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Freeman Edward Augustus
The Growth of the English Constitution

Into the history of the stages by which this most remarkable state of things has been brought about I do not intend here to enter. The code of our unwritten Constitution has, like all other English things, grown up bit by bit, and, for the most part, silently and without any acknowledged author. Yet some stages of the developement are easily pointed out, and they make important landmarks. The beginning may be placed in the reign of William the Third, when we first find anything at all like a Ministry in the modern sense. Up to that time the servants of the Crown had been servants of the Crown, each man in the personal discharge of his own office. The holder of each office owed faithful service to the Crown, and he was withal responsible to the Law; but he stood in no special fellowship towards the holder of any other office. Provided he discharged his own duties, nothing hindered him from being the personal or political enemy of any of his fellow-servants. It was William who first saw that, if the King’s government was to be carried on, there must be at least a general agreement of opinions and aims among the King’s chief agents in his government¹⁴⁰. From this beginning a system has gradually grown up which binds the chief officers of the Crown to work together in at least outward harmony, to undertake the defence of one another, and on vital points to stand and fall together. Another important stage happened in much later times, when the King ceased to take a share in person in the deliberations of his Cabinet. And I may mark a change in language which has happened within my own memory, and which, like other changes of language, is certainly not without its meaning. We now familiarly speak, in Parliament and out of Parliament, of the body of Ministers actually in power, the body known to the Constitution but wholly unknown to the Law, by the name of “the Government.” We speak of “Mr. Gladstone’s Government” or “Mr. Disraeli’s Government.” I can myself remember the time when such a form of words was unknown, when “Government” still meant “Government by King, Lords, and Commons,” and when the body of men who acted as the King’s immediate advisers were spoken of as “Ministers” or “the Ministry”¹⁴¹.

This kind of silent, I might say stealthy, growth, has, without the help of any legislative enactment, produced that unwritten and conventional code of political rules which we speak of as the Constitution. This process I have spoken of as being characteristic of the days since the Revolution of 1688, as distinguished from earlier times. And so it undoubtedly is. At no earlier time have so many important changes in constitutional doctrine and practice won universal acceptance without being recorded in any written enactment. Yet this tendency of later times is, after all, only a further developement of a tendency which was at work from the beginning. It is simply another application of the Englishman’s love of precedent. The growth of the unwritten Constitution has much in common with the earlier growth of the unwritten Common Law. I have shown in earlier chapters that some of the most important principles of our earlier Constitution were established silently and by the power of precedent, without resting on any known written enactment. If we cannot show any Act of Parliament determining the relations in which the members of the Cabinet stand to the Crown, to the House of Commons, and to one another, neither can we show the Act of Parliament which decreed, in opposition to the practice of all other nations, that the children of the hereditary Peer should be simple Commoners. The real difference is that, in more settled times, when Law was fully supreme, it was found that many important practical changes might be made without formal changes in the Law. It was also found that there is a large class of political subjects which can be better dealt with in this way of tacit understandings than they can be in the shape of a formal enactment by Law. We practically understand what is meant by Ministers having or not having the confidence of the House of Commons; we practically recognise the cases in which, as not having the confidence of the House, they ought to resign office and the cases in which they may fairly appeal to the country by a dissolution of Parliament. But it would be utterly impossible to define such cases beforehand in the terms of an Act of Parliament. Or again, the Speaker of the House of Commons is an officer known to the Law. The Leader of the House of Commons is a person as well known to the House and the country, his functions are as well understood, as those of the Speaker himself. But of the Leader of the House of Commons the Law knows nothing. It would be hopeless to seek to define his duties in any legal form, and the House itself has, before now, shrunk from recognising the existence of such a person in any shape of which a Court of Law could take notice¹⁴².

During a time then which is now not very far short of two hundred years, the silent and extra-legal growth of our conventional Constitution has been at least as important as the actual changes in our written Law. With regard to these last, the point on which I wish chiefly to dwell is the way in which not a few pieces of modern legislation have been – whether wittingly or unwittingly I do not profess to know – a return to the simpler principles of our oldest constitution. I trust to show that, in many important points, we have cast aside the legal subtleties which grew up from the thirteenth century to the seventeenth, and that we have gone back to the plain common sense of the eleventh or tenth, and of times far earlier still. In those ancient times we had already laws, but we had as yet no lawyers. We hear in early times of men who were versed above others in the laws of the land; but such special knowledge is spoken of as the attribute of age or of experience in public business, not as the private possession of a professional class¹⁴³. The class of professional lawyers grew up along with the growth of a more complicated and technical jurisprudence under our Norman and Angevin Kings. Now I mean no disrespect to a profession which in our present artificial state of society we certainly cannot do without, but there can be no kind of doubt that lawyers’ interpretations and lawyers’ ways of looking at things have done no small mischief, not only to the true understanding of our history but to the actual course of our history itself. The lawyer’s tendency is to carry to an unreasonable extent that English love of precedent which, within reasonable bounds, is one of our most precious safeguards. His virtue is that of acute and logical inference from given premisses; the premisses themselves he is commonly satisfied to take without examination from those who have gone before him. It is often wonderful to see the amazing ingenuity with which lawyers have piled together inference upon inference, starting from some purely arbitrary assumption of their own. Each stage of the argument, taken by itself, is absolutely unanswerable; the objection must be taken earlier, before the argument begins. The argument is perfect, if we only admit the premisses; the only unlucky thing is that the premisses will constantly be found to be historically worthless. Add to this that the natural tendency of the legal mind is to conservatism and deference to authority. This will always be the case, even with thoroughly honest men in an age when honesty is no longer dangerous. But this tendency will have tenfold force in times when an honest setting forth of the Law might expose its author to the disfavour of an arbitrary government. We shall therefore find that the premisses from which lawyers’ arguments have started, but which historical study shows to be unsound, are commonly premisses devised in favour of the prerogative of the Crown, not in favour of the rights of the people. Indeed the whole ideal conception of the Sovereign, as one, personally at least, above the Law, as one personally irresponsible and incapable of doing wrong, the whole conception of the Sovereign as the sole fountain of all honour, as the original grantor of all property, as the source from which all authority of every kind issues in the first instance, is purely a lawyer’s conception, and rests upon no ground whatever in the records of our early history¹⁴⁴. In later times indeed the evil has largely corrected itself; the growth of our unwritten Constitution under the hands of statesmen has done much practically to get rid of these slavish devices of lawyers. The personal irresponsibility of the Sovereign becomes practically harmless when the powers of the Crown are really exercised by Ministers who act under a twofold responsibility, both to the written Law and to the unwritten Constitution. Yet even now small cases of hardship sometimes happen in which some traditional maxim of lawyers, some device devised in favour of the prerogative of the Crown, stands in the way of the perfectly equal administration of justice. But in several important cases the lawgiver has directly stepped in to wipe out the inventions of the lawyer, and modern Acts of Parliament have brought things back to the simpler principles of our earliest forefathers. I will wind up my sketch of our constitutional history by pointing out several cases in which this happy result has taken place.

For many ages it was a legal doctrine universally received that Parliament at once expired at the death of the reigning King. The argument by which the lawyers reached this conclusion is, like most of their arguments, altogether unanswerable, provided only we admit their premisses. According to the lawyers’ conception, whatever might be the powers of Parliament when it actually came together, however much the King might be bound to act by its advice, consent, and authority, the Parliament itself did nevertheless derive its being from the authority of the King. Parliament was summoned by the King’s writ. The King might indeed be bound to issue the writs for its summons; still it was from the King’s writ that the Parliament actually derived its being and its powers. By another legal assumption, the force of the King’s writ was held to last only during the lifetime of the King who issued it. It followed therefore that Parliament, summoned by the King’s writ and deriving its authority from the King’s writ, was dissolved ipso facto by the death of the King who summoned it. Once admit the assumptions from which this reasoning starts, and the reasoning itself is perfect. But what is the worth of the assumptions? Let us see how this mass of legal subtlety would have looked in the eyes of a man of the eleventh century, in the eyes of a man who had borne his part in the elections of Eadward and of Harold, and who had raised his voice and clashed his arms in the great Assembly which restored Godwine to his lands and honours¹⁴⁵. To such an one the doctrine that a national Assembly could be gathered together only by the King’s writ, and the consequent doctrine that the national Assembly ceased to exist when the breath went out of the King’s body, would have seemed like the babble of a madman. When was the gathering together of the national Assembly more needed, when was it called upon to exercise higher and more inherent powers, than when the throne was actually vacant, and when the Assembly of the nation came together to determine who should fill it? And how could the Assembly be gathered together by the King’s writ when there was no King in the land to issue a writ? The King’s writ would be, in his eyes, a convenient way in ordinary times for fixing a time and place for the meetings of the Assembly, but it would be nothing more. It would be in no sense the source of the powers of the Assembly, powers which he would look upon as derived from the simple fact that the Assembly was itself the nation. In his eyes it was not the King who created the Assembly, but the Assembly which created the King. The doctrine that the King never dies, that the throne never can be vacant, would have seemed gibberish to one who had seen the throne vacant and had borne his part in filling it. The doctrine that the King can do no wrong would have seemed no less gibberish to one who knew that he might possibly be called on to bear his part in deposing a King. Three of the most famous Assemblies in English history have ever been puzzles in the eyes of mere legal interpreters; to the man of the eleventh century they would have seemed to be perfectly legal and regular, alike in their constitution and in their acts. The Assembly which in 1399 deposed Richard the Second and elected Henry the Fourth, though summoned by the King’s writ, was not opened by his commission, and it seems to have shrunk from taking the name of Parliament, and to have acted only by the name of the Estates of the Realm. As an Assembly which was in some sort irregular, it seems to have shrunk from going through the usual forms of a regular Parliament, and, though it did in the end exercise the greatest of parliamentary powers, it seems to have been afraid to look its own act in the face. Richard was deposed, but his deposition was mixed up with a resignation of the Crown on his own part, and with a challenge of the Crown on the part of Henry. Then, as a demise of the Crown had taken place, it was held that the same legal consequences followed as if that demise had been caused by the death of the King. It was held that the Parliament which had been summoned by the writ of King Richard ceased to exist when Richard ceased to be King, and, as it was not thought good to summon a new Parliament, the same Parliament was, by a legal fiction, summoned again under the writ of King Henry¹⁴⁶. All these doubts and difficulties, all these subtleties of lawyers, would have been wholly unintelligible to a man of the eleventh century. In his eyes the Witan would have come together, whether by King Richard’s writ or not it mattered little; having come together, they had done the two greatest of national acts by deposing one King and choosing another; having done this, if there was any other national business to be done, there was no reason on earth why they should not go on and do it. Take again another Assembly of equal importance in our history, the Convention which voted the recall – that is, in truth, the election – of Charles the Second. That Assembly succeeded a Parliament which had ventured on a still stronger step than deposing a King, that of sending a reigning King to trial and execution¹⁴⁷. It was not held in 1649 that the Long Parliament came to an end when the axe fell on the neck of Charles the First, but the doctrine that it ought to have done so was not forgotten eleven years later¹⁴⁸. And the Convention which was elected, as freely as any Parliament ever was elected¹⁴⁹, in answer to the vote of the expiring Long Parliament, was, because it was so elected and not in answer to the King’s writ, looked on as an Assembly of doubtful validity. It acted as a Parliament; it restored the King; it granted him a revenue; and it did a more wonderful work than all, for it created itself, and passed an Act declaring itself to be a lawful Parliament¹⁵⁰. Yet, after all, it was deemed safer that all the Acts of the Convention Parliament should be confirmed by its successor which was summoned in due form by the King’s writ. These fantastic subtleties, subtleties worthy of the kindred device by which the first year of Charles’s reign was called the twelfth, would again have been wholly unintelligible to our man of the eleventh century. He might have remembered that the Assembly which restored Æthelred – which restored him on conditions, while Charles was restored without conditions – did not scruple to go on and pass a series of the most important decrees that were passed in any of our early Assemblies¹⁵¹. Once more again, the Convention which deposed James and elected William, seemed, like that which deposed Richard and elected Henry, to doubt its own existence and to shrink from its own act. James was deposed; but the Assembly which deposed him ventured not to use the word, and, as an extorted abdication was deemed expedient in the case of Richard, so a constructive abdication was imagined in the case of James¹⁵². And the Assembly which elected William, like the Assembly which elected Henry and that which elected Charles, prolonged its own existence by the same transparent fiction of voting itself to be a lawful Parliament. Wise men held at the time that, at least in times of revolution, a Parliament might be called into being by some other means than that of the writ of a King. Yet it was deemed that some additional security was given to the existence of the Assembly and to the validity of its acts by this second exercise of the mysterious power of self-creation¹⁵³. Once more in the same reign the question was brought forward whether a Parliament summoned by the joint writ of William and Mary did not expire when Mary died and William reigned alone. This subtlety was suggested only to be contemptuously cast aside; yet it may be fairly doubted whether it was not worth at least as much as any of the kindred subtleties which on the three earlier occasions were deemed of such vast importance¹⁵⁴. The untutored wisdom of Englishmen, in the days when we had laws but when those laws had not yet been made the sport of the subtleties of lawyers, would have seen as little force in the difficulties which it was deemed necessary to get over by solemn parliamentary enactments as in the difficulty which neither House of Parliament thought worthy of any serious discussion.

And now what has modern legislation done towards getting rid of all these pettifogging devices, and towards bringing us back to the simpler doctrines of our forefathers? Parliament is still summoned by the writ of the Sovereign; in settled times no other way of bringing it together can be so convenient. But, if times of revolution should ever come again, we, who do even our revolutions according to precedent, shall probably have learned something from the revolutionary precedents of 1399, of 1660, and of 1688. In each later case the subtlety is one degree less subtle than in the former. The Estates of the Realm which deposed Richard were changed into a Parliament of Henry by the transparent fiction of sending out writs which were not, and could not be, followed by any real elections. The Convention which recalled or elected Charles the Second did indeed turn itself into a Parliament, but it was deemed needful that its acts should be confirmed by another Parliament. The acts of the Convention of 1688 were not deemed to need any such confirmation. Each of these differences marks a stage in the return to the doctrine of common sense, that, convenient as it is in all ordinary times that Parliament should be summoned by the writ of the Sovereign, yet it is not from that summons, but from the choice of the people, that Parliament derives its real being and its inherent powers. As for the other end of the lawyers’ doctrine, the inference that Parliament is ipso facto dissolved by a demise of the Crown, from that a more rational legislation has set us free altogether. Though modern Parliaments are no longer called on to elect Kings, yet experience and common sense have taught us that the time when the Sovereign is changed is exactly the time when the Great Council of the Nation ought to be in full life and activity. By a statute only a few years later than the raising of the question whether a Parliament of William and Mary did or did not expire by the death of Mary, all such subtleties were swept away. It was now deemed so needful that the new Sovereign should have a Parliament ready to act with him, that it became the Law that the Parliament which was in being at the time of a demise of the Crown should remain in being for six months, unless specially dissolved by the new Sovereign. A later statute went further still, and provided that, if a demise of the Crown should take place during the short interval when there is no Parliament in being, the last Parliament should ipso facto revive, and should continue in being, unless a second time dissolved, for six months more. Thus the event which, by the perverted ingenuity of lawyers, was held to have the power of destroying a Parliament, was, by the wisdom of later legislation, clothed with the power of calling a Parliament into being. Lastly, in our own days, all traces of the lawyers’ superstition have been swept away, and the demise of the Crown now in no way affects the duration of the existing Parliament¹⁵⁵. Truly this is a case where the letter killeth and the spirit giveth life. The doctrine which had been inferred by unanswerable logic from an utterly worthless premiss has been cast aside in favour of the dictate of common sense. We have learned that the moment when the State has lost its head is the last moment which we ought to choose for depriving it of its body also.

Here then is a notable instance of the way in which the latest legislation of England has fallen back upon the principles of the earliest. Here is a point on which the eleventh century and the nineteenth are of one mind, and on which the fanciful scruples of the fourteenth and the seventeenth centuries are no longer listened to. Let us take another instance. In the old Teutonic Constitution, just as in the old Roman Constitution, large tracts of land were the property of the State, the ager publicus of Rome, the folkland of England. As the royal power grew, as the King came to be more and more looked on as the impersonation of the nation, the land of the people came to be more and more looked on as the land of the King, and the folkland of our Old-English charters gradually changed into the Terra Regis of Domesday¹⁵⁶. Like other changes of the kind, the Norman Conquest only strengthened and brought to its full effect a tendency which was already at work; but there can be no doubt that, down to the Norman Conquest, the King at least went through the form of consulting his Witan, before he alienated the land of the people to become the possession of an individual – in Old-English phrase, before he turned folkland into bookland¹⁵⁷. After the Norman Conquest we hear no more of the land of the people; it has become the land of the King, to be dealt with according to the King’s personal pleasure. From the days of the first William to those of the Third, the land which had once been the land of the people was dealt with without any reference to the will of the people. Under a conscientious King it might be applied to the real service of the State, or bestowed as the reward of really faithful servants of the State. Under an unconscientious King it might be squandered broadcast among his minions or his mistresses¹⁵⁸. Now this wrong too is redressed. A custom as strong as law now requires that, at the beginning of each fresh reign, the Sovereign shall, not by an act of bounty but by an act of justice, give back to the nation the land which the nation lost so long ago. The royal demesnes are now handed over to be dealt with like the other revenues of the State, to be disposed of by Parliament for the public service¹⁵⁹. That is to say, the people have won back their own; the usurpation of the days of foreign rule has been swept away. We have in this case too gone back to the sound principles of our forefathers; the Terra Regis of the Norman has once more become the folkland of the days of our earliest freedom.

I will quote another case, a case in which the return from the fantasies of lawyers to the common sense of antiquity has been distinctly to the profit, if not of the abstraction called the Crown, yet certainly to that of its personal holder. As long as the folkland remained the land of the people, as long as our monarchy retained its ancient elective character, the King, like any other man, could inherit, purchase, bequeath, or otherwise dispose of, the lands which were his own private property as much as the lands of other men were theirs. We have the wills of several of our early Kings which show that a King was in this respect as free as any other man¹⁶⁰. But as the lawyers’ figment of hereditary right took root, as the other lawyers’ figment also took root by which the lands of the people were held to be at the personal disposal of the King, a third figment grew up, by which it was held that the person and the office of the King were so inseparably fused into one that any private estates which the King held before his accession to the throne became ipso facto part and parcel of the royal demesne. As long as the Crown remained an elective office, the injustice of such a rule would have made itself plain; it would have been at once seen to be as unreasonable as if it had been held that the private estates of a Bishop should merge in the estates of his see. As long as there was no certainty that the children or other heirs of the reigning King would ever succeed to his Crown, it would have been the height of injustice to deprive them in this way of their natural inheritance. The election of a King would have carried with it the confiscation of his private estate. But when the Crown was held to be hereditary, when the folkland was held to be Terra Regis, this hardship was no longer felt. The eldest son was provided for by his right of succession to the Crown, and the power of disposing of the Crown lands at pleasure gave the King the means of providing for his younger children. Still the doctrine was none the less unreasonable; it was a doctrine founded on no ground either of natural justice or of ancient law; it was a mere inference which had gradually grown up out of mere arbitrary theories about the King’s powers and prerogatives. And, as the old state of things gradually came back again, as men began to feel that the demesnes of the Crown were not the private possession of the reigning King, but were the true possession of the people – that is, as the Terra Regis again came back to its old state of folkland– it was felt to be unreasonable to shut out the Sovereign from a natural right which belonged to every one of his subjects. The land which, to put it in the mildest form, the King held in trust for the common service of the nation was now again employed to its proper use. It was therefore reasonable that a restriction which belonged to a past state of things should be swept away, and that Sovereigns who had given up an usurped power which they ought never to have held should be restored to the enjoyment of a natural right which ought never to have been taken from them. As our present Sovereign in so many other respects holds the place of Ælfred rather than the place of the Richards and Henries of later times, so she again holds the right which Ælfred held, of acquiring and disposing of private property like any other member of the nation¹⁶¹.

These examples are, I hope, enough to make out my case. In each of them modern legislation has swept away the arbitrary inferences of lawyers, and has gone back to those simpler principles which the untutored wisdom of our forefathers never thought of calling in question. I could easily make the list much longer. Every act which has restrained the arbitrary prerogative of the Crown, every act which has secured or increased either the powers of Parliament or the liberty of the subject, has been a return, sometimes to the letter, at all times to the spirit, of our earliest Law. But I would enlarge on one point only, the most important point of all, and a point in which we may at first sight seem, not to have come nearer, but to have gone away further from the principles of early times. I mean with regard to the succession to the Crown. The Crown was of old, as I have already said, elective. No man had a right to become King till he had been called to the kingly office by the choice of the Assembly of the nation. No man actually was King till he had been admitted to the kingly office by the consecration of the Church. The doctrines that the King never dies, that the throne never can be vacant, that there can be no interregnum, that the reign of the next heir begins the moment the reign of his predecessor is ended, are all figments of later times. No signs of such doctrines can be found at any time earlier than the accession of Edward the First¹⁶². The strong preference which in early times belonged to members of the kingly house, above all to the born son of a crowned King¹⁶³, gradually grew, under the influences which the Norman Conquest finally confirmed, into the doctrine of absolute hereditary right. That doctrine grew along with the general growth of the royal power; it grew as men gradually came to look on kingship as a possession held by a single man for his own profit, rather than as an office bestowed by the people for the common good of the realm. It might seem that, in this respect at least, we have not gone forward, but that we rather have gone back. For nothing is more certain than that the Crown is more strictly and undoubtedly hereditary now than it was in the days of Normans, Angevins, or Tudors. But a little thought will show that in this case also, we have not gone back but have gone forward. That is to say, we have gone forward by going back, by going back, in this case, not to the letter, but assuredly to the spirit of earlier times. The Crown is now more undoubtedly hereditary than it was in the fifteenth or sixteenth century; but this is because it is now hereditary by Law, because its powers are distinctly defined by Law. The will of the people, the source of all Law and of all power, has been exercised, not in the old form of personally choosing a King at every vacancy of the Crown, but by an equally lawful exercise of the national will, which has thought good to entail the Crown on a particular family.