The Growth of the English Constitution - Freeman Edward Augustus

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of men clad in a garb of ages past, are borne the famous horns, the spoils of the wild bull of ancient days, the very horns whose blast struck such dread into the fearless heart of Charles of Burgundy3. Then, with their lictors before them, come the magistrates of the commonwealth on horseback4, the chief magistrate, the Landammann, with his sword by his side. The people follow the chiefs whom they have chosen to the place of meeting, a circle in a green meadow, with a pine forest rising above their heads and a mighty spur of the mountain range facing them on the other side of the valley. The multitude of freemen take their seats around the chief ruler of the commonwealth, whose term of office comes that day to an end. The Assembly opens; a short space is first given to prayer, silent prayer offered up by each man in the temple of God’s own rearing. Then comes the business of the day. If changes in the law are demanded, they are then laid before the vote of the Assembly, in which each citizen of full age has an equal vote and an equal right of speech. The yearly magistrates have now discharged all their duties; their term of office is at an end; the trust which has been placed in their hands falls back into the hands of those by whom it was given, into the hands of the sovereign people. The chief of the commonwealth, now such no longer, leaves his seat of office and takes his place as a simple citizen in the ranks of his fellows. It rests with the free will of the Assembly to call him back to his chair of office, or to set another there in his stead. Men who have neither looked into the history of the past, nor yet troubled themselves to learn what happens year by year in their own age, are fond of declaiming against the caprice and ingratitude of the people, and of telling us that under a democratic government neither men nor measures can remain for an hour unchanged. The witness alike of the present and of the past is an answer to baseless theories like these. The spirit which made democratic Athens year by year bestow her highest offices on the patrician Periklês and the reactionary Phôkiôn5 still lives in the democracies of Switzerland, alike in the Landesgemeinde of Uri and in the Federal Assembly at Bern. The ministers of Kings, whether despotic or constitutional, may vainly envy the sure tenure of office which falls to the lot of those who are chosen to rule by the voice of the people. Alike in the whole Confederation and in the single Canton reelection is the rule; the rejection of the out-going magistrate is the rare exception6. The Landammann of Uri, whom his countrymen have raised to the seat of honour, and who has done nothing to lose their confidence, need not fear that when he has gone to the place of meeting in the pomp of office, his place in the march homeward will be transferred to another against his will.

      Such is the scene, which, save for a moment, when the world was turned upside down by the inroads of revolutionary France7, has gone on year by year as far as history goes back in the most unchanged of European states. Let me ask you to follow me yet again to the place of assembly of a younger member of the same noble band of commonwealths8, to pass from Uri to Appenzell, from the green meadows of Bözlingen to the hill-side market-place of Trogen. Somewhat of the pomp and circumstance which marks the assembly of Catholic and pastoral Uri is lacking in the assembly of the Protestant and industrial population of the Outer Rhodes of Appenzell. But the stamp of antiquity, the stamp of immemorial freedom, is impressed alike on the assembly and on the whole life of either commonwealth. We miss in Appenzell the solemn procession, the mounted magistrates, the military pomp, of Uri, but we find in their stead an immemorial custom which breathes perhaps more than any other the spirit of days when freedom was not a thing of course, but a thing for which men had to give their toil and, if need be, their blood. Each man who makes his way to the Landesgemeinde of Trogen bears at his side the sword which the law at once commands him to carry and forbids him to draw9. And in the proceedings of the assembly itself, the men of Appenzell have kept one ancient rite, which surpasses all that I have ever seen or heard of in its heart-stirring solemnity. When the newly chosen Landammann enters on his office, his first duty is to bind himself by an oath to obey the laws of the commonwealth over which he is called to rule. His second duty is to administer to the multitude before him the same oath by which he has just bound himself. To hear the voice of thousands of freemen pledging themselves to obey the laws which they themselves have made is a moment in one’s life which can never be forgotten, a moment for whose sake it would be worth while to take a far longer and harder journey than that which leads us to Uri or Appenzell.

      And now I may be asked why I have begun a discourse on the constitution of England with a picture of the doings of two small commonwealths whose political and social state is so widely different from our own. I answer that I have done so because my object is, not merely to speak of the constitution of England in the shape which the changes of fourteen hundred years have at last given it, but to trace back those successive changes to the earliest times which either history or tradition sets before us. In the institutions of Uri and Appenzell, and in others of the Swiss Cantons which have never departed from the primæval model, we may see the institutions of our own forefathers, the institutions which were once common to the whole Teutonic race, institutions whose outward form has necessarily passed away from greater states, but which contain the germs out of which every free constitution in the world has grown. Let us look back to the earliest picture which history can give us of the political and social being of our own forefathers. In the Germany of Tacitus we have the picture of the institutions of the Teutonic race before our branch of that race sailed from the mouths of the Elbe and the Weser to seek new homes by the Humber and the Thames. There, in the picture of our fathers and brethren seventeen hundred years back, the free Teutonic Assembly, the armed Assembly of the whole people, is set before us, well nigh the same, in every essential point, as it may still be seen in Uri, Unterwalden, Glarus, and Appenzell. One point however must be borne in mind. In the assemblies of those small Cantons it is only the most democratic side of the old Teutonic constitution which comes prominently into sight. The commonwealth of Uri, by the peculiar circumstances of its history, grew into an independent and sovereign state. But in its origin it was not a nation, it was not even a tribe10. The Landesgemeinden of which I have been speaking are the Assemblies, not of a nation but of a district; they answer in our own land, not to the Assemblies of the whole Kingdom, but to the lesser Assemblies of the shire or the hundred. But they are not on that account any the less worthy of our notice, they do not on that account throw any the less light on that common political heritage which belongs alike to Swabia and to England. In every Teutonic land which still keeps any footsteps of its ancient institutions, the local divisions are not simply administrative districts traced out for convenience on the map. In fact, they are not divisions at all; they are not divisions of the Kingdom, but the earlier elements out of whose union the Kingdom grew. Yorkshire, by that name, is younger than England, but Yorkshire, by its elder name of Deira, is older than England11. And Yorkshire or Deira itself is younger than the smaller districts of which it is made up, Craven, Cleveland, Holderness, and others. The Landesgemeinde of Uri answers, not to an Assembly of all England, not to an Assembly of all Deira, but to an Assembly of Holderness or Cleveland. But in the old Teutonic system the greater aggregate was simply organized after the model of the lesser elements out of whose union it was formed. In fact, for the political unit, for the atom which joined with its fellow atoms to form the political whole, we must go to areas yet smaller than those of Holderness or Uri. That unit, that atom, the true kernel of all our political life, must be looked for in Switzerland in the Gemeinde or Commune; in England – smile not while I say it – in the parish vestry12.

      The primitive Teutonic constitution, the constitution of the Germans of Tacitus, the constitution which has lingered on in a few remote corners of the old German realm, is democratic, but it is not purely democratic. Or rather it is democratic, purely democratic, in the truer, older, and more honourable sense of that much maligned word; it is not purely democratic in that less honourable, but purely arbitrary, sense which is often put upon it in modern controversy. Democracy, according to Periklês, is a government of the whole people, as opposed to oligarchy, a government of only a part of the people13. A government which vests all power

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<p>3</p>

See Johannes von Müller, Geschichte der schweizerische Eidgenossenschaft, Book v., c. 1 (vol. xvi. p. 25, of his sämmtliche Werke, Stuttgart und Tübingen, 1832, and the note in vol. xxii. p. 14; or the French translation, vol. viii. p. 35: Paris and Geneva, 1840). The description in Peterman Etterlin’s Chronicle, p. 204 (Basel, 1752), is worth quoting in the original. “Dann do der Hertzog von Burgunn gesach den züg den berg ab züchen, schein die sunn gerad in sy, und glitzet als wie ein spiegel, des gelichen lüyet das horn von Ury, auch die harschorne von Lutzern, und was ein sölich toffen, das des Hertzogen von Burgunn lüt ein grusen darab entpfiengent, und trattent hinder sich.”

<p>4</p>

The magistrates rode when I was present at the Landesgemeinden of 1863 and 1864. I trust that so good a custom has not passed away.

<p>5</p>

On the character and position of Phôkiôn, see Grote, xi. 382, xii. 481; and on the general question of the alleged fickleness of the Athenian people, see iv. 496.

<p>6</p>

Some years ago I went through all the elections to the Bundesrath or Executive Council in Switzerland, and found that in eighteen years it had only twice happened that a member of the Council seeking reelection had failed to obtain it. I therefore think that I was right in congratulating a member of the Federal Council, whom I had the pleasure of meeting last year, on being a member of the most permanent government in Europe.

<p>7</p>

Under the so-called Helvetic Republic of 1798, the Cantons ceased to be sovereign States, and became mere divisions, like counties or departments. One of the earliest provisions of this constitution abolishes the ancient democracies of the Forest Cantons. “Die Regierungsform, wenn sie auch sollte verändert werden, soll allezeit eine repräsentative Demokratie sein.” (See the text in Bluntschli, ii. 305.) The “repräsentative Demokratie” thus forced on these ancient commonwealths by the sham democrats of Paris was meant to exclude the pure democracy of Athens and Uri.

The Federal system was in some sort restored by the Act of Mediation (Vermittlungsakte) of Napoleon Buonaparte, when First Consul in 1803. See the text in Bluntschli, ii. 322.

<p>8</p>

Appenzell, though its history had long been connected with that of the Confederates, was not actually admitted as a Canton till December 1513, being the youngest of the thirteen Cantons which formed the Confederation down to 1798. See Zellweger, Geschichte des Appenzellischen Volkes, ii. 366, and the text in his Urkunden, ii. part 2, p. 481, or in the older Appenzeller Chronick of Walser (Saint Gallen, 1740), 410, and the Act in his Anhang, p. 18. The frontispiece of this volume contains a lively picture of a Landesgemeinde. In 1597 the Canton was divided into the two Half-cantons of Ausser-Rhoden, Protestant, and Inner-Rhoden, Catholic. See Zellweger, iii. part 2, p. 160; Walser, 553.

<p>9</p>

On armed assemblies see Norman Conquest, ii. 331.

<p>10</p>

I perhaps need hardly insist on this point after the references given in my first note; but I find it constantly needful to explain that there is no such thing as a Swiss nation in any but a political sense. The Cantons were simply members of the Empire which gradually won a greater independence than their fellows. And the Forest Cantons, and the German-speaking Swiss generally, do not even form a distinct part of the German nation; they are simply three settlements of the Alemanni, just as the three divisions of Lincolnshire are three settlements of the Angles.

<p>11</p>

The earliest instance that I know of the use of the word Englaland is in the Treaty with Olaf and Justin in 991. Its earliest use in the English Chronicles is in 1014. See Norman Conquest, i. 78, 276, 605, 629. The oldest use that I know of the name Yorkshire (Eoforwicscír) is in the Chronicles under 1065. See Norman Conquest, ii. 478. Deira is, of course, as old as Gregory the Great’s pun.

<p>12</p>

The real history of English parishes has yet to be worked out. I feel sure that they will be found to have much more in common with the continental Gemeinden than would seem at first sight. Some hints may be found in a little pamphlet which I lately came across, called “The Parish in History.”

<p>13</p>

The nature of democracy is set forth by Periklês in the Funeral Oration, Thucydides, ii. 37: ὄνομα μὲν διὰ τὸ μὴ ἐς ὀλίγους ἀλλ' ἐς πλείονας οἰκεῖν δημοκρατία κέκληται· μέτεστι δὲ κατὰ μὲν τοὺς νόμους πρὸς τὰ ἴδια διάφορα πᾶσι τὸ ἴσον, κατὰ δὲ τὴν ἀξίωσιν ὡς ἕκαστος ἐν τῷ εὐδοκιμεῖ. It is set forth still more clearly by Athênagoras of Syracuse, vi. 39, where the functions of different classes in a democracy are clearly distinguished: ἐγὼ δέ φημι πρῶτα μὲν δῆμον ξύμπαν ὠνομάσθαι, ὀλιγαρχίαν δὲ μέρος, ἔπειτα φύλακας μὲν ἀρίστους εἶναι χρημάτων τοὺς πλουσίους, βουλεῦσαι δ' ἂν βέλτιστα τοὺς ξυνετοὺς, κρῖναι δ' ἂν ἀκούσαντας ἄριστα τοὺς πολλοὺς, καὶ ταῦτα ὁμοίως καὶ κατὰ μέρη καὶ ξύμπαντα ἐν δημοκρατίᾳ ἰσομοιρεῖν. Here a distinct sphere is assigned both to wealth and to special intelligence. Nearly the same division is drawn by a writer who might by comparison be called aristocratic. Isokratês (Areop. 29) holds that the management of public affairs should be immediately in the hands of the men of wealth and leisure, who should act as servants of the People, the People itself being their master – or, as he does not scruple to say, Tyrant– with full power of reward and punishment: ἐκεῖνοι διεγνωκότες ἦσαν ὅτι δεῖ τὸν μὲν δῆμον ὥσπερ τύραννον καθιστάναι τὰς ἀρχὰς καὶ κολάζειν τοὺς ἐξαμαρτάνοντας καὶ κρίνειν περὶ τῶν ἀμφισβητουμένων, τοὺς δὲ σχολὴν ἄγειν δυναμένους καὶ βίον ἱκανὸν κεκτημένους ἐπιμελεῖσθαι τῶν κοινῶν ὥσπερ οἰκέτας, καὶ δικαίους μὲν γενομένους ἐπαινεῖσθαι καὶ στέργειν ταύτῃ τῇ τιμῇ, κακῶς δὲ διοικήσαντας μηδεμιᾶς συγγνώμης τυγχάνειν, ἀλλὰ ταῖς μεγίσταις ζημίαις περιπίπτειν. This he elsewhere (Panath 166) calls democracy with a mixture of aristocracy – not oligarchy (τὴν δημοκρατίαν τὴν ἀριστοκρατίᾳ μεμιγμένην).

The unfavourable meaning which is often attached to the word democracy, when it does not arise from simple ignorance, probably arises from the use of the word by Aristotle. He makes (Politics, iii. 7) three lawful forms of government, kingship (βασιλεία), aristocracy (ἀριστοκρατία),and what he calls specially πολιτεία or commonwealth. Of these he makes three corruptions, tyranny, oligarchy, and democracy (τυραννίς, ὀλιγαρχία, δημοκρατία), defining democracy to be a government carried on for the special benefit of the poor (πρὸς τὸ συμφέρον τὸ τῶν ἀπόρων). In this there is something of a philosopher’s contempt for all popular government, and it is certain that Aristotle’s way of speaking is not that which is usual in the Greek historians. Polybios, like Herodotus and Thucydides, uses the word democracy in the old honourable sense, and he takes (ii. 38) as his special type of democracy the constitution of the Achaian League, which certainly had in it a strong element of practical aristocracy (see History of Federal Government, cap. v.): ἰσηγορίας καὶ παρρησίας καὶ καθόλου δημοκρατίας ἀληθινῆς σύστημα καὶ προαίρεσιν εἰλικρινεστέραν οὐκ ἂν εὕροι τις τῆς παρὰ τοῖς Ἀχαιοῖς ὑπαρχούσης. In short, what Aristotle calls πολιτεία Polybios calls δημοκρατία; what Aristotle calls δημοκρατία Polybios calls ὀχλοκρατία.