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the Conquest gave birth. And under the same hand the central system itself becomes essentially as complete as it is at the present day. Then as now the executive government was vested in the king and his council; then as now the king could not legislate without the counsel and assent of a parliament duly summoned; then as now the king could levy no tax without the authority of such a parliament; then as now the ancient code of customary law existed as a definitely organized system of jurisprudence; then as now the courts of the king's bench, common pleas, and exchequer, each with its separate staff of judges, were dispatching the several classes of business that came before them; then as now the system of itinerant judicature embodied in the courts of assize was in full operation. To a somewhat later day, however, must be assigned the full development of the equitable jurisdiction of the chancellor. But in attempting to establish an identity between the outward form of the constitution as it appeared in Edward's day and as it appears in our own, the fact must be borne steadily in mind that hidden inner changes have for centuries been going on which have completely revolutionized its practical working. These changes have taken place as certain parts of the ancient machinery which were once potent have become antiquated and obsolete, and as certain other parts, which were once undeveloped and insignificant, have grown into. overshadowing importance. The changes which have thus. taken place in this ever-altering constitution have been happily illustrated by likening it to "an old man who still wears with attached fondness clothes in the fashion of his youth: what you see of him is the same; what you do not see is wholly altered." This great transformation which without making any change in its outward form has thus taken place in the internal mechanism of the English constitution, has been brought about by the silent migration of all the real powers of government from the king and the nobles to the main body of the people. The agent employed by the nation to bring about this result was the parliament, whose mediæval growth will be traced in the following chapters.

BOOK III.

THE GROWTH AND DECLINE OF PARLIAMENT.

Place of the

English parliament in the his stitutions.

tory of in

CHAPTER I.

HISTORY OF PARLIAMENT FROM EDWARD I. TO HENRY IV.

I. IN the gorgeous language of Burke, the "Parliament of Great Britain sits at the head of her extensive empire in two capacities. One, as the local legislature of this island, providing for all things at home immediately, and by no other instrument than the executive power. The other, and I think her nobler capacity, is what I call her imperial character; in which, as from the throne of heaven, she superintends all the several inferior legislatures, and guides and controls them all without annihilating any." A third and higher capacity still in which the English parliament may be viewed is that in which it stands forth as the accepted political model after which have been fashioned the several systems of popular government which now exist throughout the world. In this last and highest capacity its position is not more than a cenRepresen- tury old. The political systems of all the Teutonic nations, as they appear to us when written history begins, contained Teutonic, the germs of the representative principle, and in every one of the modern European states that have arisen out of the settlements made by the Teutonic nations on Roman soil a serious attempt has at some time been made in the direction of representative government. The remarkable fact is that in every continental state in which such an attempt was made, it ended at last in failure and disappointment. By the sixteenth century nearly every effort in the direction of repre1 Speech on American taxation, April 19, 1774. See Burke's Works, 4th ed., vol. ii. p. 75.

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sentative government upon the continent of Europe had come to an end. In England only among the Teutonic nations did It survives in England the representative system survive; in England only has the only among representative principle — which has been called "a Teutonic the Teuinvention" been able to maintain a continuous existence. tions. In this way the English nation has been able to hand down the representative principle from the barbarian epoch to modern times; in this way England has become the "mother of parliaments," the teacher of the science of representative government to all the world. Since the beginning of the French Revolution nearly all of the states of continental Europe have organized national assemblies after the model of the English parliament in a spirit of conscious imitation.1 But the typical English national assembly, embodying what English biis generally known as the bicameral system, was not copied into the continental European constitutions until it had first reproduced been reproduced in a modified form by the founders of the lish states federal republic of the United States. In the several colonial commonwealths founded by English settlers upon American soil, the typical English national assembly reappeared in an embryonic form as the predestined product of a natural process of reproduction.2 These assemblies "were not formally instituted, but grew up by themselves, because it was in the nature of Englishmen to assemble."3 A graphic statement of this fact may be found in the words of a writer upon our colonial history who tells us that in "this year (1619) a House of Burgesses broke out in Virginia." 4 When the colonial commonwealths in America severed the tie of political dependence which bound them to the mother country, and rose to the full stature of sovereign states, they, with a single exception, organized their several legislatures after the ancient model as it existed in the insular system. And the framers of the federal constitution of 1787, abandoning the original idea of a federal assembly consisting of a single chamber, adopted the English system of two chambers in the form in which that system had reappeared in the several states.5

1 For the authorities upon this subject, see above, p. 14.

2 See above, p. 15.
8 Seeley, The Expansion of England,

4 These are the words of Hutchinson quoted by Prof. Seeley, Ibid., p. 67.

6 See above, pp. 44, 45, 71.

and then in Thus rendered popular by its successful reproduction in the most of the American constitutions, state and federal, the "British politcontinental ical model was followed by France, by Spain and Portugal,

states of

Europe.

Continuity

of the his

tory of the

English parliament.

and by Holland and Belgium, combined in the kingdom of the Netherlands; and after a long interval by Germany, Italy, and Austria." To the student of the "science of politics the typical English national assembly, therefore, appears not simply as the local legislature of the United Kingdom, nor even as the imperial parliament of the British Empire, but higher still, as the accepted model of popular government throughout the world.

2. To the mere student of the English constitution the English parliament appears only in the two aspects in which Burke has presented it. Viewed in these aspects, it is allimportant to grasp the persistency of its growth, — the unbroken continuity of its historical development. The history of the English parliament is coextensive with the history of the English nation. From the time when the several branches of the "English kin" grouped together in the heptarchic kingdoms were drawn together under the sway of a single royal house, the united nation has never been without a national assembly. In its progress through the centuries such assembly has, it is true, passed through a long process of change and of growth; it has taken on new forms and new The primi- names; and yet in all these changing phases of growth the al assembly personal identity of the primitive assembly has never been survives as lost; the constitutional historian can clearly explain how it

tive nation

the house of lords.

still survives in the corporate person of the house of lords. Although the existence of the house of commons, which has grown up alongside of the older assembly, cannot be traced back farther than the thirteenth century, still the system of representation imbedded in the local, self-governing communities out of which the younger body grew-can be traced the product back to the very earliest times. As surely as the house of resentative lords is the lineal successor of the witan, the house of comprinciple imbedded

House of

commons

of the rep

in the organizations of the

shires and towns.

mons is the product of the representative principle imbedded from the beginning in the organization of the shires and towns. In order to understand how the two distinct elements, equally ancient, which enter into the composition of

1 Sir Henry Maine, Popular Government, p. 13.

stages of transition.

the two houses, were at different periods of time worked into the constitution of the national assembly, it is necessary to constantly bear in mind the two great stages of transition Two great or growth through which the Old-English witan was transformed into the feudal councils of the Norman and Angevin reigns, and through which these councils were in their turn transformed into the parliaments of Edward I.

the witen

At an earlier stage of this work an examination was made Historical into the historical origin of the witan, whether considered as origin of the supreme council of a single heptarchic state, or as the agemot. supreme council of the whole English nation when finally. united in a single consolidated kingdom.1 One of the leading objects of that examination was to explain the process through which the primitive national assembly or folkmoot, in which every freeman had his place, gradually shrank up into a narrow aristocratic body composed of the magnates only. Such was the historical origin and such the political structure of the witenagemot of the Old-English commonwealth in which all grave matters were discussed, and with whose advice and consent were performed all important acts which the king could authorize.

survives the

Conquest.

After the coming of William the continuity of the old na- The witan tional assembly went on unbroken; the witan remained, as before, the national council of the king; and during William's reign it retained much of its earlier character. Even the name witan goes on in English as long as the Chronicle continues, and the new Latin name of magnum concilium which grows up by its side is simply a translation of mycel gemót. Of the constitution of the witan, either before or after the Conquest, we have no direct or formal account, but the highest authorities agree in the conclusion that on all ordinary occasions the witan was a comparatively small gathering of great men, while on extraordinary occasions the assembly was sometimes reinforced by large popular bodies from every part of the kingdom. What were the qualifications necessary to bestow the right of membership in the great council, during the Norman reigns, cannot be definitely ascertained; not until the reign of Henry II. can it be confidently maintained that every tenant-in-chief of the crown was a member of the 1 See above, pp. 147, 148, 183, 184.

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