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
have
viii
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
ix
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
immunity
x
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
xi
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.
J. H. MORGAN.
xii
BIBLIOGRAPHY
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.
xiii
TO HENRY MARQUIS OF LANSDOWNE IN TOKEN
OF HIGH ESTEEM AND SINCERE REGARD THIS WORK IS
RESPECTFULLY INSCRIBED BY THE AUTHOR
CONTENTS
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