the law ment. assembly, with power to supervise and control the entire system of political administration, was organized out of the ranks of the three estates, on the one hand, and a permanent system of law courts, with power to control nearly the entire system of legal administration, was organized out of the continual council, on the other. The charters declared the rights growth of of the nation as against the crown; the law courts and the courts and parliament ultimately secured their enforcement. While the the parlia growth of the law courts gradually drew into fixed tribunals the adjudication of the mass of judicial business which had been originally dispatched by the king in council, the growth of parliament gradually drew to the national assembly the vir tual control of the legislative, taxative, fiscal, and political business of the kingdom. By this double process of subtraction was vastly reduced, during the three centuries that followed the Conquest, the sum of governmental power originally vested in the monarchy as organized under the Norman and early Angevin kings. supremacy The completion of the Norman Conquest finally established The rule or throughout the realm the supremacy of the central govern- of law ment; the growth out of that government of a system of law courts which everywhere enforced a uniform rule of law against all classes and conditions of men finally established the principle generally known as the rule or supremacy of law, which has ever been the special characteristic of the English constitutional system. Henry II. really initiated the "rule of law,"1 when he instituted the policy which for the first time reduced all classes of men to a state of legal equality under a uniform judicial system. This principle of the supremacy of law has been so expands to embrace every officer of the crown, from the prime m down to a petty constable or tax collector, all of whom are liable for damages in their personal capacity for official acts done in excess of lawful authority,2a liability which cannot be diminished by the plea of obedience to the commands of the sovereign. In the weighty words of 1 See Stubbs, Select Charters, p. 21, and also Const. Hist., vol. i. p. 284. 2 As to the application of the principle in particular cases, see Mostyn v. Fabregas, Cowp. 161; Musgrave v. Pulido, 5 App. Cas. 102; Governor Wall's Case, 28 St. Tr. 51; Entick v. Carring ton, 19 St. Tr. 1030; Phillips v. Eyre, 8 The subordination of the sovereign Lieber: "The guarantee of the supremacy of the law leads to a principle which, so far as I know, it has never been attempted to transplant from the soil inhabited by Anglican people, and which, nevertheless, has been, in our system of liberty, the natural production of a thorough government of law as contra-distinguished to a government of functionaries." 1 The presence of this principle, which renders every man, whatever his rank or office, subject to the ordinary law of the land as administered in the ordinary tribunals, has ever made impossible in the English legal system anything corresponding to the "administrative law" (droit administratif2) or to the "administrative tribunals" (tribunaux administratifs), of France, where the servants of the state have been to a great extent protected from the ordinary law of the land by being subject for their official acts only to a system of official law and the sov- administered by official bodies. While the growth of the law parliament, courts and the centralization of justice thus finally established the rule or supremacy of law in England, the growth of the ciples of the estate system finally established the sovereignty of parliament. These two overshadowing principles, the supremacy of law and the sovereignty of parliament, — which dominate the English constitution, and which upon a superficial view appear to be antagonistic, really stand to each other in a very different relation. As Mr. Dicey has well expressed it: "The sovereignty of parliament, as contrasted with other forms of sovereign power, favors the supremacy of the law, whilst the predominance of rigid legality throughout our institutions evokes the exercise, and thus increases the authority, of parliamentary sovereignty." 3 ereignty of the dominant prin English constitu tion. In the first chapter devoted to the growth of parliament, ad; car par la ley il même et toutes ses with droit administratif, see Dicey, The Law of the Const., ch. xii., in which the repugnance of the latter to all English ideas is fully explained. Tocqueville was quick to recognize the absence of anything answering to droit ad 454 Civil Liberty and Self-Government, ministratif in the Constitution of the United States. See Euvres Complètes, vii. p. 66. 8 Law of the Const., p. 334. See ch. xiii., entitled "Relation between parliamentary sovereignty and the rule of law." 4 Vol. i. pp. 428-514. the process was drawn out in some detail through which the When parliamentary assembly of estates during the fourteenth century after sovereignty drawing to itself the exclusive right to authorize taxation and reached its full growth. legislation, to supervise and control the royal administration, and to impeach and punish ministers guilty of misconduct reached the limit of its growth, when, in the presence of a great emergency, it not only deposed the ruling sovereign, but elected in his stead another member of the royal house whom it deemed more competent to govern. When, through the exercise of this ultimate power, parliament transferred the crown to the house of Lancaster, its sovereignty had reached its full growth. During the period of Lancastrian rule, no new powers are added; nothing, in fact, transpires during that period more important than the settlement of the forms of parliamentary procedure, and the assertion and definition of privileges which belong to parliament as a whole, or to the respective houses of which it is composed, or to its individual members.1 right of par authorize taxation : Foremost among the sovereign attributes which parliament Exclusive thus drew to itself during the first period of its ascendency liament to stands the exclusive right to authorize taxation, including both direct taxes and the customs revenue. In order that the difficult history of this all-important right may be kept steadily in view, an outline will be drawn of its development during the four centuries which intervene between the coming of William the Norman and the accession of the house of Tudor.2 The fact has already been emphasized that William, as a national king, rigorously exacted, under the authority of the old system, every kind of revenue, ordinary and extraordinary, that had ever belonged to any of his English predecessors. In the early days of the Old-English commonwealth, taxation as now Old-Engunderstood did not exist; the revenues out of which were maintained the royal state and dignity, the king derived from his private estates in land, from the use of the royal demesne, from certain dues in the nature of rents from the holders of folkland, from fines levied in the law courts to the king's use, from tolls, markets, and ports, from heriots assessed upon the estates of the king's special dependents, and from escheats 1 Vol. i. pp. 518–535. complete, I have been forced to repeat 2 In order to make this outline at all much that has been said already. lish taxes supple the new feu and forfeitures. Not until the period of the last Danish invasion did it become necessary for the king and the witan to impose a general tax for the public service, — the tax known as the Danegeld, which was levied not only for the purpose of buying off the invaders but also for the raising of fleets.2 With the imposition of the Danegeld, which was a land-tax imposed upon the hide as a unit of assessment, the history of English taxation really begins. It seems to be clear that after the Conquest the Danegeld or land-tax assumed the form of ordinary revenue, and was collected by the sheriffs as a part of the ferm or farm of the shire. In the case of the towns, to which the reckoning by hides could not be applied, the Danegeld or hidage was probably compounded for, and such composition represents no doubt the later talliage. In the ninth year of Henry II. the Danegeld as such finally disappeared from the Rolls, but only to reappear as aid or hidage, and in the reign of Richard I. as carucage.5 Under all these names -whether as Danegeld, aid, or hidage, carcucage, or, in the case of the towns, talliage - the Old-English land-tax, originally imposed by Æthelred on the hide, can be surely distinguished. The sum of fiscal rights which thus accrued to William as mented by a national king was greatly augmented in the reigns of his dal taxes; successors by the feudal incidents which resulted from the position of the king as supreme landlord. The conclusion is now established that the development of military tenures in England was gradual, and that the transition from the military system by the thegn's service to the new system by knightservice was also gradual. While William did not directly introduce military tenures as afterwards understood, the effect of his vast confiscations and regrants was to firmly establish the principle that the king was the supreme landlord, and that all lands were held by grant mediately or immediately of him. As soon, then, as the idea gained ground that the military service due from the landowner was due to the king, not as 1 Vol. i. p. 182. 2 Vol. i. pp. 186, 187. 8 See Dowell, Hist. of Taxation, vol. i. ch. v., "Danegeld and carucage." 4 Vol. i. pp. 293, 297. "The cities and towns not within the scope of the hidage paid by way of auxilium or aid; and these auxilia, at first irregu- 3 Vol. i. pp. 293, 294. head of the state, but as lord, the conception of feudal tenure became complete. The new military service which thus arose out of the development of tenures brought about a departure from the old custom which imposed the equipment of one fully armed man upon every five hides of land. Finally the older system based upon the hide was gradually superseded by a new division of the land into knights' fees, and by the fixing of the knight's fee to a particular amount of land. Under the new arrangement, which was certainly not completed before the reign of Henry II., the specific obligation was imposed upon each knight's fee to furnish a fully armed horseman to serve at his own expense for forty days in the year.1 This duty of military service was the substantive duty due from the tenant in chivalry to his lord; the lord's right to aids, reliefs, wardships, marriages, alienations, and escheats were mere incidents. Such was the general character of the revenue which accrued to the Norman kings as feudal lords, as an addition or supplement to the taxes and dues which came to them by virtue of the ancient constitution. In the fourth year of Henry II. a serious change was made in the feudal revenue by the institution of scutage or shield-money, a pecuniary compensation in lieu of military service. Those tenants of the crown who did not desire to go to the war against Toulouse were allowed to pay two marks on the knight's fee.2 - The following summary may now be made: at this point in hidage and Henry's reign-leaving the receipts from the customs out of the great view all taxation fell upon the land, and consisted (1) of the land-taxesancient customary dues, and the tax on the hide, survivals of the Old-English system, and (2) of the feudal incidents, and the scutage, or tax on the knight's fee, - products of the new system of military tenures. The two great burdens on land which thus stand prominently forth are the ancient tax on the hide, whether known as aid, hidage, carucage, or, in case of the town, talliage, and the new feudal tax on the knight's fee known as scutage. And here the vitally important fact must be kept steadily in view that the knight's fee superseded the hide as the unit of assessment only so far as the barons and knights were concerned. The two taxes affected two distinct classes of landowners: the scutage was the tax assessed 1 Vol. i. pp. 294–296. 2 Vol. i. pp. 283, 284. |