Kitabı oku: «The Growth of the English Constitution», sayfa 3

 
“Mind shall the harder be,
Heart shall the keener be,
Mood shall the more be,
As our main lessens.
Here lies our Elder,
All down hewn,
A good man in the dust;
Ever may he groan
Who now from this war-play
Of wending thinketh.
I am old of life;
Hence stir will I not,
And I by the half
Of my lord,
By such a loved man
To lie am thinking.”
 

This institution of military companionship seems to have struck Tacitus with some amazement. He says that this kind of personal relation was among the Germans not thought shameful. This was the natural feeling of a Roman. The duty of a Roman citizen was wholly towards the state. The state might be represented either by a responsible magistrate or by an irresponsible Emperor; in either case obedience was due to the representative of the state; but there was no personal relation to the man. The old Roman institution of patron and client, which was so like the German comitatus, had pretty well died out by the time of Tacitus, and it had at no time been entered into by men of high rank⁵³. What amazed Tacitus was that among the Germans the noblest in birth and exploits were not looked on as dishonoured by entering the service of a personal lord. To Tacitus himself Trajan was the chief magistrate of the Roman commonwealth, the chief commander of the Roman army; he was a personal master to none but his slaves and freedmen⁵⁴. It was only in a much later stage of the Roman Empire that personal service in the court and household of the Emperor began to be looked on as honourable⁵⁵. But among the Teutonic nations the personal relation coloured everything; personal service towards a King or other chief was honourable from the beginning; the proudest nobles of Europe have down to this day thought themselves honoured by filling offices about the persons of Emperors, Kings, and other princes which Tacitus would have deemed beneath the dignity of any Roman citizen. We are now accustomed to see this kind of service paid in the case of royal personages only; a few centuries back men of any rank deemed themselves honoured by paying the like service to men of the rank next above their own, or even to men of their own rank who had the start of them in age and reputation. The knight was served by his esquire and the master by his scholar; and the same principle, laid aside everywhere else, lingers on in what is undoubtedly a trace of the Teutonic comitatus, the fagging of our public schools. Now the political effect of the existence of the principle of personal service, the institution of the comitatus, alongside of the primitive political community, was most important in our early history. The personal relation went far to swallow up the purely political one. To enter the service of a chief became so established a practice that at last it was deemed that it was the part of every man to “seek a lord,” as the phrase was, to commend himself, to put himself under the protection of some man more powerful than himself⁵⁶. The man owed faithful service to his lord; the lord owed faithful protection to his man. The very word Lord, in its older and fuller form Hlaford, implies the rewards which the lord bestowed on his faithful man. The word is in some sort a puzzling one; but there can be no doubt that it is connected with hlaf, loaf, and that its general meaning is the giver of bread⁵⁷. Now herein lurks something which has greatly affected all later political and social arrangements. The institution of the comitatus in its first state had nothing whatever to do with the holding of land. But the man looked for reward of his faithful service at the hands of his lord; he looked for the bread of which his lord’s title proclaimed him as the giver. There was of course no form of reward, no form of bread, so convenient or so honourable as that of a grant of land to be held as the reward of past and the condition of future service. Moreover the custom of granting out lands to be held by the tenure of military service had become common in the later days of Roman power⁵⁸. Such lands were of course held, not of the Emperor as a personal lord, but of the Roman Commonwealth of which he was the head and representative. But the custom of holding lands by military service fell in well with the Teutonic institution of personal service, and the union of the two in the same person produced that feudal relation which has had such an important bearing on all political and social life through the whole of the middle ages and down to our own time. The land granted by the lord to his man, or the land which the man agreed to hold as if it had been so granted, might be a kingdom held of the Emperor or the Pope, or it might be the smallest estate held of a more powerful neighbour. In either case, such a holding by military service was a fief, and from the institution of such fiefs the so-called Feudal System, with all its manifold workings for good and for evil, had its rise. But so far as the Feudal System existed, either in England or in any other country, it existed wholly as a system which had grown up by the side of an earlier system which it wholly or partially displaced. The feudal tenant, holding his land of a lord by military service gradually supplanted, wholly or partially, in most countries of Europe, the allodial holder who held his land of no other man, and who knew no superior but God and the Law⁵⁹. In England this change took place only gradually and partially; it was through the Norman Conquest, or, more accurately, through the subtle legal theories which came in with the Norman Conquest, that it was finally established. And, after all, it was rather in theory than in fact that it was established. The Feudal System, as something spreading into every corner of the land, and affecting every relation of life, never obtained the same complete establishment in England which it did in some continental countries.

But it is only indirectly that my subject has anything to do with the Feudal System, and especially with its social working. I have to do with the comitatus, out of which the feudal relation grew, mainly in another aspect equally indirect, namely, the way in which it affected our earliest political institutions. It gave us a new form of nobility, a nobility of office and of personal relation to the King, instead of a nobility founded on birth only. It gave us a nobility of Thegns, which gradually supplanted the earlier nobility of the Eorls. As the royal power and dignity grew, it came to be looked on as the highest honour to enter into the personal service of the King. Two results followed; service towards the King, a place, that is, in the King’s comitatus, became the badge and standard of nobility⁶⁰. And it greatly strengthened the power of the King that he stood to all the chief men of his kingdom in the relation, not only of a political ruler, but of a personal lord, a lord to whose service they were bound by a personal tie, and of whom they held their lands as the gift of his personal bounty. It marks perhaps a decline from the first idea of the comitatus that the old word Gesith, companion, answering exactly to the Latin Comes used by Tacitus, was supplanted by the name Thegn, literally servant⁶¹. But when personal service was deemed honourable, the name of servant was no degradation, and the name Thegn became equivalent to the older Eorl. The King’s Thegn, the men who held their land of the King and who were bound to him by the tie of personal service, formed the highest class of nobility. The Thegns of inferior lords, of Bishops and Ealdormen, formed a secondary class. A nobility of this kind, there can be no doubt, was so far more liberal than the elder nobility of birth that admission to it was not forbidden to men of lower degree. The Ceorl, the ordinary freeman, could not in strictness become an Eorl, for the simple reason that he could not change his forefathers; but he might, and he often did, become a Thegn⁶². But, on the other hand, such a nobility, while it made it easier for the common freeman to rise, tended to lower the condition of the common freemen who did not rise. For the very reason that the barrier of birth is one which cannot be passed, it is in some respects less irksome than the barrier of wealth or office. The privileges of a strictly hereditary nobility are much more likely to sink into mere honorary distinctions than the privileges of a nobility whose rank is backed by the solid advantages of office and of a personal relation to the sovereign.

The tendency then of the first six hundred years after the settlement of the English in Britain was to increase the power of the Crown, to depress the lower class of freemen, to exchange a nobility of birth for a nobility of personal service to the King. That is to say, England had, before the Norman Conquest, already begun to walk, though with less speed than most other nations, in the path which led to the general overthrow of liberty throughout Europe. The foreign invasion which for a moment seemed to have crushed her freedom for ever did in truth only lead to its new birth, to its fresh establishment in forms better fitted to the altered state of things, forms better fitted to be handed on to later times, forms better fitted to preserve the well-being of a great nation, than those forms of the old Teutonic community which still linger on in those remote corners of the world which I spoke of at my beginning. That momentary overthrow, that lasting new birth, will be the subject of my second chapter. I will now only call you to bear in mind that England has never been left at any time without a National Assembly of some kind or other. Be it Witenagemót, Great Council, or Parliament, there has always been some body of men claiming, with more or less of right, to speak in the name of the nation. And bear too in mind that, down to the Norman Conquest, the body which claimed to speak in the name of the nation was, in legal theory at least, the nation itself. This is a point on which I mean again to speak more fully; I would now simply suggest the thought, new perhaps to many, that there was a time when every freeman of England, no less than every freeman of Uri, could claim a direct voice in the councils of his country. There was a time when every freeman of England could raise his voice or clash his weapon in the Assembly which chose Bishops and Ealdormen and Kings, when he could boast that the laws which he obeyed were laws of his own making, and that the men who bore rule over him were rulers of his own choosing. Those days are gone, nor need we seek to call them back. The struggles of ages on the field and in the Senate have again won back for us the selfsame rights in forms better suited to our times than the barbaric freedom of our fathers. Yet it is well that we should look back to the source whence comes all that we boast of as our own possession, all that we have handed on to our daughter commonwealths in other continents. Let us praise famous men and our fathers that begat us. Let us look to the rock whence we were hewn and to the hole of the pit whence we were digged. Freedom, the old poet says, is a noble thing⁶³; it is also an ancient thing. And those who love it now in its more modern garb need never shrink from tracing back its earlier forms to the first days when history has aught to tell us of the oldest life of our fathers and our brethren.

CHAPTER II

In my first chapter I dealt mainly with those political institutions of the earliest times – institutions common to our whole race, institutions which still live on untouched among some small primitive communities of our race – out of which the still living Constitution of England grew. It is now my business, as the second part of my subject, to trace the steps by which that Constitution grew out of a political state with which at first sight it seems to have so little in common. My chief point is that it did thus, in the strictest sense, grow out of that state. Our English Constitution was never made, in the sense in which the Constitutions of many other countries have been made. There never was any moment when Englishmen drew out their political system in the shape of a formal document, whether as the carrying out of any abstract political theories or as the imitation of the past or present system of any other nation. There are indeed certain great political documents, each of which forms a landmark in our political history. There is the Great Charter, the Petition of Right, the Bill of Rights. But not one of these gave itself out as the enactment of anything new. All claimed to set forth, with new strength, it might be, and with new clearness, those rights of Englishmen which were already old. In all our great political struggles the voice of Englishmen has never called for the assertion of new principles, for the enactment of new laws; the cry has always been for the better observance of the laws which were already in force, for the redress of grievances which had arisen from their corruption or neglect⁶⁴. Till the Great Charter was wrung from John, men called for the laws of good King Eadward. And when the tyrant had unwillingly set his seal to the groundwork of all our later Law, men called for the stricter observance of a Charter which was deemed to be itself only the laws of Eadward in a newer dress⁶⁵. We have made changes from time to time; but they have been changes which have been at once conservative and progressive – conservative because progressive, progressive because conservative. They have been the application of ancient principles to new circumstances; they have been the careful repairs of an old building, not the pulling down of an old building and the rearing up of a new. The life and soul of English law has ever been precedent; we have always held that whatever our fathers once did their sons have a right to do again. When the Estates of the Realm declared the throne of James the Second to be vacant, they did not seek to justify the act by any theories of the right of resistance, or by any doctrines of the rights of man. It was enough that, three hundred years before, the Estates of the Realm had declared the throne of Richard the Second to be vacant⁶⁶. By thus walking in the old paths, by thus hearkening to the wisdom of our forefathers, we have been able to change whenever change has been needed, and we have been kept back from changing out of the mere love of abstract theory. We have thus been able to advance, if somewhat slowly, yet the more surely; and when we have made a false step, we have been able to retrace it. On this last power, the power of undoing whatever has been done amiss, I wish specially to insist. In tracing the steps by which our Constitution has grown into its present shape, I shall try specially to show in how many cases the best acts of modern legislation have been, wittingly or unwittingly, a falling back on the principles of our earliest times. In my first chapter I tried to show how our fathers brought with them into the Isle of Britain those primæval institutions which were common to them with the whole Teutonic race. I tried to show how those institutions were modified in the course of time by the circumstances of the English Conquest of Britain, and by the events which followed that Conquest. I showed how the kingly power grew with every increase of the territorial extent of the kingdom; how the old nobility of birth gave way to a new nobility of personal relation to the sovereign; and how the effect of these changes seems to have been to make it easier for the individual freeman of the lower rank to rise, but at the same time to lower the position of the ordinary freemen as a class. This last change was still more largely brought about as an independent result of the same changes which tended to increase the kingly power. In a state of things where representation is unknown, where every freeman is an elector and a lawgiver, but where, if he exercises his elective and legislative rights, he must exercise them directly in his own person – in such a state of things as this every increase of the national territory makes those rights of less practical value, and causes the actual powers of government to be shut up in the hands of a smaller body. There is no doubt that in the earliest Teutonic assemblies every freeman had his place. There is no doubt that in England every freeman kept his place in the smaller local assemblies of the mark, the hundred, and the shire⁶⁷. He still, where modern legislation has not wholly swept it away, keeps, as I hinted in my former lecture, some faint shadow of the old right when he gives a vote in the assembly, in which the assembly of the mark still lives on, that is, in the vestry of his parish. But how as to the great assembly of all, the Assembly of the Wise, the Witenagemót of the whole realm? No ancient record gives us any clear or formal account of the constitution of that body. It is commonly spoken of in a vague way as a gathering of the wise, the noble, the great men⁶⁸. But, alongside of passages like these, we find other passages which speak of it in a way which implies a far more popular constitution. King Eadward is said to be chosen King by “all folk.” Earl Godwine “makes his speech before the King and all the people of the land.” Judicial sentences and other acts of authority are voted by the army, that is by the people under arms. Sometimes we find direct mention of the presence of large and popular classes of men, as the citizens of London or Winchester⁶⁹. The inference from all this is obvious. The right of the ordinary freeman to attend, to vote – it might perhaps be nearer the truth to say to shout⁷⁰– in the general Assembly of the whole realm was never formally taken away. But it was a right which, in its own nature, most men could hardly ever exercise. None but men of wealth would have the means, none but men of some personal importance would have any temptation, to take long journeys for such a purpose. It is not likely that any great multitude would, under ordinary circumstances, set off from Northern England to attend meetings which were habitually held at Westminster, Winchester, and Gloucester. It is plain that the habitual attendance would not go beyond a small body of chief men, Earls, Bishops, Abbots, the officers of the King’s court, the Thegns of the greatest wealth or the highest personal influence. But it is plain that, when the heart of the nation was specially stirred by some overwhelming interest, many men would find their way to the Assembly who would not find their way to it in ordinary times. And, when the Assembly was held in a town, the citizens of that town at once formed a popular element ready on the spot. Hence we can account for the seemingly contradictory way in which the Assembly is spoken of, sometimes in language which would imply an aristocratic body, sometimes in language which would imply a body highly democratic. It was in fact a body, democratic in ancient theory, aristocratic in ordinary practice, but to which any strong popular impulse could at any time restore its ancient democratic character⁷¹. Acts done by a freely chosen representative body may, without much straining of language, be said to be done by the whole people. But acts done by a body not representative could never be called the acts of the whole people, unless the whole people had an acknowledged right to attend its meetings, though that right might, under all ordinary circumstances, be exercised only by a few of their number.

Out of this body, whose constitution, by the time of the Norman Conquest, had become not a little anomalous and not a little fluctuating, our Parliament directly grew. Of one House of that Parliament we may say more; we may say, not that it grew out of the ancient Assembly but that it is absolutely the same by personal identity. The House of Lords not only springs out of, it actually is, the ancient Witenagemót. I can see no break between the two. King William summoned his Witan as King Eadward had summoned them before him. In one memorable assembly of the Conqueror’s reign, we read that the great men of the realm were reinforced by the presence of the whole body of the landholders of England, whose number tradition handed down as sixty thousand⁷². But, as a rule, the Great Councils after the Norman Conquest bear the same uncertain and fluctuating character as the Gemóts of earlier days. In the constitution of the House of Lords I can see nothing mysterious or wonderful. Its hereditary character came in, like other things, step by step, by accident rather than by design. And it should not be forgotten that, as long as the Bishops keep their seats in the House, the hereditary character of the House does not extend to all its members. To me it seems simply that two classes of men, the two highest classes, the Earls and the Bishops, never lost or disused that right of attending in the National Assembly which was at first common to them with all other freemen. Besides these two classes, the King summoned other men to our early Parliaments, pretty much, it would seem, at his own pleasure. The right of the King so to do could not be denied; when all had an abstract right to attend, we cannot blame the King for specially summoning those for whose attendance he specially wished. But it would almost naturally follow that such a special summons would gradually be held to bestow an exclusive right, and that those who were not specially summoned would soon be looked upon as having no part or lot in the matter. But it is certain that it was long before such a summons was held to confer a hereditary, or even a lasting personal right. The King did not always summon the same men to every Parliament. Besides the Earls and the Bishops, others both of the laity and the clergy were always summoned, but the list of those who were summoned, both of the laity and of the lesser ecclesiastical dignitaries, constantly varies from Parliament to Parliament⁷³. That the personal summons conveyed an exclusive hereditary right was one of those devices of lawyers of which so many have crept into our constitution. When the notion of hereditary right had once established itself, the formal creation of peerages by patent was a natural stage. Looking at the matter from this historical point of view, it seems to me simply wonderful how any one can doubt the power of the Crown to create life-peerages, or to regulate the tenure or succession of a peerage in any way that it thinks good.

The House of Lords then, I do not hesitate to say, represents, or rather is, the ancient Witenagemót. An assembly in which at first every freeman had a right to appear has, by the force of circumstances, step by step, without any one moment of sudden change, shrunk up into an Assembly wholly hereditary and official, an Assembly to which the Crown may summon any man, but to which, it is now strangely held, the Crown cannot refuse to summon the representatives of any man whom it has once summoned. As in most other things, the tendency to shrink up into a body of this kind began to show itself before the Norman Conquest, and was finally confirmed and established through the results of the Norman Conquest. But the special function of the body into which the old national Assembly has changed, the function of “another House,” an Upper House, a House of Lords as opposed to a House of Commons, could not show itself till a second House of a more popular constitution had arisen by its side. Like everything else in our English polity, both Houses in some sort came of themselves. Neither of them was the creation of any ingenious theorist, though we need not doubt that many of the several steps in the growth of each were, each in its own time, the work of practical statesmanship. Our forefathers had no theories; but men, each in his own generation, had eyes keen enough to see that such and such a change in detail would get rid of such and such an immediate evil, or would bring with it such and such an immediate advantage. Nay more, it has sometimes happened that a change which was brought in with an evil intent has in the end worked for good. Measures which were taken with a view of strengthening the power of the Crown have come in the end to widen the rights of the people. On the other hand, institutions which once answered a good and needful purpose have sometimes, through change of times, changed their nature and have become instruments of evil instead of good. But in neither case were the institutions of our fathers the work of abstract theory. They have therefore lived on, and they have borne good fruit. Our national Assembly has changed its name and its constitution, but its corporate identity has lived on unbroken. We can therefore at any moment reform without destroying. In France, on the other hand, institutions have been the work of abstract theory; they have been the creations, for good or for evil, of the minds of individual men. The English Parliament is immemorial; it grew step by step out of the older order of things. In France the older order of things utterly vanished; the ground lay open for the creation of a wholly new institution, and the States-General were called into being at the bidding of Philip the Fair⁷⁴. Englishmen in the fourteenth and fifteenth centuries had no theories of the rights of man or of universal humanity. But when they saw a practical grievance, they called for its redress. Frenchmen in the fourteenth and fifteenth centuries had theories as magnificent as any that have been put forth in the eighteenth or the nineteenth. And they had even then already learned to do deeds of blood in the name of freedom and philanthropy⁷⁵. Therefore French institutions have not lasted. The States-General lived but a fitful life from century to century, and they perished for ever in the Great Revolution. Since that time no French institution, no form either of the legislative or of the executive power, has been able to keep up a continuous being of twenty years. This difference has not been owing to any lack of great men or of noble purposes on the part of our continental neighbours. It has been owing, partly, we may believe, to differences in the inborn character of the two nations, partly to differences in the course taken by their several histories. In France the Kings gradually swept away all traces of older free institutions, and established a simple despotism in the Crown⁷⁶. The French therefore have been left without any traditional foundation to build on. In all their changes for good or for evil they have been driven to build afresh from the beginning. Our Kings never wholly wiped out our free institutions; they found means to turn them to their own purposes, and to establish a practical despotism without destroying the outward forms of freedom. The forms thus lived on, and in better times they could again be clothed with their substance. We ever had traditional principles to fall back upon, a traditional basis to build upon. It would be hard to reckon up the number of Assemblies, Conventions, Chambers of Deputies, and Legislative Bodies, which have risen and fallen in France, while the House of Lords and the House of Commons have lived on, with their powers, their duties, their relations to the Crown, to the Nation, and to one another, ever silently changing, but with their continuous being remaining throughout unbroken.

But I would again point out that, while the growth of English institutions has thus gone on almost in obedience to a natural law, the wisdom, the foresight, the patriotism, of individual statesmen is never to be put out of our reckoning. There was a given state of things, and some man had keenness of sight to see what was the right thing to do in that state of things. Our Constitution has no founder; but there is one man to whom we may give all but honours of a founder, one man to whose wisdom and self-devotion we owe that English history has taken the course which it has taken for the last six hundred years. It might no doubt have taken that course without him; things might have come about as they did without any one man coming so prominently to the front; or, if he had not arisen, some other man might have arisen to do his work. But we need not speculate as to what might have been; it is enough that one man did arise to do the work, that there is one man to whom we owe that the wonderful thirteenth century, the great creative and destructive age throughout the world⁷⁷, was to us an age of creation and not of destruction. That man, the man who finally gave to English freedom its second and more lasting shape, the hero and martyr of England in the greatest of her constitutional struggles, was Simon of Montfort, Earl of Leicester. If we may not call him the founder of the English Constitution, we may at least call him the founder of the House of Commons⁷⁸. It was in his age that the new birth of English freedom began to show itself; it was mainly by his work that that new birth was not stifled before it had brought forth lasting fruits. Strange it may at first sight seem that the founder of the later liberties of England was not an Englishman. Simon of Montfort, a native of France, did for the land of his adoption what even he might not have been able to do for the land of his birth. And why? The land of his birth was – shall I say flourishing or suffering? – under the baleful virtues of the most righteous of Kings. Saint Lewis reigned in France, Saint Lewis the just and holy, the man who never swerved from the path of right, the man who swared to his neighbour and disappointed him not, though it were to his own hindrance. Under his righteous rule there could be no ground for revolt or disaffection. By surrounding the Crown with the reflected glory of his own virtues, he did more than any other man to strengthen its power. He thus did more than any other man to pave the way for that foul despotism of his successors whose evil deeds would have daily vexed his righteous soul. In England, on the other hand, we had the momentary curse, the lasting blessing, of a succession of evil Kings. We had Kings who had no spark of English feeling in their breasts, but from whose follies and necessities our fathers were able to wring their freedom, all the more lastingly because it was bit by bit that it was wrung. A Latin poet once sang that freedom never flourishes more brightly than it does under a righteous King⁷⁹. And so it does while that righteous King himself tarries among men. But to win freedom as an heritage for ever there are times when we have more need of the vices of Kings than of their virtues. The tyranny of our Angevin masters woke up English freedom from its momentary grave. Had Richard and John and Henry been Kings like Ælfred and Saint Lewis, the crosier of Stephen Langton, the sword of Robert Fitzwalter, would never have flashed at the head of the Barons and people of England; the heights of Lewes would never have seen the mightiest triumph of her freedom; the pavement of Evesham choir would never have closed over the mangled relics of her noblest champion⁸⁰.