The Growth of the English Constitution. Freeman Edward Augustus

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СКАЧАТЬ 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 СКАЧАТЬ