INTRODUCTION

When William, duke of the Normans, set up his tent on the battlefield of Hastings from which the Saxons had been driven beyond power to rally, one of the great transformations of history had begun. For what was decided in that one day's fight was not so much who should be king of that little island realm, then scarcely larger than the state of New York and much below the world's standard of advancement. Nor was the chief question at stake whether England should remain cut off from the ancient sources of civilization, and live out her history touching and touched by the larger currents of world affairs as little as her close relatives the Scandinavian states. The really great decision of that day was that a union should take place between two peoples that should awaken a new constitutional life of which neither alone seemed capable. Within a generation, quite as early as we can detect signs of the uniting of the two peoples, we find the beginnings of that new growth under a government which was an almost ideally complete absolutism, and from that day to this without a break that growth has gone on to ever larger results and to ever broadening influence upon the world. In the seventeenth century the line of progress divided into two branches, each developing a distinct type of government, but each drawing its special characteristics and all its life and power of growth from the main trunk.

One retained the office of king: the other in the simpler conditions of colonial life established republican government, and thus was created the most striking difference between

them. But if we compare their constitutions in detail, we find other marked differences in the working out of what are now in both branches democratic governments. To state in brief the side with which we are less familiar: In England the executive is not elected by the people but is in form appointed by the king: in reality he is selected from the leaders of the party which has the majority in the lower house of the national legislature. He is not chosen for a definite term but retains office so long as he can retain his majority in the house. The result is a very close union between the executive and legislative departments of government, so that the prime minister and his cabinet are really, as they have been called, a third house of the legislature.

In England the people exercise their power in government through their elected representatives in the legislature to a greater extent than in the United States, and the representatives assembled in the house of commons are the supreme authority in the state. The upper house, the house of lords, has a very limited power and must give way in the end on any measure which the house of commons is determined to carry. The same thing is even more completely true of the king, who is supposed even to have no opinion on any political question except that of the cabinet in office, and who never expresses an opinion except through his ministers. The house of commons also, as the supreme authority in the state, is the constitution making body, and every other authority is bound by an act of parliament, even though it changes fundamentally the powers or functions of any part of the state machinery. There is no written constitution, adopted by direct act of the people, and no document of any kind which lays out the different departments of government and defines their functions, powers, and limitations. The constitution is an unwritten body of custom and precedent, the result of unpremeditated growth; but certain statutes, constitutional in character, do exist which for the most part give sanction to

INTRODUCTION

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limitations which experience at some time proved it necessary to place upon the exercise of one power or another.

Though the house of commons appears from these facts to possess a power in the government of England far greater than is lodged in any one part of the American government, it is in practice more directly and immediately under popular control than any American legislature. The dependence of the cabinet on a majority in the house of commons makes the issue in an election general policy or specific measures rather than men and gives to it the character of a referendum. The fact also that the new parliament goes into session at once after an election makes the popular decision immediately effective. The progress of democracy during the last fifty years has also evolved very efficient methods of bringing public opinion to bear directly upon the members of the house, so efficient indeed that one may begin to question if the representative character of the member is not in danger of disappearing in the character of a mere delegate.

We may have before us then in very simple terms the problem of English constitutional history. It is to show how the absolute government of the eleventh century, which centred all power in the king and provided no way in which any will but his could be expressed, was gradually transformed into the democracy of today, in which the king has no will and the expressed opinion of the people controls all. It has to show also how more than two hundred years ago the way had been prepared for republican government of the people and by the people, and how the line of growth was then divided into two branches each leading to a result fundamentally similar to the other but differing from it in many superficial aspects. It is the story of a movement slowly beginning, slowly gathering momentum, until at last it becomes irresistible. It involves also an account of the institutions in which, in successive stages of the progress, the government of the state was embodied.

CHAPTER I

THE ANGLO-SAXON AGE:

The English constitution like the English nation and the English language was derived from a variety of sources. The territory which came in time to form the kingdom of England was occupied during the first thousand years of its known history by a succession of peoples who ruled it, or large portions of it, in turn and who might each be expected to leave behind a permanent legacy of law and institutions to later times. As a matter of fact they did not all do The first ruling race, the Celtic, made probably a large contribution to the blood of the future English nation, but to political and legal institutions practically nothing.

so.

The same thing is true of the Romans, so far as their occupation of the province of Britain is concerned. English constitutional history has been at one time or another strongly affected by Roman influences, but these influences were not felt at any one moment nor from a single source, and none of them began to act until centuries after the Roman occupation had ceased. From that occupation itself no influence is traceable upon institutions that are primarily political or legal. The highest authority upon the history of early English law has said: "The written dooms of our kings have been searched over and over again by men skilled in detecting the least shred of Roman law under the most barbaric disguise, and they have found nothing worthy of mention. That these dooms are the purest specimens of pure Germanic law has been the verdict of one scholar after another."

From the Romans their Teutonic successors in England did learn, either as a result of the occupation or from the