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ESSAYS
INTRODUCTORY TO THE STUDY OF
English Constitutional History
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ES SAYS
IXTRODL'CTORY TO THE STUDY OF
English Constitutional History
BY RESIDENT MEMBERS OF THE UNIVERSITY' OF OXFORD
EOiTEO BY
HENRY OFFLEY WAKEMAN, M.A.
VBLLOW or ALL SOULS COLLECB. TUTOB OF KEBLS COLL£UC AND
ARTHUR H ASS ALL, M..\.
STUOKMT AMD TUTOS OT CMIUST CHUKCH
LONDON LONGMANS, GREEN, & CO.
AND NEW YORK: 15 EAST iC"" STREET
1894
[JView E<HHoh\
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PREFACE.
The writers of the Essays contained in this volume do not pretend that it is the result of original research, or that it will throw any additional light on the many unsolved problems of English Constitutional History. Their object is the much humbler one of trying to arrange the well-ascertained facts connected with the growth of our institutions in such a way as may make the study of them more intelligible, and more attractive to beginners. Each Essay attempts to bring into strong relief the central principle of con- stitutional development which is characteristic of the period of which it treats ; and is complete in itself, although a certain unity and chronological order is preserved throughout.
The picture of the growth of the Constitution thus presented is doubtless rather a photograph than a portrait. The leading features are brought into ex- ceptional prominence at the e.xpense of due harmony, and occasionally, perhaps, of fidelity of effect. Some features are thrown too much into the background, or are altogether obscured. In a work confessedly introductory to a subject so difficult as Constitutional History, it was thought worth while to run the risk of much unevenness and inadequacy of treatment in
vi Preface.
order to gain, if possible, the compensating advan- tages of clearness and simplicity. Whether the experiment has succeeded it will be for the reader to judge.
The Constitutional History of Dr. Stubbs has, with his permission, been taken throughout as the founda- tion of the work ; and references to it, therefore, have not been inserted. To the kindness of Dr. Stubbs in looking over the proofs of this volume, and to his ready sympathy and help accorded to them in their undertaking, the authors wish to express their deep obligation. They are sensible how much of what there may be of value in the following pages is due to his suggestion and criticism.
Oxford, September, iS86.
In preparing a Second Edition for the press, little alteration has been found necessary except in the first Essay, on the subject of which a good deal of light has been thrown by recent research. The wide and accurate knowledge of the Rev. A. H. Johnson, Tutor of Merton University and Trinity Colleges, has been of great assistance in the revision of this part of the work, and requires special recognition and thanks.
Oxford, /«««tfrj', 1891.
CONTENTS
I. THE EARLY ENGLISH CONSTITUTION
H. Hensley Henson, M.A., Fellow of All Souls College i
II. FEUDALISM
W. J. Ashley, M.A., Professor of Political Economy in the University of Harvard, formerly Fellow of Lincoln College 4$
III. THE ANGLO-NORMAN AND ANGEVIN ADMIMS- TRATIVE SYSTEM (1100-1266) C. W. C. Oman, M.A., Fellow of All Souk Ccllese . . 113
IV. PARLIAMENT
Dudley Julius Medley, M.A., Tutor of Keble
College 159
V. CONSTITUTIONAL KINGSHIP (1399-1486)
Arthur Hassall, M.A., Student of Christ Church . . 224
VI. THE INFLUENCE OF THE CHURCH UPON THE DEVELOPMENT OF THE STATE
Hknry Offley Wakeman, M.A., Fellow of All Souls
College 267
ESSAY I.
THE EARLY ENGLISH CONSTITUTION.
The Constitutional History of the English General differs essentially from that of the other Euro- ^f*^"^/
' towards
pean nations. It differs, yet it is not vflxhontfetidaiism. points of resemblance. In England before the Conquest, as in the other countries of Europe, there was a tendency towards that state of society and government which we call feudalism ; and that tendency was neither weak nor in- effective. It worked with such energy as to convert a constitution founded on personal re- lations into one permeated from pinnacle to base with territorialism. And yet, although this was so, between the England of the eleventh century and the France of the eleventh centuiy there existed an essential difference. For in England there were certain forces hostile to feudalism which, owing to the circumstances of early English history, retained their vitality, and operated as a check on the triumphant tendency of the age. The deep divisions of the
B
2 The Early English Constitution.
English, stereotyped, so to say, by the circum- stances of the conquest of Britain, manifested themselves in perpetual inter-tribal wars, in continuous struggles against the supremacy of any one kingdom, in the local isolation which handed the country over as a prey to the northern invaders. The northern invaders them- selves projected into a half-feudalized society, a society kindred, indeed, but more primitive, personal, and free. Beneath all and through all the Teutonic spirit worked with unique purity, with unique liberty. These are the great forces antithetical to feudalism, which operated as such in the first six centuries of English history. They are not the dominant forces. The trium- phant tendency of the age is towards feudalism ; but they act as checks on that tendency. The feudalism which is developed naturally on English soil, the feudalism which the Norman knights and lawyers remodel into a more ordered form, is a half-feudalism, a feudalism awkwardly elevated on a sub-structure of free institutions and immemorial customs. The Early The machinery by which a barbarous tribe poHty' governs itself is necessarily of a very simple description. It involves an anachronism to bestow on such primitive arrangements the name of a constitution. It is only when the
Tfu Early English Constitution. 3
social state has become complicated, and the tribe has expanded into a nation, that the need arises for that careful adjustment of political power between various classes which we connect with the idea of a constitution. This general observation is perhaps less true in the case of the primitive Germans than of most barbarians ; for the system described by Tacitus in the Germania is not without a certain order and beauty of its own ; yet it would argue ignorance or folly to credit the primitive Germans with the constitutional theories of modern times, although they may truly be regarded as the unconscious exponents of the same.
At the basis of the Teutonic system lay the Ranks. threefold division of ranks, (i) The blood- noble — eorl — distinguished by the higher pecu- niary value attached to his life {wergild), and by the higher legal value of his oath ; entitled, doubtless, to a greater share in the conquered land on account of his nobility, but without special political rights. (2) The freeman — ceorl — possessed of full political rights, his place in the host and in the folk-moot assured to him, as also his share in the conquered land, his alod. (3) The dependent — ket — not fully free, yet not a slave, with no political rights, but yet personally free, a cultivator of the land of another — the man
4 The Early English Constitution.
of a class half-way between freedom and slavery, and recruited from both, destined, perhaps, with various modifications, to become the villein of the Middle Ages. These are the three classes of the nation. Below them is the slave, the chattel — theow — with no rights, until the Church suc- ceeds in persuading men of his humanity. Allotment The English, thus divided into ranks, migrated ^ '^ ' into Britain, and there planted themselves, re- producing, we may be sure, the combinations of their former life, as far as was possible under the The new conditions of migration and conquest. The
allotment of the conquered land, which followed the victory of the tribe, settled the kindred free- men in free village communities to carry on agriculture, at first probably on a system of common cultivation, which, however, in most cases speedily gave way before the principle of individual ownership. On the larger allotments of the kings and eorls the Icets were likewise grouped in dependent communities, similar in organization, but owing rent and services to a lord. And here the system of common cultivation kntjwn as the three-field system long survived in the later manor. Under this system the arable land was divided into three common fields : two were sown with crops every year, and one was left fallow. The Britons who survived the cata-
Tlu Early English Constitution. 5
strophe which robbed them of their land were probably settled in dependent villages on the estates of the king and nobles, and on the unal- lotted land which formed the national property.^
The townships were grouped into hundreds, The in combinations which possibly reproduced in fact as well as in name the existing divisions of the tribe in its military aspect. More probably, however, the hundred had already lost its ori- ginal connection with the host.* Each of these divisions — township and hundred — possessed its
* The question as to the origin of the Anglo-Saxon village or township, and as to the character of the early system of agriculture, is at the present moment a subject of much controversy. Those who wish to pursue the matter further should consult Stubbs, " Constitutional History," vol. i. ch. iii. § 24; ch. v. § 39; Maine, "Vil- lage Communities," lect. iii. ; G. L. von Maurer, " Ges- chichte der Markenverfassung ; " Fustel de Coulanges, "Recherches sur quelques Probl&mes d'Histoire," pp. 145-186, 262, 320-326; Seebohm, " English Village Com- munity," chs. iv. V. viii. ix. x. xi. ; Denman Ross, " Early History of Land-owning among the Germans ;** Pollock, " Land Laws " (Citizen Series), ch. ii, and Appendix A ; Vinogradoff, " Early English Land Tenure," Clarendon Press ; Earle, " Land Charters," introduction.
' The origin of the hundred, by some attributed to a later date, is a matter of much controversy. The following authorities may be consulted : Stubbs, " Consti- tutional History," vol. i. ch. ii. §§ 16-18 ; ch. v. § 45-47 ; Stubbs, "Select Charters," p. 68; Fustel de Coulanges, " Institutions de I'Ancienne France," voL ii. p. 195, ff, 224, flC
6 The Early English Constitution.
own court, presided over by its own elected officers. The Folk- Above the hundred court stood the Folk- ^itma- ™oot» ^® popular assembly of the tribe, in S^o*' which every freeman had a voice; while sur- rounding the king himself stood the assembly of the Wise Men — the Witenagemot,
But as the process of consolidation advanced, changes took place in the primitive organi- zation : —
(i) The Folk-moot of the once independent
tribe shrank into the shire court of
later times with less extensive powers
, and a more definite sphere of work —
mainly judicial.
(2) The Witenagemot of the smaller nation
became absorbed in that of the conquer- ing race — circling round the victorious king.
(3) The Folk-moot, or popular assembly of
the rapidly growing nation, lost its vitality, meeting only from time to time on some great occasions — such as the coronation of a king — when by its shouts it expressed its approval of that which had already been decided by the more aristocratic assembly of the Witan. ThtKing. Kingship may have been created by the
The Early English Constitution. 7
Conquest ; it may have been a more primitive possession of the race. The statement of Tacitus, that some German tribes had no kings seems to be definitely attached to those tribes which conquered Britain, by the description which Beda^ gives of the old Saxons, and by the curious return to the earlier form of government in Wessex, which is recorded to have followed the death of Cenwalh.* But the antiquity of the institution is of little importance. It is certain that as soon as they appear in the light of history the tribes which planted themselves in Britain without exception were ruled by kings.
The king of the earliest English history is bound to his people by personal ties. As his name implies, he is the head of the race, the kin ; he represents, symbolizes, embodies in a concrete form the unity of the race. He is both the rex and the dux of Tacitus, because perhaps he is always, as Hengest, first dux (heretoga) and then rex (cyning).' Descent from Woden is claimed by every English king, but it is not his sacred character so much as his function of leader in war that forms the basis of his subse-
* •'Hist Eccl.,* V. 10, p. 309, eA Moberly. ' Ibid., lib. iv. c 12.
' See Anglo-Saxon Chron.,sub anno 448 and 455 (Rolls Edition, voL L p. aiX
8 The Early English Constitution.
quent power. The early years of the life in Britain were necessarily years of unceasing war. The hereditary general exercised habitually his extraordinary powers. His special privilege, the possession of a comitatuSy now was most valuable. War multiplied the comites (gesiths) ; war utilized them ; war gave their lord the power to reward them. As conquest extended the borders of his kingdom, the king's power in- creased. He emancipated himself from close contact with his subjects and lived remote. Surrounded with his court of sworn dependents, guarded by their swords, more and more sepa- rated from the daily life of his people, beheld by them from an ever-growing distance, his figure dilated before their eyes, he became more terrible and more sacred.
Two events in particular involved a great development of the kingly power — the conversion of the English, and the consolidation of the kingdoms. Influetue That Christianity elevated the royal power Church, was the result, not of the Church's self-abasement, but of her lofty conception of duty. The great service she bestowed on the kingship was the sense of responsibility. She destroyed the divine descent and substituted the divine mission. The prestige of a sacred origin was supplanted
Tlu Early English Constitution. 9
by the prestige of a sacred function. In holding out a lofty ideal of the kingly duty, the Church wished to raise the kingly character. At the same time she preached no servile obedience ; the deposition of the bad king was the natural judgment of Heaven, and accepted as such by the Church. " You see," wrote Alcuin to Ethel- red of Northumbria, *' how your ancestors, kings and princes, perished because of their unright- eousness and rapine and impurity. Fear you their fate." But perhaps the Church worked in favour of the crown less directly than indirectly. In paving the way for national union by her discipline, her doctrine, and her consolidation and organization, by counteracting the disruptive forces which were always threatening to break up the not yet consolidated realm, far more than by hedging round with the august rites of unction and coronation the accession of a new king, did the Church minister to the growth of the royal power.
The conquest of Britain had been the work of ConsoUJa. many little kindred tribes, acting in complete kingdom*. independence of one another ; and when the migration ceased, the eastern half of England was dotted with small kingdoms, alike in polity and nearly related in blood, but jealously in- dependent of outside influences. The extension
lo The Early English Constitution.
of the conquest, and the consequent expansion of these little states over the country, soon brought them into contact with one another ; and that contact seems to have been invariably of a violent nature. The slaves exported from the island to the Roman market were no doubt captives taken in these inter-tribal wars. The tendency towards consolidation began to work. The tribal kingdoms were grouped into seven or eight larger kingdoms, forming what we call the Heptarchy. One kingdom generally acquired a shadowy supremacy over the others. Kent, East Anglia, Northumbria, Mercia, Wessex, in turn exercised some vague supremacy over the other kingdoms. In the hands of the West- Saxon kings this vague supremacy was changed into a permanent dominion.
This process of consolidation no doubt had its origin in the ambition of individual kings. The union of the Heptarchic Churches in the obedience of the Archbishop of Canterbury led the way to the union of the Heptarchic kingdoms in the obedience of the King of Wessex. For long it was doubtful which kingdom would obtain that supremacy. The last to attempt the task was the kingdom of Wessex ; and the supremacy of Wessex alone became permanent. The rival kingdoms
TIu Early English Constitution. ii
had had their day, and were on the dech'ne. Yet they were still powerful, independent, and irre- concilably jealous of one another. Something more than the efforts of Egbert were necessary before, in any true sense, a kingdom of the English could be said to exist Such a result could be brought about by nothing less than the destruction of the kingdoms, and the extinc- tion of the local dynasties. The rough hand of heathen conquest swept away every English kingdom but one, and that one was Wessex. Then remained the doubtful duel between the Dane and the West-Saxon. The ability of the house of Cerdic gave the victory to the latter. The treaty of Wedmore (a.D. 879) may be regarded as both the record of the unification of the English, and the epitaph of the independ- ence of the sub-kingdoms.
The northern invaders ministered to the Thekin^$ increase of the royal power in two ways. First, ^^es as we have seen, by destroying possible rivals, f'"'*^**^^- and giving the West-Saxon king the position of the sole representative of the English race ; in a word, by rendering possible the union of the English under a single rule. But they did more than this ; they brought about a change in the character as well as in the position of the king, and in the extent of his realm. We have said
12 Tfie Early English Cottstitution,
that the early English king was bound to his subjects by personal ties. He is emphatically the head of the race. By what ties shall he be bound to the alien Northmen whom he conquers ? Obviously he is not connected with them by blood-bonds. He is the conqueror of their country, the lord of their land. That is his title to their allegiance ; territorial, not personal. From the time of Edward the Elder, the king reigns over two classes of subjects by a twofold title. He is king of the race to some; he is lord of the land to others. His position in respect of the one is personal ; in respect of the other it is territorial.
This dualism contains within itself the seeds of change. It is clear that one title or the other will yield ; and the king will be united to his subjects by an uniform tie ; and it is equally clear that the title to yield will be the personal one, because it is not transferable. By no stretch of imagination can the man of the Danelaw regard the English king as the head of his race, of one blood with himself. The personal title has no elzteticity. Moreover, it is rapidly becoming obsolete, even among the English, for even from the earliest times there had been a notable exception to the general rule amongst the English themselves. There
Tlie Early English Constitution. 13
had been one class of subjects, and that an ever-growing class, bound to the king by ties which were indeed personal, but were not ties of blood. The right to keep a comitatus, origi- 77u cotm- nally enjoyed by the greater men of the tribe, had come to be the peculiar privilege of the English king. What was the comitatus? It was a body-guard of volunteers bound by oath to serve the lord of their choice. They formed his companions {comites, gesiths) ; he bestowed on them military equipment, maintenance, pro- tection, and reward. They returned to him service and allegiance, the means of gaining power and of keeping it. The tie which united the princeps to his comes, the ealdorman to his gesith, was the oath of allegiance, not the blood- bond. War has its effect in altering the position of the Coynes. The reward of victory necessarily takes the form of a grant of land. It is not a beneficium, although the holder owes military service to a superior ; for the beneficium is given as the condition of future work ; the gesith's grant is given as the reward of past service. Yet, clearly, the difference will wear away in time ; and the service of the thegn will be indistinguishable from that of the feudal knight or vassal
The increase of the king's power modifies his
14 The Early English Constitution.
relation to his gesiths. They rise in power absolutely, but relatively to their lord they sink into a lower condition. No longer com- panions {gesii/is), they become soldiers {thegns). This land-holding, service-owing thegnhood constitutes a powerful territorial aristocracy, which gradually absorbs the older nobility (Jf blood, and develops into something almost identical with the feudal baronage of later times. Commen- The personal relation originally existing between the king and his people had been further undermined by the practice of com- mendation, a practice which, in the stormy period of war, was very common. By commendation a freeman placed himself under the protection of some powerful person, whom he acknowledged as his lord, and from whom he received protec- tion. The freemen were constantly on the decrease. In a time of perpetual commotion they had a strong inducement to surrender up their alods into the hands of an over-lord, often the king, and receive them back, laden, indeed, with conditions of suit and service, but guarded by his powerful protection.
Thus, perhaps, we can understand how easy was the transition from the personal to the territorial conception of kingship, how rapidly the newer relation absorbed the older when
The Early English Constitution. 15
once the commendation of the conquered Danes had placed the two relations in opposition. The legislation of the sons of Alfred marks the transition. It is complete when Edmund (a.d. 943) exacts the oath of fealty from all his subjects. The English king does not cease to be the head of the race, but that is not his most prominent function. The relation between him and his people is identical with that between a man and his lord, in a word, it is a feudal relation. All are to be faithful to Edmund, " Sicut liomo debet esse fidelis domino suor
The changed position of the king is to be Develop^ traced in different directions : in legislation, in "the royal the maintenance of the peace, in the treatment P^""^- of the folk-land, the constitution of the Witan, the assumption of imperial titles.
Alfred's legislation contains the first law o{ {\)Tre(U(m. treason ; * the law which separates " treason against a lord " as the crime for which alone no money bot could be taken. "//" any one plot against tlie king's life, of himself, or by harbouring of exiles, or of his men; let him be liable in his life arid all that he has."* Edmund, as we have seen, asserts that the
» " Select Charters," 4th edit., p. 6a. • Ibid., p. 67.
l6 Tfie Early English Constitution.
king is the lord of his people ; and a law of Ethelred * seems to make absence from the fyrd, or national levy, when the king in person con- venes it, a treasonable offence ; the wite of one hundred and twenty shillings suffices for ordi- nary neglect of the fyrd. There can be little doubt that the offence of treason assumed a special importance in time of war ; and the fact that the Danes were heathens invests the English wars against them with a semi-sacred character. Treason, perhaps, involved apostasy, for it was an offence against the champion of the faith. (2) Tht Originally the peace, the unwritten covenant kin^t Qn which society bases itself, was maintained by the folk itself; the hundred and the shire had their own "peace." But from the first there had existed, side by side with this general peace of the folk, a limited and special peace, the grith or mund of the king. As the frith of the folk was maintained by the national officers, so the grith of the king was maintained by the royal officers. The king's peace ex- tended over the four Roman roads, over rivers and navigable streams, which are the highways of commerce. Three times a year, at the great festivals of Christmas, Easter, and Whitsuntide, 1 •* Select Charters,"* p. 73.
The Early English Constitution. 17
the king proclaimed his peace over all the land. The divisions of the shires were deter- mined by him, and he could even extend his protection over the estates of others. It is not difficult to understand how the king's peace was far more efficiently maintained than that of the folk. In times of disturbance the con- trast would be emphasized. It would become an object of ambition to the freemen to gain the securer protection of the sovereign ; and when the first great Danish war had come to an end, and society began to repair the injuries received, there would be a strong tendency to strengthen the central power, as the one power able to maintain the peace of the land. This we find to have been the case. Alfred organized the defence against external foes. Edward reformed the internal condition of the country. The Witan at Exeter were persuaded to "be in that fellowship that he was, and love that which he loved, and shun that which he shunned, both on sea and land ; "* that is to say, the nation, speaking by its constitutional representatives, entered into the grith of the king.
The peace becomes the king's peace ; the courts of justice become his courts ; the national » " Select Charters," p. 64.
C
1 8 The Early English Constitution.
officers become his officers. ^' If any one fail to attend the gemot thrice, let him pay the king's oferhymes . . . if any one will not ride with his fellows (to arrest the wrong-doer), let him pay the king's oferhymes." ^ To neglect the court or disobey the officers is to insult the king, and must be atoned for by a " fine for contempt." (3) Treat- And as the peace, and the courts of justice, 'Zik-^nd' ^^^ the administrative officials cease to be the folk's and become the king's, so does the folk- land gradually become changed into the king's demesne. The folk-land was what we have described as the unallotted land which remained over after the settlement of all claims. It was the property of the nation, and therefore the management of it remained in the hands of the nation. The early grants of folk-land invariably express the consent of the Witenagemot. The king grants ^^ cum consilio, consensu et licentia pro- cerum." ^ But from the time of Alfred this clause is of rarer occurrence. The consent of the Witan becomes their attestation. No longer as gran- tors but as witnesses they attach their names to the charters ; but they do not lose their right altogether until the eleventh century. The reign of Ethelred II., perhaps, marks the change.
» " Select Charters," p. 66.
' Viae Kemble's " Saxons in England," vol. ii. p. 226.
The Early English Constitution. 19
The king exercised an ever-growing influence (4) The
Witen gemot.
over the composition of the Witenagemot. The *'"*^
free elements — the aldermen and bishops — were outnumbered by the ethelings and king's thegns. And, perhaps, this easy manipulation of the centraF assembly was the reason why it suc- ceeded in preserving so considerable a proportion of its ancient powers. The king could effect his purposes with less risk of unpopularity if he effected them through its agency. There could be no object in destroying so useful an instru- ment.
Two rights the Witenagemot succeeded in retaining throughout the whole of its existence — the right of legislation, and that of electing and deposing the king.
The laws of Ethelbert form the earliest ex- a Legit- isting fragments of English legislation, and they "^' were issued, so Beda informs us, cum consilio sapientium} The earliest extant West-Saxon laws, the laws of Ini, are issued by that king " with the advice and by the teaching of Cenred my father, and of Hedde my bishop, and Ercenwold my bishop, with all my ealdonnen, and tlu most eminent witan of my people, and also with a great assemblage of Gods servants." ' Alfred, whose reign in many respects marks a
» Beda, bk. il ch. 5. « " Select Charters," p. 61.
20 The Early English Constitution.^
great advance of the royal power, acknowledges in ample terms the action of the Witan in his legislation. *• / then, A If red. King of the West- saxons, showed tJtese [laws] to all my witan, and they then said, that it liked t/tem well so to hold them."^ Athelstan, perhaps, was the most powerful sovereign of the house of Ccrdic, yet his reign contains an emphatic assertion of the legislative right of the Witan. " These are the dooms which the witan at Exeter decreed, with t lie counsel of Athelstan the king"^ In Edgar's reign the theory of the^ kingship reached its highest level, although the zenith of real power would seem to have passed ; yet the " peaceful king," like his predecessors, legislates " with the counsel of his witan." ^ Ethelred II., a prince not without a strong inclination towards absolu- tism, if without capacity for government, freely acknowledges the right of the Witenagemot to make laws. " Wise" he says, " were those secular Witan wJio to the divine laws of justice added secular laws for the government of the people ; and decreed bot to Christ and the king, that many should thus, of necessity, be compelled to right." ^ The conquering and imperial Canute
' " Select Charters," p. 62.
> Kemble's "Saxons in England," vol. ii. p. 210.
» " Select Charters," p. 71.
* Kemble's "Saxons in England," vol. ii. p. 212.
Tlie Early English Constitution. 21
retains at the head of his collection of laws the customary formula ; and the witness of his reign completes the chain of evidence on this subject.
The English kingship was both hereditary f/J) EUc-
, . . , . /«*•» and
and elective ; that is to say, it was elective depjsUion within the limits of a single family ; failing that "/^^^"S- family it was elective absolutely. No right of primogeniture was recognized ; the nearest capable relative of the dead king was elected ; obviously in most cases that relative would be his brother or his eldest son. Alfred succeeded his brother, and no voice protested that Ethel- red's children were wronged. Edred was chosen by the Witan on the death of Edmund, whose two sons were yet children. This election was no mere form ; even the Danish kings found it necessary to veil the fact of conquest by the fiction of a forced election. At the very close of early English history the Witenagemot exer- cised their ancient right under exceptional and perilous circumstances in the election of Earl Harold.
A natural deduction from the right of electing the king is the correlative right of deposing him ; although the occasions on which the latter right was exercised were of comparatively rare occur- rence. The Anglo-Saxon Chronicle,* under the * Anglo-Saxon Chron. (Rolls Series), voL i. p. 82.
22 The Early English Constitution.
year 755, records the deposition of Sigebert by the West-Saxon Witan, acting under the leader- ship of a rival claimant of the throne. " This year Cynewulf and the West- Saxon Witan deprived Sigebert of his kingdom^ except Hamp- shire, for his unjust doings." In A.D. 774, the Northumbrian Witan deposed Alcred ; and the history of the northern kingdom is full of the sudden and violent depositions of kings, some of which at least must have been regular pro- ceedings, although many no doubt were not. These cases belong to the Heptarchic period. After the consolidation of the kingdom under the line of Cerdic, three cases of deposition occur. When Ethelwulf returned from his pilgrimage to Rome, we learn from Asser,^ whose evidence, however, in face of the silence of the Chronicle, is scarcely conclusive, that the West-Saxon Witan, at the instigation of Ethelbald, deposed him. The Mercians deposed Edwy in favour of his brother Edgar ; and the Witan of the whole king- dom abandoned Ethelred II. in AD. 1013, and accepted Swegen. In every case the action of the Witenagemot was the result of dynastic intrigue or of some other external agency ; and without such agencies, it is more than probable that neither Ethelwulf, nor Edwy, nor Ethelred Asser, ed. Wise, 1722, pp. 8-10.
The Early English Constitution. 23
would have been deposed. Deposition, it must be remembered, involves a far greater exercise of power than election ; for it is in itself some- thing far more than the simple undoing of election. The king is king by virtue of some- thing more than election. His assumption of the crown is hedged round by the threefold sanction of election by the Witan, unction and coronation by the Church, and the oath of alle- giance from the nation. That king was either very guilty or very unfortunate whose conduct brought into play so far-reaching an act of power.
We have traced at some length the develop- Summary. ment of the kingship, because, perhaps, that development is one of the most characteristic features of early history. The process which changed the tribal king into the territorial king, the lord of the land, went on under various con- ditions in other portions of the constitution. Everywhere the personal and official tended to be absorbed by the territorial and feudal. We have observed this tendency operating in the case of the comitatuSy changing the personal relationship between the ealdorman and his gesith into the semi-feudal relationship between the king and the land-holding, service-rendering thegns. We have seen that the Danish wars had results in the same direction, by inducing the free ceorls to
24 The Early Etiglish Constitution.
purchase security by the sacrifice of their free- dom, and by substituting the territorial for the personal relation to the king. We must now slightly change the method of our inquiry, and mark the working of the same tendency in its results on the judicial and military organization of the country. Opposing Feudalism includes two essential conditions, tn English which may serve as the tests or marks of the fMiimltai feudal state. The one condition attaches to History, the land the duty of military service to an over- lord ; the other attaches to the land the duty of attending the court of the over-lord. The feudal tenant, in short, owes his over-lord "suit and service."
By applying these tests to the England of the eleventh century, we ascertain, perhaps, with the greatest exactitude, the extent of the pro- gress made by the feudal principle, and the extent to which the institutions of the country retain their primitive freedom. And here it is necessary to remember that from the very first among the English, both in their military and in their judicial institutions, there had operated two principles, fundamentally opposed.
There was first the popular principle which lay at the foundation of the military and judicial arrangements of the tribe. This principle im-
Tlu Early English Constitution. 25
posed on the freeman the honourable burden of sharing in the national defence, and the important privilege of trial by his fellows. The courts of justice and the host were organized on a popular basis ; indeed, at first the distinc- tion between the two was a very slight one. The judicial arrangements reproduced for another purpose the divisions of the host. After the settlement in Britain, the judges in the courts of the township, the hundred, and the shire were the suitors upon whom, as upon all free- men, lay the burden of national defence.
Concurrently with the popular principle, there operated another and rival principle, which may be called feudal. This lay at the root of the comitatus. The companions who followed their chief to battle recognized his jurisdiction in time of peace. The feudal principle removed them to some extent from the host of the free- men, and from the courts of the folk.
In the dim past of the earlier history of the English, these rival principles can be perceived at work. Side by side there exist upon the soil of Britain the quasi-manorial communities of the IcEts, and the village-communities, the townships of the free ceorls. The book-land of the gcsith and the eorl is contrasted with the alods of the freemen. Eorls coexist with
26 TJie Early English Constitution.
thegns, the free ceorl with the commended ceorl, the freely elected township-man presid- ing over the moot of the free township with the lord's nominee, gerefa or bailiff, presiding over the moot of the incipient manor.
These concurrent principles thus embodied in concrete forms are found in collision with one another, and with an invariable result. The weaker principle yields to the stronger. Feudaiiza- On the side of the military organization of military the nation the feudal principle encroached on "tmt"^^' ^^ popular, as commendation transformed the freemen under the banner of the sheriff into the dependent following of the thegn. The host which the ealdorman led forth from the shire to resist invasion was indeed the folk in arms, the primitive host, but it was the folk organized to a very large extent on the feudal model. In theory the immemorial obligation of the fyrd rested on every citizen ; in fact, before it reached the mass of the citizens that immemorial obligation had been transmuted into the summons of an over-lord. The course of the political history to some extent counter- acted the tendency of the constitutional. The early English wars were almost exclusively wars of defence. The principle which dictated to the freemen the duty of the fyrd was per-
Tfie Early English Constitution. 27
petually reasserted by being perpetually acted upon. Had it not been so, the popular organi- zation of the national defence might have easily sunk into the insignificance into which the kindred organizations of the continent fell, sur- viving only for the lower purposes of police. Watch and ward, police and defence, formed the twofold obligation of Xki'&fyrd. In the organiza- tion of the national defence, perhaps more than in anything else, the primitive popular principle of the national polity succeeded in asserting itself continuously against its rival.
On the side of the judicial organization oiandofth* the nation, the feudal continually gained ground^^/sa- at the expense of the popular principle. The ''^''• process was somewhat different Here it was rather by narrowing the sphere of action, than by interfering with the action itself, that the advance was made. The jurisdiction of the popular courts was ever being encroached upon by the creation of rival private jurisdictions.
It has been already pointed out that the gesiths or thcgns of the king were in \{\s gritk and under his jurisdiction. This was the fact when the tribe possessed no settled territories, and the tie which bound companion and chief together was purely personal. It continued to be the case where the tribe had settled in
28 The Early English Constitution.
Britain, and the personal tie had begun to lose itself in the territorial. The thegn, with his estate of book-land carved out of the folk-land, owed suit and service to the king. At a very early time it became a common practice to couple with grants of land grants of jurisdiction. This was expressed by the later formula " Sac and Soc" an alliterative phrase of which the origin and exact meaning are not free from obscurity. It would seem probable that in most cases the grant of sac and sac conveyed an exemption from the hundred-court only, not from the shire-court. Yet sometimes the latter was also included : a notable instance occurs in Domesday, in the case of Worcestershire, the sheriff of which declares that in seven out of the twelve hundreds of the shire he has no authority. Grants to the thegns and grants to the Church removed an ever-increasing portion of the population from the jurisdiction of the royal or national courts. The right of justice became an incident, an inseparable incident, of land tenure, until the thegn with his normal hold- ing of five hides counted among the privileges of his rank the possession of his private court. Consequent The feudal principle, making territorial all ^al relationships, had, indeed, enabled the kingship P""^- to absorb into itself the national powers ; now
The Early English Constitution. 29
the same principle snatched from the kingship the substance of strength, and left but the shadow. The zenith of the monarchy synchro- nized with the rapid rise of the private franchises, by which monarchy was in danger of being reduced to a name. When over whole districts the royal power was vested in powerful local landowners — when as judges and land-ricas these sat as presidents in the hundred-courts and received a share of the profits of the hundred, when they exercised jurisdiction over the lesser landowners — then, indeed, the English king was menaced with the lofty impotence of the feudal position. This state of things did not exist before the reign of Canute (a.d. 10 16-103 5) ; the appearance of the land-ricas is just one of those facts which give the reign a revolu- tionary appearance. Another is the division of England into the four great earldoms of Wessex, Mercia, East Anglia, and Northumbria.
That division seems to form a symmetrical Division completion of the process which had been dJm'itu"^ steadily in progress during five centuries towards -'^'^r.^''''^ feudalism. The anarchy of Edward the Con- fessor's reign was the logical and inevitable outcome of the policy of Canute. The great earldoms became practically hereditary in the families of their first possessors ; the power of
30 The Early English Constitution.
the crown was as nothing before the power of the earls. The position of the Confessor between two rivals of equal strength and am- bition— by turns the tool of both — can only find a parallel in a country which was essentially feudal. Edward the Confessor may share with his contemporary, Henry I. of France, the position of the typical feudal king. Neverthe- less, the political anarchy did not involve any very considerable disturbance of the organiza- tion of the country. The establishment of the great earls seems to have left untouched the shire-system. The royal writ was sent to the earl and bishop and sheriff of each shire, although all those officers included several shires in their jurisdictions. It is possible that the earl presided in the shire-court by a deputy who bore the discarded title of ealdorman ; but this is mere conjecture. The shire-moot sur- vived the changes of Canute's and the anarchy of Edward's reign, not unaffected by them, but still retaining a very considerable proportion of its ancient importance. However dilapidated in its composition, and depressed from outside by the progress of feudalization, the shire-moot embodied in its organization and its functions almost all that remained of the primitive freedom of the English polity.
The Early English Constitution. 31
The historic shires had not a common origin. The shire. Some represent the primitive union of several more ancient districts, tribal or other, in a federa- tion for religious, judicial, and political purposes ; others, especially those in Wessex, represent the kingdoms first established in Britain by the inva- ders; others, more especially those in the Norths represent the later district, into which the country was artificiallydivided for purposes of government by the West-Saxon kings. And the organization Character of the shire bears witness to its threefold origin, "ormmia- The shire-moot is an agglomeration of hundred- '*^" moots ; it is also the folk-moot of the tribal king- dom ; it is also theunit forpurposesof government On the one hand it stands in intimate relationship with the popular courts below, and on the other it connects itself through its officers with the Wite- nagemot and the king. Thus it brings the local machinery of the hundreds and the townships into connection with the central government. In its popular composition it bearswitness to its popular origin. In its self-sufficiency it commemorates its ancient political independence. In its relation to the central power it reveals the design of its later creation. The shire-moot was nothing else than the collection together of the hundred-moots under the officers of the shire. As such it included three several elements : the popular element.
32 TJie Early English Constitution.
represented by the reeve and four men from every township ; the feudal element, represented by all lords of land — shire-thegns — both those who attended the hundred-moot, and those whose more extensive franchises exempted them from attendance ; the official element, represented by the hundred-man and twelve " senior-thegns " from every hundred. The Its officers, officers of the shire were three : the bishop, the ealdorman, or later the earl, and the sheriff, representing respectively the Church, the folk, and the central government. The bishop and the ealdorman were members of the Witenage- mot It is quite true that the bishop's diocese was not always restricted to a single shire, and that both ealdormen and sheriffs exercised juris- diction over several shires at once ; still the constitutional fiction supposed a bishop, an ealdorman, and a sheriff to every shire, and the king directed his writs accordingly, although, probably, in many shire-moots, bishops, ealdor- men, and perhaps even sheriffs, only appeared (I) The by their deputies. Although the bishop sat bishop. 1^ ^g shire-moot, and expounded there the " law of God," that court by no means formed the sole sphere of his judicial activity. Like other great landowners, he possessed his own franchise, and, as a spiritual officer, his religious
The Early English Constitution. 33
jurisdiction. It is, however, certain that the close union between Church and state dispensed with the rigid definitions of their respective spheres of action which marked the subsequent age. The piety and policy of the English tribes assigned to the clergy a position of great power and dignity. An indication of this is to be found in the law of Ini/ which decrees that the bot for the bishop's burg-bryce shall be equal to that for the king's, in both cases one hundred and twenty shillings, while the penalty for a similar offence in the case of an ealdorman is fixed at eighty shillings. As the number of bishops increased and the supremacy of the West-Saxon kings became assured, the relative importance of both underwent an immense change. The tenth-century record of the wergilds of the northern people witnesses to this change.' There an archbishop is ranked on an equality with an etheling, and a bishop with an ealdorman, while the king's wergild is estimated at a much greater amount and on a different basis. Although the relative im- portance of the bishops thus diminished, at the close of the early English period they still appear in possession of an immense influ- ence. Forming the most homogeneous and » " Select Charters/ p. 62. « Ibid., p. 65.
D
ealdor-
34 The Early English Constitution.
politically capable section of the Witenagemot, exercising a considerable influence over the national courts, adding to both the peculiar force of their spiritual position, the clergy exerted an extensive and beneficent authority in the affairs of the nation. (2) The The ealdorman is the most imposing figure among the officials who preside at the shire- moot. Perhaps himself the descendant of the ancient kings, he has not altogether lost his royalty. Around him gather the cherished memories of the tribe — memories which survive the shock of West-Saxon conquest, and preserve the individuality of the once independent folk. He takes his place as president of the court ; he leads forth to war the forces of the shire. He represents the popular element in the ad- ministrative machinery of the country. As the king symbolizes the unity of the nation, so the ealdorman symbolizes the unity of the shire. He typifies, so to say, its individuality. Within historic times the king and Witenagemot would seem to have united in appointing this officer ; but the consent of the shire was also expressed, probably in the ceremony of his installation. The ealdormanship was less affected by the feudalizing tendency of the time than many other institutions. In most
The Early English Constitution, 35
cases the office was held for life ; the cases when son succeeded father are exceptional. The king seems to have maintained unimpaired his authority over the ealdormen. Expulsions from office for high treason or other offences are by no means rare, and the Saxon Chronicle records one instance in which the punishment of death was inflicted. "The high reeves of the Northumbrians burned the Ealdorman Beom at Selet-un," is the brief record of the Chronicle under the year 780,* Henry of Huntingdon assigns the severity of the unhappy "consul" as the cause of his death.* However that may be, the action of the "high reeves" is suggestive of some right recognized in the suitors of the shire-moot to call their ealdorman to account for his actions.
The power of the ealdorman was great enough to justify this jealous supervision. He presided over the internal and external relations of the shire. Before him were borne the symbolic staff and sword, for in his hands were centred both the executive and the judicial authority of the shire. He declared the law and he led
• Anglo-Saxon Chron., vol. i. p. 93.
" Hen. Hunt. (Rolls Series), p. 126. It is, however, by no means certain that the " high reeves " were the officers of the shire.
36 The Early English Constitution.
the host Moreover, he was a member of the Witenagemot of the realm, where he occupied a position of special importance as distinctively- representing the nation. His dignity was equal to his power ; it was hedged round with various safeguards. A higher wergild and a weightier compurgatory oath, a limited right of sanctuary belonging to his house, the heavy penalties attached to insults addressed either to his dwelling or his person, marked his superiority to every subject save the primate. As his power was great and his dignity lofty, so also was his income considerable. Public lands, a share (probably a third part) of the profits of jurisdiction, voluntary offerings, a share in the profits of war, the proceeds of the regalia on his own public and private lands, perhaps in some cases the right of coinage, — these were the main sources from which the ealdorman drew the income which enabled him to maintain the state befitting his position.
One circumstance gives an unique interest among early English institutions to the ealdor- manship. It alone failed to perpetuate itself in any recognizable form in the later history of the constitution. The earl who, under the Danish dynasty, supplanted the ealdorman, monopolizing his functions and almost oblite-
The Early English Constitution. 37
rating his name, cannot in any legitimate sense be regarded as perpetuating the office. The earl and the ealdorman represent rival prin- ciples, and the triumph of the first is also the triumph of the feudal principle.
The third officer of the shire was the gerefa, who bore the name of shire-man or shire-gerefa, (3) "pt* whence the later sheriff. He held his position by royal appointment, in which the Witan had not even a consenting voice. As he had no seat in the Witenagemot, his appointment did not directly interest that assembly as did that of the ealdorman or bishop. It would seem probable that in the earliest age of the national history the sheriff, like his fellow-officials, owed his position to popular election ; and it is possible that the tradition of election lingered on in some form of acceptance by the shire. It is, however, certain that in the earliest times of which we have any record the sheriff is in no sense a popular official. He is the nominee of the king, and as such he stands contrasted with the ealdorman, in whom, as has been shown, the idea of national representation is centred. To a very great extent it is true to say that the sheriff acts as the ealdorman's subordinate, but this is not altogether the case. If in time of war the sheriff follows the banner of the
38 Tlte Early English Constitution.
ealdorman at the head of the freemen of the shire ; in time of peace he, not the ealdorman, is the " constituting officer " of the shire-moot. Without his presence no shire-moot can be held. He alone, in the absence of bishop and ealdorman, can hold a shire-moot.^ Wulfsige, the sheriff of Kent, acting by himself, decided an important dispute about the title to some land, in which the Archbishop St. Dunstan appeared as one of the litigants. The sheriff was the principal fiscal officer of the shire. He had charge of the royal estates, and of the folk- land. He levied all fines to the king, seized the lands and chattels of criminals, and, when the pressure of the northern wars compelled the imposition of national taxation, collected the taxes levied on the nation by the Witenagemot. There can be little doubt that the sheriffs were guilty of oppression in their fiscal arrangements. " This is the alleviation^' runs the law of Canute," ** which it is my pleasure to secure to all the prople, of that which hath heretofore too much oppressed them. First, I command all my reeves that they justly provide for me on my own, and maintain me therewith: and t/iat no mem need give them anything as 'feormfultum '
* " Dipl. Aug. oevi. Sax.," p. 273.
• " Select Charters/' p. 74.
Tfu Early English Constitution. 39
unless he himself be willing. And if any one after that demand a ^wite' let him be liable in his wer to tfie king." The duration of the tenure of the sheriffdom is not certainly ascer- tained ; it seems clear that the office never became hereditary before the Norman conquest The emoluments of the sheriff arose for the most part from the same sources as those of the ealdorman. Probably he also possessed estates attached to his office, shared in the judicial profits of the shire, received voluntary offerings from suitors, and a portion of the plunder taken in war. According to the law of Edgar,* the sheriff convened the shire-moot twice in the year ; he proclaimed on those occasions any laws which the king and his Witan had passed in the interval, and the suitors formally accepted them, perpetuating in the ceremony of acceptance the long obsolete right of legislation. There is extant an address to Athelstan from the shire-moot of Kent, declaring acceptance of the recent legislation of the Witan at Greatanlea.* It would seem that the sheriff required from the freemen a wedd or pledge that they would obey the new law. This arrangement in some sense made
> "Select Charters," p. 71.
• Sec Kemblc's " Saxons in £nj[land," vol. ii. p. 233.
40 The Early English Coftstituiion.
amends for the great fault of the Witenagemot, viz. its non-representative character. Instead of the constitutional obligation to submit to the acts of its representatives, the nation would seem to impose, as a preliminary to submission to the acts of its wise men, the condition of its own acceptance.
A peculiar constitutional interest attaches to the organization of the shire, for thereby was carried forward into the succeeding age the forms and something of the spirit of the ancient administration. Under all the weight of feudalism it remains a memorial of the free past, until in the twelfth century it is utilized by the royal power to provide a simple and sufficient machinery whereby the task of self- government is accomplished. impor- The union between the social and the con-
'^ocZihis- stitutional history of a people is intimate and toryofthe inseparable. The tendencies which work in
period. ^
the one will also work in the other. The history of the constitution will advance pari passu with the history of the social state. The one interprets the other. We have said that the tendency of early English history is from greater freedom to lesser freedom, from liberty to feudal- ism ; and we have traced the unequal struggle between the principle of primitive freedom on
The Early English Constitution. 41
the one hand, and the innovating principle of feudalism on the other. We have observed the forces — internal and external — which helped for- ward, retarded, or mutilated the final triumph of feudalism. Now it remains to mark the same tendency, the same unequal struggle, the same various influences at work in the social history.
Placing side by side the picture which Tacitus (1) status. has drawn in the Germania of the social life of the Teutonic tribes of the first century — a picture which all subsequent evidence justifies us in believing is essentially true of the English of the fifth and sixth centuries — and the picture which William the Norman caused to be painted on the parchment of Domesday Book of the social condition of the English in the eleventh century, what conclusions are suggested by the comparison? We observe at once that the two pictures are very dissimilar, yet not without some points of resemblance. The one presents to view a free society, containing within itself the seeds of feudalism. The other portrays a feudal society, containing within itself the relics of primitive freedom. We infer then first of all, the continuous development of the feudal principle. We observe further that the relics of liberty are unequally distributed t numerous here, invisible there. Here, in the
42 The Early English Constitution.
shires which form the old West-Saxon kingdom, the manorial system predominates, and alodial tenure is unknown. There, in the region of the Danelaw, it is scarcely an exaggeration to affirm that the converse is the case. Sochmanni and Liberi-tenenteSy elsewhere unknown, form in Lincolnshire and East Anglia a great propor- tion of the population, Mr. Seebohm^ has shown with admirable clearness the distribution of the population according to the classes mentioned in Domesday. Generally it is true to say that the unfree element is strongest in the south, and the free element strongest in the Danish districts.
We infer, then, in the second place, that the development of the feudal principle, though continuous, was not symmetrical ; and that an antagonistic force, a check on the process, was found in the northern invasions. (2) Land- Turning from the question of status and applying ourselves to that of land-tenure, we find an enormous mass of land, once the national land or folk-land, now registered in the Domes- day Book as the Terra Regis, the royal demesne. We find, moreover, the king regarded as the ultimate owner of all the land in the kingdom. The cyning of English antiquity is placed in ' " The English Village Community," ch. iii.
The Early English Cotistitution. 43
contrast to the king of the survey ; and we infer, in the third place, that the development of feudalism has involved an increase in the royal power and a change in the theory of kingship.
It is not necessary to pursue the inquiry; enough has been said to show that the history of the English, both constitutional and social, had the same direction in the period before the Norman conquest The feudalization of society went hand-in-hand with the feudaliza- tion of the national institutions ; nay, the latter was but the expression of the former.
The period of English history with which Summary. we have had to deal is in no way a simple one. This lack of simplicity has its origin and explanation in what may be called the lack of obvious continuity. There are not wanting great events, but they stand apart in little apparent connection with the course of the history. There is no symmetry in the dubious continuity which closer observation perceives to exist. Even the development of the royal power which certainly constitutes the most luminous fact of the constitutional history is not a symmetrical development ; and the close of the epoch leaves royalty in a weakened condition.
44 The Early English Constitution.
The view that regards the six centuries of early English history as the arena of an un- ceasing struggle for supremacy between the rival principles of freedom and feudality, ensures at least a continuous interest in the history, for unquestionably that struggle is the predominating fact, which lies at the root of all the inconsis- tencies of the period. In that long and dubious contest the events of the social, political, and religious history are factors. The ultimate out- come is the victory of feudality ; but the defeated principle is rather driven out of sight than de- stroyed. Freedom has capitulated to feudality, on conditions which ensure at least a continued existence.
It is precisely at this crisis that the Norman conquest takes place ; and it is because it takes place at this crisis that its importance in the constitutional history of England is so immense and far-reaching.
ESSAY II.
FEUDALISM.
Sir Francis Palgrave and his successors The have added six centuries to English history ; we conqutst, no longer think of the story of our country as *l^^^' beginning at the Norman Conquest, or that the Engh'sh of Elizabeth and Edward I. were a dif- ferent nation from the English of Alfred and Egbert Yet, in spite of all insistence on the unity and continuity of our history, we still feel that the Norman Conquest brought a great change in the character of English institutions, and this belief is confirmed by the abundant new knowledge we have gained of that period. It might perhaps be expressed in some such phrase as this : the Norman Conquest made England a feudal state. What is involved in such a statement, how far or in what sense it is true, are the questions here to be answered.
The essence of the feudal organization o{ Feudalism society was that it rested completely on land-
46 Feudalism.
system of tenure, and on one system of land-tenure — a tenuru System in which ownership was divided between the actual tenant of land and the lord "of" whom he "held" it, and in which the relation as to land was accompanied with a close personal tie between the lord and tenant, involving mutual duties and responsibilities. He who was lord to one man or set of men, might and usually did himself hold his estate of a superior lord ; so that society came to be made up of hundreds of series of lords and tenants, beginning with the villein, who was lord of no man, and ending with the king, who was tenant of no man. The duty of the lord was to protect his tenant, of the vassal to serve his lord ; which meant that over the greater part of Western Europe the vassal followed his lord to the field, and was ■ subject to the jurisdiction of his courts. And it is clear that, where the central government was weak, the result inevitably was to split up a state into a number of petty principalities ; in the language of Guizot,* to fuse together sovereignty and property, by giving to the lord of a district all or most of the rights over his tenants which make up sovereignty. Origin of It is now known that this organization dfd " ' not arise on the Continent, as used to be .sup- * " Histoire de la Civilisation en France," ill. 29.
Feudalism.
47
posed, from a partition of conquered lands by the chiefs of the bcirbarian tribes which overthrew the Roman empire. Its growth was gradual, and was due to the converging action of many causes at work during five centuries. Chief of these causes were : (i) grants of benefices ^ ue. of estates to be held in usufruct — so bringing about the division of ownership ; (2) commendation of in- feriors to superiors, which created the relation of vassalage, and came to be inseparably associated with the gift of a benefice, so that the receiver was bound to personal fidelity to the grantor; and (3) the grant to territorial lords of immuni- ties, or exemptions from the national courts, which completed the power of the lord by giving him jurisdiction.^ But in England such Differenct influences had either been absent, or had played England but a secondary part For here it was an "^'^f^. institution which abroad was of little impor- tance, namely, the comitatus, or body of imme- diate companions of the king, which did most to modify the older system. It was out of this, as the previous essay has shown, that thegnhood had arisen ; and thegnhood, working together with grants of jurisdiction and the police system
* This has been worked out most clearly by Waitx ; but for substantially the same explanation, see Hallam, *' Middle Ages," note xi. to ch. ii., and vol L 239 (ed. 1878).
48 Feudalism.
which compelled every man to find a surety, had certainly made England before the Norman Conquest very much like a continental feudal state. But in England the dominant idea was still that of personal relation — of a thegn to the king, of a man to his borh, or to his lord by commendation, and not that of territorial obliga- tion— of service or jurisdiction because of land. Social organization did not yet rest on tenure. Cotuf Let us now look at the immediate conse-
f/^" quences of the Norman Conquest. In the first Conquest: place, all land comes to be held of the kingf,
all land *^ ' ^'
nmv fuld mediately or immediately ; he is the supreme king. lord of land, and all men are his tenants. It may not indeed at first sight appear that the position of a great thegn before the Conquest differed from that of an important tenant-in- chief under William I. The thegn forfeited his land if he did not obey the summons to the field. Moreover, although thegnhood did not necessarily imply a close personal relation, as of a gesith, to the king, probably most thegns were in fact in such a relation, or were descended from men who were gesiths when they received their estates from the king. The thegn's situation was then in these respects roughly parallel to that of the feudal vassal. The important differ- ence is this, that military service before the
Feudalism, 49
Conquest was a duty equally incumbent on every freeman, as a freeman, and not a special duty of landholders in a certain relation to the prince. Refusal to obey the summons to the host was visited with severe penalties. But although the penalty in the case of a thegn was the forfeiture of his land, it was not because such land had been given upon definite condition of service. His land, if indeed it had been received as a grant, had been given in absolute owner- ship, as a reward for past and not in considera- tion of future service. These distinctions seem, perhaps, unimportant, but they involve a differ- ence of principle which it is essential to observe. The thegn was regarded as having complete property in his land ; the ownership of the tenant-in-chief, on the contrary, was but partial, and was limited and conditioned by the claims of the grantor.
The change from the old to the new tenure Means by was effected in two ways : by grant to Normans y^as of forfeited land, and by confirmation of the 'ff'^'^*^- rights of Englishmen. The lands of those who had fought for Harold at Hastings were treated as forfeited, and speedily granted to William's followers ; and the subsequent rebellions of the West and North enormously increased the number of forfeited estates at his disposal.
B
50 Feudalism.
But the only method of holding land familiar to the Normans was the feudal tenure just described. The natural consequence was that William conferred these lands in the way- usual on the continent, i.e. to be held of him^ subject to the conditions there customary. Every recipient did "homage," by placing his hands between those of his lord and acknow- ledging that he became his " man." Henceforth all the great lords were tenants-in-chief of the king. And the same was the case with those English who were allowed to remain in pos- session of their lands. Mr. Freeman has shown that the evidence of Domesday and of the English Chronicle points to a general redemp- tion of estates by the English immediately after William's coronation. "Archbishop Ealdred consecrated him king," says the Chronicle, " and men paid him tribute and delivered him host- ages and afterwards bought their land;" "when the English redeemed their lands," appears in Domesday as a time from which men reckoned. We can scarcely be mistaken in inferring that those who had taken no part in resistance to William were confirmed in the possession of their estates on the payment of considerable sums of money. The ordinary Englishman would think that it was unfortunately necessary
Feudalism. 5 1
to bribe the successful Pretender. Possibly, if he were of a legal turn, he might look upon it as the payment of fyrdwite — a fine for not coming to the national host in support of the man who claimed to be rightful heir. But certainly, to William and the Norman lawyers, the transaction would seem much more than this. It would seem a surrender of their hold- ings by the English, and a regrant by William on feudal terms. Thus, the lawyers' doctrine that all land must be a grant from the crown, does for the first time become true in England.* The consequence is clearly marked twenty years later in Domesday. There it is assumed of all lay land that lawful posession can rest only on grant from William, and that this must be proved either by producing a writ under the king's seal, or showing evidence of livery of seisin, i.e. a formal putting in possession by a royal official.
Much, indeed, of the land which had at first Fution been redeemed was forfeited after the risings "viniam's in the North and West, and given to Normans,^"/""*"
° ' »/j impor-
so that at the time of the Domesday survey tamt. scarcely any of the lay tenants-in-chief were of English blood. Yet William carefully ab- stained from ever assuming the position of a * Freeman, '• Nonnan Conquest," v. 369.
52
Feudalism.
conqueror who had a whole country at his dis- posal. He throughout maintained the fiction that he was the rightful successor to the throne of the Confessor, and that changes in owner- ship were consequences simply of individual misconduct Nowhere, therefore, was there an entirely new partition of territory. The usual practice was to grant to a Norman an English- man's forfeited estate in a particular district as a whole ; so that the new lords stepped into Results of precisely the same positions as to extent and inland-^' character of property and authority as were held by those they displaced. It is not difficult to see what would follow from such a substitu- tion. Every important English landholder had stood in the position of patron or superior to many different classes of dependents. Obscure' as is the early history of the manor, it may safely be said that by the middle of the eleventh century almost every township was in some measure subject to a lord. In many cases, no doubt, this dependence was due to the fact that the village community had been formed by settlement on a lord's land ; but in many others it was caused either by the voluntary commenda- tion of the inhabitants to the powerful man of their district, or by a royal grant giving to such a magnate jurisdiction over the inhabitants.
holders as to the villagers,
Feudalism. 53
Certainly the condition of things was far from being uniform in different parts of the kingdom, and wide differences remained in degree of dependence. Of all these distinctions, to him unintelligible, the Norman grantee made very- short work. Accustomed to the Norman manor, in which every man was subject to the jurisdic- tion of a seigneur, and held his land of him, he would treat the people of an English village in the same way. Such and such men were some- how dependent upon him. Such and such men appeared in a court of which the president was his steward, and of which the fines were paid to him ; " then, of course," he would think, " such men must be my tenants, must hold their land of me."
But as yet we have mentioned only the two eu to the extremes of the feudal scale, the tenants-in- chief, and the villeins or villagers. Between these were many classes and gradations of rank. The great king's thegns had, before the Con- quest, thegns of their own, who were also in the possession of land, probably often of whole townships. Such thegns would soon be regarded as sub-tenants of the Normans who had taken the place of their lords, as holding their estates not, as before, in complete ownership, but by the grant of their superiors and subject to the rights
54 Feudalism.
of those superiors. Moreover, Domesday shows that many of the smaller English landholders who had before possessed land in their own right, recognizing no man as their lord, were able to retain their land only on condition of sinking into dependence as tenants of a neigh- bouring lord. Thus everywhere the simple feudal tenure took the place of the confused congeries of rights and customs which had previously existed. Instead of the two thousand proprietors in their own right of the time of the Confessor, there were now, including ecclesi- astical holders, some six hundred tenants-in- chief^ The greater part of the agricultural population were, doubtless, immediately subject to these tenants-in-chief, so that their lord was the only person between them and the king. But there were also almost eight thousand sub- tenants, half of them English thegns, holding of greater lords manors and other lands upon which were freemen, socmen, and villeins. Summary The Speedy result of the Conquest, therefore, intmure. '^^^^ *° Complete the process of feudalization of land-tenure which had long been going on ; to effect " a universal assimilation of title ; " to make the king the supreme land-lord ; to give to the relations between the greater landholders 1 Gneist, "Hist, of the Engl. Const.," i. 125 (Eng. trans.).
Feudalism. 5 5
and the king, and between these and the mass of the population, the same character as they bore in the rest of Western Europe.
So much it has been necessary to say by way The ques- of introduction ; for the " feudal system " of ^^^"rfd^ society and government rested on the feudal tenure of land. The question remains, what, in the first place, were the consequences of feudal tenure in the organization and character of society ? and secondly, what were its con- sequences in government ? Like all other men, the Conqueror was limited by the conditions of his time and place. For him, a state of sodety other than one resting on a feudal land- tenure was inconceivable. And, indeed, from certain of the results of feudalism, the central power might profit. A strong monarch found himself much helped by the universal recogni- tion of certain rights belonging to him as supreme landlord, as suzerain. On the other hand, William's experience in Normandy had taught him that vassals were likely, and Norman vassals certain, to endeavour to become petty princes upon their territories, and reduce the royal authority to a shadow. The policy for a monarch who saw the possibilities of the situation was obviously to prevent government becoming feudal, while permitting land-tenure
56
Feudalism.
Division of the subject.
I. Social changes due to feudal tenure.
(a) Mili- tary service.
and the social relations based on it to become feudal. And such a policy may be traced in almost every measure of William and his two successors.
The different parts of the subject are so inextricably connected, that any systematic division is impossible. But it will perhaps add to clearness of thought, if an attempt is made to distinguish (i) what the introduction of feudal tenure brought about in society, (2) what constitutional results sprang from it, and (3) what results in government the policy of the Norman kings prevented.
I. It has already been pointed out that the feudal bond was of the nature of a contract, and that the tenant held his land on condition of performing due service to his lord. The service which was of by far the greatest impor- tance was military service. At first, the change in this respect, produced by the introduction of the new tenure, was rather in idea than in fact, in that men were bound to serve the king no longer merely as citizens, as members of the nation, but also because such service was the condition upon which they held their estates. For some time before the Conquest the cus- tomary quota, at any rate in some counties, seems to have been one fully armed man for
Feudalism. 57
every five hides of land ; and probably this was roughly the amount of obligation understood to be incurred by the new possessors. Domes- day Book, by presenting an accurate register of property and its value, made the task of the royal officials in duly assessing each vassal's contingent easier, and this was doubtless one of the purposes for which the survey was de- signed. But as yet the burden was estimated in rude proportion to the size of each estate, and weighed on the whole of it ; no definite share being borne by any particular portion.
On passing to the beginning of the reign oi Division Henry II., a very different state of 'Ccimgs^knighf s presents itself. That king demanded and^'"' obtained in 1159, a payment from his vassals in lieu of military service. This, which soon became an ordinary method of taxation, was known as escuage or scutage, because it was a certain amount for each scutum, for each knight's fee. But such a measure implies that the whole country was already divided into knight's fees, i.e. fiefs or holdings from each of which one knight was expected to appear. And for the next two centuries the knight's fee is the unit of reckoning for most military and many financial purposes.
Now all our evidence goes to show that this
58 Feudalism.
arrangement was the result of a gradual process, which occupied the hundred years which fol- lowed the Conquest. With wars frequently recurring, with sovereigns strong enough not to let the vassals forget the terms on which they held their estates, nothing was more natural than that the vassals should carve off portions of their land, and give them to sub-tenants, on condition that each should be ready to serve when summoned. Thus they would save them- selves from the very real danger of not being able to find enough knights to make up their due quota when called to the field. The piece- meal adoption of this expedient throughout the century is easily observable, especially upon the lands of ecclesiastics, for whom it was naturally more difficult than for laymen to find men to serve for them on an emergency. And when the division was completed, and the whole of the country parcelled out in this way, the knight's fee, when there was no other guide, was reckoned as on an average five hides. The estate from which a knight's service was due was, however, sometimes as small as two, some- times as large as twelve hides, according to the conditions of the enfeoffment, which may have been determined by grace or by the character of the land ; and indeed it would seem from inci-
Feudalism. 59
dental notices, as well as from the later practice in compulsory knighthood, that the knight's fee was commonly measured rather by value than area, usually by an annual value of twenty pounds. The obligation to knight-service was limited moreover by very early usage to forty days in the year. For half a fee twenty days' service was given, for fractions or multiples a similar proportion ; and it may be remarked that, until the end of the twelfth century, no resistance was offered to demands of service abroad as well as at home : the very words of the oath of fealty taken by the tenants-in-chief declared that they would be faithful to their king within England and without.
It will now be apparent that the conception which used to be assigned as the explanation of the origin of the feu^l system, is really that which " dominates it in its finished form." * That feudalism began in the grant of land on definite condition of so much service for so much land, is unhistorical ; but the statement points to the truth that the necessity of military service, its definition and limitation, are the main ideas of the feudal tenure when fully developed. It is essentially a military organi- zation. The king is enabled by it to bring » See Pollock's " Land Laws," ch. iii.
6o Feudalism.
The milt- together the feudal array, when he thinks fit, by before7nd Summoning the tenants-in-chief, that is those after the directly holding land of him, to fulfil their ob- ligations ; while these vassals are in the same way enabled to furnish their due contingents because their sub-tenants are similarly bound to them. It is easy to see that with a strong and prudent sovereign such an organization must have enormously increased the military power of a kingdom by individualizing respon- sibility. Before the Conquest it had been neces- sary for the sheriffs, each time an army was needed, to negotiate with the moots of every shire as to the number of armed men they would provide. Local custom varied, and a county or town was frequently permitted to send a smaller number than its due. Even if a king's thegn did not appear in the host, it was only the king's thegn himself that could be punished. But after the division into knight's fees had taken place, the extent of the obligation of each military tenant was unvarying and exactly known ; and there was a ready means of punishing the absence even of one knight. Thus the feudal array was more constant in number and quality than any force which an earlier system could have furnished. (3) Prtmo- p^ consequence of military tenure wMch has
geniture.
Feudalism, 6 1
lasted till to-day is primogeniture. The old Teutonic law of inheritance was one of equal division among the sons. The family holding was not the property of the father but of the family, and could not be alienated save with the consent of the family. But by the beginning of the eleventh century such a rule would, in Eng- land apply probably only to the smaller land- owners. The greater proprietors held their estates as book-land, in most cases as grants from the king, and unless the original instrument expressly limited the grant to one or more lives, or prohibited alienation from the family, the holder could dispose of it as he pleased, by will or by grant When, however, feudal tenures had been introduced, the landholder ceased to have complete property in his estate. The lord had granted it in order that he might be furnished with service. It could not be permitted that a tenant should at his own choice put by will or grant another man in his place — a man who might easily be on the worst terms with the lord» and from whom the lord could in no case look for the gratitude which he might fairly expect from his own grantee. Partition between sons was almost equally objectionable, when applied to what was in idea an office of military com- mand with land attached. Such considerations
62 Feudalism.
caused primogeniture to be insisted upon, and accepted as the rule for all lands held in chivalry, by military service ; and the tendency towards the extension of this rule was so strong that even in the case of socage lands, i.e. lands held by free tenants doing suit and service, but not subject to military duties, it was generally adopted by the end of the thirteenth century.
(7) Feudal As to what were called the incidents of feudal
tna s. ^gj^yj.g^ j^ jg readily seen that they are all de- ductions from this military conception. The
{\\for- simplest and most obvious were /^r/^Z/wr^ upon ^'^ violation of the conditions of tenure by dis- obedience to the summons to war, still more by
(2) escheat^ fighting against the lord ; and escheat, the return of an estate to its immediate lord who repre- sented the original grantor, on the failure of heirs to a tenant. Not only did the land fall back into the hands of the lord in a case such as this, but in theory it was resumed tempo- rarily on the death of every tenant. On the continent the grant of a benefice had at first been for life only. The renewal of the grant to the son of the previous owner was at the lord's pleasure. And although the hereditary character of fiefs was generally recognized before the end of the ninth century, a trace of the older practice remained in the necessity for the
Feudalism. 63
heir to obtain investiture before he could law- fully enter into possession. It was natural that upon such an occasion a present should be made by the heir to his lord, and out of this arose the demand, as a right, of the pay- ment known as a relief. The word itself, (3) reliej^ which implies a taking up of what had been laid down, indicates the difference of prin- ciple between the relief, and the customary payment before the Conquest, known as heriot. compared The heriot had arisen from the simple personal '
relations between the king and his immediate companions, the gesiths. Upon the death of a gesith the horses and arms which the prince had bestowed upon him naturally returned to the lord. Thus it remained the practice, long after the gesiths had grown into a territorial nobility of thegns, for the heir of a thegn to pay a certain number of horses and suits of armour to the king. And although by the time of Canute this payment comes to consist partly of money, the ideas underlying heriot and relief remained different. The heriot was a cus- tomary payment on the death of the previous holder, the new holder succeeding by alodial right ; the relief implied a suspension of ownership, and was a payment by one not yet in possession to obtain as it were a regrant of
64 Feudalism.
lands which had for a time reverted to the over- lord. (4) ward- When an heir was under age, the lord enjoyed '^' the right of wardship, i.e. of managing and
receiving the profits of the fief until the tenant came of age. When the lord was the king, the right of wardship, with the profits arising from it, was often sold to some courtier or other baron who made a satisfactory offer. Between guar- dianship in chivalry and guardianship in socage there is a significant contrast. In the latter case the guardian of the lands is the nearest kinsman who cannot succeed, until the heir arrives at the age of fourteen, when he can choose a guardian for himself; the guardian must manage the estate for the benefit of the heir, and account for receipts and expenditure. But in the case of lands held in chivalry the profits go to the lord, because in idea the estate is his during the interval ; it has reverted to its original grantor, although a custom which be- comes a law, enforced later by the assize of mort d^ancestor, obliges him to put the heir in posses- sion when he comes of age.^ And the heir can- not fairly demand more, for until he reaches manhood he cannot render that military service on condition of which the estate has been given. 1 C£ Pollock, " Land Laws," 60, 61.
Feudalism. 65
In the case of an heiress, moreover, the lord (5) war- had the right of marriage, «>. the right of"^'^' marrying her to a person of his choice, usually on consideration of a payment made by, or on behalf of, that person, or of demanding a fine upon her refusal to marry, or in return for leave to marry as she pleased. The heiress would never herself be able to render the military ser- vice due ; it was therefore necessary, so it was argued, for the king to choose a husband whom he could trust to perform the duty for her. So important was it to prevent lands passing into the hands of the king's enemies, that the sove- reign insisted on the necessity of his consent even to the marriage of the heiress of a tenant- in-chief during her father's lifetime. In later times, this right of marriage was extended to include the right of marrying male heirs if under age to wives of the lord's choosing. This, how- ever, was based on a strained construction of a clause in Magna Carta, and clearly had no justi- fication in the theory of tenure.^
Such were the incidents of feudal tenure till Ranulf they were abolished in the seventeenth century, and't^ They grew up gradually on English soil. They/'^J|^' were not suddenly introduced from abroad at the Conquest, for on the continent and in England
* Digby, " History of the Law of Real Property," 106.
F
65 Feudalism.
alike the time when they first take a systematic shape was the eleventh and twelfth centuries. With us, indeed, their development and elabora- tion can, with much probability, be assigned to one man, the minister of William II., Ranulf Flambard. In the reign of William I. they are scarcely to be seen even in germ. The charter of Henry I. at his accession, the main purpose of which is to reform the abuses introduced by his brother, takes the incidents for granted, and indeed, recognizes that every lord has the same rights over his vassals as the king over his tenants-in-chief Their development must there- fore have taken place in the reign of William II. Now Flambard is directly accused of instigating a policy toward the lands of the Church which was based on the same idea, the idea that an estate reverted to the king whenever there was no holder who could perform its duties — in the words of the chronicler, that the king was " every man's heir." It is therefore likely that it was Flambard who shaped the burdens upon lay tenants. In so doing he did but continue the policy of the Conqueror, of drawing from the theory of tenure all those deductions, but those only, which profited the central power. Indeed, the social and legal growth of feudalism went in England much farther than it did abroad ; for it
Feudalism. 67
is a striking fact that the two most lucrative incidents, wardship and marriage, are scarcely found in a complete form anywhere else than in England and Normandy.^
Hitherto we have been considering the rela- (j) Coi- tions of military tenants, great and small, to^f'^)^ their lords, and the unit of most importance in manorial
sysUm.
this connection is the knight s fee. Let us now take the manor as our unit, and look at the relations of the lord to his manorial tenants. A manor must be carefully distinguished from the knight's fee. It might be made up of one or more knight's fees, and the lord of a manor often had military tenants holding whole fees or parts of fees under him. Upon most manors, the Inhabi- majority of the tenants were villeins and cottars, manor :'the bound to do certain semi-servile work upon the *^^'"» lord's demesne, but possessing an hereditary right to their holdings so long as they performed those services. That an estate should possess thefnt- the character of a manor, and that its lord should have a right to hold its most important court, the court-baron, it was early recognized that among the inhabitants there must be, in addition to villeins, at least two freeholders. These freeholders were either military tenants or
1 For Flambard, see Freeman, "Norman Conquest," V. 372-382 ; and " William Rufus," L 334-342.
68 Feudalism.
socagers, the latter being bound to make certain payments, or to perform services sometimes little less onerous than those of villeins. Mr. Seebohm, in his recent book on the "English Village Community," has done good service by making us see more clearly than was possible before the nature of the common cultivation of the lands of the manor, and the way in which the demesne of the lord and the holdings of the free tenants were intermixed with those of the villeins. He has also shown that the organiza- tion of the manor is of earlier origin than we are wont to suppose. But m taking up the extreme position that all the inhabitants of what after- wards became a manor were always in a con- dition of more or less servile dependence on a lord, he comes into evident conflict with clearly ascertained facts. As was seen when speaking of commendation, we can distinctly trace, before and after the Conquest, the way in which free alodial holders, owning no man as their lord save the national king, sank into dependence. After the Conquest, indeed, all the inhabitants of every township are found, in some way or other, dependent upon a lord of the manor ; but certainly the Conquest itself did a great deal to bring this about.
It may however be confessed that little was
Feudalism, 69
needed to complete the manorial organization ; cviaw^j iV the really important changes due to the Conquest ^jutlo"^ were rather (i) the more or less compulsory Conquest: adoption of military tenure by many of the holders, dependent freeholders, of which something has already been said; and (2) the speedy dis- as to slaves. appearance of slavery. There had been a con- siderable class of theowsy absolute slaves, treated as farm implements, and sold as chattels. But, Slavery as has been justly remarked, there was no room ^ot. for the slave in the feudal theory.* For the feudal principle was one of reciprocal duties and rights ; a class without rights it could not include. And this is probably the explanation of the fact that, much as other classes were depressed, the position of the slave manifestly improved. The English had long carried on a brisk slave trade, especially with Ireland — a trade resulting in iniquities such as we are wont to think peculiar to more modern times. All that previous kings had done was to prohibit the sale of slaves to heathens ; the Conqueror, influenced by the higher morality which accompanied the Church revival of his time, forbade it altogether ; and his legislation was assisted by the preaching of S. Wulfstan, and the decree of Anselm's Synod at ^Vestminster. Henceforth a lord would find it * Freeman, " Norman Conquest," v. 48a
70 Feudalism.
more to his interest to settle such slaves as were not needed in the household on plots of ground taken from the " waste." The universal tendency towards making services fixed and definite would lead to the limitation and enrolment even of the work expected from a slave. These labour-dues would come to be regarded as the condition on which such a man held his land ; so that, after a time, his position would only differ from that of the villeins proper in the more Villeins in onerous nature of his services. The unreal
gross and .... r i i •»» •
regardant, distmction of the lawyers between villeins in gross and villeins regardant — the former defined as mere chattels, the latter as unfree only in certain respects and in relation to their lords — may be due to a vague recollection that among villeins were comprised slaves who had risen as well as freemen who had fallen. Manorial In the manorial courts no very distinct change courts: ^^^ i^g attributed to the Conquest, save the in- troduction of new names for old institutions. Thus, distinctions are soon drawn between three " courts of the manor," and different functions (i) the attributed to them. The court-baron, the court '^bann °^ ^^ " barons " in the old sense of freemen, doubtless represents the old township moot. The lord nominates or confirms the reeve, and receives the profits of jurisdiction, but does not
Feudalism. 7 1
interfere with the customary procedure. Here, as in all the national courts, " the suitors are the judges," />. all those who are present at, or "do suit at," the court, join in giving the decision. Every manor had such a court-baron ; and every manor had also a court-customary, which dealt (2) the with matters arising out of the villein tenures, customary and in which the lord or his steward was judge. But, besides these, many manors had also a court-leet. The term leet everywhere implies (3) the criminal jurisdiction ; and it is probable that these seigneurial courts arose out of those grants of exemption from the hundred court (the lowest national court possessing criminal jurisdiction) which were frequent in the centuries before the Conquest These grants conferred what, from the reign of the Confessor, became known as sac and soc. And there is this negative argument for the pre-Conquest origin of the manorial court- leet, that had it been introduced from Normandy, or had it grown up after the Norman invasion, it would certainly have taken the shape of a court for a whole barony, or group of manors, rather than that of a court for a single manor For it is a singular characteristic of English English seigneurial courts, that, except in the case oi court " honours, they are always only manorial courts. ^^'J^^ Even when a lord possessed several adjacent
72 Feudalism.
manors, and held one court day for all of them, it was regarded as but a junction of many separate courts which chanced to be held at the same time and place, and not as the court of a whole barony. Liberties. More dangerous than these to the unity of the state were the courts of the great liberties or honours. These seem to have originated in grants which, before the Conquest, had placed many hundred-courts in dependence upon some neighbouring magnate, some land-rica who had been made the king's representative over a wide district Such grants would, at first, pro- duce no change in the tenure of the other land- owners of the district, many doubtless themselves lords of dependent townships; the only alteration being that the bailiff, who presided over the suitors at the hundred-court, was nominated by this great neighbour, who also got a share of the fines. But the troubles of the Danish invasions would tighten the bond between such a magnate and the inhabitants of various ranks who were subject to his jurisdiction ; and the Conquest completed the process. For the new Norman lord could not understand how a man could do service in his court without holding his land of him. Without intending injustice, he would treat all the landowners of the hundred, or larger terri-
Feudalism. 73
tory, as his vassals. In a case like this we have the nearest approach in England to a baronial court of the continental type.
II. Such are some of the main features of the //. CohsH- social organization which resulted from the intro- changes duction of feudal tenures. It must have been ^^'J apparent that such an organization could not tenures. have been without important results in the sphere of government And indeed the consti- tutional changes were numerous and far-reaching, — in the position of the king, in the constitution of the national assembly, in the organization of justice, and in the method of taxation.
To the king it meant the addition of the (a) In the character and power of a suzerain^ or feudal ^^ over-lord, to the character and power of a sovereign^ or national leader and magistrate. We have seen how much more effective the military force was made by the imposition of feudal responsibilities upon landholders ; and this is only a particular instance of a general truth. Compare, for instance, the relations of (i) (wer great ealdormen and thegns with the Confessor, ^'"^'^ '' and those of earls and barons with the Norman king. Between the Saxon king and the great noble there was no other tie than the almost nominal bond of thegnhood ; a turbulent or traitorous magnate would need to be tried before
74 Feudalism.
the Witan, and the Witan would probably acquit him. But William, as suzerain, would have much less difficulty in gaining the acquiescence of a court of peers to the forfeiture of the estates of a tenant-in-chief for breach of his feudal obligation. Not that the mere change in tenure gave the king this greater power. Had there been no increase of strength owing to other causes, the altered tenure would rather have brought weakness. But the point to be noticed is this, that the feudal theory gave the suzerain a right to punish disobedience at his discretion — a right which was intelligible and generally recognized, and which there was a uniform and simple means of enforcing ; and that such a right was a weapon of tremendous efficacy in the hands of a strong king. (2) aver It might bc urged that in relation to his *"**"* thegns the king had, before the Conquest, taken up much the same position, though with less power, as a suzerain after the Conquest. But at any rate, with regard to the towns and with regard to the folk-land, he had occupied no other position than that of national king ; and yet here the consequences of the new doctrine of tenure are also strongly marked. Some of the towns had doubtless grown up on the lands of lords ; others, arising independently, had been subjected
Feudalism. 75
by royal grant to the jurisdiction of powerful neighbours. But since in the minds of the new lords jurisdiction and land-tenure were inse- parably connected, after the Conquest all towns soon came to be regarded as on the demesne 01 him who had the jurisdiction, and their inhabi- tants were conceived of as holding from him by a tenure {burgage) similar to socage. Most English towns, however, had remained independent of any private lord, and subject to the jurisdiction of the national courts alone. But, as early as the beginning of the tenth century, such courts were considered royal courts, and the king was held to be the fountain of the justice administered in them. And thus because the king had the jurisdiction, and, in feudal phrase, there could be " no land without a lord," these towns, including the most important in the kingdom, were treated as part of the royal demesne.
Folk-iand v/diS peculiar to England, and absent (3) nvr in other Teutonic states. From this national reserve of land grants could be made by the king, but only with the consent of the Witan, Such part of the land, however, as was not given in grant did not remain entirely unoccupied. Tenants were allowed to settle upon it, and over these the king was recognized as having a special jurisdiction. The folk-land tended, indeed, from
y6 Feudalism.
the first to become the private property of the king. After the eighth century the consent of the Witan to grants from it is scarcely more than nominal. And, therefore, the change was insen- sible when, after the Conquest, the folk-land shared the lot of the towns for exactly the same reasons, and was swallowed up in the royal demesne. How important this was in the matter of taxation we shall see later. (/3) In the Lastly, feudal ideas caused important modifi- *moruLrchy. cations in the very theory of the kingly dignity. As all land was held of the king, it was natural to regard him as standing in much the same relation to his country as a lord to his estate. The royal position began to be regarded as a possession rather than an office — a contrast marked by the use of the term King of England, instead of King of the English} In consequence, Rttks of it was soon thought that the same rules applied to the succession to the throne as to the succes- sion to a private estate, viz. hereditary succes- sion, and in default of heirs bequest or adop- tion. This had long been accepted as law in Normandy. But William, anxious to make no break in the external regularity of English tradition, was careful to recognize the old
1 For the transition from " tribal " to " territorial " sovereignty, see Maine, "Ancient Law," io6.
suuesston.
Feudalism. yj
English right of election, and his own personal preference for Rufus prevented him from putting forward his eldest son as his due successor. The ambition of Henry and Stephen, and the death of the Etheling William, still further delayed the recognition of the feudal rule as applicable to the crown. Yet it is seen gradually forcing its way. For instance, a contemporary chronicler speaks of Stephen's seizure of the throne as "alike against human and divine law — divine because he broke his oath, human because he was not the legitimate heir ; " although the claim of a woman, Matilda, was almost equally dis- cordant with feudal feeling, and Henry H. showed that he recognized this by getting him- self appointed heir by Stephen. The form of election and national acceptance still remained, and with it its corollary, the principle of the right of deposition ; but by its side appeared a new doctrine of far greater strength and in- fluence, that of hereditary right.
A similar substitution of the new for the old (7) /« f^ principle is seen in the national assembly. It assemify, had been the Gemot of the Witan, the assembly of the wise — of those to whom wisdom was ascribed in virtue of their offices as ealdormen, bishops, or ministri. But England after the Conquest appears rather as an estate divided
7«i Feudalism.
among tenants-in-chief than as a nation with
officials. And for such a state the national
assembly is naturally one, not of great officials,
which but of tenants-in-chief, sitting in virtue of their
becomes one . , . -. ,»,, . . , ^ ■, •
<//^«a«/j. tenure-m-chief. There is no violent break in »«•' *</; continuity ; the more important persons in the kingdom are still summoned, but these now hold their estates directly of the king, and the idea common to all feudal states at once appears that the qualification for membership is that a man should be directly holding of the king. This was the theory as late as Magna Carta, the only noticeable modification being that a distinction has arisen between the " greater barons " and all the others " who hold of us in chief," the former receiving a personal summons, the latter summoned generally through the sheriff The adoption of the feudal theory affected even the clerical members, although the same number continued to be sum- moned. The lands of bishops and abbots came to be looked upon as holdings in capite of the king, and an article of the Constitutions of Clarendon laid it down that they were to be held " as a barony." To the old character of the bishops and abbots as Witan, was now added the character of great tenants-in-chief, or barons; though it does not follow that the earlier qualifi-
Feudalism. 79
cation disappeared, and that they were deemed to sit in the assembly only as barons. Indeed, their very presence was probably due to the fact that William wished to maintain, as far as was convenient to him, the old form of the Witenagemot ; for in Normandy the bishops are said to have been excluded from the Great Council altogether.^ This indication that Wil- but retaim Ham's policy was to give to these assemblies |" ^J"^ the character of Witenagemots and of feudal ^'""'^^■ courts at the same time, throws some light on a question which has been vehemently disputed — as to the power which the national assembly possessed in the Norman period. Gneist has argued that the gathering was merely for court display ; that its consent should be regarded as necessary in taxation and legislation is, accord- ing to that writer, to antedate later ideas.'* But it is certain (i) that the Witan did in theory possess such a right of sanction ; (2) that con- temporary observers did not think that the old institution was abolished and a new one created; (3) that the English Chronicle continues to speak of the assembly by the old name, and that the equivalent sapientes is used by Latin writers far into the twelfth century. And when
* Freeman, " Norman Conquest," iil 290.
* " History of the English Constitution," L 247, 250 n.
8o Feudalism.
we find that William thinks it expedient to say that he legislates with the common council and consent of the magnates, and Henry I. to state that an aid was given him by the barons. we can hardly doubt that the old theory of the power of the national assembly was retained and recognized. On the other hand, it is equally clear that the mention of counsel and consent was as yet but a form, and that in matters of legislation and taxation the Norman kings were practically absolute. (« In The growth of the administrative system will
/uduaturet ^^ traced in the essay which follows. The early history of the central judicial and administra- tive machinery, of what was subsequently the Curia Regis and Exchequer, is extremely obscure; it is, however, clear that its development was hastened after the Conquest by the new needs of government. As early as the time of Ethelred II. it had been enacted that a king's thegn should be subject only to the soc or jurisdiction of the king himself; though this may only imply that the king was to receive the fines arising from such cases. A theningmannagemoty a court of thegns, is, indeed, once mentioned in the reign of Edgar as that before which an important suit was brought, but the sequel of the story shows that the shire-moot could insist on having even
Feudalism. 8 1
weighty matters submitted to it in the first instance. Yet the mere appearance of a special court of thegns is in itself significant, and marks the strong tendency in England towards institu- tions like those of the continent. After the Con- owing to quest and the change of tenures, the creation 1^^^ of a feudal court for tenants-in-chief became *>' Z^'"- necessary. For in all feudal societies the prin- ciple is asserted that a man ought to be tried by his peers, i.e. by those who hold in the same way of the same lord. The immediate lord has the jurisdiction ; that is, the courts are held in his name ; he or his representative pre- sides, and to him go the profits of justice ; but the judges must be the other tenants of the same fief. Thirty years before the battle of Hastings, the Emperor Conrad II. had given express recognition, in the famous Edict of Milan, to the principle that no man should be deprived of his fief but by the judgment of his peers.^ The claim rested on a just con- sideration— that, as most suits arose out of land, men were not so likely to receive fair treatment from those of whom they held, or who held of them and of their equals, as from men who were in exactly the same position as to tenure. In England the principle quickly received the stamp » Hallam, « Middle Ages," L i66.
G
82 Feudalism.
of law. In the so-called "laws of Henry I." it is laid down that no one shall judge his lord, or pass judgment upon him whose liege- man he is. Probably the county court, as Gneist suggests, would continue to be resorted to for petty criminal matters ; for, of the four or five hundred tenants-in-chief, there would surely be enough in each shire to furnish the sheriff with a jury of pares. But land was the chief subject of litigation, and Henry I. expressly enacted, in an order issued early in his reign, that " when henceforth a plea arises concerning the division of lands, if it is between barons holding of me in chief {inter barones meos dominicos) it shall be tried in my court, and if it is between the tenants of two lords it shall be tried in the county court." This proves, at any rate, the existence of a court for the trial Compost- of suits between tenants-in-chief. As to the 'curm. ' composition of this court, controversy is still busy. Gneist proves, what needs no proof, that there was no recognized body of great vassals which could act as a feudal court of peers ; and he argues that whenever a case was excepted from the jurisdiction of the county court it was tried by special com- missions appointed by the king, and really acting in virtue of the king's absolute authority,
Feudalism. 83
though they might nominally be peers of the parties engaged.^ On the other hand, in one great case, that of the Bishop of Durham, in 1088, it is clear that all the magnates were present, as at a national assembly ; and sentence was pronounced in the name of "the court of the king and these barons." All that can be said with certainty is, that in the reign of Henry I. the Curia Regis does become distinct from the Common Council of the realm, and consists of officials. Perhaps in the two pre- vious reigns there was a difference in fact between the small body of officials who would act in ordinary cases, and the whole assembly of tenants-in-chicf, who might come together for judicial purposes when the business was important ; but probably this difference in fact had not yet translated itself into theory. What- ever else the court may have been, and however it may have been constituted, it was, evidently enough, a feudal court of peers, meeting needs arising from the introduction of novel ideas ; and that such needs had to be met, must be reckoned one at least among the causes which led to the appearance of the Curia Regis as a separate body and to its rapid growth in importance.
* L 257-261 (Eng. trans.X
84 Feiidalism.
(«) In The other branch of the central administra-
finance, ^.^^^ known later as the Exchequer, was, we can hardly doubt, somewhat similarly influenced by the results of feudal tenure, in that the develop- ment of the financial office, which was certainly of much earlier origin than the Conquest, was hastened by the new duties thrown upon it. For the influence of the change on the amount and character of the royal revenue is especially noticeable.
Two of the new sources of revenue have been already mentioned, — the " incidents " of feudal tenure, bringing the king money in the shape of reliefs and payments for wardship and mar- riage ; and "scutage," the commutation for mili- tary service introduced by Henry II. Two Aids. others have to be noticed — aids and tallage. The right of demanding aids arose from the close tie, as between man and man, which the relation of lord and vassal implied and the words of homage expressed. In natural agreement with such an idea, the lord could call upon his vassal to assist him with money on emergencies, although the vassal was understood to be free from taxation as a rule, because he defended his lord with his body. These emergencies soon became limited to three — the ransoming of the lord from captivity, the knighting of his
Feudalism. 85
eldest son, and the marriage of his eldest daughter — each needing an amount of money such as was not usually at the disposal of a feudal lord. The same claim as was made by the king upon his tenants was made by the barons upon their tenants ; and Magna Carta, by the clause forbidding the king to permit lords to take from their tenants other than the three customary aids, recognizes their right to take these. The word "aid" came, however, to be extended to most other imposts, though the word itself had at first implied a free assist- ance. Hence it became necessary to lay down in Magna Carta that aids, on other than the three above-mentioned occasions, should not be imposed save by the Common Council of the realm.
Tallage, a tax which originated under the Tallagt. Norman kings, though it is not given the name till the reign of Henry II., may similarly be regarded as a result of the feudal theory. It was an impost levied at the king's pleasure upon the royal demesne, including, as has been pointed out, after the Conquest, most of the towns in the kingdom. Probably the theory on which it was justified was this — that as military service was the burden of a special class, of those holding in chivalry, it was equitable that those
86 Feudalism.
who were exempted from this duty, the socage and burgage holders, should contribute by taxation to the national defence. The barons claimed an equal right of tallaging their own demesnes ; and it was not without a struggle that the Exchequer succeeded in establishing the principle that all such seigneurial tallages needed royal consent. As late as 1305 Edward I. granted leave to the barons to tallage their lands as he had tallaged his. The towns, however, on baronial demesnes had long succeeded in buying exemp- tion ; and the royal right itself disappeared after the statute of 1340. Tallage in England was never so important as its parallel, the taille, in France, and this for two reasons : first because the maintenance of the national militia took away the excuse for demanding money for national defence ; and secondly, because it proved to be the king's interest not to tallage the towns heavily, in order to induce them to increase the annual payments known as the borough ferms} III. Cer- III. We now turn to consider the question 'bUfSai wherein and why England continued to differ "f^u^b ^'^^"^ ^ completely feudalized state such as the Nor- France ; to notice the dangers to which it was man mgs. g^^j^^j.^ ^^^ ^j^^ means by which these dangers
* Gneist, i. 211 ».
Feudalism. 87
were escaped. The tendencies of a feudal state may be described in two phrases : on the side of the king, sovereignty tended to disappear in suzerainty ; on the side of the vassals, owner- ship tended to become sovereignty. The great tenants-in-chief, and smaller sub-tenants when the immediate lord was weak, might, and in France and Germany did, succeed in becoming practically independent of any external control. The king's authority as national sovereign was lost, and its place taken by narrowly defined rights over those immediately holding of him. But we must be careful to avoid exaggerations. As Palgrave has said, " there was no govern- ment in mediaeval Europe founded on feudality," in the sense of accepting as a principle this limitation of royal power to an over-lord's rights over his vassals. It has recently been shown that even by the early Capetian kings such a limitation was neither recognized in principle nor conformed to in practice.^ Yet such was in the main, and over a great part of western Europe, the result of the forces at work ; and such results might seem especially probable In England. For England was a country con- quered by men penetrated with feudal ideas.
* Luchaire," Histoire des Institutions Monarchiques de la France," L L ch. i.
88 Feudalism.
The new king appeared to depend on his vic- torious army for the retention of his prize ; and everywhere else the existence of a large con- quered population had stimulated the growth of baronial independence. To understand why this did not occur in England it is necessary to realize, before everything else, the position as- sumed by William and his successors. The Conqueror, throughout his reign, posed as the lawful heir of the Confessor. The battle of Hastings and the ravagings of north and west were, in this view, but unfortunate episodes which did not prevent the king, who had been elected in due form by the Witan, and crowned by an English primate, from ruling as English kings before him, with unaltered authority. The policy of William was evidently this, — to use all the power which could be derived from the feudal relation, but at the same time to add to it all the power of the English monarchs. Many an old institution which a despot with a free hand would never have devised, he found it useful to maintain as weapons against feudalism. Danger The first and greatest danger was lest it
ihouid should be believed that the tenant was bound their'l^ds ^° ^'^ immediate lord even against the king.
against the fhis did become the doctrine in France and king.
Germany, and from it the deduction even was
Fettdalism. 89^
drawn that, while the vassal who had waged war on his lord was worthy of forfeiture, his tenants, who had but obeyed his summons, were innocent and ought not to be punished. Thus the Etablissements of S. Louis, which were designed to extend the royal power, though they lay down that a tenant is not bound to serve his lord against the king if the king will do the lord justice, yet declare that " if the chef seigneur persist in his refusal to do justice, the vassal ought either to follow his lord, or resolve to lose his fief." ^ For here the idea of personal relation and duty predomi- nated : a personal tie bound the tenant to his lord ; there was no such bond between this tenant and the king. This relation was created by the act of homage and oath of fealty ; so that, to take another instance from the reign of S. Louis, when that king was going on crusade, Joinville refused to join the barons in taking an oath of faith and loyalty to the king's children, on the express ground that he was not the king's man, but the man of the Count of Champagne.* He was not willing to incur obligations which might conflict with his first duty, fidelity to his immediate lord.
1 Hallam, " Middle Ages," i. 168 n. « " Mdmoires" (ed. Michel), yj.
90 Feudalism.
Oath of Facts such as these make us understand the '''* significance of William's action at the assembly of Salisbury in 1 086. The Domesday Survey had just been completed ; henceforth the king could learn with certainty who were in posses- sion of the soil. His next act was to make the holders recognize that, whoever might be their immediate lord, their duty to the king was paramount to their duty to their seigneur. William wished to make it clear that he was not a mere feudal suzerain, and, as such, only in distant relation to the mass of the people ; but that he was also the sovereign of the nation, and claimed obedience from every member of the nation. And so " he ordered," says Florence of Worcester, " that archbishops, bishops, abbots, earls, barons, sheriffs, with their vassals {cum suis militibus), should meet him at Salisbury ; and when they had come together he compelled their vassals to swediV fealty to him against all men." Contemporary writers plainly intend to show that the oath was understood to be one binding them to the king even against their immediate lords. The English chronicler puts it in this
* way : " There came to him his Witan, and all
the landowning men there were, over all Eng- land, whose soever men they were, and all bowed down to him and became his men, and swore
Feudalism. 91
oaths of fealty to him, that they would be faith- ful to him against all other menP
A similar attempt to stem the tide of feudalism has been made by Charles the Great ; and many a king had tried to get a clause inserted in the formulas of homage and fealty which should reserve the vassal's duty to his sovereign. But efforts to preserve the reality of national sove- reignty had failed on the continent ; and this oath at Salisbury, important as it is as a declara- tion of principle, would have been worthless had not the king possessed means of enforcing its ful- filment. No number of oaths could long prevent the vassals of a great lord with absolute authority in his own district from choosing rather to follow their lord against the king than lose their fiefs. What, then, were the devices of the Norman monarchs, what the circumstances assisting them, which so limited the power of local magnates that their vassals could dare to be true to the king ?
In the first place, William and his successors jifeam by were able to have recourse to a military force ^'J^^j^' other than the feudal levy, namely, the old Z'"'^'"'''^''- national militja, ovfyrd. The most important oitenanceof the three duties binding on every freeman had '
been attendance in the national host William was not slow to see the expediency of keeping men aware that they remained under the same
92 Feudalism.
Instances obligation. Two years after Hastings, the men ^its use. of the already conquered districts had obeyed his summons, and had even joined in the attack upon their countrymen of Exeter. And men did not venture to resist even when the true character of the fyrd, national defence, was dis- regarded, and it was used for foreign warfare. In 1073, when William's first conquest, Maine, seemed slipping from him, an English army took the chief part in the campaign which ended in its subjugation ; and in 1094, ten thousand foot- men came together at the royal summons at Hastings, though only to be robbed of their road-money by Flambard, and sent home agam. Far more important, however, are the instances of the use, and successful use, of the national militia against the forces of feudal anarchy ; for they show that, in spite of the severities of the new government, the great body of the conquered English quickly learnt where their interest lay ; better for them that the king should succeed than the barons ; better one tyrant than many. After the Conqueror's death, the barons twice endea- voured to place Robert on the throne in the place of his sterner brothers. For the weak administration of that prince in Normandy assured them that he would hold the reins laxly in England. The first of these attempts fol-
Feudalism. 93
lowed the coronation of William II. ; it was In 1087. joined in by the foremost " French " magnates in England — Robert of Mortain, Robert of Mow- bray, Robert of Belesme, Eustace of Boulogne, the Bishops of Bayeux and Coutances. Then William, " seeing that almost all the Normans had conspired against him, summoned the Eng- lish," winning them by promises of good govern- ment With English help he took castle after castle, drove back the fleet which Robert, like a new Conquerer, had sent to Pevensey, and finally captured Rochester, Odo's stronghold. " Many Frenchmen forlet their lands and went over sea," says the chronicler briefly of the consequences, " and the king gave their lands to the men who were faithful to him."
In iioi, the struggle seemed likely to h&Fattof repeated, this time between Henry and Robert ; BeUsnu. " but all the English, knowing nothing of the rights of any other prince, remained firm hi fidelity to their king," and Robert did not venture on a battle. The failure of Robert brought with it the punishment of his greatest supporter. Robert of Belesme was the leader, and worst example of the lawless, self-seeking baronial party. Son of Roger of Montgomery, one of the chief followers of the Conqueror, he had become Count of Ponthieu and Alen^on in
94 Feudalism.
France, with the earldoms of Shrewsbury and Arundel in England, the former of itself a petty principality. He had assisted Robert in his revolts against his father, and in his rivalry with his brothers. Power had created in him, as in Italian despots of a later age, a taste for cruelty, so that he became a byword for the wanton tor- tures he inflicted. The presence of such a man was a constant menace to the royal authority ; and we can well believe that when he was driven out, all England, as Orderic tells us, exulted, and cried, " Rejoice, King Henry, and thank God that you have now begun to reign, now that you have conquered Robert of Belesme, and driven him from the borders of your realm." ^
A conquest by Robert of Normandy, aided by men like Robert of Belesme, might, indeed, have made England a feudal state in the sense in which France was a feudal state. But the help of the English enabled William II. and Henry to pass through the crisis, and the danger was never again so great. And so the importance of the English militia diminished, until Edward I. was able to make out of it a system of police and watch and ward. Yet for a long time it remained one of the forces with which an ambitious feudal aristocracy had to reckon. 1 See Freeman, "William Rufus," i. 179-184.
Feudalism. 95
It rescued Henry II. from what seemed over- whelming difficulties in 1173, and among that king's wisest measures was the Assize of Arms^ by which it was reorganized.
And if we look at the position of a g^eat baron, and observe the way in which his power was limited on every side, we shall see that old English institutions were useful in many other ways in preventing harmful consequences of feudal theory. Abroad, baronial power showed itself in the right oi jurisdiction, in the right of private warfare and of holding castles, and, lastly, in the right of coinage. Let us take each of these in order.
The right of jurisdiction was by far the most (2) Preser- important. One of the questions most eagerly ^the'mi- debated by mediaeval lawyers was whether '"^'''
"' ^ courts ;
jurisdiction was an inherent part of a fief; and, hindering though there were not wanting those 'w\iO grmvtk of pointed out that the origin of the two wasj^^^?f different, the fief being derived from the grantor's '»<^- right of property, the jurisdiction from the king's sovereignty, yet it was generally recognized that without jurisdiction there was no true and complete seigniory, and the adage ran, " Fief and justice make but one." ^ The result, after the
* Gasquct, " Institutions Politiques de I'ancienne France," iL ch. ii.
o6 Feudalism.
practice of subinfeudation had become general, was this — that, in cases of appeal for refusal of right or false judgment, the royal court could not be reached until the suitor had appealed to several intermediate lords. The king's authority to do right and redress wrong to every subject became a mere fiction ; the only alternatives were the undue power of the lord of a village, or the undue power of his superior, the lord of a county. The growth of such a state of things was prevented in England in two ways ; first, by the retention of the popular courts, and secondly, by the creation of a central judicial system, to which the Norman and Plantagenet kings were strong enough to enforce obedience. First, as to the popular courts. William was too much of a statesman not to see that in the organiza- tion of the local assemblies of shire and hundred lay the peculiar strength of the English consti- tution. Were it only for his immediate and personal purpose of appearing the lawful suc- cessor of the earlier kings, he must refrain from interfering with such a system. But he did more than abstain from innovation ; he took care that the local courts should be maintained. For, national courts such as these, administering royal justice and presided over by royal oflScials, the sheriffs, could do more than anything else to
Feudalism. 97
keep alive the belief that justice was a national right and not a seigneurial perquisite. In a document which " contains, probably, the sum of the Conqueror's legal enactments," appears the clause, " Let the hundred and county court be maintained as our predecessors decreed ; " and, for each of the Norman reigns, records remain of the trial of important suits in the shire and hundred moots. Henry I., in a charter which was intended to put an end to certain abuses of the sheriff's power in the matter of these assemblies, ordered that henceforth his county and hundred courts should meet at the same times and places as in the reign of King Edward. A distinction was indeed growing up between the lesser court of the hundred, held monthly under the sheriff, and the great court of the hundred, the tourn and leet held by the sherifT twice a year, especially for the view of frank' pledge — a sort of village registration for police purposes. And other changes appeared, such as the introduction of trial by battle, and the limitation of the right of joining in judgment to " barons," i.e. freeholders, having lands in the county. But the really important points are that the courts are maintained, that at the great hundred court all owners of land — bishops, earls, barons, vavassors, and a long list of other
U
98 Feudalism.
lords and their representatives — are still ex- pected to be present, and that it is still held, according to the "laws of Henry I.," that it is the duty of a lord to there present his accused " man." (l)Creation The Other weapon of the sovereign against the Judicial lords was the Curia Regis. This is a subject maehitury. ^^ich will more fitly be dealt with in the follow- ing essay ; but it may be well to mention in this place some of the methods by which the judicial authority of the king was enlarged. First was the increase of the number of criminal offences treated as matters reser\'ed to the crown. Such cases would doubtless be tried in the national courts, and taken out of the hands of the mano- rial lords. Another plan was the frequent issue of writs, rarely employed before the Conquest. These were sent through the sheriffs to the lords of manors, especially upon matters concern- ing land, admonishing them to do justice, and adding, "unless you do so, the sheriff will do it, that we may no longer hear complaint of failure of justice." And finally, with the reign of Henry I. begins the despatch of itinerant justices through the counties to hold civil and criminal pleas.
Yet great dangers long remained. Several of the more powerful lords had liberties or honours.
Feudalism. 99
in which all the courts were subject to them, and from which in some cases even the sheriff was excluded until the Assize of Clarendon. Every lord of a manor who had only a court-baron coveted a court-leet and power of criminal juris- diction, like the French /laute justice vfith its scaf- fold. And when the strong hand of the king was removed, the anarchy of Stephen's reign showed what the Norman conquest would have made England but for William's policy. Among the Jiesuits in results of that policy may be placed these three "^X Con- facts : that the seigneurial courts remained ^^^^ merely courts of manors, and did not become courts of whole baronies ; that no gradation of feudal courts arose as in France ; and that the right of appeal directly to the king was recog- nized from the first The final end of the struggle to limit seigneurial power may be seen in two statutes of the reign of Henry III., the statute of Merton, forbidding magnates to have their own prisons, and the statute of Marlborough, enacting that " no one for the future, except our lord the king, shall hold a plea in his court for false judgment in a court of his tenant, since pleas of this kind specially pertain to the crown." ^
> Compare with the notices of the subject in Stubbs s " Const. Hist.," ch. xi. of the first vol. of Gneist, ** Hist of the Engl. Const" (Engl, trans.).
lOO Feudalism.
Three par- The baronial right of private warfare was ^i^ never recognized in England. It implied that WPp'vait there was no superior strong enough to compel recourse to his tribunal ; and weakness such as this no English king was ever obliged to confess. In France, on the other hand, the right of a baron to prosecute a quarrel by arms was repeatedly acknowledged by the king. All that could be done was to lessen its evils, as by those edicts in the thirteenth century which provided that hostilities should not begin till after an interval of forty days from the offence, nor while the king himself was at war with a foreign enjmy. But in England private war was always a "crime" and an "unusual crime," as the historian says of Ivo of Grantmesnil, who was expelled from England in 1102, and who had tried to set the evil example. During two periods only in our history was private warfare at all, frequent — in the reign of Stephen, and in the reigns of Henry VI. and Edward IV. The evils of the former time were repressed by the strong hand of Henry II.; those of the latter called for the rule of the Tudors. (2) PrivcUe One main reason, certainly, why England was
eastUt.
unlike France in this respect was the firm hold which the sovereigns managed to retain over baronial castles. In Normandy, the dukes had
Feudalism. loi
kept the right of garrisoning such strongholds ; in England a licence from the king was held necessary, and castellatio sine licentia appears in the " laws of Henry I." as an offence which put a man '*at the king^'s mercy." Stone castles, indeed, had never been built in England before the Conquest ; and of the forty-nine which appear in Domesday, thirty were in the king's hands. The worst feature in the lawlessness of Stephen's reign was the building of hundreds of castles by barons of the king's party with his permission, and soon by every baron who was able to do so. In these castles were wrought the worst of those iniquities which made men say that Christ and His saints slept. "All became forsworn and broke their allegiance," cries the English chro- nicler ; ** for every rich man built his castles and defended them against the king, and they filled the land with castles. They greatly oppressed the wretched people by making them work at these castles, and when the castles were finished they filled them with devils and evil men." Among the conditions of the treaty of Walling- ford was the destruction of such adulterine, or unlicensed, castles ; and Henry carried out his purpose at the beginning of his reign, in spite of a vigorous opposition which forced him to lay siege to several of the fortresses. Such as were
102 Feudalism.
allowed to remain were either garrisoned by the king, or put under castellans approved by him. (3) Private As to the right of coinage but little need be coinage, gj^j^j j^ ^^g generally and rightly regarded as a most essential prerogative of sovereignty, and it was one of the rights which every king, as soon as he was able, reserved to himself. But while the French monarchs did not succeed in this until the end of the fifteenth century, — so that, for instance, in the reign of Louis IX. there were as many as eighty lords who struck coin for their own territories, — in England, except in Stephen's reign, the royal monopoly was never attacked. Under Stephen, baronial mints appeared, with all the other feudal abuses. "There were as many kings, tyrants rather, as there were lords of castles," says a contemporary writer ; " each had the power of striking his own coin, and of exercising, like a king, sovereign jurisdiction over his dependents." Coins remain which were issued by Henry the great bishop of Winchester, and by Robert of Gloucester. But Henry H., in the treaty of Wallingford, insisted on the removal of adulterine coinage as well as adulterine castles, and from his reign England has possessed a uniform royal currency. Dangers 5q f^^ the dangers we have been enumerating
peculiar to ° ^
England, were dangers which attended feudal tenure in
Feudalism. 103
all countries. But the hardest part of William's task lay in overcoming dangers peculiar to England. England before the Conquest seemed on the point of splitting up into three or four The great semi-independent principalities. This was an "^ evil which had been growing for two centuries ; for scarcely had the early separate kingdoms disappeared, before the old provincial feeling and the weakness of the central authority led to the creation of great ealdormanries. These ealdormanries, known later as earldoms, com- prised several counties ; and around the families which gained hereditary possession of them, all the old feelings of local patriotism and provincial independence speedily revived.^ The disasters of Ethelred II. were due largely to his untimely attempts to overthrow these too powerful magis- trates. Canute, on the contrary, taking up rather an imperial than a national position, accepted the fact of provincial separateness, and perhaps thought that disunion would make it more easy to rule. At any rate, during his reign England was divided into four great earldoms — Northum- bria, Mercia, Wessex, and East Anglia. Three great princely houses arise whose struggles make up the history of the Confessor's reign — that of
* Compare Green, " Conquest of England," p. 304 ; and map of ** England under the Ealdormen,'* p> 316
104 Feudalism.
Siward in Northumbria, of Leofric in Mercia, of Godwine in Wessex. East Anglia is tossed from side to side, held now by a son of Leofric, now by a son of Godwine, with the shifting fortunes of the rival families. Winiam'i It was, therefore, a question of the gravest ZfAe^ moment what action William should take in the matter of the ealdormanries. If, relying on his power to make the earls his servants, he continued the old system of dividing the country into three or four provinces, it was likely that the Norman magnates who thus gained over many shires the power of ealdormen in moot and fyrd would succeed in creating hereditary principalities. But William proceeded very cautiously. An earl, Ralph Guader.was appointed in East Anglia, and no change was at first made in the character of the office. But to none of his followers would he entrust the earldom of the whole either of Mercia or Northumbria. Mercia was divided between Hugh of Avranches, as Earl of Chester, Roger of Montgomery, as Earl of Shrewsbury, and Roger of Breteuil, as Earl of Hereford ; Northumbria was partitioned between Alberic, Earl of Northumberland, and the Bishop of Durham ; Wessex he kept in his l^r^qf °^" hands. This explains the significance of 1075. the conspiracy of the earls in 1075. Two of
Feudalism, 105
the men just mentioned — Ralph Guader, whose earldom of East Anglia had always been in- ferior to the other three provinces, and was getting narrowed to Norfolk ; and Roger of Breteuil, who would fain turn his earldom of Hereford into an earldom of Mercia — com- municated their plans to Waltheof, whose name, as son of Siward, would they thought win them popular support. "Let us," they proposed, " restore England to the condition in which it was in the time of that most pious King Edward ; let one of us be king, the other two dukes, and so let us share all authority in England between us," But the revolt was soon suppressed, with the aid of the bishops and of the English, who thus early saw that in the undivided authority of a single ruler lay the only hope of good government If William needed to be taught the dangers of government through earls, this experience was a sufficient lesson. Henceforth the earldoms become merely titular dignities ; the earls cease to have any connection with the shires from which they are named ; they no longer command the host of the county, or preside in its court. Stephen's creation of merely nominal earls, supported by Exchequer pensions, completed the change ; and in later reigns it was not from the jurisdiction
io6 Feudalism.
of the earls, but from that of the sheriffs, that dangers appear. Scattered Even without the power which the authority estates. ^^ ealdorman would give to a baron set on aggrandizing himself, it might seem that the mere possession of large estates would tend to make the great feudatories semi-independent. But this was prevented by a circumstance which, taken in conjunction with other acts of the Conqueror, we can hardly help attributing to definite policy, viz. that the lands granted to each of the great barons were scattered over many counties, and seldom lay near together. Some forty great vassals are prominent above the rest for the extent of their possessions, but in every case their manors are distributed over more than six counties, and several have them in as many as twelve or fourteen. William's policy as to the earldoms had prevented England from being split up into three or four great principalities, comparable to French duchies ; by this method of distributing his grants he avoided the creation even of fiefs comparable to Norman counties. For, a lord whose manors were scattered over six shires could not round off" his territory into a compact whole ; he could not, as we have before seen, create a central court for his manors ; and what was still more
Feudalism. 1 07
important, he was watched and checked by half J a dozen sheriffs, each ready to summon the fyrd and the lesser tenants-in-chief to overcome revolt
And this mention of the sheriff suggests increased another important element in the policy of the ^^tht'*^**" Norman kings. Their rule gave England a ^^f^ff' central administrative system incomparably stronger and better organized than anything that appears in the later Saxon reigns ; and William soon recognized the value of the sheriffs as the local ministers and agents of this central government. The office of sheriff, the special representative of the king, was as old as the shire itself; but his office had always been of quite secondary importance when compared with that of the ealdorman who stood in the place of the old tribal chieftain, and still more when com- pared with that of the ealdorman of later times, who ruled over several counties. But now the great earldoms disappear, and even the earls bearing titles derived from shires cease to have any official connection with those shires, except that they receive a third of the fines. The sheriff becomes the commander of the national militia and of the lesser tenants-in-chicf in his shire; and the withdrawal of the bishops, after the separation of the spiritual and secular courts.
Io8 Feudalism.
leaves him alone in the shire-moot Not that this arrangement was entirely free from risk ; in some cases the office of sheriff became hereditary, and when to this was added the possession of great estates in the county, a power grew up dangerous to the state ; but this belongs to a later period. That the sheriffs were believed to help in the maintenance of good order is shown by the fact that their restoration was one of the terms of the peace of Wallingford. The To such a policy the creatipn of palatine
iarUioms. earldoms was an exception for the sake of the national defence — Chester and Shrewsbury against the Welsh, Durham against the Scotch, and Kent against France. But the palatine earldom of Kent disappears with the fall of Odo ; and the banishment of Robert of Belesme put an end to that of Shrewsbury. In Durham the bishop, in Chester the earl, were the lords of all the lands in the county, issued writs, and held baronial courts. These made the nearest approach to the position of a great continental feudatory, and even of these one was a church- man who could not found a family. {
Summary. We can now answer the question with which we set out. The Norman Conquest did make England a feudal state in the sense of in-
Feudalism. 109
troducing feudal tenure with many of its con- sequences ; it did not make it a feudal state in the sense of making its government feudal. We have seen how William prevented what might have been the worst results of the Con- quest. But without the Conquest England would inevitably have fallen asunder into a number of principalities, and union would have been harder to secure even than in France. From such a fate the strong hand of William saved this country. The old Saxon princely houses were destroyed, and no Frenchmen were allowed to take their places. An alliance with the Church and the support of the English enabled the Norman kings to establish and maintain their authority.
Their success must not be wholly ascribed to Haw far politic measures ; it must not be forgotten that *!^J^"^\^ the England they had to rule was but a third of /<'^»0'- the size of France, and that its population was far more homogeneous ; therefore the distance over which royal authority had to be exercised was less, and provincial feeling was weaker. But much we must attribute to conscious policy. The maintenance of the old theory of sovereignty, the retention of the old national courts and array, gave the king weapons of which we can trace the use. And, as the result, "a power-
no
Feudalism.
Future
const'
quetues.
Royal
ful and well-served monarchy, and a baronage relatively feeble, were the two important charac- teristics which distinguished England from other European states." ^
Such a result was full of hope for the future. The overwhelming power of the king, especially after Henry II. had armed monarchy with an all-reaching administrative machinery, led to despotism, and despotism to revolt. The weak- ness of the barons made it alike necessary and possible for them to obtain the aid of the great body of the people in their revolt ; and from this united opposition sprang the mediaeval parliamentary constitution. The English par- liament, again, would have been very different from what it was, had not the towns been kept from assuming an isolated position by a royal authority which would protect them from the barons ; and had not national institutions, notably the county court, been retained to unite the various classes of Commons.^
We ask, finally, what had all this " policy " to
Th^LT/^ do with the mass of the inhabitants of England,
Hfe oftht the small landholders, the socagers and villeins peopk,
1 Cf. "Le Parlement en Anglcterre," by E. Boutmy, in the Revue des Deux Mondes, clxxvi. 90 (1886), where an interesting contrast is drawn between England and France in the eleventh century.
Feudalism. 1 1 1
and townsfolk, above whose heads it was being worked out ? — for we are only too apt to think of " constitutional development," and to forget the condition of the people. What the people craved was that they might be allowed to labour in quiet, safe from the violence of the strong. Perhaps the most pathetic figures in the Middle Ages are the preachers of peace who ever and again appear, like that carpenter in Guienne in the twelfth century, with banner bearing for inscription, " O Lamb of God, grant us Thy peace ; " or that monk of Vicenza in the thirteenth century, who, reminding men of the words, " Peace I leave with you," reconciled the cities and factions of Lombardy.^ They created peace for a time, but the evils of private warfare and lawlessness quickly re- turned. By the truce of God the Church tried to do what the state had failed to do — to secure that men should feel themselves free from pillage at least for two or three days each week ; and its work was almost in vain.
We owe it to the strong policy of the Norman kings that abetter state of things was established in England. "Among other things is not to be forgotten the good peace he made in this
» Robertson, "Charles V.," Proofs, 21; Symonds's "Renaissance," i. 551.
1 1 2 Feudalism.
land," says the English chronicler of the Con- queror; of Henry I. in like manner: "No man durst misdo against another in his time. He made peace for man and beast." Orderic puts the matter simply : " The foremost counts and lords of towns and audacious tyrants he craftily overpowered ; the peaceful, the religious, the mean people he at all times kindly cherished and protected. ... He always sought peace for the nations under him, and rigidly punished with austere measures the transgressors of his laws." The reign of Stephen, when the nobles " fought among themselves with deadly hatred, and spoiled the fairest regions with fire and rapine," seemed all the darker by contrast But with the accession of Henry H. the time of troubles was over ; " peace and justice were recalled." The English had much to bear from their new masters; the pressure of government was heavy and constant ; but in the maintenance of the peace of the country they found a suffi- cient recompense.
ESSAY III.
THE ANGLO-NORMAN AND ANGEVIN ADMINIS- TRATIVE SYSTEM (1IOO-I265).
The essential divergence between the history Character of England and that of the continental states %^Jisi is shown as clearly in the twelfth and thirteenth *»»^J>*'>- centuries as at other epochs. Beyond the Channel the danger to society lay in the pre- dominance of feudalism, which at first seemed likely to prove fatal alike to royal power and to municipal liberty. On this side of the straits of Dover the fear was that the inordinate development of the authority of the king would reduce all the other elements of the constitu- tion to impotence. Henry I. was obeyed with a punctuality on which no contemporary sovereign of Christendom — save John Comnenus in the far East — could reckon. So firmly had the English administrative system taken root by the middle of the twelfth century, that not
I
114 Tlie Anglo-Norman and
even the anarchy of Stephen's reign could break it down. Henry 11. was the most powerful king in Europe, not so much from the extent of his dominions, as from the order in which he kept them. Even the weak Henry HI., when backed by the forces of administra- tive tradition, was formidable enough to task the whole energy of the nation in his repression. Strength What then was the system which rendered English the English monarchy so strong, in the days adtntnii- ^j^gn other states were suffering from the worst system. evils of feudal anarchy? It was a system the essential principles of which lay in the complete subordination of all the branches of the administration to the royal power, and in the ease and certainty with which that power could make itself felt throughout the land. It reduced the dangers of feudalism to a minimum, by vigorously enforcing the direct jurisdiction and authority of the sovereign over all his subjects, great and small. It drew into the exchequer all the proceeds of feudal dues and incidents ; but it secured, by means of a separate scheme of national taxation, that the king should never be entirely dependent on his feudal revenues. It retained the power of calling feudal levies into the field whenever it might be necessary ; but it relied also on a
An^et'in Administrative System. 115
national militia, raised by the king's own officers, and drawn from the whole body of freemen. By rendering the king independent of the support of his baronage both in military and fiscal matters, it took away the two great levers by which the forces of feudalism could hope to overturn his throne. Consequently it required something more than a revolt of the tenants-in-chief to curb the tyranny of a John or end the misgovernment of a Henry III. To prevail over the royal power, the baronage had to ally itself with the nation ; and when Magna Carta was exacted and confirmed, it .was not feudalism which profited. There resulted from the victory not a relapse into anarchy, but the establishment of a new form of constitution, in which neither the king nor the baronage held undisputed sway. From the reign of Edward I. onward, the Commons no less than the sove- reign and the greater nobility, have an appre- ciable influence on the conduct of afiairs.
Let us now turn to the details of this adminis- trative system, which made the King of England master in his own land, after a manner of which continental rulers could have no conception.
As the supreme legislative and judicial body ^ ^'"^ in the realm, we have the King's Great Council, which carries on in a measure the traditions of
Ii6 The Anglo-Norman and
the old English Witenagemot. But while the Witan had been essentially national, and had possessed in all matters a power almost co-ordi- nate with that of the king, the new Great Council gradually grew into a semi-feudal body of the tenants-in-chief of the crown. No violent break appears between the two institutions, because the bishops and landed magnates who would natu- rally have appeared at the Witenagemot were precisely the same persons as the great tenants- in-chief who came to the Great Council. The lesser tenants-in-chief, who in theory were sum- moned to the Great Council as much as their more important compeers, did not in reality present themselves. Thus the assembly, though gathered on a new theory, presented an appearance very similar to that of the body which it replaced. Three times a year, on the great Church festi- vals of Christmas, Easter, and Whitsuntide, the Anglo-Norman king summoned his Great Council around him, and " wore his crown in public " at the solemn session. His projects, legislative and financial, were laid before the assembly, and passed by its " counsel and consent ; " while the more important judicial cases, which had by process of appeal come up to the highest tribunal of the realm, were tried and decided by the same body. Even greater importance attached
Angevin Administrative System. 117
to the Great Council as the body which chose the king. The reigns of all the four Anglo- Norman kings opened with a disputed succession, and the successful prince in each case insisted, not on his hereditary right, but on the fact of his election. It is true that the councils which elected Henry I. and Stephen were mere shadows of the bodies which they pur- ported to represent, hastily summoned and meagre in numbers, yet on their authority rested the claim of the newly chosen king. A ruler whose title was bound up with the rights of the assembly which had crowned him could not avoid perpetuating the elective theory of kingship — a theory which goes far towards miti- gating absolutism. The French kings who for eight generations passed their crown on in hereditary succession from father to eldest son,^ were for the moment, indeed, powerless before their baronage ; but by the undisputed trans- mission of the royal power for so many years they caused the fact that the French throne was elective, no less than the English, to pass into oblivion ; and thus laid up for their descendants claims of divine right which could not be foisted on England.
The Great Council could not always be in The Curii session, yet there was continually needed some '^"'
Ii8 The Anglo-Norman and
body which should exercise a general control over the administration of the realm, and take off the king's hands the details and drudgery of government. Around the person of the sovereign were grouped a body of officials and advisers (representatives of the old royal "minis- tri " of Anglo-Saxon charters) who fulfilled this purpose. Collectively they are known as " Curia Regis," a name which the Great Council also claimed for itself. Apparently they could be considered as a permanent committee of the larger and more authoritative body, and could therefore employ its name. But, though enjoy- ing administrative and judicial authority, they could, of course, make no attempt to trench on the legislative power of the Great Council, or to assume its privilege of sanctioning extraordinary taxation. The members of the Curia Regis fall into two classes. The first consisted of the great officers of the royal household, whose privileges in England (just as in Germany and France) soon became hereditary. These were the constable, chamberlain, steward, marshal, and butler, whose positions descended in the fami- lies of Hereford, Oxford, Leicester, Pembroke, and Arundel. But these functionaries were by no means the most important part of the Curia. If the king had been compelled to act through
Attgevin Administrative System. 119
them alone, his power could never have estab- lished itself with that firmness which charac- terized Anglo- Norman and Angevin rule. The fact that the offices were hereditary, and their holders great nobles, would have rendered the control of the king over them almost nugatory.
The really important members of the Curia Regis were those who were purely royal nomi- nees, appointed by the king and removable at his pleasure. These were the Justiciar, Chancellor, and Treasurer, with some other less dignified officials who bore no special title, and appear as "judices," "ministri," "barons of the exche- quer," etc
The Justiciar "capitalis justitia," was in Eng- The jus- land, as in Sicily and Aragon, the second ^^*^' person in the realm. He was not only the head and president of the supreme legal court, as his name shows, but also a permanent prime minister, and the king's chief represen- tative. Whenever the king was over-sea en- grossed in the affairs of his broad lands in France, the justiciar was regent in England, "vicedominus totius Angliae," and exercised the royal authority in his master's behalf. When the sovereign was at home, the justiciar, besides presiding in legal business — the amount of which was enormous in a country like England, where
120 TJie Anglo-Norman and
the privilege of appeal to the supreme court was frequently granted — acted as the confidential minister and chief of the executive. The Anglo- Norman kings, while feudalism was still danger- ous, avoided placing the justiciarship in the hands of laymen or nobles. Such officials could not have been trusted with the all-important charge. They chose for their prime ministers Churchmen, usually men of humble fortunes, whose sole claim to their position rested on royal favour. Both as ecclesiastics and as " new men " the justiciars felt no temptation to play into the hands of the baronage, and kept firm to their allegiance to the king, to whom they owed everything. William II., the most unscrupulous of men, found his fitting right-hand-man in the rapacious Ranulf Flambard. Henry I.'s reorganization of the administration was carried out by the firm hand of Roger of Salisbury. The anarchy of Stephen's reign is marked by the temporary dis- appearance of the office — a fit sign that the king's writ had ceased to run throughout his realm. Henry II., when feudalism had made its last struggle in vain, was able to take the new step of nominating laymen — even laymen of rank — to the justiciarship. His baronial nominees, De Lucy and Glanvil, did not belie his confidence. To the first the rapid and energetic suppression
Angevin Administrative System. 121
of the rebellion of 1173 was due, while the latter was not only a strong-handed regent, but also the author of our first English constitutional treatise, the "De Legibus et Consuetudinibus Angliae." During the reig^ns of Richard I. and John, and in the early years of Henry III., the office was more frequently in lay than . clerical hands. Geoffrey Fitz-Peter, John's great justiciar, and Hubert de Burgh, the noblest figure in the first decades of Henry's reign, give us a new development in the history of the office, appear- ing as checks on their masters' power rather than his mere instruments. This aptly marks the fact, that the irresponsible exercise of the royal p)ower rather than feudal anarchy had become the gp-eat danger for England, so that a patriotic minister would feel more concern for the constitution than for his master. So strong was the popular feeling in their favour, that John never ventured to disgrace Fitz-Peter, while Henry's attempt to oppress De Burgh met with the strongest resistance. Hubert, however, was the last of the great justiciars ; the successor whom the king appointed to him — Stephen de • Segrave — was chosen for his obedience rather than his abilities, and was hounded out of office by popular clamours. He was more of a lawyer than a politician, and his successors continued
122 The Anglo- Norman and
to develop the legal rather than the administrative side of their functions. By the reign of Edward I. they had become the " Lord Chief Justices " whom we know so well, and their political im- portance had passed to the chancellors, who were now the first ministers of the crown.
The . The chancellor had originally been the king's
(hancilhr. . , , i . , , .
private secretary ; seated behmd his screen {cancella\ he made out writs, took minutes, and applied the royal seal to documents. Like the justiciar, he was at first almost invariably a Churchman, one of the king's chaplains, nor was it till the fourteenth century that lay chancellors appear upon the scene. Gradually the chancellor became a more important functionary ; from being charged with the king's correspondence, he grew to have a considerable share in settling what that correspondence should contain. Becket, when chancellor, " had fifty clerks under him, and was reckoned second from the king in the whole realm." "He might be reckoned," says Dr. Stubbs, " as a sort of secretary of state for all departments." In the thirteenth century the chancellor began to take the position of the justiciar as prime minister, and his disuse of his. own old functions is shown by the fact that Henry HI. first of all English kings, kept a " secretarius," as a natural consequence of his
Angevin Administrative Systetn. 123
chancellor having higher matters than corre- spondence in his charge, and being compelled to abandon the care of details. The justiciar, as we said before, sank into a purely legal official by the time of Edward I. ; but it was well-nigh four hundred years before the chancellor suflfered the same fate ; and as bearing on his position, it is worth while to remember that the last clerical chancellor held office as late as 1625 (John Williams, Bishop of Lincoln).
The third of the great offices whose gift lay Tfu in the hands of the king was that of the ^''"'""'' Treasurer, who had charge of the royal hoard at Winchester, and presided over a stafif of officials charged with its administration. In sittings of the Exchequer Court, he was considered to be even more directly charged than the other members with the care of the exact accuracy and due observance of forms at the board, and he was thus brought into closer contact with the sheriffs than his companions in the committee.
Besides the eight officers whose names we Other have detailed, the Curia Regis consisted of a number of minor functionaries, who, according to the functions which they happened to be exercising, appear as " barons of the exchequer,** "justices," or, if they were ecclesiastics, as " king's clerks,"
124 The Anglo-Norman and
Functions The whole body of the Curia Regis, high clria 2ind low fulfilled at least three functions — con- ^'Sif- sultative, fiscal, and judicial. So little had the different parts of government been yet differen- tiated, that it seemed right that the same men should act as the king's privy council, as the commissioners of the treasury, and as the justices of the highest court of appeal in the realm. To realize this curious fact is the first difficulty for the student of the Anglo-Norman administrative system. The exchequer court and the privy council are merely the same men sitting in two different chambers, to deal with two different subjects ; and similarly, the man who, when he is dealing with figures, is a " baron of the exchequer," becomes a justice when he deals with legal questions. From this one body of advisers, administrators, and judges we may trace the development of institutions which now seem as far apart as institutions can be — the ministry, the courts of law, and the great government offices like the Treasury or the Foreign office.
The Curia Regis followed the king during his presence in England, moving with him, and sitting wherever he happened to be. As a privy council and a law court it sat as his movements dictated, but in its fiscal character there was a
Angevin Administrative System. 125
difference. The " Court of Exchequer " either from the first, or at any rate from a very early date, fixed itself at Westminster to hold its great Easter and Michaelmas sessions. There, no doubt, the famous chequered table-cloth which gave the court its name had first been seen, and thither came the sheriffs \yith their cumbrous bags of silver pence to render their rents to the king.
Of the business with which the Curia Regis was conversant when it sat as the Court of Exchequer we shall have to speak fully when dealing with the sheriff and the royal revenue. With its function again as a permanent and handy body of advisers, always at the king's side, we need not trouble ourselves, for the func- tions of all such councils are much the same. But of the judicial aspect of the Curia Regis Tfu a short account is necessary. Before it Cdixnc^sysum firstly, all cases between the king and his tenants-in-chief ; secondly^ all appeals when the parties in a suit imagined that the popular courts had failed to do them justice from un- fairness or impotence, and were strong or rich enough to obtain leave to appeal ; thirdly, special cases called directly into court by the royal favour without having been previously tried in the shire-court; and, lastly, suits which, from
126
The Anglo-Norman and
(l) Itine- rant juS' tues.
(2) Court of Kin^s Bench.
(3) CouH of Ex- chequer,
the new or abnormal character of the questions involved, had no precedent by which they could be tried before the lower tribunals. Such were the primitive judicial functions of the Curia Regis, but ere long it commenced to throw out sub-committees which were to develop into new courts. The first institution evolved was that of itinerant justices. Henry I. began to send out members of his Curia Regis to visit and hold pleas in the county courts, thus relieving the Curia itself of some of the cases which would otherwise have come up to it. Henry did this with no fixed system or regularity, but his greater grandson stereotyped the custom, and to it we owe our existing institution of justices of assize. It was Henry H. also, who chose out and fixed at Westminster five of the members of the Curia, two clerks and three laymen, " to whom he ordered the complaints of the people to be brought ; reserving for him- self as heretofore the harder cases, to be decided with the council of the wise." These new judges came to be known as the "Court of King's Bench," the main function of which grew to be the settlement of the king's pleas, or cases in which the king was concerned. Meanwhile the Exchequer, or fiscal session of the Curia Regis, had also assumed the secondary aspect of a
Angevin Administrative System. 127
court of law, dealing with revenue cases, and all disputes concerning the financial side of the constitution. Lastly, by a clause of Magna Carta, the remaining judicial functions of the itinerant Curia Regis were taken from it by the article which stipulated that " common pleas should not follow the court, but be held in some fixed place." This leads to the insti- (4) Court
P , r^ /. ^ T^, , . , of Common
tution of the Court of Common Pleas, which puas. had as its special function the decision of ordinary cases, where two subjects were the litigators, and the crown was not concerned. Thus three separate courts are found where in the early Norman days but one universal judicial and fiscal body existed.
This short sketch of the higher administra- tive machinery of England ought to suffice to show how extraordinarily all things hinged on the personality of the king. The Curia Regis covered all the spheres of government by its activity, and that body was almost exclusively of the king's choosing ; for the existence of the hereditary ofllicial element of the great officers of the household in it counted for little.
Over the administration then, the king had an almost absolute control in normal times. But he was always liable to the occurrence of extraordinary circumstances, which would drive
sheriff.
128 The Anglo-Norman and
him to consult the Great Council of the realm, and in that body lay the sole check to his power. Luckily, disputed successions, foreign wars, and the need for extraordinary taxation, sufficed to keep the traditional importance of the Great Council alive, and prevented the growth of absolute monarchy. The When we descend to the details of adminis-
tration in twelfth-century England, we soon find that the whole system hinges on one official. Into whatever branch of local government we inquire, we discover ere long, that we are recapitulating some one of the innumerable functions of the sheriff. An account of his position, and of his relations with the various institutions in shire hundred and town, gives an almost complete picture of the conduct of affairs under the Norman and early Plantagenet kings. It is the sheriff who is responsible for everything ; nothing is too great or too small for his attention. It is equally his duty to go forth to war at the head of the armed force of the county, and to scrape together laborious shillings in petty fines for non-attendance at the shire-moot He sits month by month in the seat of judgment, but it is no less his func- tion to see that the roof of a royal barn in his district is in good repair.
Angevin Administrative Systetn. 129
It is, accordingly, in the highest degree neces- sary to give an accurate account of the person, position, and duties of this all-important officer, the intermediary between king and country in well-nigh every matter wherein the two come into contact.
The old English shire-reeve was, as has been His post-
1 • 1 • !«-•,, '""* before
stated in an earlier essay, a royal official whose the origin goes back to the earliest times. He ^^^. appears even in the laws of Ini. For centuries before the Conquest he had been accustomed to act for the king in financial matters ; to collect for him the dues of his thegns, the produce of his royal estates, the customs of the ports which lay in the shire. When taxes came into being, it was the sheriff who had to get together the Danegeld or the ship-money of his district. Nor was this all. It was but natural that the king's fiscal representative should come into prominence in the shire-court, where the settlement of money matters formed so large a portion of the agenda. Accordingly the shire-reeve is found sitting as one of the three presidents of the shire-moot, in company with the two greater magnates, ealdorman and bishop, whose authority was exercised in the same district. As early as the legislation of Athelstan we find the sheriff given a yet wider
K
130 The Anglo-Norman and
sphere of action, when he was directed to perform a duty neither fiscal nor judicial, that of "going and putting under surety any man who is untrue to all people," that is of exercising police duties.
When the English ealdormanries grew larger and larger in the tenth century, till they came to resemble feudal states rather than mere administrative divisions of the kingdom, it must have become less usual to see the ealdorman appear in person at every meeting of the shire- moot. The more the shires in his sphere of authority,- the less frequent must his visits have been. By the reign of Edward the Confessor, they must have grown to be the exception rather than the rule. Godwine, for example, with eight or nine shires under his hand, would have found his life a burden if he had to attend every shire-moot of each of his subject districts. It may well have been the same to a certain extent with the bishop. When the dioceses were reconstituted after the Danish invasions, some were large to a cumbersome degree. A prelate whose bishop-stool was fixed at Dor- chester on the Thames, while his diocese stretched up to the Humberj cannot have been a very regular attendant at Leicestershire or Huntingdonshire courts. With the sheriff, how-
Aft^ei'in Administrative System. 131
ever, it was different He was the one president of the shire-moot whose presence could be fore- seen with certainty. Naturally then it was the sheriff, not either of his greater associates, who was the constituting authority of the assembly. Without bishop or ealdorman the moot could be held, but the sheriff's presence was obligatory for its validity. Already, then, in the days of the later kings of the house of VVessex, the sheriff was not without his impor- tance. Where the ealdorman stands to represent the tendency to disruption in the loosely com- pacted realm, the sheriff stands opposite him to represent that direct royal authority which was the one unifying principle in England. Yet the tide of the times was running against him. If there had been no Norman conquest, the ealdormanries would probably have drifted into quasi-feudal states of a continental type in which the direct interference of the king in local matters would have ceased. In such a state of things the sheriff must either have dis- appeared, or have become the officer of the earl rather than of the king — have figured, in short, as "vice-comes" in a real sense, and not in name only.
But the disruptive tendencies in England j/aw of. were roughly checked by the Conquest. Whcn-J^'^^ he was firmly seated on the throne, William I. 9""*-
132 The Anglo-Norman and
completely broke up the system of the great earldoms. By the time that Domesday Book was compiled, there were only four shires in England which were under the authority of an earl — Northumberland, Shropshire, and the "palatine earldoms" of Durham and Chester. In the rest of the land there was no longer any great dignitary to stand between the shire and the king's direct authority. But the feudal danger was not gone ; it had only changed its shape. The royal power, if not imperilled by high officials bearing sway over groups of shires, had yet to make itself supreme over the new baronage. The French and Norman adventurers, who had joined as partners in William's great undertaking, intended to preserve as much local independence as they could. The greatest of them were only prevented by the scattered position of their estates from becoming as for- midable as the old ealdormen. To keep them in check William naturally utilized the already existing machinery of the sheriffdom, the im- portance of which he largely increased. In consequence of the disappearance of the earl, and the withdrawal of the bishop with all his ecclesiastical pleas to his own reorganized spiritual court, the sheriff had no longer any coadjutors in the administration of the district.
Angevin Administrative System. 133
He absorbed the military functions of the earl, and became charged with the duty of leading the men of his shire to war. Moreover, he was now the sole judicial as well as the sole financial official of the district Thus he was made strong enough to face the baronage. William conferred the sheriffdoms of England on trusty followers, drawn for the most part, not from the higher ranks of the Norman nobility, but from the crowd of smaller men more immediately dependent on himself. In a few cases he tried the dangerous experiment of conferring the shrievalty on men whose landed possessions were large enough to render their private in- terests incompatible with their position as royal officials. In some instances he even allowed son to succeed father as sheriff — a custom the hazardous nature of which may have been dis- guised by the fact that the French and Norman "vicomtes," to whom the English sheriffs were assimilated in name, passed their office down in their family. If the shrievalty had universally become hereditary in the houses of local mag- nates, it would have constituted a power only less dangerous than that of the old earl. But it was only in a few counties — in Westmoreland, for example — that the dignity became perma- nently transmissible. In most shires the sheriff
134 ^^ Anglo-Norman and
continued to be a royal officer appointed and removed at pleasure. A strong sovereign like Henry II. could at one blow displace all the sheriffs of England, and hold the great " In- quest" of 1 1 70 to investigate their past conduct The Regarding the sheriff, then, as the instrument
f^^^i^ by which the kingly power made itself felt in matters of local government, let us inquire into the details of his functions. And as he was /. Fiscal, originally a fiscal officer, it is natural to take first into consideration his responsibilities in money matters. Of these, down to their smallest details, we have an excellent account in the lengthy " Dialogus de Scaccario," a document of the reign of Henry II., which gives invaluable information as regards the royal revenue, (a) Sufer- The primary duty of the shire-reeve in the VheToSl earliest times had been to do for the king what estates. j^g reeve of any private man was accustomed to do for his master — to supervise his estates, and collect their rents and dues. This naturally continued to form part of the sheriff's functions in Norman times. He had to exercise control over the bailiffs of all the royal manors in his county, to receive from them the proceeds of each estate, and to go through their accounts. For the punctual collection of the sums due by tliem he was responsible. He would also have
Atigevin Administrative System. 135
to see that the buildings on each manor were in good order, and the stock maintained at its proper amount. To give an example of the minute responsibilities of the sheriff, we find — "Hugh de Bosco, sheriff of Hants, allowed £1 9J, 4/f. from his accounts, for having stocked the king's lands of Mienes with 12 ox^n at 3 J. each, and 100 sheep at 4//. each ; " * and " Thomas of Cirencester, sheriff of Somerset and Dorset, allowed for the expense of 42 quarters of wheat, 75 quarters of oats, and 5 quarters of beans, used as seed on the manor of Camel." With the charge of the royal estates the sheriff usually received that of the royal castles in his shire also. And just as he was responsible for keeping in repair a farm-building, so was he responsible for maintaining a fortress in a defensible state- It is unnecessary to point out the immense importance of this charge. The whole character of mediseval warfare was settled by the well- nigh impregnable strength of the mediaeval fortress. A king facing an unruly baronage had no more important possession than his castles, and the person in whose charge they were placed took over an enormous responsibility.
With the custody of the king's territorial W ColUe- possessions in the shire, goes logically that of "yirw." - * Madox, ** Hist of the Exchequer," p. 643.
136 The Anglo-Norman and
his claims to payment from the towns and burghs in royal demesne, that is of all which were not in private hands, but lay directly under the king's authority — far the larger number of the populous places of England. The "ferm" of these localities was in theory the composition paid by each in return for not having to support the king and his household for a given time. By the Conquest the "ferms" of the different towns were well-known definite sums ; but it would seem that their collection was one of the sheriff's richest opportunities for peculation. He appears to have drawn from the burgesses not merely the amount at which their town was assessed, but as much more as he could wring out of them, all the surplus going to his own pocket. Hence the first effort in the direc- tion of municipal independence made by the English burghs was the attempt to gain from the king permission to pay him their "ferm" directly, without having to use the sheriff as intermediary. What body it was which, by making direct application to the king, suc- ceeded in depriving the sheriff of his right to collect the "firma burgi," we shall endeavour to decide in a later paragraph, when we come to deal with those parts of the administrative system of the twelfth century which grew up
Angevin Administrative System. 137
from below rather than were imposed from above.
Returning to the sheriflTs fiscal duties, we (7) Collec- must note that his next great responsibility ^j^^f„ij was for the collection of the tax which, down '''"' ^«'^- to Henry II., was known as Danegeld, and which, after that king's reign, although nominally abolished, was practically retained as an occa- sional impost under the title of " Carucage." Its character in Anglo - Norman times was that of a land-tax, assessed at a given suni — originally two, afterwards six shillings — on each hide of land. But so many estates were wholly or partially freed from Danegeld by various pleas and exemptions, that its incidence was most arbitrary and unequal. The lands, for example, of all royal ministers and officials, of the sheriffs and the constables, no less than of the barons of the exchequer and the justices, were wholly untaxed. Many monasteries, too, were either entirely exempt, or had secured the privilege that all their estates, however exten- sive, should be reckoned as a single hide, and pay as such only. The unprivileged majority, remote from court favour and consequent exemptions, held the tax in special detestation ; and a promise to abolish it was always the most popular item in a programme of reform
138 The Anglo-Norman and
which a king could put forth. When " Caru- cage" replaced Danegeld, these inequalities were removed. Every caruca, or hundred acres, no matter to whom it belonged, was now charged with the payment of a uniform quota of taxation. The monasteries protested, but when Richard I. denied them access to any court of justice till the tax should be paid, they were driven into a speedy submission.
The "Ferm" and "Danegeld" of which we have spoken represent that part of the royal revenue which proceeded from what may be strictly and accurately called taxation ; but the sheriff was also charged with the collection of the proceeds of the law courts, and of feudal dues and incidents. (8) Collec- It may be suspected that the large profits 'j^iMi which prompt justice brought to the royal ^"'^' exchequer in the way of fines, account for much of the zeal with which the Anglo- Norman kings enforced the action of the national courts. These profits fell into three divisions. Firstly, in all cases tried in the shire-courts wherein a fine was involved, one- third of that fine went by primitive English custom to the king, just as another share accrued to the earl ; and thus the first item in the sheriff's Judicial budget was the " third penny"
Angevin Administrative Systttn. 139
of the shire-moot fines. Secondly, there were certain offences, the trial of which was more especially in the king's hands, and any fines that accrued from these went wholly, and not partially, to the exchequer. These " pleas of the cro\vn " were tried by the sheriff in the capacity of a royal "Justice." The most important of these offences was " murder." That name originally meant both the secret slaying itself, and the fine of £^6, paid by the hundred in which the assassination had taken place, in case of its being impossible to prove that the victim was an Englishman. But what had originally been a precaution on the part of William I. against the slaying of his Norman followers, soon came to be the ordinary method of procedure in all cases of secret homicide. The reason was that within a century the English and Norman races had become so hof>elessIy mixed, that it was impossible to speak with certainty about the pureness of the blood of any free- man. The crown, unwilling to lose its fines, decided that every murdered man should count as a Norman unless it could be absolutely proved that he had not a drop of un-English blood in his veins ; and the persons of whom this could be proved were soon so few that "murder" passed into being the name for all
140 The Anglo-Norman and
cases of assassination. In the time of Richard I. the pleas of the crown were taken from the sheriff, and given to a new officer called " coroner," chosen in the county court by the suitors there assembled, and so a national rather than a royal functionary. Gradually losing all his duties save that of inquest in cases of murder, the coroner drifted into his present modest position. Thirdly, there was yet another way in which the county court and also the hundred court contributed to the king's revenue. Fines were due from all who failed to attend them, and these were carefully gathered in by the sheriff, and formed an appreciable item in the accounts which he had to present before the Exchequer at his Easter and Michaelmas visits. (») CoUec' From the branches of the sheriff's accounts 'uud£ which were concerned with judicial profits, we dues. turn to the feudal dues. The Anglo-Norman kings, while careful enough to deprive their vassals of the privileges which made feudalism profitable to the subject, were strict in enforcing those of its usages which benefited the royal exchequer. First came the three legal aids, which the king might raise on the occasions of his eldest son's knighthood, his eldest daughter's marriage, and his own captivity in war. Next
Angevin Administrative System. 141
we have reliefs — the fines paid by a successor on taking over the lands of a deceased relative. William 11. had made them a profitable means of oppression, but by the time of Henry II. the sums payable on a barony or knight's fee had become settled at ;^ 100 and £$ respectively. Wardship was perhaps the next most irnportant feudal incident. The power over the lands and persons of heirs who were under age could easily be turned to account by an oppressive king ; the former by reckless exhaustion of the stock and soil of the estate, the latter by using the right of giving away the minor in marriage, and receiving large sums from those who gained by the transaction. The sheriff, entitled as the royal representative to keep an eye on all wards and the persons appointed as their guardians by the king, was doubtless able to make his profit from them. King John and his officials were specially noted for their abuse of wardship, a fact which has secured a con- siderable space in Magna Carta for clauses relating to its limitation. There were also other minor sources of the king's feudal revenue, among which may be mentioned escheats, — the reversions of land to him from the extinction of a family or the treason of a tenant, — fees for permission to transfer estates
142 The Anglo-Norman and
in other ways than that of strict hereditary- succession, and fines exacted for the violations of forest law — e.g. for " essartSy' or illegal clear- ings in woods, and for non-attendance at the forest courts. In the reign of Henry II. a new item was added to the feudal profits of the crown by the institution of " scutage in com- mutation of service." This was a composition raised in lieu of the forty days' personal service in the royal army, to which every holder of a knight's fee was liable by the conditions of his tenure. The knights readily accepted the scheme, while the king found himself able to raise with the funds of the scutage a permanent force of mercenaries, who formed a much more efficient army than the untrained feudal levies. The amount of this composition was almost invariably twenty shillings on each knight's fee. The sheriff For all these branches of the royal revenue
before the , , .«. ., , ,t, . ,
Exchequer the sheriff was responsible. 1 wice a year he Court, appeared before the Exchequer Court and went through the whole of his accounts with the barons of the exchequer. The payments were made in huge masses of silver pence — the only coins current in the kingdom — which were paid over by weight, not by tale, that the king might not be cheated by clipped pieces. Each sherifTs payment of pence was also carefully tested with
Angevin Administrative System. 143
the crucible ; samples being melted down, to see that the king might not, while receiving good weight, be deceived with base metal. The accounts were kept by the very primitive method of tallies, which were notched laths of wood, on which the sums were indicated by the cuts. They were split down the middle, and one of the halves was carried away by the sheriff, while the other remained with the exchequer. It was useless to tamper with the signs on one half while the other was in existence, and thus there was little danger of quarrels over past accounts.
We have now to pass to the sheriffs next //. MUi- class of functions — his military capacities. The *"'^' kings of England never committed the defence of the realm exclusively to the feudal levies. The old theory of ihcfyrd — the nation in arms — was consistently kept up ; and now that there was no one corresponding to the old ealdorman to take the command of the armed men of the shire, that function fell (unless the king appointed some special commander for the, occasion) into the hands of the sheriff. In the case of a prolonged and distant expedition that official would not, of course, have been long spared from the routine of his home duties. But in the case of sudden levies to
144 The Anglo-Norman and
meet unexpected dangers, the exercitus scirarum would be raised and led by their sheriffs. Such an occasion was the mustering of the army which defeated the Scots at the Battle of the Standard, when the sheriffs of Yorkshire took command. Similar examples are found in the suppression of the feudal revolt of 1173, and in the siege of Bedford, held by Fawkes de Breaut^'s followers, in 1224. In the fourteenth century, however, the sheriff's authority in the province of war was practically superseded by the issue of "commissions of array," which set other persons to muster men in the king's name. But the formal abrogation of the sheriff's military power did not take place till Queen Mary appointed a lord-lieutenant for each English county in 1556.
We have now dealt with the deliberative and judicial bodies which assisted the king in the supervision of the administration of England, and with the rv,yal officials through whom the details of the administration were carried out. All these personages were but portions of a simple but efficacious system for bringing the king's will to bear on the nation. They are all royal and not national in character, and are in no sense representative. In the higher branches of administration it appeared as if that
Angevin Administrative System. 145
share in the government of the realm which in the days before the Norman conquest had fallen to the Witenagemot, an assembly which undoubt- edly represented the nation, had been entirely transferred into the hands of the sovereign. But when we descend to the lower administrative machinery of the land, we find that the state of things is entirely diflferenL Representative institutions, far from disappearing, come more and more to the front, and the elective method which was one day to give England her House of Commons makes its first essays in local administration and local finance, as a prepara- tion for its extension in the thirteenth century to the broader and weightier affairs of the whole country. This movement is a growth from below, strongly contrasting with the work- ing of the higher branches of government, where everything was unrepresentative, and rested ultimately on the mere will of the sovereign.
On all local institutions in England feudalism Lccaiad- was superimposed ; but the new arrangements ^^"''^"" did not replace those which previously prevailed, but rather coexisted alongside of them. Thus in the manor the lord held his Court Customary (1) Afano- to deal with his tenants in accordance with ^ru. feudal usage, and his Court Leet (if he possessed the grant of sac and soc) to try their petty
146 The Anglo-Norman and
criminal offences. But side by side with these survived the Court Baron, which represented the old assembly of the freemen of the township gathered in their moot to pass bye-laws for themselves, and transact their own local business. Moreover, the king, being interested in the hundred-moot and shire-moot, by reason of the profits which he drew from them, was naturally determined to keep the courts of the lords of the manor in due subordination. It was his object to secure that as little litigation as possible should be carried on before the lord's representative, and as much as possible before his own, the sheriff and the itinerant justices. Hence it came that the manor courts remained comparatively unimportant, and all affairs of weight came either before the courts of the hundred and shire, the free assemblies of the people of the smaller or larger district, who met as common subjects of the crown, not as common tenants of any feudal superior, or before the itinerant justices, who were purely royal officers. (2) The The hundred court need detain us only while cmru w^ mention that twice a year it was the scene of the "View of Frankpledge," when all the inhabitants of the hundred had to present them- selves before the sheriff, to prove that they were duly enrolled in a "tithing" of ten persons
Angevin Administrative Systan. 147
mutually responsible for each other's good con- duct. The fact that the supervision of local police machinery, save in a few exceptional cases where a lord enjoyed special privileges, was placed in the hands of the king's officer, to the exclusion of feudal influences, is a point to be clearly marked when the outlines of the English constitution are discussed.
The shire court deserves more notice. It is (3) 7S^ remarkable as the first body in England in ''*"*''''^'- which a system of representation prevailed. In {a)itde- the twelfth century it was no longer attended ^'''fA '^'
' ° prtnapU
by the whole population of the county, but \iyofrfpre- landholders and their stewards, together with the reeve and four men from each township as representatives of their fellows. Being thus already composed in great part of delegates, it was easy and natural for the shire-moot to carry the principle of representation a step further, by choosing committees to represent itself. Such a delegated body, for example, were the " twelve legal men" or "knights" of the Constitutions of Clarendon, who were to decide whether dis- puted lands belonged to the Church or not; the four knights who were to begin proceedings at the judicial iter of 1 194; and — far more im- portant— the " four discreet men of the county," who were to meet John at Oxford in 12 13, "to
148 The Anglo-Norman and
talk with him concerning the affairs of the king- dom." This last should be specially noted as the first attempt to make the Great Council representative rather than feudal. For if to that assembly there once came men who were not tenants-in-chief, but representatives of each county, the whole character of the supreme deliberative body of the realm would have to be altered. It would be a prototype of the modern representative parliament, rather than a development of the feudal institution which figured in twelfth-century history. It is pro- bable, indeed, that these " four discreet men " of 12 1 3 were chosen by the sheriff rather than by the full county-court ; but their importance lies in their representative function, not in the method of their election, and in the following essay we shall show how the idea thus sketched out by John's writ became the instrument of popular, not of royal influence. When, indeed, elected representatives were officiating in town- ship, hundred, and shire for other purposes — for example, in assessing taxes like the " Saladin tithe" of 1 1 88 — it was not to be supposed that they would not in course of time rise to fulfil the highest function of all, that of representing the shire at the Great Council.
Turning to the judicial aspect of the shire->
Angevin Administrative System. 149
moot, we find that during the twelfth and (fi) its thirteenth centuries its independent action was^j^J.,. gradually being superseded by that of the king's itinerant justices. But this did not mean that royal authority was simply absorbing the last privileges of the English freeman. The crown of its own accord took the nation into partnership in this matter. We have already seen how it placed the holding of the "pleas of the crown " in the hands of a coroner chosen by the shire, in 1194. The ordinary meeting of the county court, indeed, grew unimportant in comparison with those extraordinary meetings in which the itinerant justices appeared. But when the justices presided therein, the accused persons whom they were to try were " presented " by a jury of twelve knights or legal men from each hundred, who were in 00 way chosen by royal influence, but were strictly representatives of the district. Moreover, when the ordeals and judicial combats which survived far into the twelfth century finally fell into disuse, their place was filled by the finding of another kind of jury, who decided on the truth or falsehood of the facts which had formed the basis of the " presentment" made by the first jury. In these two bodies — the one whose duty was present- ment, and the other whose duty was inquest —
150 The Anglo-Norman and
we have the origin of the modern grand jury and petty jury. The first secured that no man should come before the justices unless a body which ultimately represented the shire should hold that there was a primd facie case against him, while the second decided whether that case was borne out by the facts. Thus there was an ample check on the irresponsibility of the royal judges, and oppression was rendered difficult in ordinary times. It was only by the terrorism of a tyrant that the juries and the bodies which chose them could be so overawed as to make their functions in the courts formal and nugatory. Such oppression would not stand alone, but •would be the manifestation in one province of administration of a general misrule which would render the ruler who employed it unbearable. Bad justice, in short, would be the forerunner of insurrection, wherein feudal and national elements would unite, to the confounding of the oppressor. Such a sequence may be found in the series of events which led up to Magna Carta- Tiie towns. To Complete the account of the local adminis- tration of England in the twelfth century, we must pass on to the towns, of which we have avoided much previous mention, in order to deal with their position in a single and separate section. In the days immediately after the Norman conquest
Angevin Administrative System. 151
the English towns were simply townships, or clusters of townships, which differed from the humblest villages only in two respects. Firstly, TJieir they had obtained the right of having a fixed ^^* ' " Firma Burgi," and were thus aware of the maximum demand which the sheriff could legally make on them for that particular item of the royal revenue. But for other exactions, being considered to be in royal demesne land, unless they were formally in the hands of one of the great tenants-in-chief, they were still liable to the sheriflTs oppression. Secondly, for judicial purposes the towns had been " made equal to hundreds;" that is, their inhabitants did not appear at the moot of the hundred in which they were locally situate, but had a " port-moot " of their own, which was equal in status to a hundred-moot To endeavour to get rid of the sheriffs tax-collecting visits, and to turn him out of the port-moot, were the objects of all towns, and attempts to secure these ends are the first marks of progress toward municipal libeity in England. To be able to treat with the king, and to guarantee to him the superior profits which alone could induce him to grant the town the boon it craved, some responsible body had to be found. As to the identity of that body, the most various views have been held, but it
152 The Anglo- Nonna7i and
is safest to hold with Dr. Stubbs that the organization which treated with the king com- prised the fully qualified citizens of the place, the "tenants in burgage" of the crown, who held lands and houses within the borough, and formed the port-moot This body, if it bound itself by association into a definite unity, would be called a " communa," and the right to form a "communa" is, therefore, the first which a town would crave. Throughout the twelfth century the various centres of population in England obtained charters making them responsible for their own ferm, and free from certain specified forms of exaction by the sheriff. As early as 1 100, London obtained another grant in the province of judicature. This was the charter of Henry I., which practically gave the city authority over the whole shire of Middlesex, by conceding to it the right to elect two sheriffs, who were to be responsible for all within the county boundary, just as were the sheriffs of other shires. Of course, when the representative of the crown became elective, the oppressive charac- teristics of his office gradually disappeared. But in this matter London was far ahead of all other towns. The very inferior privilege of exemption from the ordinary meetings of the county court was not obtained by other places for a century.
Angci'tn Administrative System. 153
and freedom from those more important county courts where the itinerant justices appeared, was never won at all, save by those cities which in far later times came to be reckoned as " counties in themselves."
The English borough constitutions are of a Their con most composite and confusing character. This J'*'"'""'^' results from the interfusion of the systems of the old township, the communa, and the guild. Of the two first we have spoken ; the last requires a few words. Guilds with social or religious purposes have already been mentioned as characterizing the period before the Conquest But it is the Guild Merchant, or association for trade purposes of the citizens of the town, with which we have now to deal. All fully privileged inhabitants of the town being members of the guild, its personality was at first practically the same as that of the town itself, so that a charter to the guild was much the same as a charter to the "communa" of the place. Richard I., for example, heads his charter to Winchester as granted "to the men of Winchester in their MercJiant Guild" instead of to the citizens. The organization of the guild was that of brethren electing aldermen, and from the early identifica- tion of the guild with the town, comes the fact that the name of alderman is now found as that
154 The Anglo-Norman and
of a municipal dignitary, though the first bearers of the title were but the chiefs of a trades union. For such, in fact, was the original meaning of the guild merchant. In the thirteenth century the guild became so much the shape in which the town's identity was imagined to lie, that it obtained permission to make its own bye-laws binding on all the community. But presently as the guild merchant grew exclusive, a class arose, — mainly from immigrant villeins from the shires, — who were not included in it, and between the privi- leged and the unprivileged a bitter strife grew up.
The alderman therefore, was the representative of the guild ; the mayor, on the other hand, was the representative of the "communa" of the place ; for the last and crowning privilege of a town constitution was that its " communa " should be " concessa" i.e. not a mere private association, but a body made legally recogniz- able, with the privilege of choosing a mayor as its formal head and representative. The town councillor, on the other hand, has an older pedigree, representing the old organization of the township with its leet-jury, before communa or guild had been thought of.
The development of the constitutions of the various English towns was most irregular. In the twelfth century every different stage of
Angevin Administrative System. 155
immunity from the sheriff's interference, and every form of judicial independence, was con- temporaneously existent London had a mayor and communa when many other places had barely compounded with the king for their " ferm," and all the intermediate degrees between those two points could be illustrated. But by the reign of John even the least privileged place had at any rate acquired a personality and legal status, if nothing more ; and thus it was possible for the English towns to take that important place in the politics of the realm which they assume after the reign of Henry III., a place which as mere townships they would never have occupied.
Having never felt the evils of feudalism, but Opposition as having fully experienced the disadvantages ^^^^^ of the strong hand of the royal official,* the'^'^"^'** towns had their own particular bent and poli- tical notions. These tended towards opposi- tion to the crown, so soon as it was clear that the strength of the crown was no longer needed to prevent the chronic outbreak of feudal anarchy. The last throes of that struggle had been seen in the rising of 1174. It is from that
♦ We should except from this general statement towns like Leicester or St. Alban's, which were not in royal demesne, but were subject to a lord, lay or spiritual
156 Tlie Anglo-Norman and
date, then, that we may vaguely trace the desire to curb the royal power as arising in the boroughs. Naturally, therefore, they take sides with the baronage in the reign of John, and their parti- cipation in the struggle against tyranny is marked by the name of the mayor of London, placed half-way down the list of the great twenty-five who undertook the enforcement of the instrument of English liberties. Summary A few words suffice to sum up the general course of English constitutional history in the times of the Anglo-Norman and earlier Planta- genet kings. We have investigated the leading characteristics of a period whose main feature is the development of administrative organiza- tion. We have seen how, while feudal separa- tion reigned over the greater part of Europe, one state at least was guided into a centralized and bureaucratic autocracy, in which all things ultimately depended on the will of the king. Yet from the very moment at which the crown won its last victory over feudalism, another movement begins to make itself felt As long as anarchy had been impending, any firm central government — even an oppressive one — would be received with acquiescence by the nation. But when the danger was over, the heavy yoke of the Anglo-Norman administrative system
Angevin Administrative System. 157
began to seem more burdensome. When the working of its machinery came under the control of a versatile but callous and reckless tyrant, who was ready to utilize all the opportunities for oppression which it afforded, baronage and people alike rose in revolt But the revolt is orderly : the baronage do not demand a return to feudal anarchy ; the people do not commence a Jacquerie, The one take their stand, not on local independence, but on their legal position as advisers of the crown ; the other — borrowing a term from the borough constitution — speak of themselves as the " communa " of the whole realm ; the orderly association of all freemen, not the tumultuous assembly of insurgents. Order and legality, however oppressive they had been in the government, had so impressed themselves on the nation, that even its revolt was legal and orderly. It formulates its demands as the accurate definition of already existing rights, not as the grant of fresh privi- leges ; and all English reforms ever after have taken this same shape, as assertions of old customs, not as new departures towards ideal principles. Magna Carta aims at the practical redress of visible wrongs, not at the establish- ment of a limited monarchy or any other theoretical end. This was its strength and its
158 Anglo-Norman Administrative System.
weakness. Its strength lay in the clear and business-like way in which the means are adapted to the end, showing that its framers knew exactly what they wanted. Its weakness is seen by the fact that it provides no permanent machinery for keeping the conduct of affairs in the same line in which they had been set, and by its neglect to guard against the recru- descence of royal tyranny in new forms. There- fore the struggle was not ended by the charter, but had to be fought out again fifty years later. It was not till the permanent and regular check of a representative parliament replaced the inadequate check of a feudal "Great Council," and the irregular ultima ratio of armed revolt, that the overgrown power of the king, backed by the machinery of the Anglo-Norman admin- istrative system, was reduced to a fair balance in the equipoise of the constitution.
ESSAY IV.
PARLIAMENT.
The government of England has never been Relations
,.,,,. TT . between the
theoretically a despotism. However great \r\ king and
actual practice the king's power may have been, ^clJ^f
there was always a central assembly, whether ^'M'
Magna
called the Witenagemot or the Great Council, the Carta. members of which were never dependent for their right upon the mere personal will of the sovereign, and whose counsel and consent were theoretically necessary to all legislation.
It has been pointed out in a former essay how the Great Council became feudalized, and the king compelled to find his strength outside the feudal council. The result was that the king assumed the position of protector of the people, and sought to upset the baronage by fostering a central power based upon the popular institutions of the country, strengthened and
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drawn into intimate contact with the royal government The measures of Henry I. and Henry H. — the establishment of itinerant justices, the creation of a new class of official baronage, the destruction of the great feudal liberties, the development of the jury system — all helped to make the royal power a pure despotism, of which the whole people had become the willing instruments. But the danger of this position was apparent on Henry U.'s death. The king was now so powerful, both inside the kingdom and also in the consideration of foreign nations, that it was easy for an unpatriotic sovereign to play the tyrant. The frequent absences of Richard I. left the working and consolidation of his institutions in the hands of ministers whose primary object was to please their absent master ; and at John's accession we find how the misuse of the royal power challenged the nation to display all its capacities of resistance and, finally, of unity. The situation which gave an opportunity for this was entirely of John's own making. The power of the feudal baronage had been broken. The royal authority was popular in England, and associated with tradi- tions of success. The Church had supplied the king with his most useful ministers. There was no disposition among the various elements of
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society to combine together ; and all the profes- sional skill in administration was enlisted on the side of the king. Sixteen years of John's National rule threw all these various elements into an J^ "^
irresistible national combination. The loss of*^^""'
jrohn. Normandy equally deprived the baronage and
the king of external aid, set the king face to face with the people, and raised the two im- portant questions of foreign favourites and of foreign service. The surrender of the kingdom to the pope forced the clergy into a definite attitude. Hitherto they had been the opponents of oppression in all forms. Now that the alli- ance of their two masters had cut off the pos- sibility of appealing from the nearer to the more remote, they had to choose between two con- flicting duties — that which they owed to the pope, and that which was due to their country. To these two causes was added the generally oppressive working of the system which Henry H. had placed in the hands of the king. The people now began to regard the king as their greatest foe instead of their protector. In the face of a common danger all classes drew gradually together. The king had alienated even the official baronage, the trained ad- ministrators of the country, whose duty it was to guard the traditions of government. Under
M
1 62 Parliament.
their leadership these traditions were reduced
to writing and forced upon the king. The
Impor- result was Magna Carta, purporting to be no-
'mo^ thing new, but merely the declaration of old law.
Carta. Some of its provisions had been for generations
among the recognized customs of the country ;
others had grown recently out of the exigencies
of the time. It was useful to have a definite
statement of the customs of the land to which all
classes could appeal. Such a code is the mark
of transition from the stage of organization to
that of law. But the chief importance of the
charter does not consist in this. It consists rather
in the witness which that document bears to the
rearrangement of the political forces of which it
was the result This was the work of the period
which runs from the granting of the charter in
121 5 to its final confirmation by Edward I.
in 1297.
TJufeudal No constitutional advance was possible so
^becomes ^*^"S ^^ ^^ efforts of the popular leaders could
national, j^g neutralized by the action of a royal council
composed of foreigners and favourites. The loss
of Normandy and the feeling of national unity
which had found expression in the charter, gave
redoubled meaning to the outcry against the
employment of strangers in the government.
The king, on his side, was equally determined
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to revenge himself for the desertion of the official baronage by forming a body whose foreign origin should render them entirely de- pendent on himself. It was the question of personal as opposed to national rule which was in debate, and it is because the barons do not at first understand this that the struggle lasts so long. They treated the whole matter as one between themselves and the royal favour- ites |who stood between them and the offices which they regarded as rightfully theirs. For the personal rule of the king they only substi- tuted an oligarchical government composed of the most important members of their own body. Their internal quarrels increased the confusion of the country. The machinery of government became an elaborate system of committees, composed for the most part of the same series of members. But this was not all. Magna Carta had drawn a distinction between the greater and lesser tenants-in-chief, who were all equally entitled to be consulted in matters of taxation. There was considerable risk that the most power- ful section of the baronage would recur ,to the old feudal, anti-national position. There was also a danger that the remainder of the tenants- in-chief would form themselves into a caste. In this state of things it was more than probable
164 Parliament.
that the struggle for power would end in a mere scramble for booty, and that the charter would thus have increased the division between classes, instead of drawing'them closer together into a national bond. That such was not the result was mainly due to the activity of the knights in the county courts, and to the oppor- tune advent of the friars, whose self-sacrificing work tended in no mean degree to modify the selfish feelings which were fostered by the state of the political world. Formation It was by the formation of a party which w^^^'^ could claim the support of both the lesser f-af-iy. tenants-in-chief and the friars, that the solu- tion of the constitutional question was worked out. The inadequacy of the constitution as arranged by Magna Carta could no longer be concealed. Henry merely used the lesser tenants- jn-chief in order to recover his lost prerogatives from the hands of his self-imposed ministry ; but the power, when regained, was used, not for the benefit of his supporters, but to promote the return of the foreign kinsmen and the inter- ference of the pope. In the three years, 1261- 1264, the real solution of the difficulty was discovered. That solution was the outcome of a popular movement whose causes may be traced most definitely within these three years.
Parliament. 165
In the first place, there was a section of the oligarchical party whose members, though im- pelled partly by ambition, had in some degree the welfare of the kingdom seriously at heart. Such men must have begun to understand that the only way of preventing the plunder of the people, either by king or barons, would be to give them a position inside the central organiza- tion of the state. McM"eover, the pressure exer- cised on the people by the union of pope and king had begun to cause the people themselves to take active measures in their own behalf. The movement took outward expression in a number of rough rhymes, both in Latin and English, which were soon scattered broadcast over the country. Thus there had been found pens to formulate the popular complaints ; there were only wanting brains and hands to organize and enforce them. It was as yet early to hope for these within the body of the people. But now, as ever at a crisis, there were members of the baronage ready to espouse the popular cause. The conduct of the king rendered necessary the employment of force. Henry used the aid of the pope to absolve him from all pledges, and employed the credit of the country in the pursuit of purely personal aggrandizement The popular party
1 66 Parliament.
Policy of came together under the leadership of Simon Montfort. de Montfort, and the battle of Lewes, in May,
1264, left De Montfort practically dictator of the kingdom. From May, 1264, to August,
1265, he was the first man in England; and in that period he had succeeded in finding the method in which the constitutional question could be answered. Earl Simon's supporters were drawn from the ranks of the clergy, the knightly class throughout the country, and the commercial classes of the towns, whose trade had been ruined by the king's exactions at a moment when they were growing in organiza- tion and in wealth. The assembly to which he appealed for help was one composed of these elements. The higher clergy had been accus- tomed to attend the national assembly from time immemorial. On several occasions of late representatives had been brought up from the shire courts. But no king had yet thought of including the towns in the Great Council. No doubt the immediate reason for the sum- mons of the boroughs was the dearth of the baronial following on Simon's side, and the strenuous support which the townsfolk had given him. The occasion however found them fully prepared for the honour thrust upon them, since the methods of local government had
Parliament. 167
familiarized Englishmen with the two ideas of representation and election. Such was the origin of the assembly, which foreshadowed the perfected Parliament of the three estates.
But for Earl Simon the complete solution was not possible. He had fought as the head of a section both of the people and of his own class, but the inevitable break-up of a party founded on the twofold and generally incompatible basis of private interest and pub- lic utility did not necessarily mean that the movement had been without result The vic- tory lay with the royal party, but only remained with it permanently because the representa- tive of royalty in the future himself stepped forward as the exponent of those ideas which had been embodied in the popular movement. When, in 1295, Edward summoned the Vds- jiu Model liament which became the model for all „,^^ future national assemblies entitled to that "95* name, and when in 1297, his last attempts at arbitrary power gave way in the presence of the organized national force which he had been so instrumental in moulding into shape, the lesson of the last eighty years had been learnt ; the rule of feudalism in any form whatsoever was at an end. The Confirmatio Cartarum was but the interpre-
i68
Parliament.
Growth
tation of the central article of Magna Carta, forced on the king by a growing and vigorous nation.
In order to understand the full significance
fJe'es7£. °^ *^^ ^^^^® ^^'^^ *^^ constitution had reached in 1295, it will be necessary to examine individually the several portions, or as they were technically called, Estates, of which the Parliament was composed. According to the mediaeval theory, these were three : (i) the spiritual estate ; (2) the baronage ; and (3) the commons. The assembly, so composed, was called together in strict accordance with defi- nite rule ; and it is because the forms observed in 1295 were those which ultimately became stereotyped upon the constitution, that we are justified in considering the assembly of that year as the first normal Parliament.
The first or spiritual estate, which comprised the whole body of the clergy, may be divided into two : (l) the lords spiritual ; (2) the lower clergy.
The lords spiritual included the bishops, abbots, some few priors, and the heads of two or three religious orders. The original qualifica- tion of the spiritualty to take part in national assemblies had been founded, like that of all members of the Witenagemot, on their wisdom,'
I. 7^
spiritual estate.
(I) The
lords
s^ritual.
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But after the Norman conquest, unlike the temporal baronage, they had merely added the claim of tenure without impairing the original title by which they had been called. At a moment when tenure inclined to be the basis of all political claims, the greater members of this hierarchy were the possessors of large baronies. They sat in the Great Council of the realm, side by side with the great barons. Their superior learning made them the most indispensable members of that body. To all outward ap- pearance they were barons, and a very formidable class of barons.
But notwithstanding the importance and numbers of the spiritual lords, there were con- ditions which rendered it far easier for the king to limit both the number and the power of the spiritualty than that of the temporalty. The sees of bishops had never in England become hereditary. Abbots and priors were usually glad to escape the burden of attendance at the Great Council. It was always, there- fore, possible for the king to send writs of summons only to those upon whom he could depend.
The results of this were seen when the as- sembly, which had been founded on a feudal or a class basis, gave way to one which brought
1 70 Parliament.
the whole nation face to face with the sovereign. All the bishops and the baronial abbots were still included among the members whose presence the king especially desired. The jealousy of the rest of the clergy on behalf of clerical im- munities, and the double relation in which they stood towards king and pope, led them to ignore the numerous and persistent efforts of Edward I. and his successors to give them a voice in the government of the land, and to meet, as an estate by themselves, outside the national as- sembly. (2) General We have seen that the bishops and higher ^clarn^*^' clergy enjoyed their baronial tenure in common with those of the laity who were summoned to the national council. Nevertheless, they found themselves far more in harmony with the meaner brethren of their order than with the great barons with whom they were thrown. The whole body of the clergy was trained to common action in synods and ecclesiastical councils. Such councils were frequent, and contained a complete organization of the whole spiritual body, both prelates and cathedral chapters, archdeacons and parish priests. Moreover, not only had the clergy their separate courts, but in the acceptance and use of the canon law they were amenable to an entirely different code and
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standard of judgment. The sole point of political or constitutional contact which remained to any portion of the clergy with the laity, was now found in the baronies of the prelates and the abbots. So long as taxation fell upon the land alone, the bishops were forced into union with the temporal members of the central council. But when taxa- tion was extended so as to include the spiritual revenue obtained from tithes and ofTerings, the various ranks of the clergy were drawn together by an interest common to themselves apart from the laity.
In matters of taxation it had been common for the king's officers to treat from time to time with the clergy in their ecclesiastical assemblies. But the more general character which taxation had now assumed, necessitated a more general machinery of collection ; and this was found in the summoning of the Convocations, begun by Stephen Langton in 1225, but not completed in form until 1283. By the final regulations the archbishop of each province issued summonses to his senior suffragan, empowering him to col- lect on a certain day, at a certain place, all the bishops, abbots, priors, heads of religious houses, deans of cathedrals and collegiate churches, and all archdeacons in person throughout the pro- vince, and at the same time to direct that there
1/2 * Parliament.
should be chosen in each diocesan synod two proctors to represent the clergy of the diocese, and in each cathedral and collegiate chapter one proctor to act on its behalf. Represm- In early times the organization of the Church the clergy, had led the way for that of the state. Ever since Magna Carta, however, the two had ad- vanced together. Now that Edward I. desired to define the relations between the several estates of the realm, he sought to unite the two pro- vinces in one body. This was to substitute for two spiritual assemblies, one temporal represen- tation of the spiritual estate, and thus to transfer to the national council the temporal powers which had hitherto been wielded by a purely spiritual assembly. With this object in view, after several preliminary attempts at securing a partial representation of the clergy, Edward finally, in 1295, formulated a complete temporal representation of the spiritual estate. By a clause in the general writ to the clergy, known from its opening word as the " praemunientes " clause,* the king directs the bishops to pre- monish the clergy to appear with him in the Parliament in the following way : (i) The deans and priors of cathedrals and the archdeacons in person ; (2) one proctor as the representative 1 Stubbs, " Select Charters," p. 484.
Parliament. 173
of each cathedral chapter ; (3) two proctors as representatives of the clergy of each diocese. From the very first, however, the clergy showed great reluctance to obey this summons. The old feeling of the value and importance of clerical immunity from lay control still existed. For nearly thirty years, from 13 14 to 1340, a separate letter was addressed to the two arch- bishops at the summons of each Parliament, admonishing them to compel the attendance of the clerical representatives. But, as far as the king's object was concerned, this extra summons had no effect The summonses of the arch- bishops to Convocation were obeyed : the sum- monses under the " praemunientes " clause were a mere matter of form, and the only result was that another session of the clerical Convocations was held under their usual form, which dis- charged their accustomed business of voting a free gift for the royal needs. The crown in the end accepted its defeat, and though to this day the praemunientes clause is inserted in the parlia- mentary writs of summons to the bishops, no further pressure ever has been put upon the clergy to bring them into the assembly of the estates.
The qualifications by which a temporal peer //. Estate acquired the right to sit in Parliament wcre^^ "
174 Parliament.
Quaiifi. three in number: (i) tenure by barony; (2) ^pe^ "^ receipt of a special writ of summons ; (3) crea- tion by patent {i) Tenure. The Great Council of the Norman kings had been composed of all tenants-in-chief of the crown. It was not long however before a dis- tinction arose in that body. Those of its mem- bers who were the possessors of a large number of knights' fees were especially dignified with the title of barons ; while the holders of a single knight's fee, the obligations of which were dis- charged by the personal attendance of the holder, had to rest content with the simple appellation of knight, which they shared in common with the whole body of tenants-in-chief and of knightly landowners who held of other lords. An attempt (2) Sum- has been made to show that this distinction mons. existed from the first ; but as we have to note so often in English history, the practical differ- ence preceded the legal recognition of its ex- istence. This difference is found as early as the charter of Henry I. By the reign of Henry II. it is clearly marked. But its final recogni- tion is established in the celebrated clause of Magna Carta (§ 14), which prescribes the mode of summons to the Great Council — " summoneri faciemus archiepiscopos, episcopos, abbates, co- mites, et majores barones, sigillatim per litteras
Parliament. 175
nostras ; et praeterea faciemus summoneri in general!, per vicecomites et ballivos nostros, omnes illos qui de nobis tenent in capite." The difference thus definitely expressed was shown in more ways than one. The barons, who were entitled to a special summons, were wont to deal in all money matters direct with the royal exchequer, instead of being merely handed over to the tender mercies of a royal official in the person of the sheriff, whose transactions were directed in accordance with certain definite rules. Moreover, the greater baron came to a military levy at the head of all his tenants, whereas his lesser brother-in-arms arrayed himself with the local forces under the guidance of the sheriff. These differences were all the growth of custom, and would scarcely of themselves have organized the whole feudal array into two entirely in- dependent bodies or classes of men. 3ut the separation thus begun was very conclusively marked by the article of Magna Carta, to which allusion has been made above.
Thus there was now added by law, as well as custom, to the old qualification of tenure, the new one of summons. Nor is it long before we find that this summons is in some cases, especially in those of the baronial members of the royal council, sufficient qualification of itself
1/6 Parliament.
for appearance in Parliament. One great object of Edward I. was to stamp out as far as possible the importance which the feudal idea of tenure exercised in determining the political life of the country. It is in relation to this well-known feature of his policy that he has been styled the creator of the House of Lords, as much as he is generally acknowledged to be the creator of the House of Commons.
Nor did Edward's innovations cease here. These special writs of summons were issued fresh for each Parliament : they were only avail- able for that individual assembly, and could not of themselves "express or found a permanent right." It was natural, however, that they should generally be sent to the same persons, namely, to those whom it would be impolitic to omit. Edward's plan of procedure did much to en- courage and to stereotype this system, which served to mark off the greater barons still more distinctly from the general throng of the tenants- in-chief. (3) Paient. The creation of a barony by letters patent is a later method. At first used only in the case of a few earldoms, it was some time before it was extended so as to apply to the lower rank of nobility. The first instance of its use is in 1387, when Sir John Bcauchamp, of Holt, was
Parliament. i "jy
created Lord Beauchamp, Baron of Kidder- minster, in hereditary possession for himself and his heirs male. This specification of the manner in which the barony should descend was what especially marked off this new method of creation from the old ; for a barony, the claim of which to representation in Parliament came from reception of a special writ, often descended to heiresses. This form of creation became the usual method of bestowing a right to a seat in the House of Lords in the time of Henry VL The position thus accorded to the new barons could not well be denied to the older members, whose only claim had hitherto been founded on the regular reception of a writ of summons.
Helped by the employment of one or other Grffwtk of of these methods, the greater barons g^SiduaWy ij^^^^j and silently acquired a community of interest '^ 'V' "''*''' which welded them into a permanent body, rea/m. The council of feudal barons became the House of Lords. Not that the royal right of summons was ever surrendered ; it merely assumed the shape of a permanent attribute of a particular body of men. The problem that remained to be worked out was simply one of giving legal form to what had already been accomplished in fact. Such legal recognition may be said to have begun in 1322, when the earls and bsron.s
N
178 Parliament.
as peers of the realm, passed sentence upon the Despencers. The position which they assumed on that occasion was again asserted in 1331, when the same body passed sentence upon Mortimer, protesting at the same time that they were not bound to sit in judgment upon " others than their equals." This was no new power that the barons were assuming. The duties of a high court of justice had belonged to the Great Council of the realm, and the barons had assembled too often in that council to merge at a moment's notice in the Parliament of the whole nation, the organization and the powers which they had hitherto enjoyed apart. Nor, as it happened, was such a surrender in the least degree necessary. When the greater barons were reinforced in Westminster Hall by repre- sentatives of the shires and boroughs, it is not likely that the various estates ever voted to- gether. At the best, the different estates occu- pied different portions of the same hall. And ere the old privileges of the feudal regime had quite disappeared before the encroachments of the popular representatives, an important event had happened. Soon after the accession of Edward III. the lords and commons had de- finitely divided off from each other into two separate assemblies. This prevented the neces-
Parliament. 179
sity of any surrender on the part of the lords of any power or privilege which they had pos- sessed as members of the Great Council, pro- vided that the retention of such did not interfere with the rights of the commons. Of these the most important was the right of judicature, a right which the commons never attempted in the Middle Ages to usurp. Under shadow of this right the pares of Magna Carta were now acquiring a technical meaning. So much is this the case, that in 1341 the pares terrce claim a fellowship in rank with each other apart from the rest of the community, when, in response to the claim of Archbishop Stratford to be tried by his peers, the lords report to the king " that on no account should peers be brought to trial except in full Parliament and before their peers." The final stage was reached on the accession of the house of Lancaster, whose legal title to the throne depended on its recognition by Parliament It was plain that if this recognition was to be a legal and constitutional act, it must proceed from a body constituted in accordance with old custom, and not from an arbitrarily summoned assembly of partisans. After this time, therefore, the council of prelates and barons assumed a more definitely fixed form. Summonses were invariably sent to the same people, and the
1 80 Parliament.
method of creation by patent finally decided the status of the members of the House of Peers. We have now enumerated the constituent elements of the House of Lords. It remains for us to trace to its origin the English House of Commons. ///. Estate The third estate is not a division drawn from commons, the Consolidation of classes. It owes its origin rU^^" rather to the overthrow of caste distinctions, and is the expression of political, not of social, rela- tions and interests. Briefly speaking, the body of the commons signifies two things : first, the freemen drawn together into definite bodies for the accomplishment of special purposes ; secondly, the represented freemen in contradis- tinction to the magnates. The whole body is a formation of the thirteenth century and is the outcome of the political exigencies of the times, finding their expression through the medium of the ancient machinery of local government. It is made up of two clearly defined factors — the knights of the shire, and the representatives of the boroughs. {\)pu In speaking of the growth of the estate of
of the temporal lords, it has been mentioned that the '*""'• membership of the feudal council belonged to an increasingly large and, as far as the varying extent of their individual possessions was con-
Parliament. i8l
cerned, a very miscellaneous body ; and that it was the royal power of summons, constantly exercised in the same direction, which finally reduced this body to the size of the more modern House of Lords. We saw further that the practical use of this power of summons was to bring together out of the whole feudal body such only of its members as the king either desired or was obliged to summon. The latter class — those whose presence was practically necessary — would naturally be the tenants of the largest lands. They seem to have acquired History the special designation of majores barones^ and, ^^ "'^ on the showing of Magna Carta, to have ex- pected a special summons addressed to them in person. The rest of the royal tenants, dis- tinguished as minores barones, or often simple knights, had to rest content with a general summons which reached them through the sheriff. The constitutional recognition of this position in Magna Carta practically upset the feudal basis of society established at the Norman conquest. It was because the Conqueror had done all that lay in his power to prevent the extension of this feudal basis to the government, that society had broken up so soon. There can be no stability in a country, and therefore no power of progression in an orderly line, unless
1 82 Parliament.
the basis of the constitution tallies with that on which the social relations are formed. The distinction between a special and a general summons had existed previous to Magna Carta, but the constitutional recognition of the dif- ference which then took place, must have de- graded to the lower class many who, by the occasional receipt of a special summons, con- sidered themselves entitled to a place among the viajores barones. And now that this was no longer forthcoming, the only members of the body of tenants-in-chief who would be likely to put in an appearance would be such as might find it convenient or positively necessary to attend. In this consisted the whole difficulty of the situation. Unless some new method were discovered whereby the basis of the constitution could be enlarged, the government threatened to become a permanent oligarchy of a strictly feudal type. The clause of Magna Carta would not be a solution of old difficulties, but merely the origin of new. Moreover, in his struggles with the great feudatories, the king had relied much on the help he had received at the hands of the provincial knights and the freeholders. It was scarcely probable that he would abandon, at the moment when he most wanted it, what had hitherto been his most effisctive weapon
Parliament. 1 83
against the feudal oligarchy. From 12 15 to 1254 the question remained undecided. It was finally solved by action taken in the absence of the king, by those who stood in his place. It was during one of Henry III.'s expeditions to Gascony that his usual demand for money was transmitted to his viceroys, the queen and the earl of Cornwall Their first application, to the bishops, met with a flat refusal on the plea that no such grant could be made apart from the beneficed clergy. Afraid of a second refusal on a similar pretext from the barons, the viceroys averted such a mischance by directing the sheriffs of each county to cause the election of two knights, who should declare in a great council at Westminster the amount of aid which their constituents would grant
At this point we are met by two questions under which it will be convenient to group all that seems necessary at present to be said regarding the knights of the shire. These questions are, first, How was it that the knights were ready to undertake the function which such a position seems to involve, and to submit to this further separation from tlieir nominal peers? or, in other words. What social causes were at work to separate the majores and minores barones? The second question is con-
1 84
Parliament.
(o) Separa- tion be- tween the tnajorei and minores barones.
cerned with the constituents of the knights : Who exactly were these knights intended to represent, being, as they were, members of the baronage, elected in the court of the freeholders ? It is not necessary to dwell further upon the fact of the separation in the ranks of the feudal baronage, nor upon the constitutional method by which it was marked. Neither the one nor the other will permanently remain fixed in our minds unless we understand the social conditions which caused them. In the first place, it is probable that the greater barons regarded with jealousy the equality of suffrage which the inferior tenants-in-chief may have claimed with them- selves. This jealousy would be much increased after the clause of Magna Carta, which had no doubt been framed partly with the intention of preventing the king from flooding the council with a number of his followers, sufficient to out- vote the greater barons. It was natural, however, that the lesser barons should not resign their constitutional position ^spares without a struggle. Nor, in fact, did they do so until the selfish policy of the greater barons had shown them that such obstinacy would only result in their becoming the tool of one or other of the dividing factions, so long as of themselves they were too weak to form an opposition.
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The tension in this position, moreover, of jealousy on the one side, and of tenacious asser- tion of old privileges on the other, increased immensely as social relations became more complicated, owing to frequent changes in the ownership of lands. Many causes had contri- buted to this. The Crusades had effected great changes by the alienations, mortgages, and partitions to which they had given rise. Again, the only method of acquiring new land, now that the whole country had been parcelled out, was by subinfeudation, i.e. by accepting land at the hands of some lord on condition of discharging the feudal service which was due for it. By the employment of this method many tenants-in-chief had become sub-vassals that is, they held land under men who were themselves not tenants - in - chief. Thus the methods of holding property became so compli- cated, that all idea of a lower rank as attaching to the position of a sub-vassal disappeared. And when, in 1290, subinfeudation was forbidden by the statute Quia Emptores, and every future sub-vassal became an immediate vassal of the crown, the old feudal grades were quite broken down ; for such new crown vassals could not well take precedence of old sub-vassals who had been for generations in possession of their
1 86 Parliament.
estates. It was then a comparatively simple matter for the kings, owing to the waning influence exercised by considerations of feudal tenure, to ordain that all possessors of the quantity of property which was requisite for the status of a knight, should forthwith accept the privileges and responsibilities of that posi- tion, no matter on what tenure they held their lands. Thus the very causes which were divid- ing up the body of the tenants-in-chief, were giving to those of them who held by mere knightly tenure, interests in common with the mesne tenants and freeholders of the shire, the principal element in the local court. At the same time the barons also were drawing apart both in the Great Council as well as in the local courts. For, although in these latter their in- fluence was still very powerful, yet their presence had been excused by the provisions of several statutes. Here then in the shire court, the minor tenants-in-chief banished from the Great Council, found a new and enlarged field for their energy. Nor was this difficult as soon as they had reconciled themselves to the loss of their old position. For some time past they had been used to share with the mesne tenants and freeholders in every department of local government. They had served on the juriej,
Parliament. 1 87
by means of which most of the judicial work of the country was carried on ; their votes were counted among those of the other mem- bers of the county court in the election of coroners for the conservation of the peace, and, after 1277, of the custos paciSy in whom originated the later office of justice of the peace. These same minor tenants-in-chief, too, had helped to elect and had themselves served as the re- presentatives in each county for the execution of remedial measures, such as were necessary in accordance with the terms of Magna Carta. Finally, the minor tenants-in-chief had played their part in the juries elected to assess taxa- tion. It was this last matter with which the local courts were especially busy between 12 15 and 1254, and which possibly at the same time reconciled the minor tenants-in-chief to the loss of their old position in the Great Council, while it almost certainly supplied the necessary clue to the method of procedure by \\hich they were again to be included in the great assembly of the kingdom. It is important to note the chief dates in this connection. In 1220 we find that two lawful knights were chosen in full county court to assess and collect the carucage ; in 1225 it is four elected knights of each hundred who assess and collect the fifteenth
1 88 Parliament.
that had been granted by the Great Council in return for a reissue of Magna Carta ; in 1232 an undefined number of knights is assigned for the purpose of merely collecting the fortieth, the assessment being accomplished by different machinery; and lastly, in 1237, a similar ex- pedient is employed for the collection of a thirtieth of movable goods throughout the nation. Thus, in 1254, when it was doubtful whether a grant could be obtained from the laity, the method by which their willingness might be ascertained was not far to seek. The minor tenants-in-chief had cast in their lot with the general body of freeholders in matters of local concern. This partnership was henceforth to extend to national affairs. At the same time, they themselves returned to the national council under a new qualification — that of elected local representatives, under cover of which position they were the means of introducing to that council an entirely new element in the person of the freeholder.
At this point we enter on our second question
— Who were the constituents of the knights of
the shire ?
(/5) Whom The more ancient writers on our constitution,
knigfusof as represented by Hume and Blackstone, main-
^^in^itnti ^^'" ^^^^ originally the tenants-in-chief of the
Parliament. 1 89
crown were alone suitors of the county courts, and consequently sole electors of knights of the shire. They proceed to account for the position occupied by the knights a century after the consolidation of the estates in Parliament, by supposing that at the break-up of the feudal system, and in the ensuing confusion between various kinds of tenure, tenants of mesne lords introduced themselves as members of the county court. In opposition to this view, we have that maintained by modern constitutional writers, that the knights were the representatives of the freeholders of the county, by whom they were elected in the county courts. The proofs of this position are abundant
In the first place, the question practically turns on the composition of the county court at the time when knights were first elected to the national council. A description of the composition of a shire court, before it was put to the use of electing representatives, is to be obtained from the " Leges Henrici primi," * where not only is there given an exhaustive list of the constituents of the court, but the use of the word " Vavassores," which is generally understood as referring to the tenant of a mesne lord, and not to a tenant-in-chief, seems conclusive proof that > Stubbs, " Select Charters," p. 105.
igo Parliament.
the court was not limited to the tenants-in-chief. For the constituent elements of the court, in the period during which its chief business was the election of parliamentary representatives, we are able to appeal to many of the hundred rolls, which contain instances innumerable of tenants of mesne lords who owed suit and service in courts of hundred and shire. But we cannot afford yet to put this question aside. Had the knights been merely representatives of the lesser barons, their reappearance in the national council was not, as Hallam remarks, a very extensive inno- vation. The position and presence of mesne tenants in the county court is very strongly marked. In a writ for the collection of scutage, issued in 1235,^ we find mention of " omnes milites et lib ere tenentes qui de iis tenent per servitium fnilitare" where it seems as if these free tenants who held by military service were themselves entitled to the name of " milites," and were equally eligible with the tenants-ln-chief to be elected as knights of the shire. Moreover, the hundred rolls, to which allusion was made just now, tell us that these mesne tenants were often in possession of larger lands than the knights of the shire, and were, therefore, presumably of greater weight in the county. In the face of this ' Stubbs, " Select Charters," p. 364.
Parliament. 191
knowledge, it seems unreasonable to suppose that men of this rank would have been passed over. Again, proof positive is supplied us from the writs for electing to Parliament, in which the sheriffs are enjoined to send " dtws milites de discretwribus et ad laborandum potentioribus de comitatu" while by other writs the knights are to be chosen " in plena comitatii" and " deassensu ejusdem comitatus." ^ These expressions seem to admit of no such interpretation as the older constitutional writers would put on them. A final argument is found in the avowed policy of our kings to stamp out the influence which feudal theories exercised upon political life in the country. It is scarcely necessary to show proofs of this. From the Oath of Salisbury to the Dis- traint of Knighthood, our history is full of them. Was Edward I., of all people, we may ask, in the least likely, especially after the experiences of his father's reign, to stereotype the feudal method o' government? The English system of county administration was not the product of feudal insti- tutions. Before the representatives of counties ever were summoned to the national assembly, numberless elections had been held in the county courts, and these had been carried out in accord- ance with the particular constitutions of these » Stubbs, " Select Charters," pp. 477, 481, 486.
192 Parliament.
courts as they had descended intact from early
English times. It remains to trace the growth
of the knights into a distinct community, with a
repi esentation in the councils of the nation.
Growth Enough has been said to show that it is in
knights of their common representation by the knights
the shire qj- ^j^g shire, that the lesser landowners of the
into a '
separate country find their bond of cohesion. But it was
on the one hand necessary that these repre- sentatives should come together frequently, in order that they might learn the secret of united action against their enemies ; while on the other hand it required several summonses to give them a permanent place in the national assembly, and to reduce their representation along with that of the other estates to a recognized and accepted form. In 12 13 summonses were issued to the sheriff to bring four knights to a great council ; the assembly, however, is not known to have met We have already noted the circum- stances under which the knights were first sum- moned in 1254, as representatives from the shires. In 1 261, again, the barons summoned three knights to an assembly of their own. In 1265 Simon de Montfort summoned two knights from each shire to his celebrated Parliament. With the accession of Edward I. instances are multiplied. Both in 1273, and again in 1282, each shire sent
Parliament. 193
four knights ; but on the latter occasion they met at two separate places. This defect was remedied in 1283, when the knights were brought together on the same day and at the same place as the lords. In 1290 the knights were summoned, two months after the magnates, and then only to ratify what had been already done. In 1294 they met again with the tem- poral lords, but without the clergy ; and in 1295 they came with the rest of the estates to the Model Parliament
The second of the two factors which made up {2) The the composition of the third estate in Parliament "iv"^the was found in the representatives of the cities ^'"'S^' and boroughs. The history of their growth has been traced in a former essay up to the time when the most powerful of them were obtaining recognition of their corporate existence apart from the rest of the shire. But even those most completely equipped with machinery for self- government, maintained considerable connection with the organization of the shire. For instance, each borough still sent twelve burghers to repre- sent the community in the full assembly of the shire court which was summoned to meet the itinerant justices. It was under view of the sheriff that the great towns elected their own coroners, mayors, bailiffs, and constables, and managed
O
194 Parliament.
the rest of their machinery for carrying out the Assize of Arms, and the duties of Watch and Ward, while the sheriff also still led the military contingents which the towns supplied in accord- ance with the provisions of the Assize of Arms. Their The results of this continued connection with the
connection . . . i i ,
with (he shire court were most important, though they *• were perhaps rather of a negative than of a posi- tive nature, and are only apparent when a com- parison is instituted between the growth of our own constitution and that of any other mediaeval state. In the first place, this habit of merging themselves for certain purposes with the larger district out of which they had been carved, pre- vented the English towns from ever approaching to the position of the municipalities of France and Spain, namely powerful corporations acting on their own behalf, and forming a separate estate with interests and an organization of its own. Certainly at first there seemed no slight chance of their emulating their continental brethren, for both Simon de Montfort in 1265, and Ed- ward I. in 1283, recognized the boroughs as separate entities, in summoning their repre- sentatives by writs directed to the magistrates of each individual town. It seems almost by a lucky chance that the permanent writ was one which kept up the connection between county and town, by directing that the elections
Parliament. 195
of such representatives should be returned through the sheriff of the county. But a<?ain it was probably to the enhanced importance gfiven to the governing bodies of the towns by the summons of such representatives, that we owe the stunted condition of many of those bodies. At the time when they were first called on to send representatives, the towns were in all stages of corporate development In some few cases they were governed by a mayor and alder- men, but the more common government was through a borough court, often monopolized by the local merchant guild, or through a leet jury with a tendency to restricted membership. It was not till the fifteenth century that charters of incorporation began to be given to the towns, wherein was legalized the restricted franchise which probably had hitherto been the rule. For the present, as we shall have reason to see later, representation was regarded as a burden rather than a privilege, and the sheriff was often able to return his own nominees. The question natu- rally arises, Why were the towns summoned to Parliament at all, if their representation there was and continued for so long to be unreal? The answer must be found in two directions; partly in the importance of the towns them- selves, partly in the needs of the kings.
196 Parliament.
Reasons The larger towns of more advanced organiza- being sum- ^Jon had from time immemorial been treated as mo7ud. something above the mere villages or townships, as they were called, of the surrounding country. The burhs of the early English had boasted of an organization akin to that of the hundred ; while London, to whose position the lesser towns persistently aspired, was treated like a shire with sheriffs of its own. Moreover, in the dealings of the exchequer, the towns had long been treated as separate entities. In early days the sheriff of the county had often attempted to raise the whole of the sum for which he was responsible as ferm of the shire, by extorting it out of the burghers of some wealthy town. In self-defence, then, the towns had demanded this separate recognition, and though, as we have just seen, considerable connection with the shire organiza- tion remained, they had succeeded in expelling the sheriff from the presidency of their local courts. Now too that they were acquiring magistrates of their own, and seemed to be aspiring to the position of the French communa, it was a mere piece of wise policy on the part of the rulers to prevent them from taking up a position outside the national council. But, apart from motives of policy, there was the great and ever pressing question of money, which
Parliavien t. 1 97
finally determined the summons of the towns. They were the portion of the community whose wealth could be most immediately realized. All towns, no matter on whose demesne they were situated, paid a fixed contribution towards the ferm of the shire ; but the tallage, which was the chief tax to which they were liable, the king had to share with all his tenants-in-chief, since it was only from towns situated on his own demesne that he was able to exact it It was a remnant of the feudal and class principles of taxation, which in the midst of the break-up of feudalism, he was attempting to abolish. More- over the new method of taxation of moveables was far more lucrative than the old tallage. If however the king wished to make this new method a permanent reality, he must submit to its grant by the national assembly, in which body he must include representatives of the towns, as the people from whom the greatest amount of the new taxes would be levied.
The union of the representatives of the shires Common and the towns in Parliament is perhaps the ^th the most important fact in English history. It was fj"*^^'' ^ by no means of sudden growth. The represen- tatives of the boroughs were at first, at any rate, of an altogether different class to the knights of the shires ; of different education and seem-
1 98 Parliament.
ingly different interests ; unused to stand face to face with royalty or to act in a corporate body. Moreover, although the two bodies of knights and burgesses came together long before the reign of Edward III,, it was not until then that all possibility of their being severed came to an end, while there seemed every probability of the interposition between them of two other estates — those of the lawyers and the merchants — with a representation not local but profes- sional, whose strong professional interests would have cut the ground from under the feet of both knights and burgesses.
On the other hand, many causes operated to bring the two bodies together. Chief among these was the common representative character of both. True, the absolute number of the knights was fixed, while that of the burgesses for a long time fluctuated considerably ; but the individual members in both bodies were subject to the same law of change from one Parliament to the next, and such change would lead the individuals to seek strength in concerted action. Their interests, again, were different rather in degree than in kind. They were both based on local rather than on professional considerations, and in this respect were united in interest against the peers on the one side, and the lawyers and
Parliament. 199
the merchants on the other. But after all, the social difference between the two bodies lay rather in the past than in the present. The merchant of the towns often settled in the country, and took up his position as member of the shire court Alliance with his family was now a boon to be sought by the impoverished possessor of a portion of a knight's fee. Nor was the legislature behindhand in urging on the fusion of the two classes. Distraint of knight- hood came opportunely to smoothe away any distinction based on tenure which might remain ; while the rule of the constitution which sum- moned the burgesses through the sheriff and the machinery of the county court, drew closer the bonds which were knitting together the two portions of the third estate.
It has been maintained that the towns were Thtory first summoned to Parliament in order that the^^ ^^ king might the more easily exact the tallage ; ^^^^^'Jon to and that therefore it was only on the theory j«w/a/«w. of its being in ancient demesne of the crown that any town was called upon to send representatives to the national councils. This is the contention of those who, arguing from the analogy that the constituencies of the counties were limited to the tcnants-in-chief, urge the all-imp)ortance of tenure in determining early political relations.
200 Parliament.
The fluctuations in the number of borough re- presentatives may seem to show that sometimes, at any rate, this principle may have prevailed, and we actually find, in the writ for the collec- tion of an aid issued after the Model Parliament of 1295, the statement that '^ cum . . . cives, bur- gcnses et alii probi homines de dominicis nostris, civitatibus et burgis ejusdem regni septimam de omnibus bonis suis mobilibus . . . nobis curialiter concesserint et gratanter." ^ But, on the contrary, the writ of 1296 says that a similar grant has been made by "cives, burge?ises et alii probi homines de omnibus et singulis civitatibus et burgis nostri de quorumcunque tenuris aut libertatibus fuerint et de omnibus dominicis nostris," while even in 1295 the writ of summons issued to the towns makes no mention of demesne.^ After all, the writ for the collection of an aid, quoted above, was probably only an old form applied, without much definite meaning, to new circum- stances. But in addition to this evidence from writs, we have lists of the boroughs whose repre- sentatives were summoned. This supplies us with both positive and negative evidence, for we are able to gather the names of many boroughs which sent members, though they were not in ancient demesne ; while we miss the names of » Stubbs, " Select Charters," p. 486. * jbid.
Parliament. 20I
many which we know from elsewhere to have occupied that position towards the king.
A claim to extreme antiquity for the presence Groivth by representatives of the boroughs in the national to a share council has been based upon certain ambiguous J^^^, phrases of the chroniclers, and upon assertions advanced by the towns of St. Albans and Barn- staple, of certain pl^vileges which had originated with their connection from very early days with the central assembly. But the former are too indefinite to form the basis of any positive theory, while the claims of the latter have been proved to be false. It is possible that some of the richer tenants-in-burgage may have attended royal councils side by side with other freeholders, and in 12 13 we have a distinct assembly of representatives from towns on the demesne of the crown. The first definite instance, however, of a borough assembly for true parliamentary purposes is found in Simon de Montfort's sum- mons, in 1265, of the representatives of a number of separately enumerated towns through the magistrates of each. This example was not lost on Edward I. In 1273 four citizens came from every city, along with the other constituent elements of the national assembly, to take the oath of allegiance to Edward in his absence. In 1282 it was Edward's definite act which
202 Parliament,
gathered into council two men from every city, borough, and merchant town, summoned on this occasion through the sheriff. In the next year twenty-one boroughs were summoned by name, by writs addressed to the magistrates of each. This however was not for taxation, but to give a colour of national consent to the condemna- tion of the Welsh prince Oavid. Finally in 1295 came the perfected writ, which directed the sheriff of each county to cause the election of two members from each city and borough within his county. Thus was brought to its final form the assembly of the three estates, the Parliament of the nation. Develop- We have now traced how the Witenagemot of ^thTconsti- ^^ early English polity and the Great Council tutionand of the Norman and Angevin kings developed,
powers of
Pariia- undcr the influence of the principle of represen- '^ ' tation and the pressure of political necessity, into the perfected Parliament of 1295 ; and we have discussed the character and qualifications of the three estates of the realm there gathered together in the national representative assembly. The history of constitutional advance under the immediate successors of Edward I. falls prac- tically under two headings. The first deals with the consolidation of the form into which Edward had succeeded in moulding the heterogeneous
Parliament. 203
elements of which his Parliaments were com- posed. The second division will be concerned with the more important matters of govern- ment, in which the national element asserted its claim to a voice.
In dealing with the forms of Parliament as /. The we find them gradually fixed in the fourteenth •^^^. century, it will be convenient to give an account "'^^' of the summons of Parliament, of the election of its members, of the distribution of its elements as a deliberative body, and of the frequency of its meetings.
The summons of Parliament and the determi- (0 Sum- mons. nation as to the time and place of its meetmg
have in the law of the constitution always
belonged to the sovereign. Practically, in the
fourteenth century, it was decided in the King's
Council. Along with the development of the
means of national action, we find a similar
development in the machinery through which
the royal prerogative was in future to be
exercised. The initiation of all legislative
action rested in theory with the king, and the
financial and legal business to be laid before
the Parliament was prepared beforehand in the
Council.
The time and place of the assembly having
thus been fixed, the method by which the
204 Parliametit,
members were to be brought together had been practically settled by Magna Carta. The lords spiritual and temporal, and the judges and occasional councillors who attended, were summoned by special writs of one stereotyped form, with slight appropriate variations. For while the spiritual lords were called "cum cceteris praelatis, magnatibus et proceribus," the temporal lords came "cum praelatis et ccsteris magnatibus et proceribus," while the omission altogether of the word ceteris from the writs addressed to the judges excluded them from claiming a position as peers of Parliament
The general writs of summons which were directed to the sheriff to secure the attendance of members from the shires and boroughs, need only be commented on in so far as they speci- fied the class of persons who were to be chosen as representatives of the shires. The whole series of writs is well worth examination ; but here it is only necessary to notice that the variations in them seem to arise principally either from the dearth of knights, which neces- sitated the election of esquires ; or from the attempts of lawyers to use their election to Parliament as a means of furthering themselves in their profession ; or from the candidature of sheriffs and others who have some sinister
Parliament. 205
design which may be served by their presence in the national assembly.
The writs having been issued forty days in (2) -^^ advance of the period fixed on for the assem- bling of Parliament, time was thus allowed for the election of members for both shire and borough.
The former were elected in the monthly session of the county court, from which by the fourteenth century most persons of posi- tion in the shire had obtained the privilege of absence. The sheriff, therefore, had to issue a special summons for a parliamentary elec- tion ; and this fact practically placed the elec- tion in his hands, for either he could collect a body of his friends who would vote in accord- ance with his wishes, or by omitting to issue any summonses at all, he could return his two candidates unopposed. To this he was helped by the fact that representation was at first regarded as a burden, and there was consider- able difficulty in finding willing members. This evil was apparent at a very early date ; for in 1372 we find a statute which forbids the election of lawyers and the candidature of sheriffs, while in 1376 a petition is presented, praying that the knights might be chosen by common election from {de Us) the better folk of the shire, and not
2o6 Parliament.
merely nominated by the sheriff without due election.
Nor was the result very different in the case of the boroughs. Certainly their electoral assem- blies were more definitely fixed than those of the counties, and the elements were more per- manent ; but the final steps in the election of the members took place in the county court, their names were returned on the document which contained the names of the knights, and the towns were no more able than the counties to find persons willing to undertake the difficulties of a journey to Westminster. The sheriffs, there- fore, no doubt could, and probably often did return the borough members as well as those of the shire. In the ordinary method of pro- cedure however it is probable that the bailiffs or a customary deputation of burghers announced to the sheriff in the shire court the names of those who had been chosen in the assembly of their borough.
It has been noted above that both shire and borough members were difficult to find, and that the whole duty of representation was regarded as a burden rather than a privilege. (3) Pay- From the point of view of the electors, this ^l^eff unwillingness arose from the fact that wages "were paid to their representatives, at the rate
Parliament. 207
of four shillings a day to a knight, and two shillings a day to each of the borough members, both during the sitting of Parliament and for a specified time before and after. The repre- sentatives, on their side, were anxious to avoid the difficulties of travel and the neglect of private business which so long an absence entailed. Eventually the legislature had to provide that, by a process called manucaption, two sureties should be found who should make themselves responsible for the appearance of each member in Parliament
The attendance of members having been thus (4) Stpara* secured, the estates assembled, generally though Houses. by no means universally, at Westminster. It is possible that at first each estate sat by itself, while it is certain that each voted its own sup- plies in different proportions. Some time elapsed before the barons would merge themselves in the national assembly, or the knights of the shire discover that their interests were identical with those of the burghers. At what precise date the different estates finally arranged them- selves in two Houses is a matter of some dispute. Hallam is inclined to refer the divi- sion to 13 1 5, but it is not till 1332 that there is a distinct record of the separate session of the estates as they are at present constituted.
2o8 Parliament.
The time of separation may perhaps be gene- rally placed about the commencement of the (5) The reign of Edward III. The question naturally "fp^lia- arises, How often was the country called upon ment, ^q gend its representatives to Westminster ? We have seen that all representation was regarded as a burden, and no doubt the frequency of the summons accentuated this opinion ; for frequent Parliaments could in the eyes of the people mean little else than an increase of taxation. Patriotic statesmen, however, saw in the constant summons of the popular representatives a check upon the arbitrary power of the sovereign. The demand, therefore, for annual Parliaments is confined to times of political excitement, when it is generally obtained from the king. But when the excitement died away the burden was again felt, and transgression of the law became common. About 1344 the practice of granting supplies for two or three years in advance was begun, which obviated the necessity under which the king had hitherto lain, both actually as well as by law, of an annual assembly of the representatives of the nation. 6) Rela- It is interesting to notice that from the first
tions of the . , ,
two Houses 2l. distmction was considered to exist between ^^^ the functions of the two Houses. The writs of
Parliament. 209
summons directed to members of the first two estates define their function in the majority of cases as " tractaturi et consilium vestrum im- pensuri" — a mode of expression which seems to mark their theoretical position pre-eminently as counsellors of the crown. The knights and burghers, on the other hand, are to be elected " ad consentiendutn et faciendum " what has already been determined by the common counsel of the kingdom. The function of the commons is thus shown to consist in assent, as contrasted with the advice expected from the magnates. The laws, whether in the form of Saxon dooms, or of Norman and Plantagenet charters and assizes, had ever been enacted "with tlie counsel and consent'' of the central assembly. As the commons acquired a share in this assembly, the practice at first was to include them in the formula by which the assent of that assembly was expressed ; after 1 3 1 8 laws are enacted " by assent of the prelates^ earls, barons, and com- monalty of the realm" But as the commons secured a more definite position in relation to the other estates, another alteration takes place in this formula; after 1327 legislation is carried out " by assent of the prelates, earls, and barons at tlie request of the cotnmons." Finally, when we consider the order of growth and distri-
P
2 1 o Parliament.
bution of the various important attributes of a central representative assembly, we find that as soon as ever the two Houses begin to vote their money in a definite form, taxation is said to be granted "by tlie commons with the advice and assent of the lords" From the enu- meration of these facts two considerations seem to result ; first, that it was co-operation rather than advice which was regarded as the function of the commons ; and secondly, that the claim of the third estate to be consulted in financial matters was allowed before any part was assigned to it in legislation or in general political de- liberation. The second of these two conside- rations will be more apparent by a separate examination of the power actually exercised by the commons in each of these three matters, from the calling of the Model Parliament in 1295, to the death of Edward III. in 1377. And, as the most important power, we deal first with taxation. II. Growth The final form assumed by the national "f^^ council may be said to have been due to the
powers '
of the double cause of necessity and of policy; of necessity, because the classes which stood out- side the feudal status were acquiring a formidable (I) Taxa- power ; of policy, because the new forms of '*^- taxation begun by Henry H. produced more for
the royal exchequer than the old feudal methods.
Parliament. 211
Previous to 1295 the taxes were negotiated with each estate by a special commission issued from the exchequer. Since 1282, however, if not before, the coming change was manifest The failure in the amount of subsidies so negotiated had led to an increased frequency in the sum- mons of a national assembly, until it culmi- nated in 1295 in the complete and methodical representation of all the estates. Money was now granted by each estate, at first in different proportions and in different ways, until 1334, when the proportions were settled as one-tenth of all property from the boroughs and the clergy, and one-fifteenth from the counties, the exact amount payable by each township being at the same time permanently fixed ; but the method of separate negotiations with the several com- munities is now quite superseded. The result of this new method is seen in 1297, when a combination of circumstances, greatly resem- bling that which led to Magna Carta, placed Edward I. in the hands of the council of estates to which he had so lately given form, and the authority of which he had so soon attempted to overpower. Having been sum- moned for the express purpose of granting taxes to the king, their position would indeed be a mockery, were they to allow him, in the face
212 Parliament.
of their privilege, to levy contributions on the country at will. The great act of the Confir- matio Cartarum makes Edward say that "for no occasion henceforth will we take such manner of aids, tasks, or prises, but by the common assent of the realm and for the common profit thereof, saving the ancient aids and prises due and accustomed." This was, no doubt, an exten- sion to the national assembly of estates, of the power which in Magna Carta had been acknow- ledged to reside in the Great Council. But there were still loopholes through which the king could escape from being completely dependent for his supplies upon the goodwill of his people ; nor was it until each of these was in detail closed up, that the privilege of being the sole means by which money could be obtained definitely belonged to the representatives of the people. <a) Tall' The Confirmatio Cartarum had, in prohibiting ^^'' the taking of aids, tasks, and prises without
consent of Parliament, in no way interfered with the right which the king possessed in his capacity of landlord, of taking tallage from the towns in his demesne ; for the levy of that tax had never been dependent on a grant from the Great Council, Now, however, that the feudal methods were dying out and that the towns were repre- sented in Parliament, there was no object in
Parliament. 213
maintaining the right. Yet, as if to preserve it, each of the Edwards once during his reign issued orders for the collection of a tallage — in 1304, 13 12, and 1332. It was not likely that, as the commons felt their strength, they would permit the continuance of this anomaly. In 1340 the statute of that year decreed that no aid or charge should henceforth be made but by common assent of the various estates in Parliament This statute is a supplement to the Confirmatio, and was intended to include every kind of tax that was not authorized by the assembly of the nation.
The customs demand a slightly more detailed ()8) Cus- treatment The privilege of licensing trade had ^'^^ ever been held to belong to the king, as the representative of the nation in all external dealings, and as the judge between man and man. In return for this permission it had been the royal custom, previous to 1275, to deal with each of the chief commodities of trade in the country in a slightly different manner. The wine had been subject to " prisagc," or the right of the king's servants to take from each wine- ship, on coming into harbour, a toll at the rate of one cask from every ship containing between ten and twenty ; and two casks, but no more, if the number rose above twenty.
2 14 Parliament.
The wool was generally seized at the port until a payment in the shape of a ransom had been exacted, while of the general merchandise a proportion was levied as a kind of toll or licence to trade. In 1275 these arbitrary methods of dealing with the trade of the country, which was now growing to some importance, were supplanted by a definite parliamentary grant of fixed tolls, which is known as the Antiqua or Magna Custuma. The king's officers were allowed to levy at the ports, from merchandise going out of the country, half a mark on every sack of wool, and on every bale of three hun- dred fleeces, or woolfels, as they were called ; and a mark for the export of each last of leather. These would fall naturally on the foreign merchants, and would not interfere with the internal trade. In 1 303, however, the king began his surreptitious dealings with the foreign merchants, and by the Carta Mercatoria obtained an increase of these customs on exports of wool besides a fixed rate on other commodities, in- cluding wine, to the amount of fifty per cent. These duties, which were known as the Parva et Nova Custuma, were not, strictly speaking, a breach of the Confirmatio, for they had been negotiated with foreigners who had nothing to do with the grant of that document. The
Parliament. 21$
lords ordainers in 131 1 made short work with these increased customs, but they were re- stored by Edward II. on his recovery of power in 1322, were confirmed on Edward III.'s ac- accession, after which time they became part of the ordinary revenue of the crown, and were transformed into a parliamentary grant by the Statute of Staples in 1353.
But this had little effect upon Edward III.'s financial dealings. The institution of staples, which restricted the sale of wool to certain towns in which it was collected, had been begun by Edward I., and had made it very easy to tamper with that important article of commerce. The Statute of Staples merely fixed the number of the staple towns, and placed the whole system on a more permanent footing It was the enthusiasm roused by the French war that enabled Edward III. thus to transgress the Confirmatio, and to tax the country by secret negotiations with the merchants without going to Parliament at all. The commons pursued a policy of considerable skill. At their next session they generally authorized the exac- tion which had been made without their assent, judging that, if the right of granting the subsidy now passed unquestioned, their demand to with- draw the grant could not well be resisted when
2 1 6 Parliament.
the opportunity for so doing presented itself. The king, on the other hand, was content with the momentary advantage which he gained from the possession of the money. The commons had not long to wait. We have already noticed the statute of 1340, which was aimed at pro- hibiting the levy of any taxation unauthorized by the estates. This, however, proved in- sufficient ; the Statute of Staples rendered it increasingly easy for the king to meddle with the wool and necessitated a final declaration of the parliamentary position in the statute of 1 362, confirmed in 1371, to the effect that neither merchants nor any other body should henceforth set any subsidy or charge upon wool without consent of Parliament The desired result seems to have been at length attained, and the king ceased to tamper with the chief article of English commerce.
Hitherto we have been dealing with the customs levied on the export trade. The foreign merchants were comparatively easy to deal with, because they were in the special protection of the king. But the English merchants as a body might also be disposed to come to terms. The import trade was large both in wine . and in general merchandise. In 1308 Edward II. per- suaded a number of merchants to compound
Parliament. '217
for the royal right of prisage by paying a definite duty of two shillings on every tun of wine which they brought into the country. No further step was taken in this direction until 1347, when, during Edward III.'s absence in France, the council, under his son Lionel of Antwerp, agreed with the English merchants that they should pay a duty of two shillings on every tun of wine, and sixpence on every pound of general merchandise. With this irregular exaction Parliament dealt as with all others. In 1373 it was formally granted for two years, and thenceforth became a regular portion of the royal income under the name of tunnage and poundage.
Besides these exactions, there were other (7) ■ft"'-
r ' , , . »T^, veyance.
means of oppression open to the kmg. The first of these consisted in purveyance, or the right of the king, in the journeys of his court through the country, to the use of his subjects' goods. This had been a right from time im- memorial, but the size, extravagance, and ubiquity of the court of Edward III. rendered it peculiarly burdensome in his reign. Despite numerous legislative enactments, this abuse re- mained unchecked until 1362, when it was by statute abolished, except for the personal wants of the king and queen.
2i8 Parliament
(8) Pay- In commissions of array, the principle of pur-
tnentfor , , , e
soldiers^ veyance was extended to the purposes of war.
^^^ Despite the provisions of the assize of arms and the statute of Winchester, Edward II. and Edward III. took forced levies of soldiers out- side their counties, and then compelled the counties and townships to pay the wages of these troops. Again statutes were of little avail until 1352, when it was enacted that it was only by grant of Parliament that any one, who was not bound to do so from obligations of his tenure, should be compelled to furnish armed men to the king. A confirmation of this statute was secured in 1404.
There were, however, some sources of royal revenue over which the commons did not so easily succeed in obtaining control. Such were the three customary feudal aids, of which the two most frequently called for — that for the knighthood of the son and the marriage of the daughter — were subjects of discussion until the time of the Tudors. Moreover, the king had a great reserve fund in the Italian bankers, who on the banishment of the Jews in 1290 had become the chief creditors of the crown. Nor was he ashamed to put himself under obliga- tions to foreign princes or to the pope, nor even to beg in his needs for such aid as the prelates,
Parliatnent. 2 1 9
the monasteries, and other corporate bodies were disposed to accord^him. And, lastly, the votes of the clerical tenth scarcely came under the Confirmatio. As long as the king chose to regard the clerical grants as free gifts, it was impossible for the commons to interfere.
In matters of legislation the chief authority (2) Z<^v. lies with that portion of the community which exercises the right of initiating measures. In early times alterations of the law are a for- midable matter, so that though we find almost all modifications of existing legislation previous to Edward II. initiated by the king or his council, the king at the same time had the power of issuing ordinances which were in theory temporary explanations of the law as it stood. Hence, though we may distinguish between a statute and an ordinance by saying that the former necessitated the concurrence of the three estates for its enactment or abrogation, whereas the latter was issued by the king through his council, yet in actual fact we find the two to have often been confused As late as 1 290 the commons were considered as having no part or lot in legislative measures ; for the statute of Quia Emptores was passed by the magnates in that year before the commons were summoned to assemble. But as the third estate obtained in-
220 Parliament.
creasing recognition as a portion of the national assembly, this position must necessarily alter. The right of petition had ever belonged to the commons, whether individually or assembled in their local courts. The exercise of such right would come with redoubled meaning when it was enforced by a whole estate of the realm. Moreover, the acknowledgment of their collateral right of voting all supplies was a weapon in the hands of the commons of which they would not be long before they availed themselves. The acknowledgment of Edward II., in 1322, that "matters to be established touching the estate of the king and his heirs, the realm and the people, shall be treated, accorded, and established in parliaments by the king, and by the assent of the prelate, earls, and barons, and the com- monalty of the realm," though a little prema- ture, expressed the goal towards which the constitution was tending. But there were two stages to be reached before the power of the commons in legislative affairs w£is recognized in its entirety. It was necessary, in the first place, that they should make their money sup- plies depend on the redress of their grievances, or at any rate on the obtaining of answers to their petitions. It was further necessary that they should ensure that the statute which resulted
Parliament. 221
should be a direct answer to the petition which it was supposed to embody. The first stage was reached when the commons adopted the method of putting off their vote of supplies until the last day of the session. Of this the first occasion is in 1339. The second stage was not reached until late in the reign of Henry VI., when the form of bill was substituted for that of petition.
The right of deliberation and assent in matters (3) Ad- of general political concern had ever been an^^"'^"' acknowledged attribute of the national council ; but not such as required the presence of the greater portion of that body for its due recog- nition. The principle enunciated by Edward I. in 1295, that "what touches all shall be approved of all," would seem to include this right also for the successors of the feudal gathering of tenants- in-chief. In the Parliaments both of 1301, the celebrated Parliament of Lincoln, and in that of 1309, we find the commons taking an active part in the presentation of a list of grievances which included matters of general welfare. It is, however, to the wars of Edward III. that we can refer the first definite recognition of the commons' rights in this respect. With the object of gaining support for his wars, Edward pursued the policy of keeping the nation in
223 Parliament.
good humour with his schemes, by constantly consulting their representatives. By this means he hoped to find a way through their hearts to their purses. But the commons preferred that the sole responsibility for these unknown dangers should remain with the king, and steadily refused to express any opinion in the matter of the war, though they readily welcomed peace when it was offered them. In judicial matters, again, though they never assumed the position of a court of law, they made no scruple of complaining of the manner in which jus- tice was administered. Petitions were frequent against the sale of writs in chancery, against the judicial functions usurped by the royal council, against the delay of justice, the interposition of great lords on behalf of suitors, and many other similar iniquities. The right of impeachment was the one judicial right which was claimed and made good. The proceedings of the last year but one in Edward III.'s reign, when the Good Parliament, as prosecutors, arraigned the king's ministers before the lords, mark the beginning of an important epoch in the struggle between the royal ministers and the represen- tatives of the people.
Thus far has been traced the formation of the Parliament of the three estates, and the
Parliament. 223
entrance of the commons on their career of victory. Their most important privileges have been asserted and won ; the acquisition of others, necessary to the existence of a vigorous national rule, but subordinate to those which have been thus hastily sketched, is a mere question of time. It will be the object of the succeeding essay to show how the powers thus snatched as it were by accident from the crown, grow and develope into well-ascertained and clearly defined constitutional rights.
ESSAY V.
CONSTITUTIONAL KINGSHIP.
Relations The thirteenth century saw the foundation of crmtmand ^^ parliamentary constitution ; the fourteenth ^^^''^''^' century is marked by the development of the of the four- rights of the House of Commons. The full
teenth ceil' . . ... ...
tury. extent of the constitutional growth, due in great measure to the necessities of Edward III., is very clearly illustrated by the proceedings of the Good Parliament The weakness of Richard IL enabled the estates to follow up their advantage, and secure fresh precedents on behalf of repre- sentative government. But satisfactory relations between the Parliament and the monarch were by no means established in the fourteenth cen- tury. Side by side with the constitutional development, the royal prerogative grew. "The history of the national growth is thus inseparable from the history of the royal prerogative." Had
Constitutional Kingship, 225
Richard II. been a man like Edward I., or even like Edward III., a collision might have been by mutual concessions, averted. Richard's ill- Therevo- advised and premature attempt to formulate the ,^^ "^ principles on which Edward III. had acted, and to establish an absolute government, was doomed to failure. His temporary success showed how fragile were the supports upon which the consti- tution, as yet barely a hundred years old, rested. His alienation from all the political classes by his arbitrary acts, and by the suspicion of his sympathy with the objects aimed at by the vil- leins and the Lollards, enabled Henry of Lan- caster to come forward as the representative of the widespread discontent. Having secured a leader, the Parliament, supported by the Church, deposed Richard and chose Henry king. A great constitutional revolution had taken place ; the nation had deposed one king and had ac- quiesced in the accession'of another. In doing so, Parliament on the one hand ensured con- stitutional progress, on the other hand imposed a definite check on the hopes of the villeins, and the more revolutionary schemes of the Lollards. The threatened destruction of the constitution was averted by the accession of Henry of Lancaster, and the postponement of questions "between the labouring and propertied
Q
226 Constitutional Kingship.
classes,"^ as well as of questions between the
Church and the nation, to a time when the last
struggles of a lawless aristocracy had died away,
was certainly a happy thing for England.
Compart- The succcssful termination of the revolution
'revolutions^^ I399> ^^^^ that of 1688, not only enabled the
^399 nation to confirm to a great extent the rights
already won, but proved a guarantee of further
progress. Both Henry IV. and William III.
came to the throne with a parliamentary title.
For some sixty years after each revolution the
influence of the aristocracy predominated in the
country. Edward IV. and George III., under
vastly different circumstances, and with means
very dissimilar, succeeded in establishing, each
in accordance with the ideas of the times, a strong
personal government
Therevo- Under Edward IV. and the Tudors, it became
"xqamces- possible to Carry out the objects which Richard
^'^P* , II. had aimed at at least half a century too soon.
though
premature. At the end of the fourteenth century the baron- age was all-powerful, the Church aristocratic and strong, the commons accustomed to look to the nobles rather than to the king for political guid- ance. England required a firm rule administered by kings, willing like the Tudors in after-times,
^ " Introduction to English History," by S. R. Gardiner and J. Bass Mullinger, p. 93.
Constitutional Kingship. 227
to respect the externals of the constitution, to allow development in accordance with the wish of the people as expressed in Parliament, but at the same time able to repress disorder at home and to give England peace abroad.
The Lancastrian rule, though promising in its opening years, was on the whole a constitutional disappointment. The foreign policy of Henry V., and the weakness of Henry VI., gave an oppor- tunity to the great lords to illustrate their selfish- ness, their personal rivalries, their overgrown power, and the ever-increasing divergence be- tween their interests and those of the rest of the people. During the latter half of Henry VI.'s reign anarchy spread over a great part of the country. The political education of the English nation was not sufficiently advanced to enable it to carry out a system of self-government, nor strong enough to control the insubordination of the aristocratic elements of society. This insub- ordination culminates in the Wars of the Roses, which brought about the downfall of a dynasty personally incapable of giving to the nation the order and good administration it demanded.
The Tudor government gave to the body of the people protection of life and property, a firm administration of justice, and a foreign policy eminently popular. Above all, the House of
228 Constitutional Kingship.
Commons was able quietly to strengthen itself against the time when the question between Par- liament and the royal prerogative, prematurely raised under Richard IL, was fought out and decided in the seventeenth century. The real Henry of Lancaster came forward as the
meaning of ^ r i • • i , i • r
theacces- Opponent of those prmciples the adoption of ^Henniv. ^^^^^ ^^^ cost Richard his throne ; as the sup- porter of the claims of Parliament to rights asserted during the fourteenth century. Parlia- mentary authority had for the time triumphed over royal prerogative, and the Lancastrians endeavoured, during the first half of the fifteenth century, to govern England as a constitutional kingdom. Till 1447 the rule of the Lancastrians is strictly in accordance with the declaration of Archbishop Arundel in the first Parliament of Henry IV., that the king would be governed by " common advice, counsel, and consent ; " and from 1447 till the outbreak of the civil war the government was rather weak than uncon- stitutional. The rule of the Lancastrians was in many ways important in the history of Parliament. The working of constitutional government was improved ; both Houses assert and secure valuable privileges ; the House of Lords is consolidated ; statutes are passed regulating the qualification of electors and of
Constitutional Kingship. 229
members of the House of Commons. Parlia- ment is more busied with enforcing rights claimed from the crown in the previous century than in gaining new ones, and though many of these rights are little heard of during Yorkist and Tudor times, they formed important pre- cedents for the leaders of the parliamentary opposition to the Stewarts. Hence, though it is true that the fifteenth century is not a period of constitutional development ; yet under the Lancastrian kings rights previously acquired were firmly established, and placed on too secure a foundation ever to be in danger of being again successfully attacked.
In the attempt of the Lancastrians to govern England constitutionally, in the . results of that attempt upon Parliament, and in the causes of its failure, the history of mediaeval constitu- tionalism is comprised.
With the accession of Henry IV., " the experi- /. The at- ment of governing England constitutionally tHe jLan- seemed likely to be fairly tried." The events ''^"'''"
' ' to goverti
of Richard's reign had clearly demonstrated, England not only the selfishness and faithlessness of the tionaUy. nobles, but also the very insecure foundations on which the power of the House of Commons rested, its dependence on leaders, and its power- lessness when, deprived of those leaders, it was
230 Constitutional Kingship.
brought face to face with a determined king. And it may seem surprising to find this House of Commons, a few years after the revolution of I399> ii^ ^^ improved position, exercising great influence on the government of the country -^an influence which to some extent it main- tained in the reign of Henry VI., when the aristocracy held the predominating power. Had Henry IV. succeeded with an unquestioned title ; had his exchequer not been exhausted ; had he enjoyed good health, and been free from rebel- lions at home and dangers from abroad ; had Henry VI. come to the throne a full-grown man, with the capacity of his father or grandfather the constitutional position of the House of Com- mons would not have been such a prominent feature in the history of Henry IV.'s reign, and the power of the lords would have been restricted within due limits under Henry VI. TheLan- The Lancastrian scheme of government was
castrian
scheme to rule the country m alliance with Parliament, Z.^"^' and to make Parliament the direct instrument of government. In the adoption of this pro- gramme by Henrj' IV., and the adherence to it by his son and grandson, we see no mere reaction against the claim of Richard to an unlimited prerogative. The period is one "in which political liberty, at any rate in theory,
vtent.
Constitutional Kingship. 231
reached its highest point during the Middle Ages ; " * and the Lancastrian scheme was a definite attempt to put into practice a view of the English constitution which implied a belief that the English people were in an advanced stage of political development
As a matter of fact, liberties were given to the nation which, as events showed, it was unable to appreciate or to use. Nevertheless, the effort of the Lancastrians was honest well meant, and, till the period of civil war, faithfully adhered to. Throughout the whole Position of period no attempt is made to impose taxes ,„ J^cmrd'- without Parliament, no sign is given of a wish °^' "^^ to return to the unconstitutional position o{ scheme. Richard II. Great freedom of deliberation is enjoyed by both Houses. The commons interfere with all parts of the administration ; they are consulted on matters connected with both home and foreign affairs. These illustra- tions are sufficient to show how close was the alliance between the Lancastrians and Parlia- ment We will now proceed to consider how that alliance was brought about
In the early days of the fifteenth century H<nv the Parliament was by no means looked upon as^^^^^^
* Fortescue, "The Governance of England." Intro- duction by C. Plummer, p. 3.
232 Constitutional Kingship.
eroram and the great Controlling power in the state. A ameabout. Strong executive had been necessary during the whole of the fourteenth century, and the execu- tive work had been done either by the kings with the aid of their council, or by the council during the minority or weakness of a king. The royal This royal council was a most powerful engine, and, till the accession of Richard II., was re- garded with jealousy and suspicion by Parlia- ment. Its origin may be traced to the reign of Henry II. ; it was brought into great prominence during the minority of Henry III. It became in the thirteenth century a permanent council, and its position was further defined by Edward I. Subordinate to the king, exercising with the king executive functions, besides wielding exten- sive appellate and judicial powers, it naturally incurred the jealousy of the Great Parliamentary Councils of Henry III., and of the Parliaments of the fourteenth century. Attempts were made by Parliament at one time to secure the nomina- tion of councillors, at another time to restrain the authority of the council. From its wide, indefinite, though salutary judicial powers, was formulated Court of in Edward III.'s reign the Court of Chancery, Chancery. ^j^Qgg equitable jurisdiction was permanently established under Richard II. As the interests of the civil jurisdiction of the council and the
Constitutional Kingship. 233
Court of Chancery were identical ; the frequent opposition of the commons, from Edward III.'s reign to that of Henry VI., was directed against the judicial powers of both bodies. With the accession of Richard II., the Privy Council, as The Privy it was then called, entered upon a new period „^2^ of its history. It was obvious that as Parlia- ^y^f^ ment grew stronger, frequent collisions would take place between the legislative body and a council exercising large and undefined executive powers and responsible only to the king.
The council itself took advantage of the minority and the indolence of Richard II., in- creased "its functions and grew more powerful; while Parliament endeavoured, at times with success, to control the nomination of the mem- bers of the council, who are now appointed annu- ally, bound by special oath, and receive fixed salaries. Instead of being "subordinate to, it has become a power rather co-ordinate with the king," and tended to control the prerogative. If Richard had been successful in establishing a despotism, the council would have occupied a position such as it held under the Tudors — "feeble against the crown, as it was mighty against every one else."^ His failure brought forward again questions which had been pressing » " The Privy Council," by A. V. Dicey, p, 23.
nve.
234 Constitutional Kingship.
The revo- for solution throughout the century : How were xv^both ^^^ powers of king and Parliament to be recon- conserva- ciled ? how werc the relations of council and
tive and
progres- Parliament to be settled ? The accession of Henry IV. brought with it an answer to these questions. He had inherited and had already acted upon the principles attributed to Thomas of Lancaster. Limitation of the royal power by a council, patronage of the clergy and the com- mons,— these were the principles on which the house of Lancaster had risen. He thus continued the best features of the baronial policy of the thirteenth and fourteenth centuries.
The events of 1399 only confirmed him in this popular attitude. His title was weak, the crown revenues were insufficient ; he had come to the throne as the advocate of constitutional prin- ciples, the champion of the nation against the policy of Richard H., who had not only roused the fears of the propertied classes, but had threatened the growing powers of Parliament itself. A common impulse united all the poli- tical classes in opposition to the insupportable tyranny of Richard. The revolution gave the throne to a dynasty bound by its traditions, by the very circumstances of the revolution, to re- verse the policy of Richard, to adopt repressive measures against the Lollards, whose opinions
Constitutional Kingship. 235
were at that epoch political and destructive rather than religious and reforming, and at the same time to govern on constitutional principles. The temporary union of nobles, clergy, and com- mons, brought about by the exigencies of the moment, soon broke up after the accession of Henry. His financial necessities, the frequent rebellions of a powerful section of the baronage, the continual danger from France during the early years of his reig^, and his broken health in the later years, all tended to compel him to rely upon the support of the clergy and the Parliament A policy of persecution was directed against the Lollards, who threatened the posses- sions rather than the doctrines of the Church. Parliament, and especially the Lower House, was Parlia- completely won over by Henry's honest attempt ^^j '^^ to settle definitely the relations between the ''"■'^' "'•
^ strutmnt
executive and legislative organs. As long as ofgovtrn- jealousy existed between the Parliament and the council, the working of constitutional govern- ment was rendered impossible. By making the executive organ, the council, work harmoniously with the legislative organ, the Parliament, i.e, by suffering Parliament to influence the appoint- ment of members of the council, and by thus eliminating all jealousy between these two bodies, the Lancastrians were enabled to allow Parlia-
236 Constitutional Kingship.
ment to become the direct instrument of govern- ment. From 1404 to 1437 this plan is carried out. Councillors are appointed for the most part agreeable to the commons, and subject to the supervision and wishes of Parliament. This period is most distinctly the period of mediaeval constitutionalism. Relations During the reigns of Henry IV. and Henry V., the Privy ^^^ number of commoners in the Privy Council Council ^^ considerable. In 1404 Henry, at the
and far- ^ ^ •' '
liament request of the commons, nominated a council Henry IV. of tweuty-two, which included seven com- and Henry njoncrs. In 1406 wc have, perhaps, the best illustration of the relations existing between king and Parliament in Lancastrian times. In that year, at the suggestion of the commons, the king nominated a fresh council of seventeen, which included three commoners. These coun- cillors were compelled to swear to obey thirty- one articles, which regulated their powers and duties. The king was to be guided entirely by the advice of this council, which was itself controlled by Parliament. A vote of confidence in the council, passed by the commons in the same year, shows the importance attached by Parliament to the maintenance of its control over the council. Henry continues the same policy in 1410; and during the later years
Constitutional Kingship. 237
of his reign the council, nominated according to the wishes of Parliament, governed England. Henry V., though in a stronger position than his father, continued his father's policy. Lol- lardy is put down. The nobles, ever ready to quarrel with king or commons, found vent in the French war for their constant uneasiness. Henry's success abroad and his admirable rela- tions with his Parliament at home, which implied a corresponding confidence between Parliament and the council, enabled the trial of a great con- stitutional experiment to be continued for some thirty years.
With the long minority of Henry VI. the Under Privy Council attained to the height of its ^'""^ ^^' power in the Middle Ages. During this minority the English nation had a real opportunity of testing its own fitness for self-government Till 1437 the members of the council were nomi- nated in Parliament, and consequently the council possessed the full confidence of Parlia- ment It acted not only in its ordinary capacity, but also as a council of regency exercising all the functions of sovereignty. The harmony existing between it and Parliament is proved by the enormous powers wielded by the council. Its work was prodigious. To it was entrusted financial business, considerable
238 Coyistitutional Kingship.
legislative and taxative powers, and the manage- ment of trade. Its judicial authority was no longer regarded by Parliament with suspicion. Even ecclesiastical and police matters came under its notice. It was responsible for the administration of justice and the preservation of order at a time when the public peace was continually broken, and local disorder often threatened to assume the proportions of private war. The council can then at this period be regarded as a political, a legislative, a judicial, and an administrative body.
During the minority of Henry's reign — a critical and, financially speaking, a most em- barrassing time — the council was mainly com- posed of lords ; and the government of the country by the council well illustrates "the capacity of the nobility for rule." ^ The Great When a decision was required on some knotty question for which the Privy Council refused to be responsible, a Great Council was called. These Great Councils, summoned frequently by the Lancastrian kings, usually consisted of a number of nobles and knights who were not ol the Privy Council. " They may be regarded," says Dr. Stubbs, ** either as extra-parliamentary
^ Gneist, " History of the English Constitution " (Trans- lation), ii. p. 74.
Constitutional Kingship. 239
sessions of the House of Lords, or as enlarged meetings of the royal council."
The resumption of personal government by Henry in 1437 marks the time when the Lancastrian scheme of making Parliament the direct instrument of government begins to break down. In 1437 the king, perhaps with the advice of Cardinal Beaufort, began to nominate members of the Privy Council absolutely. The council ceased to be in subordination to Parlia- Parlia- ment, and henceforth becomes gradually the to control creature of the king and his party, and is found ^q'J^^ often in opposition to Parliament. Instead of Parliament controlling the council, the council, through its influence on the elections, tends to control Parliament Though Henry continued to retain a considerable hold on Parliament from 1437, and in a greater degree from 1447, when Beaufort died, he relied less and less on Parlia- ment, and more and more on his council. In 1450, in the dispute between Somerset and York, the court and council supported the former, the commons the latter.
Parliament, in these later years of Henry VI.'s reign, was weak, while the council, mainly com- posed of the king's friends, was strong. The attempt of the nation at self-government had failed, with the cessation of parliamentary
240 Constitutional Kingship.
control over the council. That body begins to take up the position it held under the Tudors, when, dependent on the king and independent of all other influences, it governed the country. To this council, rather than to Parliament, the nation at the end of the fifteenth century looked for the enforcement of order and good govern- ment^ II. The The effort of the Lancastrians to make Parlia- Pariia- Hicnt the direct instrument of government had, lu^^^it^f ^ rnight be expected, no unimportant results the Lan- on the parliamentary constitution itself The
castrians
to govern ccntury, however, does not see new rights comtitu- acquired so much as old claims reasserted and tionally. made good, tendencies already at work continued
and hardened. The House During the fourteenth century the hereditary '^ ' ^' character of the House of Lords had been steadily gaining ground. The first instance of a barony being created by letters patent occurs in the reign of Richard II., though earl- doms had been created before by charter and even by patent, and were always hereditary. The constitutional position of the Lancastrians prevented them from regarding the House of
* On the subject of the Privy Council, the reader should consult Mr. Plummer's admirable notes to Fortescue's " Governance of England."
Constitutional Kingship. 241
Lords as an assembly the personnel of which de- pended on their own authority. Hence, though this is in effect done long before, the hereditary right of the peers to a summons to Parliament was acknowledged, and the House of Lords became a small compact body in which the spiritual element predominated.
With considerable judicial powers, the House of Lords had the advantage of a continuous existence. Its members formed the majority in the Privy Council, and in their attendance at the Great Councils summoned to assist the Privy Council with advice "it is probable that the theory which gives to all the peers of the realm the right of approaching the king was reduced to practice." In spite of the capacity of the nobles to rule, and the influence they exercised over the commons during the first decades of the century, their family jealousies and selfish factiousness, by bringing about the Wars of the Roses, threw the whole political organization into confusion, destroyed the utility of the mediaeval peerage, and left to another line of kings the task of reconstructing the House of Lords out of fresh materials.
It is in the position and powers of the House The ffwe of Commons that we can find greater attempts "Jno^T at expansion, though these attempts do not
R
242 Constitutional Kingship.
result in much more than the recognition of the House of Commons as a coequal part of the legislature. During the fourteenth century the progress of Parliament had been rapid. Since the middle of the reign of Edward III. the two Houses had definitely ceased to sit together. The events of that and the following reign had enabled the commons to take a leading part in gaining important rights in matters of legisla- tion, administration, and taxation, and by the end of the century they were recognized as holding a position of " legal equality " ^ with the lords. Though the commons had in the reign of Edward HI. acted to a great extent inde- pendently of the nobles, their position was by no means very secure. This helplessness, when deserted by the nobles and confronted by a strong-willed king, determined to use the great influence of the crown upon the elections, was clearly illustrated in the reign of Richard H. Henry IV's. policy, however, was to strengthen Parliament, and especially the Lower House, in order to secure its support. In his reign and in that of his successor, the commons claim im- portant rights, and take up a position not again held till the seventeenth century. To quote Dr.
* Fortescue, "The Governance of England." Intro- duction by C. Plummer, p. 14.
Constitutional Kingship. 243
Stubbs, * Never before and never again for more than two hundred years were the commons so strong as they were under Henry IV."
In 1401, taking advantage of the financial needs of the king, they demand that redress shall precede supply. In 1404, on their request, a sum of money was appropriated to the defence of England, and the royal household was attacked. In the same year they claim the right of freedom from arrest In 1406 they gain the right of having the royal accounts audited, and in 1407 that of originating money grants. In 1406 and 1410 two important acts were passed, to regulate the county elections, and to check the undue influence of the crown, the great lords, and the sheriff on the choice of representatives for the House of Commons. In Henry V.'s reign the commons still further regulated the county and borough elections, and in 1414 secured a "great constitutional boon," by gaining the assent of the king to their petition, that from henceforth " statutes be made without altering the words of the petitions on which they are based." From 1407 their right to deliberate on all matters of public interest was recognized. The instances of matters of domestic policy being treated by them are numerous. In Henry IV.'s reign they interfered
244 Constitutional Kingship.
with all parts of the administration. Questions connected with foreign policy were frequently brought before them and discussed. Henry V. laid before the commons, as well as the lords, his negotiations with the Emperor Sigismund in 1416. In 1445 Suffolk recounted his services to both Houses. Early in Henry V.'s reign the commons urged the king to labour for the closing of the great schism. In 1425 the three estates forbade the Duke of Gloucester to make war on Burgundy. From the accession of Henry VI. the commons gradually ceased to exercise so predominant an influence on the government of the country as they had done in the reign of Henry IV. The appoint- ment of a council in Parliament to carry on the government during the king's minority ; the ever-increasing influence of the great lords both in the council as well as in the elections ; the nomination by the king, after 1437, of the members of the council, all tended to relegate the commons to a position less prominent than that which they had held in the earlier years of the century. Nevertheless to some extent they maintain, till the beginning of the troubles which were to end in civil war, that importance which they had inherited, and continue to take no small part in the affairs of the country.
Constitutional Kingship. 245
In 1429 they are allowed to have freedom Privilege from arrest, though this right is not established ment. by statute, and in 1433 they obtain definite recognition of the right to immunity from molestation for " members of either house coming to Parliament or council by the king's command." In 1430 an act was passed re- stricting the right to vote in county elections to the forty-shilling freeholders, and in 1433 and 1446 other regulations were made in the same definitive spirit
In this reign, too, the commons began to introduce the practice of legislating by bills in place of petitions. We also find them dezding with matters of general interest In 1426 they urge that Beaufort and Gloucester should be reconciled ; in 1432, by a petition, they secure Beaufort from the risks of praimunire ; in 1433 they ask for the issue of a " proclamation for the suppression of riotous assemblies ; " in 1450 they impeach Suffolk.
Jack Cade's rebellion in 1450 illustrates the Home of helplessness of the government Suffolk's im- f^'^ZToii peachment, though constitutional in form, was ^*^*^'**^''^» rather the first act in the drama of the quarrel between York and Lancaster, than a legitimate step in the history of the growth of the House of Commons. The way in which it was evaded
246 Constitutional Kingship.
shows the helplessness of king and council in the face of an opposition backed by public opinion, and based on the great family interest of York.
Already " the Parliaments were too imperfect and too one-sided to be regarded as fair tribunals." The towns throughout the country were very inadequately represented, and that, coupled with the fact that the knights of the shire were falling under the influence of the great lords, tended to make the House of Commons very oligarchical. The Duke of York, at the close of 1450, is able, like Richard II., to influence the elections, and secure a House of Commons favourable to himself, and opposed to the court and council. In 145 1 freedom of speech is violated, at the instance of the king, by the imprisonment of Thomas Young, a member of the Lower House, who had brought forward a motion declaring the Duke of York heir to the throne. In 1453 the duke himself violates the right of the commons to freedom from arrest by imprisoning Speaker Thorpe, a Lancastrian and an enemy. A few months later the first battle of St. Alban's was fought, the Wars of the Roses had begun, and parlia- mentary independence disappears.
The willingness of the Lancastrians to rule
Constitutional Kings/tip. 247
constitutionally had a decidedly beneficent (and Summary permanent) effect upon the advance of the//^„^^' power of Parliament, and even in the reijni oi^°^'°f
^ ' ° Commons.
Henry VI. we have seen that the commons to a great extent maintained their position.
Though at first sight it might seem, from the definitive statute of 1430, and from the loss of all independence of the Parliaments which sat during the later and more troubled years of Henry VI., that things went back ; it is nevertheless true that the seeming retrogression, as seen in the invasion of the claims of the commons to liberty of speech and freedom from arrest were only temporary, due to the special circumstances of a time when illegal acts super- seded constitutional rights ; and that on the whole Parliament maintained its position and privileges till the year 1450. It is clear, from the events and legislation of the reign, that a "growing value is attached to a seat in the House of Commons." Even from the opening of the civil war to the accession of Henry VIL the leaders on both sides were always anxious to get the recognition of Parliament for their acts or claims. Richard III. received the crown at the invitation of the representatives of the three estates. It is true many of the rights claimed by the commons were claimed prematurely. The
248 Constitutional Kingship.
right of impeachment exercised in 1376, 1386, and 1450 is not again used till the reign of James I. The right of appropriating supplies for specific purposes, and the right of appointing auditors of the public accounts, do not become established principles until the reign of Charles 11. Freedom from arrest and liberty of speech were asserted with varying success in the six- teenth and the early part of the seventeenth centuries. Parliament had not gone back under the Lancastrians. Valuable precedents for future and more peaceable times were gained, when the nation had recovered from the general confusion attendant on the later years of the fifteenth century. ///. Fail- The effort of the Lancastrians to make Parlia- ^Uncas- ment the direct instrument of government had ^*^h" of ^^^^^^' ^^ *^^ century advanced it became govern- morc and more evident that they had attempted a task beyond their powers. And yet, from the circumstances of their rise, they were bound to carry on a constitutional policy. Henry IV., Bedford, and Beaufort were all men struggling against forces which must sooner or later get the mastery. The ever-increasing exhaustion of the country was followed on Beaufort's death, in 1447, by weakness of administration and a consequent growth of anarchy. The catas-
Constitutional Kingship. 249
trophe, however, does not come until France is lost, and York is put forward as the heir. The fall of Henry and the house of Lancaster was due nominally to the superior claim of the house of York to the throne. Just as the personal wrongs of Henry of Lancaster were made the excuse for the revolution of 1399, so the claims of the legitimate heir furnished the reason for the deposition of Henry VI.
No superior claims of birth could, however, have been successful against a dynasty which had for three generations occupied the throne, had not the Lancastrian government shown extraordinary weakness. Dr. Stubbs has charac- terized the Lancastrian period as " the trial and failure of a great constitutional experiment ; '* and the failure of Henry VI. to govern England after Beaufort's death was so obvious, that men saw in a change of dynasty the only possible remedy for the existing state of things. Apart from the unpopularity of the queen, the want of confidence in the ministers, and the con- spicuous failure of an unpopular foreign policy, the weakness of the executive at home had become glaringly conspicuous.
As early as 1450, two bishops had been mur- dered, in addition to the rebellion of Jack Cade. Between 1450 and 1461 things went from bad
250 Constitutional Kingship.
to worse. The insecurity of the country dis- tricts, due in great measure to the presence of bands of soldiers and vagrants, increased with alarming rapidity ; and with the lawlessness of the great lords, and the imperfect enforcement of the law, marked the abeyance of all govern- ment, and rendered the cry for reform under a strong and efficient government irresistible.
The Wars of the Roses in their first beginning seemed an answer to the national demand for a complete change of policy, but, after the first battle of St. Alban's, they developed into a struggle between two dynasties — a struggle regarded by the nobles as a mere faction fight, in which the family jealousies which had been germinating for a hundred years might be settled. In these wars the nation was essentially interested only so far as it seemed likely to gain a ruler able to curb the factious and selfish nobility. The accession of Edward IV. brought no final settlement of the baronial strife. Hence both Edward and Richard III. were forced to have recourse to a sort of reign of terror, which tended to weaken the noble class still further, and ren- dered constitutional government impossible. It was not till after the battle of Bosworth in 1485, that the national aspirations were satisfied with the accession of Henry VII. By that time the
Constitutional Kingship. 251
nation had definitely learnt that the great lords, following the example set them by the clergy more than a hundred and fifty years previously, preferred their own class interests and personal aggrandizement to their inherited position as leaders of the commons. Deprived of the suf)- port and leadership of the Church and baronage, the nation saw that a strong ruler with wide powers was the only hope for the attainment of peace and orderly government Henry VII. and his council were enabled to give the country that freedom from foreign aggression and internal disorder, that enforcement of justice, and that security of life and property which had been so earnestly desired during the greater part of the fifteenth century, and which were so neces- sary for the prosperity of trade and the cultiva- tion of letters.
The house of Lancaster fell through " want The house of governance." Its fall brought about the terfcii complete overthrow of the scheme for making 'f^^^^y Parliament the direct instrument of government, .^'^''^"
once.
and placed a check on the constitutional expan- sion of the commons. The " lack of governance " was an evil inherited from the fourteenth century, in which the independence of the great lords ^'^Z'^;'^ had already proved a source of danger. Ever ishtuss since Edward II.'s reign, the object of the great %^J.^"^
252 Constitutional Kingship.
lords was to secure the government of the country in their own hands. The military system which car^e into force during the hundred years' war, and by which armies were raised by contracts made between the crown and nobles or others, enabled the lords to maintain, after the war was over, bands of retainers clad in livery, who constituted a very serious evil in the reign of Henry VI. Edward III.'s reign saw also carried out successfully a definite scheme for uniting, by a well-devised system of marriages, and by the foundation of a new nobility, the interests of the great lords to those of the crown. Henry HI., Edward I., and Edward H. all seem to have had the same idea, and to some extent carried it out Edward HI. was, however, the first king who developed this policy, not only in the hope that the crown might be able to check baronial discord, but also in order to control, by means of territorial influence, the elections to the House of Commons. Almost simultaneously with their close connec- tion with the crown can be observed a rapid decline in the numbers of the nobles, side by side with increase of their wealth and estates. This decline in numbers is due, partly to the legislation and policy of Edward I., partly to the consolidation of the mediaeval baronage.
Cofistituiional Kingship. 253
As soon as the idea of an hereditary peerage became fixed, the number of peers diminished, estates tended to accumulate into fewer hands, and the gap between the lords and commons became wider. To quote the conclusive words of Dr. Stubbs, "it is difficult to overrate the quantity of land which during the Middle Ages remained in the hands of the great nobles." " Taken in the aggregate, the landed possessions of the baronage were more than a counterpoise for the whole influence of the crown and the other two estates of the realm." The accession of Henry IV. found the great lords wealthy, exclusive, with vast estates and bands of retainers, allied to the Church, closely connected by marriage with the crown, possessed of im- mense local influence, and ready on every occa- sion to use the pernicious custom of maintenance. They no longer aspired to act as leaders of the commons, but rather desired to crush the independence of that body. The events of Richard's reign had demonstrated their selfish- ness, untrustworthiness, and faithlessness ; his deposition had demonstrated their power.
It was soon apparent that the lords by no means approved of Henry IV.'s policy of propi- tiating the commons, and it seemed doubtful if the alliance between king and commons could
254 Constitutional Kitigship.
hold its own against the tremendous territorial influence and power of the great lords.
The demand for "abundant governance" is frequently heard in the reign ; robbery and marauding were common ; territorial rivalries had developed as early as 1404 into a private war ; dangers from Wales and France, and three open rebellions, showed how precarious was the position of Henry IV. and the commons. By his firmness and sagacity the king held the balance between the commons and the lords, and enabled the former to attain the climax of their power in the Middle Ages ; but it was only the foreign war of Henry V. which prevented the absence of firm internal administration from being more prominent than it was during his short reign. With the accession of Henry VI. the influence of the lords in the government of the country became paramount. In spite of the genuine attempt of the council to govern with authority, private wars and general public disorder increase as the reign advances. To check riotous con- duct at county elections Parliament passed the restrictive act of 1430 ; and in 1433 the commons asked for the suppression of disorderly assem- blies. But no legislation could deal with the yearly increasing mischief. The lords began to quarrel among themselves, and the parties of
Constitutional Kingship. 255
Beaufort and Gloucester are but a preliminary stage of the Wars of the Roses. The two parties struggled for supremacy in the council and for influence over the king, while the dis- organization of the country districts assumed formidable proportions. We have seen as the reign advanced how Parliament failed to control the council ; equally disastrous was the failure of the council to control Parliament by influenc- ing the elections, and to check the growing evil of local faction. At the same time, the House of Commons became more and more composed of the nominees of great men selected for purely personal or factious purposes.
Thus the "family settlement" policy of Edward III. had results unlooked for in the fourteenth century. Instead of the crown checking the quarrels of the nobility, the nobles introduced into the royal house their own spirit of rivalry and jealousy. Instead of the crown controlling, through the nobles, the elections, the great lords were found in the later years of Henry VI.'s reign influencing the elections in opposition to the crown.
The Lancastrians had followed the "hereditary traditions of the baronage " in aiding Parliament to maintain and strengthen its position. It was the lords themselves who, by their own territorial
2S6 Constitutional Kingship.
rivalries and personal aims, threw away the leadership of the commons, and rendered the exercise of government by Henry VI. impossible. In the Wars of the Roses the baronage com- mitted suicide, and enabled Henry VII. to crush the power of the remaining nobles, to maintain peace at home and abroad, to govern by means of ministers, to be supreme over the Church. Richard II. had probably desired to carry out such a policy, but he had made the mistake of advancing an extreme theory of prerogative, and attempted to put his theory into practice when the power of baronage and Church was unbroken, when the nation disliked his foreign policy, and distrusted him and his ministers. (2) Social Social causes did much to strengthen the andindus- g^cat lords and to render the task of govern-
trial disor- ment difficult. While the fifteenth century was ptntzatton.
a more prosperous time for the governed classes than the fourteenth, it was a century of social disorganization ; a period of continual struggles in the towns where the craft guild system was passing away ; a century which witnessed an industrial and agricultural revolution which had been developing with rapidity ever since the Black Death, and which, like most revolutions, brought with it social disorder. The Black Death was followed by dearness of labour, and a consequent
Constitutional Kingship. 257
rise in wages, which the statutes of labourers were unable to check. The landlords, compelled to recognize the new state of things, and seeing the impossibility of making " farming with hired labour pay," * began to allot out portions of land to such as could pay the rent. In this way the class of tenant or yeoman farmers was formed. But the villeins who remained on the land, finding their services more rigidly claimed than ever, showed great discontent, and in the rebellion of 138 1 made their well-known attempt to get rid of all claims on them for service. Their attempt failed, but a great change in the use made of land gradually enabled them to secure the objects aimed at, and to set them- selves free from their masters. This great change in agriculture was simply the gradual substi- tution of sheep- farming for the system of tillage which had existed since early English times.
The growing of wool had throughout the fourteenth century been exceedingly profitable and the great wealth of the landowners, in that and the following century, was very largely due to the sale of wool. This agricultural revolution, though very beneficial to the landowners, was,
^ Cunningham, "Growth of English Industry and Com- merce," p. 196 ; also see bk. jiL, chaps, i. and ii. for an excellent account of the revolution.
258 Constitutional Kingship.
while it lasted, extremely disastrous to the poorer population of the country districts.
Sheep-farming required much less labour than did tillage, and consequently great numbers of the peasantry either flocked into the towns, or swelled the ranks of the vagrants, who, ever since the Black Deatti, had been a growing evil These vagrants formed a great element of disorder in the rural districts, and their appearance coincided with the gradual break-up of the manorial system and the lessened respon- sibility of the lords of manors, who hitherto had performed a most useful function as the " social police "^ in the country. The villein had declared his right to do what he liked with his labour. In the fifteenth century the lord of the manor asserted his right to do what he liked with his land.
The break-up of the manorial system, the decline of the political influence of the Church, and the ever-increasing paralysis of the central government, combined to render life and property insecure in the country districts. " Social dis- orders followed in the wake of industrial dis- organization."* In a period of transition, of social reconstruction such as was the fifteenth century, the country required a clergy intent
* Cunningham, p. 222. ' Ibid., p. 219^
Constitutional Kingship. 259
on diminishing the sufferings of the poor, land- owners not wasting their substance on retainers, but exercising a beneficial influence on the local government of the counties, at the head of the state a king and council in which was to be found the greatest administrative talent in the kingdom. Is it a matter of wonder that, under the existing circumstances, the control over the country districts gradually, though surely, escaped from the weak hands of Henry VI. and his advisers, and that local rivalries, aided by the social distress, were allowed to develop into a great and suicidal civil war?
These social disorders were considerably (3) faiiun
of the
aggravated by the long continuance and ulti- Fntuh mate failure of the French war. Henry IV., compelled by his necessities to abstain from an aggressive foreign policy, with difficulty held his own against the feudal houses. His suc- cessor plunged the nation into a tedious war, which, however unprincipled, was popular with all classes, and postponed for some forty years the renewal of internal dissensions. His brilliant successes prevented men seeing how impossible the conquest of France really was. The death of Bedford and defection of Burgundy brought home to Beaufort, and later to Suffolk and Somerset, the advisability of limiting their
26o Constitutional Kingship.
ambition to the retention of Normandy and Guienne alone. The marriage of Margaret of Anjou to Henry VI., by which it was hoped that the possession of these provinces might be made secure, proved unfortunate for the Lancastrian dynasty. Her influence caused the exclusion from the council of all but her own party, upon whom fell the national wrath, when, in 1453, the final expulsion of the English took place. The loss of prestige and the damage to trade incensed the nation against the sup- posed authors of the failures abroad. The general resentment did much to render the Yorkist opposition successful, while the war itself had enabled the great lords to acquire in the country an ascendancy incompatible with constitutional government Crowds of armed and liveried retainers, fortified houses, the pre- sence of large numbers of turbulent soldiers but lately returned from the wars, together formed an element of disorder in the country which made the administration of the law well-nigh impossible. Henry V.'s foreign policy had merely postponed the unavoidable struggle between the crown and the feudal houses to a time when the great lords were in a stronger, and the king in a weaker, position. The interval of sixty years only rendered the outbreak of
Constitutional Kingship. 261
disorder more organized, more general, and more intense.
It might have been expected that the House (4) Tfu of Commons would act as a check on the great of the lords, and having gained apparently a strong "'""^^^^ position under Henry IV., would be able, even when deprived of the aid of that sagacious monarch, to maintain an independent attitude towards, and exercise a controlling influence over, such tendencies to lawlessness and insub- ordination. The strength of the commons must not, however, be estimated from the principles advanced in 1406, or, indeed, from their general position under Henry IV. " Prematurely Richard had challenged the rights of the nation, and the victory of the nation was premature."
The nation in reality was not ready for the self-government offered by the Lancastrians. Parliament was not fit to become the direct instrument of government. Owing to the cir- cumstances of his accession, and to his consti- tutional leanings, Henry IV. carried on the true Lancastrian policy of propitiating the clergy and the commons, though that policy left the central power not sufficiently strong even in his day to curb satisfactorily the disorders of the times. In fact, even during Henry's reign it was apparent that the commons were strong
262 Constitutional Kingship.
because it was his policy that they should be strong. Their attacks on the property of the Church were promptly checked, and towards the end of his reign he showed considerable firmness in dealing with them. The prominent position the commons had taken up in his reign could not be maintained in the reign of his grandson, whose minority, followed by his in- capable rule, rendered the commons subservient to the influence of the great lords. Henry IV., Henry V., Bedford, and Beaufort, each in turn continued to carry out the Lancastrian system of government, and Henry VI. always showed a great regard for Parliament ; but with the death of Beaufort, the " mainstay " of the Lan- castrians, it became evident how absolutely unready the nation was for self-government
The commons were themselves partly to blame for the collapse of all government. They failed to see that the real remedy lay, not in attacking ministers like Suffolk, but in strengthening the central power. They did not comprehend that the paralysis of government could only be checked by enabling the central power to make its authority felt through the length and breadth of the land. The local insubordination which was devouring England must at all hazards be checked. As the century advanced, the
Constitutional Kingship. 263
commons became more oligarchical. The act of 1430, followed later by the act of 1446, by which none of the rank of yeomen were to be eligible for election to the House of Commons, illustrates their growing exclusive spirit Eng- land was by no means ready for a system of government in many points more adapted to the nineteenth than the fifteenth century. Parliament had been given power for which it was unfit, the commons had asserted their right to privileges which they were unable to regard as fully established. The fact was. Parliament existed more for the benefit of the sovereign than it does at the present day. It was not regarded as the great controlling power in the state. Even in Henry IV. 's reign it did not meet every year. For the necessary execu- tive and for much legislative work, the nation was accustomed to look to the king and council, with whom the real control of matters was usually found. The powers gained by the commons under Henry IV. had been prema- ture. That they were premature the events of Henry VI.'s reign amply prove.
The civil war finally set the commons free (5) PoveHy from all dependence on the nobles, and under mss ofiht the Tudors they learned to assume an attitude '^^'^'' of independence which enabled them successfully
264 Constitntiofial Kingship.
to oppose the Stewarts. To a great extent the commons had reh'ed on leaders during the reign of Richard 11. Their prominent position during Henry IV. 's reign was due, as we have already seen, to that king's consistent support. But neither the weakness and blindness of the commons, nor the social distress consequent on the break-up of the manorial system, nor the lawlessness of the nobles, would have been sufficient to overthrow the Lancastrian house, had not Henry VI. been absolutely deficient of all administrative ability, and had not all three kings lived in a period when the poverty of the crown constituted a very serious draw- back to the efficiency of the government. During Henry VI.'s long minority, the nation was with- out a strong king at the very moment when the lords were becoming unmanageable. At the end of his minority Henry showed himself insensible to the * responsibility of leadership," so incumbent on a ruler in those days, when it was of supreme importance that the strength of the crown should far outweigh the power of the nobles. Without the "manliness of Richard II.," ^ he had none of the administrative qualities of Henry IV. or Bedford. It is doubt-
* Gairdner's introduction to " The Paston Letters," vol. i. P- 53-
Constitutional Kingship. 265
less true that he inherited difficulties not of his own making. The French war bequeathed to the country by Henry V. produced exhaustion, and, ending in defeat, largely contributed to the fall of the dynasty.
The poverty of the crown and the low con- dition of the exchequer were other sources of weakness for which Henry was by no means responsible. Henry IV. had owned one-fifth of England at his accession, but during his reign and those of his immediate successors, the wealth and possessions of the king decreased in pro- portion as the wealth and possessions of the great lords increased. The charge of extrava- gance can hardly be brought against the Lancastrian kings. " Richard's fall initiated a long reign of economical administration," and the commons interfered not only with the admin- istration of the royal household, but also with the state expenses. When the king was expected to provide for the intema.l peace of the kingdom and the due administration of justice, to defend the coasts, to support an efficient navy, to keep up the marches and to maintain Calais, which as early as 1410 had begun "to be a constant drain on the resources of England," it was perhaps to be expected that the commons should be desirous to see his private revenue on
266 Constitutional Kingship.
such a satisfactory basis that the king could live " of his own," and only apply to them when the national exigencies made the demand necessary. The most obvious method for placing the crown, financially speaking, on a sound footing, and for making the king sufficiently nch "to pay his own way," was to authorize a general resumption of grants of land by the crown, and to prevent the king from alienating in the future the property of the crown. This was by no means a new idea. Since Stephen's reign frequent attempts had been made to recover alienated crown estates, and to stop a practice begun by that monarch.
At the very outset of Henry IV.'s reign the question of a resumption was raised by his council. In 1404 the knights of the shire, who had already been enabled, owing to Henry's financial necessities, to take the place of the barons as constitutional leaders, proposed a re- sumption of "all grants and annuities given since 1367," in order that Henry should live "of his own." In 1450 an act of resumption was actually passed, and re-enacted in 145 1, by which "all the grants made since the king's accession were annulled," and in 1456 a fresh act was passed. These acts were too late, and con- tained too many exceptions to be of any real
Constitutional Kingship. 267
benefit to the tottering Lancastrian dynasty, while the grant of tunnage and poundage for life, made in 1453, only enabled Henry to rule for a time without Parliament. Had a thorough act of resumption been passed early in the period, had the crown lands been made really inalien- able, the royal revenues would not have been in- ferior to those of many great nobles in the land.
The Lancastrian kings, instead of having to Gmeral weaken their own position and the future of'*^****'*^ their dynasty by allowing Parliament to exercise governmental functions for which it was unfit, might, with the aid of a council composed of men chosen on account of their capacity, have established an efficient government able to guide the disorderly elements of society through a time of transition, and thus saved their dynasty. As it was, Henry VI.'s failure to rule the country only aggravated the dangers which were gathering round his house, and threatening its very existence. He was unfortunate enough to live in a period which saw the end of a system of government unfitted for the age, and the ab- sence of any new system in its place. The utter weakness of his character rendered him abso- lutely unfit to carry on the policy which had taxed all the powers of Henry IV. in less •difficult days. Besides, in Henry IV.'s reign
268 Constitutional Kingship.
that policy required important modifications. The increase of the power of the great lords required an immediate corresponding increase in the powers of the crown. The foreign policy bequeathed by Henry V., the poverty of the crown, the growing social difficulties, all de- manded a strong administration at the head of the state. The honesty and piety of Henry VI.'s character, and his adherence to the policy of his house, failed to make up for his incapacity to rule in days when a " strong hand in reform, in justice and in police," was required.
ESSAY VI.
THE INFLUENCE OF THE CHURCH ON THE DEVELOPMENT OF THE STATE.
It was from Archbishop Theodore that the Difficuitus Church of England derived the organization ^^^£^ necessary to fit her to enter into relations with ^'SIl the State, and exercise an influence upon the political growth of the nation. The Heptarchic kingdoms owed their Christianity to different sources: Kent to the Roman mission of S. Augustine, Northumbria and Mercia to the Scoto-Irish missions of Aidan and Chad, East Anglia to the labours of Felix a Bur- gundian, Wessex to those of Birinus, an Italian, and Sussex to the devotion of Wilfrid. The Church was thus herself in danger of losing the inestimable boon of unity which she was giving to the nation. Each separate kingdom might have had a Church of its own, differing in traditions from its neighbours, and proudly
270 Tlie Influe^ice of tJie CImrch on
accentuating each difTerence as if that alone was the one point of importance in the Christian system. There were plenty of subjects of dis- pute which might well have grown to almost impassable barriers between the Churches, had it not been for Theodore's practical good sense and power of organization. When half England owed its faith to Irish sources, it was not improb- able that a system like that of Ireland might have been introduced ; where the ecclesiastical power lay in the hands of abbots of large and ill-defined monastic communities, and bishops were merely officials who received episcopal orders for the purpose of transmitting the suc- cession. It is true that at the synod of Whitby, held in 664, just before Theodore's consecration, Oswy, and north England with him, had accepted the leadership of Rome in some matters of discipline and in the question of the observance of Easter. Yet in parts of Mercia and Wessex, on the Celtic borderland, the influence of British Christianity was not yet dead, and it was still possible that on questions such as those of the observance of Easter and the primacy of Rome, some of the English kingdoms might separate themselves from the unity of Western Europe. Policy of From these dangers Archbishop Theodore Thtodon. ^^^^ ^^ infant Church. He more than
the Dei'elopmmt of the State. 271
doubled the number of bishops, making the (i) Epis- boundaries of the new dioceses coincide ^s'^spmH- far as possible with the territorial limits oi^^'*^' the tribes which had originally settled in the land, and placed the seat of the bishop almost invariably in a small village, where his inde- pendence would be more secure than in a town. He then instituted a synod of all the bishops, to be held under the presidency of tlie Archbishop of Canterbury every year, and so provided for combined action and personal direction. The system thus begun by Theodore soon spread further. Just as each bishop was (2) The allotted a defined area of no very considerable system. size, if the sparseness of population is considered, for the management of which he was responsible to the archbishop ; so each township, or, when the population was small, a collection of town- ships, was formed into the parish for the spiritual necessities of which the parish priest was respon- sible to the bishop. So by degrees, quite apart from the missionary work of the monasteries, England became divided for spiritual purposes, into the definite areas of parishes and dioceses, for the ministrations of which definite ecclesi- astical authorities were responsible. In later times, when England gained political ,unity in much the same way as she had at this time
2/2 The Influence of the Church on
gained ecclesiastical unity, the State took advan- tage of the local area which had now become so well known, and the parish, instead of the township or the hundred, became the recog- (3) i^f^ifcfl- nized unit of local government. The origin unity and of parishes, though not directly due to Theodore, ^^A»- vy^as the natural result of his system, which was to make the Church of England national instead of provincial, and English instead of Kentish, Mercian or West Saxon. By the ecclesiastical unity thus achieved, he gave to the English people a foretaste of the political unity to which they might one day attain, and to the English Church a position apart from, and in some respects superior to, the kingdoms amongst which she was placed. This enabled her to develop her o\vn organization with great freedom, to gain a considerable amount of political liberty and privilege, and even to do much in guiding the policy of the different state* among the difficulties which surrounded them. It is this independent position of the English Church which makes her history so different from the neighbouring state-ridden Church of Gaul. Character Let US try and picture to ourselves the leading English characteristics of the early English Church, Church, ^jjgfj^ jjj ^jjg eighth ceniury, she emerged from
the Development of the State. 273
the hands of Archbishop Theodore — who, far more than Augustine or even Aidan, has a right to be considered her real founder — and began to exercise a leading influence upon the development of the national life.
She was in full communion with the great (?) ^*^'
ttotti with
Church of the West. She held the sarne faith, the rest of was organized on the same pattern, and was ciom!'"*' governed in the same manner, as had been distinctive of the Catholic Church since the apostolic age, namely by bishops and synods. But partly owing to insular position, partly to the influence of the Scoto-Irish missionaries, who had taken so large a share in the final con- version of the northern kingdoms, partly per- haps to the traditions of British Christianity which still lingered in the countries bordering on Wales and Strath clyde, she retained a measure of self-government and real indepen- dence which was unique among the Churches which acknowledged the patriarchal dignity of Rome.
The dioceses of England were sixteen in (2) Dio- number, — and, indeed, did not amount to more "**** than eighteen until the Reformation, — of which twelve formed the province of Canterbury and four the province of York ; but as the latter province was of comparatively small importance
T
274 T^f^ Influence of the Church on
until after the Norman conquest, and was almost cut off from the general growth of the national life for a century or more by the Danish invasions, the real interest of eccle- siastical affairs centred round the province and see of Canterbury ; and as Canterbury was close to London, and soon became absorbed in the leading power of Wessex, the archbishops very early began to exercise a great influence upon politics. KX^Gmiern- ^^^ business of the Church was transacted i^ent. mainly by the bishops, either in their synods — national, provincial, or diocesan — or personally, in virtue of their own spiritual authority. It would seem that most ecclesiastical legislation received the sanction of the State either by the admission of the king or ealdorman to the synod in which the laws were passed — though it is not probable that they actually took part in the passing of the laws — or by the subsequent confirmation of the Witan. There is no doubt that the aid of the temporal power was given, to the ecclesiastical authority in carrying out the law so passed, which thus became part of the law of the State as well as of the Church, and was administered, like other law in the hundred-moots and shire-moots. It is even probable that the State recognized and
tlu Development of the State. 275
enforced sentences of the bishop, given in his own private court, in matters which affected the morals and discipline of the clergy. However this may be, the bishops certainly enjoyed a limited jurisdiction of a temporal character by common law, besides the considerable spiritual authority which they exercised over both clergy and laity, apart from the common law, in virtue of disciplinary canons and the codes of morals called penitentiaries, the rules of which were generally recognized as binding upon the con- science. Relations between Church and State, (4) Rela- so close and so liable to become confused, are ^^ highly characteristic of the rough-and-ready ^'^J-'^A,^ illogical way in which the early English con- stitution developed. They were only possible in a society in which the conception of law was in its infancy, where legislators and jurists did not distinguish over nicely between law and morality, and were content to make both coincide with religion. They could not stand for a moment under the keen criticism of Norman logic, nor, indeed, could they have long withstood the disintegrating effect of the spread of knowledge. Directly men began to sec that it was possible that it might not be the duty of the State to punish all actions which were contrary to the law of God, a distinction
2"^^ The Infliietice of tlie Church on
was established between law and religion which necessitated the separation of two systems, which, though both dealt with human action, yet dealt with it from different points of view and with different objects, the one for the protection of society, the other for the welfare of the sinner's soul. During the whole of the period before the Norman conquest that dis- tinction can be seen gradually asserting itself, and it was only owing to the sluggish tempera- ment of the Englishman and the political troubles of the nation, that the system we have been describing existed so long. A series of relations, in which two essentially distinct func- tions, the temporal and the spiritual, are con- tinually being discharged by the same persons, in the same assemblies, with the same sur- roundings, and under the same conditions, are obviously impossible except in a peculiarly or- ganized society, where the spiritual element is the stronger in intellect and takes the lead ; where the statesmen and people are docile, and not inclined to inquire closely into the principle of arrangements which work fairly well.
The relation of the Church and the State in early English times may not unfairly be described as the establishment of the State by the Church. When William I. and Lanfranc
the Development of the State. 277
altered this by recogpiizing the authority of each in its own sphere, they were only carrying quickly into effect what must inevitably have come about slowly in the course of a few years. By substituting an alliance between the two powers for what had been almost an absorp- tion of one by the other, they were taking a necessary step onwards in the progress of the national life ; though by so doing they raised for the first time in English history the problem of the due adjustment of the relations between the two, which has always hitherto proved, and must always prove, insoluble.
At first the maintenance of the clergy was (5) Mam- provided for by free offerings of the people, oi'f^J'^^f^^ which tithe was the most important item. At the Legatine Council of ySij that which had been a religious obligation on the faithful was made legally binding upon the whole as a Christian people, and the payment of tithe to the bishop became just as much an obligation of law as the payment of taxes to the king. Considerable freedom was, however, still permitted as to the church or parish to which each individual land- owner should make the necessary payment Although in theory the whole tithe of a diocese ought to be paid to the bishop, and by him divided among the several parishes at his dis-
2/8 The Influence of the Church on
cretion, the practice soon grew up of devoting the whole, or some considerable part of it, to a monastery in return for privileges accorded to the benefactor. It was not until the year 1200 that the final appropriation of tithe to the mainte- nance of the parochial clergy was made universal, by which time a very considerable portion of the tithe of England had become annexed to religious houses, and was accordingly forfeited to the king on the dissolution of the monas- teries in the reign of Henry VIII,, and by him granted out or sold to private owners. (6) Monas' The monasteries formed the greatest glory, and gave rise to the greatest abuses of early English Christianity. In the earlier days of the conversion the monastery was the station of the missionaries, the home of the bishop, and the school of the priesthood. When the Church had won the ground and was endeavouring to justify her occupation of it, it was the monastery which trained the younger candidates for the mission field, and which supplied the necessary teaching for a cultured clergy. English Chris- tianity became distinctly tinged with monasti- cism. It became the fashion for Englishmen and Englishwomen to retire into monasteries either permanently or for a limited time, with- out wholly throwing off the cares or the plea-
tents.
tJie Developtnent of the Sate. 279
sures of the world. Retirement, in an age of roughness and of loneliness, to houses which were larger, more comfortable, and better built than most of the houses of the time, where society was easily obtainable, and the restraints of religious rule certainly light, perhaps hardly perceptible, made no very great demands upon the self-denial of the inmates.
But there were other evils besides this laxity of administration from which the monasteries suffered. Among them abuse of patronage was by no means the least. Kings and great men soon began to look upon the monasteries, of which they were the benefactors, in the light of their private property ; and there is evidence to show that even an hereditary succession of monastic estates in particular families was com- paratively common.
By the ninth century this spirit of Xsxxty Effect tf which was thus visible in the monasteries had itmuuTt*. extended to the whole Church. During the long period of political confusion, which lasted until the time of Egbert, while one kingdom after another was enjoying a brief period of pre-eminence, from which it was sure to fall back into a condition of chaos worse than before, the Church became the only constant factor in the State polity. To the bishops, accordingly, fell
28o The Influence of the Church on
so considerable a portion of political power, that in some cases it would seem that the Church actually played the part of king-maker. This could not fail seriously to affect the spiritual authority of the clergy. Insensibly the standard of clerical life begins to sink among the secular clergy, as it had already sunk amongst the regulars ; and with it sinks the standard of education and culture. Bishops are found worldly enough to lead their men into the battle- field. On the accession of Alfred in 871, the ignorance of Latin was so great that there were no clergy south of the Thames who could under- stand their breviaries, and the books in the monastic libraries were perishing from neglect Upon a Church so deteriorated the Danish conquest came like a whirlwind. Northumbria, hitherto celebrated for its learning, became almost divided oflf from the rest of England. The power of the northern primate became seriously curtailed by the extinction of the dioceses of Hexham and Whithern. This isola- tion of the north, coming as it did just at the time when the centre of political power finally settled itself in the south, deprived his province of the benefit of the revival of learning and discipline associated with the names of Alfred and of Dunstan, and made the inaccessible north
tlu Development of the State, 281
permanently lag behind the now united south in the path of civilization. It is not till after the Norman conquest that the northern primate attempts to assert anything like an equality with his brother of Canterbury. It is not till the end of the eighteenth century that the north of England plays a leading part in direct- ing the affairs of the country.
In the century following the conversion, the Altered Church had taught England to be one, and had ^h^ckurck ^thereby assumed a position of independence <rf''rthen-
vtvalunaer
almost unique among national Churches. In Alfred. the revival which immediately followed the attacks of the Danes, the initiative, on the con- trary, came from the king, and not from the Church. It was the royal, not the ecclesiastical, power which won back for England her unity, and which taught her to lead captive her Danish conqueror. It was the royal power, not the ecclesiastical, which restored to the Church her dominion over the conquered districts of Eng- land, and which infused into her a new desire for knowledge and stirred a love of learning. The natural consequence of this was that the spiritual power became more closely united to, and more dependent on, the royal power than before. With the growth of dependence came a corre- sponding loss of initiative. During the tenth and
282 The Influence of tJie Church on
eleventh centuries the Archbishop of Canterbury takes his place as the trusted, often the chief, adviser of the king. The bishops play a large part in the assemblies of the Witan. Provincial and diocesan councils are held more rarely. English ecclesiastics begin to look abroad for assistance and improvement. The connection with Rome becomes closer, and English monas- ticism is reformed on the pattern of that of Gaul. Under Edgar the Church is seen openly directing and controlling the national policy. Dunstan, although the leader of a great clerical reformation, fs yet much more a great statesman than a great ecclesiastic. He is the first of a long line of English ministers who, without forgetting their ecclesiastical position, still less unmindful of the privileges of their order, have yet devoted their time and their talents mainly to the secular work of carrying on the government of the country. In such men the close connection between Church and State appears to the best advantage, when, like Dunstan, they busy them- selves in removing all traces of difference between Danes and Englishmen, in establishing the supremacy of the English king firmly over all the subject princes of the island, in furthering the cause of religious education ; to the worst advantage, when, like Ranulf Flambard, they lend
the Development of the State. 283
themselves to be the ministers and sycophants of an unprincipled despot In the last few years of early English kingship, when the foreigji and the national party under Edward the Confessor were rehearsing the struggle afterwards fought out on the hill of Senlac and amid the fens of Ely, it is round Church questions that the rivalries centre. The foreign appointments of the Confessor, the intrusion of Stigand into the vacated seat of Robert of Jumi^ges, the relations of Harold to the antipope Benedict, are the questions which give strength and weakness to one side or the other, which decide men's actions, and do much to determine the issue of the final appeal to arms. It is significant how much the party of Godwine owed to a body whose support they had never taken particular care to secure. When we find that successive kings as different as Edward and Harold become the benefactors of the Church by the monastic foundation of S. Peter's of Westminster and the secular foun- dation of Holy Cross at Waltham, and that great ealdormen like Leofric of Mercia, are noted for liberality in the foundation of monasteries, it is clear that the Church was powerful enough for the great men of the day to wish to gain her favour. It is more difficult to say how far this partial loss of independence and incj:ei^e^f
284 The Influence of the Church on
worldliness helped to bring about the national failure, in the face both of Danish and of Norman conquerors, which is the distinguishing feature of the history of England in the eleventh century. Perhaps it is not unfair to assume that the ease with which English statesmen and English ecclesiastics had succeeded in retaining their dignities and emoluments under Canute, made them unable to appreciate the danger to the liberty and independence of the institutions of the nation, both ecclesiastical and civil, which was threatened by the invasion of the Normans ; too ready to acquiesce nervelessly, if unwillingly, in the rule of a foreigner, whose close connection with the papacy and whose absorbing interests in Normandy could not fail to bring England under influences quite other than those which had hitherto affected her national growth. Jhe Nor- The effects of the Norman conquest are seen
man con- . . , , . r 1 /-.. <
quest. at their greatest m the history of the Church. They are far more simple and far more imme- diate than those which are noticeable in civil matters, but the general tendency of both is the same. In other words, William I. was a man who thoroughly understood his own mind, and intended to have his will obeyed implicitly by all his subjects. His policy, therefore, with regard to the Church was similar in all respects
the Development of tlie State. 285
to that which he adopted towards the State ; and it mattered not whether he was dealing with a powerful and successful pope, or a weak and discredited archbishop. In all cases he would be fair, as he counted fairness, give to each his acknowledged due, be strictly just but never generous, and take care that under no circumstances, as far as he could foresee, should any rival be allowed to the power of the king within his realm of England. Norman barons had disputed his succession to his duchy. Norman landowners, strong in the undivided allegiance of their vassals, had joined his rival of France in his earlier wars. Norman arch- bishops and bishops, sprung from feudal families, enjoying what were almost hereditary honours, had attempted to use the authority of the Church to favour the plans of his enemies. They had even been inclined to question the binding force of the papal blessing upon his English expedition.
He would take care that no such dangers should threaten his English throne. English barons were to be carefully prevented from obtaining large united territorial possessions. English landowners, one and all, were to be dependent on the king and responsible to him alone. English archbishops and bishops were
286 The Influence of tJie Church on
to be merely his nominees, for as yet they were not even clothed by feudal law with the quali- fied independence of feudal lords. All traces of hereditary right in English sees and English abbacies were to be rigorously swept away. Above all things, the unity of interest between ecclesiastic and baron, which might not improb- ably threaten the supremacy of the Crown, was to be turned into jealousy and suspicion. The clergy were cut off from a participation in much of the ordinary administration of justice, and a common interest in the law of the land, by the establishment for them of a judicature and a legal system of their own in all matters not wholly secular. Placed thus under the authority of courts of their own, governed by the canon law and not the common law, they became re- sponsible in the last instance to the pope and not to the king, but the avenue to the papal court was carefully barred by the necessity of first obtaining the assent of the king before the appeal to the pope was allowed to be lodged. Character In carrying out this policy, William had the
of Lxu^
ft arte. advantage of having at his side one who combined in a singular manner the zeal of an ecclesiastic with the wisdom of a statesman. Lanfranc, like Dunstan, was well fitted to be the guide and adviser of a great king in eccle-
the Development of tJte State. 287
siastical affairs. His unerring tact enabled him, unlike Dunstan, to avoid making the advice of a friend to grow into the dictates of a minister. He had a further advantage over Dunstan in that he was bom in Italy, and had received the training of a lawyer. Long before William had even planned his expedition to England, Lanfranc was well known through- out the West as one of the greatest of European scholars. Italian by birth and Norman in spirit, he knew the strength and the weakness of the papal system, now growing to maturity under Hildebrand. He had himself been more than once the special advocate of Rome. He was now the trusted minister of a king who prided himself on admitting no superior authority to his own in his realm of England. \ If only \}s\& Nature of centralization of Rome, its business capacity, i^fon its moral power, its legal system, could be ***** made to work harmoniously with a constitution which, depending on no principle and embody- ing no theory, had yet hitherto given to the people of England a large amount of personzd independence and political self-government, and was in the future, with all the changes introduced by the conquest, to save them from the anarchy of unchecked feudalism and the misery of unchecked tyranny : if the relations
288 The Influence of the Church on
between Church and State could be so regulated^ that the moral power of the Church might pre- vail to prevent the despotism of the king from degenerating into tyranny ; and the jealousy of the king invoked to prevent the independence of the Church from degenerating into unpatriotic privilege, how great might be the future of England ! It was a policy well worthy of two such men as William and Lanfranc, but to carry it out successfully it was necessary that many Williams and many Lanfrancs should successively direct the fortunes of England, in order that a time of steady and orderly govern- ment might appease the heart-burnings conse- quent on the Conquest, and make Englishmen not merely contented with, but attached to, the new state of things. Such a time of much-needed Meamret rest was not Secured. Under Lanfranc's guid- fram! ance, William remodelled the old English system. All traces of uncanonical irregularity were first swept away, Stigand was deposed, and bishops consecrated by him obliged to receive recon- secration. Normans were appointed to all the most important ecclesiastical offices. The re- lations with the papacy, which had for some time been far from cordial, were now drawn much closer. Peter's-pence was regularly paid, the approbation of the pope was sought in
the Development of tJie State. 289
most matters of importance, his authority in legal and moral questions was more invoked. William, indeed, refused in decided terms the claim for homage made by Hildebrand, and laid down in the clearest possible way, in what he called the customs of the English Church, the absolute right of the king to decide for his subjects to whom their spiritual allegiance should be given, to control the enforcement of Church legislation, and to check the admission of papal messages ; yet, inasmuch as the opportunities given to the pope to exercise authority were naturally much increased by the incorporation of England into the society of western nations, it was only to be expected that those oppor- tunities should be fully and freely used.
We find, therefore, the Church, as influenced Results of by the Norman conquest and moulded by the o/miiTavt genius of William and Lanfranc, assuming a?"''^'"'*
° ' ° franc.
position much more defined, and representing interests much more distinctively her own than before. She is now a society within the State, with other objects than those of the State, organized purposely as a power apart from the State. She absorbs most of the intellect, and con- sequently embodies most of the political thought, of the nation. She is ruled by a hierarchy thoroughly imbued with the high ideas of
U
290 The Itifltience of tJie Church on
spiritual prerogative dominant on the continent She is closely attached to the papacy, which is the concrete expression of those ideas. Yet she continues to recruit the ranks of her priesthood from men who have learned to value traditional independence and constitutional freedom. Taking to herself as far as possible the cognizance of all legal questions affecting morals, she no longer makes English law coincide with Church disci- pline, but nevertheless quickens its growth by the spur of her own rival system of the canon law — a system more scientific in character and more extensive in scope. Position of Church and State are now organized as
th: Church
in relation separate and possibly rival institutions. Above ' both is set the king, with a sway undisputed over the State, and limited over the Church by her spiritual independence, but nevertheless powerfully affecting her every movement. In the king is found the point in which the two systems combine. He is the champion of national freedom against the pope, of ecclesiastical order against the baronage, of uniformity in govern- ment against clerical privilege. He is therefore inevitably found sometimes on the side of, but more frequently opposed to, ecclesiastical autho- rity ; on its side when, like William I. or Henry I., he requires its aid against feudal anarchy,
the Development of tJu State. 291
against it when, like William II. or Henry II, he finds ecclesiastical authority interfere with the free exercise of his own methods of govern- ment Hitherto Church and State together, have, under the leadership of the Church, taught England to gain her unity, given to England her national feeling, and formed for her in no slight measure her polity. In the future we have to trace how, as separate powers, sometimes in alliance, sometimes in enmity, always in competition, each assists in the growth of the other, and helps to evolve out of the chaos of conflicting interests, something of the orderly principles and practical good sense characteristic of the English constitution.
During the period that elapsed between the Alliance Conquest and the death of Henry II., the church dangers which threatened the prosperity and^^^^ the liberty of Englishmen came from the feudal """^ '■*< baronage. The alliance between the Crown and the people is close throughout, and the people gladly support the supremacy, and even acquiesce in the tyranny, of the Crown, because they recognize that in the Crown is found the only efficient safeguard against the far worse tyranny of the nobles. The influence of the Church was thrown on the same side. It was to Lanfranc and the English that William Rufus owed his
292 The Influence of the Church on
crown. Henry I. recognized Anselm as the chief adviser of himself and his people. When Anselm himself becomes the champion of papal pretension, the bulk of the clergy are found on the side of the national king. It was when Stephen quarrelled with the bishops that he began to lose the confidence of the country. Even the monks, who are found a few years later such ardent champions of papal preroga- tive, were at this time thoroughly national and patriotic in feeling. The devolution of the Crown, the suppression of the feudal risings, the maintenance of orderly government, are due in no slight measure to this close alliance between the Crown, the Church, and the people, under the Norman kings. Other results flowed from it Growth of of more questionable advantage. The Norman IJujytr sovereigns, lawyer-like in rnind, anxious to eccUn- stretch legal principles in their own interests as far as possible, determined never to forego any advantage which the letter of the law might give thera, desired to be served by men who, free from hereditary ties and class sympathies should be wholly devoted to the service of their masters. Such a class of men was found in the lawyer ecclesiastics like Roger of Salisbury and William Giffard — men whose legal ingenuity had been sharpened by knowledge of the law of the
tJie Development of the State. 293
Church, who had learned business habits in administering the affairs of a great household. From being merely the servants, they grew into the advisers of the king. From being ministers, they became statesmen. The administrative reforms of Henry I. and Henry H. were largely carried out by men of this stamp. As a reward for their services they received ecclesiastical pre- ferment They brought the knowledge of legal Their in. principle and procedure which they had gained „^^/yi^ from the civil and canon law, to assist the ^f."^^'**-
ttOH.
development of royal authority, and the establish- ment of a system of procedure, sufficiently intri- cate to require the assistance of a professional class for its administration. Thus the feudal nobles became gradually ousted, not merely from the business of the country, but even from their own jurisdictions, but the Church herself, though spiritually the weaker, became politically the stronger, from having among her principal officers the men in whose hands the duty of administering the affairs of the country mainly lay.
The Crown and the Church were thus in- Quami creasmg m power side by side — the Crown by church being the centre of the opposition to the feudal ^r^' baronage, the Church by her connection with a wider world abroad, by her official relations
294 The Influence of the Church on
Its consti- tutional import tance.
with the Crown at home, and by her hold on the affection of the people as representing a power higher than that of mere force. A contest was inevitable between the two, directly either attempted to assert complete freedom from the control of the other. It is here that the consti- tutional importance of the struggle between Church and State in the twelfth century really lies. If Ranulf Flambard and William Rufus had succeeded in making ecclesiastical offices in all points subject to the ordinary law which regu- lated lay fiefs, if bishoprics had been degraded into mere pieces of patronage belonging to the king — property which he might deal with as he liked, if Henry II. had succeeded in im- posing the royal supremacy completely upon the Church, the liberties of Englishmen would have suffered no less than the privileges of the Church. To look at the struggles between Henry I. and Anselm, and between Henry II. and Becket, simply as struggles between royal supremacy and clerical privilege, is merely to look at one side of the question.
The Church had joined with the Crown and the people to suppress the power of the feudal nobles. The Crown, thus rendered supreme over the feudal state, armed itself with the weapons of feudalism to enforce a similar
tJu Development of the State. 295
supremacy over the Church. At the same time, the Church, stirred by the success of the papacy, conscious that it represented a higher moral ideal in government, was trying to use the weapon of the canon law to render itself independent of the control of the Crown. The complete victory of either would have been fatal to the well-being of the nation, for the Church repre- sented the only idea of moral government attainable in that age of force, and without the idea of moral government, constitutional liberty is impossible ; while the Crown represented the only idea of national unity attainable in an age of feudalism, and without national unity con- stitutional liberty could not be won. It was just because neither was completely victorious, but because each was victorious in its own sphere, that the ultimate achievement of liberty was assured. In the question of investitures the symbols of spiritual power remained with the Church, and those of the temporal power with the king. By the Constitutions of Claren- don Henry obtained a recognition of the doc- trine that in his realm of England the king is over all persons, ecclesiastical as well as civil, supreme. By the abrogation of the constitutions on Henry's penance, the Church received a guarantee that this royal supremacy would be
296 The hifluence of the Church on
Altered
relations
between
Church
and State
in consf
quence.
exercised with due regard to her superior moral claims. Each of the rival powers was thus vic- torious in its own sphere, and by its victory was able first to forward the complete unity of the nation under the king, and then to limit the king's authority when it threatened to degenerate into tyranny, by the checks of the independent rights of the Church and of the people, as we find them laid down in Magna Carta.
Looking at the relations between Church and State at the time when, by the penance of Henry II., the struggle may be said to have ended, we are conscious of a great change in the position of both parties. The Crown is now completely free from feudal rivalry. It has successfully established in central and local government a system of administration, both fiscal and judicial, of which it is itself the head, and to which it supplies the motive power. It has further surrounded itself with a body of officials, owing their position wholly to the royal pleasure, and entirely dependent upon the royal favour, to whom is committed the duty of administering a strongly centralized system of royal government. The bureaucracy of modern despotic and republican governments is strangely anticipated by the house of Anjou.
The only check to an administrative tyranny,
the Development of the State. 297
in which judges, legislators, and ministers are all dependent on the king and the king alone, is found in a Church as highly organized, with an administrative system of judges, legislators, and ministers of her own, almost independent of the king. The Church claimed to represent a higher morality than that of the State, and to give effect to it by the system of appeals to the pope, now well established. She was enabled, by the knowledge of the civil law but lately revived, and the canon law lately codified by Gratian and Ivo of Chartres, to oppose a legal system to that of the Crown as perfect and more scientific. She trained for the service of the king most of the ministers to whom the task of ad- ministering the affairs of the kingdom were en- trusted. When she added to her independent organization and intellectual superiority a unity of purpose which was strengthened by the en- forcement of celibacy, and a zeal which was stirred by the development of monasticism, she became a rival too strong for the Crown to overcome — a power capable of awakening the slumbering energies of a nation which had not had time wholly to forget the traditions of its old freedom.
The exactions of Richard I. and the tyranny Atliameof of John broke the alliance between the Crown wUh tht
298 Tlie Iiijliicnce of the Church on
iarvtts and and the Church, which, though it had been a?Hmjf//4/r sorely strained by the struggle of the twelfth Crmtm. century, had yet existed since the days of William I. From the death of Hubert Walter in 1205, the influence of the Church is thrown on the side of the barons and the people, in opposition to the Crown. It is the Church which, under the leadership of Stephen Lang- ton, obtains Magna Carta from John, on the basis of the charter of Henry I. It is the Church which, on the death of John, takes the lead in settling the government in the hands of the regent Pembroke, on the basis of Magna Carta. But although the influence of the Church was on the popular side, and did much to gain and establish popular liberty, ecclesiastical feeling was not by any means FormaticH unanimous. The unconditional surrender of "parties in Jo^" to ^^e pope threw all the influence of ^;*f . the papacy on the side of the tyrant, and
Church s
(a) the caused the rise of a party in England which, (fi) the being primarily devoted to the interests of Ihe naiwtuL pope, found itself usually supporting the autho- rity of the king. Thus was formed an alliance between despotism in Church and State which proved terribly detrimental to both. The papacy, in constant opposition to the best feeling of the Church and the free instincts of the nation
tlie Development of the State. 299
forfeited her claim to represent a higher morahty. The king, too often seen to be the servant and the tax-gatherer of the pope, for- feited all right to be considered in an/ way as the representative of the nation. We thus find in the Church of the thirteenth century two distinct parties. The one compl-ised the royal nominees, the foreign ecclesiastics and the regular clergy, both monks and friars, who, strongly attached to the papacy, and supporting the claims made by the popes to govern England as a papal fief in virtue of the submission of John, lent their assistance to a discredited crown, willing to purchase it by unworthy deference to a foreign power. The other consisted of the leaders of the constitu- tional baronage, the bulk of the secular clergy and of the commonalty of the land, who, actu- ated by strong, almost unreasoning, dislike of foreigners, and in constant opposition to the king, were anxious to resist papal encroach- ments, not because they denied papal preroga- tive on principle, but because they desired to limit it as well as that of the king by the checks of legal precedent and national right. Pope and king were therefore united by adherence to a common principle and opposition to a common enemy. Church and people found.
300 The Influence of the Church on
The latter themselves threatened by a common tyranny.
*Chur^ Men like Grosseteste and Edmund Rich, second
party, the ^o none in their loyalty to the papacy as an
of Earl institution, were compelled to head the protest
of the con- against the abuse of papal power. In the rising
'b^^i^ of the barons under Simon de Montfort, and
party. in the Provisions of Oxford, the political charter
of the rising, the Church made common cause
with the people, and sanctioned a resort to force
on behalf of liberty, as the only ultimate appeal
in a constitution still imperfect
In the great constitutional struggle against Edward I., which resulted in the confirmation of the charters, and the acknowledgment by the king of the principle that taxation without con- sent of Parliament was illegal, the Church under Archbishop Winchilsey, played no small part It was the opposition of the clergy to the taxation levied by Edward that stirred the oppo- sition of the baronage. It was the combined action of the two estates that forced the king to yield. The motives of the spiritualty were, it is true, by no means wholly patriotic. By the bull clericis laicos, Boniface VIII. had asserted the principles of clerical pretension and caste exclu- siveness in their worst forms, by denying the right of the temporal power to tax the clergy at all ; and the bishops in supporting him pressed
tlu Development of the State. 301
their spiritual allegiance to the pope further than their duty to their country could possibly warrant Nevertheless, directly opposition to the royal demands was begun, the clergy found sympathizers with their actions, if not with their motives, from among the baronage, and the question was at once raised to a higher platform, and fought out and decided on the higher ground of constitutional principle, instead of the lower one of clerical privilege. By the institution o^ Recogni- Parliament Edward I. gave the answer to the 'l^ruJaity great question how it was possible to combine <"««<'^''^* national institutions with monarchical govern- realm. ment, and the Church received the reward of her patriotism by the full recognition of the spiri- tualty as an estate of the realm. The power which had taken the lead in the gaining of liberty under John, had done so much to con- solidate liberty under Henry III,, was under Edward I. to form an integral and important part of the institution of Parliament, by which liberty was to be finally guaranteed and de- veloped. ^^^JU^f"^^^^^"^^
By the organization of Parliament the struc- influence ture of the English constitution was complete. ^^'^'^^ The principle of representation thus applied to*^"''*' . matters of government, when combined with the of the eon- hereditary principle by that time become domi- """'"^ '
302 The Influence of the Church on
nant over the Crown and the nobility, brought about the balance of constitutional forces known as a limited monarchy. From the time of Edward I. the question of what kind of govern- ment England was to have was settled. It was to be a limited monarchy — government by king and Parliament. In the decision of that ques- tion the Church had played an important part, both politically and constitutionally — politically by severing her old alliance with the Crown, and giving herself over more or less unreservedly to the cause of liberty as maintained by the barons and people in their struggles with John and Henry III. — constitutionally by the influence she exerted on the actual result of the frame- work of the constitution, on the legislature, and on the executive. We will now go on to con- sider this latter point more in detail. (I) Repre- Representation. — The principle of represen- tation is the key-note of the English constitu- tion. It is by the application of that principle to the different parts of government that the will of the nation is brought to bear upon the action of its rulers, and that some guarantee is obtained that the policy of the country will be directed in accordance with the interests of the whole body of electors, and not in favour of one particular class. Foreign writers have often remarked
scntation.
the Development of the State. 303
upon the ease with which this great constitu- tional principle established its supremacy among English institutions. Although it would be too much to attribute this entirely to the influence of the Church, there is no doubt that her ex- ample did much to pave the way. Representa- tion was a mode of obtaining the opinion of large numbers of people quite familiar to eccle- siastical statesmen like Roger of Salisbury, Becket, and Hubert Walter, to whom is mainly due its development as the leading principle of civil administration. Ecclesiastical councils, diocesan, provincial, or national, had been based on this principle from the earliest times. The close connection between Church and State which had existed before the Conquest had accustomed men's minds to a system which was reasonable in itself and convenient in practice. The number of important councils summoned by the popes during the twelfth and thirteenth cen- turies had shown how valuable might be the sup- port given by a body of representatives, coming from different parts of Christendom, to a cause which claimed to depend upon moral right rather than upon force. The plan, familiar to an ecclesiastical body, of electing proctors to repre- sent their case when disputes arose, before the courts of pope or the king, possibly suggested
304 The Influence of the Church on
the similar machinery of the election of sworn knights to nominate the recognitors of the Great Assize. Naturally, therefore, when in the thirteenth century it was found necessary to enlist in some definite way the support of the whole nation in the effort to secure for all classes the benefits won for them by Magna Carta, recourse was had to a principle of government which, through the example of the Church, was well known to the people ; and which had brought to the Western Church in its contest with the emperor just the very kind of strength which the nation was now seeking in its struggles with the Crown. {2) Legal T/te Legal system. — In the forms of the froce ure. j^g^^j system, as gradually developed in the twelfth and thirteenth centuries, the influence of ecclesiastical procedure is more marked. The reason is not far to seek. The ecclesiastical system of law preceded the national system in time and excelled it in precision. Disciplinary canons, formally passed with all the authority of a large representative assembly, and claiming by that authority permanently to bind the action of Western Christendom, were well known and commonly obeyed, while Norman legislation was still in the tentative form of assizes and pro- visions. The canon law had been codified and
the Dei'dopment of the State. 305
systematized by Ivo of Chartres and Gratian before the statute-book began to be. It is not until the law takes the fully defined form of statute under Edward I. that the analogy to the ecclesiastical canon is complete. There is reason to think that the practice of the royal courts was copied direct from the courts ecclesias- tical. The Church holy days, appointed to be observed by the canon law by the cessation of all litigation, were equally observed in the royal courts. The forms of pleading by which suits were begun were substantially the same ; the same rules of practice obtained, and even appa- rently the same law of evidence.^ Records of pro- ceedings were ordered to be kept, in imitation of the documents found so useful in ecclesiastical litigation. At the same time, it must be remem- bered that directly the common law became elaborated into a system, the jealousy shown by the common lawyers of both the canon and the civil law was most obstinate. After the time of Henry III. the influence of the ecclesiastical law and procedure ceased to be the direct influence of an example, and became merely educational,
* This is the view of Mr. J. G. Phillimore (see " Oxford and Cambridge Essays:" Essay on the Influence of the Canon Law), but the procedure of both the canon and common law may have been taken from the civil law.
X
3o6 The htjiuence of the Church on
i.e. that of a rival system of jurisprudence, the study of which was interesting and necessary to the properly trained jurist, but was without direct bearing on the practice of the courts. (3) Vindi- Vindication of individual right. — We have
cation of , i ^i , • i . . r
individual seen that the Church, owing to her position of "^ independence, was the only power that was able
to withstand the authority of a king, guarded and supported by a bureaucracy of his own nomination ; and we have seen how the Church used that power in order to defend her own privileges against Henry II., and national liberty against the tyranny of John. But it was not only by the occasional assertion of general principles that the Church helped to nourish and develope the growing plant of liberty. In all questions which affected the personal rights of the individual, she is found witnessing to a higher civilization and truer standard of duty. From the first the Church had always set her face against the institution of slavery, and had succeeded in mitigating, and eventually, in the twelfth century, in putting an end to it, chiefly through the efforts of men like Wulfstan, Remigius, and Anselm. Since then personal slavery has been unknown in England. The practice of ordeal, both in the coarse old English forms or in the more chivalrous Norman form
the Development of the State. 307
of wager of battle, was equally obnoxious to the spirit of Christianity, and the refornm of criminal procedure carried out by Henry II. received the support of the Church all the more readily, because it was seen that thereby the use of the ordeal would be greatly lessened. A few years later no difficulty was experienced in carrying out the abolition of the ordeal altogether in obedience to the decisions of the Lateran Council of 121 5.
In matters of unjust taxation the Church is found still more decidedly in the forefront of the battle. To Becket we owe the first refusal of a subject to pay a tax to the Crown which he believed to be unjust ; when he refused in 1 163, to admit the king's right to levy Danegeld * on Church lands as a part of the ordinary revenue of the Crown — a refusal as bold, if not so patriotic, as that of John Hampden centuries later. To Hugh of Lincoln is due the credit of being the first who maintained successfully the doctrine that lands in England were not taxable by the king for the maintenance of a foreign war, with which England had no concern. Geoffrey, Archbishop of York, went into exile in 1207 rather than consent to the levying of a tax upon the clergy of a thirteenth on moveables,
* There seems, however, to be some reason to doubt if this tax was Danegeld. See English Historical Review^ October, 1890.
3o8 The Influence of the Church on
which they had not in any way consented to give. Robert Grosseteste, Bishop of Lincoln, the friend and adviser of Simon de Montfort, led the opposition to the attempt of the king to take a tenth of the revenues of the clergy in 1252, on the pretext of a crusade, and pro- tested, with a freedom unusual in that age, against the unholy alliance of king and pope to plunder the English nation and Church. To Winchilsey, quite as much as to Bohun and Bigod, is due the obtaining of the confirmation of the charters by Edward I., by which taxation was put under the control of Parliament. These are but a few instances of the kind of warfare carried on by the Church on behalf of public and private liberty, both against the king and against the pope, during the period we are dealing with. That the constitution of England was eventually under Edward I., formed on the basis of a monarchy limited by law and guided by Parliament, by which was secured to each individual the enjoyment of public and private rights guaranteed by the law and defended by Parliament, was due in no slight measure to the constant influence of Church opinion on the side of liberty, to the educating effect of Church principles, to the example of Church polity, and to the self-denying patriotic labours of
the Dti'elopment of the State. 309
men like Stephen Langton, Edmund Rich, and Winchilsey, the leading minds among the clergy.
Under Edward I. the mediaeval English state Character system attained complete development By the sHtution" organization of the country in three estates of ^'^f^L^/ the realm, — the spiritualty, the baronage, and the commonalty, — under a king whose authority over all, though supreme in principle, was limited in fact by the united action of the three estates assembled by representation in Parlament, the nation acquired a means of bringing influence to bear upon the government which could not fail, in times of royal necessity, to amount to little less than a control of the royal policy. It is the great merit of Edward I. that he sought to make his government rest upon the national will, and looked upon the union between the Crown and the people as the surest source of strength. In pursuance of this policy he summoned the famous Model Parliament of 1295, in which all three estates of the realm were adequately represented. Although the completeness of the design was somewhat impaired by the per- sistent refusal of the clerical proctors to attend the meetings of Parliament throughout the fourteenth century except upon compulsion ; yet as the bishops and abbots, who sat as barons in the Upper House, formed a majority of that
310 The Influence of tJte Church on
house, the interests of the Church were not likely to be overlooked, nor could the Parliament, even without the presence of the clerical proctors, be considered in any way insufficiently representa- tive of the spiritual estate. The character of the constitutional warfare is, therefore, somewhat altered. In Parliament an institution has been found tolerably representative of the interests of the whole nation, an organization capable of asserting those interests against the Crown or the Church, a power which, when once it has obtained control of taxation, must by the law of necessity go on to obtain control of policy. The history of the constitution of England during the fourteenth and fifteenth centuries is the history of the gradual acquisition of political power by Parliament at the expense of the king, and by the commons at the expense of the king and of the nobility, and the constitutional importance of the Church "/ill be found jn the influence she brought to bear upon the com- Altered batants on either side. No longer, as in former of the in- times, does she educate political opinion ; no Ou*Church longer docs she stand forth as the champion of in come- popular right, or the representative of popular
quenu, r r o ^ ^
instincts. Her place m these matters is taken by Parliament The more that her organization is perfected, the more that definite theories oi
the Development of tJte State. 3 1 1
the nature and limits of her authority are enunciated, the more does she tend to become an imperiutn in imperio, intent upon the main- tenance of her own class interests, less and less sensitive to the pulse of the national feeling. Just as the national will is being brought to bear more directly upon government, and is. affecting constitutional growth, the Church is beginning to lose her hold upon the nation. The influence she exercises upon the development of the constitution arises no longer from the fact that she represents the best thought of the nation, but from the fact that she is in herself a great institution, rich, educated, and strong, the policy of which cannot fail to affect powerfully the fortunes of any country in which she is planted.
It will be convenient to treat of the influence of the Church on the State during this period by considering her relations, first to the pope ; secondly to the king ; and thirdly to the people.
Relations of the Church to tlte pope. — The Relation hierarchical theory of the Church, which insisted ^^/ on the superiority of the spiritual over the ^'^/^"fT temporal power, and exalted the claims oitfuoryof the papacy as the visible embodiment of the church. spiritual power over all ties personal and national, received in the thirteenth century in England, an acknowledgment more than ordi-
312 The Influence of the Church on
narily submissive, owing to the fact that Eng- land had been, since the reign of John, a fief of the Holy See. Men were prepared to admit the supremacy of the pope as Vicar of Christ in matters of faith and morals. By many he was regarded as their feudal suzerain. They were not clear-headed enough accurately to distinguish the claims he made upon them in his spiritual or temporal capacity. So it happened that, while the feudal exactions levied because England was a fief of Rome, were for a long time more easily acquiesced in, because of the moral prestige of the papacy ; still, on the other hand when the exactions became so intolerable as to excite indignant opposition in the nation, that opposition was directed almost as much against the spiritual claims of the pope as against the abuses of his temporal government. Those who, under king or barons, were seeking to prevent excessive papal taxation found them- selves also compelled to put a limit to papal appeals, to renounce papal suzerainty', to check papal patronage, and to vindicate national independence. The papal system had become so highly developed that it was impossible to excite opposition to any part of it without affecting the whole.
Clerical taxation was one great matter of
the Development of the State. 313
dispute. After the thirteenth century, hardly {2) Tax- ation of the any attempt was made by the popes to tax cUrgy by
the whole nation, and by the final repudiation *'^M'- of the papal suzerainty in 1366 all ground for such claims was taken away ; but the exac- tions on the clergy continued with more or less severity throughout the mediaeval period, although their pressure sensibly abated after the popes had removed to Avignon. First-fruits of bishoprics and other offices seem to have been paid with some degree of regularity from the beginning of the fourteenth century. Papal demands for subsidies were refused even by Richard II. and Henry VI., but the tax of a tenth of ecclesiastical revenue was frequently imposed, and, though in name it was granted voluntarily by the provincial synod, it was in reality a compulsory tax levied by the pope and enforced by the king. Impositions of this sort, regularly levied from time to time, could naturally only be collected with the consent of the king, and gave him convenient oppor- tunity to exert pressure on the pope, when he found it desirable. Besides these regular sources of revenue, the pope obtained large sums from the English clergy, in the shape of fees for appointments and dispensations and bulls of various sorts, which, being less under
314 The Influence of the Church on
the guardianship of the State, formed a ready (3) Papal engine of fiscal tyranny. Patronage, however, patronage. ^^^ ^ more serious abuse than taxation, and one which affected the interests of the nation more nearly ; for, as the bishops and abbots formed the majority of the House of Lords, the question with whom their appointment lay was one of the most serious constitutional import. It is not, therefore, surprising to find that the kings fought hard to retain the decisive voice {<x)Ap- in the nomination of bishops. Over the election tf^ishops. ^^ abbots they could hardly expect to be able to obtain much control. Nor, indeed, did it so much matter, as the abbots, besides being in a position of less influence than the bishops, were much less regular in their attendance in Parliament Historically, the question of the appointment of bishops was a somewhat com- plicated one. Before the Conquest the nomina- tion was usually made by the king and Witan, though there are some instances of election by the clergy of the diocese. The Norman kings at first nominated bishops in their Great Council, but during the progress of the struggle about investitures it came to be the usual practice that although the king nominated the candidate, the form of election was allowed to the cathedral chapter ; while the bishops of the province con-
the Development of the State. 315
firmed the appointment and the temporalities were granted by the king. In 12 14 John granted to the chapters, by a charter which was confirmed by the pope, the right of free election, subject only to the approval of the Crown. Long before, however, the popes had themselves succeeded in obtaining a voice in the matter by the grant- ing of the pall to all metropolitans, without which they rarely dared to exercise jurisdiction, and by establishing their right to decide, in the last instance, all cases of disputed elections — a right which, in the thirteenth century, they construed to include the privilege, not merely of deciding between rival candidates, but of deciding against them all, and of consecrating a nominee of their own instead.
In the thirteenth century, by means of the skilful use of this appellate jurisdiction, so gene- rally recognized and often invoked, the popes succeeded in getting the nominations of the metropolitans in many cases entirely into their own hands, and obtaining a large share in the appointment of the suffragan bishops. In the succeeding century they completed the edifice by
quietly assuming, by means of provisions, direct [B) Pro-
visions, patronage over appomtments as to which in
former times they had only exercised the rights
of a judge of appeal. Ever since the middle of
3i6 The Influence of the Church ofi
the thirteenth century the pope had persisted in claiming to appoint, by provision as it was called, their own nominee to benefices in England, in derogation of the rights of the patrons. The barons and people had from the first fought hard against the innovation, and the bishops themselves had done their best to avoid obedience ; yet so well established had that practice become by the beginning of the four- teenth century — chiefly owing to the connivance of Henry III. and Edward I. — that in 13 13 Clement V. thought the time had come when he might safely extend it to bishoprics. During the whole of the century the system continued to flourish, generally by arrangement between pope and king, in spite of Act of Provisors, which was passed by Parliament in 1351 and re- enacted in 1390 with the express object of putting an end to it The weakness of the papacy at the beginning of the fifteenth century through the Avignonese captivity and the Great Schism, naturally checked the successful assertion of illegal and universally detested claims. Henry v., by restoring to the chapters the right of free election during the schism, seemed to have dealt a severe blow to the papal pretensions ; but the reunion of Western Christendom, under the able and aggressive Martin V., made matters worse
the Developmmt of the State. 3 1 7
than ever. A king like Henry VI., weak in mind, the prey of court factions, and dependent upon clerical support, was in no condition to resist, and from that time to the Reformation most of the bishops seem to have been appointed by pro- vision, although the pope always took care never to pass over a candidate strongly desired by the king. The exercise of patronage, therefore, Results of during the Middle Ages, whatever its fluctua- \othe'''^ tions, tended to dissociate the clergy more and Church. more from the life of the people. Whether it was being exercised mainly by the popes in favour of Italian or English officials of the Roman Curia, or whether it was being exercised by the king in favour of his own courtiers or lawyer-ecclesiastics, the nominees of both equally lived apart from the life of the Church and of the nation. They had too little in common with the bulk of the clergy whom they ruled, or the people to whom they ministered. They formed an official class, obnoxious to all below them, and envied by all about them, — a class the prejudices, nay, the very existence of which gave point to the attacks of Wycliffe, rendered impossible the attempted reformation of Colet and More, and left the Church helpless and defenceless when the strong arm of the royal power was turned against her by Henry VIII.
3i8 The Influence of the Church on
(4) Papal Jurisdiction. — We have seen how in matters «/A • of patronage the popes used their position, as the supreme arbiters of Christendom, to acquire a direct control over the higher appointments in the English Church. A similar system of tactics was pursued in matters of jurisdiction. Before the Conquest, practically speaking, there were no appeals to Rome at all. Under the earlier Norman kings they became comparatively com- mon, but the previous assent of the king was always required before the appeal was lodged, and the removal of the dispute to Rome was therefore more that of a reference to an arbiter than an appeal as of right to a final court. Never- theless, as the practice of appealing to Rome became more frequent, the idea of an arbitration died away, and by the accession of Henry 11. it had become pretty universally acknowledged that the Roman Curia was the final court of appeal in ecclesiastical cases. This was the practice which Henry II. tried to abolish by the Constitutions of Clarendon, and there was no part of the Constitutions more actively can- vassed by the adherents of Becket than that which provided that the court of the archbishop, acting under the special mandate of the king, should be the final court of appeal in ecclesias- tical matters. Great care was accordingly taken
the Development of the State. 319
that the abrogation of this provision, after the death of Becket, should be full and unmis- takable. From that time to the passing of the Statutes of Przemunire in 1393, the stream of appeals to Rome flowed free and unchecked, except by the fact that after the legal reforms of Edward I., if justice and not delay was the object of the suitor, he could obtain his object much more satisfactorily in England than at Rome. Even the trenchant provisions of the Statutes of Praemunire did not wholly put an end to the practice. There were still some cases for which the English law was inadequate to deal. There were often occasions in which it suited the king to play into the hands of the pope. Up to the very beginning of the Reformation, the papal authority on questions of marriage was unchal- lenged. Enough of the appellate jurisdiction Their con- was left to make men feel that, in the matter effects. of ecclesiastical jurisdiction, recourse was still necessary to a foreign tribunal and a foreign system of law ; and although the influence of that system and the power of that tribunal had been considerably curtailed by the national policy, still enough remained to show that the Church had to a great extent ceased to be national. Englishmen were proud of their national constitution, they were proud of their
320 The Influence of the Church on
national king, they were proud, and justly proud, of their national system of law. In the legal system of the Church, and especially in the appellate jurisdiction of the pope, they found the only exception to the triumph of the spirit of nationality. All the more readily, therefore, did they embrace the opportunity, when it was offered them in the sixteenth century, of re- nouncing once and for ever this " foreign jurisdic- tion." The constitutional importance of the appellate jurisdiction of the papacy lies in the fact that it did much to pave the way for the closer union of the civil and ecclesiastical judicatures, which has obtained from the Refor- mation up to the present time, and which is based upon a theory of a royal supremacy not very different to that expressed by Henry II. in the Constitutions of Clarendon. (5) Lega- Just as the popes used their position of dktion. referees in the case of disputed elections to bishoprics to gain the power for themselves of nominating bishops; so they used the acknowledgment of their authority as final judges of appeal in ecclesiastical causes in order to acquire the right of direct interference with ordinary ecclesiastical administration by means of legatine commissions. There were two kinds of legates known to the Roman system. Legati
the Development of the State. 321
a latere were special commissioners sent by the pope for a particular purpose, whose authority accordingly ceased when the purpose was accom- plished. Of this nature were the legations of John of Crema in the reign of Henry I., and of Otho and Othobon in the thirteenth century. Ordinary legates^ were resident representa- tives of the pope in England, whose authority varied from time to time, just in proportion as the nation w^s inclined to admit or repudiate the claims of the papal supremacy. The very appointment of a resident representative who was ex hypothcsi to exercise some authority, however vague, over the national Church, was an assertion of a superiority which was not likely to pass unheeded either by the clergy or the king. William I., Anselm, and Henry I. all refused to acknowledge that any such power lay in the pope. It was only cither during troubled times like those of Stephen, or when king and primate were at variance as during the quarrel of Henry H. and Becket, thSt the popes were able successfully to maintain legates of
* These legates are sometimes inaccurately called Legati nati. The Legaius natus was an ex-officio legate, a man who exercised what were considered legatine func- tions by virtue merely of his office, without necessarily having a legatine commission. The archbishops always had commissions.
322 The Influence of the Church on
their own, in the persons of Henry of Win- chester and Roger of York. Usually a com- promise was arrived at by the appointment of the Archbishop of Canterbury as legate. From the time of Langton (1221) this became the usual course, and from the middle of the four- teenth century the commission was also given to the Archbishop of York to act in the northern province. So jealous were the authorities both of Church and State of any attempted encroach- ment on the part of the pope, that when Martin V. suspended Archbishop Chichele from the office of legate for not procuring the repeal of the Statutes of Praemunire and Provisors, and made Henry Beaufort, Bishop of Winchester, his special legate for the Hussite Crusade, animated and formal protests were made by the king's proctor and the primate against the sending of a legate to England, except at the request of the king, in much the same terms as those u.sed by Henry I. three centuries before, although tRere is no evidence that Beaufort intended in any way to interfere with the ordi- Iticonsti' nary jurisdiction of the archbishop. Still, in rendu. spitc of the great care which was thus taken to prevent any acknowledgment, even by inad- vertence, of the right of the pope to interfere by legation or otherwise with the ordinary
the Development of tlu State. 323
administration of ecclesiastical affairs in Eng- land by the bishops and archbishops of the national Church, there is no doubt tliat the appointment of the archbishops as legates of the apostolical see did much to create confusion in the minds of men. It might be made to appear that the authority which they exercised over the Church was delegated to them by the pope, and not inherent in their own office. They were looked upon as primarily the ministers and servants of a foreign power. The system they represented was felt more and more to be divorced from the national life. Even Wolsey, independent, strong-minded, bold as he was, anxiously sought the legatine authority, as the strongest weapon he could use with which to bring about the reformation of the Church which he desired and in part accomplished : so ingrained in the national mind had become the idea that the source of all ecclesiastical jurisdiction was to be found at Rome.
Relations of the Church to the king. — We Rttatiom have seen how strongly in the Middle Ages was held the belief in the spiritual supremacy of the pope ; and how, under the double incen- tive of hierarchical theory and political neces- sity, the popes had asserted that supremacy
324 The Influence of the Church on
so as to make the Church of England, as time went on, more and more papal, and less and less national ; until she became an iinperium in iniperio, regarded as a foreign excrescence in the midst of the national growth, strong as a part of the common Christianity of Europe, but weak as a source of healthy national life. The Theory of counterpart to the theory of the spiritual porai supremacy of the pope is that of the temporal supremacy, supremacy of the king, and in England this doctrine was held no less firmly by clergy and laity alike. It is round the adjustment of the relations of these two rival principles, so easy to be stated as abstract propositions, so difficult to be translated into fact, that the chief problems of Church and State centre. The pope represents the principle of cosmo- politanism, the king that of nationality. The one may degenerate into mere foreign aggres- sion, the other into a blind and stupid insular exclusiveness. By the healthy rivalry of the two forces, rigorous independent and sympa- thetic life is best promoted, and in the union of the two, to further their own personal and selfish interests, is found the greatest danger to both. Generally speaking, the king during the fourteenth century was the advocate of the Church against the pope, and sometimes against
the Development cf the State. 325
the clergy themselves, but an advocate who never failed to exact a handsome fee for his services. Nor was this to be wondered at. The friars, who had done so much to renovate the Church in the thirteenth century, and were always the humble henchmen of the papacy, were now at the zenith of their fame, and some of the thir- teenth-century primates were taken from their ranks. The papacy was filled at the beginning of the century by the most ambitious and most self-assertive of popes, Boniface VIII. During the long reign of Henry III. England had earned at Rome the expressive title of the milch cow of the papacy. It was to be expected, ^ therefore, that the papal claims would be national fully maintained by Boniface and the higher ^^amj/^M/ clergy, and that the duty of preserving the^^/^* rights of the Church and people against their own natural leaders would fall upon the king. But, on the other hand, it was equally certain that if the king interfered on behalf of the Church against the pope, no barren victory in the mere interests of justice would content him. He would use the prestige thus gained Results of to establish the authority of the Crown so firmly upon the clergy as seriously to inter- fere with their independence. The Church found herself, therefore, between two fires, and took
326 TIu Influence of the Church on
shelter with the one party or the other, as the more immediate necessities of the moment seemed to suggest. The kings, true to the great principle of defending themselves against the admission of an authority co-ordinate with their own into the administration of affairs in their kingdom, were never over-careful to gauge too conscientiously the character of the power which they were demanding. The popes, while they never forgot that they were still the spiritual heads of Christendom, were yet so mixed up in the turmoil of politics, that they found themselves compelled to go any lengths and make any sacrifices in order to keep their revenues and their patronage. It is, therefore by no means easy to trace the exact constitu- tional importance of each question in dispute as it arose. In the matter of the appointment of bishops and the appointment of legates, as we have seen, a compromise was effected between the king and the pope, by which the interests both of the Church and of the people were (I) C/mira/ cynically sacrificed. In the matter of clerical 'iion"'*"^ representation, on the contrary, the exclusive spirit of the clergy completely triumphed. After a few useless attempts to induce them to take their places in Parliament, Edward III. allowed them to tax themselves in provin-
tlu Development of t/u State. 12 j
cial synod. The Convocations met when sum- moned by the archbishops, and their meetings did not necessarily correspond with the meetings of Parliament They transacted business of all sorts connected with the Church besides the money grants, without let or hindrance ; and although certainly from the beginning of the fifteenth century it seems to have been an established custom that the clerical grant should bear a certain fixed proportion to the Parlia- mentary grant, no compulsion on the matter on the part of the king was ever exercised, perhaps because the necessity for such inter- ference never arose.
With regard to many of the privileges of the (2) Anti- spiritualty it was far otherwise. Throughout ^ugiskuion. the fourteenth century the kings found it necessary to call to their aid the assistance of their Parliaments to check the growth of clerical pretensions, both on the part of the pope and of the national clergy. In the reign of Edward I., two important acts were passed to keep the spiritual estate in due subordination, i.e. (i) the act de Religiosis, passed in 1 279, which, by (a) De rendering the consent of the king necessary for the acquisition of land in mortmain by religious houses, both checked their growth in wealth, which was becoming a serious political danger,
328 The Influetice of the Church on
and preserved the dues and services of the land (i3) Cir- to the lords ; and (2) the writ Ciraimspecte '^'miu. ' Agatis, which is with some probability assigned to the year 1285, and which put a stop to the encroachments of the ecclesiastical courts by recognizing their right only to hold pleas on matters purely spiritual. In the succeeding reigns the pretensions of the pope were more formidable than those of the clergy. Petition and remonstrance followed each other in quick succession during the first half of the fourteenth century against the system of Provisors, but with no result. At last Parliament, wearied with the struggle, took the matter into its own hands, and passed in the year 135 1 the famous Statute (7) Pro. of Provisors, which was repeated with additional penalties in 1365, and subsequently re-enacted and confirmed in 1390. By this act the rights of patrons were maintained, and forfeiture and banishment were denounced as punishments upon any one who procured promotion by papal provision. It is noticeable that, although the lords spiritual refused their assent to the act, it was nevertheless always treated as a perfectly valid statute, was recognized by the legislation of Henry IV. and Henry V., and although frequently disregarded in practice, was never- theless constantly appealed to as embodying
tlu Development of tJie State. 329
the law on the subject As the Statute of Provisors dealt with patronage, so the Statute of Praemunire dealt with administration. In (8) Pra- 1353 an ordinance was passed inflicting the''' penalty of outlawry upon all who refused to answer for prosecuting abroad suits cognizable in the English courts. This ordinance was embodied in a statute in the year 1365, and the statute was amplified and re-enacted in a final form in 1393, in spite of the protest of the lords spiritual. By this act any one who procured from the court of Rome any bull or process which touched the king's crown or dignity, was to suffer the penalties of a praemunire, i.e. out- lawry. Thus the kings obtained a weapon of the strongest possible character, to use against the pope if necessary. How greatly it was dreaded is shown from the feverish anxiety evinced by the popes to get it repealed, if possible, but that any immediate use was made of it seems to be improbable. In the next century, of course, it formed the pretext by which Henry VIII. laid the clergy at his feet. In these two statutes Parliament asserted and maintained, on behalf of the Church and realm of England, an independence of action with regard to the pope and the clergy which forms a: link between the policy of the Constitutions
330 The Influence of the Church on
of Clarendon in the twelfth century, and that of the great Reformation statutes of the six- teenth. Although the lords spiritual, from motives either of duty or of fear, refused their assent, there seems little doubt that these pro- visions were a source of advantage and security to the Church and the clergy, as well as to the king and nation. (3) Legis- In the fifteenth century the Church found against herself threatened with a new danger, that of ^''"y- heresy, and the king with a new enemy, that of socialism. The doctrines of VVycliffe, as adopted and taught by his followers the Lollards, struck equally at the hierarchical system of the Church and the monarchical system of the State. If the prelates found their own position en- dangered by the theory that personal grace is the foundation of ecclesiastical authority, Henry IV. found his government weakened and his dynasty threatened by the Lollard attacks upon property, and their close alliance with the remnants of Richard's party. The common danger urged Church and king to combine in enforcing the series of sternly repressive measures which have been looked upon as the great blot upon the Lancastrian government and the mediaeval Church. The statutes directed against heresy were three in number. The first, passed
tlu Development of tlie State. 331
under Richard II., was aimed against Wycliffe's poor priests, and authorized the Imprisonment by the sheriffs of preachers certified by the bishops to be teachers of heresy. The second, passed under Henry IV. in 1401, is the famous statute de heretico comburetido, and provided that teachers and maintainers of heresy should be liable to be imprisoned by the bishops until abjuration, and on refusal to abjure, or on relapse after abjuration, should be handed over to the sheriffs to be burned. The third, the statute against Lollardy of 1414, passed by Henry V. after Oldcastle's attempt at revolution had failed, authorized the justices to inquire after' heretics, and to deliver them to the spiritual court for trial. Upon conviction they would, under the act of 1401, be re-delivered to the king's officers for punishment By this act, therefore, heresy was made an offence against the common law as well as against the canon law, punishable in the case of the obstinate and the relapsed by death. It was put in force with some severity during the few years following Oldcastle's rising, but the vast majority of prosecutions ended in penance and recantation, and it does not appear that more than sixty persons in all suffered the extreme penalty. In estimating the importance of this legislation, we may at once dismiss from
332 The Influence of the Church on
Comtitw
tional
resuUs.
our minds the idea that there was anything pecu- liarly horrible to the ideas of that age in the punishment awarded. Death by burning was a form of punishment, well known to the English common law as well as to that of most countries in the Middle Ages, for some crimes of more than ordinary magnitude; and it existed un- repealed in our law-books almost to the present century.^ Horrible as it appears to us with our finer instincts, it was not so considered in that cruel time, and even from the point of view of simple humanity it may perhaps be thought to compare not unfavourably with the lingering torture of death by the rack and the weight, dealt out to political prisoners in the more enlightened age of Elizabeth and James.
But while acquitting the Lancastrian dynasty from the charge of special bloodthirstiness, and admitting to the full that the danger to the peace and good order of society from the Lollards was great enough to warrant ex- ceptional measures — a proposition which is abundantly proved by the contents of the Lollard confiscatory proposals in the Parliament of 1410
* The punishment of death by burning, for high and petty treason committed by a woman, which included the murder of a husband by a wife, was not abrogated till 1790 by the Act 30 Geo. III. c. 48. See Stephen's " His- tory of the Criminal Law," vol. i. p. 447.
the Development of the State. 333
— we cannot but pronounce the legislation itself to have been of serious detriment to the well- being of the constitution. In these acts the Crown had for the first time called in the assist- ance of the spiritual arm to aid the secular government in the performance of its own proper duties. Procedure which existed for the benefit of the soul was used to secure the safety of the State. Opinions held and words spoken became criminal matters, cognizable by tribunals which were looking quite as much to the security of the government against the traitor, as to the security of the Church against the heretic. Thus the precedent was formed and the foundation laid for that long series of acts, ecclesiastical in form but civil in intention, which, from the verbal Treasons Act of Henry VIII.* to the "Act for preventing the Growth of Popery " of William 1 11.,^ have been the disgrace of the statute-book, and among the worst engines of kingly and par- liamentary tyranny.
The Relations of the Church to tlie People. — Relations The relations of the Church to the nation, ^fi^, though the most important of all in her own internal history, are the least important from the point of view of constitutional development, for in that particular their influence must neces-
» 26 Hen. VIII. c 13, « u and 12 Will III. c 4.
334 The Influence of tlu Church on
sarily be but indirect. Still, the indirect in- fluence of an institution which filled so large a place in the national life, and even in the period of its decadence did so much to mould the thought and dominate the intellect of the Middle Ages, cannot but have been large enough to warrant a brief glance at its relations to the people themselves.
In the thirteenth century the Church was seen at her best. The clergy were taken from every class of society, from the relations of the king to the humble friar who was the poorest of the poor. They led the nation in its struggle for liberty, they inspired it with the love of art, they taught it all that it knew of science and literature. In the centuries that followed, a breach between the Church and the people began to show itself The clergy became ex- ceptionally wealthy and exceptionally numerous, but the wealth became principally vested in the larger monasteries and in some of the bishoprics, The while the bulk of the clergy remained poor. As
^priau. ^he system of founding chantries for the saying of Mass for the repose of the departed became developed — owing partly to the long French wars — England became filled with a number of priests dependent upon the chantries for a miserable stipend, vowed to a celibate life, without re-
tJie Development of tJie State, 335
sponsibility for the welfare of any human being, without any duties or employment except the technical one of their daily Mass. Under these circumstances it was not to be wondered at that they became a loss to the nation and a scandal to the Church, and helped to lower instead of raise the standard of morality in the community. It was possible, as the history of Archbishop Chichele shows, for men of humble origin to rise to the highest places of position in the Church. The Character requirement of learning in every candidate iox prUsthood ordination was rigorously insisted upon ; but as^^^^^' time went on that learning became shared hy to^i^^o*' the laity in daily increasing numbers, and the avenues for promotion daily became more and more closed to men of humble origin, by the closer connection between the clergy and the great families. In the fifteenth century England was the prey of the great families. The Mor- timers, the Poles, the Percies, the Courtenays, the Beauchamps, the Beauforts, the Nevilcs, absorb every office in Church and State. The Lancastrian kings, forced to ally themselves with the influential clergy, did not dare, and the Yorkists did not care, to interfere. The cause of Th« the Church becomes identified in men's vcixxidiS comes aiUea with the cause of the nobles. Lollardy is at^J^^ once seized upon by the more democratic of the
336 The Influence of the Church on
people, because they see in it a weapon which can be used against an aristocratic Church. Even the lavish gifts that seem to redeem the false- ness of the century, and endow it with such ex- quisite beauties of art, are prompted more often by the sentiments of aristocratic patronage than Divorce by the nobler spirit of self-sacrifice.. The fact is,
between the , , ^, , , ,
Church that just as the Church became more and more 'tuuiotu organized as a separate institution in the country, affecting the national life, instead of herself being the expression of the highest part of the national life, so she ceased to be wholly representative of the people. When the clergy became a fully de- veloped estate of the realm, owning a large part of the wealth of the country, paying a large pro- portion of the taxes of the country, absorbing a large number of the offices of government, pos- sessing a majority of the House of Lords, having a separate legislature of their own, paying an allegiance, however limited, to a foreign power, jealously guarding from outside interference a system of judicature of their own which they were at once incapable of reforming, and unwilling to permit to be reformed, the Church acquired in- terests of her own to defend which were anta- gonistic to the interests of the country, she had privileges to maintain which were dearer to her than her responsibilities. She exercised her great
iJu Development of the State. 337
influence in politics and on the nation primarily for her own selfish advantage, and only secon- darily for the people, whose trustee she was. Accordingly, when the crash came, and the reformation she had refused to undertake for herself was forced on her from without, she received a fitting reward for the past by the loss for ever of her undisputed rule over the inner life of all Englishmen, and by the fatal gain of an influence, perhaps greater than before, over the politics of the nation.
To try and construct ideal theories of the due Theoria of relations between Church and State is a task as and'^S/au^ unprofitable as it is interesting, for if the verdict of history is to be accepted, such relations never have existed since the Church emerged from the catacombs, and will never exist if the experience of the past is at all an earnest of the course of the future. Certainly the problem does not get less complicated as time goes on. The aim of the statesman has been rather to maintain such a balance between the two forces as should avoid injustice to either, and leave each independent enough to be able to develop freely its best energies in its own sphere. The difficulty is Diffintlty exactly analogous to that experienced by poli- probUm. ticians in every limited monarchy, namely, how best to apportion power between the king and
Z
338 The Influence of the Church on
the people. It is easy, of course, to reduce the sovereign to a mere ornamental figure-head shorn of all independent political power. It is equally easy to endow him with such an extent of personal authority as to enable him, if he chooses, to impose his will upon his people. The difficulty of finding a middle course, and con- structing such a union between the two as should prevent harmful rivalry, and enable each force to bring its own powers to bear upon the healthy growth of the constitution, took England alone two revolutions and four centuries of internal struggle to solve, and it cannot be said that the solution, when found, wholly satisfied the conditions or entirely commended itself to a patriotic mind.
In the Middle Ages, the theorizing on the subject of Church and State chiefly sprung from the assertion of the superiority of the spiritual power over the civil by Hildebrand and his successors. Gregory VII. himself found it necessary to lay an intellectual foundation for his hierarchical assumptions, and to defend them by reeisoning in the quarrel with the Policy emperor which inevitably followed. Kings and
adopted by .....
kings. statesmen were content merely with guardmg themselves against the results of such theories, when they took the form of definite encroach-
the Development of the State. 339
ments on the civil power. Acts such as Circum- specte AgatiSy and the Statute of Praemunire, did not affect to proceed upon any theory of Church and State — such, for instance, as that of the nationality of the Church in England, which was laid down afterwards by Henry VIII., in the preamble to the Statute in Restraint of Appeals of 1534 — but ignoring, not controverting, the papal position, merely laid down certain rules, bv which certain particular privileges of the clergy were curtailed. It is true that the hier- Rivai archical theories of Hildebrand received, in the i„ the twelfth and thirteenth centuries, a further de- ^^*"**- velopment at the hands of writers like John of Salisbury and Thomas Aquinas, and became (i) Thomas formulated as the orthodox doctrine on the sub- ^""""' ject in the schools. The friars, especially the Dominicans, ardently embraced them, and fur- thered them by every means in their power, both by thought and action. It is significant that in England the greatest difficulties between Church and State arose when the primates were friars. It is equally true that in the fourteenth century, when the papacy had become to a great extent discredited, there grew up at the Univer sity of Paris a school which denied the authority of the pope in temporal matters altogether. Marsiglio of Padua and William Ockham, the
340 TJie Influence of the Church on
(2) Mar. foremost representatives of this school, were 'pcuiucl prepared to maintain, in the broadest possible
way, the incapacity of the clergy to interfere at all outside the purely spiritual sphere. They even apparently went so far as to base eccle- siastical authority on the consent of the Church rather than on the transmission of Divine power. These theories, with the exception of the indirect influence they exercised on the mind of Wycliffe, never bore practical fruit It was not the victory of any rival theory that dispelled the illusion of the mediaeval papacy in the minds of men, but its own degeneracy. The greater the hier- archical assumption, the worse did the miserable reality appear. Men could no longer give a blind adherence to an institution which, claiming to be divine, had resulted in the Great Schism, and produced the popes of the fifteenth century. In England, where the battle between the civil and spiritual powers was less pronounced, the necessity for a theory was less recognized. Until the time of Wycliffe, there is no one whose theories become in any sense powerful factors in determining the relations between Church and State. Until then, such opinions had remained in the academical circles of the
schools, and had never been applied to the
(3) W^f*
liffe. hard facts of politics. Even Wycliffe's theories
the Development of the State. 341
on government were too scholastic in form and visionary in substance to have much influence on the constitution. As an enthusiastic single- hearted enemy of abuses, whether in individuals or in institutions, he won his way into the hearts of his fellow-countrymen. As the un- folder of a reasoned scheme of constructive reform, he never convinced their intellects. The relations between Church and State in England grew and varied from time to time, just as the relations between king and Parliament grew and varied, not in accordance with any fixed rule or accepted ideal, but simply in obedience with the particular need of the particular occasion. Even at the period of her greatest degeneracy as a national institution, in the fifteenth century, the Church never wholly lost her old prestige and position, as the leader of the English people and the moulder of their national life. Still in the theories of WyclifTe, as in the rapacity of the popes, in the selfishness of the kings, and in the worldliness of the clergy, is to be found one of the causes which helped to produce the religious rebellion of the next century, and to determine the peculiar course which it took in England. By the Reformation another attempt was made to settle the due relations of Church and State in Eng-
342 Influence of the Church.
land — an attempt, perhaps, which, although appealing to principle and based on historical precedent, will hardly be considered by the historian to have produced results more finally satisfactory than those which v/e have been con- sidering in the Church of the Middle Ages.
INDEX.
Abbots, 78, 168, 169, 171, 309
Administraiion, Norman and An- gevin, I 13-115, 124, 156-158, 291-293
Aids, the three legal, 84, 140
Alcred, deposition of, 2a
Alcnin, 9
Alderman, 154, 195
Alfred, 15, 17-19, 21, 280
Alienation of Crown lands, 264,265 ; restrictions on, 265, 266
Alod, 3, 25
Anjou, Margaret of, 263
Anselm, 69, 292, 321
Appeals to Rome, 297, 312, 318-320
Aquinas, Thomas, theory of Church and State, 339
Arundel, Archbishop, 228
Aaser, 22
Aflsize of Arms, 95, 194, 218
, Clarendon, 99
, Mort d'ancestor, 64
, the Great, 304
Athelstan, 20, 39. 129
Bseda, 7
Bailiff, 26, 72
Bankers, Italian, 218
Barnstable, 201
Barons, under Henry II., 121, 155
——.John, 156, 157, 161-164; be-
come national, 168, 174-180, 183, 195 ; under the Lancastrians, 234- 241, 249-256, 260, 263-264 Barons, under the Norman Kings,
92. 93, 131-133 Battle, trial by, 97 Beauchamp, Lord, 177 Beaufort, Cardinal, 245, 248, 249,
25s, 262, 322 Becket, 122, 303, 307, 321 Bedford, 248, 262, 264 Beneficium, 13, 47 Beom, 35 Bigod, 308 Birinus, 269 Bishops, 32, 33, 37, 78, 79, 108, 132,
169, 170, 172, 183, 309, 314, 315 Black Death, 256, 258 Bohun, 308
Boniface VIIL, 300, 325 Book-land, 25-27, 61 Borh, 48
Bosco, Hugh de, 250 Bosworth, battle of, 250 Bot, 33
Breautc, Fawkes de, 144 Burgage, 75 Burgbryce, 33' Burgh, Hubert de, I3I Burgundy, 244 Butler, office of royal, 1 18
344
Index.
Cade, Jack, rebellion of, 245, 249
Calais, 265
Canon Law, influence of, 297, 304-
30s
Canterbury, Archbishop of, 10
Canute, 29, 30, 38, 103
Carta Mercatoria, 214
Carucage, 137, 138, 187
Castellatio, lOI
Castles, loi
Cenwalh, 7
Ceorl, 3, 25
Chamberlain, ofBce of, I18
Chancellor, office of, 119, 122, 123
Chancery, Court of, 232
Chantry Priests, character of, 334
Charles the Great, 91
Charles II., 248
Charters, the Select, 121, 173, 189, 190, 200
Chester, earldom of, I08
Chichele, Archbishop, 322, 335
Chivalry, tenure in, 62
Chronicle, Anglo-Saxon, 7, 21, 35,
Church, 4, 8, 9, 10, 28, 32, in, 160, 172, 225, 226, 250, 252, 255, 257, 261 ; and State, relations between, before the Norman Conquest, 274- 277 ; after the Norman Conquest, 290; under the Angevin kings, 296 ; under the later Plantagenets, 302, 310; theories of, 337-342; the national policy of, under Nor- man and Angevin kings, 289-298 ; aristocratic character of, under the Lancastrians, 226, 253, 335
Circumspecte Agatis, writ of, 328
Clarendon, assize of, 99
, constitutions of, 78, 147, 295, 318, 320, 330
Clement V., 316
Clergy, 166, 168, 172, 173, 183,
234. 235, 251, 256, 258, 261 Coinage, right of, I02 Comitatus, 7, 12, 13, 23, 25, 47 Commendation, 14, 47 Commissions of Array, 144, 218 Commons, estate of, 115, 145, 168,
176, 180, seq.; 215-222, 224,
226, 227, 229, 232, 23s, 236, 241-
248, 252-254, 261-263 Communa, 154, 157 ; French, 196 Comnenus, John, 113 Confirmatio Cartarum,i62,l67, 212,
213, 215, 219, 300 Conrad II., 81 Constable, office of, I18 Convocation, 327 Coroner, 140, 149 Cornwall, Earl of, 183 Council, the Great, 1 15-1 17, 127,
128, 148, 169, 174, 182, 187, 212;
the Royal, 159-162, 203, 222,
231; the Privy, 124, 233-240;
under the Tudors, 240, 251 ; of
Oxford, 147, 148 ; Ecclesiasticah,
170-173; Lateran, 307 Court Baron, 67, 70, 146 Court Customary, 71, 145 Court of Common Pleas, 127 Court of King's Bench, 126 Court Leet, 71, 145 Crusades, effects of, 185 Curia Regis, 8o-«4, 89, 117-II9,
123-127 Customs, 213-217 Cynewulf, 22
Danegeld, 137, 138, 307 Danelaw, 12, 42
Index.
345
Danes, il, 14, 17, 21,23, 36,42, 72, 130 ; effort of in\-asions of, upoD the Church, 279-281 David of Wales, 202 Despencers, the, 17S Dialogus de Scaccario, 134 Domesday Book, 41, 42, 132; sur- vey, SO. 5>. 54. loi Dunstan, 38, 280, 282, 286, 287 Dorham, bishopric of, 104, 108
Ealdonnan, 32-3S, 73, 103, 107, 130-132, 283
Earl, 29, 30, 32, 36, 37, 177, 240
Earldom, 103- loS, 177, 240
Earls, conspiracy of, 105
Early English Church, organization of, 272, S(q.
East Anglia, 41
Edgar, 20, 22, 39, 80, 282
Edmund, 14, 15, 21
Edred, 21
Edward the Confessor, 29, 30, 54, 71. 73. 103. 283
Edward the Elder, 17
Edward I., 86, 115, 162, 167, 172, 176, 191, 192, 194, 202, 211, 2I2v 221, 225, 232, 252, 302, 309, 327
Edward II., 216, 218-220, 251, 252
Edward III., 178, 198, 208, 210, 215, 217, 218, 221, 224, 225, 232, 242, 251, 252, 255, 326
Edward IV., 226, 250
Edwy, 22
Egbert, 279
Elections, 145, 187. 190, 191, 205 ; attempts to influence, 242, 243, 245, 246, 252, 254, 255 ; legisla- tion on, 243, 245, 254 ; of kings, 77. "7
Eorl, 3, 4, 25
Escheats, 62, 141
£ssarts> 142
Etablissements of S. Louis, 89
Ethelbald, 22
Ethelbert, 19
Ethelred II., 15, 18, 20, 22, 80,
103 Ethelwulf, 22 Exchequer, 8q, 84, 86, I20, 123-
126, 140, 142; barons of, 119,
123
Feudalism, I, 2, 24-30, 40-44; checks upon, 120, 121, 132, 133,
140, 145. 147, 148, 155-157. 159.
160, 182, 197, 294, 295 Fines, collection of, 138-140. Firmaburgi, 135, 136, 151, 155 Fitz Peter, Geoffrey, 121 Florence of Worcester, 90 Folkland, 5, 15, 18, 28, 42, 74, 75 Folkmoot. Set Witenagemot. Forest law, 142 Forfeiture, 62
France, wars with, 254, 259 Frankpledge, 97 ; view of, 146 Friars, the, 164, 339 Frith, 16 Fyrd, 15, 26, 27, SI, 91-93, 107, 143
Gascony, expeditions to, 183
Geoffrey, Archbishop of York, 307
George III., 226
Germania of Tacitus, 3, 6, 41
Gesith, 48, 63
Glanvil, 120, 121
God wine, 130
Gratian, 297, 30$
Grith, 16, 17
346
Index.
Grossteste, Robert, 308 Guader, Ralph, 104, 105 Guienne, possession of, by the Eng- lish, 260 Guilds, 153, 154, 195, 256
Harold, 21, 283
Haute Justice, 99
Henry I., 66, 77, 82, 83, 97, 98,
112, 113, 117, 120, 152, 160,
189, 321 Henry I., of France, 30 Henry H., 57, 77, 85, 95, 100, 102,
no, 112, 114, 120, 141, 142, 160,
161, 174, 210, 232, 318, 321 Henry IH., 99, loi, 102, 106, 114,
115, 122, 183,232,252, 325 Henry IV., 225, 229, 230, 234, 242,
243. 253, 259, 261, 262, 263, 264, 265, 267, 328, 330
Henry V., 227, 236, 243, 259, 262,
265, 268, 315, 328 Henry VI., 177, 221, 227, 230, 237,
244, 247, 249, 252, 255, 256, 259, 262, 263, 266, 267, 268, 313, 317
Henry VII., 247, 250, 256 Henry VIII., 278, 317, 329, 339 Henry of Huntingdon, 35 Henry of Winchester, 102 Heptarchy, the, 10 Heresy, I^slation against, 330, 331 Heriot, 63
Hildebrand, 287, 338, 339 Honour, 71, 72, 98 Hundred, 5, 31, 32, 72, 97, 146, 190, 196
Immunity, 47 Impeachment, 245, 248 Ini. 3.3
Iter of 1 194, 147 Itinerant Justices, 126, 149, 150 Ivo of Chartres, 297, 305 Ivo of Grantmesnil, 100
James I., 248
Jews, 218
John, 115, 141, 155, 156, 160, 161,
315 Joinville, 89 Judicial organization, 24, 25, 27, 28,
125 seq. Juries, 149, 150, 187 Jurisdiction, 47, 95 Justices of the Peace, 187 Justiciar, 119, 123
King, 7-23 ; election ol, 77 ; de- position of, 21, 32 ; demesne of, 18, 42 ; power of, in Angevin times, 115, 121, 127, 128, 132, "SOj ^55 > position of, in Lan- castrian times, 252, 263, 264-267 ; position with regard to the Church, in Norman times, 289-296 ; in Plantagenet times, 296-304 ; 324- 330 ; in Lancastrian times, 322,
330-332 Knight's fee, 57, 59, 142, 174 Knights of the shire, 164, 166, l8l-
^9h 19S, 199. 205, 245, 264
Lancaster, Henry of, 225, 228
Lancaster, Thomas of, 234
Lancastrian kings, 179; principles of, 228, 234, 261 ; scheme of government of, 230-239, 254 ; failure of scheme of, 248-268
Land, allotment of, 4
Landrica, 29, 72
Index.
347
Lanfranc, 276, 2S6-289, 291 Langton, Stephen, 171, 298, 308,
322 Lawyers, 198, 199, 205 ; influence
of, on the Church, 292, 293 Lt^al system, influence of the Church
upon, 304, 305 L^ates, 320-323 Lewes, battle of, 166 Liberties, 72 Lincobi, Hugh of, 307 Lincobishire, 41 Lionel of Antwerp, 217 Lcet, 3, 4, 25, 33, 35 Lollards, 225, 234, 235, 330-332,
335 London, 152, 196 Lords, House of, 176, 177-180, 231,
236, 240, 241, 309, 336 Lords-lieutenant, 144 Louis, S. (ix.), 89 Luqr, De, 120
Magna Carta, 65, 78, 85, 115, 127, 141, 150, 157, 158, 162, 163, 164, 168, 172, 174, 175, 179, 181, 182, 187, 203, 211, 212, 296, 298, 304
Manors, 25, 52, 53, 67, 68, 71, 98, 99, 145, 146, 258
Marriage, 65
Marshal, office of, 118
Marsiglio of Padua, theory of Church and State, 339
Martin V., 316, 322
Mary, Queen, 144
Matilda, Empress, 77
^fayor, office of, 154, 156, 195
Merchants, 19S, 212-216
Mcrcia, 104
Milan, edict of, 81
Military organization, 24, 26, 252 Monasteries, influence of, before
the Norman Conquest, 278 Montfort, Simon de, 166, 167, 176,
192, 194, 201, 300 Mortimer, 178
Norman Conquest, 44, 45, 48, 54, 58, 60, 68, 69, 72, 75-77. 80, 81, 108, 109, 131, 169, 181, 284-293
Normandy, loss of, 161, 162; re- tention of, by Henry VL, 260; final loss of, 260
Northumbria, 104
Ockham, William, 339 Odo of Bayeux, 93, 108 Oferhynes, 18 Oldcastle, Sir John, 331 Ordinance, 219 Oswy, 270
Palatine earldoms, 108, 1 32 Parliament, the Model, 167, 193, 200, 210, 309 ; of 1301, 221 ; of Lincoln, 221 ; the Good, 22c, 224 ; representation of the clei^ in, 172, 173, 301, 326; opposition of, to the royal prerogative, 225, 227, 310 ; under Edward HI. and Richard II,, 232-234, 266 ; under the Lancastrian kings, 228-231 Patent, 174, 177, 240 Peers, tenure of, 174-180, 240 Petition, right of, 220-222 Pleas of the Crown, 139, 140 Pope, relations of the Church to,
288,289,311^(7. Pramunicntcs clause, 173
348
Index.
Praemunire, statute of, 329 Prerogative, the royal, 224, 227, 233 Prisage, 213, 214 Privil^es of Parliament, 245-248 Provisions of Oxford, 3cx> Provisions, Papal, 315 Provisors, statute of, 328
Ranulf Flambard, 65, 66, 92, 120,
282, 294 Rebellion of 1 173-4, 121, 155 Reliefs, 63, 141 Remigius, 306 Representation, influence of the
Church upon, 301-304 Resumption, acts of, 265, 267 Retainers, 252, 260 Revolution of 1399, 225, 226, 230,
234, 261 Rich, Edmund, 308 Richard I., 138, 153, 166 Richard II., 224, 225, 228, 230,
231, 233, 234, 242, 246, 255, 261,
263, 264, 313 Richard III., 247, 250 Robert of Belesme, 93, 94, 108 Robert of Gloucester, 102 Robert of Normandy, 92, 94 Roger of Breteuil, 104, 105 Roger of Montgomery, 104 Roses, Wars of, 227, 241, 246, 250,
255. 256, 263
Sac and soc, 28, 71, 145
S. Albans, 201 ; battle of, 246, 250
Saladin tithe, 148
Salisbury, assembly of, 90, 91, 191
Salisb)iry, Roger of, 120, 292, 303
Scutage, 57, 142
S^;rave, Stephen de, 121
Sheriff, 32, 37-39, 97-99, 107, 108, 134-144, 146, 183, 191-196, 202, 204-206, 243
Shire, 31, 34, 37-40, 80, 96, 107, 108, 128-134, I40,I44» 147-150, 188-193
Shrewsbury, earldom of, 108
Sigebert, deposition of, 22
Sigismund, Emperor, 244
Slavery, action of the Church with regard to, 306
Socage, 62
Somerset, 239
Standard, battle of the, 144
Statutes, 219, 228 ; of Marlborough, 97 ; of Merton, 99 ; de religiosis, 327 ; quia emptores, 185, 219 ; of Winchester, 218 ; of Staples, 21 5, 216 ; of Praemunire, 329 ; of Provisors, 316, 328; of 1430, 245, 247, 263 ; of 1446, 245, 263 ; of Labourers, 257 ; against heresy, 330, 331; in Restraint of Appeals,
339 Stephen, 77, 99, 100-102, 114, 117,
120, 266, 321 Steward, office of, 118 Stigand, 283, 288 Stratford, Archbishop, 179 Suffolk, 244, 245, 262
Tallage, 85, 212, 213
Tallies, accounts of Exchequer
Court kept by, 143 Taxation, 57, 84-86, 114, 134-138,
148, 210-219, 310; of clergy by
king, 307-308, 326, 327; cf
clergy by pope, 312, 313 Thegnhood, 47, 48, 53, 73, 80, 81 Theningmannagemot, 80
Index.
349
Theodore, Archbishop, 269-272 Theow, 4, 69 Thorpe, Speaker, 246 Three-field system, 4 Tithe, 277
Tithing, in Frankpledge, 47 Toum and leet, 97, 205 Towns, 74, 86, 150-155 ; represen- tation of, 193-202 Township, 4, 5 Treason, 15, 16, 119, 123 Treasurer, office of royal, 119, 123 Trial by combat, 149
ordeal, 149
Truce of God, lit Tudors, the, 226, 227, 229, 240, 263 Tunnage and Poundage, 267 Tyler, Wat, rebellion of, 257
Villeinage, 257, 258 Villeins, 67, 70, 225, 257, 258
Wales, war with, 254 Wallingford, treaty of, loi, 102,
108 Walter, Hubert, 298, 303 Wardship, 141 Wedmorc, treaty of, 1 1
Wessex, 10, li, 31, 42, 104
Whitby, synod of, 270
Wilfrid, 269
WUliam I., 41, 48, 50, 55, 56, 66, 69. 74. 79. 80, 88, 90, 91, 96, 103, 104-107, 109, 131-133, 182, 276, 2S4-290, 321
William II., 66, 77, 93, 94, 291, 294
William III., 226
Williams, John, Bishop of Lincoln,
123
Winchelsey, Archbishop, 308, 309 Winchester, charter of, 153 Winchester, Henry of, 522 Witenagemot, 6, 15, 18, 19, 20-
22. 3». 32. 34. 36, 37. 39. 76-79.
90, 116, 145, 159, 168, 20a Wolsey, 323 Wool-growing, 257, 258 Writs, 98, 190, 191, 200, 203-205 Wulfstan, 69, 306 Wydiffe, 317, 330, 331, 340-341
York, Richard, Duke of, 239, 245,
246 Young, Thomas, 246
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