of the Con I. IN the preceding volume the attempt was made to draw Summary out, as one unbroken story, that marvellous process of change tents of and of growth through which the English constitutional sys- vol. i. tem passed during the period intervening between the Teutonic conquest and settlement of Britain and the end of the fifteenth century. The first step consisted of a somewhat careful examination of the primitive Teutonic system of local self-governing communities as originally established in Britain, — the next of the process through which those communities became bound up in the seven or eight larger aggregates generally known as the heptarchic kingdoms, finally united, after a prolonged and bitter internal struggle for supremacy, under the permanent sway of the royal house of Wessex. The Old-English old-EngCommonwealth which thus finally emerged as the product of monwealth; a gradual process of aggregation was strongest in the cohesion and permanence of its local machinery, and weakest in the higher ranges of power, in its central or national organization. The national unity which grew up through the premature and imperfect concentration of powers around a single throne was continually strained and weakened by the counterforce of the provincial spirit, - a spirit which, at the critical moment, disabled the right arm of Harold and opened the way for the Norman Conquest. When the Norman came, he Norman brought with him the cohesive force which in the insular system had been wanting. He reorganized the central powers of the state, and, upon the Old-English system of local self-gov lish Com Conquest; fusion; erning communities as a substructure, he built up a system of central administration as a superstructure, and out of the fusion between the two has grown the modern constitution. This process of process of fusion involved no less than the adjustment of the compact and despotic system embodied in the Norman curia regis to the tenacious though less closely organized system of Old-English local freedom embodied in the township, the hundred, and the shire. The Norman administrative system was simply an incorporation of the new kingship to which the Conquest had given birth, a kingship which strove to concentrate all the great powers of the state in the person of the sovereign, who acted ordinarily through his continual council, from which emanated all the more important acts of government, whether administrative, legislative, judicial, fiscal, or political. The story has been told of how the grinding weight of the feudal monarchy as thus organized was wantonly applied, during the Norman and early Angevin reigns, to the oppression of all classes and conditions of men; and how, under the heel of the common oppression, the united nation, composed both of English and Norman elements, finally awoke to a sense of its oneness. In the spirit of resistance thus aroused, the struggle for struggle for the charters had its birth, a struggle in which the contending forces were the new kingship, on the one hand, and the nation marshalled in the ranks of the three estates, on the other. The history of the struggle was then continued down to the great day at Runnymede, when the monarchy and the three estates entered into a treaty or compact which, without attempting to wipe out the permanent effects of the Conquest as embodied in the system of central administration to which it had given birth, undertook to define how far such system should be permitted to abridge the immemorial freedom in the time to come. The fact was then emphasized that the great treaty of Runnymede marked the beginning, not the end of a conflict; that it embodied not a final statement of concessions to the nation from the crown, but rather a definite programme of reform, in which the nation resolved to persevere until it should be finally accepted by the crown as an irrevocable basis of government. The full fruit of the treaty of Runnymede was never finally secured to the nation until, under the lines which it defined, a representative national the char ters; treaty of Runnymede; 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 parliagrowth 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 expanded as to embrace every officer of the crown, from the prime minister 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 ton, 19 St. Tr. 1030; Phillips v. Eyre, L. R. 42 B. 225; Dicey, The Laws of the Const., pp. 173-190. 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 3 3 The subordination of the sovereign himself to the law is well expressed in the old saw of the Courts, "La ley est le plus haute inheritance, que le roy 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 administratif 2) 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 ereignty of 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. English 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 the dominant prin constitution. In the first chapter devoted to the growth of parliament, ad; car par la ley il même et toutes ses Civil Liberty and Self-Government, 2 As to the character of that system of law, see Aucoc, Conférences sur l'administration et le droit administratif (3d ed.); Vivien, Études Administratives; Boeuf, Droit Administratif (4th ed.). For a contrast of the rule of law 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 administratif 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. liamentary the process was drawn out in some detail through which the When parassembly 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 taxation: Foremost among the sovereign attributes which parliament Exclusive thus drew to itself during the first period of its ascendency lament to stands the exclusive right to authorize taxation, including both authorize 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 |