Transcriber's note:

Text enclosed between paired asterisksis in bold face.

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THE GOVERNMENTS OFEUROPE

The MacMillan Company New York -Boston - Chicago Dallas - SanFrancisco

MacMillan & Co., Limited London -Bombay - Calcutta Melbourne

The MacMillan Co. of Canada, Ltd.Toronto

THE GOVERNMENTS OFEUROPE

by

FREDERIC AUSTIN OGG, Ph. D.

Professor of Political Science in theUniversity of Wisconsin Author of"Social Progress in Contemporary

Europe"

New York The MacMillan Company1918 All rights reserved Copyright,1913. by the MacMillan Company Setup and electrotyped. PublishedFebruary, 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 observationthat during the opening years of thetwentieth century there has been, inmany portions of the civilized world, asubstantial quickening of interest in theprinciples and problems of humangovernment. The United States ishappily among those countries inwhich the phenomenon can beobserved, and we have witnessed inrecent times not only the organizationof societies and the establishment ofjournals designed to foster researchwithin the field, but also a notablemultiplication and strengthening ofcourses in political science open to

students in our colleges anduniversities, as well as the developmentof clubs, forums, extension courses,and other facilities for the increasing ofpolitical information and thestimulation of political thinking on thepart of the people at large. It is theobject of this book to promote theintelligent study of government bysupplying working descriptions of thegovernmental systems of the variouscountries of western and centralEurope as they have taken form and asthey operate at the present day.Conceived and prepared primarily as atext for use in college courses, it ishoped none the less that the volumemay prove of service to persons

everywhere whose interest in thesubject leads them to seek the sort ofinformation which is here presented.

The content of the book has beendetermined, in the main, by threeconsiderations. In the first place, it hasbeen deemed desirable to afford a wideopportunity for the comparative study ofpolitical institutions, especially byreason of the familiar fact that thegovernmental system of a minorcountry may, and frequently does,exhibit elements of novelty and ofimportance not inferior to those to beobserved in the political organizationof a greater state. Hence there areincluded descriptions of the

governments of the minor as well as ofthe major nations of western andcentral Europe; and the originalpurpose to attempt some treatment ofthe governments of the eastern nationshas been abandoned, somewhatreluctantly, only because of thedemands of space, and because it wasfelt that this portion of the projectedwork would perhaps meet no veryserious need in the usual collegecourses. In the second place, it isbelieved that the intelligent study ofpresent-day governments must involveat all (p. viii) stages the taking intocareful account of the historical originsand growth of these governments.Hence a considerable amount of space

has been devoted to sketches ofconstitutional history, which, however,are in all instances so arranged that theymay readily be omitted if theiromission is deemed desirable. In thecase of countries whose politicalsystem underwent a generalreconstitution during the Revolutionaryand Napoleonic era it has been thoughtnot feasible to allude, even briefly, tohistorical developments prior to thelater eighteenth century. In the thirdplace, it has been considered desirableto include in the book some treatmentof political parties and of theinstitutions of local administration.

Within a field so expansive it has been

possible to undertake but anintroduction to a majority of thesubjects touched upon. In the foot-notes will be found references tobooks, documents, and periodicalmaterials of widely varying types, and itis hoped that some of these may serveto guide student and reader to moreintensive information.

The preparation of the book has beenfacilitated by the encouragement andthe expert advice accorded me by anumber of teachers of government incolleges and universities in variousportions of the country. And I havehad at all times the patient anddiscriminating assistance of my wife.

For neither the plan nor the details ofthe work, however, can responsibilitybe attached to anyone save myself. I canonly hope that amidst the multitude offacts, some elusive and many subject toconstant change, which I haveattempted here to set down, not manyseriously vitiating errors may haveescaped detection.

Frederic Austin OGG. Cambridge,Massachusetts, January 10, 1913.

TABLE OF CONTENTS (p. ix)

PART I. GREAT BRITAIN

I. THE FOUNDATIONS OF THECONSTITUTION 1. The Importanceof Historical Background 1 2. Anglo-Saxon Beginnings 2 3. The Norman-Plantagenet Period 6 4. The Rise ofParliament 11 5. Administrative andJudicial Development 16 6. The TudorMonarchy 18 7. Parliament under theTudors 21 8. The Stuarts: Crown andParliament 26 9. The Later Stuarts: theRevolution of 1688-1689 31

II. THE CONSTITUTION SINCETHE SEVENTEENTH CENTURY 1.Crown and Parliament after 1789 34 2.Rise of the Cabinet and of PoliticalParties 37 3. The Scottish and Irish

Unions 39 4. The Nature and Sourcesof the Constitution 41 5. TheFlexibility of the Constitution 44

III. THE CROWN AND THEMINISTRY 1. The Crown: Legal Statusand Privileges 48 2. The Powers of theCrown 52 3. The Importance andStrength of the Monarchy 58 4. PrivyCouncil, Ministry, and Cabinet 60 5.The Executive Departments 61 6. TheCabinet: Composition and Character 647. The Cabinet in Action 70

IV. PARLIAMENT: THE HOUSE OFCOMMONS 1. The House ofCommons prior to 1832 77 2.Parliamentary Reform, 1832-1885 80 3.

The Franchise and the ElectoralQuestions of To-day 86 4. ElectoralProcedure and Regulations 92

V. PARLIAMENT: THE HOUSE OFLORDS (p. x) 1. Composition 97 2.The Reform of the Lords: theQuestion prior to 1909 101 3. TheQuestion of the Lords, 1909-1911 1064. The Parliament Act of 1911 andAfter 112

VI. PARLIAMENT,ORGANIZATION, FUNCTIONS,PROCEDURE 1. The Assembling ofthe Chambers 117 2. Organization ofthe House of Commons 120 3.Organization of the House of Lords

125 4. Privileges of the Houses and ofMembers 126 5. The Functions ofParliament 128 6. General Aspects ofParliamentary Procedure 132 7. TheConduct of Business in the twoHouses 138

VII. POLITICAL PARTIES 1.Parliamentarism and the Party System143 2. Parties in the Later Eighteenthand Earlier Nineteenth Centuries 145 3.The Second Era of Whig [Liberal]Ascendancy, 1830-1874 147 4. TheSecond Era of ConservativeAscendancy, 1874-1905 150 5. TheLiberal Revival 155 6. The Rule of theLiberals, 1906-1912 158 7. The Partiesof To-day 162

VIII. JUSTICE AND LOCALGOVERNMENT 1. English Law 1672. The Inferior Courts 170 3. TheHigher Courts 173 4. LocalGovernment to the MunicipalCorporations Act, 1835 176 5. LocalGovernment Reform, 1835-1912 179 6.Local and Central Government 181 7.Local Government To-day: Rural 183 8.Local Government To-day: Urban 186

PART II. GERMANY

IX. THE EMPIRE AND ITSCONSTITUTION 1. PoliticalDevelopment Prior to 1848 193 2. TheCreation of the Empire 198 3. The

Constitution: Nature of the Empire202 4. The Empire and the States 205

X. THE IMPERIALGOVERNMENT: EMPEROR,CHANCELLOR, ANDBUNDESRATH 1. The Emperor 2102. The Chancellor 213 3. TheBundesrath 217

XI. THE IMPERIALGOVERNMENT: REICHSTAG,PARTIES, JUDICIARY (p. xi) 1.Composition of the Reichstag ElectoralSystem 223 2. Organization and Powersof the Reichstag. 226 3. The Rise ofPolitical Parties 229 4. Party Politicsafter 1878 233 5. Parties since 1907 236

6. Law and Justice 241

XII. THE CONSTITUTION OFPRUSSIA THE CROWN AND THEMINISTRY 1. The German States andtheir Governments 245 2. The Rise ofConstitutionalism in Prussia 246 3. TheCrown and the Ministry 253

XIII. THE PRUSSIAN LANDTAGLOCAL GOVERNMENT 1.Composition of the Landtag 257 2.The Movement for Electoral Reform260 3. Organization and Functions ofthe Landtag 263 4. Local Government:Origins and Principles 265 5. LocalGovernment: Areas and Organs 268

XIV. THE MINOR GERMANSTATES ALSACE-LORRAINE 1. TheMore Important Monarchies 275 2.The Lesser Monarchies and the CityRepublics 279 3. Alsace-Lorraine 282

PART III. FRANCE

XV. CONSTITUTIONS SINCE 17891. A Century of Political Instability 2892. The Revolutionary and NapoleonicEra 290 3. From the Restoration to theRevolution of 1848 295 4. The SecondRepublic and the Second Empire 297 5.The Establishment of the ThirdRepublic 301 6. The Constitution ofTo-day 304

XVI. THE PRESIDENT, THEMINISTRY, AND PARLIAMENT 1.The President 308 2. The Ministry 3113. Parliament: Senate and Chamber ofDeputies 315 4. The Problem ofElectoral Reform 319

XVII. PARLIAMENTARYPROCEDURE POLITICALPARTIES 1. Organization andWorkings of the Chambers 325 2.Political Parties since 1871 329

XVIII. JUSTICE AND LOCALGOVERNMENT 1. French Law 335 2.The Courts 337 3. Local Government:Development since 1789 341 4. LocalGovernment To-day 346

PART IV. ITALY (p. xii)

XIX. CONSTITUTIONALDEVELOPMENT IN THENINETEENTH CENTURY 1. TheEra of Napoleon 353 2. TheRestoration and the Revolution of1848 358 3. The Achievement ofUnification 362 4. The Constitution365

XX. THE ITALIAN GOVERNMENTSYSTEM 1. The Crown and theMinistry 368 2. Parliament: the Senate372 3. The Chamber of DeputiesParliamentary Procedure 375 4. TheJudiciary 381 5. Local Government 383

XXI. STATE AND CHURCHPOLITICAL PARTIES 1. Quirinal andVatican 387 2. Parties and Ministries,1861-1896 391 3. The Era ofComposite Ministries, 1896-1912 3954. Phases of Party Politics 398

PART V. SWITZERLAND

XXII. THE CONSTITUTIONALSYSTEM THE CANTONS 1. TheConfederation and Its Constitutions405 2. The Nation and the States 411 3.Cantonal Legislation: the Referendumand the Initiative 416 4. The CantonalExecutive and Judiciary 421

XXIII. THE FEDERALGOVERNMENT 1. The Executive 4232. Legislation: the Federal Assembly426 3. Legislation: the Referendum andthe Initiative 430 4. Political Parties 4345. The Judiciary 437

PART VI. AUSTRIA-HUNGARY

XXIV. AUSTRIA-HUNGARY PRIORTO THE AUSGLEICH 1. AustrianPolitical Development to 1815 442 2.Hungarian Political Development to1815 445 3. The Era of Metternich 4504. The Revolution of 1848 453 5. TheRevival of Constitutionalism: theAusgleich 456

XXV. THE GOVERNMENT ANDPARTIES OF AUSTRIA 1. TheConstitution 460 2. The Crown and theMinistry 463 3. The Reichsrath theElectoral System 465 4. Political Parties474 5. The Judiciary and LocalGovernment 483

XXVI. THE GOVERNMENT ANDPARTIES OF HUNGARY (p. xiii) 1.The Constitution 489 2. The Crownand the Ministry 491 3. Parliament theElectoral System 492 4. Political Parties500 5. The Judiciary and LocalGovernment 505

XXVII. AUSTRIA-HUNGARY: THEJOINT GOVERNMENT 1. The

Common Organs of Government 5102. The Territories of Bosnia andHerzegovina 514

PART VII. THE LOW COUNTRIES

XXVIII. THE GOVERNMENT OFHOLLAND 1. A Century of PoliticalDevelopment 517 2. The Crown andthe Ministry 523 3. The States-Generaland Political Parties 525 4. TheJudiciary and Local Government 531

XXIX. THE GOVERNMENT OFBELGIUM 1. The Constitution theCrown and the Ministry 534 2. TheHouses of Parliament the ElectoralSystem 538 3. Parties and Electoral

Reform since 1894 ParliamentaryProcedure 542 4. The Judiciary andLocal Government 549

PART VIII. SCANDINAVIA

XXX. THE GOVERNMENT OFDENMARK 1. Development Prior to1814 553 2. The Rise ofConstitutionalism, 1814-1866 556 3.The Crown and the Ministry 559 4.The Rigsdag Political Parties 562 5. TheJudiciary and Local Government 568

XXXI. THE SWEDISH-NORWEGIAN UNION AND THEGOVERNMENT OF NORWAY 1.Political Development to 1814 570 2.

The Swedish-Norwegian Union, 1814-1905 573 3. The NorwegianConstitution Crown and Ministry 5784. The Storthing Political Parties 581 5.The Judiciary and Local Government587

XXXII. THE GOVERNMENT OFSWEDEN 1. The Constitution theCrown and the Ministry 589 2. TheRiksdag the Electoral System 591 3.The Riksdag in Operation PoliticalParties 597 4. The Judiciary and LocalGovernment 600

PART IX. THE IBERIAN STATES (p.xiv)

XXXIII. THE GOVERNMENT OFSPAIN 1. The Beginnings ofConstitutionalism 603 2. Political andConstitutional Development, 1833-1876 606 3. The Present Constitution611 4. The Crown and the Ministry 6135. The Cortes 616 6. Political Parties620 7. The Judiciary and LocalGovernment 626

XXXIV. THE GOVERNMENT OFPORTUGAL 1. A Century of PoliticalDevelopment 629 2. The Governmentof the Kingdom 634 3. The Revolutionof 1910 639 4. The Constitution of1911 643

GOVERNMENTS OF EUROPE (p.001)

PART I. GREAT BRITAIN

CHAPTER I

THE FOUNDATIONS OF THECONSTITUTION

I. THE IMPORTANCE OFHISTORICAL BACKGROUND

*1. Political Pre-eminence of GreatBritain.* George III. is reported to havepronounced the English constitutionthe most perfect of human formations.One need hardly concur unreservedlyin this dictum to be impressed with thepropriety of beginning a survey of thegovernmental systems of modernEurope with an examination of thepolitical principles, rules, and practicesof contemporary Britain. The historyof no other European nation, in thefirst place, exhibits a development ofinstitutions so prolonged, socontinuous, and so orderly. Thegovernmental forms and agencies ofno other state have been studied withlarger interest or imitated with clearer

effect. The public policy of no otherorganized body of men has been moreinfluential in shaping the progress,social and economic as well as political,of the civilized world. For theAmerican student, furthermore, theapproach to the institutions of theEuropean continent is likely to berendered easier and more inviting ifmade by way of a body of institutionswhich lies at the root of much that isboth American and continental. Thereare, it is true, not a few respects inwhich the governmental system of theUnited States to-day bears closerresemblance to that of France,Germany, Switzerland, or even Italythan to that of Great Britain. The

relation, however, between the Britishand the American is one, in the main,of historical continuity, while thatbetween the French or German and theAmerican is one which arises largelyfrom mere imitation or from accidentalresemblance.

*2. The Continuity of InstitutionalHistory.* No government can bestudied adequately apart from thehistorical development which has (p.002) made it what it is; and thisordinarily means the tracing of originsand of changes which stretch through aprolonged period of time. Men havesometimes imagined that they werecreating a governmental system de novo,

and it occasionally happens, as inFrance in 1791 and in Portugal in 1911,that a regime is instituted which haslittle apparent connection with the past.History demonstrates, however, in thefirst place, that such a regime is apt toperpetuate more of the old than is atthe time supposed and, in the secondplace, that unless it is connected vitallywith the old, the chances of itsachieving stability or permanence areinconsiderable. In Germany, forexample, if the institutions of theEmpire were essentially new in 1871,the governmental systems of theseveral federated states, and of thetowns and local districts, exhibitednumerous elements which in origin

were mediaeval. In France, if centralinstitutions, and even the politicalarrangements of the department andof the arrondissement, do not antedatethe Revolution, the commune, in whichthe everyday political activity of theaverage citizen runs its course, standsessentially as it was in the age of LouisXIV.

If the element of continuity is thusimportant in the political system ofGermany, France, or Switzerland, inthat of England it is fundamental. It isnot too much to say that the moststriking aspect of Englishconstitutional history is the continualpreservation, in the teeth of inevitable

changes, of a preponderatingproportion of institutions that reachfar into the past. "The great difficultywhich presses on the student of theEnglish constitution, regarded as a setof legal rules," observes a learnedcommentator, "is that he can neverdissociate himself from history. Thereis hardly a rule which has not a longpast, or which can be understoodwithout some consideration of thecircumstances under which it first cameinto being."[1] It is the purpose of thepresent volume to describe Europeangovernments as they to-day exist andoperate. It will be necessary in all cases,however, to accord some considerationto the origins and growth of the

political organs and practices whichmay be described. In respect to GreatBritain this can mean nothing less thana survey, brief as may be, of a thousandyears of history.

[Footnote 1: W. R. Anson, The Law andCustom of the Constitution (3d ed.,Oxford, 1897), I., 13.]

II. ANGLO-SAXON BEGINNINGS

The earliest form of the Englishconstitution was that which existedduring the centuries prior to theNorman Conquest. Politicalorganization among the Germanicinvaders of Britain was of the (p. 003)

most rudimentary sort, but thecircumstances of the conquest andsettlement of the island were such as tostimulate a considerable elaboration ofgovernmental machinery and powers.From the point of view of subsequentinstitutional history the most importantfeatures of the Anglo-Saxongovernmental system were kingship, thewitenagemot, and the units of localadministration shire, hundred,borough, and township.[2]

[Footnote 2: See G. B. Adams, TheOrigin of the English Constitution(New Haven, 1912), Chap. 1. That theessentials of the English constitutionof modern times, in respect to forms

and machinery, are products of thefeudalization of England whichresulted from the Norman Conquest,and not survivals of Anglo-Saxongovernmental arrangements, is the well-sustained thesis of this able study. Thatmany important elements, however,were contributed by Anglo-Saxonstatecraft is beyond dispute.]

*3. Kingship.* The origins of Anglo-Saxon kingship are shrouded inobscurity, but it is certain that the kingof later days was originally nothingmore than the chieftain of a victoriouswar-band. During the course of theoccupation of the conquered islandmany chieftains attained the dignity of

kingship, but with the progress ofpolitical consolidation one afteranother of the royal lines was blottedout, old tribal kingdoms became mereadministrative districts of largerkingdoms, and, eventually, in the ninthcentury, the whole of the occupiedportions of the country were broughtunder the control of a single sovereign.Saxon kingship was elective, patriarchal,and, in respect to power, limited. Kingswere elected by the important mensitting in council, and while the dignitywas hereditary in a family supposedlydescended from the gods, an immediateheir was not unlikely to be passed overin favor of a relative who was remoterbut abler.[3] In both pagan and

Christian times the royal office wasinvested with a pronouncedly sacredcharacter. As early as 690 Ine was king"by God's grace." But the actualauthority of the king was such as aroseprincipally from the dignity of hisoffice and from the personal influenceof the individual monarch.[4] The kingwas primarily a war-leader. He was alaw-giver, but his "dooms" were likelyto be framed only in consultation withthe wise men, and they pertained tolittle else than the preservation of thepeace. He was supreme (p. 004) judge,and all crimes and breaches of thepeace came to be looked upon asoffenses against him; but he held nocourt and he had in practice little to do

with the administration of justice. Overlocal affairs he had no direct controlwhatever.

[Footnote 3: Thus, in 871, the minorchildren of Ethelred I. were passedover in favor of Alfred, youngerbrother of the late king.]

[Footnote 4: The Anglo-Saxon kingwas "not the supreme law-giver ofRoman ideas, nor the fountain ofjustice, nor the irresponsible leader, northe sole and supreme politician, nor theone primary landowner; but the headof the race, the chosen representativeof its identity, the successful leader ofits enterprises, the guardian of its peace,

the president of its assemblies; createdby it, and, although empowered with ahigher sanction in crowning andanointing, answerable to his people." W.Stubbs, Select Charters Illustrative ofEnglish Constitutional History (8th ed.,Oxford, 1895), 12.]

*4. The Witenagemot.* Associated withthe king in the conduct of publicbusiness was the council of wise men,or witenagemot. The composition ofthis body, being determined in the mainby the will of the individual monarch,varied widely from time to time. Thepersons most likely to be summonedwere the members of the royal family,the greater ecclesiastics, the king's

gesiths or thegns, the ealdormen whoadministered the shires, other leadingofficers of state and of the household,and the principal men who held landdirectly of the king. There wereincluded no popularly electedrepresentatives. As a rule, the witan wascalled together three or four times ayear. Acting with the king, it made laws,imposed taxes, concluded treaties,appointed ealdormen and bishops, andoccasionally heard cases not disposedof in the courts of the shire andhundred. It was the witan, furthermore,that elected the king; and since it coulddepose him, he was obliged torecognize a certain responsibility to it."It has been a marked and important

feature in our constitutional history," itis pointed out by Anson, "that the kinghas never, in theory, acted in matters ofstate without the counsel and consentof a body of advisers."[5]

[Footnote 5: Law and Custom of theConstitution, II., Pt. 1., 7. Cf. W.Stubbs, Constitutional History ofEngland, I., 127.]

*5. Township, Borough, andHundred.* By reason of theirpersistence, and their comparativechangelessness from earliest times tothe later nineteenth century, the utmostimportance attaches to Anglo-Saxonarrangements respecting local

government and administration. Thesmallest governmental unit was thetownship, comprising normally a villagesurrounded by arable lands, meadows,and woodland. The town-moot was aprimary assembly of the freemen ofthe village, by which, under thepresidency of a reeve, the affairs of thetownship were administered. Avariation of the township was theburgh, or borough, whose populationwas apt to be larger and whose politicalindependence was greater; but itsarrangements for governmentapproximated closely those of theordinary township. A group oftownships comprised a hundred. At thehead of the hundred was a hundred-

man, ordinarily elected, but notinfrequently appointed by a greatlandowner or prelate to whom thelands of the hundred belonged.Assisting him was a council of twelveor more freemen. In the (p. 005)hundred-moot was introduced theprinciple of representation, for to themeetings of that body came regularlythe reeve, the parish priest, and four"best men" from each of the townshipsand boroughs comprised within thehundred. The hundred-moot met asoften as once a month, and it had as itsprincipal function the adjudication ofdisputes and the decision of cases, civil,criminal, and ecclesiastical.

*6. The Shire.* Above the hundred wasthe shire. Originally, as a rule, the shireswere regions occupied by small butindependent tribes; eventually theybecame administrative districts of theunited kingdom. At the head of theshire was an ealdorman, appointed bythe king and witan, generally from theprominent men of the shire.Subordinate to him at first, but in timeovershadowing him, was the shire-reeve, or sheriff, who was essentially arepresentative of the crown, sent toassume charge of the royal lands in theshire, to collect the king's revenue, andto receive the king's share of the finesimposed in the courts. Each shire hadits moot, and by reason of the fact that

the shires and bishoprics were usuallycoterminous, the bishop sat with theealdorman as joint president of thisassemblage. In theory, at least, the shire-moot was a gathering of the freemenof the shire. It met, as a rule, twice ayear, and to it were entitled to come allfreemen, in person or by representation.It was within the competence of thosewho did not desire to attend to send asspokesmen their reeves or stewards; sothat the body was likely to assume thecharacter of a mixed primary andrepresentative assembly. The shire-mootdecided disputes pertaining to theownership of land, tried suits forwhich a hearing could not be obtainedin the court of the hundred, and

exercised an incidental ecclesiasticaljurisdiction.[6]

[Footnote 6: The classic description ofAnglo-Saxon political institutions is W.Stubbs, Constitutional History ofEngland in its Origin andDevelopment, 3 vols. (6th ed., Oxford,1897), especially I., 74-182; but recentscholarship has supplemented andmodified at many points the facts andviews therein set forth. A usefulaccount (though likewise subject tocorrection) is H. Taylor, The Originsand Growth of the EnglishConstitution, 2 vols. (new ed., Boston,1900), I., Bk. 1., Chaps. 3-5; and arepository of information is J. Ramsay,

The Foundations of England, 2 vols.(London, 1898). A valuable sketch is A.B. White, The Making of the EnglishConstitution, 449-1485 (New York,1908), 16-62. A brilliant book is E. A.Freeman, The Growth of the EnglishConstitution (4th ed., London, 1884);but by reason of Professor Freeman'sover-emphasis of the perpetuation ofAnglo-Saxon institutions in later timesthis work is to be used with caution.Political and institutional history is wellset forth in T. Hodgkin, History ofEngland 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 anadmirable bibliography is C. Gross, TheSources and Literature of EnglishHistory (London, 1900).]

III. THE NORMAN-PLANTAGENET PERIOD (p. 006)

At the coming of William theConqueror, in 1066, two fundamentalprinciples may be said to have beenfirmly fixed in the English politicalsystem. The first was that ofthoroughgoing local self-government.The second was that of the obligationof the king, in all matters of first-rateimportance, such as the laying of taxesand the making of laws, to seek the

counsel and consent of some portionof his subjects. In the period whichwas inaugurated by the Conquestneither of these principles was entirelysubverted, yet the Norman era standsout distinctly as one in which thepowers of government were gatheredin the hands of the king and of hisimmediate agents in a measureunknown at any earlier time. Buildingin so far as was possible uponfoundations already laid, William wasable so to manoeuver the consequencesof the Conquest as to throw theadvantages all but wholly upon the sideof the crown. Feudalism, land-tenure,military service, taxation, the church toall was imparted, by force or by craft,

such a bent that the will of thesovereign acquired the practical effectof law, and monarchy in England,traditionally weak, was brought to theverge of sheer absolutism.

*7. Extension of Centralized Control.*In respect to the actual mechanism ofgovernment the principal achievementof the Norman-Plantagenet period wasthe overhauling and consolidation ofthe agencies of administration. Despitethe fact that local institutions of Saxonorigin were largely respected, so thatthey have continued to this day themost substantial Anglo-Saxoncontribution to English polity, therewas a notable linking-up of these

hitherto largely disassociatedinstitutions with the institutions of thecentral government. This wasaccomplished in part by the dissolutionof the earldoms by which themonarchy had been menaced in laterSaxon days, and in part by atremendous increase of the power andimportance of the sheriffs. It wasaccomplished still more largely,however, by the organization of twogreat departments of governmentthose of justice and finance presidedover by dignitaries of the royalhousehold and manned by permanentstaffs of expert officials. Thedepartment of justice comprised theCuria; that of finance, the Exchequer.

At the head of the one was theChancellor; at the head of the other,the Treasurer. The principal officialswithin the two comprised a single bodyof men, sitting now as justitiarii, orjustices, and now as barones of theExchequer. The profits and costs ofasserting and administering justice andthe incomings and outgoings of theExchequer were but different aspectsof the same fundamental concerns of(p. 007) state.[7] The justices of theCuria who held court on circuitthroughout the realm and the sheriffswho came up twice a year to render tothe barons of the Exchequer anaccount of the sums due from theshires served as the real and tangible

agencies through which the central andlocal governments were knit together.As will appear, it was from the NormanCuria that, in the course of time, theresprang immediately those diversifieddepartments of administration whoseheads comprise the actual executive ofthe British nation to-day.

[Footnote 7: Anson, Law and Customof the Constitution, II., Pt. I., II.]

*8. King and Great Council.*Untrammelled by constitutionalrestrictions, the Conqueror and hisearlier successors recognized suchlimitations only upon the royalauthority as were imposed by powerful

and turbulent subjects. Associated withthe king, however, was from the first abody known as the Commune Concilium,the Common, or Great, Council."Thrice a year," the Saxon Chronicletells us, "King William wore his crownevery year he was in England; at Easterhe wore it at Winchester; at Pentecost,at Westminster; and at Christmas, atGloucester; and at these times all themen of England were with himarchbishops, bishops and abbots, earls,thegns and knights." By the phrase "allthe men of England" is to beunderstood only the great ecclesiastics,the principal officers of state, and theking's tenants-in-chief in truth, onlysuch of the more important of these as

were summoned individually to thesovereign's presence. At least in theory,however, the Norman kings wereaccustomed to consult this gatheringof magnates, very much as theirpredecessors had been accustomed toconsult the witenagemot, upon allimportant questions of legislation,finance, and public policy. It may,indeed, be said that it is thedevelopment of this Council thatcomprises the central subject ofEnglish constitutional history; for, "outof it, directly or indirectly, by oneprocess or another, have been evolvedParliament, the Cabinet, and the courtsof law."[8]

[Footnote 8: W. Wilson, The State (rev.ed., Boston, 1903), 369.]

*9. The Plantagenet Monarchy.* Duringthe century and a half following thedeath of the Conqueror the vigor ofthe monarchy varied enormously, butnot until the days of King John canthere be said to have been any loss ofpower or independence whichamounted to more than a passingcircumstance. In a charter granted at thebeginning of his reign, in 1100, HenryI. confirmed the liberties of hissubjects and promised to respect thelaws of Edward the Confessor; but thenew sovereign did not propose, and noone imagined that he intended to

propose, to relax any of the essentialand legitimate power which had beentransmitted to him by his father andbrother. The reign of (p. 008) Stephen(1135-1154) was an epoch of anarchyhappily unparalleled in the history ofthe nation. During the course of it theroyal authority sank to its lowest ebbsince the days of the Danishincursions. But the able andwonderfully energetic Henry II. (1154-1189) recovered all that had been lostand added not a little of his ownaccount. "Henry II.," it has been said,"found a nation wearied out with themiseries of anarchy, and the nationfound in Henry II. a king with apassion for administration."[9] With

the fundamental purpose of reducingall of his subjects to equality before anidentical system of law, the greatPlantagenet sovereign wageddetermined warfare upon both therebellious nobility and the independentclergy. He was not entirely successful,especially in his conflict with the clergy;but he effectually prevented a reversionof the nation to feudal chaos, and heinvested the king's law with a sanctionwhich it had known hardly even in thedays of the Conqueror. The reign ofHenry II. has been declared, indeed, to"initiate the rule of law."[10] Byreviving and placing upon a permanentbasis the provincial visitations of theroyal justices, for both judicial and

fiscal purposes, and by extending in thelocal administration of justice andfinance the principle of the jury, Henrycontributed fundamentally to thedevelopment of the English CommonLaw, the jury, and the modern hierarchyof courts. By appointing as sheriffslawyers or soldiers, rather than greatbarons, he fostered the influence of thecentral government in local affairs. Bycommuting military service for a moneypayment (scutage), and by a revival ofthe ancient militia system (the fyrd), hebrought the control of the armedforces of the nation effectually underroyal control. By the frequent summonsof the Great Council and thesystematic reference to it of business

of moment he contributed to theimportance of an institution throughwhose amplification a century laterParliament was destined to be broughtinto existence.

[Footnote 9: Anson, Law and Customof the Constitution, II., Pt. I., 13.]

[Footnote 10: Stubbs, Select Charters,21.]

*10. The Great Charter, 1215.* Theperiod of Richard I. (1189-1199) was,in constitutional matters, a continuationof that of Henry II. Richard wasabsent from the kingdom throughoutalmost the whole of the reign, but

under the guidance of officials trainedby Henry the machinery ofgovernment operated substantially asbefore. Under John (1199-1216) came abreakdown, occasioned principally bythe sovereign's persistence in evadingcertain limitations upon the royalauthority which already had assumedthe character of established rules ofthe constitution. One of these forbadethat the king should impose freshtaxation except with the advice andconsent of the Great Council. (p. 009)Another enjoined that a man shouldnot be fined or otherwise despoiled ofhis property except in virtue of judicialsentence. These and other principlesJohn habitually disregarded, with the

consequence that in time he foundhimself without a party and driven tothe alternative of deposition oracceptance of the guarantee of libertieswhich the barons, the Church, and thepeople were united in demanding ofhim. The upshot was the promulgation,June 15, 1215, of Magna Carta.

No instrument in the annals of anynation exceeds in importance the GreatCharter. The whole of Englishconstitutional history, once remarkedBishop Stubbs, is but one longcommentary upon it. The significanceof the Charter arises not simply fromthe fact that it was wrested from anunwilling sovereign by concerted action

of the various orders of society (actionsuch as in France and other continentalcountries never, in mediaeval times,became possible), but principally fromthe remarkable summary which itembodies of the fundamentalprinciples of English government in sofar as those principles had ripened bythe thirteenth century. The Chartercontained little or nothing that wasnew. Its authors, the barons, soughtmerely to gather up within a reasonablybrief document those principles andcustoms which the better kings ofEngland had been wont to observe, butwhich in the evil days of Richard andJohn had been persistently evaded.There was no thought of a new form

of government, or of a new code oflaws, but rather of the redress ofpresent and practical grievances. Not anew constitution, but goodgovernment in conformity with the oldone, was the essential object. Naturallyenough, therefore, the instrument wasbased, in most of its importantprovisions, upon the charter granted byHenry I. in 1100, even as thatinstrument was based, in the main,upon the righteous laws of Edward theConfessor. After like manner, theCharter of 1215 became, in its turn, thefoundation to which reassertions ofconstitutional liberty in subsequenttimes were apt to return; and, undergreater or lesser pressure, the Charter

itself was "confirmed" by numeroussovereigns who proved themselvesnone too much disposed to observe itsprinciples.

In effect the Charter was a treatybetween the king and his dissatisfiedsubjects. It was essentially a feudaldocument, and the majority of itsprovisions relate primarily to theprivileges and rights of the barons.None the less, it contains clauses thataffected all classes of society, and it isespecially noteworthy that the baronsand clergy pledged themselves in it toextend to their dependents the samecustoms and liberties which they werethemselves demanding of the crown.

Taking the Charter as a whole, itguaranteed the freedom of the Church,defined afresh and in precise termssurviving feudal (p. 010) incidents andcustoms, placed safeguards about theliberties of the boroughs, pledgedsecurity of property and of trade, andstipulated important regulationsrespecting government and law, notablythat whenever the king should proposethe assessment of scutages or ofunusual aids he should take the adviceof the General Council, composed ofthe tenants-in-chief summonedindividually in the case of the greaterones and through the sheriffs in thecase of those of lesser importance.Certain general clauses, e.g., that

pledging that justice should neither bebought nor sold, and that prescribingthat a freeman might not beimprisoned, outlawed, or dispossessedof his property save by the judgmentof his peers or by the law of the land,meant in effect considerably less thanthey sometimes have been interpretedto mean.[11] Yet even they served toemphasize the fundamental principleupon which the political and legalstructure was intended to be grounded,that, namely, of impartial andunvarying justice.[12]

[Footnote 11: The term "peers," as hereemployed, means only equals in rank.The clause cited does not imply trial by

jury. It comprises a guarantee simplythat the barons should not be judgedby persons whose feudal rank wasinferior to their own. Jury trial wasincreasingly common in the thirteenthcentury, but it was not guaranteed inthe Great Charter.]

[Footnote 12: Good accounts of theinstitutional aspects of the Norman-Angevin period are Stubbs,Constitutional History, I., 315-682, II.,1-164; Taylor, Origin and Growth ofthe English Constitution, I., Bk. 2,Chaps. 2-3; Adams, The Origin of theEnglish Constitution, Chaps. 1-4; andWhite, Making of the EnglishConstitution, 73-119. Two excellent

little books are Stubbs, EarlyPlantagenets (London, 1876) and Mrs.J. R. Green, Henry II. (London, 1892).General accounts will be found in T. F.Tout, History of England from theAccession of Henry III. to the Deathof Edward III., 1216-1377 (London,1905), and H. W. C. Davis, Englandunder the Normans and the Angevins(London, 1904). A monumentaltreatise, though one which requires aconsiderable amount of correction, isE. A. Freeman, History of the NormanConquest, 6 vols. (Oxford, 1867-69),and a useful sketch is Freeman, ShortHistory of the Norman Conquest (3ded., Oxford, 1901). Among extendedand more technical works may be

mentioned: F. Pollock and F. W.Maitland, History of English Law, 2vols. (2d ed., Cambridge, 1898), which,as a study of legal history anddoctrines, supersedes all earlier works;F. W. Maitland, Domesday Book andBeyond (Cambridge, 1897); J. H.Round, Feudal England (London,1895); K. Norgate, England under theAngevin Kings, 2 vols. (London, 1887);ibid., John Lackland (London, 1902),and J. H. Ramsay, The Angevin Empire(London, 1903). The text of the GreatCharter is printed in Stubbs, SelectCharters, 296-306. English versionsmay be found in G. B. Adams and H.M. Stephens, Select Documents ofEnglish Constitutional History (New

York, 1906), 42-52; S. Amos, Primer ofthe English Constitution andGovernment (London, 1895), 189-201;and University of PennsylvaniaTranslations and Reprints (translationby E. P. Cheyney), I., No. 6. Theprincipal special work on the subject isW. S. McKechnie, Magna Carta; aCommentary on the Great Charter ofKing John (Glasgow, 1905). Anilluminating commentary is containedin Adams, Origin of the EnglishConstitution, 207-313.]

IV. THE RISE OF PARLIAMENT (p.011)

*11. Beginnings of the Representative

Principle.* The thirteenth century wasclearly one of the most importantperiods in the growth of the Englishconstitution. It was marked not merelyby the contest which culminated in thegrant of the Great Charter but also bythe beginnings, in its essentials, ofParliament. The formative epoch in thehistory of Parliament may be said tohave been, more precisely, the secondhalf of the reign of Henry III. (1216-1272), together with the reign of thelegislator-king Edward I. (1272-1307).The creation of Parliament as we knowit came about through the signalenlargement of the Norman-Plantagenet Great Council by theintroduction of representative

elements, followed by the splitting ofthe heterogeneous mass of membersdefinitely into two co-ordinatechambers. The representative principlewas in England no new thing in thethirteenth century. As has appeared,there were important manifestations ofit in the local governmental system ofAnglo-Saxon times. As brought to bearin the development of Parliament,however, the principle is generallyunderstood to have sprung from thetwelfth-century practice of electingassessors to fix the value of real andpersonal property for purposes oftaxation, and of jurors to presentcriminal matters before the king'sjustices. Thus, Henry II.'s Saladin Tithe

of 1188 the first national impositionupon incomes and movable propertywas assessed, at least in part, by juriesof neighbors elected by, and in a senserepresentative of, the taxpayers of thevarious parishes. By the opening of thethirteenth century the idea was fasttaking hold upon the minds ofEnglishmen, not only that the taxpayerought to have a voice in the levying oftaxes, but that between representationand taxation there was a certain naturaland inevitable connection. In the GreatCharter, as has been stated, it wasstipulated that in the assessment ofscutages and of all save the threecommonly recognized feudal aids theking should seek the advice of the

General Council. The General Councilof the earlier thirteenth century wasnot regularly a representative body, butit was not beyond the range ofpossibility to impart to it arepresentative character, and in point offact that is precisely what was done. Tofacilitate the process of taxation it wasfound expedient by the centralauthorities to carry over into thedomain of national affairs thatprinciple of popular representationwhich already was doing approvedservice within the sphere of localjustice and finance, and from thisadaptation arose, step by step, theconversion of the old gathering offeudal magnates into a national

parliamentary assembly.

*12. Early Parliaments.* The means bywhich the transformation (p. 012) wasaccomplished consisted in the firstinstance, as has been said, in theintroduction into the Council of newand representative elements. The earlieststep in this direction was taken in 1213,when King John, harassed by fiscal andpolitical difficulties, addressed to thesheriffs a series of writs commandingthat four discreet knights from everycounty be sent to participate in adeliberative council to be held atOxford. The practice took root slowly.In 1254 Henry III., in sore need ofmoney for the prosecution of his wars

in Gascony, required of the sheriffsthat two knights be sent from eachcounty to confer with the barons andclergy relative to the subsidies whichshould be accorded the crown. Thedesired vote of supplies was refusedand the long-brewing contest betweenthe king and the barons broke in civilwar. But during the struggle thatensued the foundations of Parliamentwere still more securely laid. Followingthe king's defeat at Lewes, in 1264,Simon de Montfort, leader of thebarons, convened a parliamentcomposed of not only barons andclergy but also four knights from eachshire, and at London during thefollowing year, he caused again to be

assembled, in addition to five earls,eighteen barons, and a large body ofclergy, two knights from each of theseveral shires and two burgesses fromeach of twenty-one towns known to befriendly to the barons' cause. Theseproceedings were essentiallyrevolutionary and unauthorized. Eventhe gathering of 1265, as Stubbsremarks, presented the appearancelargely of a party convention, and thereis no evidence that its author intendedsuch a body to be regularly orfrequently summoned, or evensummoned a second time at all. Nonethe less, now for the first timerepresentatives of the towns werebrought into political co-operation

with the barons, clergy, and knights;and the circumstance was filled withpromise. During the ensuing thirtyyears there were several "parliaments,"although the extent to which knightsand burgesses participated in them isuncertain. The period was one ofexperimentation. In 1273 four knightsfrom each shire and four citizens fromeach town joined the magnates intaking the oath of fealty to the new andabsent sovereign, Edward I. The FirstStatute of Westminster, in 1275,declares itself to have been adoptedwith the assent of the "commonalty ofthe realm." In 1283 a parliament washeld which almost precisely duplicatedthat of 1265. In 1290, and again in

1294, there was one, in which, however,representation of the towns wasomitted.

The gathering which served to fix thetype for all time to come was EdwardI.'s so-called Model Parliament of1295. To this parliament the kingsummoned severally the twoarchbishops, all of the bishops, thegreater abbots, and the more importantearls and barons; while (p. 013) everysheriff was enjoined to see that twoknights were chosen from each shire,two citizens from each city, and twoburgesses from each borough. Eachbishop was authorized, furthermore, tobring with him his prior or the dean of

the cathedral chapter, the archdeaconsof his diocese, one proctor or agent forhis cathedral chapter, and two of hisdiocesan clergy. In the parliament asactually convened there were 2archbishops, 18 bishops with theirlesser clergy, 66 abbots, 3 heads ofreligious orders, 9 earls, 41 barons, 63knights of the shire, and 172representatives of the cities andboroughs an aggregate ofapproximately 400 persons. There werethus present in the assemblage, inperson or by deputy, all of theconstituent orders of English society,and the irregular device of Simon deMontfort was vested at last with thecharacter of legality. After Edward I.

Parliament may be said to have been anestablished institution of the realm. Itsmeetings long continued intermittentand infrequent, and its powers fromtime to time varied enormously, but theplace which it filled in the economy ofthe nation grew ever more important.

*13. Establishment of the BicameralSystem.* Like its counterpart in France,the Estates-General, the EnglishParliament comprised the three greatestates or orders nobility, clergy, andcommons of which, aside from thepeasantry, mediaeval society in allwestern European countries wascomposed. In the working out of itsinternal structure, however, two

chambers resulted, rather than, as inFrance, three. Originally the threeestates sat separately. Their primarybusiness was the voting of suppliesand, the principle being that a tax oughtto be conceded by those who would becalled upon to pay it, the natural coursewas for the lords to grant their scutagesand aids, the commoners their tenthsand fifteenths, and the clergy theirsubsidies, apart. Indeed there is reasonto believe that at times even the knightsand the burgesses deliberated separately.Gradually, however, there appearedcertain affiliations of interest whichoperated to modify the original practice.In the first place, the lesser clergy,inconvenienced by attendance and

preferring to vote their contributions inthe special ecclesiastical assemblagesknown as the convocations ofCanterbury and York, contrived tothrow off entirely their obligation ofmembership. The greater clergy and thegreater barons, in the next place,developed sufficiently large interests incommon to be amalgamated with easein one body. Similarly, the lesser baronsfound their interests essentially identicalwith those of the country freeholders,represented by the knights of the shire,and with those of the burgesses. Theupshot was a gradual alignment of theaggregate membership in two greatgroups, (p. 014) the one of whichbecame historically the House of

Lords, the other the House ofCommons. At the beginning of thereign of Edward III. (1327-1377) thethree estates still sat separately, butbefore the close of this period thebicameral arrangement seems definitelyto have been established. There is noevidence that at any stage of theirhistory the three groups ever sat as asingle body. It need hardly beemphasized that the entire course ofEnglish history since the fourteenthcentury has been affected profoundlyby the fact that the national assemblytook the form of two houses ratherthan of one, as did the Scotch, of threeas did the French, or of four as did theSwedish. But for the withdrawal of the

lesser clergy, the number might verypossibly have been three.

*14. Powers of Finance andLegislation.* Structurally, the EnglishParliament is a creation of the MiddleAges; politically, it is a product ofmodern times, and, in no smallmeasure, of the past hundred years.Before the close of the Middle Ages,however, it had acquired a sum total ofauthority which at least gave promiseof its development into a great co-ordinate, if not a preponderating,power in the state. In the first place, ithad forced the establishment of thetwin principles of public finance (1)that the right to levy taxes of every sort

lay within its hands and (2) that thecrown might impose no direct taxwithout its assent, nor any indirect taxsave such as might be justified underthe customs recognized in MagnaCarta. When Edward I. confirmed theCharter, in 1297, he agreed that notallages or aids should thereafter betaken without the assent of thearchbishops, bishops, earls, barons,knights, burgesses, and other freemenof the land. A statute of 1340reiterated the principle still morespecifically. In 1395 appeared theformula employed to this day in themaking of parliamentary grants, "by theCommons with the advice and assentof the Lords Spiritual and Temporal."

And in 1407 Henry IV. extended theroyal approval to the principle thatmoney grants should be initiated in theCommons, assented to by the Lords,and only thereafter reported to the king.For the ancient theory of taxation byestates was substituted, slowly butinevitably, the modern doctrine of thefiscal pre-eminence of the Commons.

The second point at which Parliamentmade decisive advance before the closeof the mediaeval period was in respectto powers of ordinary legislation.Originally, Parliament was notconceived of as, in the strict sense, alaw-making body at all. The magnateswho composed the General Council

had exercised the right to advise thecrown in legislative matters, and theirsuccessors in Parliament continued todo the same, but the commoners whoin the thirteenth century were (p. 015)brought in were present, in theory, forfiscal rather than legislative purposes.The distinction, however, was difficultto maintain, and with the continuedgrowth of the parliamentary body thelegislative character was recognizedeventually to be inherent in the wholeof it. At the opening of the fourteenthcentury laws were made, technically, bythe king with the assent of the magnatesat the request of the commoners. Theknights and burgesses were recognizedas petitioners for laws, rather than as

legislators. They could ask for theenactment of a statute, or for a clearerdefinition of law, but it was for theking and his councillors to determinefinally whether legislation was requiredand what form it should assume. Evenwhen a law which was requested waspromised it not infrequently happenedthat the intent of the Commons wasthwarted, for the text of the measurewas not drawn up, normally, until afterthe parliament was dissolved, bothform and content were determinedarbitrarily by the crown and council,and between petition and statute theremight be, and often was, grossdiscrepancy.

*15. Development of the LegislativeProcess.* By a memorable statute of1322, in the reign of Edward II., it wasstipulated that "the matters which are tobe established for the estate of our lordthe king and of his heirs, and for theestate of the realm and of the people,shall be treated, accorded, andestablished in parliaments, by our lordthe king, and by the assent of theprelates, earls, and barons, and thecommonalty of the realm; according asit hath been before accustomed."[13]This declaration is understood to haveestablished, not only the essentiallylegislative character of Parliament, butthe legislative parity of the commonerswith the magnates. It remained,

however, to substitute for the right ofpetition the right of legislating by bill.Throughout the fourteenth centuryParliament, and especially theCommons, pressed for an explicitrecognition of the principle that thestatute in its final form should beidentical with the petition upon whichit was based. In 1414 Henry V. grantedthat "from henceforth nothing beenacted to the petitions of hiscommons that be contrary to theirasking, whereby they should be boundwithout their assent."[14] The promisetended in practice to be evaded, andlate in the reign of Henry VI. there wasbrought about an alteration ofprocedure in accordance with which

measures were henceforth to beintroduced in either house, in the formof drafted bills. The legislative processwas now essentially reversed. The rightof initiative was secured to theCommons, concurrently with theLords; the crown was restricted to aright of veto or assent. The change inprocedure was reflected (p. 016) in achange of formula. Statutes began tobe made "by the King's most excellentmajesty by and with the advice andconsent of the Lords spiritual andtemporal, and Commons in this presentParliament assembled, and by theauthority of the same." And thesewords comprise the formula withwhich every act of Parliament to-day

begins. Technically, the laws were, andare still, made by the crown; practicallyParliament, once merely a petitioningand 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 andearlier fifteenth centuries the growth ofParliament in self-assertiveness wasremarkable. Twice during thefourteenth century, in 1327 and in1399, it exercised the fundamentalprerogative of deposing the sovereign

and of bestowing the crown upon asuccessor.[15] And before the close ofthe Lancastrian era it had assumedadvanced ground in demanding theright of appropriating (as well as ofvoting) subsidies, the accounting by thepublic authorities for moneysexpended, the removal of objectionableministers, and the annual assembling ofthe two houses. During the civil warsof the second half of the fifteenthcentury parliamentary aggressivenessand influence materially declined, andat the opening of the Tudor period, in1485, the body was in by no means thefavorable position it had occupied fiftyyears earlier. As will appear, its eclipsecontinued largely through the epoch of

the Tudors. Yet its broader aspects hadbeen permanently fixed and itsperpetuation in the constitutionalsystem positively assured.[16]

[Footnote 15: Strictly, upon the first ofthese occasions the sovereign, EdwardII., was driven by threat of depositionto abdicate.]

[Footnote 16: On the rise of Parliamentsee Stubbs, Constitutional History ofEngland, II., Chaps. 15, 17; Taylor,Origins and Growth of the EnglishConstitution, I., 428-616; G. B. Smith,History of the English Parliament, 2vols. (London, 1892), I., Bks. 2-4;White, Making of the English

Constitution, 298-401; D. J. Medley,Students' Manual of EnglishConstitutional History (2d ed., Oxford,1898), 127-150; Tout, History ofEngland from the Accession of HenryIII. to the Death of Edward III.,Chaps. 5, 6, 10. Valuable biographicaltreatises are G. W. Prothero, Life ofSimon 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 ANDJUDICIAL DEVELOPMENT

*16. The Permanent Council.* One

line, thus, along which were laid thefoundations of the Englishgovernmental system of to-daycomprised the transformation of theNorman Great Council into the semi-aristocratic, semi-democraticassemblage known as Parliament. Aparallel line (p. 017) was thedevelopment from the Great Councilof a body designated after thethirteenth century as the Permanent,after the fifteenth as the Privy, Council,and likewise of the four principalcourts of law. By a very gradual processthose members of the original Councilwho were attached in some immediatemanner to the court or to theadministrative system acquired a status

which was different from that of theircolleagues. The Great Council metirregularly and infrequently. So likewisedid Parliament. But the services of thecourt and the business of governmentmust go on continuously, and for thecare of these things there grew up abody which at first comprisedessentially a standing commission, aninner circle, of the Council, but whichin time acquired a virtually independentposition and was designated, forpurposes of distinction, as thePermanent Council. The compositionof this body varied from time to time.Certain functionaries were includedregularly, while the remaining membersowed their places to special summons

of the crown. Its powers wereenormous, being at the same timeadministrative, judicial, and financial,and the mass of business to which itwas required to give attention wasincreasingly great.

*17. The Courts of Law.* Three thingsresulted. In the first place, thePermanent Council acquired, inpractice, complete detachment from theolder and larger body. In the secondplace, to facilitate the accomplishmentof its work there were introduced intoit trained lawyers, expert financiers, andmen of other sorts of special aptitudesmen, often, who in rank were butcommoners. Finally, there split off

from the body a succession ofcommittees, to each of which wasassigned a particular branch ofadministrative or judicial business. Inthis manner arose the four great courtsof law: (1) the Court of Exchequer, towhich was consigned jurisdiction overall fiscal causes in which the crown wasdirectly concerned; (2) the Court ofCommon Pleas, with jurisdiction overcivil cases between subject and subject;(3) the Court of King's Bench, presidedover nominally by the king himself andtaking cognizance of a variety of casesfor which other provision was notmade; and (4) the Court of Chancery,which, under the presidency of theChancellor, heard and decided cases

involving the principles of equity. Thedifferentiation of these tribunals,beginning in the early twelfth century,was completed by the middle of thefourteenth. Technically, all were co-ordinate courts, from which appeal layto the King in Council; and of thejudicial prerogative which the Councilas 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 andthe specialization of functions of thePermanent Council had (p. 018)progressed so far that the Council hadceased entirely to be a working unit. Inthe end what happened was that,precisely as the Permanent Council had

been derived by selection from theoriginal Great Council, so from theovergrown Permanent Council wasconstituted, in the fifteenth century, asmaller and more compactadministrative body to which wasassigned the designation of "PrivyCouncil."[17]

[Footnote 17: Stubbs, ConstitutionalHistory, II., Chap. 13; White, Makingof the English Constitution, 123-251;Adams, Origin of the EnglishConstitution, 136-143; W. S.Holdsworth, History of English Law, 3vols. (London, 1903-1909), I., 1-169.]

VI. THE TUDOR MONARCHY

*18. Popular Absolutism.* The salientfact of the Tudor period of Englishhistory (1485-1603) is the vigor anddominance of the monarchy. From theWars of the Roses the nation emergedin need, above all other things, ofdiscipline and repose. It was the part ofthe Tudors to enforce relentlessly theone and to foster systematically theother. The period was one in whicharistocratic turbulence was repressed,extraordinary tribunals were erected tobring to justice powerful offenders,vagrancy was punished, labor wasfound for the unemployed, trade wasstimulated, the navy was organized on apermanent basis, the diffusion of

wealth and of education wasencouraged, the growth of a strongmiddle class was promoted in short,one in which out of chaos was broughtorder and out of weakness strength.These things were the work of agovernment which was stronglypaternal, even sheerly despotic, and, fora time at least, the evolution ofparliamentary machinery was utterlyarrested. But it should be observed thatthe question in sixteenth-centuryEngland was not between strongmonarchy on the one hand andparliamentary government on the other.The alternatives were, rather, strongmonarchy and baronial anarchy. Thisthe nation clearly perceived, and, of the

two, it much preferred the former.

"The Tudor monarchy," says an Englishscholar, "unlike most other despotisms,did not depend on gold or force, onthe possession of vast estates,unlimited taxation, or a standing army.It rested on the willing support of thenation at large, a support due to thedeeply-rooted conviction that a strongexecutive was necessary to the nationalunity, and that, in the face of thedangers which threatened the countryboth at home and abroad, the sovereignmust be allowed a free hand. It was thisconviction, instinctively felt rather thandefinitely realized, which enabledHenry VIII. not only to crush open

rebellion but to punish the slightestsigns of opposition to his (p. 019) will,to regulate the consciences of hissubjects, and to extend the legalconception of treason to limits hithertounknown. It was this which rendered itpossible for the ministers of EdwardVI. to impose a Protestant regime upona Romanist majority, and allowed Maryto enter upon a hateful marriage and todrag the country into a disastrous war.It was this, finally, which enabledElizabeth to choose her own line indomestic and foreign policy, to deferfor thirty years the war with Spain, andto resist, almost single-handed, thepressure for further ecclesiasticalchange. The Tudor monarchy was

essentially a national monarchy. It waspopular with the multitude, and it wasactively supported by the influentialclasses, the nobility, the gentry, thelawyers, the merchants, who sat asmembers of Parliament at Westminster,mustered the forces of the shire asLords-Lieutenant, or bore the burdenof local government as boroughmagistrates and justices of the peace."[18]

[Footnote 18: G. W. Prothero, SelectStatutes and other ConstitutionalDocuments Illustrative of the Reignsof Elizabeth and James I, (Oxford,1898), xvii xviii.]

*19. The Privy Council.* The times ofthe Tudors and of the early Stuartshave been designated with aptness theperiod of "government by council."Parliament continued to exercise acertain control over legislation andtaxation, but it was in and through thePrivy Council, together with certainsubordinate councils, that the absolutemonarchy, in the main, performed itswork. The Privy Council or simply "theCouncil" comprised ordinarily aboutseventeen or eighteen persons, althoughunder Henry VIII. its membership atone time approached forty. Thecouncillors were almost invariablymembers of one or the other of thetwo houses of Parliament, an

arrangement by which was facilitatedthe control of the proceedings of thatbody by the Government, but whichdid not yet involve any recognizedresponsibility of the executive to thelegislative branch. After Queen Marythe councillors were, with fewexceptions, laymen. Technically, thefunction of the Council was onlyadvisory, but in practice even thosesovereigns, as Henry VIII. andElizabeth, who were most vigilant andindustrious, were obliged to allow tothe councillors large discretion in theconduct of public business, and underthe early Stuarts the Council very nearlyruled the realm. Representing at alltimes the sovereign, who was supposed

invariably to be present at itsdeliberations, the Council supervisedthe work of administration, regulatedtrade, granted licenses, controlled thepress, kept an eye on the law courts,ferreted out plots, took measures tosuppress rebellion, controlled themovements of the fleet, assisted in themanagement of ecclesiastical affairs,and, in short, considered (p. 020) andtook action upon substantially allconcerns of state. By virtue of its rightto issue orders or ordinances itpossessed a power that was semi-legislative; through its regulation oftrade, its management of loans andbenevolences, and its determination ofmilitary obligations, it participated

actively in the control of taxation; and,under the presidency of the crown, itpossessed the functions of a supremetribunal, whose jurisdiction, in partoriginal and in part appellate, waswidespread and peculiarly despotic.[19]

[Footnote 19: Prothero, Statutes andConstitutional Documents, cii. See A.V. Dicey, The Privy Council (London,1887); E. Percy, The Privy Councilunder the Tudors (Oxford, 1907).]

*20. Other Councils: The StarChamber.* In 1487 there was created aspecial tribunal, consisting at the outsetof seven great officials and membersof the Council, including two judges,

to take special cognizance of casesinvolving breaches of the law byoffenders who were too powerful to bereached under the operation of theordinary courts. This was the tribunalsubsequently known, from its meeting-place, as the Court of Star Chamber. Ineffect it was from the beginning acommittee of the Privy Council,empowered to exercise a jurisdictionwhich in truth had long been exercisedextra-legally by the Council as a whole.The relation of the two institutionsinclined in practice to become evercloser, and by the middle of thesixteenth century the Star Chamber hadbeen enlarged to include all of themembers of the Council, together with

the two chief justices; and since theStar Chamber possessed a statutorysanction which the Council lacked, thejudicial business of the older body wasdespatched regularly by its memberssitting under the guise of the newerone. The tendency of the Tudor regimetoward the conciliar type ofgovernment is manifested further bythe creation of numerous subsidiarycouncils and courts whose historycannot be recounted here. Most ofthese were brought into existenceduring the reign of Henry VIII. Thoseof principal importance were (1) theCouncil of the North, set up in 1539;(2) the Council of Wales, confirmed bystatute of 1542; (3) the Court of Castle

Chamber, reproducing in Ireland theprincipal features of the English StarChamber; (4) the Courts ofAugmentation, First Fruits andAnnates, and Wards; and (5) theElizabethan Court of HighCommission.[20]

[Footnote 20: A. T. Carter, Outlines ofEnglish Legal History (London, 1899),Chap. 12; A. Todd, ParliamentaryGovernment in England, ed. by S.Walpole, 2 vols. (London, 1892), I.,Chap. 2; Dicey, The Privy Council, 94-115.]

VII. PARLIAMENT UNDER THETUDORS (p. 021)

*21. Control by the Crown.* By theTudors generally, and especially HenryVIII. and Elizabeth, Parliament wasregarded as a tool to be used by thecrown, rather than as in any sense anindependent, co-ordinate power in thestate. When innovations were to beintroduced, such as those carriedthrough by Henry VIII., it was Tudorpolicy to clothe them with thevestments of parliamentarism, to theend that they might be given theappearance and the sanction ofpopular measures; and when subsidieswere to be obtained, it was recognizedto be expedient to impart to them, insimilar manner, the semblance of

voluntary gifts on the part of thenation. It was no part of Tudor intent,however, that Parliament should bepermitted to initiate measures, or evento exercise any actual discretion in theadoption, amendment, or rejection ofproposals submitted by theGovernment. There were several meansby which the crown contrived toimpede the rise of Parliament above thesubordinate position which that bodyoccupied at the accession of HenryVII. One was the practice of conveningParliament irregularly and infrequentlyand of bringing its sessions to an earlyclose. Another, employed especiallyduring Thomas Cromwell's ministryunder Henry VIII. and during the reign

of Elizabeth, was that of tamperingwith the freedom of borough andcounty elections. A third was the habit,also notorious under Henry VIII. andElizabeth, of dictating and directing inall that was essential in the proceedingsof the chambers. Henry VIII. bulliedhis parliaments systematically;Elizabeth, by cajolery, flattery, deceit,and other arts of which she wasmistress, attained through lessboisterous methods the same generalend. Measures were thrust upon thechambers accompanied by peremptorydemand for their enactment;objectionable projects originated byprivate members were stifled; and thefundamental parliamentary privileges

of free speech, freedom from arrest,and access to the sovereign werearbitrarily suspended or otherwiseflagrantly violated.

*22. The Independence of the Crown.*Finally must be mentioned certaindevices by which the crown wasenabled to evade limitationstheoretically imposed by Parliament'srecognized authority. One of these wasthe issuing of proclamations. In thesixteenth century it was generallymaintained that the sovereign, actingalone or with the advice of theCouncil, could issue proclamationscontrolling the liberty of the subject, solong as such edicts did not violate

statute or common law. As a corollary,it was maintained also that the crowncould dispense with the action of lawin individual cases and at (p. 022) timesof crisis. The range covered by theseprerogatives was broad and undefined,and in the hands of an aggressivemonarch they constituted a seriousinvasion of the powers of legislationnominally vested in Parliament. It istrue that the act of 1539 imparting toroyal proclamations the force of lawwas repealed in 1547; butproclamations continued, especiallyunder Elizabeth and James I., not onlyto be numerous, but to be enforcedrelentlessly by penalties inflictedthrough the Star Chamber. The most

important power of Parliament in thesixteenth century was still that ofvoting supplies. But in respect tofinance, as in respect to legislation, thecrown possessed effective means ofevading parliamentary control. In thefirst place, the sovereign possessed largerevenues, arising from crown lands,feudal rights, profits of jurisdiction,and ecclesiastical payments, with whichParliament had nothing whatever to do.In the second place, the great indirecttaxes customs duties and tonnage andpoundage were, in the sixteenthcentury, voted at the accession of asovereign for the whole of the reign. Itwas only in respect to extraordinarytaxes "subsidies" and "tenths and

fifteenths" that Parliament was in aposition effectually to make or mar thefiscal fortunes of the Government;except that, of course, it was alwaysopen to Parliament to criticise thefinancial expedients of the crown, suchas the sale of monopolies, the levy of"impositions," and the collection ofbenevolences, and to influence, if itcould, the policy pursued in relation tothese matters.

*23. The House of Lords in 1485.*Despite the numerous strictures thathave been mentioned, Parliament in theTudor period by no means stood still.The enormous power andindependence exhibited by the

chambers, especially the Commons, inthe seventeenth century was theproduct of substantial, if more or lesshidden, growth during the previousone hundred and fifty years. Thecomposition of the two houses at theaccession of Henry VII. was not clearlydefined. The House of Lords was but asmall body. It comprised simply thoselords, temporal and spiritual, who wereentitled to receive from the king, whena parliament was to be held, a specialwrit, i.e., an individual summons. Thenumber of these was indeterminate.The right of the archbishops, thebishops, and the abbots to besummoned was immemorial andindisputable, although the abbots in

practice evaded their obligation ofattendance, save in cases in which itcould be shown that as military tenantsof the crown they were obligated toperform parliamentary duty. Among thelay nobility the selection of individualsfor summons seems originally to havebeen dependent upon the royalpleasure. Eventually, however, theprinciple became (p. 023) fixed that aman once summoned must besummoned whenever occasion shouldarise, and that, furthermore, his eldestson after him must be summoned insimilar manner. What was at the outsetan obligation became in time a privilegeand a distinction, and by the day whenit did so the rule had become legally

established that the king could notwithhold a writ of summons from theheir of a person who had been oncesummoned and had obeyed thesummons by taking his seat. During thefourteenth century the aggregatemembership of the chamber fluctuatedin the neighborhood of 150. By reasonof the withdrawal of some of theabbots and the decline of the baronage,in the fifteenth century the body wasyet smaller. The number of temporallords summoned to the first parliamentof Henry VII. was but 29.

*24. The House of Commons in1485.* The House of Commons at thebeginning of the Tudor period was a

body of some 300 members. Itcontained 74 knights of the shire,representing all but three of the fortyEnglish counties, together with afluctuating number of representativesof cities and boroughs. In the ModelParliament of 1295 the number ofurban districts represented was 166, butas time went on the number declined,in part because of the discriminationexercised from time to time in theselection of boroughs to berepresented, and in part by reason ofthe fact that in times whenrepresentation did not appear to yieldtangible results the borough taxpayersbegrudged the two shillings per daypaid their representatives, in some

instances sufficiently to be induced toabandon altogether the sending ofmembers. By the time of Edward IV.(1399-1413) the number of representedtowns had fallen to 111. At thebeginning of the fifteenth centurycounty members were elected by thebody of freeholders present at thecounty court, but by statute of 1429the electoral privilege was restricted tofreeholders resident in the county andholding land of the yearly rental valueof forty shillings, equivalent, perhaps,to some L30 to L40 in present values.This rule, adopted originally with theexpress purpose of disfranchising "thevery great and outrageous number ofpeople either of small substance or of

no value" who had been claiming anelectoral equality with the "worthyknights and squires," continued inoperation without amendment until1832. The electoral systems prevailingin the boroughs exhibited at all timesthe widest variation, and never prior to1832 was there serious attempt toestablish uniformity of practice. Insome places (the so-called "scot andlot" boroughs) the suffrage wasexercised by all rate-payers; in others, bythe holders of particular tenements("burgage" franchise); in others (the"potwalloper" (p. 024) boroughs) by allcitizens who had hearths of their own;in many, by the municipal corporation,or by the members of a guild, or even

by neighboring landholders. Boroughelectoral arrangements ran the fullgamut from thoroughgoing democracyto the narrowest kind of oligarchy.

*25. Development under the Tudors:Composition.* During the Tudorperiod the composition of the twochambers underwent important change.In the Lords the principal modificationwas the substitution of temporal forspiritual preponderance. This wasbrought about in two ways. The firstwas the increase numerically of thehereditary peers from thirty-six at thebeginning of the reign of Henry VIII.to about eighty at the accession ofJames I. The second was the dropping

out of twenty-eight abbots, incident tothe closing of the monasteries byHenry VIII. and only partiallycompensated by the creation at the timeof six new bishoprics. In 1509 thenumber of lords spiritual was forty-eight; in 1603, it was but twenty-six.The House of Commons under theTudors was virtually doubled in size.The final incorporation of Wales in1535 meant the adding of twenty-fivemembers. In 1536 and 1543 thecounties of Monmouth and Chesterwere admitted to representation. Therefollowed the enfranchisement of anumber of boroughs, and by the endof the reign of Henry VIII. therepresentation of counties had been

increased from 74 to 90, and that ofthe boroughs had been brought up to252, giving the House an aggregatemembership of 342. During the reignof Edward VI. twenty newconstituencies were created, and duringthat of Mary twenty-one. But the mostnotable increase was that which tookplace in the reign of Elizabeth, the netresult of which was the bringing in of62 new borough representatives, insome cases from boroughs which nowacquired for the first time the right ofrepresentation, in others fromboroughs which once had possessedthe right but through disuse had beenconstrued to have forfeited it. The totalincrease of the Commons in numerical

strength during the Tudor period was166. There can be little question that ina few instances parliamentaryrepresentation was extended with thespecific purpose of influencing thepolitical complexion of the popularchamber. But, on the whole, the reasonfor the notable increase, especially ofborough members, is to be found inthe growing prosperity of the countryand in the reliance which the Tudorswere accustomed to place upon thecommercial and industrial classes ofthe population.

*26. Other Developments.* A secondpoint at which Parliament in the Tudorera underwent modification was in

respect to permanence and sittings.Prior to Henry VIII. the life of aparliament was confined, as a rule, to asingle session, and sessions were brief.But (p. 025) parliaments now ceased tobe meetings to be broken up as soon assome specific piece of business shouldhave been completed, and many werebrought together in several succeedingsessions. Henry VIII.'s ReformationParliament lasted seven years. Duringthe forty-five years of Elizabeth therewere ten parliaments and thirteensessions. One of these parliamentslasted eleven years, although it met butthree times. It is true that theparliaments of Elizabeth were insession, in the aggregate, somewhat less

than three years, an average for the reignof but little more than three weeks ayear. But the point is that, slowly buteffectually, Parliament as an institutionwas acquiring a recognized position inthe political system of the nation. In1589 Thomas Smith, a court secretary,published a book entitled "TheCommonwealth of England and theManner of Government Thereof," inwhich was laid down the fundamentalproposition that "the most high andabsolute power of the realm ofEngland consisteth in the parliament";and there is no record that theproclamation of this doctrine, even bya court official, elicited serious protestor difference of opinion. It was in the

Tudor period, further, that both housesinstituted the keeping of journals andthat the appointment of committeesand numerous other aspects ofmodern parliamentary procedure hadtheir beginnings.

Finally, the Elizabethan portion of theperiod was an epoch during whichthere took place a very real growth inindependence of sentiment and anequally notable advance inconsciousness of power on the part ofthe popular chamber. Even before thedeath of Elizabeth there were ill-repressed manifestations of the feelingthat the Tudor monarchy had done itswork and that the time for a larger

amount of parliamentary control hadarrived. Nothing was clearer in 1603than the fact that the sovereign whoshould expect to get on agreeably withhis Commons must be both liberal andtactful. That the Stuarts possessed thefirst of these qualities in only a verylimited measure and the second onenot at all is a fact upon which turns anentire chapter of English constitutionalhistory.[21]

[Footnote 21: Excellent works of ageneral nature on the Tudor period areH. A. L. Fisher, History of Englandfrom the Accession of Henry VII. tothe Death of Henry VIII. (London,1906); A. F. Pollard, History of

England from the Accession ofEdward VI. to the Death of Elizabeth(London, 1910); and A. D. Innis,England under the Tudors (London,1905). For institutional history seeTaylor, English Constitution, II., Bk. 4.More specialized treatment will befound in Smith, History of the EnglishParliament, I., Bk. 5; Dicey, The PrivyCouncil, 76-130; and Taswell-Langmead, English ConstitutionalHistory, Chaps. 10, 12. An excellentsurvey of English public law at thedeath of Henry VII. is contained in F.W. Maitland, Constitutional History ofEngland (Cambridge, 1911), 165-236.Books of large value on the periodinclude W. Busch, England under the

Tudors, trans. by A. M. Todd (London,1895), the only volume of whichpublished covers the reign of HenryVII.; A. F. Pollard, Henry VIII.(London, 1902 and 1905), and Englandunder the Protector Somerset (London,1900); and M. Creighton, QueenElizabeth (new ed., London, 1899).]

VIII. THE STUARTS: CROWN ANDPARLIAMENT (p. 026)

*27. Absolutism BecomesImpracticable.* Throughout the largerportion of the seventeenth century theprincipal interest in English politicscenters in the contest which was wagedbetween the nation represented in

Parliament and the sovereigns of theStuart dynasty. The question, as onewriter has put it, was "at first whethergovernment should be by the king orby the king in parliament, afterwardswhether the king should govern orwhether parliament should govern."[22] The Stuart sovereigns broughtwith them to the English throne nopolitical principles that were new. WhenJames I., in a speech before ParliamentMarch 21, 1610, declared thatmonarchy "is the supremest thing uponearth," and that, "as to dispute whatGod may do is blasphemy, ... so is itsedition in subjects to dispute what aKing may do in the height of hispower,"[23] he was but giving

expression to a conception of the royalprerogative which had been lodged inthe mind of every Tudor, but which noTudor had been so tactless as publiclyto avow. The first two Stuartsconfidently expected to maintain thesame measure of absolutism whichtheir Tudor predecessors hadmaintained nothing more, nothing less.There were, however, several reasonswhy, for them, this was an impossibility.The first arose from their owntemperament. The bluntness, the lackof perception of the public will, andthe disposition perpetually to insistupon the minutest definitions ofprerogative, which so pre-eminentlycharacterized the members of the

Stuart house must have operated toalienate seventeenth-centuryEnglishmen under even the mostfavorable of circumstances. A secondconsideration is the fact, of which thenation was fully cognizant, that underthe changed conditions that had arisenthere was no longer the need of strongmonarchy that once there had been.Law and order had long since beensecured; all danger of a feudal reactionhad been effectually removed; foreigninvasion was no more to be feared.Strong monarchy had served aninvaluable purpose, but that purposehad been fulfilled.

[Footnote 22: C. Ilbert, Parliament, its

History, Constitution, and Practice(London and New York, 1911), 28-29.]

[Footnote 23: Prothero, Statutes andConstitutional Documents, 293-294.]

*28. The Rights of the CommonsAsserted.* Finally there was the (p. 027)fact of the enormous growth ofParliament as an organ of the publicwill. The rapidity of that developmentin the days of Elizabeth is, and was atthe time, much obscured by thedisposition of the nation to permit theQueen to live out her days withoutbeing seriously crossed in her purposes.But the magnitude of it becomesapparent enough after 1603. In a

remarkable document known as theApology of the Commons, under dateof June 20, 1604, the popular chamberstated respectfully but frankly to thenew sovereign what it considered to beits rights and, through it, the rights ofthe nation. "What cause we your poorCommons have," runs the address, "towatch over our privileges, is manifest initself to all men. The prerogatives ofprinces may easily, and do daily, grow;the privileges of the subject are for themost part at an everlasting stand. Theymay be by good providence and carepreserved, but being once lost are notrecovered but with much disquiet. Therights and liberties of the Commons ofEngland consisteth chiefly in these

three things: first, that the shires, cities,and boroughs of England, byrepresentation to be present, have freechoice of such persons as they shallput in trust to represent them; secondly,that the persons chosen, during thetime of the parliament, as also of theiraccess and recess, be free from restraint,arrest, and imprisonment: thirdly, thatin parliament they may speak freelytheir consciences without check andcontrolment, doing the same with duereverence to the sovereign court ofparliament, that is, to your Majesty andboth the Houses, who all in this casemake but one politic body, whereofyour Highness is the head."[24] Theshrewdness of the political philosophy

with which this passage opens ismatched only by the terseness withwhich the fundamental rights of theCommons as a body are enumerated.To the enumeration should be added,historically, an item contained in apetition of the Commons, May 23,1610, which reads as follows: "We holdit an ancient, general, and undoubtedright of Parliament to debate freely allmatters which do properly concern thesubject and his right or state; whichfreedom of debate being onceforeclosed, the essence of the liberty ofParliament is withal dissolved."[25] Theoccasion for this last-mentionedassertion of right arose from the king'shabitual assumption that there were

various important matters of state, e.g.,the laying of impositions and theconduct of foreign relations, whichParliament possessed no right so muchas to discuss.

[Footnote 24: Petyt, JusParliamentarium (London, 1739), 227-243. Portion