BOOKS.

CREASY'S ENGLISH CONSTITUTION.,

Exeunt liberty has been in all ages of a very practical character, and, as Burke remarked in his Reflections, hereditary. The Great Charter contains in a few clauses the essential principles of consti- tutional liberty,—the supremacy of the law; the right of the " liber homo " to liberty and property unless he forfeits it by law and the judgment of his equals • a right to speedy and unbought justice, regularly, not arbitrarily administered ; exemption from taxation (save in the three established cases) unless imposed by the Great Council of the Nation, and which Council without doubt was a sub- stantial Parliament, where the Commons were represented though not in a separate chamber, or perhaps as a distinct order. These great principles were not, however, stated as abstract propositions, or founded on any "rights of man." They are, as much as may be, embodied in particular examples, and mixed up with a great many peculiar details of a temporary kind, which ceased to exist in a few generations. The Barons did not pretend to found anything new, but to rest their claims on old rights confirmed rather than granted by the charter of Thrill, the First; and though the Great Charter is remarkably close by avoiding all unnecessary words, however minute some of its remedies for actual grievances may seem, one of its last clauses contains " all the aforesaid cus- toms and liberties." In fact, did not the very minuteness and spe- cialty of most of its clauses suggest the idea of a practical re- medy for practical evils, it may be doubted whether any man of that age could have invented such ideas, or, if he could have risen to the abstract notion, whether he could have expressed them so guardedly and comprehensively. A large or what the lawyers call a leading case mostly contains the whole principle, which is very apt to slip through merely written propositions unfounded in reality. The numerous paper constitutions of which the last seventy years have witnessed the concoction, have mostly given way at the first strain. The Great Charter is still the funda- mental basis of English liberty, and among human compositions offers the most remarkable example of Dr. Newman's theory of development. Unless where a total change of society, or some great revolution of opinion, such as Protestantism, has rendered particular modifications needful, the changes of six centuries and a half have been rather M confirm or shape its principles than

even to expand them. The following principal clauses contain the pith of practical liberty, and in one or two cases they are hardly yet redueed to practice. The order of the clauses, as shown by

the numbers, we have changed so that the broadest principles may stand first.

" 39. No freeman shall be taken or imprisoned, or disseised, or outlawed, or banished, or any ways destroyed, nor will we pass upon him, nor will we send him, unless by the lawful judgment of his peers, or by the law of the land. 41. We will sell to no man, we will not deny to any man, either jus-

tice or right. * *

" 12. No scutage or aid shall be imposed in our kingdom, unless by the general council of our kingdom; except for ransoming our person, making our eldest son a knight, and once for marrying our eldest daughter ; and for these there shall be paid a reasonable aid. In like manner it shall be con- cerning the aids of the City of London. 13. And the City of London shall have all its ancient liberties and free customs, as well by land as by water; furthermore we will and grant, that all other cities and boroughs, and towns and ports, shall have all their liberties and free customs. 14. And for hold- ing the general council of the kingdom concerning the assessment of aids, except in the three cases aforesaid, and for the assessing of scutages, we shall cause to be summoned the archbishops, bishops, abbots, earls, and greater barons of the realms, singly by our letters. And furthermore we shall cause to be summoned generally by our sheriffs and bailiffs, all others who hold of us in chief, for a certain day, that is to say forty days before their meeting at least, and to a certain place ; and in all letters of such summons we will declare the cause of such summons. And summons being thus made, the business of the day shall proceed on the day appointed, according to the ad- vice of such as shall be present, although all that were summoned come not.

" 55. All unjust and illegal fines made with us, and all atnerciaments im- posed unjustly and contrary to the law of the land, shall be entirely for- given, or else be left to the decision of the five-and-twenty barons hereafter mentioned.

" 38. No bailiff from henceforth shall put any man to his law upon his own bare saying without credible witnesses to prove it. * * * " 17. Common pleas shall not follow our court, but shall be holden in some place certain. 18. Assizes of novel disseisin, and of mort d'ancestor, and of darrein presentment, shall not be taken but in their proper counties, and after this manner.

" 45. We will not make any justices, constables, sheriffs, or bailiffs, but of such as know the law of the realm and mean duly to observe it. • * • "41. All merchants shall have safe and secure conduct, to go out of and to come into England, and to stay there, and to pass as well by land as by water, for buying and selling by the ancient and allowed customs, without any evil tolls; except in time of war, or when they are of any nation at war with us. And if there be found any such in our land in the beginning of the war, they shall be attached, without damage to their bodies or goods, until itbe known unto us, or our chief justiciary, how our merchants be treated in the nation at war with us ; and if ours be safe there the others * The Rise and Progress of the English Constitution. By E. S. Creasy, M.A., Barrister-at-law; Professor of History in University College, London. Published by lsentley. shall be safe in our dominions. 42. It shall be lawful for the time to come for any one to go. out of our kingdom and return safely and securely, by land or by water, saving his allegiance to us ; unless in time of war, by some short space, for the common benefit of the realm, except prisoners and out- laws, according to the law of the land, and people in war with us, and mer- ehmits who shall be in such condition as is above mentioned."

English liberty being a plant of growth, and of slow growth too, its nature cannot be well understood, or even its title-deeds thoroughly apprehended, without tracing its origin and its history. This is the object of Mr. Creasy's work. Indeed, the origin of the present volume was founded on a pamphlet published in 1848, which contained the Great Charter, the Petition of Right, and the Bill of Rights, with historical comments. The character of the present work retains that of its germ ; it is an historical commentary on the Rise and Progress of the English Constitution. In order to understand this constitution truly, we should know the distin- guishing features of the four peoples which contributed to form the English nation. Hence, after an introduction, giving an analysis of the principles of the constitution, Mr. Creasy takes a summary review of the social state and political institutions of the Romanized Celt, the German and Anglo-Saxon, the Dane, and the Norman, together with a sketch of their history as connected with England. An inquiry into the effects of the Conquest, and a notice of King John's reign and character, introduce the text of the Great Charter, with notes, fol- lowed by. its confirmations. Disquisitions on the origin and history of Parliament and of the Jury carry the reader on to the close of the Plantagenet dynasty. The increased power of the Crown under the first and second Tudors and Elizabeth are ad- mitted; but with this saving clause—that the practical despotism of Henry the Eighth always took the form of a legal or Parlia- mentary sanction, while under Elizabeth the idea of constitutional. rights had made great progress among the middle classes ; her- high-handed encroachments being submitted to from personal vene- ration,—and Mr. Creasy might have added, not always submitted to The constitutional resistance to Charles the First, (the Common- wealth and Protectorate are passed over,) the reigns of Charles and James the Second, and the Revolution itself, are briefly dis- missed, except as regards the Petition of Right and the Bill of Rights. Constitutional politics of the last century and up to the time of the Reform Bill are as briefly touched upon; and the volume closes with some general reference to our present popula. tion and a new Reform Bill.

The substance of the book is avowedly derived from Hallam, Kemble, Forsyth, and various other modern writers, whose labours have thrown so much light on the Anglo-Saxon and early Nor- man times and on constitutional history. But, although a compi- lation in the sense of opposite to original research, Mr. Creasy ex- hibits originality of view, and presents his facts and opinions with clearness and in an attractive manner. The book is well adapted to answer its purpose as a summary of constitutional history, or an introduction to more elaborate works.

It is a general conclusion, that the long and ruthless wars of the Saxon invaders destroyed or drove to Wales the ancient British or Romanized Celt. Mr. Creasy demurs to this sweeping conclu- sion as regards the better half of humanity, and thence infers the origin of English activity compared with the sluggishness of the Germans.

" Led by this historical circumstantial evidence, and by the great fact of our language being essentially Germanic, I believe that the Saxons almost entirely exterminated or expelled the men of British race whom they found in the parts of this country which they conquered. But the same evidence, (both the historical and the philological,) when carefully scrutinized, leads also to the belief that it was only the male part of the British population which was thus swept away, and that, by reason of the unions of the British females with the Saxon warriors, the British element was largely preserved in our nation. I remind my readers that the British, whom the Saxons found here, were mainly Celts. " Besides those Celtic words in the English language which can be proved to be of late introduction, and those which are common to both the Celtic and Germanic tongues, there are certain words which have been retained from the original Celtic of the island. These genuine Celtic words of our language, (besides proper names,) are rather more than thirty in number. The late Mr. Garnett formed a list of them ; and in his opinion the nature of these words showed that the part of the British population which the Saxons did not slay was reduced into a state of complete bondage, inasmuch as all these words have relation to some inferior employment. Now, if the reader will carefully examine the list, he will see that not only do these Celtic words all apply to inferior employments, but that by far the larger number of them apply to articles of feminine use or to domestic feminine oc- cupations. They are as follows—Basket, barrow, button, bran, clout, crock, crook, gusset, kiln, cock, (in cock-boat), dainty, darn, tenter, (in tenter- hook,) fleam, flaw, funnel, gyve, griddel, (gridiron,) gruel, welt, wicket, gown, wire, mesh, mattock, mop, rail, rasher, rug, solder, size, (glue,) tackle.

" This remarkable list of words is precisely what we should expect to find, on the supposition that the conquering Saxons put their male prisoners to the edge of the sword, except a few whom they kept as slaves, but that they took wives to themselves from among the captive daughters of the land. The Saxon master of each household would make his wife and his dependents learn and adopt his language ; but in matters of housewifery and menial drudgery, their proud lord would scorn to interfere, and they would be per-

milted to employ their old own familiar terms. All the circumstances of the Saxon conquests favour this hypothesis. The Saxons came by sea, and in small squadrons at a time. They came also to fight their way, and were little likely to cumber their keels with women from their own shores. A few IleVretias may have accompanied the invading warriors, but in general they must have found the mothers of their children among the population of the country which they conquered.

" This hypothesis also accounts for the difference which undoubtedly ex- ists between ourselves and the modern Germans, both in physical and in meutal characteristics. The Englishman preserves the independence of mind, the probity, the steadiness, the domestic virtues, and the love of order, which marked his German forefathers; while, from the Celtic element of our nation, we derive a greater degree of energy and enterprise, of versatility, and practical readiness, than are to be found in the modern populations of purely Teutonic origin." Among political rationalists, who bring everything to the test of a syllogism, the peculiarity of what Lieber calls "Anglican" liberty has been misunderstood and undervalued, by confounding the obvious exceptions with the latent working of the rule. The retardation which the widely-ramified system of self-government opposes to what is good in itself, and the prejudices or mistakes of juries, have led some writers to prefer the centralization of a strong or even despotic executive, and to contrast the probably sound de- cision of a trained lawyer with the verdict of a jury. The indirect effects of a constitutional system by training every citizen more or less to a practical notion of public business, and the checks which it interposes to evil as well as good, have been more apprehended since the Revolutions of 1848 and their failures. This praise of Juries, from observation, may, however, be quoted as a word in season.

" it is but a few years since an English writer, by proffering a eulogy on trial by jury, would have laid himself open to a remark, like that of the Spartan's to the rhetorician, who volunteered a panegyric on Hercules: ' Why, who ever thought of finding fault with Hercules ? ' But now the fashion has sprung up of sneering at the decisions of jurors ; and we con- tinually hear of schemes to transfer the duty of pronouncing on disputed facts from the jury-box to the bench. Juries are, of course, liable to error; and when they err their blunders are made in public, and draw at least a full share of notice ; but, on the other hand, we should remember the in- variable honesty and the almost invariable patience with which juries address themselves to their duty. No spectacle is more markworthy than that which our common law courts continually offer, of the unflagging attention and resolute determination to act fairly and do their best which is shown by jurors, though wearied by the length of trials, which are frequently rendered more and more wearisome by needless cross-examinations and unduly prolix oratory. The juries of our agricultural districts, with a good share of smock- frocks in the jury-box, (the constant object of the small whispered wit of pert professionals,) deserve to be studied as proofs of how much worth is veiled in low estate in England, which trial by jury calls into action. The thoughtful observer of their enduring zeal in the unpaid discharge of a bur- densome function must reverence from the very depth of his heart the twelve plain, good, and lawful men before him, 'the sturdy, honest, unlettered jurors, who derive no dignity but from the performance of their duties.' Such generous fulness and fairness in hearing and thinking before deciding are not found in any other tribunal. Another inestimable advantage peculiar to jury trial is, that it is not known beforehand who will be the jurors in any particular case, so that there is no time given for the work of corruption. It is hardly known, even at the trial, who the individual jurors are ; and when the trial is over, the members of the jury are dispersed and lost sight of amid the mass of the community. Hence they are, while acting, exempt from all bias of fear and from all selfish motive to favour. And not only are they peculiarly free from all evil influences upon their integrity, but they are free from the sus- picion of being so influenced. The people have full confidence in their honesty. The same amount of confidence (whether deserved or not) would not be accorded to permanent paid officials : and there is truth in the seem- ing paradox of Bentham, that it is even more important that the adminis- tration of justice should be believed to be pure than that it should actually be so. Nor are the errors of judgment which juries fall into by any means so numerous as the impugners of the system assert. The jury generally know what they are about much better than their critics do. ' Twelve men conversant with life, and practised in those feelings which mark the com- mon and necessary intercourse between man and man,' are far more likely to discriminate correctly between lying and truth-telling tongues, between bad and good memories, and to come to a sound, common-sense conclusion about disputed facts, than any single intellect ie, especially if that single in- tellect has been narrowed, though sharpened,' by the practice of the profes- sion of the law."