The Growth of the English Constitution from the Earliest Times

by Edward A. Freeman

[(46)] The exact value of the document commonly known as the statute “De Tallagio non concedendo” is discussed by Professor Stubbs, p. 487. It is perhaps safest to look on it, like many of the earlier collections of laws, not indeed as an actual statute, but as good evidence of a principle which, from the time of the Confirmation of the Charters, has been universally received. The words are—

“Nullum tallagium vel auxilium per nos vel hæredes nostros de cetero in regno nostro imponatur seu levetur, sine voluntate et assensu communi archiepiscoporum, episcoporum et aliorum prælatorum, comitum, baronum, militum, burgensium, et aliorum liberorum hominum in regno nostro.” This, it will be seen, is the same provision which I have already quoted (see above, Note 36) from the Great Charter of John, but which was left out in the Charter in the form in which it was confirmed by Henry the Third. See Stubbs, 330, 332, 336.

[(47)] I have said this before in Historical Essays, p. 41. On the strongly marked legal character of Edward’s age, and especially of Edward’s own mind, see Stubbs, 417.

[(48)] The great statute of treason of 25 Edward the Third (see the Revised Edition of the Statutes, i. 185) secures the life of the King, his wife, and his eldest son, and the chastity of his wife, his eldest daughter, and his eldest son’s wife. But the personal privilege goes no further. As the Law of England knows no classes of men except peers and commoners, it follows that the younger children of the King—the eldest is born Duke of Cornwall—are, in strictness of speech, commoners, unless they are personally raised to the peerage. I am not aware that either case has ever arisen, but I conceive that there is nothing to hinder a King’s son, not being a peer, from voting at an election, or from being chosen to the House of Commons, and I conceive that, if he committed a crime, he would be tried by a jury. Mere precedence and titles have nothing to do with the matter, though probably a good deal of confusion arises from the very modern fashion—one might almost say the modern vulgarism—of calling all the children of the King or Queen “Princes” and “Princesses.” As late as the time of George the Second uncourtly Englishmen were still found who eschewed the foreign innovation, and who spoke of the Lady Caroline and the Lady Emily, as their fathers had done before them.

Another modern vulgarism is that of using the word “royal”—“royal visit,” “royal marriage,” and so forth—when there is no royalty in the case, the person spoken of being a subject, perhaps a commoner.

[(49)] On the parliamentary position of the clergy see Hallam, Middle Ages, ii. 263. And as far as the reign of Edward the First is concerned, see the series of summonses in Stubbs, 442.

[(50)] On this important constitutional change, which was made in 1664, without any Act of Parliament, but by a mere verbal agreement between Archbishop Sheldon and Lord Chancellor Clarendon, see Hallam, Constitutional History, ii. 405.

[(51)] This is true on the whole, especially at the beginning of the institution of the States General, though there were also roturiers who were the immediate burgesses of the King. See Thierry, History of the Tiers Etat, i. 56 (Eng. trans.). It is in that work that the history of that branch of the States General should be studied.

[(52)] The question of one or two Chambers in an ordinary monarchy or commonwealth is altogether different from the same question under a Federal system. In England or France the question between one or two Chambers in the Legislature is simply a question in which of the two ways the Legislature is likely to do its work best. But in a Federal constitution, like that of Switzerland or the United States, the two Chambers are absolutely necessary. The double sovereignty, that of the whole nation and that of the independent and equal States which have joined together to form it, can be rightly represented only by having two Chambers, one of them, the Nationalrath or House of Representatives, directly representing the nation as such, and the other, the Ständerath or Senate, representing the separate sovereignty of the Cantons. In the debates early in 1872 as to the revision of the Swiss Federal Constitution, a proposal made in the Nationalrath for the abolition of the Ständerath was thrown out by a large majority.

[(53)] On the old Constitution of Sweden, see Laing’s Tour in Sweden.