 5. Local Government 383
XXI. STATE AND CHURCH—POLITICAL PARTIES 1. Quirinal and Vatican 387 2. Parties and Ministries, 1861-1896 391 3. The Era of Composite Ministries, 1896-1912 395 4. Phases of Party Politics 398
XXII. THE CONSTITUTIONAL SYSTEM—THE CANTONS 1. The Confederation and Its Constitutions 405 2. The Nation and the States 411 3. Cantonal Legislation: the Referendum and the Initiative 416 4. The Cantonal Executive and Judiciary 421
XXIII. THE FEDERAL GOVERNMENT 1. The Executive 423 2. Legislation: the Federal Assembly 426 3. Legislation: the Referendum and the Initiative 430 4. Political Parties 434 5. The Judiciary 437
XXIV. AUSTRIA-HUNGARY PRIOR TO THE AUSGLEICH 1. Austrian Political Development to 1815 442 2. Hungarian Political Development to 1815 445 3. The Era of Metternich 450 4. The Revolution of 1848 453 5. The Revival of Constitutionalism: the Ausgleich 456
XXV. THE GOVERNMENT AND PARTIES OF AUSTRIA 1. The Constitution 460 2. The Crown and the Ministry 463 3. The Reichsrath—the Electoral System 465 4. Political Parties 474 5. The Judiciary and Local Government 483
XXVI. THE GOVERNMENT AND PARTIES OF HUNGARY (p. xiii) 1. The Constitution 489 2. The Crown and the Ministry 491 3. Parliament—the Electoral System 492 4. Political Parties 500 5. The Judiciary and Local Government 505
XXVII. AUSTRIA-HUNGARY: THE JOINT GOVERNMENT 1. The Common Organs of Government 510 2. The Territories of Bosnia and Herzegovina 514
PART VII.—THE LOW COUNTRIES
XXVIII. THE GOVERNMENT OF HOLLAND 1. A Century of Political Development 517 2. The Crown and the Ministry 523 3. The States-General and Political Parties 525 4. The Judiciary and Local Government 531
XXIX. THE GOVERNMENT OF BELGIUM 1. The Constitution—the Crown and the Ministry 534 2. The Houses of Parliament—the Electoral System 538 3. Parties and Electoral Reform since 1894—Parliamentary Procedure 542 4. The Judiciary and Local Government 549
XXX. THE GOVERNMENT OF DENMARK 1. Development Prior to 1814 553 2. The Rise of Constitutionalism, 1814-1866 556 3. The Crown and the Ministry 559 4. The Rigsdag—Political Parties 562 5. The Judiciary and Local Government 568
XXXI. THE SWEDISH-NORWEGIAN UNION AND THE GOVERNMENT OF NORWAY 1. Political Development to 1814 570 2. The Swedish-Norwegian Union, 1814-1905 573 3. The Norwegian Constitution—Crown and Ministry 578 4. The Storthing—Political Parties 581 5. The Judiciary and Local Government 587
XXXII. THE GOVERNMENT OF SWEDEN 1. The Constitution—the Crown and the Ministry 589 2. The Riksdag—the Electoral System 591 3. The Riksdag in Operation—Political Parties 597 4. The Judiciary and Local Government 600
PART IX.—THE IBERIAN STATES (p. xiv)
XXXIII. THE GOVERNMENT OF SPAIN 1. The Beginnings of Constitutionalism 603 2. Political and Constitutional Development, 1833-1876 606 3. The Present Constitution 611 4. The Crown and the Ministry 613 5. The Cortes 616 6. Political Parties 620 7. The Judiciary and Local Government 626
XXXIV. THE GOVERNMENT OF PORTUGAL 1. A Century of Political Development 629 2. The Government of the Kingdom 634 3. The Revolution of 1910 639 4. The Constitution of 1911 643
GOVERNMENTS OF EUROPE (p. 001)
PART I.—GREAT BRITAIN
THE FOUNDATIONS OF THE CONSTITUTION
I. THE IMPORTANCE OF HISTORICAL BACKGROUND
*1. Political Pre-eminence of Great Britain.*—George III. is reported to have pronounced the English constitution the most perfect of human formations. One need hardly concur unreservedly in this dictum to be impressed with the propriety of beginning a survey of the governmental systems of modern Europe with an examination of the political principles, rules, and practices of contemporary Britain. The history of no other European nation, in the first place, exhibits a development of institutions so prolonged, so continuous, and so orderly. The governmental forms and agencies of no other state have been studied with larger interest or imitated with clearer effect. The public policy of no other organized body of men has been more influential in shaping the progress, social and economic as well as political, of the civilized world. For the American student, furthermore, the approach to the institutions of the European continent is likely to be rendered easier and more inviting if made by way of a body of institutions which lies at the root of much that is both American and continental. There are, it is true, not a few respects in which the governmental system of the United States to-day bears closer resemblance to that of France, Germany, Switzerland, or even Italy than to that of Great Britain. The relation, however, between the British and the American is one, in the main, of historical continuity, while that between the French or German and the American is one which arises largely from mere imitation or from accidental resemblance.
*2. The Continuity of Institutional History.*—No government can be studied adequately apart from the historical development which has (p. 002) made it what it is; and this ordinarily means the tracing of origins and of changes which stretch through a prolonged period of time. Men have sometimes imagined that they were creating a governmental system de novo, and it occasionally happens, as in France in 1791 and in Portugal in 1911, that a regime is instituted which has little apparent connection with the past. History demonstrates, however, in the first place, that such a regime is apt to perpetuate more of the old than is at the time supposed and, in the second place, that unless it is connected vitally with the old, the chances of its achieving stability or permanence are inconsiderable. In Germany, for example, if the institutions of the Empire were essentially new in 1871, the governmental systems of the several federated states, and of the towns and local districts, exhibited numerous elements which in origin were mediaeval. In France, if central institutions, and even the political arrangements of the department and of the arrondissement, do not antedate the Revolution, the commune, in which the everyday political activity of the average citizen runs its course, stands essentially as it was in the age of Louis XIV.
If the element of continuity is thus important in the political system of Germany, France, or Switzerland, in that of England it is fundamental. It is not too much to say that the most striking aspect of English constitutional history is the continual preservation, in the teeth of inevitable changes, of a preponderating proportion of institutions that reach far into the past. "The great difficulty which presses on the student of the English constitution, regarded as a set of legal rules," observes a learned commentator, "is that he can never dissociate himself from history. There is hardly a rule which has not a long past, or which can be understood without some consideration of the circumstances under which it first came into being." It is the purpose of the present volume to describe European governments as they to-day exist and operate. It will be necessary in all cases, however, to accord some consideration to the origins and growth of the political organs and practices which may be described. In respect to Great Britain this can mean nothing less than a survey, brief as may be, of a thousand years of history.
[Footnote 1: W. R. Anson, The Law and Custom of the Constitution (3d ed., Oxford, 1897), I., 13.]
II. ANGLO-SAXON BEGINNINGS
The earliest form of the English constitution was that which existed during the centuries prior to the Norman Conquest. Political organization among the Germanic invaders of Britain was of the (p. 003) most rudimentary sort, but the circumstances of the conquest and settlement of the island were such as to stimulate a considerable elaboration of governmental machinery and powers. From the point of view of subsequent institutional history the most important features of the Anglo-Saxon governmental system were kingship, the witenagemot, and the units of local administration—shire, hundred, borough, and township.
[Footnote 2: See G. B. Adams, The Origin of the English Constitution (New Haven, 1912), Chap. 1. That the essentials of the English constitution of modern times, in respect to forms and machinery, are products of the feudalization of England which resulted from the Norman Conquest, and not survivals of Anglo-Saxon governmental arrangements, is the well-sustained thesis of this able study. That many important elements, however, were contributed by Anglo-Saxon statecraft is beyond dispute.]
*3. Kingship.*—The origins of Anglo-Saxon kingship are shrouded in obscurity, but it is certain that the king of later days was originally nothing more than the chieftain of a victorious war-band. During the course of the occupation of the conquered island many chieftains attained the dignity of kingship, but with the progress of political consolidation one after another of the royal lines was blotted out, old tribal kingdoms became mere administrative districts of larger kingdoms, and, eventually, in the ninth century, the whole of the occupied portions of the country were brought under the control of a single sovereign. Saxon kingship was elective, patriarchal, and, in respect to power, limited. Kings were elected by the important men sitting in council, and while the dignity was hereditary in a family supposedly descended from the gods, an immediate heir was not unlikely to be passed over in favor of a relative who was remoter but abler. In both pagan and Christian times the royal office was invested with a pronouncedly sacred character. As early as 690 Ine was king "by God's grace." But the actual authority of the king was such as arose principally from the dignity of his office and from the personal influence of the individual monarch. The king was primarily a war-leader. He was a law-giver, but his "dooms" were likely to be framed only in consultation with the wise men, and they pertained to little else than the preservation of the peace. He was supreme (p. 004) judge, and all crimes and breaches of the peace came to be looked upon as offenses against him; but he held no court and he had in practice little to do with the administration of justice. Over local affairs he had no direct control whatever.
[Footnote 3: Thus, in 871, the minor children of Ethelred I. were passed over in favor of Alfred, younger brother of the late king.]
[Footnote 4: The Anglo-Saxon king was "not the supreme law-giver of Roman ideas, nor the fountain of justice, nor the irresponsible leader, nor the sole and supreme politician, nor the one primary landowner; but the head of the race, the chosen representative of its identity, the successful leader of its enterprises, the guardian of its peace, the president of its assemblies; created by it, and, although empowered with a higher sanction in crowning and anointing, answerable to his people." W. Stubbs, Select Charters Illustrative of English Constitutional History (8th ed., Oxford, 1895), 12.]
*4. The Witenagemot.*—Associated with the king in the conduct of public business was the council of wise men, or witenagemot. The composition of this body, being determined in the main by the will of the individual monarch, varied widely from time to time. The persons most likely to be summoned were the members of the royal family, the greater ecclesiastics, the king's gesiths or thegns, the ealdormen who administered the shires, other leading officers of state and of the household, and the principal men who held land directly of the king. There were included no popularly elected representatives. As a rule, the witan was called together three or four times a year. Acting with the king, it made laws, imposed taxes, concluded treaties, appointed ealdormen and bishops, and occasionally heard cases not disposed of in the courts of the shire and hundred. It was the witan, furthermore, that elected the king; and since it could depose him, he was obliged to recognize a certain responsibility to it. "It has been a marked and important feature in our constitutional history," it is pointed out by Anson, "that the king has never, in theory, acted in matters of state without the counsel and consent of a body of advisers."
[Footnote 5: Law and Custom of the Constitution, II., Pt. 1., 7. Cf. W. Stubbs, Constitutional History of England, I., 127.]
*5. Township, Borough, and Hundred.*—By reason of their persistence, and their comparative changelessness from earliest times to the later nineteenth century, the utmost importance attaches to Anglo-Saxon arrangements respecting local government and administration. The smallest governmental unit was the township, comprising normally a village surrounded by arable lands, meadows, and woodland. The town-moot was a primary assembly of the freemen of the village, by which, under the presidency of a reeve, the affairs of the township were administered. A variation of the township was the burgh, or borough, whose population was apt to be larger and whose political independence was greater; but its arrangements for government approximated closely those of the ordinary township. A group of townships comprised a hundred. At the head of the hundred was a hundred-man, ordinarily elected, but not infrequently appointed by a great landowner or prelate to whom the lands of the hundred belonged. Assisting him was a council of twelve or more freemen. In the (p. 005) hundred-moot was introduced the principle of representation, for to the meetings of that body came regularly the reeve, the parish priest, and four "best men" from each of the townships and boroughs comprised within the hundred. The hundred-moot met as often as once a month, and it had as its principal function the adjudication of disputes and the decision of cases, civil, criminal, and ecclesiastical.
*6. The Shire.*—Above the hundred was the shire. Originally, as a rule, the shires were regions occupied by small but independent tribes; eventually they became administrative districts of the united kingdom. At the head of the shire was an ealdorman, appointed by the king and witan, generally from the prominent men of the shire. Subordinate to him at first, but in time overshadowing him, was the shire-reeve, or sheriff, who was essentially a representative of the crown, sent to assume charge of the royal lands in the shire, to collect the king's revenue, and to receive the king's share of the fines imposed in the courts. Each shire had its moot, and by reason of the fact that the shires and bishoprics were usually coterminous, the bishop sat with the ealdorman as joint president of this assemblage. In theory, at least, the shire-moot was a gathering of the freemen of the shire. It met, as a rule, twice a year, and to it were entitled to come all freemen, in person or by representation. It was within the competence of those who did not desire to attend to send as spokesmen their reeves or stewards; so that the body was likely to assume the character of a mixed primary and representative assembly. The shire-moot decided disputes pertaining to the ownership of land, tried suits for which a hearing could not be obtained in the court of the hundred, and exercised an incidental ecclesiastical jurisdiction.
[Footnote 6: The classic description of Anglo-Saxon political institutions is W. Stubbs, Constitutional History of England in its Origin and Development, 3 vols. (6th ed., Oxford, 1897), especially I., 74-182; but recent scholarship has supplemented and modified at many points the facts and views therein set forth. A useful account (though likewise subject to correction) is H. Taylor, The Origins and Growth of the English Constitution, 2 vols. (new ed., Boston, 1900), I., Bk. 1., Chaps. 3-5; and a repository of information is J. Ramsay, The Foundations of England, 2 vols. (London, 1898). A valuable sketch is A. B. White, The Making of the English Constitution, 449-1485 (New York, 1908), 16-62. A brilliant book is E. A. Freeman, The Growth of the English Constitution (4th ed., London, 1884); but by reason of Professor Freeman's over-emphasis of the perpetuation of Anglo-Saxon institutions in later times this work is to be used with caution. Political and institutional history is well set forth in T. Hodgkin, History of England to the Norman Conquest (London, 1906), and C. W. C. Oman, England before the Norman Conquest (London, 1910). A useful manual is H. M. Chadwick, Studies on Anglo-Saxon Institutions (Cambridge, 1905); and an admirable bibliography is C. Gross, The Sources and Literature of English History (London, 1900).]
III. THE NORMAN-PLANTAGENET PERIOD (p. 006)
At the coming of William the Conqueror, in 1066, two fundamental principles may be said to have been firmly fixed in the English political system. The first was that of thoroughgoing local self-government. The second was that of the obligation of the king, in all matters of first-rate importance, such as the laying of taxes and the making of laws, to seek the counsel and consent of some portion of his subjects. In the period which was inaugurated by the Conquest neither of these principles was entirely subverted, yet the Norman era stands out distinctly as one in which the powers of government were gathered in the hands of the king and of his immediate agents in a measure unknown at any earlier time. Building in so far as was possible upon foundations already laid, William was able so to manoeuver the consequences of the Conquest as to throw the advantages all but wholly upon the side of the crown. Feudalism, land-tenure, military service, taxation, the church—to all was imparted, by force or by craft, such a bent that the will of the sovereign acquired the practical effect of law, and monarchy in England, traditionally weak, was brought to the verge of sheer absolutism.
*7. Extension of Centralized Control.*—In respect to the actual mechanism of government the principal achievement of the Norman-Plantagenet period was the overhauling and consolidation of the agencies of administration. Despite the fact that local institutions of Saxon origin were largely respected, so that they have continued to this day the most substantial Anglo-Saxon contribution to English polity, there was a notable linking-up of these hitherto largely disassociated institutions with the institutions of the central government. This was accomplished in part by the dissolution of the earldoms by which the monarchy had been menaced in later Saxon days, and in part by a tremendous increase of the power and importance of the sheriffs. It was accomplished still more largely, however, by the organization of two great departments of government—those of justice and finance—presided over by dignitaries of the royal household and manned by permanent staffs of expert officials. The department of justice comprised the Curia; that of finance, the Exchequer. At the head of the one was the Chancellor; at the head of the other, the Treasurer. The principal officials within the two comprised a single body of men, sitting now as justitiarii, or justices, and now as barones of the Exchequer. The profits and costs of asserting and administering justice and the incomings and outgoings of the Exchequer were but different aspects of the same fundamental concerns of (p. 007) state. The justices of the Curia who held court on circuit throughout the realm and the sheriffs who came up twice a year to render to the barons of the Exchequer an account of the sums due from the shires served as the real and tangible agencies through which the central and local governments were knit together. As will appear, it was from the Norman Curia that, in the course of time, there sprang immediately those diversified departments of administration whose heads comprise the actual executive of the British nation to-day.
[Footnote 7: Anson, Law and Custom of the Constitution, II., Pt. I., II.]
*8. King and Great Council.*—Untrammelled by constitutional restrictions, the Conqueror and his earlier successors recognized such limitations only upon the royal authority as were imposed by powerful and turbulent subjects. Associated with the king, however, was from the first a body known as the Commune Concilium, the Common, or Great, Council. "Thrice a year," the Saxon Chronicle tells us, "King William wore his crown every year he was in England; at Easter he wore it at Winchester; at Pentecost, at Westminster; and at Christmas, at Gloucester; and at these times all the men of England were with him—archbishops, bishops and abbots, earls, thegns and knights." By the phrase "all the men of England" is to be understood only the great ecclesiastics, the principal officers of state, and the king's tenants-in-chief—in truth, only such of the more important of these as were summoned individually to the sovereign's presence. At least in theory, however, the Norman kings were accustomed to consult this gathering of magnates, very much as their predecessors had been accustomed to consult the witenagemot, upon all important questions of legislation, finance, and public policy. It may, indeed, be said that it is the development of this Council that comprises the central subject of English constitutional history; for, "out of it, directly or indirectly, by one process or another, have been evolved Parliament, the Cabinet, and the courts of law."
[Footnote 8: W. Wilson, The State (rev. ed., Boston, 1903), 369.]
*9. The Plantagenet Monarchy.*—During the century and a half following the death of the Conqueror the vigor of the monarchy varied enormously, but not until the days of King John can there be said to have been any loss of power or independence which amounted to more than a passing circumstance. In a charter granted at the beginning of his reign, in 1100, Henry I. confirmed the liberties of his subjects and promised to respect the laws of Edward the Confessor; but the new sovereign did not propose, and no one imagined that he intended to propose, to relax any of the essential and legitimate power which had been transmitted to him by his father and brother. The reign of (p. 008) Stephen (1135-1154) was an epoch of anarchy happily unparalleled in the history of the nation. During the course of it the royal authority sank to its lowest ebb since the days of the Danish incursions. But the able and wonderfully energetic Henry II. (1154-1189) recovered all that had been lost and added not a little of his own account. "Henry II.," it has been said, "found a nation wearied out with the miseries of anarchy, and the nation found in Henry II. a king with a passion for administration." With the fundamental purpose of reducing all of his subjects to equality before an identical system of law, the great Plantagenet sovereign waged determined warfare upon both the rebellious nobility and the independent clergy. He was not entirely successful, especially in his conflict with the clergy; but he effectually prevented a reversion of the nation to feudal chaos, and he invested the king's law with a sanction which it had known hardly even in the days of the Conqueror. The reign of Henry II. has been declared, indeed, to "initiate the rule of law." By reviving and placing upon a permanent basis the provincial visitations of the royal justices, for both judicial and fiscal purposes, and by extending in the local administration of justice and finance the principle of the jury, Henry contributed fundamentally to the development of the English Common Law, the jury, and the modern hierarchy of courts. By appointing as sheriffs lawyers or soldiers, rather than great barons, he fostered the influence of the central government in local affairs. By commuting military service for a money payment (scutage), and by a revival of the ancient militia system (the fyrd), he brought the control of the armed forces of the nation effectually under royal control. By the frequent summons of the Great Council and the systematic reference to it of business of moment he contributed to the importance of an institution through whose amplification a century later Parliament was destined to be brought into existence.
[Footnote 9: Anson, Law and Custom of the Constitution, II., Pt. I., 13.]
[Footnote 10: Stubbs, Select Charters, 21.]
*10. The Great Charter, 1215.*—The period of Richard I. (1189-1199) was, in constitutional matters, a continuation of that of Henry II. Richard was absent from the kingdom throughout almost the whole of the reign, but under the guidance of officials trained by Henry the machinery of government operated substantially as before. Under John (1199-1216) came a breakdown, occasioned principally by the sovereign's persistence in evading certain limitations upon the royal authority which already had assumed the character of established rules of the constitution. One of these forbade that the king should impose fresh taxation except with the advice and consent of the Great Council. (p. 009) Another enjoined that a man should not be fined or otherwise despoiled of his property except in virtue of judicial sentence. These and other principles John habitually disregarded, with the consequence that in time he found himself without a party and driven to the alternative of deposition or acceptance of the guarantee of liberties which the barons, the Church, and the people were united in demanding of him. The upshot was the promulgation, June 15, 1215, of Magna Carta.
No instrument in the annals of any nation exceeds in importance the Great Charter. The whole of English constitutional history, once remarked Bishop Stubbs, is but one long commentary upon it. The significance of the Charter arises not simply from the fact that it was wrested from an unwilling sovereign by concerted action of the various orders of society (action such as in France and other continental countries never, in mediaeval times, became possible), but principally from the remarkable summary which it embodies of the fundamental principles of English government in so far as those principles had ripened by the thirteenth century. The Charter contained little or nothing that was new. Its authors, the barons, sought merely to gather up within a reasonably brief document those principles and customs which the better kings of England had been wont to observe, but which in the evil days of Richard and John had been persistently evaded. There was no thought of a new form of government, or of a new code of laws, but rather of the redress of present and practical grievances. Not a new constitution, but good government in conformity with the old one, was the essential object. Naturally enough, therefore, the instrument was based, in most of its important provisions, upon the charter granted by Henry I. in 1100, even as that instrument was based, in the main, upon the righteous laws of Edward the Confessor. After like manner, the Charter of 1215 became, in its turn, the foundation to which reassertions of constitutional liberty in subsequent times were apt to return; and, under greater or lesser pressure, the Charter itself was "confirmed" by numerous sovereigns who proved themselves none too much disposed to observe its principles.
In effect the Charter was a treaty between the king and his dissatisfied subjects. It was essentially a feudal document, and the majority of its provisions relate primarily to the privileges and rights of the barons. None the less, it contains clauses that affected all classes of society, and it is especially noteworthy that the barons and clergy pledged themselves in it to extend to their dependents the same customs and liberties which they were themselves demanding of the crown. Taking the Charter as a whole, it guaranteed the freedom of the Church, defined afresh and in precise terms surviving feudal (p. 010) incidents and customs, placed safeguards about the liberties of the boroughs, pledged security of property and of trade, and stipulated important regulations respecting government and law, notably that whenever the king should propose the assessment of scutages or of unusual aids he should take the advice of the General Council, composed of the tenants-in-chief summoned individually in the case of the greater ones and through the sheriffs in the case of those of lesser importance. Certain general clauses, e.g., that pledging that justice should neither be bought nor sold, and that prescribing that a freeman might not be imprisoned, outlawed, or dispossessed of his property save by the judgment of his peers or by the law of the land, meant in effect considerably less than they sometimes have been interpreted to mean. Yet even they served to emphasize the fundamental principle upon which the political and legal structure was intended to be grounded, that, namely, of impartial and unvarying justice.
[Footnote 11: The term "peers," as here employed, means only equals in rank. The clause cited does not imply trial by jury. It comprises a guarantee simply that the barons should not be judged by persons whose feudal rank was inferior to their own. Jury trial was increasingly common in the thirteenth century, but it was not guaranteed in the Great Charter.]
[Footnote 12: Good accounts of the institutional aspects of the Norman-Angevin period are Stubbs, Constitutional History, I., 315-682, II., 1-164; Taylor, Origin and Growth of the English Constitution, I., Bk. 2, Chaps. 2-3; Adams, The Origin of the English Constitution, Chaps. 1-4; and White, Making of the English Constitution, 73-119. Two excellent little books are Stubbs, Early Plantagenets (London, 1876) and Mrs. J. R. Green, Henry II. (London, 1892). General accounts will be found in T. F. Tout, History of England from the Accession of Henry III. to the Death of Edward III., 1216-1377 (London, 1905), and H. W. C. Davis, England under the Normans and the Angevins (London, 1904). A monumental treatise, though one which requires a considerable amount of correction, is E. A. Freeman, History of the Norman Conquest, 6 vols. (Oxford, 1867-69), and a useful sketch is Freeman, Short History of the Norman Conquest (3d ed., Oxford, 1901). Among extended and more technical works may be mentioned: F. Pollock and F. W. Maitland, History of English Law, 2 vols. (2d ed., Cambridge, 1898), which, as a study of legal history and doctrines, supersedes all earlier works; F. W. Maitland, Domesday Book and Beyond (Cambridge, 1897); J. H. Round, Feudal England (London, 1895); K. Norgate, England under the Angevin Kings, 2 vols. (London, 1887); ibid., John Lackland (London, 1902), and J. H. Ramsay, The Angevin Empire (London, 1903). The text of the Great Charter is printed in Stubbs, Select Charters, 296-306. English versions may be found in G. B. Adams and H. M. Stephens, Select Documents of English Constitutional History (New York, 1906), 42-52; S. Amos, Primer of the English Constitution and Government (London, 1895), 189-201; and University of Pennsylvania Translations and Reprints (translation by E. P. Cheyney), I., No. 6. The principal special work on the subject is W. S. McKechnie, Magna Carta; a Commentary on the Great Charter of King John (Glasgow, 1905). An illuminating commentary is contained in Adams, Origin of the English Constitution, 207-313.]
IV. THE RISE OF PARLIAMENT (p. 011)
*11. Beginnings of the Representative Principle.*—The thirteenth century was clearly one of the most important periods in the growth of the English constitution. It was marked not merely by the contest which culminated in the grant of the Great Charter but also by the beginnings, in its essentials, of Parliament. The formative epoch in the history of Parliament may be said to have been, more precisely, the second half of the reign of Henry III. (1216-1272), together with the reign of the legislator-king Edward I. (1272-1307). The creation of Parliament as we know it came about through the signal enlargement of the Norman-Plantagenet Great Council by the introduction of representative elements, followed by the splitting of the heterogeneous mass of members definitely into two co-ordinate chambers. The representative principle was in England no new thing in the thirteenth century. As has appeared, there were important manifestations of it in the local governmental system of Anglo-Saxon times. As brought to bear in the development of Parliament, however, the principle is generally understood to have sprung from the twelfth-century practice of electing assessors to fix the value of real and personal property for purposes of taxation, and of jurors to present criminal matters before the king's justices. Thus, Henry II.'s Saladin Tithe of 1188—the first national imposition upon incomes and movable property—was assessed, at least in part, by juries of neighbors elected by, and in a sense representative of, the taxpayers of the various parishes. By the opening of the thirteenth century the idea was fast taking hold upon the minds of Englishmen, not only that the taxpayer ought to have a voice in the levying of taxes, but that between representation and taxation there was a certain natural and inevitable connection. In the Great Charter, as has been stated, it was stipulated that in the assessment of scutages and of all save the three commonly recognized feudal aids the king should seek the advice of the General Council. The General Council of the earlier thirteenth century was not regularly a representative body, but it was not beyond the range of possibility to impart to it a representative character, and in point of fact that is precisely what was done. To facilitate the process of taxation it was found expedient by the central authorities to carry over into the domain of national affairs that principle of popular representation which already was doing approved service within the sphere of local justice and finance, and from this adaptation arose, step by step, the conversion of the old gathering of feudal magnates into a national parliamentary assembly.
*12. Early Parliaments.*—The means by which the transformation (p. 012) was accomplished consisted in the first instance, as has been said, in the introduction into the Council of new and representative elements. The earliest step in this direction was taken in 1213, when King John, harassed by fiscal and political difficulties, addressed to the sheriffs a series of writs commanding that four discreet knights from every county be sent to participate in a deliberative council to be held at Oxford. The practice took root slowly. In 1254 Henry III., in sore need of money for the prosecution of his wars in Gascony, required of the sheriffs that two knights be sent from each county to confer with the barons and clergy relative to the subsidies which should be accorded the crown. The desired vote of supplies was refused and the long-brewing contest between the king and the barons broke in civil war. But during the struggle that ensued the foundations of Parliament were still more securely laid. Following the king's defeat at Lewes, in 1264, Simon de Montfort, leader of the barons, convened a parliament composed of not only barons and clergy but also four knights from each shire, and at London during the following year, he caused again to be assembled, in addition to five earls, eighteen barons, and a large body of clergy, two knights from each of the several shires and two burgesses from each of twenty-one towns known to be friendly to the barons' cause. These proceedings were essentially revolutionary and unauthorized. Even the gathering of 1265, as Stubbs remarks, presented the appearance largely of a party convention, and there is no evidence that its author intended such a body to be regularly or frequently summoned, or even summoned a second time at all. None the less, now for the first time representatives of the towns were brought into political co-operation with the barons, clergy, and knights; and the circumstance was filled with promise. During the ensuing thirty years there were several "parliaments," although the extent to which knights and burgesses participated in them is uncertain. The period was one of experimentation. In 1273 four knights from each shire and four citizens from each town joined the magnates in taking the oath of fealty to the new and absent sovereign, Edward I. The First Statute of Westminster, in 1275, declares itself to have been adopted with the assent of the "commonalty of the realm." In 1283 a parliament was held which almost precisely duplicated that of 1265. In 1290, and again in 1294, there was one, in which, however, representation of the towns was omitted.
The gathering which served to fix the type for all time to come was Edward I.'s so-called Model Parliament of 1295. To this parliament the king summoned severally the two archbishops, all of the bishops, the greater abbots, and the more important earls and barons; while (p. 013) every sheriff was enjoined to see that two knights were chosen from each shire, two citizens from each city, and two burgesses from each borough. Each bishop was authorized, furthermore, to bring with him his prior or the dean of the cathedral chapter, the archdeacons of his diocese, one proctor or agent for his cathedral chapter, and two of his diocesan clergy. In the parliament as actually convened there were 2 archbishops, 18 bishops with their lesser clergy, 66 abbots, 3 heads of religious orders, 9 earls, 41 barons, 63 knights of the shire, and 172 representatives of the cities and boroughs—an aggregate of approximately 400 persons. There were thus present in the assemblage, in person or by deputy, all of the constituent orders of English society, and the irregular device of Simon de Montfort was vested at last with the character of legality. After Edward I. Parliament may be said to have been an established institution of the realm. Its meetings long continued intermittent and infrequent, and its powers from time to time varied enormously, but the place which it filled in the economy of the nation grew ever more important.
*13. Establishment of the Bicameral System.*—Like its counterpart in France, the Estates-General, the English Parliament comprised the three great estates or orders—nobility, clergy, and commons—of which, aside from the peasantry, mediaeval society in all western European countries was composed. In the working out of its internal structure, however, two chambers resulted, rather than, as in France, three. Originally the three estates sat separately. Their primary business was the voting of supplies and, the principle being that a tax ought to be conceded by those who would be called upon to pay it, the natural course was for the lords to grant their scutages and aids, the commoners their tenths and fifteenths, and the clergy their subsidies, apart. Indeed there is reason to believe that at times even the knights and the burgesses deliberated separately. Gradually, however, there appeared certain affiliations of interest which operated to modify the original practice. In the first place, the lesser clergy, inconvenienced by attendance and preferring to vote their contributions in the special ecclesiastical assemblages known as the convocations of Canterbury and York, contrived to throw off entirely their obligation of membership. The greater clergy and the greater barons, in the next place, developed sufficiently large interests in common to be amalgamated with ease in one body. Similarly, the lesser barons found their interests essentially identical with those of the country freeholders, represented by the knights of the shire, and with those of the burgesses. The upshot was a gradual alignment of the aggregate membership in two great groups, (p. 014) the one of which became historically the House of Lords, the other the House of Commons. At the beginning of the reign of Edward III. (1327-1377) the three estates still sat separately, but before the close of this period the bicameral arrangement seems definitely to have been established. There is no evidence that at any stage of their history the three groups ever sat as a single body. It need hardly be emphasized that the entire course of English history since the fourteenth century has been affected profoundly by the fact that the national assembly took the form of two houses rather than of one, as did the Scotch, of three as did the French, or of four as did the Swedish. But for the withdrawal of the lesser clergy, the number might very possibly have been three.
*14. Powers of Finance and Legislation.*—Structurally, the English Parliament is a creation of the Middle Ages; politically, it is a product of modern times, and, in no small measure, of the past hundred years. Before the close of the Middle Ages, however, it had acquired a sum total of authority which at least gave promise of its development into a great co-ordinate, if not a preponderating, power in the state. In the first place, it had forced the establishment of the twin principles of public finance (1) that the right to levy taxes of every sort lay within its hands and (2) that the crown might impose no direct tax without its assent, nor any indirect tax save such as might be justified under the customs recognized in Magna Carta. When Edward I. confirmed the Charter, in 1297, he agreed that no tallages or aids should thereafter be taken without the assent of the archbishops, bishops, earls, barons, knights, burgesses, and other freemen of the land. A statute of 1340 reiterated the principle still more specifically. In 1395 appeared the formula employed to this day in the making of parliamentary grants, "by the Commons with the advice and assent of the Lords Spiritual and Temporal." And in 1407 Henry IV. extended the royal approval to the principle that money grants should be initiated in the Commons, assented to by the Lords, and only thereafter reported to the king. For the ancient theory of taxation by estates was substituted, slowly but inevitably, the modern doctrine of the fiscal pre-eminence of the Commons.
The second point at which Parliament made decisive advance before the close of the mediaeval period was in respect to powers of ordinary legislation. Originally, Parliament was not conceived of as, in the strict sense, a law-making body at all. The magnates who composed the General Council had exercised the right to advise the crown in legislative matters, and their successors in Parliament continued to do the same, but the commoners who in the thirteenth century were (p. 015) brought in were present, in theory, for fiscal rather than legislative purposes. The distinction, however, was difficult to maintain, and with the continued growth of the parliamentary body the legislative character was recognized eventually to be inherent in the whole of it. At the opening of the fourteenth century laws were made, technically, by the king with the assent of the magnates at the request of the commoners. The knights and burgesses were recognized as petitioners for laws, rather than as legislators. They could ask for the enactment of a statute, or for a clearer definition of law, but it was for the king and his councillors to determine finally whether legislation was required and what form it should assume. Even when a law which was requested was promised it not infrequently happened that the intent of the Commons was thwarted, for the text of the measure was not drawn up, normally, until after the parliament was dissolved, both form and content were determined arbitrarily by the crown and council, and between petition and statute there might be, and often was, gross discrepancy.
*15. Development of the Legislative Process.*—By a memorable statute of 1322, in the reign of Edward II., it was stipulated that "the matters which are to be established for the estate of our lord the king and of his heirs, and for the estate of the realm and of the people, shall be treated, accorded, and established in parliaments, by our lord the king, and by the assent of the prelates, earls, and barons, and the commonalty of the realm; according as it hath been before accustomed." This declaration is understood to have established, not only the essentially legislative character of Parliament, but the legislative parity of the commoners with the magnates. It remained, however, to substitute for the right of petition the right of legislating by bill. Throughout the fourteenth century Parliament, and especially the Commons, pressed for an explicit recognition of the principle that the statute in its final form should be identical with the petition upon which it was based. In 1414 Henry V. granted that "from henceforth nothing be enacted to the petitions of his commons that be contrary to their asking, whereby they should be bound without their assent." The promise tended in practice to be evaded, and late in the reign of Henry VI. there was brought about an alteration of procedure in accordance with which measures were henceforth to be introduced in either house, in the form of drafted bills. The legislative process was now essentially reversed. The right of initiative was secured to the Commons, concurrently with the Lords; the crown was restricted to a right of veto or assent. The change in procedure was reflected (p. 016) in a change of formula. Statutes began to be made "by the King's most excellent majesty by and with the advice and consent of the Lords spiritual and temporal, and Commons in this present Parliament assembled, and by the authority of the same." And these words comprise the formula with which every act of Parliament to-day begins. Technically, the laws were, and are still, made by the crown; practically Parliament, once merely a petitioning and advising body, had become a full-fledged legislative assemblage.
[Footnote 13: Adams and Stephens, Select Documents, 97.]
[Footnote 14: Ibid., 182.]
Throughout the later fourteenth and earlier fifteenth centuries the growth of Parliament in self-assertiveness was remarkable. Twice during the fourteenth century, in 1327 and in 1399, it exercised the fundamental prerogative of deposing the sovereign and of bestowing the crown upon a successor. And before the close of the Lancastrian era it had assumed advanced ground in demanding the right of appropriating (as well as of voting) subsidies, the accounting by the public authorities for moneys expended, the removal of objectionable ministers, and the annual assembling of the two houses. During the civil wars of the second half of the fifteenth century parliamentary aggressiveness and influence materially declined, and at the opening of the Tudor period, in 1485, the body was in by no means the favorable position it had occupied fifty years earlier. As will appear, its eclipse continued largely through the epoch of the Tudors. Yet its broader aspects had been permanently fixed and its perpetuation in the constitutional system positively assured.
[Footnote 15: Strictly, upon the first of these occasions the sovereign, Edward II., was driven by threat of deposition to abdicate.]
[Footnote 16: On the rise of Parliament see Stubbs, Constitutional History of England, II., Chaps. 15, 17; Taylor, Origins and Growth of the English Constitution, I., 428-616; G. B. Smith, History of the English Parliament, 2 vols. (London, 1892), I., Bks. 2-4; White, Making of the English Constitution, 298-401; D. J. Medley, Students' Manual of English Constitutional History (2d ed., Oxford, 1898), 127-150; Tout, History of England from the Accession of Henry III. to the Death of Edward III., Chaps. 5, 6, 10. Valuable biographical treatises are G. W. Prothero, Life of Simon de Montfort (London, 1877); E. Jenks, Edward Plantagenet [Edward I.] the English Justinian (New York, 1902); and T. F. Tout, Edward the First (London, 1906).]
V. ADMINISTRATIVE AND JUDICIAL DEVELOPMENT
*16. The Permanent Council.*—One line, thus, along which were laid the foundations of the English governmental system of to-day comprised the transformation of the Norman Great Council into the semi-aristocratic, semi-democratic assemblage known as Parliament. A parallel line (p. 017) was the development from the Great Council of a body designated after the thirteenth century as the Permanent, after the fifteenth as the Privy, Council, and likewise of the four principal courts of law. By a very gradual process those members of the original Council who were attached in some immediate manner to the court or to the administrative system acquired a status which was different from that of their colleagues. The Great Council met irregularly and infrequently. So likewise did Parliament. But the services of the court and the business of government must go on continuously, and for the care of these things there grew up a body which at first comprised essentially a standing commission, an inner circle, of the Council, but which in time acquired a virtually independent position and was designated, for purposes of distinction, as the Permanent Council. The composition of this body varied from time to time. Certain functionaries were included regularly, while the remaining members owed their places to special summons of the crown. Its powers were enormous, being at the same time administrative, judicial, and financial, and the mass of business to which it was required to give attention was increasingly great.
*17. The Courts of Law.*—Three things resulted. In the first place, the Permanent Council acquired, in practice, complete detachment from the older and larger body. In the second place, to facilitate the accomplishment of its work there were introduced into it trained lawyers, expert financiers, and men of other sorts of special aptitudes—men, often, who in rank were but commoners. Finally, there split off from the body a succession of committees, to each of which was assigned a particular branch of administrative or judicial business. In this manner arose the four great courts of law: (1) the Court of Exchequer, to which was consigned jurisdiction over all fiscal causes in which the crown was directly concerned; (2) the Court of Common Pleas, with jurisdiction over civil cases between subject and subject; (3) the Court of King's Bench, presided over nominally by the king himself and taking cognizance of a variety of cases for which other provision was not made; and (4) the Court of Chancery, which, under the presidency of the Chancellor, heard and decided cases involving the principles of equity. The differentiation of these tribunals, beginning in the early twelfth century, was completed by the middle of the fourteenth. Technically, all were co-ordinate courts, from which appeal lay to the King in Council; and of the judicial prerogative which the Council as a whole thus retained there are still, as will be pointed out, certain survivals. By the time of Henry VI. (1422-1461) the enlargement of membership and the specialization of functions of the Permanent Council had (p. 018) progressed so far that the Council had ceased entirely to be a working unit. In the end what happened was that, precisely as the Permanent Council had been derived by selection from the original Great Council, so from the overgrown Permanent Council was constituted, in the fifteenth century, a smaller and more compact administrative body to which was assigned the designation of "Privy Council."
[Footnote 17: Stubbs, Constitutional History, II., Chap. 13; White, Making of the English Constitution, 123-251; Adams, Origin of the English Constitution, 136-143; W. S. Holdsworth, History of English Law, 3 vols. (London, 1903-1909), I., 1-169.]
VI. THE TUDOR MONARCHY
*18. Popular Absolutism.*—The salient fact of the Tudor period of English history (1485-1603) is the vigor and dominance of the monarchy. From the Wars of the Roses the nation emerged in need, above all other things, of discipline and repose. It was the part of the Tudors to enforce relentlessly the one and to foster systematically the other. The period was one in which aristocratic turbulence was repressed, extraordinary tribunals were erected to bring to justice powerful offenders, vagrancy was punished, labor was found for the unemployed, trade was stimulated, the navy was organized on a permanent basis, the diffusion of wealth and of education was encouraged, the growth of a strong middle class was promoted—in short, one in which out of chaos was brought order and out of weakness strength. These things were the work of a government which was strongly paternal, even sheerly despotic, and, for a time at least, the evolution of parliamentary machinery was utterly arrested. But it should be observed that the question in sixteenth-century England was not between strong monarchy on the one hand and parliamentary government on the other. The alternatives were, rather, strong monarchy and baronial anarchy. This the nation clearly perceived, and, of the two, it much preferred the former.
"The Tudor monarchy," says an English scholar, "unlike most other despotisms, did not depend on gold or force, on the possession of vast estates, unlimited taxation, or a standing army. It rested on the willing support of the nation at large, a support due to the deeply-rooted conviction that a strong executive was necessary to the national unity, and that, in the face of the dangers which threatened the country both at home and abroad, the sovereign must be allowed a free hand. It was this conviction, instinctively felt rather than definitely realized, which enabled Henry VIII. not only to crush open rebellion but to punish the slightest signs of opposition to his (p. 019) will, to regulate the consciences of his subjects, and to extend the legal conception of treason to limits hitherto unknown. It was this which rendered it possible for the ministers of Edward VI. to impose a Protestant regime upon a Romanist majority, and allowed Mary to enter upon a hateful marriage and to drag the country into a disastrous war. It was this, finally, which enabled Elizabeth to choose her own line in domestic and foreign policy, to defer for thirty years the war with Spain, and to resist, almost single-handed, the pressure for further ecclesiastical change. The Tudor monarchy was essentially a national monarchy. It was popular with the multitude, and it was actively supported by the influential classes, the nobility, the gentry, the lawyers, the merchants, who sat as members of Parliament at Westminster, mustered the forces of the shire as Lords-Lieutenant, or bore the burden of local government as borough magistrates and justices of the peace."
[Footnote 18: G. W. Prothero, Select Statutes and other Constitutional Documents Illustrative of the Reigns of Elizabeth and James I, (Oxford, 1898), xvii—xviii.]
*19. The Privy Council.*—The times of the Tudors and of the early Stuarts have been designated with aptness the period of "government by council." Parliament continued to exercise a certain control over legislation and taxation, but it was in and through the Privy Council, together with certain subordinate councils, that the absolute monarchy, in the main, performed its work. The Privy Council—or simply "the Council"—comprised ordinarily about seventeen or eighteen persons, although under Henry VIII. its membership at one time approached forty. The councillors were almost invariably members of one or the other of the two houses of Parliament, an arrangement by which was facilitated the control of the proceedings of that body by the Government, but which did not yet involve any recognized responsibility of the executive to the legislative branch. After Queen Mary the councillors were, with few exceptions, laymen. Technically, the function of the Council was only advisory, but in practice even those sovereigns, as Henry VIII. and Elizabeth, who were most vigilant and industrious, were obliged to allow to the councillors large discretion in the conduct of public business, and under the early Stuarts the Council very nearly ruled the realm. Representing at all times the sovereign, who was supposed invariably to be present at its deliberations, the Council supervised the work of administration, regulated trade, granted licenses, controlled the press, kept an eye on the law courts, ferreted out plots, took measures to suppress rebellion, controlled the movements of the fleet, assisted in the management of ecclesiastical affairs, and, in short, considered (p. 020) and took action upon substantially all concerns of state. By virtue of its right to issue orders or ordinances it possessed a power that was semi-legislative; through its regulation of trade, its management of loans and benevolences, and its determination of military obligations, it participated actively in the control of taxation; and, under the presidency of the crown, it possessed the functions of a supreme tribunal, whose jurisdiction, in part original and in part appellate, was widespread and peculiarly despotic.
[Footnote 19: Prothero, Statutes and Constitutional Documents, cii. See A. V. Dicey, The Privy Council (London, 1887); E. Percy, The Privy Council under the Tudors (Oxford, 1907).]
*20. Other Councils: The Star Chamber.*—In 1487 there was created a special tribunal, consisting at the outset of seven great officials and members of the Council, including two judges, to take special cognizance of cases involving breaches of the law by offenders who were too powerful to be reached under the operation of the ordinary courts. This was the tribunal subsequently known, from its meeting-place, as the Court of Star Chamber. In effect it was from the beginning a committee of the Privy Council, empowered to exercise a jurisdiction which in truth had long been exercised extra-legally by the Council as a whole. The relation of the two institutions inclined in practice to become ever closer, and by the middle of the sixteenth century the Star Chamber had been enlarged to include all of the members of the Council, together with the two chief justices; and since the Star Chamber possessed a statutory sanction which the Council lacked, the judicial business of the older body was despatched regularly by its members sitting under the guise of the newer one. The tendency of the Tudor regime toward the conciliar type of government is manifested further by the creation of numerous subsidiary councils and courts whose history cannot be recounted here. Most of these were brought into existence during the reign of Henry VIII. Those of principal importance were (1) the Council of the North, set up in 1539; (2) the Council of Wales, confirmed by statute of 1542; (3) the Court of Castle Chamber, reproducing in Ireland the principal features of the English Star Chamber; (4) the Courts of Augmentation, First Fruits and Annates, and Wards; and (5) the Elizabethan Court of High Commission.
[Footnote 20: A. T. Carter, Outlines of English Legal History (London, 1899), Chap. 12; A. Todd, Parliamentary Government in England, ed. by S. Walpole, 2 vols. (London, 1892), I., Chap. 2; Dicey, The Privy Council, 94-115.]
VII. PARLIAMENT UNDER THE TUDORS (p. 021)
*21. Control by the Crown.*—By the Tudors generally, and especially Henry VIII. and Elizabeth, Parliament was regarded as a tool to be used by the crown, rather than as in any sense an independent, co-ordinate power in the state. When innovations were to be introduced, such as those carried through by Henry VIII., it was Tudor policy to clothe them with the vestments of parliamentarism, to the end that they might be given the appearance and the sanction of popular measures; and when subsidies were to be obtained, it was recognized to be expedient to impart to them, in similar manner, the semblance of voluntary gifts on the part of the nation. It was no part of Tudor intent, however, that Parliament should be permitted to initiate measures, or even to exercise any actual discretion in the adoption, amendment, or rejection of proposals submitted by the Government. There were several means by which the crown contrived to impede the rise of Parliament above the subordinate position which that body occupied at the accession of Henry VII. One was the practice of convening Parliament irregularly and infrequently and of bringing its sessions to an early close. Another, employed especially during Thomas Cromwell's ministry under Henry VIII. and during the reign of Elizabeth, was that of tampering with the freedom of borough and county elections. A third was the habit, also notorious under Henry VIII. and Elizabeth, of dictating and directing in all that was essential in the proceedings of the chambers. Henry VIII. bullied his parliaments systematically; Elizabeth, by cajolery, flattery, deceit, and other arts of which she was mistress, attained through less boisterous methods the same general end. Measures were thrust upon the chambers accompanied by peremptory demand for their enactment; objectionable projects originated by private members were stifled; and the fundamental parliamentary privileges of free speech, freedom from arrest, and access to the sovereign were arbitrarily suspended or otherwise flagrantly violated.
*22. The Independence of the Crown.*—Finally must be mentioned certain devices by which the crown was enabled to evade limitations theoretically imposed by Parliament's recognized authority. One of these was the issuing of proclamations. In the sixteenth century it was generally maintained that the sovereign, acting alone or with the advice of the Council, could issue proclamations controlling the liberty of the subject, so long as such edicts did not violate statute or common law. As a corollary, it was maintained also that the crown could dispense with the action of law in individual cases and at (p. 022) times of crisis. The range covered by these prerogatives was broad and undefined, and in the hands of an aggressive monarch they constituted a serious invasion of the powers of legislation nominally vested in Parliament. It is true that the act of 1539 imparting to royal proclamations the force of law was repealed in 1547; but proclamations continued, especially under Elizabeth and James I., not only to be numerous, but to be enforced relentlessly by penalties inflicted through the Star Chamber. The most important power of Parliament in the sixteenth century was still that of voting supplies. But in respect to finance, as in respect to legislation, the crown possessed effective means of evading parliamentary control. In the first place, the sovereign possessed large revenues, arising from crown lands, feudal rights, profits of jurisdiction, and ecclesiastical payments, with which Parliament had nothing whatever to do. In the second place, the great indirect taxes—customs duties and tonnage and poundage—were, in the sixteenth century, voted at the accession of a sovereign for the whole of the reign. It was only in respect to extraordinary taxes—"subsidies" and "tenths and fifteenths"—that Parliament was in a position effectually to make or mar the fiscal fortunes of the Government; except that, of course, it was always open to Parliament to criticise the financial expedients of the crown, such as the sale of monopolies, the levy of "impositions," and the collection of benevolences, and to influence, if it could, the policy pursued in relation to these matters.
*23. The House of Lords in 1485.*—Despite the numerous strictures that have been mentioned, Parliament in the Tudor period by no means stood still. The enormous power and independence exhibited by the chambers, especially the Commons, in the seventeenth century was the product of substantial, if more or less hidden, growth during the previous one hundred and fifty years. The composition of the two houses at the accession of Henry VII. was not clearly defined. The House of Lords was but a small body. It comprised simply those lords, temporal and spiritual, who were entitled to receive from the king, when a parliament was to be held, a special writ, i.e., an individual summons. The number of these was indeterminate. The right of the archbishops, the bishops, and the abbots to be summoned was immemorial and indisputable, although the abbots in practice evaded their obligation of attendance, save in cases in which it could be shown that as military tenants of the crown they were obligated to perform parliamentary duty. Among the lay nobility the selection of individuals for summons seems originally to have been dependent upon the royal pleasure. Eventually, however, the principle became (p. 023) fixed that a man once summoned must be summoned whenever occasion should arise, and that, furthermore, his eldest son after him must be summoned in similar manner. What was at the outset an obligation became in time a privilege and a distinction, and by the day when it did so the rule had become legally established that the king could not withhold a writ of summons from the heir of a person who had been once summoned and had obeyed the summons by taking his seat. During the fourteenth century the aggregate membership of the chamber fluctuated in the neighborhood of 150. By reason of the withdrawal of some of the abbots and the decline of the baronage, in the fifteenth century the body was yet smaller. The number of temporal lords summoned to the first parliament of Henry VII. was but 29.
*24. The House of Commons in 1485.*—The House of Commons at the beginning of the Tudor period was a body of some 300 members. It contained 74 knights of the shire, representing all but three of the forty English counties, together with a fluctuating number of representatives of cities and boroughs. In the Model Parliament of 1295 the number of urban districts represented was 166, but as time went on the number declined, in part because of the discrimination exercised from time to time in the selection of boroughs to be represented, and in part by reason of the fact that in times when representation did not appear to yield tangible results the borough taxpayers begrudged the two shillings per day paid their representatives, in some instances sufficiently to be induced to abandon altogether the sending of members. By the time of Edward IV. (1399-1413) the number of represented towns had fallen to 111. At the beginning of the fifteenth century county members were elected by the body of freeholders present at the county court, but by statute of 1429 the electoral privilege was restricted to freeholders resident in the county and holding land of the yearly rental value of forty shillings, equivalent, perhaps, to some L30 to L40 in present values. This rule, adopted originally with the express purpose of disfranchising "the very great and outrageous number of people either of small substance or of no value" who had been claiming an electoral equality with the "worthy knights and squires," continued in operation without amendment until 1832. The electoral systems prevailing in the boroughs exhibited at all times the widest variation, and never prior to 1832 was there serious attempt to establish uniformity of practice. In some places (the so-called "scot and lot" boroughs) the suffrage was exercised by all rate-payers; in others, by the holders of particular tenements ("burgage" franchise); in others (the "potwalloper" (p. 024) boroughs) by all citizens who had hearths of their own; in many, by the municipal corporation, or by the members of a guild, or even by neighboring landholders. Borough electoral arrangements ran the full gamut from thoroughgoing democracy to the narrowest kind of oligarchy.
*25. Development under the Tudors: Composition.*—During the Tudor period the composition of the two chambers underwent important change. In the Lords the principal modification was the substitution of temporal for spiritual preponderance. This was brought about in two ways. The first was the increase numerically of the hereditary peers from thirty-six at the beginning of the reign of Henry VIII. to about eighty at the accession of James I. The second was the dropping out of twenty-eight abbots, incident to the closing of the monasteries by Henry VIII. and only partially compensated by the creation at the time of six new bishoprics. In 1509 the number of lords spiritual was forty-eight; in 1603, it was but twenty-six. The House of Commons under the Tudors was virtually doubled in size. The final incorporation of Wales in 1535 meant the adding of twenty-five members. In 1536 and 1543 the counties of Monmouth and Chester were admitted to representation. There followed the enfranchisement of a number of boroughs, and by the end of the reign of Henry VIII. the representation of counties had been increased from 74 to 90, and that of the boroughs had been brought up to 252, giving the House an aggregate membership of 342. During the reign of Edward VI. twenty new constituencies were created, and during that of Mary twenty-one. But the most notable increase was that which took place in the reign of Elizabeth, the net result of which was the bringing in of 62 new borough representatives, in some cases from boroughs which now acquired for the first time the right of representation, in others from boroughs which once had possessed the right but through disuse had been construed to have forfeited it. The total increase of the Commons in numerical strength during the Tudor period was 166. There can be little question that in a few instances parliamentary representation was extended with the specific purpose of influencing the political complexion of the popular chamber. But, on the whole, the reason for the notable increase, especially of borough members, is to be found in the growing prosperity of the country and in the reliance which the Tudors were accustomed to place upon the commercial and industrial classes of the population.
*26. Other Developments.*—A second point at which Parliament in the Tudor era underwent modification was in respect to permanence and sittings. Prior to Henry VIII. the life of a parliament was confined, as a rule, to a single session, and sessions were brief. But (p. 025) parliaments now ceased to be meetings to be broken up as soon as some specific piece of business should have been completed, and many were brought together in several succeeding sessions. Henry VIII.'s Reformation Parliament lasted seven years. During the forty-five years of Elizabeth there were ten parliaments and thirteen sessions. One of these parliaments lasted eleven years, although it met but three times. It is true that the parliaments of Elizabeth were in session, in the aggregate, somewhat less than three years, an average for the reign of but little more than three weeks a year. But the point is that, slowly but effectually, Parliament as an institution was acquiring a recognized position in the political system of the nation. In 1589 Thomas Smith, a court secretary, published a book entitled "The Commonwealth of England and the Manner of Government Thereof," in which was laid down the fundamental proposition that "the most high and absolute power of the realm of England consisteth in the parliament"; and there is no record that the proclamation of this doctrine, even by a court official, elicited serious protest or difference of opinion. It was in the Tudor period, further, that both houses instituted the keeping of journals and that the appointment of committees and numerous other aspects of modern parliamentary procedure had their beginnings.
Finally, the Elizabethan portion of the period was an epoch during which there took place a very real growth in independence of sentiment and an equally notable advance in consciousness of power on the part of the popular chamber. Even before the death of Elizabeth there were ill-repressed manifestations of the feeling that the Tudor monarchy had done its work and that the time for a larger amount of parliamentary control had arrived. Nothing was clearer in 1603 than the fact that the sovereign who should expect to get on agreeably with his Commons must be both liberal and tactful. That the Stuarts possessed the first of these qualities in only a very limited measure and the second one not at all is a fact upon which turns an entire chapter of English constitutional history.
[Footnote 21: Excellent works of a general nature on the Tudor period are H. A. L. Fisher, History of England from the Accession of Henry VII. to the Death of Henry VIII. (London, 1906); A. F. Pollard, History of England from the Accession of Edward VI. to the Death of Elizabeth (London, 1910); and A. D. Innis, England under the Tudors (London, 1905). For institutional history see Taylor, English Constitution, II., Bk. 4. More specialized treatment will be found in Smith, History of the English Parliament, I., Bk. 5; Dicey, The Privy Council, 76-130; and Taswell-Langmead, English Constitutional History, Chaps. 10, 12. An excellent survey of English public law at the death of Henry VII. is contained in F. W. Maitland, Constitutional History of England (Cambridge, 1911), 165-236. Books of large value on the period include W. Busch, England under the Tudors, trans. by A. M. Todd (London, 1895), the only volume of which published covers the reign of Henry VII.; A. F. Pollard, Henry VIII. (London, 1902 and 1905), and England under the Protector Somerset (London, 1900); and M. Creighton, Queen Elizabeth (new ed., London, 1899).]
VIII. THE STUARTS: CROWN AND PARLIAMENT (p. 026)
*27. Absolutism Becomes Impracticable.*—Throughout the larger portion of the seventeenth century the principal interest in English politics centers in the contest which was waged between the nation represented in Parliament and the sovereigns of the Stuart dynasty. The question, as one writer has put it, was "at first whether government should be by the king or by the king in parliament, afterwards whether the king should govern or whether parliament should govern." The Stuart sovereigns brought with them to the English throne no political principles that were new. When James I., in a speech before Parliament March 21, 1610, declared that monarchy "is the supremest thing upon earth," and that, "as to dispute what God may do is blasphemy, ... so is it sedition in subjects to dispute what a King may do in the height of his power," he was but giving expression to a conception of the royal prerogative which had been lodged in the mind of every Tudor, but which no Tudor had been so tactless as publicly to avow. The first two Stuarts confidently expected to maintain the same measure of absolutism which their Tudor predecessors had maintained—nothing more, nothing less. There were, however, several reasons why, for them, this was an impossibility. The first arose from their own temperament. The bluntness, the lack of perception of the public will, and the disposition perpetually to insist upon the minutest definitions of prerogative, which so pre-eminently characterized the members of the Stuart house must have operated to alienate seventeenth-century Englishmen under even the most favorable of circumstances. A second consideration is the fact, of which the nation was fully cognizant, that under the changed conditions that had arisen there was no longer the need of strong monarchy that once there had been. Law and order had long since been secured; all danger of a feudal reaction had been effectually removed; foreign invasion was no more to be feared. Strong monarchy had served an invaluable purpose, but that purpose had been fulfilled.
[Footnote 22: C. Ilbert, Parliament, its History, Constitution, and Practice (London and New York, 1911), 28-29.]