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the loyal fealty of sworn retainers. The head of this force, on whom its efficiency depended, was the high nobility. But the high nobility killed itself out. The great barons who adhered to the “Red Rose” or the “White Rose," or who fluctuated from one to the other, became poorer, fewer, and less potent every year. When the great struggle ended at Bosworth, a large part of the greatest combatants were gone. The restless, aspiring, rich barons, who made the civil war, were broken by it. Henry VII. attained a kingdom in which there was a Parliament to advise, but scarcely a Parliament to control.
The consultative government of the ante-Tudor period had little resemblance to some of the modern governments which French philosophers call by that name. The French Empire, I believe, calls itself so.
But its assemblies are symmetrical “shams.” They are elected by a universal suffrage, by the ballot, and in districts once marked out with an eye to equality, and still retaining a look of equality. But our English parliaments were unsymmetrical realities. They were elected anyhow; the sheriff had a considerable license in sending writs to boroughs, that is, he could in part pick its constituencies; and in each borough there was a rush and scramble for the franchise, so that the strongest local party got it, whether few or many. But in England at that time there was a great and distinct desire to know the opinion of the nation, because there was a real and close necessity. The nation was wanted to do something—to assist the sovereign in some war, to pay some old debt, to contribute its force and aid in the critical conjuncture of the time. It would not have suited the ante-Tudor kings to have had a fictitious assembly; they would have lost their sole feeler, their only instrument for discovering national opinion. Nor could they have manufactured such an assembly if they wished. The instrument in that behalf is the centralised executive, and there was then no préfet by whom the opinion of a rural locality could be made to order, and adjusted to suit the wishes of the capital. Looking at the mode of election a theorist would say that these parliaments were but “chance" collections of influential Englishmen. There would be many corrections and limitations to add to that statement if it were wanted to make it accurate, but the statement itself hits exactly the principal excellence of those parliaments. If not "chance” collections of Englishmen, they were “undesigned” collections; no administrations made them or could make them. They were bond-fide counsellors, whose opinion might be wise or unwise, but was anyhow of paramount importance, because their co-operation was wanted for what was in hand.
Legislation as a positive power was very secondary in those old Parliaments. I believe no statute at all, as far as we know, was passed in the reign of Richard I., and all the ante-Tudor acts together would look meagre enough to a modern Parliamentary agent who had to live by them. But the negative action of parliament upon the law was essential to its whole idea, and ran through every part of its use. That the king could not change what was then the almost sacred datum of the common law, without seeing whether his nation liked it or not, was an essential part of the "tentative” system. The king had to feel his way in this exceptional, singular act, as those ages deemed original legislation, as well as in lesser acts. The legislation was his at last; he enacted after consulting his Lords and Commons; his was the sacred mouth which gave holy firmness to the enactment; but he only dared alter the rule regulating the common life of his people after consulting those people; he would not have been obeyed if he had not, by a rude age which did not fear civil war as we fear it now. Many most important enactments of that period (and the fact is most characteristic) are declaratory acts. They do not profess to enjoin by inherent authority what the law shall in future be, but to state and mark what the law is; they are declarations of immemorial custom, not precepts of new duties. Even in the “Great Charter” the notion of new enactments was secondary, it was a great mixture of old and new; it was a sort of compact defining what was doubtful in floating custom, and was re-enacted over and over again, as boundaries are perambulated once a year, and rights and claims tending to desuetude thereby made patent and cleared of new obstructions. In truth, such great “charters” were rather treaties between different orders and factions, confirming ancient rights, or what claimed to be such, than laws in our ordinary sense. They were the “deeds of arrangement” of medieval society affirmed and re-affirmed from time to time, and the principal controversy was, of course, between the king and nation—the king trying to see how far the nation would let him go, and the nation murmuring and recalcitrating, and seeing how many acts of administration they could prevent, and how many of its claims they could resist.
Sir James Mackintosh says that Magna Charta “converted the right of taxation into the shield of liberty," but it did nothing of the sort. The liberty existed before, and the right to be taxed was an efflorescence and instance of it, not a substratum or a cause. The necessity of consulting the great council of the realm before taxation, the principle that the declaration of grievances by the Parliament was to precede the grant of supplies to the sovereign, are but conspicuous instances of the primitive doctrine of the ante-Tudor period, that the king must consult the great council of the realm, before he did anything, since he always wanted help. The right of self-taxation was justly inserted in the “great treaty;" but it would have been a dead letter, save for the armed force and aristocratic organisation which compelled the king to make a treaty; it was a result, not a basis—an example, not a
The civil wars of many years killed out the old councils (if I might so say): that is, destroyed three parts of the greater nobility, who were its most potent members, tired the small nobility and the gentry, and overthrew the aristocratic organisation on which all previous effectual resistance to the sovereign had been based.
The second period of the British Constitution begins with the accession of the House of Tudor, and goes down to 1688; it is in substance the history of the growth,
development, and gradually acquired supremacy of the new great council. I have no room and no occasion to narrate again the familiar history of the many steps by which the slavish Parliament of Henry VIII. grew into the murmuring Parliament of Queen Elizabeth, the mutinous Parliament of James I., and the rebellious Parliament of Charles I. The steps were many, but the energy was one—the growth of the English middle-class, using that word in its most inclusive sense, and its animation under the influence of Protestantism. No one, I think, can doubt that Lord Macaulay is right in saying that political causes would not alone have then provoked such a resistance to the sovereign unless propelled by religious theory. Of course the English people went to and fro from Catholicism to Protestantism, and from Protestantism to Catholicism (not to mention that the Protestantism was of several shades and sects), just as the first Tudor kings and queens wished. But that was in the pre-Puritan era. The mass of Englishmen were in an undecided state, just as Hooper tells us his father was -"Not believing in Protestantism, yet not disinclined to it.” Gradually, however, a strong Evangelic spirit (as we should now speak) and a still stronger anti-Papal spirit entered into the middle sort of Englishmen, and added to that force, fibre, and substance which they have never wanted, an ideal warnith and fervour which they have almost always wanted. Hence the saying that Cromwell founded the English Constitution. Of course, in seeming, Cromwell's work died with him; his dynasty was rejected, his republic cast aside; but the spirit which culminated