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CHAPTER II.

Primary Fundamental Principles of the English ConstitutionRoyal Prerogatives-Exaggerated under the Tudors and First Stuarts -Popular Resistance-Close of the Struggle between People and Crown in 1688-The Bill of Rights-Union with Scotland-Early Scottish Constitutional History-The Scottish Parliaments-Effects of the Reformation in Scotland-Terms of the Union-Irish Union -Early State of the Anglo-Irish and the mere Irish-Irish Parliaments-Poyning's Law-Attempt to introduce Protestantism-Effect of the Revolution of 1688, and of the Battle of the Boyne-The Penal Laws Rising Spirit of Independence in the Anglo-IrishRelaxation of the Penal Laws-The Irish Parliament attains its Independence-Its great Leader, Grattan, advocates Catholic Emancipation-Union of Ireland with Great Britain-Terms of the Union -The Catholic Emancipation Bill-Effects of the Reforms of 1832 on Scotland and Ireland-Movements for further Reform between 1835 and 1867-New Electoral Laws of 1867 and 1868-Present State of the Imperial Parliament.

THE main object of this chapter is to see how the English Constitution became the British Constitution, i.e., the Constitution of the United Kingdom of Great Britain and Ireland. It may, however, be useful to preface this by a few sentences reminding the reader of what the acknowledged great principles of the English Constitution were before the union with Scotland in 1707.

Ever since the reign of Edward I. (if not earlier) certain fundamental principles of the English Constitution had been established. These are:

1. The government of the country by a hereditary

sovereign, ruling with limited powers, and bound to summon and consult a Parliament for the whole realm, comprising hereditary peers and elective representatives of the Commons.

2. That without the sanction of Parliament no tax of any kind can be imposed, and no law can be made, repealed, or altered.

3. That no man be arbitrarily fined or imprisoned; that no man's property or liberty be impaired; and that no man be in any way punished, except after a lawful trial; and that the regular common law mode of trial is by a jury consisting of a man's equals in the eye of the law.

4. That all subjects, except the actual great peers who sit as such in Parliament, are commoners with equal rights in the eye of the law.1

By the time when the Tudor dynasty acquired the throne of England, at the end of the Wars of the Roses (1485), the following constitutional rules, also, had been brought into operation:

1. The division of the High Court of Parliament into two Houses, one called the House of Lords, consisting of the spiritual peers and of the temporal peers; the other called the House of Commons, consisting of the knights of the shires and of

1 I have discussed these subjects in 'The Rise and Progress of the English Constitution,' chapters xi., xii., and xiii., and in my 'History of England,' vol. i., ch. xiii., pp. 443-475.

the elected citizens and burgesses of the towns that possessed the parliamentary franchise.1 The Houses were certainly thus divided early in Edward III.'s reign, and probably before the reign of Edward II.

2. That Parliaments ought to be summoned frequently.

3. The right of the Commons to impeach and to bring to trial before the House of Lords the Ministers and servants of the Crown.

4. That no one, who has violated the rights of the subject, can justify himself in our courts by proving that he acted under the authority of the Crown.2 Another maxim closely connected with this is the maxim that the King can only act through a responsible Minister.

Under these restrictions (and some others, which are partly of too little consequence and partly too much controverted for setting out here) the Crown exercised supreme authority. In other words, the Government was and is a monarchy, though a limited monarchy. The King represented the State, and acted both for the State and as the State in all that relates to the outer life of the State, that is to say,

1 For the importance of the 'Bicameral System,' see Lieber on 'Civil Liberty and Self-Government,' p. 157.

2 For the great practical importance of this rule (which was peculiar to England), see Lieber on Civil Liberty and Self-Government,' p. 91.

in its dealings with other States. The King made war or peace. The King received and sent ambassadors. The King commanded all the military and naval forces of the State. The King had the dominion over all acquired territories. The King appointed and changed the high officers of state, both judicial and ministerial. No subject could leave the realm against the King's will. The King convened and the King prorogued or dissolved the Parliament. He granted all dignities and honours. He could create peers and add members to the House of Lords. He could grant charters of incorporation for trading and other purposes. He had many other prerogatives, important to enumerate and study when we are specially dealing with the English Constitution, but not indispensable for citation in this portion of our present work.

During the Tudor period (1485-1603), Parliaments were summoned much less regularly, than had been the case under the last ten Plantagenets. It would be going beyond the limits of the present work to discuss how far the liberties of the English nation really retrograded during this time, and the causes of such retrogression. Suffice it to say, that very startling doctrines of high royal prerogatives were often asserted, and sometimes enforced, by the Tudor Sovereigns and their Ministers and courtiers, but by no means universally admitted by the representatives

of the people. When the dynasty of the Stuarts succeeded (1603), high-flying theories of the transcendental power of the Crown were put forward still more offensively; but they were encountered by a spirit of resistance that grew fiercer and more determined, until the long struggle between Crown and people, after many alternations, was terminated at the Revolution of 1688. I allude to these topics here (and I only allude to them) because the century before 1688 was the period of the laying the foundations of our American colonial dominion, and the planting the seeds of our Indian empire. The student who examines the charters granted to the early English settlers in America, and to the early English traders in the East, will find it instructive, and indeed essential, to watch the prevalent or conflicting opinions in England, at the date of each grant, as to royal powers with respect to granting transmarine territories and exclusive privileges of settling and of trading, of imposing laws and exacting payments.

Resuming our series of views of the condition of the English Constitution at special epochs, we shall find that soon after the Revolution of 1688 (that is, when the Bill of Rights had been passed in December 1688, and the Act of Settlement in 1701) many more constitutional maxims of the highest importance for the liberty of the subject had been finally established. Foremost among these is the power of