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governing a united people, that the laws he is making
and the courts he is consolidating are the laws and
the cburts of the English people, and < that it is not less
for their advantage than for his own that he must govern
in accordance with the laws he has recognized. This
principle, implicit in the legislative work of Henry II.,
becomes explicit in the action of the barons in the reign
of John ; although the real importance of the Great
Charter itself is implicit rather than explicit. Explicitly
it lays down the principle that the King, if he breaks the
law of the land, can be compelled by the barons to
amend his ways by a legalized display of force. It has
been maintained by a French critic of our history that
Magna Carta was in no sense a national document, but
was conceived entirely in the interests of the barons
themselves; that, to revert to our own phraseology, it
gave a legal sanction to the principle of feudal disruption
by justifying the right of baronial rebellion. But the
same critic has admitted that " false interpretations of
some of its articles have not been without influence
on the development of English liberties, men having
discovered in it, in the course of centuries, all sorts of
principles of which its authors had not the least notion." *
In a word, the barons builded better than they knew.
The legal and personal rights of the " liber homo " were
secured by the Charter when the conception of legal and
personal liberty widened with the progress of our
national life. The principles which the barons laid
down on behalf of their own order were expressed in
language which was capable of a wider interpretation as it
came to be recognized that other orders had an interest
in a strong and just national government. It cannot be
claimed that a full national consciousness is expressed in
the Great Charter, but the forms of government by the
people for the people are already there, soon to be flushed
with the new and more comprehensive life which was
stirring in the growing and strengthening nation.

1 Studies and Notes Supplementary to Stubbs" Constitutional History
down to the. Great Charter, by Charles Petit-Dutaillis, translated by
W. E. Rhodes, M.A. (Manchester University Press, 1908).


Although Henry III. was placed upon the throne by
foreign rather than by national influence, by the power
of the Papal Legate rather than by the power of those
English barons who took his part; although the King
himself was more French than English in his tastes and
predilections ; yet it is in his reign that we have the rise
of that national movement which gives us the English
Parliament as the organ and expression of a strong
national sentiment. Henry's policy allowed England
to become the happy hunting-ground of every Savoyard
and Poitevin and Proven9al who saw in the favour of
Henry's Proven9al Queen opportunities for personal
aggrandisement. By a touch of historical irony, one
of these foreigners was Simon de Montfort, to whose
action in purely English politics it was largely due that
the old feudal ideas of separate local independence were
finally overthrown, and even the sole right of barons
and prelates to advise the King in matters affecting the
Commonweal was destroyed by the admission to the
common Council of the Realm of that element repre-
sented by the burghers and the Knights of the Shire.
This element of popular representation was not per-
manently established by De Montfort' s Parliament of
1265, but when De Montfort's " rival and pupil," the
" English Justinian," Edward I., came to carry on the
work of administrative concentration, he found that he
could most firmly establish the central power by building
up a national consultative assembly in which the people
should find itself represented as fully as was then
thought possible, and we see the fruition of De Mont-
fort's earlier labours in the so-called " Model Parlia-
ment " of 1295.- "What touches all," said the King,
" should be approved by all ; common dangers should
be met by remedies agreed upon in common. The King
of France has beset my realm with a great fleet and a
great multitude of warriors, and proposes to blot out
the English tongue from the face of the earth." There
at last we have a full and authoritative expression of
that conscious sentiment of nationality which presents
a whole community, formed out of many warring
elements, as united in a single effort of internal adminis-
tration and foreign action.



But while the consolidation of the nationalistic senti-
ment was being effected as against the spirit of feudal
disruption, it was, at the same time, no less persistently
asserted as against the cosmopolitan ideals of ecclesi-
asticism. It was Gregory VII. who, as Subdeacon
Hildebrand, had blessed the Norman standard which
was victorious at Hastings; and the titanic struggle
between the Hildebrandine Papacy and the secular
" Holy " Roman Empire of Henry IV. was felt by
England in many direct and indirect results. The
exemption of ecclesiastics from civil jurisdiction,
unknown in the primitive ages of the Church, except so
far as, in accordance with Apostolic precept, its members
settled their differences amongst themselves, arose
gradually and almost accidentally, and was not fully
established even so late as the tenth century. 1 But from
that . time the practice spread rapidly throughout
Western Christendom; and the spiritual courts, by the
regularity of their procedure and the full opportunities
allowed for the revision of judgments step by step until,
if necessary, they reached the Pope himself, presented
an impressive picture of established judicial procedure,
securing that fairness in the settlement of disputes
which seems so desirable to men who have been long
harassed by the strong hand of arbitrary tyranny.
It was in these courts, established in every part of
Papal Christendom, that the ecclesiastical authorities
found the machinery for carrying out their ideal of a
universal state, of which secular kings and emperors
should be the vassals and instruments.

We have already described the condition of practical

1 " On the establishment of Christianity the practice obtained
legislative sanction, Constantino giving the bishop's court concurrent
jurisdiction with the ordinary civil courts where both parties preferred
the former, and by a later enactment going so far as to empower one
of the parties to a suit to remove it to the ecclesiastical tribunal against
the will of the other. Honorius judged it expedient to revert to the
original rule, and, at least as regarded laymen, to limit the right of
resort to the episcopal judicatory to cases in which both parties con-
sented." The clerical judge, however, had no criminal jurisdiction,
and, even in a civil case, his finding, if not voluntarily implemented,
has to be rendered operative by the aid of the civil magistrate.
Historical Introduction to tJie Private Law of Rome, by James Muirhead,
LL.D. (Edinburgh : A. & C. Black, 1886), p. 434.



independence which the English Church, so far as the
Papacy was concerned, had enjoyed before the Conquest.
That event, however, brought it into the full circle of
Continental ecclesiasticism, and the Conqueror's early
substitution of English abbots by cosmopolitan Church
dignitaries from Bee and Caen and Lombardy and
Lorraine soon flooded the English Church with minds
fully instructed in the principles of ecclesiastical juris-
prudence. Little inconvenience was felt in the reign
of the Conqueror, who, aided by the English ecclesiastical
tradition of independence and by the Anglo-Saxon union
of Church and State, fostered the Church as subordinate
to the Crown, exacting feudal homage from the bishops,
but himself repudiating the claim of Pope Gregory VII.'
to exact it from him, although he sowed the seeds of
much future mischief by allowing the creation of separate
ecclesiastical courts in the country. For a century and
a half after the Conquest the kings adhered to their
claim to appoint archbishops, bishops and abbots, whose
positions as barons in the secular feudal hierarchy
made it important that they should be in harmony with
the political views of the central authority. Both
Henry I. and Henry II. had been strict in asserting this
necessary instrument of royal policy, and the latter
had even been able, notwithstanding the bitter opposi-
tion of Becket, to inflict a set-back upon clerical freedom
from civil jurisdiction. But the dream of an Imperial
Church fatally obsessed the minds of the Popes and
their supporters. About the beginning of the twelfth
century a copy of the Digest or Pandects of Justinian,
prepared as a compendious exposition of what was most
valuable in Roman jurisprudence, appears to have been
found at Pisa. This account of the principles of Roman
law, richer in material, clearer and more logical in form,
than any previously accessible, and issued as it had
been by a Christian emperor as a Perpetual Edict,
was welcomed by the Roman Church as an additional
instrument in the perfection of her universal organiza-
tion, and ecclesiastically-minded lawyers lectured on
the new legal manual in every university and city of
Western Europe, starting at Bologna from the school
of Irnerius into whose hands the new MS. had found
N 177


its way. 1 The Vicar of Christ as feudal lord of the world,
whose sway was buttressed by a detailed and definite
system of law universal in its application this, indeed,
was the very apotheosis of the principle of centraliza-
tion; but grandiose as the ideal was, and logically
based upon an extension of those very principles which
had led to the establishment of the separate kingdoms
and states of Europe, it presented features which
brought it into opposition to the rising forces of nation-
ality, with the result that, not only on the Continent,
but in England also, the national tradition refused to
submit to the universal Church. But the force of the
ecclesiastical conception, embodied in: one of the most
perfectly organized institutions the world has ever
known, was sufficient to bring weak kings like John
and Henry III. to the feet of the Church. John sur-
rendered his kingdom to Pope Innocent III. and received
it back as the Pope's feudal vassal. Even Magna Carta
conceded the right of free election to cathedral chapters
and religious houses, and inferentially made every elec-
tion subject to the approval of the Pope, who also
claimed and exercised from this time onward an absolute
power over nominations to many English benefices.
This power enabled Gregory IX. to extract large sums
from England to support him in his final conflict with
the Emperor Frederick II., and these exactions, coupled
with the fact that so many foreign incumbents had
been imposed on English parishes, where they were paid
for services which they could not perform, accentuated
the rising national exasperation against the foreigner,
whether here for social profit or ecclesiastical prefer-
ment, gave greater driving power to the movement
which created the Parliaments of 1265 and 1295, and
enabled Edward I. to obtain full national sanction for
the great series of enactments in which he established
both the spiritual and political independence of England
against the Papacy and its claim to universal dominion.
As on the purely political side of nationality there were
set-backs and retrogressions, so also on the purely
ecclesiastical side there were to be vicissitudes, until
the Tudor monarchs completed the work of the
1 Muirhead'a Private Law of Rome, p. 434.


First Edward by centralizing ecclesiastical as well as
political authority in the head of the State. The
spheres of spiritual power and political action were
amalgamated to form constituent elements in the wider
sphere of national life.

From this point onward historians of England,
however much their narrative may be coloured by
sympathy with this or that protagonist in the struggle,
can only record facts which, more or less effectively,
only describe persons who, more or less willingly, con-
tributed their share to that final consummation of
British political life which substitutes symbolic kingship
for personal kingship. The nineteenth century realiza-
tion of the ideal of the King as the symbol of a united
people, representing their conscience, their hopes and
their collective purpose, is the final triumph of the
principle of centralization which was the permanent
Norman contribution to the influences that have made
for national development. The Normans also contributed
another influence the tendency to disruption and dis-
integration ; but, aided by the special circumstances which
moulded the character of English kings and English
people on English soil, they placed the former principle
on so sound a basis that after the thirteenth century
it was never eliminated from our English national life.
The conflict between the two was not yet over ; but as
the Tudor and Stuart love of personal monarchy was
in reality a return to the disruptive principle, inasmuch
as it claimed powers for the King apart from the will
of the people, and tended to set up again two funda-
mentally interhostile elements in the State, it can be
no matter for surprise that the old tradition of unity
finally re-asserted itself over the individualism of the
kings. But when the monarchy survived the execution
of one royal personage and the expulsion of another,
it was clearly evident that the principle of royalty
existed independently of persons, and had its essential
value and meaning in symbolizing and representing the
united people of the nation. From 1688 onwards the
whole tendency of our political development has been
in the direction of still further strengthening the Crown
as against the person of the King, by making the Crown



the symbol of a united nation and at last of a united
Empire. The. Crown, as we have seen, however, is
not the only symbol of our national unity ; and whether
it can long remain practically the only symbol of our
Imperial unity is a question which does not concern
us here, except to suggest that some hints towards a
solution of the question, when it becomes urgent, as
it is rapidly becoming urgent, may be found in the
precedents of our national history.

If we were able to detail at length the steps which
led to the incorporation of Wales, Scotland and Ireland
in the United Kingdom, the story would but illustrate
more fully the fact that the growth of common nationality
is no question of the mixing of the blood of different
races, but only a question of an historical process by
which competing and mutually hostile spheres of interest
are diminished or disappear in the wider ' spheres of
common interest. The fact that internecine wars were
long carried on between the various parts of the now
united kingdom indicates -the hostility of the separate
spheres of interest towards each other; the union of
these parts in one single constitutional system is an
intimation of the growth of a sphere of common interests,
common sentiments and common hopes. Just so far
as the pressure of circumstances and the conscious actions
of men have tended to produce a strong sense of common
interest, just to that extent is the sense of common
nationality strongly and securely based ; as in the cases
of Wales and Scotland. Just so far as the pressure
of circumstances and the C9nscious action of men have
failed to produce a strong sense of common interest,
just to that extent has the sense of common nationality
been weak and halting, as at most periods in the history
of Ireland. The case of Scotland is particularly in-
teresting as showing how much practical unity can exist
side by side with considerable diversity of national
customs and national character. Indeed, it is one of the
happy paradoxes of British nationality that the strongest
sense of unity is nurtured upon local freedom in matters
which do not directly concern the spheres of national

In the case of the Colonies, the feeling of common



interest has existed from the first, as the oversea settlers
necessarily 'carried with them the national tradition
in which they had been born and reared. Even when
the emigration was due to a desire to escape tyrannical
infringements of personal or social freedom, the refugees
took with them that very principle of liberty which
they regarded as the birthright of Englishmen ; the
sacred necessity of that principle for their political
and spiritual growth was, indeed, the very cause of
their leaving the country where they had learned it,
but could not enjoy it so much as they wished. That
native and familiar growth of the soil of England, the
popular Assembly, bore transplanting so well that it
soon became native and familiar in every quarter of the
globe. " It was the nature of Englishmen to assemble,"
says Seeley. " Thus the old historian of the Colonies,
Hutchinson, writes under the year 1619, * This year a
House of Burgesses broke out in Virginia.' " J Colonial
legislature and administration, whatever developments
they might assume in order to meet local needs, were
necessarily inspired by the principles of English con-
stitutional progress and guided by the precedents of
English law. Religion, moreover, still united them in
sympathetic, if distant, communion with congregations
they had left at home ; and although the influence of
a common language in harmonizing adverse interests
has been unduly exaggerated, yet we cannot deny to
the educated Colonist a sense of community with all
the countrymen of Shakespeare and Milton, nor to the
remainder a feeling of spiritual unity with all those who
read the English Bible. The bases of the British Empire
abroad are undoubtedly fixed in the English national
tradition, which has been strong enough to endure even
when the policy of England herself did nothing to
encourage, and something to thwart, its permanence.
The British Empire is, indeed, the " Expansion of
England," as Seeley so happily expressed it, and the
remotest settlements of her people are connected with
her by that continuity of tradition which, as we have
shown by parallel cases at home, becomes all the stronger
and richer for the intermingling with it of the special
1 The Expansion of England, p. 67 (Macmillan, 1883).


elements of the new environment. The growth of the
British Empire, like that of Great Britain herself, is
an example of that continuous process by which the
feeling of organic community has been associated with
local patriotism in the creation of a loyalty at once
generously Imperial and strongly particularistic. The
Empire is still what the Merchant Adventurers of
England were in the sixteenth century " the English
nation beyond the sea." 1 The principle whose opera-
tion brought union among warring English states has
had a vigorous application in the evolution of the
British Colonial system, in which we have seen colonies
peopled by different races forming Unions and Con-
federations within the still greater Union and Con-
federation of the Empire itself. When we remember
that the most permanent and the strongest element in
the English political tradition is the principle of self-
government, it ceases to be a paradox that the extension
of self-government in our Colonial Empire should be
the most efficient cause in binding the Empire and
England into indissoluble union. And it is a perfectly
natural extension of the same principle that Colonies
which have governed themselves as parts of the Empire
should demand a share in the government of the Empire
of which they are parts; as representatives of the
English political tradition * they can do nothing less.
The principle which gave Barbadoes self-government .
at the outset is the identical principle which in the
natural order of development created the Imperial
Conference and, aided by the accentuation of Imperial
unity owing to the common danger of the war, has
given us the Imperial War Cabinet. The progress of the
war and the growth of Imperial unity will, no doubt, lead
to a gradual extension of the powers of the Colonial repre-
sentatives in the Cabinet, and it is easy to foretell that the
settlement to come after the war will be the work, not
only of English politicians, but of Imperial statesmen
in the widest sense. 2 Finally, one may surely prophesy

1 The British Empire, Six Lectures by Sir Charles Lucas, K.C.B.,
K.C.M.G. (Macmillan, 1915), p. 18.

8 This, of course, was written before the end of the war. The
broader Colonial and Indian representation at the Peace Conference
has still further illustrated the point.



without rashness that the Empire will enjoy self-govern-
ment as an Empire as well as in its individual elements,
with a system of Imperial taxation for Imperial purposes,
taxation not voted by the British Parliament, but by
an Imperial Assembly. A fully Imperial Constitution
will inevitably follow; and just as the principle of
organic continuity, of common interest has been the
foundation of nationality in the local sense, so it will
attain a splendid culmination in the formation of an
Imperial nationality in which all the various interests
of the separate elements will be harmonized and em-
bodied. Again, we find that organic continuity of
common interest is the basis of nationality, of nationality
Imperial as well as local. The American Colonies were
lost to the British Empire owing to an apparent and
temporary divergence of interest which was accentuated
by the folly of English politicians into a permanent
separation; but it is an interesting and not entirely
academic question how far the participation of the
United States in the war on the side of the Allies was
due, not only to the sense of a common interest in the
settlement of immediately pressing questions, but to
the endurance of that English tradition of freedom in
which the foundations of American nationality were laid.

So far as the Dependencies are concerned our adminis-
tration has been more or less successful, according to
the degree in which, after a period of the imposition of
the strong hand of conquest, it has convinced the natives
that their own special interests can be best safeguarded
by their acquiescence in a condition of government
which brings them into the sphere of interests common
to the Empire as a whole. In India the methods of our
administration have actually created that sense of
national unity which we are now endeavouring to satisfy
in such a manner as to convince the native populations
that their interests are indissolubly bound up with our

That the Empire, notwithstanding the infinite variety
of the racial elements which compose it and the different
types of national character which it exhibits, has been
enduringly built upon the solid ground of common
interests, common dangers and common hopes, is proved



by " the old English fortitude and love of freedom "
displayed by those who, having founded an Empire,
have cemented it enduringly by the ultimate consecra-
tion of death' in defence of its common ideals.

Note. The writer has adhered to the use of the term
"Empire" as most expressive of the grandeur of the
conception, as well as most in harmony with even
democratic precedent, notwithstanding the criticism
that has recently been directed against it from demo-
cratic quarters. Admitting that the word " imperium "
originally meant the military power conferred upon a
Roman magistrate, and that in the time of Appian
(A.D. 125) the military title of Imperator was never
conferred upon a general unless 10,000 of the enemy had
been slain (De Bella Civili, II. 455), we may yet ask
what would become of our composite English speech
if we were forbidden to use words except in the meaning
they had in the language from which we received them.
Besides, that the term " Commonwealth," preferred
by some, is not devoid of similar bloodthirsty associa-
tions the pages of Livy, Guicciardini and Motley bear
witness. Even under our own " Commonwealth "
more than half the national revenue was spent upon the
Navy ! But these objections would not tell against the
word " Commonwealth " any more than they do against
the word " Empire." The fact is that these two words
denote quite different conceptions in our recognized and

Online LibraryJohn OakesmithRace & nationality, an inquiry into the origin and growth of patriotism → online text (page 18 of 29)