its moral influence has contributed to a marked advance of the national spirit, and therefore of the national liberties. A few of the aspects of this advance deserve to be emphasized. The king, by granting the Charter in solemn form, admitted that he was not an absolute ruler; admitted that he had a master over him in the laws which he had often violated, but which he now swore to obey. Magna Carta has thus been truly said to enunciate and inaugurate "the reign of law" or "the rule of law" in the phrase made famous by Professor Dicey.

§ 9. The Charter as a "Turning-point"

It marks also the commencement of a new grouping of political forces in England; indeed, without such an arrangement the winning of the Charter would have been impossible. Throughout the reign of Richard I the old tacit understanding between the king and the lower classes had been endangered by the heavy drain of taxation; but the actual break-up of the old alliance only came in the crisis of John's reign. Henceforward can be traced a gradual change in the balance of parties in the commonwealth. No longer are crown and people united, in the name of law and order, against the baronage, standing for feudal disintegration. The mass of humble free men and the Church are for the moment in league with the barons, in the name of law and order, against the crown, recently become the chief law-breaker.

The possibility of the existence of such an alliance, even on a temporary basis, involved the adoption by its chief members of a new baronial policy. Hitherto each great baron had aimed at his own independence or aggrandizement, striving on the one hand to gain new franchises for himself, or to widen the scope of those he already had; and on the other to weaken the king and to keep him outside these franchises. This policy, which succeeded both in France and in Scotland, had before John's reign already failed signally in England, and the English barons now, on the whole, came to admit the hopelessness of renewing the struggle for feudal independence. They substituted for this ideal of an earlier age a more progressive policy. The king, whose interference they could no longer hope completely to shake off, must at least be taught to interfere justly and according to rule; he must walk only by law and custom, not by the caprices of his evil heart. The barons sought henceforward to control the royal power they could not exclude; they desired some determining share in

the National Councils, if they could no longer hope to create little nations of their own within the four corners of their fiefs. Magna Carta was the fruit of this new policy.

It has been often repeated, and with truth, that the Great Charter marks also a stage in the growth of national unity or nationality. Here, however, it is necessary to guard against exaggeration. It is merely one movement in a process, rather than a final achievement. We must somewhat discount, while still agreeing in the main with, statements which declare the Charter to be "the first documentary proof of the existence of a united English nation"; or with the often-quoted words of Dr. Stubbs, that "the Great Charter is the first great public act of the nation, after it has realized its own identity."

A united English nation, whether conscious or unconscious of its identity, cannot be said to have existed in 1215, except under several qualifications. The conception of "nationality," in the modern sense, is of comparatively recent origin, and requires that the lower as well as the higher classes should be comprehended within its bounds. Further, the coalition which wrested the Charter from the royal tyrant was essentially of a temporary nature, and quickly fell to pieces again. Even while the alliance continued, the interests of the various classes, as has been already shown, were far from identical. Political rights were treated as the monopoly of the few (as is evidenced by the retrograde provisions of chapter 14 for the composition of the commune concilium); and civil rights were far from universally distributed. The leaders of the "national" movement certainly gave no political rights to the despised villeins, who comprised more than threequarters of the entire population of England; while their civil rights were almost completely ignored in the provisions of the Charter.

Magna Carta undoubtedly marked one step, an important step, in the process by which England became a nation; but that step was neither the first nor yet the final one.

BIBLIOGRAPHICAL NOTE

Pollock and Maitland,

Stubbs, Constitutional History, Vol. I, pp. 569 ff. History of English Law, Vol. I, pp. 171-172. Adams, A Political History of England, 1066-1216, chap. xxi; The Critical Period of English Constitutional History, in the American Historical Review, 1900, pp. 643 ff. Stubbs, Lectures on Early English History, chap. xx. Kate Norgate, John Lackland. Jenks, The Myth of Magna Carta, in the Independent Review, 1904, pp. 260 ff.

CHAPTER VI

THE ORIGIN OF PARLIAMENT

THE attempts of the barons to control the actions of the crown by the definition of royal rights in Magna Carta were far from successful. Likewise the efforts of the barons to establish an oligarchy, such as that defined in the Provisions of Oxford and Westminster in the reign of Henry III, failed to secure satisfactory and stable government. The expenses of royal government were steadily increasing, the income under feudal prerogatives was inadequate as a source of revenue, and the amount of movable property as contrasted with landed property was increasing with the development of trading and industrial classes. In view of the stout resistance of the barons to arbitrary exactions, it appeared inevitable that the king, in order to reach the various sources of revenue within his realm, would have to call to his council the representatives of the dominant classes. One must say dominant classes, for, as we have seen, the peasants of England, for political purposes, were practically non-existent. The best short account of just how the royal council was transformed into a representative assembly is given by Dr. Stubbs in his Select Charters, where the student will find all the documents illustrating the course of this development.

§ 1. The Elements of Constitutional Government1

The idea of constitutional government, defined by the measures of Edward I, and summed up in the legal meaning of the word parliament, implies four principles: first, the existence of a central or national assembly, a commune concilium regni;

1 Stubbs, Select Charters, pp. 36 ff. By permission of the Delegates of the Clarendon Press, Oxford.

second, the representation in that assembly of all classes of the people regularly summoned; third, the reality of the representation of the whole people, secured either by its presence in the council or by the free election of the persons who are to represent it or any portion of it; and fourth, the assembly so summoned and elected must possess definite powers of taxation, legislation, and general political deliberation. We will now trace very briefly the origin, growth, and combination of these.

82. The Early National Assembly

The commune concilium had existed from the earliest times, first, as the witenagemot, and afterwards as the court of the king's vassals, or, in a manner, as combining the characters of both. It had in neither stage been representative, in the modern meaning of the word. The witenagemot acted for the nation, but was not delegated or elected by it; the great council of the Norman kings included in theory all tenants-in-chief of the crown, but had no special provision for these to represent their under-tenants, or for the securing of the rights of any not personally present. The witenagemot possessed and exercised all the powers of a free council; the Norman court or parliament claiming the character of a witenagemot, if it possessed these rights in theory, did not exercise them. At no period, however, of our early history was the assembling of the national council dispensed with.

83. The Principle of Representation

The representation of all classes of the people is necessary for the complete organization of a national council, and that complete organization is legally constituted by summons to parliament. In this three principles are involved: the idea of representation, the idea of exhaustive representation, and the definite

summons.

The idea of representation was familiar to the English in the minor courts, the hundred-moot and the shire-moot. The reeve and four men represented the township in these assemblies; the twelve assessors of the sheriff represented the judicial opinion, sometimes the collective legal knowledge of the shire. At a later period the inquest by sworn recognitors, in civil suits, in the presentment of criminals, and in the assessment of real and personal property, represented the country, that is, the shire or hundred or borough, for whose business they were sworn to answer.

84. Classes of Persons Represented

The political constituents of the nation (exclusive of the king) -the three estates of the realm-are the clergy, the baronage, and the commons. A perfect national council must include all these: the baronage by personal attendance, the clergy and people by representation. The bishops, although their right to appear personally in the commune concilium is older than the introduction of the feudal principle on which the theory of baronage is based, have, by the definition of lawyers, been made to sink their character of witan in that of barons, amongst whom they may for our present purpose be included. The representation of the estates then implies the union in parliament of (1) the baronage, lay and clerical; (2) the lower clergy; and (3) the commons.

(1) The baronage, in its verbal meaning, includes all barones, that is, all homagers holding directly of the crown, but by successive changes, the progress of which is far from easy to fix chronologically, it has been limited, first, to all who possess a united corpus, or collection of knights' fees held under one title; secondly, to those who, possessing such a barony, are summoned by special writ; thirdly, to those who, whether entitled by such tenure or not, have received a special summons; and finally, to those who have become by creation or prescription entitled hereditarily to receive such a summons. The variations of dignity among the persons so summoned, represented by the names duke, marquis, earl, and viscount are of no constitutional significance. The baronial title of the bishops and mitred abbots originated in the second and third of the principles thus stated.

(2) The inferior clergy had immemorially their diocesan assemblies and their share in the provincial councils of the Church a share which would be as difficult to define as is that of the plebs or populus in the commune concilium regni, but which does not much affect constitutional history until the period of Magna Carta. At the beginning of the thirteenth century the doctrine was gaining ground that the taxpayer should have a voice in the bestowal of the tax; the legal position of the beneficed clergy had been long definitely settled; and the changes in the character of taxation took from them the immunities which they had earlier possessed and still persistently claimed.

The aids which John condescended to ask of the inferior clergy were not granted by assemblies, but collected by separate nego