The Constitutional History of England. Hallam Henry

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СКАЧАТЬ reader to appreciate the large part played in the development of the English constitution by those "conventions" which are a gloss upon the law and without which the constitution itself is unintelligible. As Bagehot has pointed out, the legal powers of the king are as large as his actual authority is small. In strict legal theory the cabinet is merely an informal group of ministers of the crown who hold office during the king's pleasure. In fact and in practice it is a committee of the House of Commons dependent upon the support of the majority of the members. The fact is the outcome of a conventional modification of the theory, and this convention is due to the political changes of the eighteenth century and the growth of the party system. In the pages of Hallam these changes receive their due recognition, and without it the development of the English constitution is unintelligible. It was a favourite doctrine of Hallam that so far as the law was concerned the constitution was developed very early and that all that later generations contributed to it was better administration of the law and a more vigilant public opinion. He even goes so far as to say in his chapter in the Middle Ages that he doubts "whether there are any essential privileges of our countrymen, any fundamental securities against arbitrary power, so far as they depend upon positive institutions, which may not be traced to the time of the Plantagenets." This is something of an anachronism, but it represents a not unjustifiable reaction against the high prerogative doctrines of writers of his own day. What Hallam, however, was really concerned to prove was that constitutional law in this country rests upon the common law—upon the rules laid down by mediæval judges as to the right of the subject to trial by jury, his immunity from arbitrary arrest, his claim not to be arbitrarily dispossessed of his property, and his right of action against the servants of the crown when he has suffered wrong. In this conception Hallam was undoubtedly right, and he urged it at a time when no one had made it as familiar as it has now become in the classic pages of Professor Dicey. But Hallam was perfectly well aware that these securities for the liberty of the subject were often abused, that the sheriffs who empanelled the jury were often corrupt and the judges who directed it were not infrequently servile; also that so long as the Star Chamber existed no jury could venture to give a verdict of "not guilty" in a prosecution by the crown without running the risk of being heavily punished. He is not insensible to these abuses and to the length of time it took to correct them, as the reader of the following pages will discover for himself, and he attaches due weight to the constitutional importance of the Act for the Abolition of the Star Chamber. But the truth of his main contention (as expressed in his chapter on "The English Constitution" in an earlier work2), that what chiefly distinguished our constitution from that of other countries was the "security for personal freedom and property" enjoyed by the subject, is undeniable. It was not so much the possession of representative institutions as the enjoyment of equal rights at common law that constituted the Englishman's advantage. Maitland3 has recently pointed this out in language almost identical with that of Hallam when he insists that "Parliaments" or "Estates" were in no way peculiar to England; every country in Western Europe possessed them in the Middle Ages, but what those countries did not possess was a great school of law like the Inns of Court determined to uphold at all costs the claims of the customary law of the nation against the despotic doctrines of the civil law of Rome.

      Hallam's attitude towards the constitution was that of Burke—he regarded it with a veneration little short of superstition. He has expressed himself in his earlier works in words which can hardly fail to provoke a smile to-day:—

"No unbiassed observer, who derives pleasure from the welfare of his species, can fail to consider the long and uninterruptedly increasing prosperity of England as the most beautiful phenomenon in the history of mankind. Climates more propitious may impart more largely the mere enjoyments of existence; but in no other region have the benefits that political institutions can confer been diffused over so extended a population; nor have any people so well reconciled the discordant elements of wealth, order, and liberty. These advantages are surely not owing to the soil of this island, nor to the latitude in which it is placed; but to the spirit of its laws, from which, through various means, the characteristic independence and industriousness of our nation have been derived. The constitution, therefore, of England must be to inquisitive men of all countries, far more to ourselves, an object of superior interest; distinguished especially as it is from all free governments of powerful nations which history has recorded by its manifesting, after the lapse of several centuries, not merely no symptom of irretrievable decay, but a more expansive energy."4

      If his language seems extravagant, I may remind the reader that there would have been few in Hallam's day who were prepared to dispute it. England, almost alone among the states of Europe, had escaped the infection of the French Revolution. Its constitution had survived the shock of a movement which, as De Tocqueville has remarked, was as widely destructive of the old order in Europe as the Reformation itself. The result was to give the English constitution such a prestige as it had not enjoyed since the days of Montesquieu. A school of thinkers, beginning with Guizot and hardly terminating with Gneist, grew up on the continent who made it their duty to follow Burke's advice and "study the British constitution" as the last word in political wisdom. Hallam's complacency may be naive in its expression, but its sentiment is sound, and Englishmen should be the last to disclaim it. Upon this rock many a political church has been built; the "law and custom of our Parliament" have, since he wrote, been studied in every university in Europe and adopted in almost all the legislatures of the civilised world. Hallam, like Thucydides, with whom in dignity and sententiousness he may not unjustly be compared, had a noble pride in the constitution of his country.

      J. H. MORGAN.

      BIBLIOGRAPHY

       Table of Contents

      A View of the State of Europe during the Middle Ages, 1818; 2nd edition, 1819; passed through twelve editions before 1855; revised and corrected, 1868; adapted to the use of students by W. Smith, 1871; edited by A. Murray, 1872; translated into Italian by G. Carraro and published at Firenze, 1874; Supplemental Notes to View of the State of Europe, 1848. The Constitutional History of England from the Accession of Henry VIII. to Death of George II., 1827; translated into German by F. A. Rüder and published at Leipzig, 1828; translated into French by M. Guizot and published in Paris, 1832; passed through eight editions before 1855; adapted to the use of students by W. Smith, 1872. Edited (with preface and memoir of his son) Remains in Verse and Prose of A. H. Hallam, 1834, 1863. The Introduction to the Literature of Europe during the 15th, 16th, and 17th Centuries, 1837–1839; 2nd edition, 1843; other editions, 1854, 1855, 1881. Contributed to J. C. Hare's Vindication of Luther against his recent English assailants (2nd edition, enlarged), 1855.

      A Short Life and Criticism of Henry Hallam appears in F. A. M. Mignet's Eloges Historiques, published in Paris in 1864.

      TO

       HENRY MARQUIS OF LANSDOWNE

       IN TOKEN OF HIGH ESTEEM

       AND SINCERE REGARD

       THIS WORK IS RESPECTFULLY INSCRIBED

       BY

       THE AUTHOR

      PREFACE

       Table of Contents

      The origin and progress of the English Constitution, down to the extinction of the house of Plantagenet, formed a considerable portion of a work published by me some years since, on the СКАЧАТЬ