Constitutional History of England by Henry Hallam - HTML preview

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Few historical works have stood the test of time better than Hallam's

Constitutional History. It was written nearly a century ago—the first

edition was published in 1827—and at a time when historians were

nothing if not stout party men. The science of history, as we now

know it, was in its infancy; apologetics were preferred to exegesis;

the study of "sources," the editing of texts, the classification of

authorities were almost unknown. History was regarded as the

handmaid of politics, and the duty of the historian was conceived as

being, in the language of Macaulay, the impression of "general truths"

upon his generation as to the art of government and the progress of

society. Whig and Tory, Erastian and High Churchman, debated on

the field of history. The characters of Laud and Cromwell excited as

much passion and recrimination as if they were contemporary

politicians. That a history written in such times, and by a writer who

was proud to call himself a Whig, should still hold its place is not a

little remarkable. The reason for its vitality is to be found in the

temperament and training of the author. Hallam was a lawyer in the

sense in which that term is used at the Bar; that is to say, not so

much a seductive advocate as a man deeply versed in the law,

accurate, judicious, and impartial. Macaulay, who was as much the

advocate as Hallam is the judge, described the Constitutional History

as "the most impartial book we ever read," and the tribute was not

undeserved. Hallam is often didactic, but he is never partisan.

Although a Whig he was by no means concerned, like Macaulay, to

prove that the Whigs were never in the wrong, and, as he shrewdly

remarks, in his examination of the tenets of the two great parties in

the eighteenth century: "It is one thing to prefer the Whig principles,

another to justify, as an advocate, the party which bore that name."

No better illustration of his attitude of mind can be found than the

passage in which, treating of the outbreak of hostilities between

Charles I. and the Long Parliament, he sets himself to consider

"whether a thoroughly upright and enlightened man would rather



listed under the royal or the parliamentary standard." In these days

when, as the distinguished occupant of the chair of Modern History at

Cambridge tells us, "history has nothing to do with morality," Hallam's

grave anxiety to solve this problem may sound quaint and, indeed,

irrelevant; but there is no denying the high purpose, the sincerity, and

the passion for truth which characterise the passage in question. To-

day the historian's conception of truth is purely objective: his aim is to

discover what former generations thought rather than to concern

himself with what we should think of them. The late Lord Acton[1]

stood almost alone among the modern school of historians in insisting

that it is the duty of the historian to uphold "the authority of

conscience" and "that moral standard which the powers of earth and

religion itself tend constantly to depress." It is more fashionable to

contend that the moral standard is relative; that we cannot judge the

men of the past by the ethical rules of the present; that conscience

itself is the product of historical development. It may be questioned

whether this scepticism has not been carried too far. Hallam had no

such doubts. For him "the thoroughly upright and enlightened man" of

the seventeenth century was not intrinsically different from the

thoroughly upright and enlightened man of the nineteenth; the one

concession he makes to time is that the historian is probably in a

better, not a worse, position to judge than the men of whom he

writes—if only because he is more detached. He condemns the

obsequiousness of Cranmer, the bigotry of Laud, the tortuousness of

Charles I., the ambition of Strafford, with the same reprobation as he

would have extended to similar obliquities in a contemporary. Unless

we are to exclude conduct altogether from our consideration and to

deny the personal factor in history, we shall find it hard to say he is

wrong. Gardiner, the latest historian of the Stuarts, does not hesitate

to pronounce similar judgments, though he expresses himself more

mildly. Sorel, perhaps the most illustrious of the modern school of

French historians and a scholar who spent his life among the

archives, has not hesitated—in writing on the Partition of Poland—to

speak of the Nemesis which always waits upon such "public crimes."

Hallam's predilection for moral judgments is the more intelligible if we

remember that his conception of "constitutional" history is somewhat

wider than ours is to-day. He


included in it much that would now be called "political" history. One

has only to compare his work with the latest of our authorities—the

posthumous book of F. W. Maitland—to realise how the term has

become specialised. Maitland confines his treatment to the results of

political action as they are represented in the growth of institutions;

with political action itself he is, unlike Hallam, not concerned. The rise

and fall of parties, the issues of Parliamentary debate, the progress of

political speculation interest him but little and disturb him not at all.

But to Hallam these things were hardly less important than the statute

book and the law reports. This liberal view of his subject is not a thing

to be regretted. It enables the reader to appreciate the large part

played in the development of the English constitution by those

"conventions" which are a gloss upon the law and without which the

constitution itself is unintelligible. As Bagehot has pointed out, the

legal powers of the king are as large as his actual authority is small.

In strict legal theory the cabinet is merely an informal group of

ministers of the crown who hold office during the king's pleasure. In

fact and in practice it is a committee of the House of Commons

dependent upon the support of the majority of the members. The fact

is the outcome of a conventional modification of the theory, and this

convention is due to the political changes of the eighteenth century

and the growth of the party system. In the pages of Hallam these

changes receive their due recognition, and without it the development

of the English constitution is unintelligible. It was a favourite doctrine

of Hallam that so far as the law was concerned the constitution was

developed very early and that all that later generations contributed to

it was better administration of the law and a more vigilant public

opinion. He even goes so far as to say in his chapter in the Middle

Ages that he doubts "whether there are any essential privileges of our

countrymen, any fundamental securities against arbitrary power, so

far as they depend upon positive institutions, which may not be traced

to the time of the Plantagenets." This is something of an

anachronism, but it represents a not unjustifiable reaction against the

high prerogative doctrines of writers of his own day. What Hallam,

however, was really concerned to prove was that constitutional law in

this country rests upon the common law—upon the rules laid down by

mediæval judges as to the right of the subject to trial by jury, his



from arbitrary arrest, his claim not to be arbitrarily dispossessed of his

property, and his right of action against the servants of the crown

when he has suffered wrong. In this conception Hallam was

undoubtedly right, and he urged it at a time when no one had made it

as familiar as it has now become in the classic pages of Professor

Dicey. But Hallam was perfectly well aware that these securities for

the liberty of the subject were often abused, that the sheriffs who

empanelled the jury were often corrupt and the judges who directed it

were not infrequently servile; also that so long as the Star Chamber

existed no jury could venture to give a verdict of "not guilty" in a

prosecution by the crown without running the risk of being heavily

punished. He is not insensible to these abuses and to the length of

time it took to correct them, as the reader of the following pages will

discover for himself, and he attaches due weight to the constitutional

importance of the Act for the Abolition of the Star Chamber. But the

truth of his main contention (as expressed in his chapter on "The

English Constitution" in an earlier work[2]), that what chiefly distinguished our constitution from that of other countries was the

"security for personal freedom and property" enjoyed by the subject,

is undeniable. It was not so much the possession of representative

institutions as the enjoyment of equal rights at common law that

constituted the Englishman's advantage. Maitland[3] has recently pointed this out in language almost identical with that of Hallam when

he insists that "Parliaments" or "Estates" were in no way peculiar to

England; every country in Western Europe possessed them in the

Middle Ages, but what those countries did not possess was a great

school of law like the Inns of Court determined to uphold at all costs

the claims of the customary law of the nation against the despotic

doctrines of the civil law of Rome.

Hallam's attitude towards the constitution was that of Burke—he

regarded it with a veneration little short of superstition. He has

expressed himself in his earlier works in words which can hardly fail

to provoke a smile to-day:—

"No unbiassed observer, who derives pleasure from the welfare of his

species, can fail to consider the long and uninterruptedly


increasing prosperity of England as the most beautiful phenomenon in the

history of mankind. Climates more propitious may impart more largely the

mere enjoyments of existence; but in no other region have the benefits that

political institutions can confer been diffused over so extended a

population; nor have any people so well reconciled the discordant

elements of wealth, order, and liberty. These advantages are surely not

owing to the soil of this island, nor to the latitude in which it is placed; but

to the spirit of its laws, from which, through various means, the

characteristic independence and industriousness of our nation have been

derived. The constitution, therefore, of England must be to inquisitive men

of all countries, far more to ourselves, an object of superior interest;

distinguished especially as it is from all free governments of powerful

nations which history has recorded by its manifesting, after the lapse of

several centuries, not merely no symptom of irretrievable decay, but a

more expansive energy."[4]

If his language seems extravagant, I may remind the reader that

there would have been few in Hallam's day who were prepared to

dispute it. England, almost alone among the states of Europe, had

escaped the infection of the French Revolution. Its constitution had

survived the shock of a movement which, as De Tocqueville has

remarked, was as widely destructive of the old order in Europe as the

Reformation itself. The result was to give the English constitution

such a prestige as it had not enjoyed since the days of Montesquieu.

A school of thinkers, beginning with Guizot and hardly terminating

with Gneist, grew up on the continent who made it their duty to follow

Burke's advice and "study the British constitution" as the last word in

political wisdom. Hallam's complacency may be naive in its

expression, but its sentiment is sound, and Englishmen should be the

last to disclaim it. Upon this rock many a political church has been

built; the "law and custom of our Parliament" have, since he wrote,

been studied in every university in Europe and adopted in almost all

the legislatures of the civilised world. Hallam, like Thucydides, with

whom in dignity and sententiousness he may not unjustly be

compared, had a noble pride in the constitution of his country.




A View of the State of Europe during the Middle Ages, 1818; 2nd

edition, 1819; passed through twelve editions before 1855; revised

and corrected, 1868; adapted to the use of students by W. Smith,

1871; edited by A. Murray, 1872; translated into Italian by G. Carraro

and published at Firenze, 1874; Supplemental Notes to View of the

State of Europe, 1848. The Constitutional History of England from the

Accession of Henry VIII. to Death of George II., 1827; translated into

German by F. A. Rüder and published at Leipzig, 1828; translated

into French by M. Guizot and published in Paris, 1832; passed

through eight editions before 1855; adapted to the use of students by

W. Smith, 1872. Edited (with preface and memoir of his son)

Remains in Verse and Prose of A. H. Hallam, 1834, 1863. The

Introduction to the Literature of Europe during the 15th, 16th, and

17th Centuries, 1837-1839; 2nd edition, 1843; other editions, 1854,

1855, 1881. Contributed to J. C. Hare's Vindication of Luther against

his recent English assailants (2nd edition, enlarged), 1855.

A Short Life and Criticism of Henry Hallam appears in F. A. M.

Mignet's Eloges Historiques, published in Paris in 1864.