Constitutional History of England Volume I Part 1

Const.i.tutional History of England.

Vol 1.

by Henry Hallam.

INTRODUCTION

Few historical works have stood the test of time better than Hallam's _Const.i.tutional History_. It was written nearly a century ago--the first edition was published in 1827--and at a time when historians were nothing if not stout party men. The science of history, as we now know it, was in its infancy; apologetics were preferred to exegesis; the study of "sources," the editing of texts, the cla.s.sification of authorities were almost unknown. History was regarded as the handmaid of politics, and the duty of the historian was conceived as being, in the language of Macaulay, the impression of "general truths" upon his generation as to the art of government and the progress of society. Whig and Tory, Erastian and High Churchman, debated on the field of history.

The characters of Laud and Cromwell excited as much pa.s.sion and recrimination as if they were contemporary politicians. That a history written in such times, and by a writer who was proud to call himself a Whig, should still hold its place is not a little remarkable. The reason for its vitality is to be found in the temperament and training of the author. Hallam was a lawyer in the sense in which that term is used at the Bar; that is to say, not so much a seductive advocate as a man deeply versed in the law, accurate, judicious, and impartial. Macaulay, who was as much the advocate as Hallam is the judge, described the _Const.i.tutional History_ as "the most impartial book we ever read," and the tribute was not undeserved. Hallam is often didactic, but he is never partisan. Although a Whig he was by no means concerned, like Macaulay, to prove that the Whigs were never in the wrong, and, as he shrewdly remarks, in his examination of the tenets of the two great parties in the eighteenth century: "It is one thing to prefer the Whig principles, another to justify, as an advocate, the party which bore that name." No better ill.u.s.tration of his att.i.tude of mind can be found than the pa.s.sage in which, treating of the outbreak of hostilities between Charles I. and the Long Parliament, he sets himself to consider "whether _a thoroughly upright and enlightened man_ would rather have listed under the royal or the parliamentary standard." In these days when, as the distinguished occupant of the chair of Modern History at Cambridge tells us, "history has nothing to do with morality," Hallam's grave anxiety to solve this problem may sound quaint and, indeed, irrelevant; but there is no denying the high purpose, the sincerity, and the pa.s.sion for truth which characterise the pa.s.sage in question. To-day the historian's conception of truth is purely objective: his aim is to discover what former generations thought rather than to concern himself with what we should think of them. The late Lord Acton[1] stood almost alone among the modern school of historians in insisting that it is the duty of the historian to uphold "the authority of conscience" and "that moral standard which the powers of earth and religion itself tend constantly to depress." It is more fas.h.i.+onable to contend that the moral standard is relative; that we cannot judge the men of the past by the ethical rules of the present; that conscience itself is the product of historical development. It may be questioned whether this scepticism has not been carried too far. Hallam had no such doubts. For him "the thoroughly upright and enlightened man" of the seventeenth century was not intrinsically different from the thoroughly upright and enlightened man of the nineteenth; the one concession he makes to time is that the historian is probably in a better, not a worse, position to judge than the men of whom he writes--if only because he is more detached. He condemns the obsequiousness of Cranmer, the bigotry of Laud, the tortuousness of Charles I., the ambition of Strafford, with the same reprobation as he would have extended to similar obliquities in a contemporary. Unless we are to exclude conduct altogether from our consideration and to deny the personal factor in history, we shall find it hard to say he is wrong. Gardiner, the latest historian of the Stuarts, does not hesitate to p.r.o.nounce similar judgments, though he expresses himself more mildly. Sorel, perhaps the most ill.u.s.trious of the modern school of French historians and a scholar who spent his life among the archives, has not hesitated--in writing on the Part.i.tion of Poland--to speak of the Nemesis which always waits upon such "public crimes."

Hallam's predilection for moral judgments is the more intelligible if we remember that his conception of "const.i.tutional" history is somewhat wider than ours is to-day. He included in it much that would now be called "political" history. One has only to compare his work with the latest of our authorities--the posthumous book of F. W. Maitland--to realise how the term has become specialised. Maitland confines his treatment to the results of political action as they are represented in the growth of inst.i.tutions; with political action itself he is, unlike Hallam, not concerned. The rise and fall of parties, the issues of Parliamentary debate, the progress of political speculation interest him but little and disturb him not at all. But to Hallam these things were hardly less important than the statute book and the law reports. This liberal view of his subject is not a thing to be regretted. It enables the reader to appreciate the large part played in the development of the English const.i.tution by those "conventions" which are a gloss upon the law and without which the const.i.tution itself is unintelligible. As Bagehot has pointed out, the legal powers of the king are as large as his actual authority is small. In strict legal theory the cabinet is merely an informal group of ministers of the crown who hold office during the king's pleasure. In fact and in practice it is a committee of the House of Commons dependent upon the support of the majority of the members. The fact is the outcome of a conventional modification of the theory, and this convention is due to the political changes of the eighteenth century and the growth of the party system. In the pages of Hallam these changes receive their due recognition, and without it the development of the English const.i.tution is unintelligible. It was a favourite doctrine of Hallam that so far as the law was concerned the const.i.tution was developed very early and that all that later generations contributed to it was better administration of the law and a more vigilant public opinion. He even goes so far as to say in his chapter in the _Middle Ages_ that he doubts "whether there are any essential privileges of our countrymen, any fundamental securities against arbitrary power, so far as they depend upon positive inst.i.tutions, which may not be traced to the time of the Plantagenets."

This is something of an anachronism, but it represents a not unjustifiable reaction against the high prerogative doctrines of writers of his own day. What Hallam, however, was really concerned to prove was that const.i.tutional law in this country rests upon the common law--upon the rules laid down by mediaeval judges as to the right of the subject to trial by jury, his immunity from arbitrary arrest, his claim not to be arbitrarily dispossessed of his property, and his right of action against the servants of the crown when he has suffered wrong. In this conception Hallam was undoubtedly right, and he urged it at a time when no one had made it as familiar as it has now become in the cla.s.sic pages of Professor Dicey. But Hallam was perfectly well aware that these securities for the liberty of the subject were often abused, that the sheriffs who empanelled the jury were often corrupt and the judges who directed it were not infrequently servile; also that so long as the Star Chamber existed no jury could venture to give a verdict of "not guilty"

in a prosecution by the crown without running the risk of being heavily punished. He is not insensible to these abuses and to the length of time it took to correct them, as the reader of the following pages will discover for himself, and he attaches due weight to the const.i.tutional importance of the Act for the Abolition of the Star Chamber. But the truth of his main contention (as expressed in his chapter on "The English Const.i.tution" in an earlier work[2]), that what chiefly distinguished our const.i.tution from that of other countries was the "security for personal freedom and property" enjoyed by the subject, is undeniable. It was not so much the possession of representative inst.i.tutions as the enjoyment of equal rights at common law that const.i.tuted the Englishman's advantage. Maitland[3] has recently pointed this out in language almost identical with that of Hallam when he insists that "Parliaments" or "Estates" were in no way peculiar to England; every country in Western Europe possessed them in the Middle Ages, but what those countries did not possess was a great school of law like the Inns of Court determined to uphold at all costs the claims of the customary law of the nation against the despotic doctrines of the civil law of Rome.

Hallam's att.i.tude towards the const.i.tution was that of Burke--he regarded it with a veneration little short of superst.i.tion. He has expressed himself in his earlier works in words which can hardly fail to provoke a smile to-day:--

"No unbia.s.sed observer, who derives pleasure from the welfare of his species, can fail to consider the long and uninterruptedly increasing prosperity of England as the most beautiful phenomenon in the history of mankind. Climates more propitious may impart more largely the mere enjoyments of existence; but in no other region have the benefits that political inst.i.tutions can confer been diffused over so extended a population; nor have any people so well reconciled the discordant elements of wealth, order, and liberty.

These advantages are surely not owing to the soil of this island, nor to the lat.i.tude in which it is placed; but to the spirit of its laws, from which, through various means, the characteristic independence and industriousness of our nation have been derived.

The const.i.tution, therefore, of England must be to inquisitive men of all countries, far more to ourselves, an object of superior interest; distinguished especially as it is from all free governments of powerful nations which history has recorded by its manifesting, after the lapse of several centuries, not merely no symptom of irretrievable decay, but a more expansive energy."[4]

If his language seems extravagant, I may remind the reader that there would have been few in Hallam's day who were prepared to dispute it.

England, almost alone among the states of Europe, had escaped the infection of the French Revolution. Its const.i.tution had survived the shock of a movement which, as De Tocqueville has remarked, was as widely destructive of the old order in Europe as the Reformation itself. The result was to give the English const.i.tution such a prestige as it had not enjoyed since the days of Montesquieu. A school of thinkers, beginning with Guizot and hardly terminating with Gneist, grew up on the continent who made it their duty to follow Burke's advice and "study the British const.i.tution" as the last word in political wisdom. Hallam's complacency may be naive in its expression, but its sentiment is sound, and Englishmen should be the last to disclaim it. Upon this rock many a political church has been built; the "law and custom of our Parliament"

have, since he wrote, been studied in every university in Europe and adopted in almost all the legislatures of the civilised world. Hallam, like Thucydides, with whom in dignity and sententiousness he may not unjustly be compared, had a n.o.ble pride in the const.i.tution of his country.

J. H. MORGAN.

FOOTNOTES:

[1] Cf. _Historical Essays and Studies_, vol. ii. p. 505.

[2] _Europe during the Middle Ages_, Chapter VIII. Part 3. I may remind the reader that Hallam regarded his _Const.i.tutional History_ as a continuation of this chapter, which sketches the development of the const.i.tution from the earliest times down to the accession of Henry VII., the point at which the present work begins.

[3] _English Law at the Renaissance_, p. 27.

[4] _Middle Ages_ (12th ed.), ii. p. 267.

BIBLIOGRAPHY

A View of the State of Europe during the Middle Ages, 1818; 2nd edition, 1819; pa.s.sed through twelve editions before 1855; revised and corrected, 1868; adapted to the use of students by W. Smith, 1871; edited by A.

Murray, 1872; translated into Italian by G. Carraro and published at Firenze, 1874; Supplemental Notes to View of the State of Europe, 1848.

The Const.i.tutional History of England from the Accession of Henry VIII.

to Death of George II., 1827; translated into German by F. A. Ruder and published at Leipzig, 1828; translated into French by M. Guizot and published in Paris, 1832; pa.s.sed through eight editions before 1855; adapted to the use of students by W. Smith, 1872. Edited (with preface and memoir of his son) Remains in Verse and Prose of A. H. Hallam, 1834, 1863. The Introduction to the Literature of Europe during the 15th, 16th, and 17th Centuries, 1837-1839; 2nd edition, 1843; other editions, 1854, 1855, 1881. Contributed to J. C. Hare's Vindication of Luther against his recent English a.s.sailants (2nd edition, enlarged), 1855.

A Short Life and Criticism of Henry Hallam appears in F. A. M. Mignet's _Eloges Historiques_, published in Paris in 1864.

TO HENRY MARQUIS OF LANSDOWNE IN TOKEN OF HIGH ESTEEM AND SINCERE REGARD THIS WORK IS RESPECTFULLY INSCRIBED BY THE AUTHOR

PREFACE

The origin and progress of the English Const.i.tution, down to the extinction of the house of Plantagenet, formed a considerable portion of a work published by me some years since, on the history, and especially the laws and inst.i.tutions, of Europe during the period of the middle ages. It had been my first intention to have prosecuted that undertaking in a general continuation; and when experience taught me to abandon a scheme projected early in life with very inadequate views of its magnitude, I still determined to carry forward the const.i.tutional history of my own country, as both the most important to ourselves, and, in many respects, the most congenial to my own studies and habits of mind.

The t.i.tle which I have adopted, appears to exclude all matter not referable to the state of government, or what is loosely denominated the const.i.tution. I have, therefore, generally abstained from mentioning, except cursorily, either military or political transactions, which do not seem to bear on this primary subject. It must, however, be evident, that the const.i.tutional and general history of England, at some periods, nearly coincide; and I presume that a few occasional deviations of this nature will not be deemed unpardonable, especially where they tend, at least indirectly, to ill.u.s.trate the main topic of enquiry. Nor will the reader, perhaps, be of opinion that I have forgotten my theme in those parts of the following work which relate to the establishment of the English church, and to the proceedings of the state with respect to those who have dissented from it; facts certainly belonging to the history of our const.i.tution, in the large sense of the word, and most important in their application to modern times, for which all knowledge of the past is princ.i.p.ally valuable. Still less apology can be required for a slight verbal inconsistency with the t.i.tle of these volumes in the addition of two supplemental chapters on Scotland and Ireland. This indeed I mention less to obviate a criticism, which possibly might not be suggested, than to express my regret that, on account of their brevity, if for no other reasons, they are both so disproportionate to the interest and importance of their subjects.

During the years that, amidst avocations of different kinds, have been occupied in the composition of this work, several others have been given to the world, and have attracted considerable attention, relating particularly to the periods of the Reformation and of the civil wars. It seems necessary to mention that I have read none of these, till after I had written such of the following pages as treat of the same subjects.

The three first chapters indeed were finished in 1820, before the appearance of those publications which have led to so much controversy, as to the ecclesiastical history of the sixteenth century; and I was equally unacquainted with Mr. Brodie's _History of the British Empire from the Accession of Charles I. to the Restoration_, while engaged myself on that period. I have, however, on a revision of the present work, availed myself of the valuable labours of recent authors, especially Dr. Lingard and Mr. Brodie; and in several of my notes I have sometimes supported myself by their authority, sometimes taken the liberty to express my dissent; but I have seldom thought it necessary to make more than a few verbal modifications in my text.

It would, perhaps, not become me to offer any observations on these contemporaries; but I cannot refrain from bearing testimony to the work of a distinguished foreigner, M. Guizot, _Histoire de la Revolution d'Angleterre, depuis l'Avenement de Charles I. jusqu'a la Chute de Jacques II._, the first volume of which was published in 1826. The extensive knowledge of M. Guizot, and his remarkable impartiality, have already been displayed in his collection of memoirs ill.u.s.trating that part of English history; and I am much disposed to believe that if the rest of his present undertaking shall be completed in as satisfactory a manner as the first volume, he will be ent.i.tled to the preference above any one, perhaps, of our native writers, as a guide through the great period of the seventeenth century.

In terminating the _Const.i.tutional History of England_ at the accession of George III., I have been influenced by unwillingness to excite the prejudices of modern politics, especially those connected with personal character, which extend back through at least a large portion of that reign. It is indeed vain to expect that any comprehensive account of the two preceding centuries can be given without risking the disapprobation of those parties, religious or political, which originated during that period; but as I shall hardly incur the imputation of being the blind zealot of any of these, I have little to fear, in this respect, from the dispa.s.sionate public, whose favour, both in this country and on the Continent, has been bestowed on my former work, with a liberality less due to any literary merit it may possess, than to a regard for truth, which will, I trust, be found equally characteristic of the present.

_June 1827._

ADVERTIs.e.m.e.nT

TO THE

THIRD EDITION

The present edition has been revised, and some use made of recent publications. The note on the authenticity of the Icon Basilice, at the end of the second volume of the two former editions, has been withdrawn; not from the slightest doubt in the author's mind as to the correctness of its argument; but because a discussion of a point of literary criticism, as this ought to be considered, seemed rather out of its place in the _Const.i.tutional History of England_.

_April 1832._

LIST OF AUTHORITIES

_The following Editions have been used for the References in these Volumes_

_Statutes at Large_, by Ruffhead, except where the late edition of _Statutes of the Realm_ is expressly quoted.

_State Trials_, by Howell.

Rymer's _Foedera_, London, 20 vols. The paging of this edition is preserved in the margin of the Hague edition in 10 vols.