CHAPTER V.
THE ENGLISH EXECUTIVE.
TO what extent and in what manner the executive of the United States is related to the ancient executive of England, can best be understood by tracing the development of the latter, and by comparing the status of the English executive in the reign of George III. with that of the American executive, as defined in the American Constitution. The task is difficult, because English royal prerogative is of a character well-nigh undefinable, and because the history of the royal prerogative is closely interwoven with the general history of the nation. But if followed in outline, the kingly office will be found rising step by step from a simple Teutonic original, until it attains to practical absolutism, and then as gradually losing power until, under modern sovereigns, slight vestige of active authority remains. During the colonial time the king of England was, as we have seen, the executive of America. He governed the colonies in his own person, and also through governors, or other representatives. The presidency is derived both directly and indirectly from the kingship, at a stage of the development of the royal office subsequent to the period of greatest strength and previous to that of greatest weakness.
In the early Teutonic tribes, executive functions, as we understand them, were in an ill-defined and formative condition. There were elective officers of various titles, some for civil, and some for military affairs. Among these officers in certain tribes kings are named.[1] But the Teutonic kingship, though held in high honour, had only limited and uncertain powers in time of peace, and was not necessarily chief in command in time of war; being quite different from the ideal created by later associations.[2] Like other officials, the king was elected; but unlike them, was chosen, with the thought of blood descent, from the fittest members of a single family, though there was no essential succession from father to son.[3] In his hereditary character, he was the official representative of the unity of his nation, and in such sense, rather than in the sense of rulership, its acknowledged head. His title of King, or Cyning, the derivation and meaning of which have been much discussed, probably had to do with the idea of Cyn or Kin; kinship being conceived as blood relationship between people of one race.[4] The word was used, perhaps, as conveying the thought of official impersonation of a common nationality, based upon a common tribal or blood kinship. It would be an easy transition, as a tribal nation grew into widened life, for the functions of a national executive to become attached, little by little, to this elected representative of the race. And without venturing to theorize in detail on the rise of the kingly office of later time from such beginnings, we may possibly surmise that some early king gradually attained executive supremacy by absorbing powers before divided among several officials; or that an officer who had acquired the attributes of national power took on the dignity of the kingly title and relation to the state.[5]
However the office itself may be accounted for, the tribes that immigrated to Britain seem to have been among those that were without it. Yet the royal idea was probably familiar to all tribes, and perhaps, as Kemble thinks, inherent in the Teutonic mind; for in every instance kings were set up by these tribesmen shortly after their landing.[6] According to old records, the first chieftains who came over bore the titles of Earldorman[7] and Heretoga,[8] the former designation expressing civil, and the latter military, functions. But when battles of conquest had been fought, and the chiefs found themselves at the head of a Teutonic body settled down on new soil, the title of king was assumed.[9] The fact of military leadership, combined with the stubbornness of the long struggle with the native Britons, rendered the position of these first English kings stronger from the outset than that of any officials in the older land. But the new kingship, like its ancient original, was tribal, and not territorial.[10] The king was king of his people, not of the land occupied by them.[11] And in course of time the office became very common in England, every small tribe or clan having its own cyning.
It was only by the rise of some of these tribal kings into influence over others, that the national sovereignty gradually appeared. By the seventh century there were at least eight greater kingdoms in England, and, two hundred years afterward, all were welded into one. Thus the settlement made by Cerdic and Cynric on the southern coast slowly grew, by the incorporation of many small kingdoms and independent earldormanships, into the lordship of the whole isle of Britain, into the immediate rulership of all the English inhabitants. An earldorman of Hampshire in this manner gradually developed into the king of the West Saxons, the king of the Saxons, the king of England, the king of Great Britain and Ireland, and eventually the sovereign head of an empire extending to every quarter of the earth.
The Church proved from the first a potent factor in this higher development of kingship. The conversion of the English introduced respect for rulers as taught in Holy Writ, and also that for law and authority as still lingering from the old Roman empire. Though it destroyed the heathen claims of royal descent from Woden, it surrounded the king with a new and greater sacredness; and the Christian service of coronation, with its memorials of Jewish chieftains and Christian emperors, made him the "Lord's Anointed." The universality of the one faith, as well as the progress of a new civilization, brought about contact with European ideas. Finally, the Church of England united all Englishmen even in the days of the Heptarchy, — the jurisdiction of the archepiscopal see of Canterbury being older than that of the national throne, for which, in many particulars, it prepared the way.
The royal office also grew in influence with every advance in social transformation and civil development that marked the progress toward a wider national life. As head of the state, the king came to be accorded many privileges, and to enjoy large income from personal estates and public revenues. The earldormen, of whose rank his ancestors had once been, came to receive delegation of their powers from him, and to share these with a variety of royal officials. The royal comitatus, or body of personal followers, gave rise, in time, to a new territorial nobility, created by and directly connected with the court.[12] And the great officers of the royal household became political officers, — a standing council or ministry for the transaction of ordinary civil business, and the reception of judicial appeals. Gradually the king grew to be regarded as the personal lord of his people, and, to some extent, of the soil also. From the reign of Athelstan imperial titles were assumed, either in imitation of continental examples, or, more probably, in assertion of English independence of the German emperor.[13]
In the sovereignty as finally evolved, the king's powers were considerable. With the advice and consent of the Witenagemot, he made laws and regulated matters affecting the general welfare. He negotiated peace and alliance, and received and appointed ambassadors. Though justice was administered in the local courts, and also through the Witenagemot, he might dispense it when the issue had not elsewhere obtained settlement. His power of appointment and of conferring honours made its influence felt in all portions of the realm. As maintainer of the peace, he called out the police or militia when necessary to preserve order, and exercised the right of pardon. He was commander-in-chief of the national host in time of war.
Yet this Saxon monarchy was far from being absolute. If strong under a strong king, it was weak under a weak one. Its authority was strictly limited by that of the Witenagemot, which participated in every act of government. Many of its prerogatives were deduced from the fact expressed by its very title, that the king was the representative of his people. His election rested with the Witan, which might depose him. Coronation, as essential as election, partook of the nature of a ratification or second election, and was, in effect, a compact between king and people, as well as a consecration to the kingly functions by the Church.[14]
Even while adding to their authority, the kings parted more and more with its substantial exercise, governing through subordinate officers, or granting power away in delegated privileges to individual nobles. The royal resources were continually diminished by the alienation of royal lands, — general taxation being thus necessitated. And with taxation was, even in Saxon times, brought in the element, which was destined eventually to exert, through Parliament, popular control and direction of the entire policy of the crown.
A change came with the Conquest. Though William the Conqueror, claiming to reign as the lawful successor of the Saxon kings, had himself elected by the Witan and proposed to follow customary forms and usages, his imperious will created a despotism; which was continued, though less wisely, by William Rufus. And Henry I. centralized the working of the government in such a manner as greatly to increase the royal authority. Indeed, the Norman conception of the kingship combined the powers of the Anglo-Saxon royalty at their highest with those of the contemporaneous feudal monarchies of Europe, but without the limitations of either. The Norman king was not only the elected head of the nation, but also lord paramount of all land. He was the source of justice, the administrator of the public finances, and, with the nominal assent of a feudalized and subservient national council, the supreme legislator. Practically, he was autocratic; for however carefully the ancient forms might be retained, no force of his time was strong enough to curb him.
But in England arbitrary power could not be established permanently. Henry II., founder of the Plantagenet dynasty, carried forward the task of administrative organism which Henry I. had begun, and achieved the complete development of the monarchy on a feudalized yet national basis. But while strengthening the crown, he took pains to revive the efficiency of the legislature, by consulting it in all important affairs. The forces of the nation, also, gradually underwent transformation in the merging of Saxon and Norman — both of Teutonic blood — into a single people. King John's abuse of power found a Norman baronage ready to champion old English liberties;[15] and Magna Charta, though in the form of a royal grant, was really a constitutional treaty or compact between the king and the nation, in assertion of ancient limitations of the crown, and in protection of ancient private rights of the subject.[16]
The years that immediately followed the granting of Magna Charta were years of struggle between king and people over its principles, — a struggle marked by variation of fortune for one side and the other, but resulting, on the whole, in steady loss to the crown. Henry III. saw the Barons' War and the definite rise of parliamentary institutions. Parliament, fully matured under the great Edward, attained, in the early days of Richard II., as we have seen, the executive control of the nation. And Richard's later assertion of irresponsible authority was answered by his deposition, and the setting up of the Lancastrian dynasty by act of Parliament, — an act which marked the predominance of the legislature over the kingship.
But the Wars of the Roses created 6r signalized a genuine royalist reaction. Their sanguinary progress brought about the destruction of the ancient nobility. And with the destruction of the nobility, the power of the Commons became insufficient to cope with the power of the crown. Under the House of Lancaster parliamentary principles had been prematurely asserted, and the House of York in ascending the throne, renewed and strengthened the arbitrary rule of the sovereign, and prepared the way for the Tudors and the Stuarts.
Indeed, during the Plantagenet period, which thus ended with the Yorkists, the royal powers had passed through a steadily formative process. The Plantagenet kings were at the head of the whole administrative system of the nation, and personally took part in all state business. They issued ordinances having much of the force of legislation. They personally heard cases and centralized judicature in their hands through national judges appointed by and representing them. They levied taxes in a variety of forms by their own will. When the parliamentary system was finally settled, they held an essential relation to its operation; and parliamentary acts became law by passing from their hands to the statute book, or might be vetoed altogether. Their right of summoning sessions of Parliament was unquestioned, and with it the right of adjourning, proroguing and dissolving. They even moulded, in some degree, the internal constitution of Parliament, — the House of Lords being composed of members mediately or immediately constituted such by the crown; the membership of the Commons also feeling their influence, by means of election writs and otherwise.[17]
Nevertheless the kingship, which under the Conqueror had been absolute in fact without quite ignoring old constitutional limitations in theory, gradually became under the Plantagenets, limited in fact by the reassertion of the ancient rights of the legislature, though retaining much of absolutism in theory.
A royalist philosophy rose into formidable influence. Every successful affirmation of popular rights was accompanied by an advance of royal assumptions. Every assertion of the national will was met by a counter-assertion of royal privilege, the indefinite limit of prerogative being more and more indefinitely exaggerated. Clerical writers insisted upon the religious duty of obedience, and legal writers elaborated doctrines nearly akin to those of divine right, and surrounded them with theories of allegiance, and of treason, of oaths of fealty, and acts of homage. A sense of personal loyalty to the sovereign slowly arose. A claim of legitimacy — associated in men's minds with the thought of land-tenure — also came to the front; and out of it grew the idea that a kingdom is a king's personal heritage by primogeniture, by a right essentially the same as that of a lord to patrimonial estates. It was upon such an idea, notwithstanding the immemorial usage of election to the crown, that the House of York based its claim to reign. Referring to this royalist philosophy and its results, Bishop Stubbs well remarks: "The ideal king could do all things, but without the counsel and consent of the Estates he could do nothing. The exaltation of the ideal king was the exaltation of the law that stood behind him, of the strength and majesty of the state which he impersonated. It could be no wonder if now and then a king should mistake the theory for the truth of fact, and, like Richard II., should attempt to put life in the splendid phantom. And when the king arose who had the will and the power, the nation had gone on so long believing in the theory, that they found no weapons to resist the fact, until the factitious theory of the Stuart's raised the ghost of mediæval absolutism, to be laid then and forever."[18]
The reaction in favour of royal rule which began, as just stated, under the Yorkist dynasty, culminated under the Tudors, and in the reign of Henry VIII. At the Reformation, Henry possessed well-nigh resistless civil power, to which he added a new relationship to the national Church; attempting control over the very minds and consciences of men. And though he conformed outwardly to constitutional usage, his Parliament was the merest tool for the execution of the royal wishes. Edward VI. and Mary, in matters of civil administration, followed in the steps of their father; and Elizabeth, wisely exercising it for the good of the nation, held power as autocratic.
But the tide had reached a height, and needs must ebb, James I. experienced the beginnings of a counter-movement in the awakening of the spirit of parliamentary independence that had slumbered since the fall of the House of Lancaster. He met this movement by enunciating a most monstrous theory of divine right to absolute and irresponsible sovereignty, and forced into activity the old opposition to the crown in the new and dangerous form of political Puritanism. He was succeeded in his contest with Parliament by a son who surrendered life itself for the royalist doctrines, and saw the downfall of the throne, and of the ancient Constitution with it, in one common wreck. And a final reaffirmation of ultra-royal claims came in with the Restoration, — Charles II. and James II. erecting slowly, cautiously, and with professed respect for parliamentary institutions, the old structure of despotic government, only to bring about the expulsion of their dynasty, and the Revolution of 1688.
The Revolution "finally decided," remarks Lord Macaulay, "the great question whether the popular element which had, ever since the age of Fitz Walter and De Montfort, been found in the English polity, should be destroyed by the monarchical element, or should be suffered to develop itself freely, and to become dominant. The strife between the two principles had been long, fierce, and doubtful.... The king-at-arms who proclaimed William and Mary before Whitehall Gate did in truth announce that this great struggle was over; that there was an entire union between the throne and Parliament ...; that the ancient laws by which the prerogative was bounded would henceforth be held as sacred as the prerogative itself, and would be followed out in their consequences; that the executive administration would be conducted in conformity with the sense of the representatives of the nation."[19]
Though the prerogatives of the monarchy suffered no legal diminution at the Revolution of 1688, but, as constitutional writers affirm, were after that event what they had been before, yet a code of unwritten law began to come into existence, that in many ways modified and neutralized the operation of the written law and of former constitutional usage. The English Constitution has since grown to be very largely a system of unconventional and political rules and theories. In outward appearance the Revolution of 1688 merely transferred the sovereignty from James II. to William and Mary. In reality it transferred the sovereignty from the king to the House of Commons. For from the moment when the sole right of the House to tax the nation was established by the Bill of Rights, and when the practice was settled of voting only annual supplies to the crown, the Commons became the chief power in the kingdom. It was impossible permanently to suspend the sessions of Parliament, or to offer serious opposition to its will, when either course must end in leaving the government without money, in breaking up the military and naval forces, and in rendering the public service impossible.[20]
The personal influence of the king was weakened at the Revolution, and has gone on declining since. The deposition of a monarch who represented legitimist descent, the election of an outsider in the person of William of Orange, and the final seating of the House of Hanover by act of Parliament, necessarily put an end to much of the old philosophy. Disputed succession, together with the lingering of a hostile legitimist party, forced the sovereigns whom Parliament had set up, to rely upon parliamentary support, and compelled their acceptance of a great degree of parliamentary control.
In a new and unexpected quarter arose the force that was eventually to absorb what remained of the sovereign power. During the reign of Charles II. the king's inner circle of advisers within the Privy Council came to be called the "Cabinet "; and after the Revolution, through a suggestion of Lord Sunderland to William of Orange, the members of this Cabinet came to be selected from the political party in majority in the , House of Commons.[21] The first George's ignorance of the English language, and his indifference to English political affairs, brought about a custom of holding Cabinet sessions without the presence of the king. In his reign, and that of George II., the Cabinet exercised, for the first time, the prerogatives of royalty, and the sovereign almost ceased to influence active government. "Ministers," exclaimed George II., "are the king in this country."[22]
Under this new system, the government was administered in all its departments by ministers responsible to Parliament for every act of official policy, without whose advice no act could be performed. These ministers might be dismissed for incapacity or failure, and impeached for political crimes; and they resigned when their advice was opposed by the crown, or their proceedings disapproved by Parliament. With his Cabinet thus responsible, "the king could do no wrong." The Stuarts had exercised power personally and had been held responsible in person. Their family had been driven altogether from the throne. But now, if the royal prerogative was stretched, the ministers were dealt with rather than the monarch. If a political crisis occurred, instead of a revolution there was only a change of Cabinet. In the place of dangerous struggles between Parliament and the crown, there was only the contest between rival parties to obtain a parliamentary majority; and the party possessing the greater number of votes wielded all the power of the nation. Consequently, upon the ministry, for the time being, rested the entire burden of public affairs. The monarchy was relieved of its cares and perils by ministers, who appropriated nearly all its authority. The king reigned, but his ministers governed.[23]
George III. energetically opposed this form of encroachment, and reasserted the agency of the sovereign as a personal executive. But the new cabinet system was too far under way to be more than temporarily checked, and has attained in our day an undisputed ascendency. The power of the crown, as exercised by the Cabinet, has now greatly increased, but the personal influence of the wearer of the crown in matters of government has greatly diminished.[24] The power of Parliament has also increased, but is mainly directed by the ministry. English government has ceased to be, strictly speaking, either a royal or a parliamentary government, and has become a cabinet government, — blending the executive and legislative, by taking authority derived from the ancient representatives of each, and exercising it through a body having relation to both. But although the interruption was only temporary, George III. did for an interval, and in some degree, break through this system; or rather he succeeded in demonstrating that it was not complete, or fully established. He had been trained from youth in lofty conceptions of royal office. "George, be king," was the repeated admonition of his ambitious mother,[25] and her exultation at a triumph over popular opposition during the ministry of Lord Bute, found expression in the characteristic words, "Now my son is king of England."[26] He was determined from the outset to reassert the personal power of the sovereign, which had almost disappeared from the sphere of government since the accession of the House of Hanover, and to rule freed from the trammels of ministers and parties, for the people, indeed, but not by the people. "The king desired," observes May, "to undertake personally the chief administration of public affairs, to direct the policy of his ministers, and himself to distribute the patronage of the crown.... His courtiers represented that he was enthralled by the dominant party, which had become superior to the throne itself, and that, in order to recover his just prerogative, it was necessary to break up the combination. But what was this in effect, but to assert that the king should now be his own minister? that ministers should be chosen, not because they had the confidence of Parliament and the country, but because they were agreeable to himself, and willing to carry out his policy? And this was the true object of the king.... When ministers not of his own choice were in office, he plotted against them and overthrew them, and when he had succeeded in establishing his friends in office, he enforced upon them the adoption of his own policy."[27] And this writer approximately states the issue in saying that His Majesty reverted "to a policy under which kings had governed, and ministers had executed their orders."[28]
It was in Lord North's ministry, from 1770 to 1782, that the king attained his greatest personal power. And this, let it be noted, was the period of the American war, and ended just previous to the formation of the Constitution of the United States. His personal government made a profound impression upon the Americans, and has left permanent trace in the constitutional structure of the American executive. Lord North being favourable to prerogative and warmly attached to his sovereign, subordinated his own judgment to that of the king, and steadily executed the royal will, instead of enforcing his own and that of the ministry. Notably, he continued the American war because George III. would not consent to another course, although, as he told the king in 1779, "he held in his heart, and had held for three years past," that "it must end in the ruin of His Majesty and the country."[29] The sovereign himself directed the minister in all important matters of foreign and domestic policy.
In 1780 the House of Commons adopted the famous resolution affirming "that the influence of the crown has increased, is increasing, and ought to be diminished."[30] But it was not until two years later, and after repeated motions of lack of confidence in the government, that Lord North resigned, and was succeeded first by Lord Rockingham and then by Lord Shelburne.[31] The latter, in 1783, concluded the Peace of Versailles, by which the king acknowledged the independence of the United States. In this latter year, the younger Pitt became Prime Minister; and under his able administration the ascendency of the crown was maintained for nearly half a century.
Such was the position of the English executive at the time of the assembling of the Constitutional Convention at Philadelphia.
[1] From the words of Cæsar it has been supposed that kings were the exception rather than the rule. His words are: "In pace, nullus est communis magistratus; sed principes regionum atque pagorum inter suos jus dicunt." — De Bello Gallico, VI. 23. Tacitus draws a clear distinction between tribes having kings, and tribes not having them. — Germania, cc. 25, 44. Commenting upon this, so great an authority as Kemble says: "Even in the dim twilight of Teutonic history, we find tribes and nations subject to kings; others again, acknowledged no such office, and Tacitus seems to regard this state as the more natural to our forefathers. I do not think this is clear; on the contrary, kingship, in a certain sense, seems to me rooted in the German mind and institutions, and universal among some particular tribes and confederacies." — Saxons in England, I. 137.
[2] Waitz considers that the king was the military head in monarchical tribes. See Deutsche Verfassungs-Geschichte, I. 310 sq. But Tacitus says: "Duces ex virtute sumunt ... et duces exemplo potius quam imperio, si prompti, si conspicui, si ante aciem agant, admiratione praesunt." — Germania, c. 7. See also Tacitus, Germania, c. 11.
[3] Waitz, Das Alte Recht, 203-214; and Deutsche Verfassungs-Geschichte, II. 148-164, 353, etc. Allen says: "Among the members of the royal family there seems to have been an absolute liberty of choice, as favour, convenience, or accident determined. The son was preferred to the father, the brother to the son, and in one noted instance, the line of the younger prevailed over the descendants of the elder brother, though the latter had worn his crown with credit and ability." — Inquiry into the Rise and Growth of Royal Prerogative, 46.
[4] The meaning sometimes given to the word cyning — "child of the race," from cyn, race or kin, and ing, the well-known patronymic, would seem to be doubtful. Max Müller states it as his opinion that "the old Norse Konr and Konungr, the old high German chuninc, and the Anglo-Saxon cyning, were common Aryan words, not formed out of German materials, and therefore not to be explained as regular German derivatives.... It corresponds with the Sanscrit ganaka.... It simply meant father of a family." — Lectures on Science of Language, II. 282, 284. This seems to accord with the patriarchal thought which may be remotely associated with Teutonic kingship. For as the ancient conception of nationality was a tribal one, the idea of the unity of the tribe or race might easily be associated with the idea of fatherhood, — headship of a family. The fact of an hereditary royal family may look in the same direction, and point to a patriarchal source for the royal office, the royal family being the patriarchal line of descent in the tribe. Some tribes may have wholly substituted elective officers for the patriarchate, and others may have modified the patriarchal principle by electing the cyning, and sharing his powers with elective officers. For differing opinions on the meaning of Cyning, see Freeman, Norman Conquest, I. 583, 584; Schmid, Gesetze, 551; Allen, Grimm, Palgrave, etc. Bishop Stubbs says: "The Anglo-Saxon probably connected the cyning with the cyn more closely than scientific etymology would permit." — Constitutional History of England, I. 166.
[5] Kemble has an interesting chapter on the development of kingship. Saxons in England, I. Chap. vi. Dr. Rudolph Gneist says: "Actual kingship begins to exist, — first, so soon as the dignity of the chieftain appears not only in the leadership of the army, but when it becomes a comprehensive, supreme power, including the office of magistrate, of protector of the peace, of defender of the Church, with the highest control of the commonwealth in every department; secondly, so soon as this highest dignity has become recognized by the popular idea as the family right of a high-born race. Directly both these conditions coexist, the new idea shows itself in its new name." — History of the English Constitution, I. 14.
[6] "But sprung as he was from war, the king was no mere war leader, nor was he chosen on the ground of warlike merit. His office was not military, but national; his creation marked the moment when the various groups of conquering warriors felt the need of a collective and national life." — Green, Making of England, 172.
[7] "Her comen twegen ealdormen on Brytene Cerdic and Cynric his súnu." — E. Chron., a. 495.
[8] "Heora heretogan wæron twegen gebroðra, Hengest and Horsa." — E. Chron , a. 449.
[9] "Her Cerdic and Cynric Westseaxena rice onfengon." — E. Chron., 519.
[10] "It is a consideration well worthy to be kept in view, that during a large part of what we usually term modern history no such conception was entertained as that of 'territorial sovereignty.' ... Territorial sovereignty — the view which connects sovereignty with the possession of a limited portion of the earth's surface — was distinctly an offshoot, though a tardy one, of feudalism. This might have been expected a priori, for it was feudalism which for the first time linked personal duties, and by consequence personal rights, to the ownership of land." — Maine, Ancient Law, 76, 78. "Clear cases of the change are to be seen in the official style of kings. Of our own kings, King John was the first who always called himself king of England. His predecessors commonly or always called themselves kings of the English." — Maine, Early History of Institutions, 73.
[11] "For many centuries before the union of the Scottish with the English crown, the title of the king had been that of king of England. In ancient times it was otherwise. During the Heptarchy the petty kings who ruled over the different tribes of Anglo-Saxons were styled kings of the West Saxons, Mercians, Northumbrians, Kentishmen, East Angles, East Saxons, or South Saxons; and after the imperfect union of these states under the West Saxons, the title of the predominant prince continued to be taken from his subjects, and not from the territory they inhabited. There are exceptions, indeed, to this rule in some of the Latin charters, which the clergy were left to fabricate in their own way; but Canute, a conqueror, is the first prince that styles himself in his laws king of England. In the preamble to his collection of laws, he is called king of the Danes and Northmen, and of the whole land of the Angles. This territorial designation, however, was dropped by his successors. The Confessor is styled king and lord of the Angles; and, notwithstanding the continual progress of feudal notions, the Conqueror, his sons, Stephen, and the two first princes of the House of Plantagenet, continued to use on their great seal the appellation of Rex Anglorum, though in the preambles to their charters and other public instruments they sometimes call themselves kings of England. John was the first prince who had engraved on his great seal the title of Rex Angliæ; and in that innovation, which has its origin in the feudal fiction that the whole soil of England belonged originally to the king, he has been followed by all his successors." — Allen, Royal Prerogative, 52-54.
[12] Mr. Taylor admirably summarizes the facts relating to this ancient Teutonic institution of the comitatus, which Tacitus refers to in the Germania. "The comitatus consisted originally of bands of professional warriors, united to a leader of their choice in a close and peculiar personal relation.... The leader of such a band was a princeps, his warlike followers, the comites; and it was no disgrace to any man to be seen among the followers of a chief. The clanship or comitatus thus formed had its divisions of rank, which were fixed by the princeps. There was great emulation among the comites of every princeps as to who should hold the highest place in his esteem; and among the princeps as to who should have the most numerous and bravest following. To be always surrounded by a band of chosen young men — in peace an ornament, in war a bulwark — was the greatest dignity and power that a chief could possess. Upon the battle-field it was a disgrace for the princeps to be surpassed by his comites, and it was a disgrace for the comites not to equal their leader in valour. To survive a battle in which their chief had fallen was eternal infamy. To defend and protect the princeps, to make even their own renown subservient to his, was the highest and holiest duty of the comites. The chieftains fought for victory, the comites for their chief. The comitatus could only be kept together by violence and war, for the comites were entirely dependent upon the bounty of their chief.... In the bonds of this strange military association, the chief and his followers were united by the closest ties of mutual interest and honour.... In the structure of the comitatus was imbedded the germ of a great aftergrowth. The relation of lord and vassal, the first outcome of the comitatus, was a purely personal one. But in the process of time, when the lord makes a grant of land to his vassal in consideration of past services and upon the further consideration that the vassal will hold such land upon the tenure of military service, a new relation becomes involved with the old one.... Each chieftain by whom a war band was led to the conquest of Britain, came attended by his comites.... As kingship advanced in power and privilege, kings were able, of course, to confer upon their dependents a status and emoluments such as no one else could bestow. And as the king grew in power and importance, the companion or gesith soon changed his original title for a new one that more clearly expressed his somewhat changed relation. He became the thegn or servant instead of the companion of his lord. In this way originated a new nobility by service, which grew and widened until it at last absorbed and superseded the older nobility of blood.... As a king stood above earldorman and bishop, so stood the king's thegns above their thegns.... The greatest boon, however, which such a thegn expected his lord to bestow, was a grant of land out of the public domain, which the king had the power to make with the consent of the Witan. Upon estates created in this way the thegns began to dwell, and thus ceased to be members of their master's household. And so the thegnhood grew into a territorial nobility." — Origin and Growth of the English Constitution, 110, 111, 131, 132. "The development of the comitatus into a territorial nobility seems to be a feature peculiar to English history." — Stubbs, Constitutional History of England, I. 152.
[13] On the nature of the imperial title and position held by the early kings, see Freeman, Norman Conquest, I. 148, and Palgrave, English Commonwealth, pp. 627, cccxlii-cccxliv.
[14] See Maskell, Monumenta Ritualia Ecclesiae Anglicanae, III. "In its origin the kingship of the English was distinctly elective, but with a restriction of choice in all ordinary cases to the members of one royal house. At the Norman Conquest a new royal stock was substituted for the ancient one of Cerdic [though in truth the Conqueror was a descendant of Cerdic], but the elective character of the kingship continued unaltered.... The succession of Edward I. marks the earliest important innovation. He was the first king who reigned before his coronation. The doctrine of hereditary right, which gradually arose as the personal idea of kingship was superseded by the territorial idea, had now largely obscured the elective character of the kingship.... But this obscuration was never total.... Edward I. had been recognized as king four days after the death of his father. The accession of Edward II. on the day following his father's decease marks a further advance in the hereditary doctrine; an advance, however, which was more than neutralized by the revival, against his person, of the right of the national assembly to depose the king. By the unopposed succession of Richard II., to the exclusion of his uncles, the right of representative primogeniture was for the first time asserted in the devolution of the crown. But as in the case of Edward II., so in the case of Richard, no sooner had the doctrine of strict hereditary descent progressed another step than it was met by the reassertion of the right of Parliament to depose the sovereign, and by the negation of any indefeasible right of primogeniture through the election of Henry of Lancaster. It was by the House of York ... that the doctrine of indefeasible hereditary right was first propounded in its full force and significance.... Yet even Edward IV. sought and obtained a parliamentary confirmation of his title, and when, a quarter of a century later, the crown was settled by Parliament on Henry VII. and his issue, to the exclusion of the whole House of York, the kingship was replaced on its elective basis. The elective right of Parliament, however, was now exercised, not periodically on the death of each sovereign, ... but whenever it became necessary to elect a new royal stock, as in the case of Henry IV. and of Henry VII.... James I., coming to the throne without a legal title, attempted to revive the Yorkist theory of hereditary right.... But the theory of indefeasible hereditary right, fortified as it was by the Stuart addition of a sanction jure divino, utterly failed to take permanent root, and was finally extirpated by the Revolution of 1688 and the subsequent Act of Settlement, which entailed the crown on the descendants of Sophia of Hanover. In that statute Parliament, for the last time in our history, exercised its paramount right to settle the succession to the crown." — Taswell-Langmead, English Constitutional History, 222-224.
[15] "The Great Charter of liberties was the outcome of a movement of all the freemen of the realm, led by their natural leaders, the barons. Far from being a 'mere piece of class legislation,' extorted by the barons alone for their own special interests, it is in itself a noble and remarkable proof of the sympathy and union then existing between the aristocracy and all classes of the commonality. At least one-third of its provisions relate to promises and guarantees on behalf of the people in general, as contradistinguished from the baronage. But one fact is especially significant. The important and comprehensive clause (60), by which the customs and liberties granted to the king's tenants-in-chief are expressly extended to every sub-tenant in the kingdom, did not, like the similar provision in the Charter of Henry I., emanate from the king, but was spontaneously included by the barons themselves in the articles presented to John as a summary of their demands." — Taswell-Langmead, English Constitutional History, 102. See Articles of the Barons, c. 48; Blackstone's Charters, 1-9; Select Charters, 286; Magna Charta, c. 60.
[16] M. Glasson says: "La Grande Charte est un Contrat, mais qui se rapproche du traité passé entre deux nations." — Hist. du Dr. et des Inst. de l'Angl., III. 52. In commenting on the "Constitution Anglaise," M. Boutmy remarks: "Les pactes sont au nombre de trois: la grande charte (1215).... Le caractère de cet acte est aisé à définir. Ce n'est pas précisément un traité, puisqu'il n'y a pas ici deux souverainetés légitimes ni deux nations en présence; ce n'est pas non plus une loi; elle serait entachée d'irrégularité et de violence; c'est un compromis ou un pacte." — Études de Droit Constitutionnel, 39, 41.
[17] "In no part of the constitutional fabric was more authority left to the king, and in none was less interference attempted by the Parliament, than in the constitution of Parliament itself.... The king retained the right of summoning the Estates whenever and wherever he chose; he could, without consulting the magnates, add such persons as he pleased to the permanent number of peers, and he might, no doubt, with very little trouble and with no sacrifice of popularity, have increased or diminished the number of members of the House of Commons by dealing with the sheriffs. On those points occasional contests turned, but they scarcely ever, as was the case in later reigns, came into the foreground as leading constitutional questions." — Stubbs, Constitutional History of England, II. 666.
[18] Constitutional History of England, III. 561. "The strength of the crown at the close of the Middle Ages lay in the permanence of the idea of royalty, the wealth of the king, the legal definitions and theory of the supreme power; its position was enhanced by the suicide of the baronage, the personal qualities of the new dynasty [the Tudor], the political weariness of the nation, and the altered position of the kings in the great states of Europe. The place of Henry VII. cannot be understood without reference to the events which, in France, Spain, and Germany, were consolidating great dynastic monarchies, in the activity of which the nations themselves had little independent participation." — Ibid. III. 562.
[19] History of England, II. 668.
[20] Green, Short History of the English People, 680.
[21] "The Whigs, who had secured the crown to William III., expected that he would choose his ministers solely from their ranks. But the king was strongly opposed to government by party. He wished to retain the chief directing power himself and to secure the support of a united Parliament in carrying out his continental policy in opposition to Louis XIV. of France. Accordingly, down to the year 1693, he distributed the chief offices in the government about equally between the two parties. But this policy, while it maintained the chief efficient power in the hands of the king, not only failed to secure unanimity among the various ministers of the crown, but even allowed of open hostility between them, as well in the discharge of their executive duties as in the discussions in Parliament. The inconvenience of this state of things was so great that at length, between 1693 and 1696, acting on the advice of Robert, Earl of Sunderland, William abandoned the neutral position which he had hitherto maintained between the two parties, and entrusted all the chief administrative offices to the Whigs, who commanded a majority in the House of Commons." — Taswell-Langmead, English Constitutional History, 681.
[22] Lord Mahon, History of England, III. 280. "With George I. and George II. Hanoverian politics had occupied the first place in their thoughts and affections. Of English politics, English society, and even the English language, they knew little. The troublesome energies of Parliament were an enigma to them; and they cheerfully acquiesced in the ascendency of able ministers who had suppressed rebellions and crushed pretenders to their crown, — who had triumphed over parliamentary opposition and had borne all the burden of the government. Left to the indulgence of their personal tastes, occupied by frequent visits to the land of their birth, ... they were not anxious to engage, more than was necessary, in the turbulent contests of a constitutional government. Having lent their name and authority to competent ministers, they acted upon their advice and aided them by all the means at the disposal of the court." — May, Constitutional History of England, I. 20.
[23] May, Constitutional History of England, I. 19, 20. Mr. Bagehot describes the Cabinet as "a combining committee — a hyphen which joins, a buckle which fastens, the legislative part of the state to the executive part of the state. In its origin it belongs to the one, in its functions it belongs to the other." — English Constitution, 14.
[24] It would be a mistake to say, as many have said, that the personal influence of the monarch is practically gone. "There is not a doubt that the aggregate of direct influence nominally exercised by the sovereign upon the counsels and proceedings of her ministers is considerable in amount, tends to permanence and solidity of action, and confers much benefit on the country, without in the smallest degree relieving the advisers of the crown from their undivided responsibility." — Gladstone, Gleanings of Past Years, I. 42. As these words apply to Queen Victoria, who is sometimes characterized, in a cabinet sense, as the most constitutional sovereign who has ever reigned over England, and as they proceed from a personage who has been in turn a member of both political parties in England, and has held a place in several cabinets and risen to the position of premier, they must be accorded historical weight. They are not, however, needed to establish recognition of the truth that the British sovereign is still a real factor in British administration and a most useful one. There are those who think that public interests would be better off if the personal influence of the monarch were greater, and the influence of mere party government less, than has come to be the case.
[25] Earl of Albemarle's Rockingham Memoirs, I. 3.
[26] Walpole, Memoirs, I. 233. George III. was the first English king of the House of Hanover, and gloried in the fact of his being English. With his own hand he placed in the draft of his first speech to Parliament, the words, "Born and educated in this country, I glory in the name of Briton.'' — Rose, Correspondence, II. 189. (Diary.) The traditions of the old English kingship before the days of George I. and George II. influenced him powerfully.
[27] May, Constitutional History of England, I. 23, 26.
[28] Ibid. I. 26. In debating the address at the opening of Parliament, Nov. 25th, 1779, Fox declared, that "he saw very early indeed, in the present reign, the plan of government which had been laid down, and had since been invariably pursued in every department. It was not the mere rumour of the streets that the king was his own minister; the fatal truth was evident, and had made itself evident in every circumstance of the war carried on against America and the West Indies." — Parliamentary History, XX. 1120.
[29] Correspondence of George III. with Lord North, 1768, 1783, ed. Donne.
[30] Cobbett, Parliamentary History, XXI. 347.
[31] Lord Shelburne was in sympathy with the king's view of the royal office. He would never consent, he said, "that the King of England should be a king of the Mahrattas; for among the Mahrattas the custom is, it seems, for a certain number of great lords to elect a Peishwah, who is thus the creature of the aristocracy, and is vested with the plenitude of power, while there is, in fact, nothing more than a royal pageant." — Parliamentary History, XXII. 1003.
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