have taken root here, or been successfully vindicated in the War of Independence. In renouncing our allegiance to George III. we simply followed the line of precedents, which, beginning with the revolt that extorted Magna Charta, and including the deposition of Richard II. and Charles I., led to the Revolution of 1688 and the final expulsion of the Stuarts. Washington is ours; but he was the successor of a long roll of worthies, who, in establishing the principle that taxation should not be imposed without representation, prepared the way for the edifice of constitutional freedom in lands that were as yet unknown.

The value of a method through which the citizens of an extensive and densely peopled country may control the conduct of public affairs without the disorders that must inevitably ensue where the masses are convened to consider questions which concern their feelings and interests, may be regarded as the most fortunate political discovery of any age. By enabling the people of an entire country to unite under one political head without forfeiting their freedom, it has done more to elevate mankind than all the boasted invenattempt of the Notables under Henri IV. to obtain some control over the finances.

It may appear singular that tribes so nearly akin as were the conquerors of Gaul and Britain, and whose institutions were so much alike in the eighth and as late as the twelfth century, should have diverged so widely in after years. The cause was not that the Anglo-Saxons were superior to the other Germanic tribes, but that they formed the bulk of the people who were subsequently known as Englishmen; while the conquering race was in France a merely superficial layer, and the great body of the population consisted of Gallo-Romans long inured to servitude and who had forgotten the very name of freedom. No such union, therefore, was possible as that which fused Norman and Saxon into one people, and rendered the knight of the shire willing to sit in the House of Commons. Thierry, History of the Tiers Etat, ch. vii. pp. 237, 243, 250. Certainly no race ever gave greater proofs of vitality and endurance than did the Franks; and their biennial assemblies were as clearly offshoots of the popular meetings of the Germanic tribes as was the Witenagemote of the Anglo-Saxons. Had the energy which was so lavishly expended under Charlemagne over the vast area extending from the Apennines and Pyrenees to the German Ocean been confined within narrower limits, the political destiny of France might have been akin to that of England.

tions of modern science. Such a result was unknown to antiquity, where liberty was incompatible with an enlargement of the State that would render it impracticable for the citizens to assemble within the city walls for deliberation or defence. The inhabitants of Attica, or of so much of the Campagna as constituted the territory of early Rome, might meet in the market-place and proceed to a choice that would be intelligently made and express the deliberate opinion of the majority, especially where they were organized as at Rome, and voted by centuries or tribes; but no such result was possible after the right of citizenship had been disseminated by grant or colonization throughout Italy and beyond the sea. Personally, the privilege was of the utmost value; but its political effect was neutralized by the impossibility of bringing such a mass of voters to the capital, and of their proceeding deliberatively when there; and the suffrage practically devolved on the populace of the Forum. Had the conception of an assembly composed of delegates from the Italian towns occurred to the Gracchi or been entertained by Marius, the Social War might have been averted, or attended with happier results, and civilization, purified by Christianity, have been handed down in an unbroken line to modern times.

Such a plan would have seemed visionary to the factions on either side; and the conviction that liberty and union, which have been happily allied in our own land, were irreconcilable, contributed to keep the States of Italy and Greece, and the republics of the Middle Ages, at a jealous distance, until they were finally consolidated by the sword.1

If we now turn from the department which enacts to that which interprets and applies the law, it will appear that the judiciary could not until a comparatively recent period be regarded as a distinct or independent department of the English government. To comprehend its origin we must go back to the Aula Regia, where the legislative, financial, and judi

1 Among the nations of antiquity the extension of the State was incompatible with the progress of civilization; either the State must be dislocated, or a despotism would prevail. Guizot's Representative Government, lecture x. p. 124 (London, 1852).

IN ENGLAND AND IN FRANCE.

157

cial business of the State were administered by the king, with the advice or consent of an assembly known as the Great, or Common, Council.1 This consisted of the prelates, the tenants in capite or barons, the great officers of the realm, and such other persons as the king saw fit to summon, in view of their experience, influence, or legal knowledge.2

Its functions were not legally or accurately defined, but varied with the occasion; and as the country passed from the absolute rule of William the Conqueror to a limited monarchy under Edward III., there was a constant and increasing tendency to the organization without which power cannot well be efficient. The barons would not necessarily be convened for judgment unless the plaintiff or defendant was a tenant in capite; the jurists took no part in the grant of aids or subsidies; and neither body would ordinarily be consulted when the question was one of expenditure or administration. Still, the presence of men learned in the law might be serviceable to the Crown in cases where they could not vote, and the barons might insist on making their voice heard when alliances were to be contracted, war declared, or grievances redressed. Like the analogous body which gave birth to the Parliament of Paris, the Great Council was by turns a court, a legislative assembly, and a committee for auditing the public accounts and supervising the collection of the revenue.1 Such a multiplicity of functions was necessarily disadvantageous, and convenience and policy required the establishment of tribunals which should be exclusively engaged in administering justice and punishing offences against the Crown.

1 Stubbs' Constitutional History of England, vol. i. ch. xi. p. 372; ch. xiii. p. 598.

2 See Stubbs' Constitutional History of England, vol. ii. ch. xv. pp. 258, 259; vol. iii. ch. i. pp. 395, 445.

* Stubbs' Constitutional History of England, vol. i. ch. xi. p. 352. On the cognate question of the origin and transformation of La Cour du Roi into the French Parliament, see Faure, Histoire de St. Louis, vol. ii. livre viii. p. 332; Mignet, La Féodalité, partie 2, pp. 120, 122.

* Mignet, La Féodalité, partie 2, ch. v. pp. 120, 129; Faure, Histoire de St. Louis, ii. 334; Stubbs' Constitutional History of England, vol. ii. ch. xv. p. 265; Thierry, Lettres sur l'Histoire de France, 298.

The jurists were seemingly at first summoned as auditors to hear and report rather than determine,' but soon acquired a definite position as judges. The Curia Regis was in the earlier years of Henry II. still a branch of the Great Council, with a numerous staff of justices,2 who were soon afterwards, and probably in the same reign, distributed among three distinct tribunals, designated as the Exchequer, the King's Bench, and the Common Pleas, the first taking charge of questions which concerned the revenue; the second administering criminal justice; and the third being intrusted with the determination of controversies between man and man, which in that age principally concerned the land. This change, which was the reverse of that which occurred in France, where the barons withdrew from the Parliament and left the jurists in possession of the field, did not necessarily or at once lessen the personal authority of the king. If the Common Pleas were, as a well-known clause of Magna Charta required, held at a fixed and certain place, the King's Bench followed the court, and was a ready instrument in the royal hand.4 The king still was really what he continues to be theoretically, justiciarius regni, -the fountain-head of justice; and the judges sat as his delegates and were removable at pleasure.5 As he had presided in the Aula Regia, so he was still constructively present in the courts which were its offshoots, the parties were summoned by writs running in his name, and he might, and sometimes actually did, take his seat on the bench while the case was under trial or argument, and influence, if he did not dictate, the decision. "Kings," said Mr.

6

1 Mignet, La Féodalité, partie 2, p. 125; Stubbs' Constitutional History of England, vol. i. sec. 231, p. 262.

2 Stubbs' Constitutional History of England, vol. i. p. 598.

8 Thierry, History of the Tiers Etat, ch. ii. p. 57 (London, 1855); Faure, Histoire de St. Louis, vol. ii. livre viii. pp. 333, 334; Mignet, La Féodalité, partie 2, ch. v. p. 125.

4 Articuli super Chartas, c. 5, 551.

52 Parliamentary History, 303, 318; Stubbs' Constitutional History of England, vol. i. ch. xi. pp. 387, 388; 3 Green's History of the English People, 94.

2 Parliamentary History, 322; 12 Coke, 63.

Littleton, in his speech at the conference between the Houses on the liberty of the subject, in the third Parliament of Charles I., "have sitten in their beds of justice, as Edward VI. did on a trial for rape in the King's Bench;" and although he was careful to add that Edward did not pronounce the sentence, but left it to his justices, there can be no doubt that at an earlier period the judicial function was not only formally, but actually, exercised by the king2 William the Conqueror heard causes in person, and so, we are told, did Henry II. ;3 and a well-known passage in Coke's Reports would seem to indicate that Richard II., if not Henry VII., should be added to the list. The right to judge is indeed as much an attribute of kingship, as conceived in the earlier stages of most nations, as the power to command, and the doctrine that it must be exercised vicariously a growth of after times. Moreover, while it was an established principle of the feudal system, confirmed by Magna Charta, that each man should be judged by his peers, it was the privilege of the king as chief lord, to hold the court and preside personally or by deputy over its deliberations. St. Louis sitting as judge under the great oak of Vincennes, is accordingly a scene on which French historians delight to dwell; and a like right was claimed in England as a branch of the prerogative, as late as the beginning of the seventeenth century, by James I. It is not, therefore, surprising that the Council of the Norman and Angevin kings should also have been the Curia Regis, where the king or his delegate, the grand justiciary, sat for the determination of such causes as concerned the State or transcended the powers of the county courts.?

1 2 Parliamentary History, 322.

6

21 Stubbs' Constitutional History of England, 598.

8 1 Stubbs' Constitutional History of England, 387, notes.

12 Coke, 63.

5 Mignet, La Féodalité, partie 2, ch. v. p. 121.

See Faure, Histoire de St. Louis, vol. ii. livre viii. c. 12, p. 310. The power which renders judgment should obviously be one strong enough to execute what it decrees. In France the administration of justice consequently fell in the first instance to the barons, who presided personally or through their bailiffs in their respective feuds, and as the