The Growth of the English Constitution. Freeman Edward Augustus

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СКАЧАТЬ 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.

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      What I say of Uri and the other democratic Cantons must not be misunderstood, as if I all accepted the now exploded dreams which made out the Waldstädte or Forest Cantons to have had some special origin, and some special independence, apart from the rest of Germany. The researches of modern scholars have shown, not only that the Forest Cantons were members of the Empire like their neighbours, bu

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What I say of Uri and the other democratic Cantons must not be misunderstood, as if I all accepted the now exploded dreams which made out the Waldstädte or Forest Cantons to have had some special origin, and some special independence, apart from the rest of Germany. The researches of modern scholars have shown, not only that the Forest Cantons were members of the Empire like their neighbours, but that various lesser lords, spiritual and temporal, held different rights within them. Their acquisition of perfect independence, even their deliverance from other lords and promotion to the state of Reichsunmittelbarkeit or immediate dependence on the Empire, was a work of time. Thus Uri itself, or part of it, was granted in 853 by Lewis the German to the Abbey of Nuns (Fraumünster) in Zürich, and it was not till 1231 that its independence of any lord but the Emperor was formally acknowledged. But the universal supremacy of the Empire in no way interfered with the internal constitution of any district, city, or principality; nor was such interference necessarily implied even in subjection to some intermediate lord. The rule of a female monastery especially would be very light. And from the earliest times we find both the men of Uri in general and the men of particular parts of the district (Gemeinden, Communes, or parishes) spoken of as communities capable of acting together, and even of treating with those who claimed to be their masters. (“Nos inhabitantes Uroniam” appear in a deed of 955 as capable of making an agreement with the officer of the Abbey at Zürich.) All this is in no way peculiar to the Forest Cantons; it is no more than what we find everywhere; what is peculiar is that, whereas elsewhere the old local communities gradually died out, in the Forest Cantons they lived and flourished, and gained new rights and powers till they grew into absolutely independent commonwealths. I think therefore that I have a right to speak of the democracy of Uri as immemorial. It is not immemorial in its fully developed shape, but that fully developed shape grew step by step out of earlier forms which are strictly immemorial and common to the whole Teutonic race.

On the early history of the democratic Cantons, a subject than which none has been more thoroughly misunderstood, I am not able to point to any one trustworthy work in English. Among the writings of Swiss scholars – shut up for the most part from readers of other nations in the inaccessible Transactions of local Societies – there is a vast literature on the subject, of the whole of which I am far from pretending to be master. But I may refer to the Essai sur l’Etat des Personnes et la Condition des Terres dans le Pays d’Ury au XIII^e Siècle, by the Baron Frederick de Gingins-la-Sarraz, in the Archiv für schweizerische Geschichte, i. 17; to Dr. J. R. Burckhardt’s Untersuchungen über die erste Bevölkerung des Alpengebirgs in the same collection, iv. 3; to the early chapters of the great work of Bluntschli, Geschichte СКАЧАТЬ