AN ESSAY ON THE RISE AND PROGRESS OF THE ENGLISH CONSTITUTION. By the term Constitution, as applied to our national system of polity, we understand, first, the three estates of the realm, namely, the King, the Lords, and the Commons; and secondly, the fundamental laws, ordinances, and customs by which these estates are severally and collectively bound and governed, and by which their peculiar and distinctive rights, privileges, functions, and prerogatives are duly set forth and determined. No single document, however, exists in which the principles of the Constitution are fully embodied and defined—a circumstance which has sometimes given rise to the popular but erroneous impression that we have no "constitution" in the proper sense of the term; or that, if we have, its principles are se vague, and its provisions so incongruous and disjointed, that they virtually elude our grasp in endeavouring to apprehend them. The Constitution, as it is presented to us in the pages of history, is made up of detached fragments, having no very obvious properties of cohesion or unity; and as it is a structure which has been raised by successive generations, extending over a period of several centuries, it may lack in a measure that B unity of design which, under different circumstances, it might have possessed. We can scarcely say with certainty when our Constitution may be said to have commenced, but it probably had its origin in the common law or common custom of the realm, based upon immemorial usage. Its first faint outlines may be traced in some measure to the time of our AngloSaxon ancestors, amongst whose ancient laws and institutions we find the prototype of what subsequently became moulded into shape as the "English Constitution" properly so called. The progress of the Constitution, from its cradle downwards, has undoubtedly been fitful rather than regular in its pace. There have been periods of retrogression in its history, when the principles on which it is based were virtually ignored; but then at certain epochs, after long intervals of inactivity, it would seem to have gathered up its strength and to have made secure and rapid strides onward towards the goal of its destiny. Throughout all the vicissitudes, however, to which it has been exposed, the fundamental principles of the English Constitution have never been entirely subverted. On the contrary, one of its most distinctive features has been its elasticity and its power of adapting itself to the progressive requirements of civilisation without prejudice to its component parts, whether separately or collectively considered. It has undergone various modifications from its commencement to the present time, and is perhaps rather practically efficient than logically perfect in its essential characteristics; for it is the work of statesmen rather than of speculative theorists. In short, the English Constitution is the result of the cumulative labours of all the eminent statesmen, jurists, and legislators whom our country has produced for the last six hundred years. Having made these prefatory remarks, let us briefly advert to the AngloSaxon form of government which had been in existence, in a more or less modified form, for several centuries before the Conquest. In theory the Anglo-Saxon form of government was that of a limited elective monarchy; but, in practice, hereditary monarchy was the rule rather than the exception. The King and his Council conjointly were invested with the sole legislative and judicial power. Over this Council, which was called the Wittenagemote, the King himself presided in person. It was composed in early times of "Freemen" and " Warriors," and at a later period of Bishops, Abbots, Earls, Thanes, or landed proprietors, and of the principal men of note in the kingdom; and seems, we are told, to have resembled what our modern Parliament would be if Lords and Commons assembled together and debated in one House. Moreover, it is said that with regard to laymen the holding five thousand acres of land under the Crown was a necessary qualification for a seat in this assembly Bishops and Abbots, however, were members of it by virtue of their office and as chiefs of the clerical order. The King, of himself, had no power to make laws, nor were any of his acts deemed valid or legal without the assent and confirmation of his Council. Subordinate to the Chief Court or Council were numerous County Courts, in which sat the lesser Thanes or smaller proprietors of land, whose office it was to administer justice in their respective districts, and to transact all affairs of a merely local character. From these minor courts the Council received appeals and gave final judgment, while it also confirmed grants made by the Crown, and adjudicated upon all matters of public or national importance. It is now somewhat difficult to determine with precision how far the King's prerogatives extended, or by what bounds they were limited; but from the fact that he could make no laws without the concurrence of his Council, we must infer that his authority was far from being absolute, and that, although there existed in those times no such thing as popular representation in the modern sense of the term, yet there was such a check imposed upon the arbitrary will of the Sovereign, as in some measure afforded a guarantee for the rights and liberties of the subject, and for the due administration of justice. History informs us that the Norman Conquest produced a complete change and revolution in the affairs of this kingdom. We are told that the ancient fabric of Saxon legislation was almost wholly overthrown by the Conqueror. His government at the outset was mild, but he soon found pretexts for seizing the conquered territory by degrees into his own hands, and distributed the greater portion of it amongst his Norman followers, as the reward of their past services, and as a means of permanently securing their future support for himself and his successors. He also arrogated to himself legislative as well as judicial power, and trampled under foot those laws and customs which he found in existence, and which at the outset policy had taught him to respect. The vanquished AngloSaxons of every rank became the mere passive objects of the Conqueror's caprice: subject to the influence of a military despotism, they had no rights but such as their absolute ruler chose to accord them. Taxes, too, were arbitrarily imposed, and were levied by corrupt judges, who not uncommonly made traffic of the justice which they should have dealt impartially to all; so that between judicial cupidity and arbitrary power the rights and liberties of the people were systematically crushed, if they did not become utterly extinguished. Accordingly we cannot wonder that the people, prostrate and paralysed under the influence of the Conqueror's régime, lost all power of active or effectual resistance. Their attempts to throw off the victor's yoke had been attended with such signal defeat and with retribution so severe and unrelenting, that their spirits at length were broken, and their energies exhausted. The old Saxon English found themselves strangers in their own land, their homes plundered, their lands confiscated and given over as booty to their new master and his adherents; themselves stripped of their honours, offices, and dignities; their customs 1 |